Coppola Construction Co., Inc. v. Phyllis W. Hoffman, Trustee et al. (2012)

RULING ON DEFENDANTS' MOTION TO DISMISS

This case is an action by the plaintiff, Coppola Construction Co., Inc., seeking to foreclose on mechanic's liens filed against real property owned by the defendants, Phyllis W. Hoffman, Trustee of the Rose Rhea Hoffman 1990 Family Trust (Hoffman) and Hoffman Enterprises Limited Partnership (HELP), in Simsbury, Connecticut.   The plaintiff allegedly performed excavation work on the properties pursuant to a contract, and certain additional excavation work requested, but was not paid for that extra work.   Hoffman and HELP have moved to dismiss this case under the prior pending action doctrine, arguing that the same allegations are already at issue before the court in an earlier filed breach of contract and damages action titled Coppola Construction Co., Inc. v. Hoffman Enterprises Limited Partnership, et al., Doc. No. HHD CV 09–5034505–S.   For the following reasons, the motion to dismiss is denied.

I

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Citation omitted;  internal quotation marks omitted.)  RC Equity Group, LLC v. Zoning Commission of Borough of Newton, 285 Conn. 240, 248, 939 A.2d 1122 (2008).

“[I]n ruling [on] whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader[.]”  (Citation omitted;  internal quotation marks omitted.)  Windels v. Environmental Protection Commission, 284 Conn. 268, 290, 933 A.2d 256 (2007).

“Although a motion to dismiss is the proper vehicle to raise the issue of a prior pending action, the doctrine does not truly implicate subject matter jurisdiction.”  Gaudio v. Gaudio, 23 Conn.App. 287, 294, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), citing Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985);  see also In re Jessica M., 71 Conn.App. 417, 427, 802 A.2d 197 (2002).

“The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.   The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement.   It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious.   This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.”  (Citation omitted;  internal quotation marks omitted.)  Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998);  see also Halpern v. Board of Education, supra, 196 Conn. 652–53.

“The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets.”  (Citation omitted;  internal quotation marks omitted.)  Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).   The rule, however, is not one “of unbending rigor, nor of universal application, nor a principle of absolute law ․” (Internal quotation marks omitted.)  Id., 584.   Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint.   See Gaudio v. Gaudio, supra, 23 Conn.App. 297 (concluding on basis of equitable principles that count of subsequent action improperly dismissed despite fact that allegations in that count virtually identical to allegations in prior pending action);  Quinebaug Bank v. Tarbox, 20 Conn. 510, 515 (1850) (general rule does not prevail where it appears second action is not vexatious, but is brought for good cause);  see also BCBS Goshen Realty, Inc. v. Planning & Zoning Commission, 22 Conn.App. 407, 409, 577 A.2d 1101 (1990) (flexibility of prior pending action doctrine permits dismissal of prior action, as opposed to subsequent action).

The applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy;  see Gaudio v. Gaudio, supra, 23 Conn.App. 296;  but, rather, “whether they are brought to adjudicate the same underlying rights.”  (Citations omitted;  internal quotation marks omitted.)  Cumberland Farms, Inc. v. Groton, supra, 247 Conn. 216.

Our Supreme Court has taught that the proper inquiry should focus on the pleadings in the two pending cases and the underlying rights that the two actions seek to adjudicate, and then apply the following tests:

[T]he trial court must determine in the first instance whether the two actions are:  (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction;  (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies;  or (3) insufficiently similar to warrant the doctrine's application.   In order to determine whether the actions are virtually alike, we must examine the pleadings—in this case, both complaints and the defendant's answer and special defenses in the summary process action to ascertain whether the actions are brought to adjudicate “the same underlying rights” of the parties.  (Internal quotation marks omitted.)  Cumberland Farms, Inc. v. Groton, supra, 247 Conn. 217 ․ If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion.   In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated.   Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.

Bayer v. Showmotion, Inc., 292 Conn. 381, 397–98, 973 A.2d 1229 (2009) (emphasis in original).

Applying these standards, and for the following reasons, the court observes that the two cases are certainly similar, but are not exactly alike.

In the prior action, the same plaintiff is seeking money damages from the defendant, HELP, alleging that HELP breached its contractual obligations to pay for the same additional excavation work on the same properties in Simsbury, Connecticut.   The operative Third Amended Complaint is in six counts:  breach of contract,¹ quantum meruit,² unjust enrichment,³ tortious interference with business expectancies,⁴ violation of the Connecticut Unfair Trade Practices Act (CUTPA); ⁵  and negligent misrepresentation.⁶  The negligent misrepresentation claim, against the defendant Jeffrey S. Hoffman, was stricken in pretrial proceedings.   That ruling is on appeal in S.C. No. 18955.   The defendant, HELP, joined the remaining issues in an answer with six special defenses:  breach of contract;  breach of implied covenant of good faith and fair dealing; ⁷  conspiracy to defraud; ⁸  unclean hands; ⁹  estoppel; ¹⁰  and negligent misrepresentation.   It also filed a six-count counter claim alleging:  breach of contract and breach of implied covenant of good faith and fair dealing;  fraud;  aiding and abetting a breach of fiduciary obligation; ¹¹  a violation of CUTPA;  and two claims for set-off.¹²  The plaintiff replied with an answer with two special defenses essentially contesting the sufficiency of evidence to support certain of the counter claims.   All of those contested claims have already gone to trial to the court.   In a decision dated August 16, 2012, the court (Sheldon, J.) found in favor of the plaintiff on certain claims, and in favor of the defendant on other points.   The decision essentially resolved the legal responsibilities of the parties during the course of the construction project and during the following disputes over the bills, and it assessed damages for certain contract breaches or violations of legal duties.   The claims and counter claims were multiple and complex.   The decision is 147 pages long.   And, the litigation has not concluded.   The court has ordered further proceedings to assess money damages, consisting of attorneys fees and costs, on certain of the counter claims.   And, both sides have requested reargument.   Nevertheless, the gravamen of the matter concerned what unpaid bills were legally due, which party was responsible for payment, and which party was liable for misconduct in the same construction project dispute that is the subject of the instant case.

In comparison, the instant case is a foreclosure action concerning mechanic's liens.   While it alleges the same essential facts involving the same contract dispute involving the same property as in the prior action, the plaintiff additionally alleges that the premises are subject to the claim for payment for the services provided.   Complaint, Count One, para 11.   It alleges that it commenced to furnish materials and provide services at the premises on or about June 23, 2009 and that it ceased to furnish materials and provide services on November 24, 2009.  Id. paras. 12 and 13.   It alleges facts concerning the issuance, recording and service of the Certificates of Mechanic's Liens, and it alleges other encumbrances on the properties prior and subsequent in right.   Complaint, Counts One, Two and Three.   In its prayer for relief, it seeks a foreclosure of the mechanic's liens, reasonable attorneys fees and costs and money damages.   Complaint, Prayer for Relief, paras. 1–3.   In response, and after the instant motion to dismiss was argued, the defendants filed an answer joining the issues, and they have alleged four special defenses:  payment;  failure to file the foreclosure action within one year;  res judicata;  and collateral estoppel.   Thus, while the foreclosure litigation will no doubt involve much, if not all, of the same evidence as in the prior action, there will be particular elements that will be different, and the remedies sought are quite different.

Under Connecticut's mechanic's lien statutes, a contractor can put a lien on real estate for claims of more than ten dollars for materials furnished or services rendered in making repairs or improvements to the real estate affected.  General Statutes §§ 49–33(a) and (b).  The lien can be foreclosed in the same manner as a mortgage.  General Statutes § 43–33(i).   It is an unusually powerful lien because it generally takes effect from the date of commencement of the services, rather than from the date it was filed on the land records;  and, thus, it may take precedence over even earlier filed encumbrances, provided that it is filed within ninety days after the work is finished, and an action is commenced to foreclose on it within one year of filing.  General Statutes §§ 49–33(b);  49–34 and 49–39.   If it is not foreclosed, it becomes invalid and it is discharged as a matter of law.   General Statutes § 49–39.

Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials.  General Statutes § 49–33(a);  Seaman v. Climate Control Corp., 181 Conn. 592, 595, 436 A.2d 271 (1980).   Although it is a very powerful lien, it is also a very limited lien.   The lien can only be enforced to the extent that there is a “lienable fund” available against which it can be applied.   See General Statute §§ 49–33(e) and (f) and 49–36(a) and (c).  Moreover, it is not the office of the mechanic's lien to remedy all wrongs that may arise during a construction litigation dispute.  “Some statutes in other states justify mechanic's liens on the owner's property on the basis that the owner is otherwise unjustly enriched by the improvement of his property ․ That is not our law.”  (Citations omitted.)  Seaman v. Climate Control Corp., 181 Conn. 592, 601, 436 A.2d 271 (1980);  see also Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 296, 475 A.2d 110 (1984) (“[W]e specifically [reject] the argument that a mechanic's lien may be founded on the basis that the owner is unjustly enriched by the improvement of its property”).

Thus, the two cases cannot be described as exactly alike.   Nor are they so dissimilar that the doctrine has no applicability.   The court believes that they are comparable to the circumstance in Bayer v. Showmotion, Inc., where the court compared a summary process action seeking immediate possession of certain real property with a prior filed action for specific performance of a lease agreement where the defendant claimed a right of first refusal to purchase the property.   In that matter, both cases were very different, but both involved the same underlying rights of the parties:  title and possession of the real property.   The instant dispute is similar.   Both cases involve the same underlying rights of the parties:  money owed on a construction contract.   In the Bayer v. Showmotion, Inc. case, the court concluded that the two cases were properly classified as being “virtually alike.”   This court reaches the same conclusion with regard to the instant action and the prior pending action of Coppola Construction Co., Inc. v. Hoffman Enterprises Limited Partnership, et al., Doc. No. HHD CV 09–5034505–S.

Therefore, the next step is for the court to determine whether the circumstances justify dismissal of the instant action.   That is a point on which the court has discretion.   In the Bayer v. Showmotion, Inc. case, the trial court was upheld after exercising its discretion in deciding to deny the motion to dismiss.   The court in the instant case, again, sees many similarities with the Bayer v. Showmotion, Inc. case and likewise concludes that the motion to dismiss in this case should be denied.

First, as in Bayer v. Showmotion, Inc., the court is not faced with a subject matter jurisdiction barrier.   The prior pending action doctrine does not truly implicate subject matter jurisdiction.  Bayer v. Showmotion, Inc., supra, 292 Conn. 403.   Second, the court has not been persuaded that there would be prejudice to the defendants if they were required to litigate their rights in the instant case.  Id., at 404.   Third, the instant action offers a remedy to the plaintiff that is not available in the prior breach of contract/damages action, i.e., foreclosure of a lien with potential priority that would be discharged by law if it was not timely pursued.  Id.;  accord, Lyon & Billard Co. v. Victory, Superior Court, judicial district of Stamford–Norwalk, Doc. No. CV 97–0156693 (May 6, 1998, Hickey, J.) [22 Conn. L. Rptr. 117].   Fourth, it would not serve the interests of justice to dismiss this case pending the outcome of the prior pending action.  Id. The instant case has been pending since November 2010.   The motion to dismiss was filed in December 2010.   It has not been pursued for 21 months.   There would be no savings to the court system if this case were dismissed at this point.   Also, the parties can be spared the expense of unnecessary, duplicate litigation by utilizing the procedural tools of the stay and/or claim/issue preclusion.  Id.;  accord, Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 217–18, 719 A.2d 465 (1998);  Cosgrove Construction Co. v. Connecticut Sportsplex, Superior Court, judicial district of New Haven, Doc. No. CV 98–141317 (July 2, 1999, Jones, J.).

III

For all of the foregoing reasons, the defendants' motion to dismiss is denied.

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. 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.  Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004);  T. Merritt, Connecticut Elements of an Action (2010–2011 Ed.) § 4:1.   In Connecticut, “[a]bsent a statutory warranty or definitive contract language, whether there was a contract and the scope of its terms are questions of fact to be determined by the trier on the basis of all the evidence.”  (Citation omitted.)  Bolmer v. Kocet, 6 Conn.App. 595, 608, 507 A.2d 129 (1986).  “[T]o prove the breach of contract claim ․ the plaintiff will need to show that the defendant failed to provide the compensation according to their agreement.”   Cosgrove Construction Co. v. Connecticut Sportsplex, Superior Court, judicial district of New Haven, Doc. No. CV 98–141317 (July 2, 1999, Jones, J.).  “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed ․ It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.”  (Citation omitted;  internal quotation marks omitted.)  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 32, 662 A.2d 89 (1995).  “The usual recovery for breach of a contract is the contract price or the lost profits therefrom.”  (Citation omitted.)  Gazo v. Stamford, 255 Conn. 245, 265, 765 A.2d 505 (2001)..  FN1. 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.  Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004);  T. Merritt, Connecticut Elements of an Action (2010–2011 Ed.) § 4:1.   In Connecticut, “[a]bsent a statutory warranty or definitive contract language, whether there was a contract and the scope of its terms are questions of fact to be determined by the trier on the basis of all the evidence.”  (Citation omitted.)  Bolmer v. Kocet, 6 Conn.App. 595, 608, 507 A.2d 129 (1986).  “[T]o prove the breach of contract claim ․ the plaintiff will need to show that the defendant failed to provide the compensation according to their agreement.”   Cosgrove Construction Co. v. Connecticut Sportsplex, Superior Court, judicial district of New Haven, Doc. No. CV 98–141317 (July 2, 1999, Jones, J.).  “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed ․ It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.”  (Citation omitted;  internal quotation marks omitted.)  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 32, 662 A.2d 89 (1995).  “The usual recovery for breach of a contract is the contract price or the lost profits therefrom.”  (Citation omitted.)  Gazo v. Stamford, 255 Conn. 245, 265, 765 A.2d 505 (2001).

FN2. “[Q]uantum meruit ․ allow[s] recovery on the theory of restitution, that is, the restoration to a party of something of which he was deprived because of the unjust enrichment of another at his expense ․ Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered.”  (Citations omitted;  internal quotation marks omitted.)  Burns v. Koellmer, 11 Conn.App. 375, 383, 527 A.2d 1210 (1987).  “Quantum meruit is a theory of contract recovery that does not depend on the existence of a contract, either express or implied.   Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual contract.”  (Citations omitted.)   Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).   The measure of damages is the value of the services rendered.  Shapero v. Mercede, 262 Conn. 1, 7, 808 A.2d 666 (2002)..  FN2. “[Q]uantum meruit ․ allow[s] recovery on the theory of restitution, that is, the restoration to a party of something of which he was deprived because of the unjust enrichment of another at his expense ․ Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered.”  (Citations omitted;  internal quotation marks omitted.)  Burns v. Koellmer, 11 Conn.App. 375, 383, 527 A.2d 1210 (1987).  “Quantum meruit is a theory of contract recovery that does not depend on the existence of a contract, either express or implied.   Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual contract.”  (Citations omitted.)   Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).   The measure of damages is the value of the services rendered.  Shapero v. Mercede, 262 Conn. 1, 7, 808 A.2d 666 (2002).

FN3. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”   (Citations omitted;  internal quotation marks omitted.)  Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006);  Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn.App. 222, 230, 947 A.2d 989 (2008)..  FN3. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ․ With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”   (Citations omitted;  internal quotation marks omitted.)  Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006);  Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn.App. 222, 230, 947 A.2d 989 (2008).

FN4. Such a claim requires the plaintiff “to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct.”   (Citation omitted, internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d 1059 (2000).  “[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that:  (1) a business relationship existed between the plaintiff and another party;  (2) the defendant intentionally interfered with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffered actual loss.”  (Citations omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 32–33, 761 A.2d 1268 (2000)..  FN4. Such a claim requires the plaintiff “to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct.”   (Citation omitted, internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d 1059 (2000).  “[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that:  (1) a business relationship existed between the plaintiff and another party;  (2) the defendant intentionally interfered with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffered actual loss.”  (Citations omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 32–33, 761 A.2d 1268 (2000).

FN5. “CUTPA provides 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 ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property ․ as a result of the use or employment of a [prohibited] method, act or practice ․” (Citation omitted;  internal quotation marks omitted.)  Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213–14, 932 A.2d 401 (2007).   When faced with a business practice that potentially violates CUTPA, the Connecticut Supreme Court has adopted the following criteria:  “(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 ․;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [ (competitors or other businessmen) ].”  (Citations omitted;  internal quotation marks omitted.)  Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105–06, 612 A.2d 1130 (1992).  “This language has been the foundation of the analysis defining the meaning of ‘unfair acts or practices' under CUTPA and has been cited repeatedly by the Connecticut Supreme Court.”   R. Langer, J. Morgan and D. Belt, Unfair Trade Practices (12 Conn. Practice Series, 2011–12 Ed.) § 2.2..  FN5. “CUTPA provides 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 ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property ․ as a result of the use or employment of a [prohibited] method, act or practice ․” (Citation omitted;  internal quotation marks omitted.)  Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213–14, 932 A.2d 401 (2007).   When faced with a business practice that potentially violates CUTPA, the Connecticut Supreme Court has adopted the following criteria:  “(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 ․;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [ (competitors or other businessmen) ].”  (Citations omitted;  internal quotation marks omitted.)  Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105–06, 612 A.2d 1130 (1992).  “This language has been the foundation of the analysis defining the meaning of ‘unfair acts or practices' under CUTPA and has been cited repeatedly by the Connecticut Supreme Court.”   R. Langer, J. Morgan and D. Belt, Unfair Trade Practices (12 Conn. Practice Series, 2011–12 Ed.) § 2.2.

FN6. “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  (Citation omitted.)  Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006);  M. Taylor and D. Krisch, Encyclopedia of Connecticut Causes of Action (2009), p. 46–47.  “This court has long recognized liability for negligent misrepresentation ․ The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977):  One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information ․ As a result, [w]e have held that 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.”  (Citations omitted;  internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 143–44, 2 A.3d 859 (2010).  “An actionable misrepresentation, whether made knowingly, recklessly, negligently or innocently, must be made for the purpose of inducing action upon it.”  (Citations omitted.)  J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 359, 464 A.2d 795 (1983).   It must be established that there was a false representation in order for a plaintiff to prevail on a negligent misrepresentation claim.  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 792–93, 734 A.2d 112 (1999).   A plaintiff also is required to show that he reasonably relied on the misrepresentation.  Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 682, 825 A.2d 210 (2003)..  FN6. “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  (Citation omitted.)  Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006);  M. Taylor and D. Krisch, Encyclopedia of Connecticut Causes of Action (2009), p. 46–47.  “This court has long recognized liability for negligent misrepresentation ․ The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977):  One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information ․ As a result, [w]e have held that 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.”  (Citations omitted;  internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 143–44, 2 A.3d 859 (2010).  “An actionable misrepresentation, whether made knowingly, recklessly, negligently or innocently, must be made for the purpose of inducing action upon it.”  (Citations omitted.)  J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 359, 464 A.2d 795 (1983).   It must be established that there was a false representation in order for a plaintiff to prevail on a negligent misrepresentation claim.  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 792–93, 734 A.2d 112 (1999).   A plaintiff also is required to show that he reasonably relied on the misrepresentation.  Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 682, 825 A.2d 210 (2003).

FN7. Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.  Warner v. Konover, 210 Conn. 150, 154, 553 A.2d 1138 (1989).   The obligation of good faith and fair dealing extends to the assertion, settlement and litigation of contract claims and defenses.   The obligation is violated by dishonest conduct such as conjuring up a potential dispute, asserting an interpretation contrary to one's own understanding, or falsification of facts.  Atlantic Mortgage & Investment Co. v. Stephenson, 86 Conn.App. 126, 143, 860 A.2d 126 (2004)..  FN7. Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.  Warner v. Konover, 210 Conn. 150, 154, 553 A.2d 1138 (1989).   The obligation of good faith and fair dealing extends to the assertion, settlement and litigation of contract claims and defenses.   The obligation is violated by dishonest conduct such as conjuring up a potential dispute, asserting an interpretation contrary to one's own understanding, or falsification of facts.  Atlantic Mortgage & Investment Co. v. Stephenson, 86 Conn.App. 126, 143, 860 A.2d 126 (2004).

FN8. “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.”  (Citation omitted;  internal quotation marks omitted.)  Chase Manhattan Mortg.   Corp. v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004)..  FN8. “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.”  (Citation omitted;  internal quotation marks omitted.)  Chase Manhattan Mortg.   Corp. v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004).

FN9. “The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ․ Unless the plaintiffs' conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.”  (Citation omitted;  internal quotation marks omitted.)  Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 710–11, 41 A.3d 1077 (2012).  “It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands ․ The clean hands doctrine is applied not for the protection of the parties but for the protection of the court ․ It is applied not by way of punishment but on considerations that make for the advancement of right and justice.”  (Citations omitted;  internal quotation marks omitted.)  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).   To state a special defense based on “unclean hands,” a party must allege facts “that, if admitted, would rise to the level of unclean hands so as to preclude the court from rendering ․ relief.”  Bauer v. Waste Mgmt. of Conn., Inc., 239 Conn. 515, 526–27, 686 A.2d 481 (1996) (denying motion to amend answer to include unclean hands special defense).  “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation.”  (Citations omitted;  internal quotation marks omitted;  emphasis added.)  Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005)..  FN9. “The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ․ Unless the plaintiffs' conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.”  (Citation omitted;  internal quotation marks omitted.)  Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 710–11, 41 A.3d 1077 (2012).  “It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands ․ The clean hands doctrine is applied not for the protection of the parties but for the protection of the court ․ It is applied not by way of punishment but on considerations that make for the advancement of right and justice.”  (Citations omitted;  internal quotation marks omitted.)  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).   To state a special defense based on “unclean hands,” a party must allege facts “that, if admitted, would rise to the level of unclean hands so as to preclude the court from rendering ․ relief.”  Bauer v. Waste Mgmt. of Conn., Inc., 239 Conn. 515, 526–27, 686 A.2d 481 (1996) (denying motion to amend answer to include unclean hands special defense).  “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation.”  (Citations omitted;  internal quotation marks omitted;  emphasis added.)  Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).

FN10. “Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct ․ In its general application, we have recognized that [t]here are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.”  (Citations omitted;  internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005).  “As a general rule ․ a representation or assurance, in order to furnish the basis of an estoppel, must relate to some present or past fact or state of things, as distinguished from mere promises or statements as to the future.   The misrepresentation must be one of fact and not of intention to support equitable estoppel.”  (Citations omitted;  internal quotation marks omitted.)   TD Bank, N.A. v. M.J. Holdings, LLC, Superior Court, judicial district of New London, Docket No. CV 10 6003386 (February 17, 2011, Devine, J.)..  FN10. “Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct ․ In its general application, we have recognized that [t]here are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.”  (Citations omitted;  internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005).  “As a general rule ․ a representation or assurance, in order to furnish the basis of an estoppel, must relate to some present or past fact or state of things, as distinguished from mere promises or statements as to the future.   The misrepresentation must be one of fact and not of intention to support equitable estoppel.”  (Citations omitted;  internal quotation marks omitted.)   TD Bank, N.A. v. M.J. Holdings, LLC, Superior Court, judicial district of New London, Docket No. CV 10 6003386 (February 17, 2011, Devine, J.).

FN11. “The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut law are:  (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff, (2) That the defendant advanced his or her own interests to the detriment of the plaintiff, (3) That the plaintiff sustained damages;  (4) That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty.”  (Internal quotation marks omitted.)   Everett v. Everett, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 6004013 (December 16, 2010, Adams, J.) (quoting T. Merritt, 16 Connecticut Practice Series:  Elements of an Action (2010–2011 Ed.) § 8:1, p. 534).  “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.”  (Citations omitted;  internal quotation marks omitted.)  Jarvis v. Lieder, 117 Conn.App. 129, 144, 978 A.2d 106 (2009)..  FN11. “The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut law are:  (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff, (2) That the defendant advanced his or her own interests to the detriment of the plaintiff, (3) That the plaintiff sustained damages;  (4) That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty.”  (Internal quotation marks omitted.)   Everett v. Everett, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 6004013 (December 16, 2010, Adams, J.) (quoting T. Merritt, 16 Connecticut Practice Series:  Elements of an Action (2010–2011 Ed.) § 8:1, p. 534).  “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.”  (Citations omitted;  internal quotation marks omitted.)  Jarvis v. Lieder, 117 Conn.App. 129, 144, 978 A.2d 106 (2009).

FN12. A set-off is a statutory remedy, available in some cases, where there are mutual debts between the plaintiff and defendant.   It permits judgment for the balance due after the offset.  General Statutes § 52–139.   A set-off is not to be claimed unless and until the plaintiff obtains judgment in the main action.   R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky and L. Murphy, Vol. 1 Stephenson's Connecticut Civil Procedure (Third Ed., 1997), § 85(c)..  FN12. A set-off is a statutory remedy, available in some cases, where there are mutual debts between the plaintiff and defendant.   It permits judgment for the balance due after the offset.  General Statutes § 52–139.   A set-off is not to be claimed unless and until the plaintiff obtains judgment in the main action.   R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky and L. Murphy, Vol. 1 Stephenson's Connecticut Civil Procedure (Third Ed., 1997), § 85(c).

Vacchelli, Robert F., J.