Richard Patterson et al. v. Michael Sullo et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 106)

On April 18, 2011, the plaintiffs, Richard Patterson and Patricia Patterson, filed a fifteen-count complaint against defendants Michael Sullo, Joseph M. Roca (the defendant), Kevin Patrick and Morrissey Construction, LLC.¹ Count one of the complaint alleges, in relevant part, the following facts.   The plaintiffs are owners of a home in Preston.   Their action arises from a home improvement project (the project) for which they hired a general contractor, Michael Sullo, who then retained Kevin Patrick and the defendant as subcontractors.²  Sullo drafted initial design plans for which future changes agreed to during the construction were never reflected nor confirmed with the plaintiffs in writing.   Sullo retained the defendant to complete demolition, removal of sliding, framing of first and second floors and exterior decking, installation of hurricane straps and anchors per code, installation of vinyl siding and windows and construction of a new entry room and window.   The defendant installed, with Sullo's oversight, windows that were the wrong size.   The defendant never confirmed changes in the scope of the project, and his work was substandard and deficient.   Sullo failed to implement the plaintiffs' changes to the project, accused the plaintiffs of unfairly delaying completion of the project by making changes, threatened the plaintiffs with mechanic liens, demanded that the plaintiffs sign a contract more favorable to him before returning to the project, and blamed the plaintiffs for delays, defective and deficient work and cost overruns.   Sullo failed to communicate honestly with the plaintiffs and misrepresented the status of the project in terms of schedule, quality of workmanship and costs.   Sullo failed and refused to correct the defective, deficient work and refused to complete the elements of construction for which he was paid.

In counts two, ten and fourteen, which are directed against the defendant, the plaintiffs reallege all of the allegations against Sullo from count one.   In count two, the plaintiffs further allege that the defendant failed to correct the work and “materially breached his contract,” and is liable for damages as a direct and proximate result of the material breach of contract.   Count ten of the complaint alleges fraud and conspiracy in that the defendant actively participated in the scheme to defraud the plaintiffs by failing to correct the deliberate misstatements and fraudulent misrepresentations of Sullo, which were made in the defendant's presence with knowledge of their falsity or with reckless indifference to their truth and with the intention to induce the plaintiffs to rely upon them to enter in the contract.   The plaintiffs reasonably, foreseeably and detrimentally relied upon the defendant's failure to correct Sullo's misrepresentations.   By way of additional allegations in count fourteen, the plaintiffs assert that the defendant's acts constitute unfair and deceptive trade practices under General Statutes § 42–110a et seq.  (CUTPA) in that they constitute unfair methods of competition and unfair deceptive acts or practices in the conduct of trade or commerce, they were immoral, unethical, unscrupulous and they offend public policy.   The defendant's statements, actions and conduct were performed repeatedly in the general course of their business and performance of the underlying dealings and caused damages to the plaintiff.

On July 22, 2011, the defendant filed a motion to strike counts two, ten and fourteen of the complaint on the grounds that the facts alleged are not sufficient to support a cause of action for breach of contract, fraud and violation of CUTPA, respectively.   The defendant's motion to strike is accompanied by a memorandum of law.   The plaintiff has filed an objection to the defendant's motion to strike.   The plaintiffs' objection addresses the defendant's motion to strike as to counts ten and fourteen, but does not address the legal sufficiency of the breach of contract claim in count two.³  This matter was heard on the short calendar on September 12, 2011.

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 challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).  “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).   The court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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).

“[A] trial court [however] must take the facts to be those alleged in the complaint ․ and cannot be aided by the assumption of any facts not therein alleged.”  (Citations omitted;  internal quotation marks omitted.)   Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).   Further, a motion to strike “admits all facts well pleaded;  [but] it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000).  “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.

A. Count Two:  Breach of Contract

In attacking the legal sufficiency of count two, the defendant argues that the plaintiffs failed to plead the existence of a contract between them and the defendant.  “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.)  Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).   These elements apply to both express and implied contracts.   See id., 80–81, cf.  Janusauskas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003) (“Whether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent.”  [Internal quotation marks omitted.] ).   Although not party to a contract, a person may have a right of action as a third-party beneficiary to the contract if “the intent of the parties to the contract was that the promisor should assume a direct obligation to the third-party [beneficiary] and ․ that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 261, 765 A.2d 505 (2001).

Considering solely the plaintiffs' allegations in the complaint in the manner most favorable to sustaining its legal sufficiency, the allegations contained in count two are legally insufficient to state a cause of action for breach of contract.   As the defendant correctly notes, the plaintiffs did not plead the existence of a contract—either express or implied—with the defendant;  their only reference to a contract is to one between them and Sullo.   Furthermore, the plaintiffs did not allege a cause of action against the defendant as a third-party beneficiary of the contract between Sullo and the defendant because they did not plead the existence of any contract between Sullo and the defendant from which an intent to benefit the plaintiffs could be determined.   Accordingly, the court grants the defendant's motion to strike as to count two.

B. Count Ten:  Fraud and Conspiracy

In attacking the legal sufficiency of count ten, the defendant argues that the plaintiffs failed to plead any intentional misrepresentations made individually by the defendant.   The defendant argues that the plaintiffs merely allege that Sullo made such misrepresentations and that the defendant was merely present when Sullo's statements were made, and that Sullo knew that the statements were false.   He argues that although the plaintiffs allege that the defendant had a duty to correct Sullo's statements, no facts were alleged that support the imposition of such duty.   The plaintiffs argue that the defendant's knowledge of Sullo's misrepresentations is the natural and logical inference to be drawn from the language within count ten, which alleges that the defendant “actively participated” in the scheme to mislead and defraud.   In addition, the plaintiffs argue that the defendant was under a duty not to misrepresent the scope of the project's work and not to stand idly without correcting Sullo's misrepresentations to the plaintiffs.

“Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ․ The four essential elements of fraud are (1) that a false representation of fact was made;  (2) that the party making the representation knew it to be false;  (3) that the representation was made to induce action by the other party;  and (4) that the other party did so act to her detriment ․ Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak.”  (Citation omitted;  internal quotation marks omitted.)  Pospisil v. Pospisil, 59 Conn.App. 446, 450, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000).  “The key element in a case of fraudulent nondisclosure is that there must be circumstances which impose a duty to speak.”  Jackson v. Jackson, 2 Conn.App. 179, 194, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984).  “It is only in exceptional circumstances that fraud can be based on nondisclosure ․ In an action based on fraudulent nondisclosure the plaintiff must prove not only the nondisclosure but his reliance on it.”   (Citations omitted.)  Creelman v. Rogowski, 152 Conn. 382, 385, 207 A.2d 272 (1965).  “[M]ere nondisclosure ․ does not amount to fraud ․ To constitute fraud on that ground, there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak.”  (Citation omitted;  internal quotation marks omitted.)  Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977).

Although the allegations in count ten must be construed broadly and realistically—rather than narrowly and technically—in the manner most favorable to the plaintiffs, the plaintiffs' conclusory allegations that the defendant “actively participated” in Sullo's fraudulent scheme do not support an inference of knowledge of the misrepresentations on the part of the defendant.   The meaning of the plaintiffs' allegation that the defendant “actively participated” is not left open to interpretation because it is subsequently limited by explicit language defining the participation as “failing to correct the deliberate misstatements and fraudulent representations of defendant Sullo ․” Moreover, the plaintiffs' allegation of the defendant's active participation is a mere legal conclusion that the motion to strike does not admit, and the essential element of the defendant's knowledge of the misrepresentations is unsupported by the facts alleged.   Therefore, the allegations in count ten are legally insufficient to support a cause of action for fraud.

The plaintiffs further argue in their memorandum in opposition that, as an alternative basis for denial of the defendant's motion to strike, they have pleaded legally sufficient allegations for a cause of action of conspiracy.   Namely, they argue that they “need only plead and prove that one of the conspirators performed the acts in furtherance of the unlawful scheme,” which they claim they did by alleging misrepresentations “by Sullo intended to deceive and damage the plaintiffs” and the defendant's participation in the unlawful scheme.

In order to sufficiently state a cause of action for civil conspiracy, the plaintiff must allege the following:  “(1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d 522 (2005).   Under Connecticut law, “[t]here is no independent claim of civil conspiracy.   Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself ․ Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.”  (Internal quotation marks omitted.)  Id. “A claim of civil conspiracy, therefore, is insufficient unless based on some underlying cause of action ․” (Internal quotation marks omitted.)  Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).  “[W]here the plaintiff is unable to establish the underlying cause of action for fraud, the cause of action for conspiracy to defraud must also fail.”  Id.

Contrary to the plaintiffs' argument, a legally sufficient pleading for conspiracy to defraud requires not only an allegation of a co-conspirator's act in furtherance of the fraud but also that the defendant and Sullo together sought to commit the fraudulent acts.   See Larobina v. McDonald, supra, 274 Conn. 408.   Because the plaintiffs' allegations are legally insufficient to support the knowledge element of the fraud claim against the defendant, their allegations concerning Sullo's acts alone are, therefore, also legally insufficient to support a cause of action for conspiracy against the defendant.   Accordingly, the court grants the defendant's motion to strike as to count ten.

C. Count Fourteen:  CUTPA

In attacking the legal sufficiency of count fourteen, the defendant argues that the plaintiffs failed to plead any deliberate, deceptive conduct by the defendant aside from that of Sullo or that the defendant had knowledge of such conduct.   They further argue that the plaintiffs' allegations of negligence without more are insufficient to support a CUTPA claim.   The plaintiffs argue in their memorandum in opposition that their pleadings are legally sufficient because CUTPA should be construed liberally in accordance with its purpose to promote positive public policy and that a cause of action for a violation of CUTPA need not be based on an underlying actionable wrong based on strict common-law requirements.

“To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of ‘trade or commerce.’  “ Muniz v. Kravis, 59 Conn.App. 704, 711, 757 A.2d 1207 (2000);  see also General Statutes §§ 42–110b(a), 42–110a(4).  “CUTPA, by its own terms, applies to a broad spectrum of commercial activity.   The operative provision of [CUTPA], § 42–110b(a), states merely 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.’   Trade or commerce, in turn, is broadly defined as ‘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 this state.’  General Statutes § 42–110a(4).”  (Internal quotation marks omitted.)  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005).   In addition, the plaintiff must also plead “that he has suffered an ascertainable loss due to a CUTPA violation.”   (Internal quotation marks omitted.)   See Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008).  “An ascertainable loss is a loss that is capable of being discovered, observed or established ․ The term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with deprivation, detriment and injury ․ To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount ․ [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known ․ A plaintiff also must prove that the ascertainable loss was caused by ‘or a result of,’ the prohibited act ․ When plaintiffs seek money damages, the language ‘as a result of’ in § 42–110g(a) requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff.”  (Citations omitted;  internal quotation marks omitted.)  Id.;  see also General Statutes § 42–110g(a) (“Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages ․”).

While “[n]ot every misrepresentation constitutes a CUTPA violation;” Calandro v. Allstate Ins. Co., 63 Conn.App. 602, 617, 778 A.2d 212 (2001);  “[w]hether a practice is unfair and thus violates CUTPA is an issue of fact.” ⁴  (Internal quotation marks omitted.)  Thames River Recycling, Inc. v. Gallo, 50 Conn.App. 767, 794, 720 A.2d 242 (1998).   Although a “claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based”;  (internal quotation marks omitted) Keller v. Beckenstein, 117 Conn.App. 550, 569 n.7, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009);  the Supreme Court has been “unpersuaded that there is any special requirement of pleading particularity connected with a CUTPA claim, over and above any other claim”;  Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002);  and a CUTPA claim need not be phrased as to conform to the three prongs of the Federal Trade Commission's cigarette rule.  Id.⁵

Moreover, “CUTPA has come to embrace a much broader range of business conduct than does the common-law tort action.”  (Internal quotation marks omitted.)   Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 157–58, 645 A.2d 505 (1994).   Common-law claims for fraud, deceit and misrepresentation require proof that defendant knew of falsity of representation, whereas a CUTPA claimant need not prove the defendant's knowledge that the representation was false.  Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 362–63, 525 A.2d 57 (1987);  see also Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 158.   In addition, “CUTPA prohibits unfair or deceptive trade practices without requiring proof of intent to deceive, to defraud or to mislead ․ The CUTPA plaintiff need not prove reliance.”  (Citations omitted;  internal quotation marks omitted.)  Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 158.

“[A]s a general matter, the existence of a duty is not a prerequisite to a finding of a CUTPA violation.”  Downes–Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 427, 780 A.2d 967, cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002).  “Where a plaintiff alleges that a defendant's passive conduct violates CUTPA, however, common sense dictates that a court should inquire whether the defendant was under any obligation to do what it refrained from doing.”  (Emphasis in original.)  Id. “[F]ailure to disclose what one is not required to disclose does not violate public policy ․” Id. Therefore, in order for the plaintiffs' CUTPA claim in count fourteen, in which the plaintiff alleges a violation of CUTPA based on the defendant's failure to act, to be legally sufficient, that count must include allegations from which an inference could be drawn that the defendant had a duty to act.   See id.;   see, e.g., Kenney v. Healey Ford–Lincoln–Mercury, Inc., 53 Conn.App. 327, 331, 730 A.2d 115 (1999) (automobile dealer's nondisclosure of a vehicle's rental and collision history was not deceptive under CUTPA because, by not advertising it, the dealer did not have a duty to disclose that the vehicle was previously part of a rental fleet).

In the present case, viewing the plaintiffs' allegations in the light most favorable to sustaining their legal sufficiency, the plaintiffs' allegations in count fourteen are legally insufficient to support a CUTPA claim.   First, although the plaintiffs allege ascertainable financial injuries and monetary losses and damages “as a direct and proximate result” of the defendant's actions, the plaintiffs' allegations that the defendant's actions “constitute unfair methods of competition and unfair deceptive acts or practices in the conduct of trade or commerce ․ [and] were performed in the general course of their trade or business” are mere legal conclusions unaccompanied by factual allegations in support.

Furthermore, although the plaintiffs need not allege reliance or the defendant's deceitful intent or knowledge of the representation's falsity nor do they need to phrase their facts in a way that fits neatly within the Federal Trade Commission's cigarette rule for a legally sufficient cause of action under CUTPA, they must allege facts demonstrating that the defendant had a duty to act.   See Downes–Patterson Corp. v. First National Supermarkets, Inc., supra, 64 Conn.App. 427.   The plaintiffs' pleading does not include allegations to support an inference that the defendant had a duty to correct Sullo's misrepresentations.   Without an allegation to support an inference that the defendant was under any obligation to do what it allegedly refrained from doing, the plaintiffs' allegations are legally insufficient to support a CUTPA claim.   Accordingly, the court grants the defendant's motion to strike as to count fourteen.

CONCLUSION

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

Martin, J.

FOOTNOTES

FN1. The present motion to strike was filed solely by the defendant Joseph Roca, and he is, therefore, referred to herein as “the defendant.”.  FN1. The present motion to strike was filed solely by the defendant Joseph Roca, and he is, therefore, referred to herein as “the defendant.”

FN2. The complaint alleges that the plaintiffs retained Morrissey Construction, LLC, separately to perform roofing work in their house..  FN2. The complaint alleges that the plaintiffs retained Morrissey Construction, LLC, separately to perform roofing work in their house.

FN3. The issue of a nonmoving party's failure to object to a motion to strike as to a particular count is analogous to the failure of a party to oppose a motion to strike in general, for which there is a split of authority on whether not filing an opposition is fatal to the nonmoving party.  “Practice Book § 155, now § 10–42, previously provided that a party who failed to file ․ a memorandum [in opposition to a motion to strike] ‘shall be deemed by the court to have consented to the granting of the motion.’  “ (Emphasis added.)  Doe v. Board of Education, 76 Conn.App. 296, 298 n.5, 819 A.2d 289 (2003).  “That language was subsequently removed from Practice Book § 10–42.”  Id. In affirming the judgment on the merits of the motion to strike, the Appellate Court in Doe did not address the nonmoving party's failure to file a memorandum in opposition because such failure was not raised as an alternative ground for affirmance.  Id.Research reveals no direct appellate authority on whether a failure to file an opposition memorandum is fatal to the nonmoving party.   See Thompson v. Home Depot, U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.).   A minority of Superior Court judges has held that a party's failure to file an opposition memorandum is deemed to be consent to the granting of the motion.   See, e.g., McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 08 5024230 (May 27, 2010, Wilson, J.).  “By contrast, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike ․ [S]ome of the decisions in the majority have stressed the absence of an objection from the moving party, while others have waived the five-day requirement of § 10–42(b).”  (Citation omitted;  internal quotation marks omitted.)  Id. In light of the majority's decisions holding that a nonmoving party's failure to file a memorandum in opposition to a motion to strike does not automatically require the court to grant the motion, this court, in its discretion, follows the majority's reasoning and considers the merits of the defendant's motion to strike, including the portion addressing count two, notwithstanding the plaintiffs' failure to object as to that particular count..  FN3. The issue of a nonmoving party's failure to object to a motion to strike as to a particular count is analogous to the failure of a party to oppose a motion to strike in general, for which there is a split of authority on whether not filing an opposition is fatal to the nonmoving party.  “Practice Book § 155, now § 10–42, previously provided that a party who failed to file ․ a memorandum [in opposition to a motion to strike] ‘shall be deemed by the court to have consented to the granting of the motion.’  “ (Emphasis added.)  Doe v. Board of Education, 76 Conn.App. 296, 298 n.5, 819 A.2d 289 (2003).  “That language was subsequently removed from Practice Book § 10–42.”  Id. In affirming the judgment on the merits of the motion to strike, the Appellate Court in Doe did not address the nonmoving party's failure to file a memorandum in opposition because such failure was not raised as an alternative ground for affirmance.  Id.Research reveals no direct appellate authority on whether a failure to file an opposition memorandum is fatal to the nonmoving party.   See Thompson v. Home Depot, U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.).   A minority of Superior Court judges has held that a party's failure to file an opposition memorandum is deemed to be consent to the granting of the motion.   See, e.g., McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 08 5024230 (May 27, 2010, Wilson, J.).  “By contrast, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike ․ [S]ome of the decisions in the majority have stressed the absence of an objection from the moving party, while others have waived the five-day requirement of § 10–42(b).”  (Citation omitted;  internal quotation marks omitted.)  Id. In light of the majority's decisions holding that a nonmoving party's failure to file a memorandum in opposition to a motion to strike does not automatically require the court to grant the motion, this court, in its discretion, follows the majority's reasoning and considers the merits of the defendant's motion to strike, including the portion addressing count two, notwithstanding the plaintiffs' failure to object as to that particular count.

FN4. To decide whether a practice violates CUTPA, the Supreme Court has “adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common-law, or otherwise—in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.”  (Internal quotation marks omitted.)   Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010)..  FN4. To decide whether a practice violates CUTPA, the Supreme Court has “adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common-law, or otherwise—in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.”  (Internal quotation marks omitted.)   Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).

FN5. Although the effect of Macomber is that “[a] CUTPA claim no longer must be pleaded with particularity”;  Sanderson v. ISOPur Fluid Technologies, Inc., Superior Court, complex litigation docket at Norwich, Docket No. CV 03 0127378 (April 30, 2004, Hurley, J.T.R.);  “there is nothing in Macomber to suggest that CUTPA is exempt from fact pleading requirements.”   Janet–McComiskey v. Ramm Fence Systems, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 10 6002771 (January 3, 2011, Adams, J.)..  FN5. Although the effect of Macomber is that “[a] CUTPA claim no longer must be pleaded with particularity”;  Sanderson v. ISOPur Fluid Technologies, Inc., Superior Court, complex litigation docket at Norwich, Docket No. CV 03 0127378 (April 30, 2004, Hurley, J.T.R.);  “there is nothing in Macomber to suggest that CUTPA is exempt from fact pleading requirements.”   Janet–McComiskey v. Ramm Fence Systems, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 10 6002771 (January 3, 2011, Adams, J.).

Martin, Robert A., J.