Opinion
No. CV09 4028045 S
November 2, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The defendants Michael J. Fox and Fox Consulting Services have filed a Motion to Strike, dated April 13, 2009. The Motion to Strike was directed at the plaintiff's original Complaint dated March 16, 2009, which contained seven counts. The defendants requested that the court strike all seven counts. The plaintiff, subsequent to the filing of the defendants Motion to Strike and prior to oral argument on the motion, filed an Amended Complaint dated May 15, 2009. The Amended Complaint contains two counts alleging Intention Interference with a Contractual Relationship and Negligent Misrepresentation, respectively. At oral argument on July 13, 2009, the parties agreed that the Motion to Strike continues to be applicable to the Amended Complaint, as it pertains to the allegations contained in the remaining two counts.
The defendant, Fox, is the Executive Director of the Gasoline and Automotive Service Dealers of America, Inc. ("GASDA"). The plaintiff is a Connecticut corporation, having a principal place of business in Bridgeport, Connecticut. The plaintiff alleges that it had an existing contractual relationship with an individual named Anthony Palmer and the Derby Shell Station, a corporation with a principal place of business in Derby, Connecticut. The plaintiff, further alleges that Fox attempted to persuade Palmer to break its dealer supply contract with the plaintiff on two occasions on or about March 5, 2009, by informing Palmer that the plaintiff, Standard, was overcharging Palmer pursuant to the Dealer Supply Contract, which existed between Palmer and Standard, and by encouraging Palmer to break the contract. The thrust of the plaintiff's allegations is that Fox negligently made false representations to Palmer regarding claims that Standard was overcharging Palmer, when Fox knew or should have known that said representations were false.
"GASDA" is the retailer operated professional trade group serving Connecticut area gasoline retailers, body shops, towing operators and independent repair shops. Legal, legislative, public relations, and benefit needs are managed to help solve the members' business problems.
I
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II Intentional Interference
"It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." (Citations omitted.) Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn.App. 192, 204, 779 A.2d 822 (2001).
"An action for tortious interference with a business expectancy is well established in Connecticut. The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough . . . A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . It is also true, however, that not every act that disturbs a contract or business expectancy is actionable. A defendant is guilty of tortious interference if he has engaged in improper conduct." Id. "[T]he plaintiff [is required] to plead and prove at least some improper motive or improper means." Id., 205. "Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort . . . Golembeski v. Metichewan Grange No. 190, 20 Conn.App. 699, 702-03, 569 A.2d 1157, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990)." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21-22, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
"Connecticut recognizes two causes of action for tortious interference with a contract. These actions are negligent interference with a contract and intentional interference with a contract." Ferrara v. Rogers, Superior Court, judicial district of Stamford-Norwalk at Stamford No. CV88-0094066-S (Sep. 11, 1990, Flynn, J.) [2 Conn. L. Rptr. 351], citing Blake v. Levy, 191 Conn. 257, 259 (1983). "[T]his court has required privity of contract in order to sustain a claim for negligent interference with contract obligations; (citations omitted) There is no such requirement in cases involving intentional interference with business relations." Blake v. Levy, supra, 191 Conn. 259. The elements for intentional interference with contract or business relations include "the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship intentionally sought to interfere with it; and as a result, the plaintiff claimed to have suffered a loss." Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985). "[A] plaintiff . . . must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously. The burden is on the plaintiff to plead and prove at least some improper motive or improper means." Id., 365. See also Robert S. Weiss Assoc., Inc. v. Weiderlight, 208 Conn. 525, 536, 546 A.2d 216 (1988).
In Count One of the Amended Complaint, the plaintiff alleges it had an existing contractual relationship with an individual named Anthony Palmer, and further, that the defendant Fox had knowledge of said relationship. The plaintiff alleges that Fox interfered with that relationship by contacting Palmer and informing Palmer that the plaintiff was "overcharging Palmer." The plaintiff alleges that the Defendant Fox made these statements with the intent to persuade Palmer to breach Palmer's contract with the plaintiff. However, the plaintiff never alleges that the plaintiff had any improper motive or means, or that the statement by Fox was fraudulent, intimidating, malicious or a misrepresentation of fact. Suffield Devel. Assoc. L.P. v. National Loan Inv., supra, 64 Conn.App. 204. The defendant, Fox, is the Executive Director of the Gasoline and Automotive Service Dealers of America, Inc. ("GASDA"). He is entitled to inform his member dealers, including Palmer, of events that might be of interest to, or beneficial to the dealers. His right to communicate with the member dealers is protected by law, more specifically, General Statutes § 42-133L(f)(2), which states:
(f) No franchiser, directly or indirectly, through any officer, agent or employee, shall do any of the following: . . . (2) prohibit, directly or indirectly, the right of free association among franchisees for any lawful purpose.
Additionally, the plaintiff does not allege that Palmer, in fact, terminated his contract with the plaintiff or in any manner breached the terms of his contract with the plaintiff. Solomon v. Aberman, supra, 196 Conn. 364.
In the present case, the plaintiff's amended complaint failed to state a cause of action for tortious interference or intentional interference with contractual relations because it did not allege any facts that support its theory that the defendants tortiously interfered with the plaintiff's contract with Palmer. The plaintiff simply asserts a legal conclusion that the defendant's actions interfered with its contract with Palmer. Indeed, "it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties." Suffield Devel. Assoc. L.P. v. National Loan Inv., supra, 64 Conn.App. 206. Accordingly, the motion to strike Count One is granted, as it fails to state a claim on which relief can be granted.
III Negligent Misrepresentation
The Second Count of the Amended Complaint alleges a cause of action sounding in negligent misrepresentation. Our Supreme Court "has long recognized liability for negligent misrepresentation. [The court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement (Second) of Tort ([1977]): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Citations omitted; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987); see also Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575-76, 657 A.2d 212 (1995). To sufficiently establish a claim of negligent misrepresentation the plaintiff has to establish (1) that the defendant made a misrepresentation of fact; (2) that the defendant knew or should have known was false; and (3) that the plaintiff reasonably relied on the misrepresentation; and (4) that the plaintiff suffered pecuniary harm as a result. See, Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201, 932 A.2d 472 (2007); Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).
The plaintiff alleges that Fox made intentional misrepresentations to Palmer in one or more of the following ways:
1. Negligently representing to Palmer and other contracted dealers that the plaintiff was not upholding its obligations under their Dealer Supply Contract when he knew or should have known that said representations were false;
2. Negligently representing to Palmer and other contracted dealers that the plaintiff was overcharging them when he knew or should have known said representations were false;
3. Fox failed to exercise reasonable care or competence in obtaining and/or communicating said false representations;
4. Fox intended the false representations to reach and influence the plaintiff, Palmer and other dealers of the plaintiff;
5. The plaintiff, Palmer and other dealers of the plaintiff would reasonably expect to have access to the false representations and forseeably rely and take action in reliance upon said negligent representations.
The Amended Complaint never alleges that Fox communicated anything at all to the plaintiff. There is no allegation or suggestion that the plaintiff relied upon anything Fox did for any purpose. There is no allegation that Fox made the statements to Palmer to induce the plaintiff to rely upon such statement. There is no allegation that Palmer sustained any loss or detriment. Certainly, the plaintiff, Standard, has not indicated why it might have standing to assert any claims on behalf of Palmer or any other dealer. Count Two fails to sufficiently allege an action for negligent misrepresentation and is ordered stricken.
IV Orders
The defendant's motion to strike Counts One and Two of the plaintiff's Amended Complaint is hereby granted. Counts One and Two are ordered stricken.