Opinion
CV146043293
11-09-2015
John Zhang et al. v. Robert Willis et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael P. Kamp, J.
The issue before the court is the defendants' motion to strike counts two through twenty-one of the plaintiffs' second amended complaint on various grounds as specified in the defendants' motion and memorandum of law in support.
FACTS
On October 27, 2014, the plaintiffs, H. John Zhang and Lisa Zhang, filed their first amended, twenty-one count complaint against the defendants, Robert Willis (Willis) and The Willis Pool Co., LLC (pool company). On November 6, 2014, the plaintiffs filed a second amended complaint against the defendants. The second amended complaint, being the operative complaint for the purposes of ruling on the defendants' motion to strike, contains the same twenty-one counts that were alleged in the first amended complaint but removes certain terms in counts one and twelve and changes the dollar amounts stated in counts three and fourteen. The first amended complaint and the second amended complaint are practically identical.
" The voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, though remaining in the files and constituting of the history of the case, can furnish no basis for a judgment, nor can any previous ruling on it be made a subject of appeal." Connecticut Bank of Commerce v. Giordano, 67 Conn.App. 79, 81, 787 A.2d 9 (2001), cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). Moreover, Practice Book § 10-61 provides: " When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading."
The counts set forth in the plaintiffs' second amended complaint are as follows: as to the defendant pool company, the plaintiffs' claim breach of contract (count one), statutory theft (count two), fraudulent misrepresentation (counts three and four), unfair trade practices for statutory theft (count 5), unfair trade practices for fraudulent misrepresentation (counts 6 and 7), unfair trade practices for violation of the Home Improvement Act (HIA), General Statutes § 20-418 et seq. (counts 8 and 9), and unjust enrichment (count ten); and as to the defendant Willis, the plaintiffs assert claims of piercing the corporate veil (count 11), breach of contract (count 12), statutory theft (count 13), fraudulent misrepresentation (counts 14 and 15), unfair trade practices for statutory theft (count 16), unfair trade practices for fraudulent misrepresentation (counts 17 and 18), unfair trade practices for violation of the Home Improvement Act (counts 19 and 20), and unjust enrichment (count 21).
In their second amended complaint, the plaintiffs allege the following pertinent facts. At all relevant times, the plaintiffs were residents of the town of Weston, Connecticut and were the owners of property located at 86 Treadwell Lane in Weston (the property). The pool company is a domestic corporation in the business of performing home improvement projects with its principal place of business located in Woodbury, Connecticut. Willis was, at all relevant times, a resident of the town of Woodbury and is an owner, officer, or member of the pool company.
The court will discuss additional allegations made by the plaintiffs as it becomes necessary.
On May 5, 2011, the plaintiffs and the defendants entered into a contract for certain improvements to be made to the property, including the construction of a pool (May 5 contract). The May 5 contract constituted a home improvement contract pursuant to the HIA. On or before May 5, 2011, the defendants represented to the plaintiffs that the May 5 contract would be for the sum of $89,500, but they intended to charge the plaintiffs substantially more than that while knowing or ignoring the substantial possibility that the project would be materially more costly than projected. The defendants stated a sum certain of $89,500 to induce the plaintiffs to enter into the contract, even though the defendants knew that the statement was untrue or disregarded a substantial risk that it was untrue. The plaintiffs executed the May 5 contract, and the defendants ultimately charged the plaintiffs $141,000.
On September 20, 2011, the plaintiffs and the defendants entered into a second contract for additional improvements to be made to the property, including the construction of a pool house and a garage (September 20 contract). Like the May 5 contract, the September 20 contract constituted a home improvement contract pursuant to the HIA. On or before September 20, 2011, the defendants represented to the plaintiffs that $167,630 would cover all of the work specified in the September 20 contract and that any and all change orders would be submitted in writing and would require separate approval by the plaintiffs before any additional work would be performed. The defendants intended to charge the plaintiffs substantially more than $167,630, however. The defendants also knew or ignored a substantial possibility that the project would cost much more and that the representations made as to the change orders were untrue or they disregarded a substantial risk that such representations were untrue. These representations were meant to induce the plaintiffs to enter into the contract, and the plaintiffs executed the September 20 contract.
The defendants submitted an invoice dated November 27, 2012, which purported to charge the plaintiffs for certain work as if such work had been completed in addition to the work previously agreed upon. In reality, this work was already within the scope of the September 20 contract and included, but was not limited to, the installation of flooring, roofing, cabinets, trim, stucco, gas lines, and/or electrical work.
For both contracts, the defendants failed to comply with General Statutes § § 20-429 and 42-135a(1), (2), (3), and (5). The contracts furnished to the plaintiffs did not contain the statement required by § 42-135a(1), and the defendants did not provide the plaintiffs with duplicate copies of the notice of cancellation, did not complete copies of the notice of cancellation prior to furnishing them to the plaintiffs, and did not inform the plaintiffs, orally, of their right to cancel both contracts.
In December of 2012, the defendants refused to complete any outstanding work under either contract. Sometime prior to this, the defendants came to the property and took cedar wood and other building materials for which the plaintiffs had fully compensated the defendants. The defendants did not compensate the plaintiffs for the cedar wood and other building materials that they took. Additionally, the defendants left heavy, unusable material and trash behind on the property, some of which requires machinery to move, and did not clear or remove the material as specified in the " Refuse" section of one of the contracts. In spite of their failure to remove the refuse from the property, the defendants billed the plaintiffs for this removal and received payment from them.
In sum, the plaintiffs paid the defendants over $351,000 for the May 5 and September 20 contracts. Meanwhile, the work completed under the contracts suffers from numerous material deficiencies, such as the decking around the pool is improperly graded such that it fails to adequately drain water, certain siding on the garage and pool house is cracking or becoming detached, water seeps through the foundation of the garage, and/or mortar in the coping around the pool is crumbling or decaying.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Limited Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). But " [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Coppola Construction Co. v. Hoffman Enterprises Limited Partnership, 350. " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
The defendants move to strike counts two through twenty-one of the plaintiffs' complaint on various grounds. First, the court will address the defendants' arguments pertaining to the pool company. Then, the court will discuss the defendants' arguments as to Willis.
Count 2: Statutory Theft
The defendants argue that the plaintiffs' statutory theft claim in count two is legally insufficient because the basis for the plaintiffs' lawsuit is contract, not tort; the plaintiffs failed to allege unauthorized conduct; and the plaintiffs failed to allege specifically identifiable monies. As to the defendants' first point, the plaintiffs contend that the second count refers to materially different conduct than is alleged within the first count of breach of contract. Specifically, the plaintiffs assert that count one alleges that the work performed under the contract was carried out in an unworkmanlike manner and was unfinished, and, in contrast, count two contains allegations that the pool company took possession of building materials that the plaintiffs had already paid for and that both defendants manufactured fraudulent bills for work that was never done and/or already done and paid for in order to squeeze more money out of the plaintiffs, which is theft. As to the defendants' second argument, the plaintiffs contend that, broadly construed, their allegations that they held rightful title to certain cedar wood and that the defendants removed it from their property without compensating the plaintiffs are allegations of unauthorized conduct. Regarding the defendants' third argument, the plaintiffs maintain that count two is sufficient because they allege the theft of money and the theft of specifically identified property.
" Statutory theft under [General Statutes] § 52-564 is synonymous with larceny under General Statutes § 53a-119." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Section 52-564 provides that " [a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." Section 53a-119 provides in relevant part that " [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." Thus, to prove a claim of statutory theft " [i]t must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 713, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).
" The elements of civil theft are also largely the same as the elements to prove the tort of conversion, but theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Sullivan v. Delisa, 101 Conn.App. 605, 620, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). " To establish a prima facie case of conversion, the plaintiff . . . [must] demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff." (Internal quotation marks omitted.) Coster v. DuQuette, 119 Conn.App. 827, 832, 990 A.2d 362 (2010).
" The term owner is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute propriety interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 770-71.
" Although our case law is clear that a claim for money, not just tangible goods, may be the subject of conversion or statutory theft, a claim for money owed on a debt is not sufficient to establish such causes of action . . . Moreover, in order to establish a valid claim of conversion or statutory theft for money owed, a party must show ownership or the right to possess specific, identifiable money, rather than the right to the payment of money generally . . . When an action arises from a claim under an express or implied contract, a claim in tort is inappropriate." (Citations omitted.) Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 421, 934 A.2d 227 (2007).
The plaintiffs fail to sufficiently state a claim for statutory theft. In count two, the plaintiffs allege that prior to December 2012, when the pool company " refused to complete any outstanding work under either the May 5, 2011 contract or the September 20, 2011 contract, " certain building materials and cedar wood were present on the property, the plaintiffs had " fully compensated" the pool company for such materials, the pool company came to the property and took all of those materials " with a specific intent to deprive the plaintiffs thereof, " and the pool company " did not compensate" them for the materials that it took. The plaintiffs also allege that the pool company left " unusable material and trash" on the property " without clearing or removing said material as specified in the 'Refuse' section of the contract, " the pool company billed the plaintiffs for the removal, intending " to permanently deprive the plaintiffs of money, " and the plaintiffs paid the bills. On the basis of these allegations, the court concludes that the plaintiffs' statutory theft claim arises out of the May 5 and September 20 contracts. The allegations imply that the plaintiffs paid the pool company to purchase certain building materials and cedar wood to complete its contractual obligations, the pool company removed the materials from the property and eventually refused to complete any remaining work prescribed under the contracts, including the trash removal. These allegations present a situation in which the defendant allegedly failed to uphold its various contractual obligations by refusing to complete the work agreed upon and/or overcharging the plaintiffs for such work. Accordingly, the plaintiffs' statutory theft claim is legally insufficient.
Counts 3 & 4: Fraudulent Misrepresentation
The defendants maintain that the plaintiffs' fraudulent misrepresentation claims in counts three and four are legally insufficient because the plaintiffs failed to allege that they relied on the misrepresentations to their detriment. The plaintiffs disagree that they have failed to do so.
" The essential elements of an action in common law fraud . . . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance . . . In contrast to a negligent representation, [a] fraudulent representation . . . is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it . . . This is so because fraudulent misrepresentation is an intentional tort." (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).
In count three, the plaintiffs allege that the pool company told the plaintiffs that the May 5 contract " would be for the sum of $89,500" while knowing that the statement was untrue and " in order to induce the plaintiffs to execute the May 5, 2011 contract." The plaintiffs also allege that they " did, in fact, execute the May 5, 2011 contract, " and the pool company eventually charged them $141,000 for it. These allegations imply that the plaintiffs suffered a detriment as a consequence of their reliance on the defendants' representations concerning the contract price. Count four contains almost identical allegations that address the September 20 contract and adds allegations regarding written change orders and the November 27, 2012 invoice. The court concludes that both counts sufficiently allege claims of fraudulent misrepresentation.
Counts 5, 6, 7, 8, & 9: CUTPA
The defendants argue that the plaintiffs' claims of unfair trade practices in counts five through nine are legally insufficient because the plaintiffs failed to allege an ascertainable loss. The defendants argue further that counts five, six, and seven must be stricken because the plaintiffs' statutory theft and fraudulent misrepresentation claims are legally insufficient. The plaintiffs contend that they need only allege that they have suffered a loss that can ultimately be measured and that they have done so in their complaint. With respect to the HIA claims, the plaintiffs contend that a violation of the Home Improvement Act is a per se violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and, thus, they do not have to identify a separate, ascertainable loss.
" To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce; General Statutes § 42-110b(a); and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property . . . The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must prove that he has suffered an ascertainable loss due to a CUTPA violation . . . For purposes of satisfying the ascertainable loss requirement of CUTPA, our Supreme Court has defined an 'ascertainable loss' as 'a loss that is capable of being discovered, observed or established . . . The term loss necessarily encompasses a broader meaning that the term damage, and has been held synonymous with deprivation, detriment and injury . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount . . . [A] loss is ascertainable if it is measureable even though the precise amount of the loss is not known.'" (Citation omitted.) Coppola Construction Co. v. Hoffman Enterprises Limited Partnership, 157 Conn.App. 139, 197, 117 A.3d 876 (2015).
Furthermore, " under General Statutes § 20-427(c), any violation of [the HIA] . . . is a per se violation of CUTPA . . . Once a violation of the act has been established, however, our cases make clear that the homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA. See, e.g., Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 684-85, 657 A.2d 1087 (1995) (denying recovery on CUTPA claim based on § 20-429[a] because counterclaim plaintiffs 'presented no evidence that they had suffered an ascertainable loss of money or property'); Woronecki v. Trappe, . . . 581-82 [637 A.2d 783 (1994)] (remanding case to trial court to determine damages, after concluding that CUTPA violation had occurred); A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343-44, 576 A.2d 464 (1990) (denying recovery on CUTPA claim on ground that homeowner had not proven any loss or injury for which he could recover); Scrivani v. Vallombroso, 99 Conn.App. 645, 653-54, 916 A.2d 827 ('[w]e do not read our law to dispense with the [proof of damages] requirement once a violation of the . . . act is established.'), cert. denied, 282 Conn. 904, 920 A.2d 309 (2007)." (Citation omitted; footnote omitted.) Hees v. Burke Construction, Inc., 290 Conn. 1, 13-14, 961 A.2d 373 (2009).
Foremost, count five, which alleges unfair trade practices for statutory theft and incorporates all of the allegations from count two, is legally insufficient as a consequence of this court's earlier conclusion that count two is insufficiently pleaded. Counts six and seven incorporate all of the allegations of count three and count four, respectively. Accordingly, the plaintiffs have sufficiently pleaded their claims of unfair trade practices for fraudulent misrepresentation because the allegations present the ability to identify an ascertainable loss. As for counts eight and nine, the plaintiffs have failed to sufficiently plead their claims of unfair trade practices for violations of the HIA because the plaintiffs do not include or incorporate any allegations concerning any kind of loss they may have suffered as a consequence of the violations.
Count 10: Unjust Enrichment
The defendants argue that the plaintiffs' unjust enrichment claim in count ten is legally insufficient because the plaintiffs failed to allege the third element of the claim, namely, that the failure of payment was to the plaintiffs' detriment. The plaintiffs maintain that their allegations support a cause of action for unjust enrichment being that the court's determination must be made on a case-by-case basis upon consideration of the circumstances and the conduct of the parties.
" A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).
The plaintiffs have sufficiently pleaded their unjust enrichment claim because their allegations imply that the pool company's failure to adequately complete the work contracted for resulted in a detriment to the plaintiffs. In count ten, the plaintiffs allege that they paid the pool company over $351,000 for the May 5 and September 20 contracts, and, yet, the work completed under both contracts " suffers from numerous and material deficiencies, " such as the " dry-wall inside the pool house is improperly jointed and taped, " the " painting of the exterior trim of certain windows on the pool house was not completed, " and " [w]ater seeps through the foundation of the garage." Though the plaintiffs do not specifically allege that the pool company's failure to meet its obligations under both contracts resulted in their detriment, taken together, the allegations imply this is allegedly the case.
Count 11: Piercing the Corporate Veil
The defendants contend that count eleven, piercing the corporate veil, should be stricken because it is not a separate cause of action. The plaintiffs argue that Connecticut law allows the plaintiff to plead piercing the corporate veil to put the defendant on notice that the plaintiff intends to utilize the theory after judgment.
The court is unaware of any definitive appellate ruling on the issue of whether piercing the corporate veil may be brought as an independent cause of action in the state of Connecticut. Nevertheless, on the basis of previous decisions of the Supreme Court, it may be inferred that a plaintiff may independently assert such a claim. See Naples v. Keystone Building & Development Corp., 295 Conn. 214, 220, 231, 990 A.2d 326 (2010) (discussing trial court's decision to reject plaintiffs' piercing the corporate veil claim where claim was asserted as independent count); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 546, 447 A.2d 406 (1982) (reviewing trial referee's dismissal of third-party plaintiffs' complaint alleging third-party plaintiff company was owned by and alter ego of third-party defendant); cf. Everspeed Enterprises Limited v. Skaarup Shipping International, 754 F.Supp.2d 395, 403 (D.Conn. 2010) (" [I]n Connecticut, the concept of piercing the corporate veil is equitable in nature and not itself treated as an independent cause of action"). Thus, the court will not strike count eleven on that basis.
Counts 12, 13, 14, 15, 16, 17, 18, 19, 20, & 21
The defendants argue that counts twelve through twenty-one should be stricken because they fail to allege a basis to pierce the corporate veil and subject Willis to personal liability. Furthermore, the defendants argue that if count eleven was incorporated into counts twelve through twenty-one, those counts should still be stricken because the allegations in count eleven are conclusory and lack factual support. The plaintiffs contend that they are not obligated to prove anything at this stage, as the defendants seem to suggest, and that they have alleged facts sufficient to support piercing the corporate veil.
" Ordinarily the corporate veil is pierced only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice . . . The improper use of the corporate form is the key to the inquiry, as [i]t is true that courts will disregard legal fictions, including that of a separate corporate entity, when they are used for fraudulent or illegal purposes. Unless something of the kind is proven, however, to do so is to act in opposition to the public policy of the state as expressed in legislation concerning the formation and regulation of corporations." (Citation omitted; internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., supra, 295 Conn. 233-34. Courts make their assessment by applying the instrumentality rule or the identity rule. Id., 232.
" The instrumentality rule requires . . . proof of three elements: (1) [c]ontrol, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." (Internal quotation marks omitted.) Id. The identity rule requires the plaintiff to " show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise." (Internal quotation marks omitted.) Id.
Courts consider a number of factors when assessing whether an entity is dominated or controlled, including " (1) the absence of corporate formalities; (2) inadequate capitalization; (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes; (4) overlapping ownership, officers, directors, personnel; (5) common office space, address, phones; (6) the amount of business discretion by the allegedly dominated corporation; (7) whether the corporations dealt with each other at arm's length; (8) whether the corporations are treated as independent profit centers; (9) payment or guarantee of debts of the dominated corporation; and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., supra, 295 Conn. 233.
Moreover, " an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975); see also Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991) (" It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable . . . The same rule would impose personal liability on a shareholder as well." [Citations omitted; footnote omitted.]).
As an initial matter, counts fourteen, fifteen, seventeen, and eighteen allege fraudulent misrepresentation and unfair trade practices for fraudulent misrepresentation against Willis personally. Thus, the defendants' argument here is irrelevant as it is of no consequence whether the plaintiffs allege facts sufficient to support a claim for piercing the corporate veil where the cause of action asserted against the defendant in his individual capacity sounds in tort.
Counts twelve and twenty-one, breach of contract and unjust enrichment, respectively, are legally insufficient because they do not contain allegations that adequately meet the requirements under either the instrumentality rule or the identity rule. Both counts allege that the pool company " is a domestic corporation with a principal place of business in Woodbury, Connecticut, " and that Willis " is an owner, officer, or member" of the pool company. Beyond those somewhat relevant allegations, the remaining facts that the plaintiffs allege neither mention nor fairly imply that Willis exerted the level of control or domination required under the instrumentality rule or that a unity of interest existed between both defendants such that their independence was a thing of mere fiction. Instead, the remaining allegations serve only to support the breach of contract and unjust enrichments claims.
Counts thirteen, sixteen, nineteen, and twenty are inadequately pleaded because they do not contain allegations pertaining to the elements of the instrumentality rule or the identity rule. These counts also fail because the court has already determined that counts two, five, eight, and nine--which are almost identical in their wording to counts thirteen, sixteen, nineteen, and twenty--are insufficient.
Finally, because the court's determination with respect to counts twelve through twenty-one is dispositive as to the defendants' first ground, the court need not address the merits of the defendants' remaining ground regarding the incorporation of count eleven into counts twelve through twenty-one.
CONCLUSION
The defendant's motion to strike counts two, five, eight, nine, twelve, thirteen, sixteen, nineteen, twenty, and twenty-one is granted and the defendant's motion to strike as to counts three, four, six, seven, ten, eleven, fourteen, fifteen, seventeen, and eighteen is denied.