MBMB LLC v. New Alliance Bank (2010)

MEMORANDUM OF DECISION

On June 9, 2010, the plaintiff, MBMB, LLC, filed a four-count complaint against the defendant, New Aliance Bank.¹ In count one of the complaint, the plaintiff alleges the following facts in support of a breach of contract claim.   The plaintiff owns a piece of real property in New Haven, Connecticut.   The plaintiff is indebted to the defendant pursuant to two promissory notes and secured by two mortgages with respect to the property.   On January 10, 2004, the building on the plaintiff's property suffered interior damage as a result of ruptured pipes.   The plaintiff subsequently obtained insurance funds to pay for the damage caused to the property.   Such proceeds were held in escrow by the defendant pursuant to an agreement executed by the plaintiff in October 2004.   The agreement outlined how the funds would be spent and the protocols for releasing the funds to repair the property.   For a period of time, the defendant abided by the terms of the agreement but later violated the agreement by not releasing the funds or paying for the repairs to the damage.

In counts two and three, claims for unjust enrichment and fraud, respectively, the plaintiff incorporates by reference all of the above facts from count one.   In addition, count three, as well as count four claiming detrimental reliance, alleges that the defendant made several untrue and material misrepresentations to the plaintiff and in the parties' agreement.   In the prayer for relief, the plaintiff seeks, among other relief, attorneys fees.

Following a request to revise, the plaintiff filed a revised complaint that attached the parties' purported agreement as an exhibit on June 23, 2010.   No other changes were made to the complaint.   On July 15, 2010, the defendant filed a motion to strike count two of the revised complaint for unjust enrichment on the ground that it alleges an enforceable, executed written contract, count three on the ground that it is barred by the applicable statute of limitations and the prayer for relief on the ground that it alleges no statutory or contractual basis for awarding attorneys fees.   The motion is accompanied by a memorandum of law.   The plaintiff filed an objection and a memorandum in opposition to the motion to strike on August 27, 2010.   The matter was heard at short calendar on September 20, 2010, when the plaintiff consented to striking count three and the prayer for relief.   Thus, the only remaining issue before the court is whether to strike count two of the revised complaint.

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).  “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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)   American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

In the present case, the defendant argues that count two of the revised complaint is legally insufficient because unjust enrichment is not a proper cause of action when the existence of an express, written contract is alleged.   In response, the plaintiff contends that Practice Book §§ 10-25 and 10-26 permit it to plead in the alternative, and in separate counts.

“Unjust enrichment applies whenever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ Indeed, lack of a remedy under a contract is a precondition for recovery based upon unjust enrichment.”  (Citation omitted;  internal quotation marks omitted.)  Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).  “While proof of an enforceable contract might preclude application of an unjust enrichment theory, the plaintiff may be unable to prove an enforceable contract and, at least in the early stages of the proceedings, is entitled to plead inconsistent theories.”  (Internal quotation marks omitted.)   William Raveis Real Estate v. Cendant Mobility Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002709 (December 6, 2005, Stevens, J.).

“Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985).   According to Practice Book § 10-25:  “The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.”   Moreover, Practice Book § 10-26 provides:  “Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others;  and the several paragraphs of each count shall be numbered separately beginning in each count with the number one.”  (Emphasis in original.)

“It has been held in several recent Superior Court cases that allegations of express contract between the parties incorporated into a count stating a claim for unjust enrichment cause a violation of the rule that those alternative causes of action must be pleaded in separate counts.”   Burke v. Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 044001838 (July 26, 2005, Jennings, J.).   In William Raveis Real Estate v. Cendant Mobility Corp., supra, Superior Court, Docket No. CV 05 4002709, the court concluded that by incorporating allegations of the previous counts, “the plaintiff clearly alleges the existence and breach of an express contract in the count seeking unjust enrichment, contrary to the rule that alternative causes of action must be pleaded in separate counts.   In short, the plaintiff may plead unjust enrichment in the alternative, but this is not accomplished by incorporating into this count all the allegations of an express contract.   Such a complaint does not involve alternative pleading, but involves legally inconsistent pleading.”

Several other Superior Court cases have dealt with similar inconsistent pleading and have all reached the same conclusion by striking the count alleging unjust enrichment.   See, e.g., Thyssenkrupp Elevator v. Workstage, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 09 5005826 (August 19, 2010, Matasavage, J.) [50 Conn. L. Rptr. 512] (striking quantum meruit count that incorporated allegations from breach of contract count “because it alleges a claim in quantum meruit while at the same time acknowledging the existence of a contract between the plaintiff and [the defendant] and a breach thereof by [the defendant]”);  Robinson Aviation, Inc. v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 09 5032399 (July 7, 2010, Zoarski, J.T.R.) (striking unjust enrichment count because “the plaintiffs incorporate[d] the allegations contained in their breach of contract count into their unjust enrichment count”);  J & N Electric, Inc. v. Notkins, Superior Court, judicial district of New Haven, Docket No. CV 08 5020144 (May 20, 2009, Keegan, J.) [47 Conn. L. Rptr. 804] (granting motion to strike because “the plaintiff clearly alleges the existence and breach of an express contract in the count seeking unjust enrichment”);  Silktown Roofing v. Haynes Construction, Superior Court, judicial district of Middlesex, Docket No. CV 05 4004864 (August 3, 2006, Dubay, J.) [41 Conn. L. Rptr. 770] (granting motion to strike unjust enrichment claim because “the plaintiff incorporate[d] the first thirteen paragraphs of its breach of contract claim into its claim for unjust enrichment ․ [and thus] asserted the existence of a contract remedy within [the unjust enrichment] count”).

“On the other hand, some [S]uperior [C]ourt opinions permit incorporating allegations so long as the allegation that the contract was breached does not appear in the count for unjust enrichment.”   O'Malley v. Devito, Superior Court, judicial district of New Britain, Docket No. CV 09 4019885 (May 7, 2010, Trombley, J.) (49 Conn. L. Rptr. 801).  “[M]erely incorporating allegations regarding the existence of a contract into an unjust enrichment claim does not necessarily mean that the unjust enrichment claim should be stricken, so long as it has not been alleged that the contract was breached.”   (Emphasis added.)   The Final Cut, LLC v. Sharkey, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007365 (May 5, 2009, Adams, J.).   See also Landeen Transport, LLC v. Tuccinardi Topsoil, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 095013799 (November 2, 2009, Brunetti, J.) (denying motion to strike because unjust enrichment count separate and distinct from breach of contract count as it incorporated factual allegations regarding existence of contract, but not paragraph specifically alleging breach);  Fanion v. Radei, Superior Court, judicial district of Windham, Docket No. CV 07 5001250 (November 5, 2007, Martin, J.) (same).

In the present case, by incorporating all of the allegations of count one into count two, the plaintiff specifically alleges both the existence of a written contract between the parties in paragraphs eight and nine and a breach of that contract in paragraph eleven of its unjust enrichment count.   This is contrary to the rule of alternative pleading and is legally inconsistent.   Thus, count two of the complaint must be stricken.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike.

Woods, J.

FOOTNOTES

FN1. The defendant's name is spelled three different ways in the pleadings:  “New Aliance Bank” on the summons;  “New Alliance Bank” in the complaint;  and “NewAlliance Bank” in the motion to strike.   For clarity's sake, “the defendant” will be used in this memorandum..  FN1. The defendant's name is spelled three different ways in the pleadings:  “New Aliance Bank” on the summons;  “New Alliance Bank” in the complaint;  and “NewAlliance Bank” in the motion to strike.   For clarity's sake, “the defendant” will be used in this memorandum.

Woods, Glenn A., J.