LLC v. Putnam Savings Bank (2013)

MEMORANDUM OF DECISION

(Motion to Strike # 111.00 Objection # 117.00)

This action arises out of the representation of the plaintiffs, Connecticut Home Properties, LLC and Valerie Law, by the defendant, Thomas A. Borner, as an agent or member of the law firm, Borner, Aleman & Davis, LLC. On August 28, 2012, the plaintiffs filed a twelve-count complaint against Borner, Putnam Savings Bank (Putnam Savings), Borner, Aleman & Davis, LLC and Windham North Properties, LLC (Windham North).   Only counts seven, eight and nine against Putnam Savings Bank and counts eleven and twelve against Windham North are at issue in the present motion.   In counts seven, eight and eleven, the plaintiffs generally allege that by virtue of a contract for the purchase and sale of real estate, the plaintiff, Valerie Law, and her husband, Philip Law, acquired mineral rights in a number of parcels of real property.   Specifically, the plaintiffs allege, that despite having knowledge of the grant of such rights, the defendants have either liened, or acquired ownership interest in said parcels and refuse to recognize the plaintiffs' rights therein, to the plaintiffs' detriment.   In counts nine and twelve, the plaintiffs allege that the defendants' actions are a violation of the Connecticut Unfair Trade Practice Act, General Statutes § 42–110a et seq.  (“CUTPA”).

On January 7, 2013, the defendants moved to strike counts seven, eight, nine, eleven and twelve on the ground that the plaintiffs have failed to state a claim upon which relief can be granted.   The motion is accompanied by a memorandum of law.   On January 30, 2013, the plaintiffs filed their objection along with a memorandum of law in support.   On February 7, 2013, the defendants filed their reply.   The court heard oral argument on March 11, 2013.

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).  “[I]t 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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   Nevertheless, “[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.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

“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.”   (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike, however, “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   This 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.”   (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747.

COUNTS SEVEN, EIGHT AND ELEVEN

The defendants argue that counts seven, eight and eleven are legally insufficient in that they fail to allege any cause of action recognized in the state of Connecticut.   Specifically, the defendants argue that there is not a statutory or common-law cause of action for “suppression of ownership rights” as alleged in counts seven, eight and eleven.   In response, the plaintiffs argue that the defendants are focusing on one phrase within the counts, but do not appreciate the allegations in their entirety.   Specifically, the plaintiffs argue that when read in their entirety, each count sufficiently alleges a cause of action for tortious interference with contractual rights or financial expectancies and/or trespass.   The court agrees with the plaintiffs.

“A claim for tortious interference with contractual relations 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.”  (Internal quotation marks omitted.)   Appleton v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d 1059 (2000).   Connecticut courts have “long recognized a cause of action for tortious interference with contract rights or other business relations ․ [The Supreme Court has held, however, that] not every act that disturbs a contract or business expectancy is actionable ․ [F]or a plaintiff to successfully prosecute such an action it must prove that the defendant's conduct was in fact tortious.   This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ [A]n action for intentional interference with business relations ․ requires the plaintiff to plead and prove at least some improper motive or means ․ The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification ․ In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the actor.”  (Citations omitted;  internal quotation marks omitted.)  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805–06, 734 A.2d 112 (1999).

In the present case, the plaintiffs allege that, by virtue of a contract for the purchase and sale of real estate dated October 17, 2007, Law, and her husband, Philip Law, acquired mineral rights in a number of parcels of real property, all of which are located in Thompson, Connecticut.   The plaintiffs further allege that the contract was prepared by the Laws' attorney, Borner, who knew of the conveyance of such mineral rights and that Borner, at such time, was the CEO of Putnam Savings and an incorporator of Windham North.   Further, the plaintiffs allege that Borner's actual knowledge of the plaintiffs' mineral rights is imputed to the defendants, Putnam Savings and Windham North, by virtue of his position with each corporate entity.   Finally, the plaintiffs have alleged that despite having actual knowledge of the plaintiffs' mineral rights, the defendants have either liened, or acquired ownership interests in said properties, and refuse to recognize the plaintiffs' rights therein, to the plaintiffs' detriment.   Accordingly, the plaintiffs have adequately pleaded facts which, when read in a light most favorable to the plaintiffs, allege a sufficient cause of action for tortious interference with contractual rights.

Likewise, the plaintiffs have sufficiently alleged a cause of action for trespass.   It is well settled that in order to prevail on a cause of action for trespass, the plaintiff must prove the essential elements of the tort.  “The essential elements of an action for trespass are:  “(1) ownership or possessory interest in land ․ (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest;  (3) done intentionally;  and (4) causing direct injury.”  Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427, 657 A.2d 732 (1994) [11 Conn. L. Rptr. 349], citing Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916).   In the present case, as stated in detail above, the plaintiffs have alleged contractual rights to stone and mineral products on certain parcels of real property.   The plaintiffs allege that the defendants were aware of such rights, having been imputed to the defendants through Borner.   Further, the plaintiffs have alleged that the defendants have suppressed such rights by failing to permit the plaintiffs to develop or access the property, causing them harm.   Accordingly, the plaintiffs have adequately pleaded facts which, when read in a light most favorable to the plaintiffs, allege a sufficient cause of action for trespass.

Consequently, the motion to strike as to counts seven, eight and eleven is denied.

II

COUNTS NINE AND TWELVE

CUTPA provides, in relevant part, 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.”  General Statutes § 42–110b(a).  “[T]o prevail on a CUTPA claim, the [plaintiff] must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce ․ and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendant's acts or practices.”  (Citation omitted.)  Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 657, 986 A.2d 278 (2010).

“In general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice.”  (Internal quotation marks omitted.)  Kosiorek v. Smigelski, 138 Conn.App. 695, 712, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).  “The entrepreneurial exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities-advertising and bill collection, for example.   See Haynes v. Yale–New Haven Hospital, 243 Conn. 17, 34–38, 699 A.2d 964 (1997) (reasoning that practice of law and medicine may give rise to CUTPA claims only for entrepreneurial aspects, such as solicitation of business and billing, and not for claims involving issues of competence and strategy).   It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability.   Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature.”  (Internal quotation marks omitted.)  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 782, 802 A.2d 44 (2002) (affirming the granting of a motion to strike a CUTPA claim against an attorney).

In the present case, the CUTPA claims all stem from the alleged conduct of Borner.   This court recently granted a motion to strike count six of the complaint in the present case, a CUTPA claim against Borner, on the ground that alleged acts related to Borner's professional representation and not the entrepreneurial aspect of practicing law, such as billing or solicitation.   See Connecticut Home Properties, LLC v. Putnam Savings Bank, Superior Court, judicial district of Windham, Docket No. CV 12 6005802 (May 28, 2013, Calmar, J.).   The plaintiffs make no new allegations in counts nine or eleven that suggest that the defendants engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce outside of the alleged conduct of Borner.

Consequently, the motion to strike as to counts nine and twelve is granted.

CONCLUSION

For the foregoing reasons, the defendants' motion to strike counts seven, eight and eleven is denied, but the motion to strike counts nine and twelve is granted.

THE COURT

CALMAR, J.

Calmar, Harry E., J.