Opinion
No. CV 04-0830345S
June 25, 2004
MEMORANDUM ORDER RE MOTION TO STRIKE DEFENDANT'S CROSS COMPLAINT
In this case, the plaintiff has moved to strike the defendant's one-count Cross Complaint dated April 30, 2004 on the ground that it fails to state a claim upon which relief can be granted under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq. In support of this motion, the plaintiff argues, more particularly, that the challenged pleading, which is actually a mislabeled counterclaim, is deficient because the claim therein pleaded is based solely upon the allegation that the plaintiff, in his own complaint in this action, seeks to recover damages for services not provided under a written contract for the provision of legal services. The plaintiff asserts that such an allegation is insufficient to support a CUTPA claim because: (1) "[t]here are common-law remedies for the alleged practices, even if the court finds they constitute immoral, unethical, oppressive or unscrupulous conduct"[;] Motion, ¶ 5; and (2) "[i]n the circumstances of this case, nothing in the defendant's factual allegations serves to demonstrate that its dispute is other than a purely private one[, . . . whereas t]he private action authorized by CUTPA . . . is intended to provide additional sanctions to deter unfair trade practices that injure the general consuming public, rather than to provide additional remedies for the redress of purely private wrongs. Ivey, Barnum O'Mara v. Indian Harbor Properties, Inc. et al., 190 Conn. 528, 540 (1983)." Motion, ¶¶ 6-7.
I
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730, 741 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc. 224 Conn. 210, 214-15, 618 A.2d 25, 28 (1992); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432, 434 (1989); Practice Book § 10-39. The role of the trial court in deciding a motion to strike is to examine the complaint, in the light most favorable to the pleader, to determine if the pleader has stated a legally sufficient cause of action. ATC Partnership v. Windham, 251 Conn. 597, 603, 741 A.2d 305, 309, cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (1999); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859, 862 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127, 137, cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1990). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630, 633 (2000).
II
To establish a CUTPA violation, a plaintiff who claims to have been the victim of an "unfair trade practice" must plead and prove that the defendant's alleged conduct is proscribed by what has come to be known as the "cigarette rule." Noble v. Marshall, 23 Conn. App. 227, 229-30 A.2d (1990). The cigarette rule requires an inquiry as to:
(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 — whether, 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 businessmen)].
A-G Foods, Inc. v. Pepperidge Farms, Inc., 216 Conn. 200, 215 (1990), quoting Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). "A practice may be unfair because of the degree to which it meets one of the criteria [of the cigarette rule] or because to a lesser extent it meets all three." Atlantic-Richfield Company v. Canaan Oil Company, 202 Conn. 234, 242 (1987), quoting McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569 n. 15 (1984).
With the foregoing criteria in mind, it is clear beyond question that the plaintiff's first challenge to the defendant's CUTPA claim must be rejected because CUTPA does not require proof that the defendant's alleged conduct not be actionable at common law. To the contrary, the first prong of the cigarette rule can obviously be satisfied by proof that the defendant's alleged conduct "offends public policy as it has been established by . . . the common law." A-G Foods, Inc. v. Pepperidge Farms, Inc., supra, 216 Conn. at 215. Such conduct, of course, is clearly actionable at common law. Accordingly, and not at all surprisingly, plaintiffs' verdicts on CUTPA claims have frequently been upheld in cases where common-law claims were also successfully prosecuted. See, e.g., Thames River Recycling v. Gallo, 50 Conn. App. 767, 720 A.2d 242 (1998) (affirming judgment for the plaintiff on claims of breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, conversion and misrepresentation as well as violation of CUTPA).
III
A second reason for rejecting the plaintiff's first challenge to the defendant's CUTPA claim applies to its second challenge as well. That reason, simply stated, is that both challenges are based upon the erroneous assumption that a CUTPA claim may be stricken if the conduct described in it does not satisfy each and every element of the "cigarette rule." The fast challenge, to reiterate, is that the pleading must be stricken even if the defendant's alleged conduct is "immoral, unethical, oppressive or unscrupulous." That, however, is untrue, for under the "cigarette rule," as previously noted, "[a] practice may be unfair because of the degree to which it meets one of the criteria [of the cigarette rule] or because to a lesser extent it meets all three." Atlantic-Richfield Company v. Canaan Oil Company, 202 Conn. at 242, quoting McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. at 569 n. 15. If, then, the conduct described in the challenged pleading violates only one prong of the rule, the pleading cannot be stricken for failure to satisfy the rule.
The plaintiff's second challenge to the defendant's CUTPA claim is that the conduct it describes is purely private, and thus allegedly fails to meet the third prong of the "cigarette rule." Again, however, a CUTPA claim is not legally deficient if it fails, on its face, to describe conduct meeting all three prongs of the "cigarette rule." Instead, a CUTPA claim is sufficiently pleaded if the conduct described in it meets even one essential element of that rule. Here, because the plaintiff's challenge is based upon a contention which, even if shown to be true, cannot defeat the defendant's CUTPA claim as a matter of law, that challenge must be rejected by denying its Motion to Strike.
CONCLUSION
For the foregoing reasons, the plaintiff's Motion to Strike Defendant's Cross Claim must be DENIED.
IT IS SO ORDERED this 25th day of June 2004.
Michael R. Sheldon