Opinion
No. CV05-4004864
August 3, 2006
MEMORANDUM OF DECISION
FACTS
The plaintiff, Silktown Roofing, Inc., commenced suit against the defendants, Haynes Construction, Co. (Haynes) and United States Fidelity Guaranty, Co. (USFG) by serving them with a summons and a seven-count complaint on November 8 and 9, 2005. Therein, the plaintiff alleges, in relevant part, breach of contract, quantum meruit, unjust enrichment, violation of General Statutes § 49-41a(b) and violation of Connecticut Unfair Practices Act (CUTPA) against Haynes in counts one through five.
This action arises out of the commercial relationship between the plaintiff, which is a construction roofing services and supplies company, and Haynes, a construction contractor that was hired to complete a project for the Coginchaug High School in Durham. The plaintiff claims that it was not paid in full for its work on that project. Accordingly, the plaintiff seeks payment, including interest and attorneys fees, from Haynes and USFG, which is the surety for Haynes.
Haynes filed a motion to strike the unjust enrichment and CUTPA counts and a memorandum of law on December 29, 2005. Haynes amended this motion and memorandum of law on January 23, 2006. The plaintiff filed an objection to Haynes' motion to strike, including a memorandum of law, on February 2, 2006. We recite more relevant facts below.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike . . . requires no factual findings by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). Rather, "[f]or the purpose of a motion to strike, the moving party admits all facts well pleaded." R.K. Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 781, 887 A.2d 420 (2006).
Unjust Enrichment
Haynes argues that the court should strike the plaintiff's unjust enrichment count because, therein, the plaintiff has included allegations of breach of contract. Haynes asserts that a claim for unjust enrichment is founded on the presumption that no remedy under contract is available to the plaintiff. In the alternative, Haynes argues that the court should strike the plaintiff's unjust enrichment claim because the plaintiff fails to allege facts that would support a finding that Haynes received any benefit from the plaintiff beyond completion of the project. Under Haynes' view, this generalized benefit is insufficient to support a claim under the theory of unjust enrichment.
The plaintiff counters that because it has pleaded that it did extra work, which went beyond that which was covered by the terms of its contract with Haynes, the existence of a contract is not preclusive of its unjust enrichment claim. The plaintiff further argues that its unjust enrichment claim adequately asserts that a benefit flowed to Haynes from the plaintiff, which the plaintiff acknowledges is a requirement for such a claim.
"The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment . . . [W]hile a plaintiff may claim alternative relief based upon an alternative construction of the cause of action . . . pursuant to Practice Book § 10-26, alternative pleadings must be set forth in separate counts . . . It has been held in several recent Superior Court cases that allegation of an express contract between the parties incorporated into a count stating a claim for unjust enrichment causes a violation of the rule that those alternative causes of action must be pleaded in separate counts . . ." (Citations omitted; internal quotation marks omitted.) Advanced Environment Interface, Inc. v. Archer Cissell Associates, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 05 4003437 (June 20, 2006, Dubay, J.) ( 41 Conn. L. Rptr. 525); see also, United Coastal Industries, Inc v. Clearheart Construction Co., 71 Conn.App. 506, 513, 802 A.2d 901 (2002); Whitby School, Inc. v. Grenaille, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV03 0195602 (December 29, 2003, Lewis, J.T.R.) ( 36 Conn. L. Rptr. 285, 286).
Here, the plaintiff incorporates the first thirteen paragraphs of its breach of contract claim into its claim for unjust enrichment. Therein, the plaintiff asserts that the balance remaining due and owing to the plaintiff is $77,455.83. Most relevant is the fact that the plaintiff has alleged that this sum is owed under its contract with Haynes. Having asserted the existence of a contract remedy within this count, the plaintiff is, therefore, precluded from also claiming unjust enrichment within the same count. The plaintiff's allegation that it provided extra work to Haynes does not cure this defect in its unjust enrichment claim. Accordingly, the motion to strike with regard to the plaintiff's unjust enrichment claim is granted.
CUTPA
Haynes argues that the court should strike the plaintiff's CUTPA claim for two reasons. Haynes asserts that the plaintiff has incorporated into its CUTPA claim the same facts that are the basis for its breach of contract claim and that the plaintiff has failed to plead facts that would demonstrate the aggravating circumstances that are required for a viable CUTPA claim. In the alternative, Haynes seeks to strike the CUTPA claim because the plaintiff has failed to plead facts that would establish that damages to the plaintiff occurred as a result of Haynes' actions that would otherwise give rise to a viable claim under CUTPA.
The plaintiff responds that its CUTPA claim should survive Haynes' motion to strike because, therein, it alleges that Haynes violated the prompt payment provisions of General Statutes § 49-41a. The plaintiff argues that a violation of the public policy at the heart of § 49-41 a gives rise to its viable CUTPA claim. Moreover, the plaintiff asserts that it has directly pleaded unfairness, deception, and that Haynes caused the plaintiff economic harm. "A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan King, P.C., 32 Conn.App. 786, 797, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). "[T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation . . . Although there is a split of authority [among the decisions of the superior court] regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of [the court's] decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA] . . . When the superior court has permitted a CUTPA cause of action based on a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances . . . The question therefore becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation . . ." (Citations omitted; internal quotation marks omitted.) Hendricks Associates v. Old Lyme Marina, Superior Court, judicial district of New London, Docket No. 0546496 (November 22, 2000, Martin, J.).
General Statutes § 49-41a provides, in relevant part: "(a) When any public work is awarded by a contract for which a payment bond is required by section 49-41, the contract for the public work shall contain the following provisions: (1) A requirement that the general contractor, within thirty days after payment to the contractor by the state or a municipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included in a requisition submitted by the contractor and paid by the state or a municipality; (2) a requirement that the general contractor shall include in each of its subcontracts a provision requiring each subcontractor to pay any amounts due any of its subcontractors, whether for labor performed or materials furnished, within thirty days after such subcontractor receives a payment from the general contractor which encompasses labor or materials furished by such subcontractor. (b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, if a surety bond is not in place, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one percent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorneys fees of such party."
CUTPA, which is set forth in General Statutes § 42-110a et seq., provides, in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." General Statutes § 42-110g(a). General Statutes § 42-110b(a) provides that; "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The Connecticut Supreme Court has adopted the following test to determine when a practice is unfair: "(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005).
In the present case, the plaintiff alleges that Haynes intended to unfairly cause economic damage to the plaintiff by its refusal to honor repeated requests for payment under its § 49-41a contract. The plaintiff further alleges that Haynes' refusal of payment represented an unfair and/or deceptive and intentional and/or reasonably calculated harmful business practice by Haynes. Under the first prong of the test for a viable CUTPA claim as articulated in Ventres, these allegations sufficiently offend public policy as articulated by § 49-41a. Accordingly, the plaintiff has pleaded a legally sufficient cause of action in count five.
For the foregoing reasons, the court grants Haynes' motion to strike with regard to the third count and denies it with regard to the fifth count.