Nicole Kurpiewski v. II (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 101)

The plaintiff, Nicole Kurpiewski, has submitted a motion for articulation (# 106) with respect to the court's ruling on the motion to strike (# 101) filed by the defendants Sterling Woods II-Master Association, Inc. (SWMA) and REI Property & Asset Management Inc. (REI).  The motion to strike was granted by order of the court, Marano, J., (# 101.05) without a written memorandum of decision.   The court hereby articulates its previous order in this memorandum.

The plaintiff commenced this action on October 8, 2009, against both defendants.   Of her complaint, only counts one, a claim for breach of contract, and four, a claim brought under General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), are challenged in the motion to strike.¹

The facts, as the plaintiff has alleged in her complaint, are as follows:  The plaintiff was the owner of a condominium unit that was part of a statutory common interest community located in Danbury, Connecticut.   SWMA was the owners' association for such community and REI was the managing agent for SWMA. In November 2007, the plaintiff contacted REI to inform it about a water leak that caused damage to her unit, presuming that REI or SWMA would file a claim with SWMA's insurer.   REI instead told the plaintiff that she should file a claim with her homeowner's insurance carrier and that SWMA's insurance did not cover damage to the interior of individual units.

After her insurance company advised her that her policy did not cover damage to real property, the plaintiff again contacted REI, which instructed her to file her own claim with SWMA's insurer.   The insurer evaluated the damage and paid the relevant amount to SWMA. At that point, REI told the plaintiff that it would make the repairs and that the plaintiff was to pay to REI the $1,000 deductible due under SWMA's policy.   The plaintiff, who had a compromised immune system and feared adverse health effects from mold and mildew, had already made all the repairs at her own expense, however.   The plaintiff demanded compensation from the defendants for her expenses, which was refused.   Furthermore, the defendants refused to account for any insurance proceeds they received as a result of the damage to the plaintiff's unit.   The plaintiff seeks relief in the form of damages, interest and costs, as well as attorneys fees and punitive damages under CUTPA.

The defendants filed the present motion to strike, along with a memorandum of law, on January 19, 2010.   On February 2, 2010, the plaintiff filed a motion for an extension of time to file an objection, which the court, Marano, J., denied on February 22, 2010.   No objection to the motion to strike was ever filed.   The court heard the motion to strike at short calendar on February 22, 2010.   The court then issued its order granting the motion to strike the same day.   On March 1, 2010, the plaintiff filed her motion for articulation.

I

STANDARD FOR A MOTION TO STRIKE

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10-39(a).  “[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, 650 A.2d 153 (1994).   Accordingly, “[i]f 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 [however] 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, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

II

COUNT ONE

The defendants argue that, as to count one, the plaintiff has not alleged the failure to perform a specific contractual obligation and, therefore, has failed to state a claim for breach of contract.  “The 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.”  (Internal quotation marks omitted.)  Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007).

The plaintiff has failed to allege facts establishing the breach of a contractual duty.   Only two paragraphs of count one suggest the existence of a contractual arrangement-paragraph thirteen, which provides that “[t]he Defendants have breached their contractual obligations as embodied in SWMA's operative documents,” and paragraph fourteen, which provides that “[a]s a result of the Defendants' breach, the Plaintiff has been damaged.”   The plaintiff did not allege in either paragraph the nature of the contractual duty that it alleged was breached.   Moreover, she did not attach a copy of SWMA's “operative documents.”   Paragraphs thirteen and fourteen are, by themselves, legal conclusions that are unsupported by the facts alleged elsewhere in count one.   Therefore, count one does not state a claim for breach of contract.

III

COUNT FOUR

The defendants advance a twofold argument for the legal insufficiency of count four.   Specifically, they contend that the plaintiff failed to allege the following facts:  (1) that establish that the defendants acted in furtherance of any trade or commerce;  and (2) that establish that the defendants engaged in an unfair or deceptive trade practice.  General Statutes § 42-110b(a) provides that it is a violation of CUTPA to “engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   Any person who suffers an “ascertainable loss of money or property” as a result of a CUTPA violation may bring an action for damages in the Superior Court.  General Statutes § 42-110g(a).

Regardless of which of the defendants' arguments the court addresses, count four does not state a cause of action under CUTPA.   Importantly, count four does not incorporate by reference, either directly or indirectly, the allegations of the background section of the complaint.   Instead, the “acts” complained of in count four are essentially restatements of the legal theories advanced in the first three counts:  breach of contract, negligent misrepresentation and fraudulent misrepresentation, respectively.   The remainder of count four consists of a conclusion that these “acts” constitute unfair or deceptive trade practices that have caused the plaintiff ascertainable loss.   The defendants are correct in that there are no facts in count four that could establish that the defendants engaged in unfair or deceptive trade practices or that the defendants were acting in furtherance of trade or commerce when they allegedly engaged in such practices.

IV

CONCLUSION

Based on the foregoing analysis, the court finds that neither count one nor count four is legally sufficient to state a cause of action.   On this basis, the motion to strike is granted.

Marano, J.

FOOTNOTES

FN1. Count two purports to be a claim for negligent misrepresentation and count three purports to be a claim of fraudulent misrepresentation..  FN1. Count two purports to be a claim for negligent misrepresentation and count three purports to be a claim of fraudulent misrepresentation.

Marano, Richard M., J.