Opinion
FSTCV196039705S
01-17-2020
Tri-State LED, Inc. v. Pasquariello Electric Corp.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Genuario, Robert L., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO STRIKE (#114)
GENUARIO, J.
I. INTRODUCTION
In its revised complaint the plaintiff alleges that it and the defendant entered into an oral agreement in which the defendant agreed to bid a job for LED lighting and associated services for the City of Stamford. If the defendant won the bid the plaintiff would provide products and services to the defendant so the project could be undertaken and completed. The defendant agreed that it would pay the plaintiff for its product and services rendered for this project. The plaintiff further alleges that the defendant won the bid, that the plaintiff provided the product and services and that the defendant has refused to pay the plaintiff, therefore breaching the agreement.
The first count sounds in breach of contract and the second count sounds in unjust enrichment. In the third count the plaintiff adds another allegation as follows: "the defendant agreed that it would pay the plaintiff for the products and services that it provided to the defendant in the project- never intending to pay for any of the services that it anticipated receiving from the plaintiff ." (Emphasis added.) In the third count the plaintiff continues that the defendant’s actions taken in the conduct of the defendant’s business are unfair, unethical, immoral, oppressive and violative of public policy in violation of the Connecticut Unfair Trade Practices Act, C.G.S. § 42-110b et seq. (CUTPA).
The defendant has moved to strike the third count of the complaint on the grounds that the third count does not allege the necessary elements which are required to set forth a violation of CUTPA.
II. MOTION TO STRIKE
"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 (2003). "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.) Violano v. Fernandez, 280 Conn. 310, 318 (2006). "[F]or the purpose of a motion to strike, the moving party admits all facts well-pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2 (1994). "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." Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). (Emphasis in original; internal quotation marks omitted.) In ruling on a motion to strike the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117 (2006). (Internal quotation marks omitted.)
III. DISCUSSION
It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the Federal Trade Commission for determining 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 business persons] ... all three criteria do not need to be satisfied to support a finding on fairness. A practice may be unfair because of the degree in which it meets one of the criteria or because to a lesser extent it meets all three ... [A] violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy ...
Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 19 (2008) (citations omitted, internal quotation marks omitted).
The defendant in its motion relies, in part, on a thorough and thoughtful opinion in the case of Birbarie v. C&H Shoreline, Inc., 2014 WL 5394593 (2014 Nazzaro, J.). In Birbarie the plaintiff alleged that she had retained the defendant as a result of a water problem in her basement. The agreement included a bailment agreement pursuant to which the defendant was to box the plaintiff’s personal belongings, store the boxes for the duration of the cleaning process and return the boxes to the plaintiff upon completion of the project. When the defendant returned the plaintiff’s personalty, certain boxes were missing containing irreplaceable family heirlooms and wedding gifts. The Birbarie court struck the CUTPA count concluding that the allegations did not demonstrate to the court the manner in which the defendant’s conduct or business practices were fraudulent or otherwise oppressive or unscrupulous. While the defendant may have breached the contract and may have been negligent in the performance of the contract, such conduct is not sufficient to satisfy the essential elements of a CUTPA claim.
The Birbarie case is notable for its discussion of other cases dealing with CUTPA claims such as Lawton v. Yale University, Superior Court for the judicial district of New Britain, Docket Number CV06-500669-S (March 30, 2007, Shapiro, J.). In Lawton the court observed that the failure of a bailee to return certain items to a bailor simply constituted a breach of contract claim in the absence of any aggravating factors. However in granting the defendant’s motion to strike the Lawton court wrote "[n]owhere ... does the plaintiff allege either that the defendant ... had a present intent not to deliver on [the] representations to him or that those representations were intended to induce him." Lawton, supra . In the case at bar, the plaintiff alleges precisely that.
In the case at bar the plaintiff clearly alleges that at the time the defendant entered into the agreement for product and services to be supplied by the plaintiff, the defendant never intended to pay for the services it had anticipated receiving from the plaintiff. That allegation brings this case more closely inline with the case of Striegel v. Antiques at Pompey Hollow, LLC, 54 Conn.L.Rptr. 387 (July 18, 2012 Domnarski, J.). In Striegel the court concluded that the breach of contract alone would not support a violation of CUTPA; however, the fact that the defendant failed to deliver the property upon demand and when the plaintiff went to retrieve the same, the fact that the majority of the remaining property was not returned until after litigation commenced and the fact that several items had still not been returned caused substantial injury to the plaintiff and the defendant’s actions were unfair and unethical. While Striegel might be distinguished from the case at bar on the basis that the Striegel court found that the bailment relationship created a fiduciary duty, the allegations in the case at bar infer more unethical, immoral and oppressive conduct than that in Striegel. Here the plaintiff alleges a fraudulent intent relied upon by the plaintiff at the outset of the agreement. It is not merely a breach of an agreement or even an intentional breach of the agreement. In the case at bar the allegations infer an insidious scheme to obtain product and services without paying for them. Whether or not the plaintiff can sustain its burden of proof is a question for another day.
In the case at bar, the succinct factual allegations concerning the intent of the defendant at the time it entered into the agreement, read in a manner most favorable to the plaintiff as the court must, is tantamount to fraud. Effectively the plaintiff alleges that the defendant made representations to the plaintiff about payment, never intending to honor those representations, but rather simply to induce the plaintiff to provide the services knowing that the plaintiff would not be paid. Such conduct, if proven would constitute aggravating circumstances as well as practices that are immoral, unethical, unscrupulous and offensive to public policy. See also Lester v. Resort Campings International, Inc., 27 Conn.App. 59; Ruby v. Chase Manhattan Bank, 2002 WL 725495 (Quinn, J.) (finding that an allegation that the defendant did not "intend to fulfill its duties under the terms of the contract" are sufficiently aggravating to support a CUTPA violation.
The court is cognizant that "a claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." Keller v. Beckenstein, 117 Conn.App. 550, 569 n.7, cert. denied, 294 Conn. 913 (2009). But the allegation of intent at the time of the entry into the agreement is specific. Certainly the defendant can, through the discovery process, seek information concerning the evidence the plaintiff intends to offer to support the allegation.
Nor is the court concerned that its ruling may encourage lawyers to add a CUTPA count to any breach of contract claim by simply adding such a clause relating to intent, because under the Rules of Professional Conduct "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ..." Rules of Professional Conduct, Rule 3.1.
IV. CONCLUSION
For all these reasons the motion to strike is denied.