Patricia A. DeWitt et al. v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (125.00)

I. FACTS

On March 9, 2010, Patricia DeWitt and Ana DeWitt, the plaintiffs, filed a revised amended thirty-four-count complaint against Gill & Gill Architects, LLC, Patricia Gill, Harrison Gill (collectively Gill & Gill) and Ronald Horne.   Gill & Gill filed a motion to strike the first twelve counts of the amended complaint on May 19, 2010.   The plaintiff did not object, and Judge Tobin granted the motion without a written decision on February 14, 2011.   The plaintiffs then filed a substitute twenty-six-count complaint on March 1, 2011.   The first four counts are directed against Gill & Gill.

Counts one and two sound in fraudulent misrepresentation and appear to be similar, although count one alleges that Gill & Gill “knew or should have known” their representations were false while count two alleges they “knew” of the falsity and made the “representations” intentionally.   Because the plaintiffs, in their opposition, treat the two counts as identical, the court will as well.   The counts make following allegations.   In or around August 2005, a fire caused by a tenant in an apartment owned by the plaintiff, Patricia DeWitt, resulted in the need for extensive repair and construction.   The plaintiff ¹ entered into an agreement with the defendants to provide advice, architectural design services related to the second floor work, finishing of the attic, combining the second floor work and attic, and improvements.   The defendants recommended that the plaintiff retain Horne, a registered home improvement contractor, to perform the work on the apartment.   The defendants represented that Horne is reliable, does excellent work and timely completes projects, and promised that Horne was reliable and would timely complete the project and would perform the work excellently.   The plaintiffs allege that the defendants knew or should have known that the representations about Horne were false and that they were made with the intent to induce the plaintiffs to act upon them and to hire Horne to the plaintiffs' detriment.   Moreover, the plaintiffs justifiably relied upon the representations and entered into two contracts with Horne to the plaintiffs' injury.   The plaintiffs conclude that as a result of the defendants' conduct, the plaintiffs have suffered damages.

The third count sounds in breach of contract and alleges the following.   The plaintiff entered into a contract with the defendants to provide advice, architectural design services related to the second floor work, finishing of the attic, combining the second floor work and attic, and improvements.   As part of their contractual services to provide advice, the defendants recommended that the plaintiff retain the services of Horne.   The plaintiff performed all of her obligations under the contract, and the defendants breached the contract by giving an improper and unreliable recommendation of Horne to the plaintiff.   Relying to her detriment upon the representations made by the defendants, the plaintiff entered into two contracts with Horne.   As a result of the breach of contract, the plaintiff has suffered damages.

The fourth count sounds in negligence and alleges that the defendants were negligent in failing to investigate Horne's activities, which allegedly caused the plaintiffs' harm, and in failing to exercise the degree of care, skill, or diligence ordinarily employed by architects under similar circumstances.   The plaintiffs further allege that their damages were caused by the defendants' negligence.

On April 20, 2011, the defendants filed an amended motion to strike the first four counts of the plaintiffs' substituted complaint on the grounds that the court already has ruled that the four counts should be struck, and that even if the court analyzes the four counts as if they are part of a proper substituted complaint that has attempted to address its deficiencies, all four counts still should be struck for failure to state a claim upon which relief can be granted.   The plaintiffs filed a memorandum of law in opposition to the motion on May 3, 2011.   The matter was heard on the short calendar on August 15, 2011.

II. 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).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “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).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)   Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

The defendants make the following arguments.   The alleged recommendations of Horne are opinions, not statements of fact that can give rise to a claim of fraudulent misrepresentation.   Furthermore, the plaintiffs make general allegations of fraud that are far less specific than is required to plead fraud.   As to the third count, the plaintiffs fail to allege the contractual obligations that have been breached, whether the plaintiff performed her obligations under the contract and any cognizable manner in which the alleged breach caused the plaintiffs' damages.   A bald assertion that the defendant has a contractual obligation, without more, is insufficient to survive a motion to strike.   The description must be specific enough to apprise the defendant of the contractual obligation that has been implicated.   Finally, as to the fourth count, the plaintiffs have failed to demonstrate that the defendants had a legal duty to perform certain investigations in order to avoid the harm suffered.   Connecticut does not and should not recognize a cause of action for the negligent recommendation of a contractor by an architect.   An architect undertakes to represent the interests of a property owner only with regard to issues related to architectural design services;  an architect does not represent the interests of a homeowner in hiring other trades unrelated to architectural design services.   The defendants undertook duties with regard to architectural design services, and without an allegation that the defendants undertook broader duties, the plaintiffs fail to allege a legal duty of care that can sustain the negligence count.   Even if Connecticut recognized a tort for the negligent recommendation of a contractor by an architect, the plaintiffs still fail to allege a cognizable legal duty.

The plaintiffs counter with the following arguments.   First, law of the case does not apply because no legal issues were considered by the judge in granting the previous motion to strike and because the plaintiffs pleaded over by alleging additional facts in their substitute complaint.   Furthermore, the plaintiffs' fraudulent misrepresentation claims are legally sufficient.   The plaintiffs have pleaded the elements of a fraudulent misrepresentation cause of action:  the defendants made false statements to the plaintiffs regarding Horne's work;  the defendants knew that their representations were untrue when they made them;  the plaintiffs relied upon these statements to their detriment by hiring Horne;  it can be inferred that these statements were made to ensure that the plaintiffs would believe that Horne was worthy of the job, causing the plaintiffs to give the job to him;  and as a result of these representations, the plaintiffs incurred damages.   Moreover, the plaintiffs' breach of contract claim is legally sufficient.   The plaintiffs have pleaded the elements of a breach of contract cause of action:  the plaintiff entered into a contract with the defendants;  the plaintiff performed all of her obligations under the contract;  the defendants breached the contract by giving an improper and unreliable recommendation of Horne to the plaintiff;  and as a result of this breach, the plaintiffs have suffered damages.   Finally, the plaintiffs' negligence claim is legally sufficient, and the plaintiffs have pleaded the elements of a negligence cause of action.   Connecticut has long recognized liability for negligent misrepresentation, and even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know or has the duty of knowing the truth.   The defendants had the means of knowing, and ought to know, whether a particular contractor is right for a specific project.

While the parties argue about the applicability of the law of the case doctrine, the court concludes it does not apply because according to defendant's motion the plaintiffs “stipulated” that the earlier motion to strike should be granted.   Given this agreement, the different facts alleged in the substitute complaint and the lack of any memorandum of decision by Judge Tobin, the court will analyze this motion anew.

1. Counts One and Two. Fraudulent Misrepresentation

The elements of a claim of fraudulent misrepresentation are well established.  “The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.”  Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).   As for the first element, “[t]he requirement that a representation be made as a statement of fact focuses on whether, under the circumstances surrounding the statement, the representation was intended as one of fact as distinguished from one of opinion ․ It is sometimes difficult to determine whether a given statement is one of opinion or one of fact, inasmuch as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties all have a bearing upon the question ․ Each case must in large measure be adjudged from its own facts.”  (Internal quotation marks omitted.)  Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn.App. 471, 478, 767 A.2d 118 (2001).   “While the general rule is that the expression of an opinion cannot constitute fraud, such rule is not hard and fast, because whether a given representation is an expression of opinion or a statement of fact depends on the circumstances of the particular case ․ Where the relation between the parties is such that they do not deal at arm's length, as where the person expressing the opinion has, or professes to have, superior knowledge, the expression of an opinion may constitute fraud.”  (Citation omitted;  internal quotation marks omitted.)   Leonard–Anthony Associates, LLC v. Sherman Gardens, LLC, Superior Court, judicial district of New Haven, Docket No. CV 08 5018651 (June 29, 2009, Cronan, J.).

Claims for fraudulent misrepresentation are also subject to a heightened pleading standard.  “The party asserting such a cause of action must prove the existence of the first three of [the] elements [for fraudulent misrepresentation] by a standard higher than the usual fair preponderance of the evidence, which higher standard [the Supreme Court of Connecticut has] described as ‘clear and satisfactory’ or ‘clear, precise and unequivocal.’   “ Weisman v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995).  “Because the standard of proof at trial is heightened, so too is the standard for pleading a cause of action.   Thus, [w]here a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient;  the specific acts relied upon must be set forth in the complaint ․ A plaintiff cannot make general assertions of fraudulent misrepresentations, but must plead particular facts demonstrating what the representations were and how they were false.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)   St. Denis v. De Toledo, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 00 0180606 (April 5, 2002, Downey, J.);  [quoting from Maruca v. Phillips, 139 Conn. 79, 81, 90 A.2d 159 (1952) ];  see also Chestnut v. Kent, Superior Court, judicial district of Fairfield, CV 97 0346653 (April 17, 1998, Skolnick, J.) (22 Conn. L. Rptr. 29).

In this case, the issues that arise as to the legal sufficiency of the plaintiffs' fraudulent misrepresentation counts are whether the alleged representations of the defendants were opinions, not facts, and whether the plaintiffs pleaded the falsity of the statements with the requisite level of specificity.   The defendants' statement that Horne is “reliable, does excellent work and timely completes projects” was made while providing services to the plaintiffs pursuant to a contractual agreement.   Because the defendants were retained by the plaintiffs specifically to assist in the repair of the damage to the apartment and because the defendants may have had superior knowledge over the plaintiffs in that regard, it is plausible that the defendants intended the representation as a factual statement, and it may have been reasonable for the plaintiffs to perceive the representation as such.   In any event, given the possibly superior position of the defendants over the plaintiffs, it is immaterial for purposes of fraud whether the representation was a statement of fact or an opinion.   Therefore, construing the complaint in favor of sustaining its legal sufficiency, the plaintiffs have sufficiently alleged the first element of a claim for fraudulent misrepresentation.

As to the specificity to which the plaintiffs alleged that the representation was false, the plaintiffs conclusively state that “said representations contained false information or representations.”   The plaintiffs do not specify or allege in any manner how the defendants' statements were false.   For instance, there are no allegations that defendants knew Horne was unreliable, did poor work, or was late in completing projects.   Given the heightened pleading standard for fraud claims, the plaintiffs' first and second counts are legally insufficient.

2. Count Three:  Breach of Contract

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Hawley Avenue Associates v. Russo, 130 Conn.App. 823, 832, 25 A.3d 707 (2011).  “To form a valid and binding contract ․ there must be a mutual understanding of the terms that are definite and certain between the parties ․ To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties ․ If the minds of the parties have not truly met, no enforceable contract exists ․ [A]n agreement must be definite and certain as to its terms and requirements ․ So long as any essential matters are left open for further consideration, the contract is not complete.”  (Internal quotation marks omitted.)  Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30 (2006).  “A contractual promise cannot be created by plucking phrases out of context;  there must be a meeting of the minds between the parties.”  (Internal quotation marks omitted.)   Reynolds v. Chrysler First Commerical Corp., 40 Conn.App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).  “[T]o survive a motion to strike, the allegations [in a complaint alleging breach of contract] must include ․ specific factual allegations concerning the formation and terms of the express contract that [the plaintiff] claims [he] had with the defendant.”  (Internal quotation marks omitted.)   Pelletier v. Bristol Board of Education, Superior Court, judicial district of New Britain, Docket No. CV 08 5010351 (August 27, 2009, Tanzer, J.).

In this case, the plaintiffs allege that they formed an agreement with the defendants, that they performed all of their obligations under the contract, that the defendants breached the contract in giving improper and unreliable recommendations of Horne and that the plaintiffs have been damaged as a result of that breach.   The only contractual obligation of the defendants that can be gleaned from the substituted complaint was for the defendants “to represent the interests of Plaintiff, to provide advice, architectural design services related to the Second Floor Work, finishing of the attic, combining the Second Floor Work and attic, and improvements ․” The plaintiffs do not allege, however, that the defendants had an obligation under the contract to provide proper and reliable recommendations of third parties to provide services to the plaintiffs.   Accordingly, the plaintiffs have not sufficiently alleged how the defendants breached the terms of the contract.

Courts have discussed the level of specificity to which a plaintiff must plead a breach of contract claim to survive a motion to strike.   For instance, in Berlin Corp. v. Continental Casualty Company, the owner and operator of a beverage mart brought suit against their insurance agent, alleging that it breached an oral contract by failing to procure liquor liability coverage.   Berlin Corp. v. Continental Casualty Company, Superior Court, judicial district of Hartford, Docket No. CV 06 4021653 (November 2, 2006, Wiese, J.) (42 Conn. L. Rptr. 358).   In granting the defendant's motion to strike, the court distinguished between breach of contract claims and professional malpractice claims and held that “an allegation of professional malpractice ․ does not generally give rise to a breach of contract claim.”  Id., 361.  “When determining whether a complaint sets forth an independent breach of contract claim or merely dresses a malpractice claim in contract language, the court examines the pleadings to ascertain whether the breach of contract alleged is based on substandard ․ care or exists irrespective of adherence to or deviation from the standard of care.”  (Internal quotation marks omitted.)   Id. The court concluded that the “plaintiffs' cause of action hinges not on whether the defendant executed specifically agreed-upon tasks required of it pursuant to a contract, but whether the defendant exercised ordinary care in effectuating the plaintiff's purchase of insurance.   The complaint states that the defendant contracted that it had the ability to recommend the necessary and appropriate insurance coverage not that it contractually guaranteed, as a part of the basis of the bargain, to effectuate the purchase of a particular insurance product.   The defendant's statement is merely a recitation that the defendant will exercise the skill and judgment common to practitioners of its trade.   Absent a showing that the defendant specifically guaranteed a particular result and that such a result was not delivered, the plaintiffs cannot maintain an action for breach of contract.”  Id. See also DeCrescenzo v. CPM Insurance Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5010892 (December 19, 2007, Cosgrove, J.) (44 Conn. L. Rptr. 679, 681) (factually similar to Berlin Corp. and striking the plaintiff's breach of contract claim because the plaintiff's “allegations reveal only that [the insurance broker] agreed to assist [the plaintiff] with the insurance application process;  there is no allegation that [the insurance broker] guaranteed the provision of insurance or any other specific result”).

Although the precise facts of the present case differ from those of Berlin Corp. and DeCrescenzo, in each case the plaintiff masked a negligence claim as a breach of contract claim.   Here, by alleging that the defendants breached the contract by providing an improper and unreliable recommendation, the plaintiffs in essence are alleging that the defendants did not exercise ordinary care and skill in providing contractual services to the plaintiffs.   This is purely a negligence claim.   Nowhere in the pleadings do the plaintiffs allege that the defendants ever promised a specific result with regard to the advice that they contracted to provide.   Absent allegations that the defendants promised to provide proper and reliable recommendations of third-party contractors, however such a standard would be measured, the plaintiffs cannot maintain an action for breach of contract.

3. Count Four:  Negligence

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care ․ [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).  “The requisite duty to use care may stem from a contract, from a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result ․ Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform.”  (Citation omitted.)  Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985).

In the present case, the plaintiffs allege that the defendants were negligent in failing to investigate Horne's activities, which allegedly caused the plaintiffs' harm, and in failing to exercise the degree of care, skill, or diligence ordinarily employed by architects under similar circumstances.   The plaintiffs further allege that their damages were caused by the defendants' negligence.   Nevertheless, although the plaintiffs have alleged causation and damages, they have not alleged any legal duty owed by the defendants to investigate Horne's activities and to prevent the harm that allegedly occurred.   Therefore, the plaintiffs' negligence claim is a mere conclusion of law, “and, in the absence of sufficient alleged facts to support them, [is] subject to a motion to strike.”  Id., 46;  see also id., 45 (in upholding the trial court's grant of the defendant's motion to strike, stating that “the plaintiffs have failed to allege any contract, statute or circumstances which would give rise to a duty owed by [the defendant] which would support an action in negligence”);  Rickel v. Komaromi, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 10 5010673 (June 6, 2011, Keegan, J.) (52 Conn. L. Rptr. 109) (“[i]n order to sustain a count alleging negligence, the plaintiff must allege facts that support the four elements of the cause of action ․”).  The substitute complaint fails to set forth allegations supporting the contention that the defendants owed a duty to investigate Horne's record before recommending him.

III. CONCLUSION

For the foregoing reasons, the court grants the defendants' motion to strike on the ground that the first four counts of the plaintiffs' substitute complaint fail to state a claim upon which relief can be granted.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Ana DeWitt is Patricia DeWitt's daughter.   Patricia DeWitt owns the apartment building in Norwalk where the repair and construction work took place.   The substitute complaint regularly refers to “the plaintiff” in the singular, and the court presumes this reference is to Patricia DeWitt..  FN1. Ana DeWitt is Patricia DeWitt's daughter.   Patricia DeWitt owns the apartment building in Norwalk where the repair and construction work took place.   The substitute complaint regularly refers to “the plaintiff” in the singular, and the court presumes this reference is to Patricia DeWitt.

Adams, Taggart D., J.T.R.