LLC v. Eileen Strauss, Executrix (2010)

MEMORANDUM OF DECISION

The defendants filed a motion to strike count two of the plaintiff's amended revised complaint on the grounds that it is legally insufficient and fails to set forth a factual basis upon which relief can be granted.   Specifically, the defendants contend that the plaintiff's second count alleges an oral agreement to pay a commission in violation of the Connecticut Home Improvement Act, Connecticut General Statues § 20-249(a).   The court disagrees.

Count two of the plaintiff's amended revised complaint alleges that “the plaintiff and the decedent agreed that the plaintiff would be paid a fee of 20% for management fees for all work provided to the decedent by Omega Construction, LLC (“Omega”).   The complaint further provides that Omega provided services in an unknown amount to the decedent.   Despite demand the decedent has “neglected and/or refused” to provide an accounting to the plaintiff and to pay the agreed upon commission.

In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”   (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

Further,

[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.”  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

The court has reviewed count two of the plaintiff's complaint.   It alleges an agreement to pay a commission for management fees.   As such, Connecticut General Statues § 20-249(a) is inapplicable.   The motion to strike is denied.

Schofield, J.

Schofield, Marylouise, J.