Marshal Heaven v. John Desandre et al (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (104.00)

I. Background

In this case the complaint is a loosely drafted document and the defendants have filed a rather unfocused motion to strike that seeks relief partially in the form of a dismissal.   To complicate matters, the court granted the motion to strike in 2008 when the court file reflected no opposition to the motion.   That order was vacated earlier this year when the plaintiff argued that the motion was not properly on the calendar because it had not been marked ready.   Several months ago the case was called for trial, and it became apparent that trial was premature because the pleadings were not closed.   Therefore, the case was removed from the trial list and the pending motion to strike was argued on March 29, 2010.

II. FACTS

On April 1, 2008, the plaintiffs, Marshal Heaven and Mary Ann Heaven, filed a summons and complaint against the defendants John Desandre and Main Street Flooring.   In the complaint, the plaintiffs allege the following facts.   John Desandre is alleged to be in the business of selling and installing carpets, and he is the president and principal of Main Street Flooring.   On December 15, 2005, John Desandre and Main Street Flooring installed a “high end and expensive carpet at the plaintiffs' residence.   After the installation, however, the carpet unravelled, was unsightly, and unusable.   Although the carpet should have been “seamless,” the seams were visible and non-flush.   The plaintiffs allege that the installation was substandard and caused irreparable damage to the carpet.   As a result of the faulty installation, the plaintiffs were forced to replace the carpet with a new carpet, which was properly installed.   The new carpet cost $25,000, and the plaintiffs allege that amount in damages.   In their complaint, the plaintiffs stated that “John Desandre and Main Street [Flooring] will be referred to collectively as ‘Desandre.’   “ Thereafter, all three counts contain allegations against the defendants via this collective term.

In the first count, the plaintiffs allege breach of contract against the defendants.   In the second count, the plaintiffs allege that the defendants owed the plaintiffs a standard of care to do professional work, and they breached that standard of care.   In count three, the plaintiffs allege that neither of the defendants were licensed home improvement contractors in Connecticut, which is a per se violation of the Connecticut Unfair Trade Practices Act (CUTPA).

On May 15, 2008, defendants moved to strike the complaint on the grounds that the complaint is legally insufficient and for misjoinder of John Desandre as a defendant.   Defendants filed a memorandum in support of the motion to strike, the plaintiffs have filed an objection to the motion to strike, and the defendants have filed a reply memorandum.

III. 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).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “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.)   Fort Trumbull Conservancy, LLC v. Alves, supra, 498.   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

“A speaking motion to strike (one relying on facts outside the pleadings) will not be granted.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 277 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleading, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

In the memorandum in support of the motion to strike, defendants argue that the plaintiffs fail to allege that John Desandre should be personally liable for the breach of contract claim as a result of Desandre's association with Main Street Flooring.   Defendants argue that the plaintiffs have not pled an agency relationship that would bind the plaintiff, nor have they separately alleged that John Desandre installed the carpet, improperly cut the carpet, or entered into an agreement with the plaintiffs, in order to support their breach of contract allegations.   In support of this argument, the defendants attempted to submit evidence and import facts outside the pleadings by means of an affidavit and exhibits.   Because the use of alleged facts outside of the pleadings constitutes an impermissible speaking motion, the court will address the arguments solely on the basis of facts alleged in the pleadings.

In their objection to the motion to strike, the plaintiffs argue that an individual and an entity can both be named in the same count.   Further, the plaintiffs assert that they adequately alleged breach of contract claims against both John Desandre and Main Street Flooring.

“The rules of pleading do not require that if the same claim based on the same facts is alleged against multiple defendants, the claim against each must be set forth in a count separate from those against the others.   See Practice Book §§ 10-1, 10-35.”   Valentin v. Community Remodeling Co., Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X01CV020172325 (January 15, 2003, Hodgson, J.).  “[T]he key elements of a breach of contract action ․ are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  Bouchard v. Sundberg, 80 Conn.App. 180, 189, 834 A.2d 744 (2003).

In the present case, the plaintiffs allege that John Desandre and Main Street Flooring installed a carpet in the plaintiffs' home, breached their contract with the plaintiffs, and sustained damages as a result of the breach.   In count one, the plaintiffs' only mention of a contract or agreement occurs when the plaintiffs' state that they suffered damages “owing to [the defendants'] breach of contract.”   They do not specifically allege the formation of an agreement between the plaintiffs and the defendants.   While the plaintiffs state that “the carpet installation was supposed to be ‘seamless,’ “ they do not indicate who stated that the carpet would be seamless and whether this assertion was pursuant to an enforceable agreement.   The defendants' performance of a service for the plaintiffs is not sufficient to infer the formation of an agreement.   Accordingly, the plaintiffs did not properly allege a breach of contract claim in count one.

Defendants move to strike count two on the basis that the plaintiffs referred to the defendants collectively and failed to separately allege that John Desandre owed the plaintiffs a standard of care in his individual capacity.   The plaintiffs argue that an individual and an entity can both be named in the same count.   Further, they argue that an officer is personally liable for the torts he commits.

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail.   These elements are:  duty;  breach of that duty;  causation;  and actual injury.”  (Internal quotation marks omitted.)   Fiorelli v. Gorsky, 120 Conn.App. 298, 308 (2010).  “[A]n officer of a corporation does not incur personal liability for its torts merely because of its 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).

An individual and an entity can both be named in the same count, and the plaintiffs alleged that both John Desandre and Main Street Flooring installed the carpet in their home, owed the plaintiffs a standard of care to do a professional and workmanlike job, and breached that standard of care.   Because the plaintiffs alleged that John Desandre himself participated in the tort, on the basis of the facts alleged, a claim that he is personally liable has been sufficiently pleaded.

Lastly, defendants move to strike count three and argue that there can be no CUTPA violation, because the plaintiffs do not allege that John Desandre installed the carpet.   The plaintiffs counter that they did allege that John Desandre installed the carpet.

Pursuant to General Statutes § 20-419(c) in relevant part, “ ‘[C]ontractor’ means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement.”   Pursuant to General Statutes § 20-420(a) in relevant part, “[n]o person shall hold himself or herself out to be a contractor or salesperson without first obtaining a certificate of registration from the commissioner as provided in this chapter, except that an individual or partner, or officer or director of a corporation registered as a contractor shall not be required to obtain a salesperson's certificate ․ No corporation shall perform or offer to perform home improvements in this state unless such corporation has been issued a certificate of registration by the commissioner.”  General Statutes § 20-419(c) and § 20-420(a) are part of the Home Improvement Act, General Statutes § 20-418 et seq.  “[A]ny violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.”  A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990).

The plaintiffs allege that Desandre (defined as John Desandre and Main Street Flooring) installed the carpet.   Both John Desandre and Main Street Flooring fall into the Home Improvement Act's definition of a contractor, because they allegedly performed a home improvement.   Further, the plaintiffs allege that neither Desandre nor Main Street Flooring were licensed home improvement contractors in Connecticut, which is a breach of the Home Improvement Act and a per se CUTPA violation.   Accordingly, the plaintiffs have properly pled a CUTPA violation against both John Desandre and Main Street Flooring in count three.

IV. CONCLUSION

Because the plaintiffs did not properly plead the formation of an agreement in count one, the court grants the motion to strike count one.   Because an officer who participates in the commission of a tort may be personally liable and the plaintiffs properly alleged that John Desandre participated in a negligent act, the court denies the motion to strike count two.   Finally, the plaintiffs alleged that the defendants violated the Home Improvement Act when they undertook to perform a home improvement and were not licensed.   Because a violation of the Home Improvement Act is a per se CUTPA violation, the court denies the motion to strike count three.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

Adams, Taggart D., J.