Salvatore Verderame et al. v. James R. McBurney et al. (2010)

MEMORANDUM OF DECISION

The court heard argument on July 20, 2010 concerning the defendants James R.G. McBurney and Erin McBurney's and the defendants Roger A. Lowlicht and Kay A. Haedicke's (defendants) motions to strike (# # 135, 136) the plaintiffs' amended complaint (# 133) (complaint).   After considering the parties' arguments, the court issues this memorandum of decision.   For the reasons set forth below, the motions are granted.

I

BACKGROUND

In the complaint, the plaintiffs allege that they are owners of various lots on Crescent Bluff Avenue in Branford, Connecticut, as depicted on a plan created in 1885 (plan).   They allege that the plan was construed by the Supreme Court in Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903).¹  The defendants are owners of other, neighboring lots, also depicted on the plan.

The plaintiffs further allege that, beginning in 1996, the defendants or their predecessors erected a fence which interferes with the use of an easement which permits the plaintiffs to use the “lawn” and the “avenue,” as depicted on the plan.   See complaint, ¶ 8.   They also allege that the McBurneys have stored kayaks or canoes on the “lawn” in a manner which is intended to obstruct the plaintiffs' use and enjoyment of the “lawn.”   See complaint, ¶ 9.

In addition, the plaintiffs allege that, in 1996, defendants Lowlicht and Haedicke, and the McBurneys' predecessors, made representations in a Property Agreement concerning release of the easement that were factually wrong and fraudulent.   See complaint, ¶¶ 10-12.   Fraudulent oral representations are also alleged.   See complaint, ¶ 13.   All of the plaintiffs, except Antoinette F. Verderame, are alleged to have signed the Property Agreement.   See complaint, ¶ 16.

The plaintiffs also allege that the McBurneys have brought and continue to maintain four separate trespass lawsuits against their neighbors, and that all of the defendants, or persons acting on their behalf, have interfered with and harassed the plaintiffs, their guests, and other lot owners, in various ways.   See complaint, ¶¶ 19-20.   They allege that the defendants are now attempting to unilaterally make substantial changes to the stone bulkhead or seawall at the base of the “lawn,” and to the concrete slope between the top of the “lawn” and the bulkhead, without permission or consultation.   See complaint, ¶ 21.   The plaintiffs allege that, in engaging in such conduct, the defendants are attempting to assert exclusive dominion, control, and ownership of the property south of lots 2 and 4, in order to increase the value of the defendants' property, by claiming that they have “direct waterfront property on Long Island Sound unencumbered by the use across or upon said property by others.”   See complaint, ¶ 22.

The plaintiffs claim that the defendants' conduct constitutes an unfair and deceptive act or practice in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, et seq.  (CUTPA).  Additional references to the allegations are set forth below.

II

STANDARD OF REVIEW

The standard of review on a motion to strike is well established.  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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.)   Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).   Legal conclusions in a complaint are not deemed to be admitted.   See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).

A motion to strike may be utilized to “trigger the trial court's determination of a dispositive question of law.”  Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).   Whether a plaintiff properly has alleged the elements of a claim is a question of law that should be resolved by a motion to strike.   See Marr v. WMX Technologies, Inc., 244 Conn. 676, 681, 711 A.2d 700 (1998).

III

DISCUSSION

In their motion to strike, the McBurneys contend that the complaint fails, as a matter of law, to establish that the parties were engaged in “trade or commerce,” an essential element of a CUTPA claim.   Rather, they argue that what is at issue is a property dispute between neighbors.   In their motion, Lowlicht and Haedicke raise the same argument, and, in addition, assert that CUTPA does not apply to a single instance of alleged misconduct by private individuals.²

The plaintiffs contend that a settlement agreement between a plaintiff and a defendant is sufficient to create a business relationship for the purposes of CUTPA.³  They argue that the Property Agreement brings the actions of the defendants within the reach of CUTPA.

CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   See General Statutes § 42-110b(a).   The definition of a “person” includes a natural person.   See General Statutes § 42-110a(3).⁴

“CUTPA, by its own terms, applies to a broad spectrum of commercial activity ․ Trade or commerce ․ is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state ․ The entire act is remedial in character ․ and must be liberally construed in favor of those whom the legislature intended to benefit.”   (Citations omitted;  internal quotation marks omitted.)  Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998).   See General Statutes § 42-110a(4).  “Despite this broad language, the definition of trade and commerce is not unlimited and has been used to restrict the application of CUTPA.”  Stearns & Wheeler, LLC v. Kowalsky Brothers, Inc., 289 Conn. 1, 11 n.13, 955 A.2d 538 (2008).

“To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce ․ Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce.”  (Citations omitted;  internal quotation marks omitted.)  Sovereign Bank v. Licata, 116 Conn.App. 483, 493-94, 977 A.2d 228, cert. granted on other ground, 293 Conn. 935, 981 A.2d 1080 (2009).

In construing CUTPA, the Supreme Court has stated that even where parties are engaged in business, “interference with that business by a trespasser” is not an unfair trade practice.  Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 157, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).  “Such a conclusion would convert every trespass claim involving business property into a CUTPA claim.”  Id. There, no business relationship existed between the landowner and the trespasser for the purposes of CUTPA.   See id., 157-58.   Subsequently, in Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006), the Appellate Court reiterated that “a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA.”  (Emphasis in original.)

The facts in Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 804 A.2d 180 (2002), upon which the plaintiffs rely, are distinguishable.   See id., 623-27.   There, the plaintiffs alleged that the defendants “violated CUTPA by [using] and [employing] unfair and deceptive acts and practices in connection with the solicitation and entering into of structured settlements in connection with the sale of annuities.”  (Internal quotation marks omitted.)  Id., 642.   Thus, the defendants in Macomber were alleged to have been engaged in selling annuities, clearly coming within the definition of engaging in “trade or commerce.”   See General Statutes § 42-110b(a).

In contrast, the allegations here about the Property Agreement signed by various neighbors do not involve “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.”   See General Statutes § 42-110a(4).   Instead, they concern a settlement agreement between neighbors concerning a property dispute.

There is no allegation that the challenged conduct was “part of, or in or related to, any trade or business that [the defendants] were conducting.”   Kaplan v. Nuzzo, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 05 4013335 (November 9, 2005, Silbert, J.) (40 Conn.L.Rptr. 246).   See Sovereign Bank v. Licata, supra, 116 Conn.App. 493-94.

The plaintiffs have not alleged that they had a business relationship with defendants who were engaged in trade or commerce.   Under these circumstances, as a matter of law, CUTPA is not applicable.

CONCLUSION

For the reasons stated above, the defendants' motions to strike are granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. More recently, the plan was discussed in McBurney v. Cirillo, 276 Conn. 782, 787, 889 A.2d 759 (2006)..  FN1. More recently, the plan was discussed in McBurney v. Cirillo, 276 Conn. 782, 787, 889 A.2d 759 (2006).

FN2. Because, as discussed below, the first issue is dispositive, the court need not consider the second..  FN2. Because, as discussed below, the first issue is dispositive, the court need not consider the second.

FN3. In their memorandum, pages 1 and 4, the plaintiffs also contend that Mr. McBurney is an investment banker, and that the house on Lot 4 is not his principal residence, but is an investment.   These allegations are not in the complaint, and therefore may not be considered by the court.   See also Baker v. Cheshire, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 07 5013602 (April 24, 2008, A. Robinson, J.) (45 Conn. L. Rptr. 452) (“[T]he majority of recent trial court decisions have found that CUTPA does not apply to the single sale of a personal residence by a seller not in the business of selling houses”)..  FN3. In their memorandum, pages 1 and 4, the plaintiffs also contend that Mr. McBurney is an investment banker, and that the house on Lot 4 is not his principal residence, but is an investment.   These allegations are not in the complaint, and therefore may not be considered by the court.   See also Baker v. Cheshire, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 07 5013602 (April 24, 2008, A. Robinson, J.) (45 Conn. L. Rptr. 452) (“[T]he majority of recent trial court decisions have found that CUTPA does not apply to the single sale of a personal residence by a seller not in the business of selling houses”).

FN4. Section 42-110a(3) provides that “ ‘[p]erson’ means a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity.”.  FN4. Section 42-110a(3) provides that “ ‘[p]erson’ means a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity.”

Shapiro, Robert B., J.