Jeffrey Hoffman et al. v. LLC (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

This is an action seeking damages for failure to properly complete a home renovation project.

Count three of the second amended complaint, alleging a CUTPA violation, is directed to the corporate defendant, its managing member Robert Sanders, and his daughter Jessica Sanders “who assisted her father in the activities described herein.”

On December 8, 2010, Jessica Sanders moved to strike count three directed against her on the ground that the allegations in count three were legally insufficient.

I

CUTPA states, in relevant part, 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.”  General Statutes § 42–110b(a).   The terms “trade” and “commerce,” as used in CUTPA, mean “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 the state.  General Statutes § 42–110a(4).

To allege a CUTPA violation properly, the plaintiff must allege, inter alia, that the acts complained of were performed in a trade or business.   Pergament v. Green, 32 Conn.App. 644, 655, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).   Moreover, in 2006, the Appellate Court clarified that the acts complained of must have been performed in the defendant's “primary trade or commerce” and that CUTPA does not protect activities that are merely “incidental” to such trade.  McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140, cert. denied, 277 Conn. 928 (2006).

II

The statutory text of CUTPA is silent on whether CUTPA allows for accessory liability and the appellate courts have not directly addressed the issue.

Even if accessory liability is permissible under CUTPA, in light of the Appellate Court's decision in McCann Real Equities Series XXII, LLC, the complaint must contain allegations that the defendant aided and abetted in an activity that was part of her “primary trade or commerce.”  McCann Real Equities Series XXII LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn.App. 523.   The complaint in the present case is insufficient because it merely alleges that Jessica Sanders “assisted her father in the activities” listed in the complaint and does not allege that she aided and abetted in an unfair trade practice as part of her “primary trade or commerce.”

Motion to strike is granted.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.