Jeff Burress v. LTD (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (109.00)

I. BACKGROUND AND ALLEGED FACTS

The plaintiff, Jeff Burress, commenced this action by way of in-hand service of the writ, summons and complaint on the defendants, Re–Innovations, LTD and Thomas Tuttle, on September 1, 2009.   The plaintiff amended the complaint on February 26, 2010.   On April 20, 2010, the defendants filed a request to revise the first amended complaint, to which the plaintiff objected.   Judge Mottolese overruled the plaintiff's objection on May 10, 2010, and the plaintiff filed a revised second amended complaint on June 10, 2011.   This is the operative complaint, and it contains six counts.   The first count sounds in express warranty against Re–Innovations;  the second count sounds in implied warranty against Re–Innovations;  the third count sounds in negligence against Re–Innovations;  the fourth count sounds in negligence against Tuttle;  the fifth count sounds in breach of contract against Re–Innovations;  and the sixth count claims a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110 et seq.  (CUTPA) against Re–Innovations.

The plaintiff alleges the following facts against Tuttle in the fourth count.   On December 4, 2006, the plaintiff and Re–Innovations signed a contract pursuant to which Re–Innovations was to provide home improvement work as the term has been defined under the Home Improvement Act, General Statutes § 20–418 et seq.  (HIA).  At all relevant times, Tuttle was the controlling member of Re–Innovations and performed every action that was taken or executed by Re–Innovations, including hiring subcontractors, supervising subcontractors, planning the construction, choosing materials, purchasing materials and acquiring permits.   After Re–Innovations completed its work under the contract, the plaintiff discovered several defects with the work, including improperly installed cedar wood shingles, air conditioning system, furnace and windows.   Tuttle was alleged to be personally negligent and failed to perform his work and to construct the improvements in a workmanlike manner, in a manner fit for habitation, in accordance with engineering standards and free from faulty materials in that he, inter alia, negligently retained subcontractors, negligently failed to inspect work in progress by employees or contractors and negligently failed to take reasonable steps to assure that the improvements on the premises were constructed properly.

In the sixth count, the plaintiff repeats some of the allegations of the fourth count while alleging the following additional facts against Re–Innovations.   The contract to which the plaintiff and Re–Innovations agreed did not set forth a starting or completion date as required by General Statutes § 20–429.   The failure to include a starting and completion date constitutes a failure to comply with the HIA. By failing to comply with the HIA, Re–Innovations has, per se, violated CUTPA.

On June 30, 2011, the defendants filed a motion to strike Counts Two and Four of the plaintiff's revised second amended complaint on the grounds that Count Four improperly pleads the elements of negligence and fails to allege any facts showing how the defendant, in his individual capacity, caused any of the alleged breaches, and that Count Six is improper as a matter of law, as the contract complies with the HIA. The defendants filed a memorandum of law in support of their motion.   On September 6, 2011, the plaintiff filed a memorandum of law in opposition to the motion.   For reasons unknown the matter was not claimed to the short calendar until June 26, 2012.

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.

1. Count Four:  Negligence as to Thomas Tuttle

The defendants make the following arguments in support of their motion to strike as to Count Four. The fourth count alleges negligence against Tuttle in his individual capacity, yet at all relevant times he acted exclusively in his corporate capacity as president of Re–Innovations.   The contract at issue was executed by the plaintiff and Re–Innovations;  Tuttle was not a party to that contract.   Although a corporate officer can incur personal liability for his own negligence, the courts will entertain such claims only where the officer himself committed the tort.   The allegations of Count Four are insufficient to permit such a conclusion.   The plaintiff alleges that Re–Innovations exclusively performed the work.   The plaintiff does not allege any distinctive facts against Tuttle individually;  Count Four is simply a breach of contract claim masqueraded as something different.   Finally, the defendants argue the plaintiff has failed to allege any duty owed by Tuttle as an individual to the plaintiff.   Tuttle did not sign the contract in his individual capacity;  there is no statutory or factual basis for the liability asserted against him as an individual, and there are no allegations of circumstances that would have created a duty on the part of Tuttle separate and apart from his responsibilities as a corporate officer of Re–Innovations.   Accordingly, the defendants conclude, the allegations of Count Four are legally insufficient to sustain a negligence claim against Tuttle in his individual capacity.

The plaintiff counters with the following arguments.   The plaintiff alleges that Tuttle was personally negligent in that he failed to perform the work and to make the improvements in a workmanlike manner.   Accordingly, the plaintiff has sufficiently alleged negligence against Tuttle in his individual capacity.   Further, when an agent or corporate officer commits or participates in the commission of a tort, whether he acts on behalf of himself or his principal or corporation, he is liable to third persons injured thereby.   Thus, Tuttle can be sued in his individual capacity.

“It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position.   Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby ․ Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 132, 2 A.3d 859 (2010).  “It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable.”  Kilduff v. Adams, Inc., 219 Conn. 314, 331–32, 593 A.2d 478 (1991).

The claims made by the plaintiff are not dissimilar to those in Sturm.   In that case, the plaintiff homeowners entered into a contract with an LLC for the construction of a new home.   After the house was built, the plaintiff's found that the house had not been built in accordance with the contract and that the workmanship was poor.   The plaintiffs alleged several causes of action arising from these defects against both the LLC and its principal in his individual capacity.   The principal filed a motion to strike all counts against him on the ground that because the plaintiffs had asserted fundamentally similar claims against both the LLC and himself, the plaintiffs were required to allege facts sufficient to pierce the corporate veil in order to state a valid claim against him in his individual capacity.  Sturm v. Harb Development, LLC, supra, 298 Conn. 129.   The plaintiffs responded that they were not making a claim to pierce the corporate veil, but instead were bringing an action against the defendant for his own personal liability in tort.   The trial court granted the principal's motion to strike all counts of the complaint against him in his individual capacity, ruling that, because the counts against the defendant in his individual capacity arose out of his management of the LLC, the plaintiffs were required, but failed, to allege facts sufficient to warrant piercing the corporate veil.   The trial court further concluded that the plaintiffs failed to plead sufficiently the required elements for each cause of action asserted against the principal in his individual capacity.  Id. The plaintiffs appealed, claiming that the trial court misconstrued the complaint, failing to understand that their claim was that the principal was personally and individually liable in tort despite being a member or manager of the LLC, and that it therefore was not necessary to pierce the corporate veil in order to establish the principal's personal liability.   The principal replied that he was immune from liability on these grounds because of the protection against personal liability found in General Statutes § 34–133(a), and that, because the allegations against him not only arose from his membership in or management of the LLC but also appeared to be substantially similar to the allegations against the LLC, the plaintiffs were required to allege facts sufficient to warrant piercing the corporate veil.  Id., 132.

Agreeing with the plaintiffs, the Supreme Court held that there was a well established common-law tort exception for the individual liability of a corporate agent or officer and that the legislature did not limit this liability through the adoption of § 34–133(b).  “The trial court thus improperly concluded that the plaintiffs were required to allege facts sufficient to pierce the corporate veil with regard to all of the counts of the complaint alleged against the defendant in his individual capacity.   The trial court improperly failed to consider the common-law tort exception that the plaintiffs chose to invoke as the basis for their individual claims against the defendant.”  Id., 138.

Similarly, in this case, the plaintiff alleges that Tuttle was “personally negligent” and failed to perform his work and to construct the improvements in a workmanlike manner.   Accordingly, the plaintiff is alleging negligence against Tuttle in his individual capacity and, therefore, the common-law tort liability for corporate actors applies.   The plaintiff further alleges that Tuttle was the controlling member of Re–Innovations and performed every action that was taken or executed by Re–Innovations.   Thus, whether Tuttle was acting in his individual capacity or on behalf of the corporation is immaterial.   See Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 142–43, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).

Having established that the plaintiff has properly alleged negligence against Tuttle in his individual capacity, the issue becomes whether the plaintiff has sufficiently alleged the elements of a negligence claim.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”  (Internal quotation marks omitted.)  Archambault v. Soneco/Northeastern, 287 Conn. 20, 32, 946 A.2d 839 (2008).  “It is well established within the construction context that a builder must exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, supra, 298 Conn. 139.  “The existence of a duty of care is an essential element of negligence ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.”  (Internal quotation marks omitted.)  Ward v. Greene, 267 Conn. 539, 547, 839 A.2d 1259 (2004).  “There is no question that a duty of care may arise out of a contract, but when the claim is brought against a defendant who is not a party to the contract, the duty must arise from something other than mere failure to perform properly under the contract ․ The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.”  (Citation omitted;  internal quotation marks omitted.)   Atelier Constantin Popescu v. JC Corp., 134 Conn.App. 731, 757 (2012).

Here, the plaintiff makes a conclusory statement that Tuttle was personally negligent in that he failed to perform his work and to construct the improvements in a workmanlike manner.   The plaintiff fails to allege, however, any contractual or statutory duty on the part of Tuttle, or any circumstances that would implicate a duty owed by Tuttle to the plaintiff.   It is not sufficient for the plaintiff to have alleged that the plaintiff and Re–Innovations entered into a contract for home improvement work and that Tuttle was the controlling member of Re–Innovations and performed every action that was executed by it.   The plaintiff must allege facts either indicating the source of Tuttle's duty or allowing Tuttle to anticipate the harm alleged.   See Sturm v. Harb Development, LLC, supra, 298 Conn. 140–41.   In Sturm, the court ultimately held that the plaintiffs failed to allege legally sufficient facts to establish a duty on the part of the corporate principal in his individual capacity.   The court stated:  “The plaintiffs ․ failed to plead anywhere in this negligence count that the defendant personally was a party to the contract, instead pleading only that [the LLC] was a party to the contract.   These allegations therefore are insufficient to establish that the defendant individually owed a contractual duty to the plaintiffs.”  Id., 140.   Regarding the plaintiffs' allegations that the principal failed to install correctly a concrete slab foundation and improperly instructed the LLC to deviate from the contractual plans, the court further held:  “These two allegations similarly fall short in establishing any duty on the part of the defendant.   The defendants failed to allege the source of the defendant's duty to install the slab, such as a contract or an established building code.   The plaintiffs further neglected to plead the manner in which the defendant instructed and caused [the LLC] to deviate from the plans and specifications of the contract.   Such an allegation is too general and unspecific to either support the conclusion that the defendant had a duty to avoid such instruction or allow the defendant to anticipate the harm claimed.”  Id., 140–41.

Similarly, in this case, the plaintiff has failed to allege that Tuttle personally was a party to the contract with the plaintiff, instead alleging only that Re–Innovations was a party to the contract.   This allegation is insufficient to establish that Tuttle, in his individual capacity, owed a contractual duty to the plaintiff.   See D'Angelo Development and Construction Corp. v. Cordovano, 121 Conn.App. 165, 185–87, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010) (in ruling on the plaintiffs' negligence claim arising out of a written contract between them and a corporation, holding that there was no evidence that the defendant principal and sole employee of the corporation owed the plaintiffs any duty in an individual capacity under the terms of the contract).   Furthermore, the plaintiff has failed to allege the source of Tuttle's duty, as an individual, to perform the work and to construct the improvements in a workmanlike manner, in a manner fit for habitation, in accordance with engineering standards and free from faulty materials, such as a contract or building code.   Finally, the plaintiff's claims regarding Tuttle's alleged breaches, including negligently retaining subcontractors who lacked the proper expertise and negligently failing to inspect work in progress by employees or contractors, are merely conclusory statements.   As with the plaintiffs' allegations in Sturm, the plaintiff's allegations here are too general to support the conclusion that a reasonable person, knowing what Tuttle knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from Tuttle's acts or failure to act.   Because the plaintiff thus has failed to plead sufficiently a duty owed by Tuttle, as an individual, to the plaintiff, the plaintiff has failed to allege legally sufficient facts to sustain his negligence claim against Tuttle in his individual capacity.   Therefore, the defendants' motion to strike as to Count Four of the plaintiff's revised second amended complaint is granted.

2. CUTPA as to Re–Innovations

With regard to its motion to strike as to Count Six, the defendants make the following arguments.   First, a necessary element of a CUTPA claim is an allegation that the defendant was engaged in trade or commerce.   Here, the plaintiff fails to allege that Re–Innovations was engaged in trade or commerce and, therefore, the plaintiff's CUTPA claim is not properly alleged.   Moreover, the contract entered into between Re–Innovations and the plaintiff was fully compliant with the HIA. The contract includes a start date and an end date, as it states that work will commence within six months of the date of the agreement and will be completed within three weeks of the commencement of the work.   Finally, letter-perfect compliance with the HIA is not required and, thus, any alleged imprecise start date and completion date are mere technicalities and cannot, as a matter of law, render Re–Innovations liable for violations of the HIA and, by extension, CUTPA.

The plaintiff responds with the following arguments.   First, the plaintiff has sufficiently alleged that the defendant was in the home improvement business with a place of business in this state.   Moreover, the contract fails to set forth a start date or completion date, as required by the HIA. Instead, the completion date is tied to the start date and the start date was tied to two separate events, one of which was obtaining necessary permits, and no time frame or bench marks were provided for the obtaining of necessary permits.   The designation of six months after the date of this agreement and all necessary permits have been obtained, as a start date, is insufficient and fails to comply with the HIA. Firm dates are required under the HIA, unless the contractor secures a written waiver from the homeowner.   There is no allegation in this case that any such waiver was obtained.   Accordingly, the plaintiff has sufficiently alleged that Re–Innovations violated the HIA and, therefore, CUTPA.

General Statutes § 20–429(a) provides in relevant part:  “No home improvement contract shall be valid or enforceable against an owner unless it ․ (7) contains a starting date and completion date ․” “The [HIA] is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors․  The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services ․ To promote this purpose, the act provides that no home improvement contract shall be valid or enforceable against a homeowner unless the contract contains, among other things, a starting date, a completion date and a notice of the homeowner's cancellation rights.”  (Citation omitted;  internal quotation marks omitted.)  MJM Landscaping, Inc. v. Lorant, 268 Conn. 429, 435, 845 A.2d 382 (2004).  “Because the requirements of the HIA are mandatory and must be strictly construed, the absence of [a commencement and a completion date] constitutes a violation of the HIA that renders the contract unenforceable.”  Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995);  accord Walpole Woodworkers, Inc. v. Manning, 126 Conn.App. 94, 103, 11 A.3d 165, cert. granted on other grounds, 300 Conn. 940, 17 A.3d 476 (2011).

“While the purposes of the statute are advanced by an interpretation that makes compliance with the requirements of § 20–429(a) mandatory, it does not necessarily follow that advancement of the purposes also requires that the mandatory compliance with each subsection be technically perfect ․ [A] construction [of § 20–429(a) ] that would require technically perfect compliance with each subdivision is inappropriate.   Rather, an interpretation of that section that acknowledges and furthers the remedial purposes of the statute is in order.”  Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998).  “As remedial legislation, the HIA must be afforded a liberal construction in favor of those whom the legislature intended to benefit.”  Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 678.

Here, the crux of the plaintiff's sixth count is that the contract failed to set forth a start or a completion date.   The defendants rebut this allegation by arguing that the contract provided that work would commence within six months of the date of the agreement and would be completed within three weeks of the commencement of the work.   Such references to the contract render the defendants' motion a speaking motion to strike.  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “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., supra, 240 Conn. 580.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)   Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).   Not only is the contract an external document, but the plaintiff did not even attach it to the operative complaint, and neither party attached it to any of the other pleadings or filed it with the court as an exhibit.   See Practice Book § 10–29.   Accordingly, the court may not consider the purported provisions within the contract in deciding the defendants' motion, and the court is limited to the facts alleged in the plaintiff's operative complaint.

The plaintiff plainly alleges in paragraph six of the operative complaint that the contract failed to set forth a start or a completion date as required by § 20–429(a)(7).   Thus, the plaintiff has sufficiently alleged that Re–Innovations violated the HIA and, therefore, has alleged sufficient facts to sustain his CUTPA claim.   See General Statutes § 20–427(c);  see also New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 666, 927 A.2d 333 (2007) (“Pursuant to ․ § 20–427(c), a violation of the [HIA] is automatically a violation of CUTPA”).   Therefore, the defendants' motion to strike as to Count Six of the plaintiff's revised second amended complaint is denied.

III. CONCLUSION

That part of defendants' motion to strike which seeks to strike Count Four is granted.   That part which seeks to strike Count Six is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

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