Opinion
No. CV04-0103923 S
August 18, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This is a multiple-count complaint by the plaintiffs against four defendants whom they had engaged to construct a home for them on their property. Two defendants, Philip Hayes and Philip Hayes Builders, Inc., have now moved to strike Counts Five and Six, in which the plaintiffs assert claims under General Statutes § 47-116 through § 47-121, the Connecticut New Home Warranty Act, and Counts Seven and Eight, which make claims under General Statutes § 42-110b(a), the Connecticut Unfair Trade Practices Act ("CUTPA").
With respect to Counts Five and Six, the defendants' principal contention is that the plaintiffs are unable to state a claim for which relief may be granted under the New Home Warranties Act because that act only imposes liability on the builder or vendor of a new home in favor of the original buyer of improved real estate. In this case, however, it is undisputed that the plaintiffs purchased unimproved land, then contracted with the defendants to build a new home upon this property. The parties agree that the issue has not yet been the subject of either Supreme or Appellate Court review. The plaintiff however, cites to a number of Superior Court opinions, all of which, according to the defendants, "have taken a niggardly approach to the application of the Act." Indeed, all of the judges of the Superior Court who have addressed this issue have adopted the view that the "New Home Warranties Act sets forth warranties and imposes liability on the builder/vendor of a new home in favor of the original buyer of improved real estate." Jackson v. Fortunato, 1996 WL 166675, Judicial District of Stamford-Norwalk at Stamford (July 30, 1996, Ryan, J.) (emphasis added). See also Scott v. Regency Developers, Inc., 2000 WL 1781846, Judicial District of New Haven at New Haven (November 8, 2000, Levin, J.); Bouchard v. Boyer, 1999 WL 335845, Judicial District of New London at New London (May 17, 1999, Hurley, J.); Greene v. Perry, 1999 WL 512666, Judicial District of Windham at Putnam (July 9, 1999, Sferrazza, J.); Pelletier v. Pelletier Development, Co., 1996 WL 166675, Judicial District of Hartford/New Britain at New Britain (March 14, 1996, Fineberg, J.). These cases uniformly hold that the Act is not to be applied to a situation such as that presented by the instant case, in which the plaintiffs had already owned the land before contracting for the erection of a new home upon it.
The best response the defendants can muster is a convoluted argument that the builder, because he has the right to a mechanic's lien on the property, has placed the plaintiffs in a position of, in effect, "purchasing" their real estate from the builder by virtue of the release of the builder's potential claim upon payment on the contract. The plaintiffs offer no legal support for this inventive but flawed construction. Moreover, there has been no allegation in this case that the defendants in fact filed a mechanic's lien on the subject property. The Motion to Strike as to the Fifth and Sixth Counts must therefore be granted as the plaintiffs have failed to state a claim for which relief may be granted under the New Home Warranties Act.
To the extent that the Seventh and Eighth Counts, which make claims under CUTPA, are merely derivative of those alleged in the now-stricken Fifth and Sixth Counts, they too, of course, must be stricken. Beyond that, as in Agento v. Patient Aide Center, Inc., Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. 118943 (August 12, 1993) (Rush, J.), "the claims asserted by the plaintiff [s]imply allege straightforward claims of negligence and breach of warranty which are not sufficient to raise a claim of conduct sufficient to establish a CUTPA violation." There is nothing in the factual allegations of Counts One and Two (Negligence) and Three and Four (Breach of Contract), which are incorporated by reference into the allegations of the Seventh and Eighth Counts, that amount to conduct that could be found "immoral, unethical, unscrupulous, or offensive to public policy."
For all of the above reasons, the Motion to Strike is granted as Counts Five, Six, Seven and Eight of the plaintiffs' complaint.
Jonathan E. Silbert, Judge