Kristi Moran–Blett et al. v. Cromwell Hills Condo Association et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

The plaintiffs, Kristi Moran–Blett and George Blett filed this four-count complaint sounding in negligence and claiming a violation of (CUTPA) against the defendants, Cromwell Hills Condominium Association, Inc.;   James Michaud;  Richard Tarallo;  Carpet Pro, LLC;  Unsone, LLC;  A3D2, LLC and New England Construct, LLC.

The plaintiffs allege the following facts;  on December 16, 2008, the plaintiffs' condominium unit was damaged when water entered the plaintiffs' unit;  that the defendants created the conditions that led to the water's entry;  that the defendants failed to adequately remedy the resulting damage and that the defendants caused bodily injury to the plaintiffs.

Two of the defendants, Cromwell Hills Condominium Association, Inc., and James Michaud filed this motion to strike the third count alleging violation of CUTPA on May 19, 2011.

Count Three alleges a per se CUTPA violation based on one of the defendants, James Michaud, acting as community association manager without being properly registered with the department of consumer protection.   The defendants argue that the plaintiffs have failed to allege any facts to show that the defendants were engaged in a trade or practice which would support a cause of action under CUTPA.   The plaintiffs maintain that General Statutes § 20–457(b) specifically states that violation of § 20–457 constitutes a violation of CUTPA.   While the defendants concede that § 20–457(b) does define acting as a community association manager while not registered as a violation of CUTPA, they argue that the facts alleged in the complaint do not meet the requirements for a CUTPA claim.

“[I]n order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, ‘as a result of’ this act, the plaintiff suffered an injury.   The language ‘as a result of’ requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff ․ With regard to the requisite casual element, it is axiomatic that proximate cause is ‘[a]n actual cause that is a substantial factor in the resulting harm ․’ “ Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997).

In Count Three of their complaint, while the plaintiffs have alleged that the defendants engaged in a prohibited act, they have failed to allege that the prohibited act was the proximate cause of the harm they suffered.   The Count is devoid of any allegations that the harm suffered by the plaintiffs occurred as a result of the defendant James Michaud's failure to register as community association manager with the department of consumer protection.   It is concluded that the plaintiffs' Count Three is therefore legally insufficient.

This conclusion is supported by a number of Superior Court decisions.   Lemoult v. Benedetto, Superior Court, judicial district of Stamford–Norwalk, Docket No., 99–0173711 (June 6, 2000, D'Andrea, J.) (27 Conn. L. Rptr. 362) (“Even a per se showing of a deceptive practice does not, however, lead to automatic liability under this statute”);  Duncan v. Junior Achievement, Inc., Superior Court, judicial district of Fairfield, Docket No., 96–0335878 (January 27, 2000, Skolnick, J.) (“Here, the plaintiff fails to allege that he suffered an ascertainable loss such as a deprivation, detriment or injury, which resulted from Western's failure to file a trade name certificate.   Rather, he merely alleges that Western's failure to comply with General Statutes § 35–1 is an unfair trade practice”);  and Heath v. Micropatent, Superior Court, judicial district of New Haven, Docket No., 98–0401481 (June 4, 1999, Silbert, J.) (“In their complaint, the plaintiffs allege that the defendants have not complied with General Statutes § 35–1 and as a result have violated CUTPA.   The plaintiffs do not, however, allege any injury as a result of the defendants' alleged violation of § 35–1.   The plaintiffs must allege some injury as a result of the defendants' failure to comply with § 35–1 in order to support their CUTPA claim based on the alleged violation of that statute”).

Defendants' motion to strike Count Three is granted.

Wagner, J., JTR

Wagner, Jerry, J.T.R.