Peter C. White v. John J. Carta, Jr. et al. (2013)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO STRIKE (# 138)

The Defendants John J. Carta, Jr. et al., move to strike the entire second amended revised complaint.   The defendants allege that counts one through twelve, sounding in breach of contract “fail to allege adequate consideration and performance,” and counts thirteen through seventeen “merely allege legal conclusions without and (sic) factual basis.”   The defendants further claim that count seventeen, an alleged CUTPA violation, is not applicable to the relationship described in the complaint.   The defendants submitted a memorandum in support of the motion.   The plaintiff filed an objection to the motion and a supporting memorandum in opposition.   The parties did not request argument.

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]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  America Progressive Life & Health Ins. Co. Of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, Supra, 262 Conn. 498.   The 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, supra, 292 Conn. 120.

The motion to strike requires no factual findings by the court.  Broadnax v. City of New Haven, 270 Conn. 133, 851 A.2d 1113 (2004).  “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.”  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).

“If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike”;  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  but “[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).   With regard to counts one through twelve, the court has determined that the claims sounding in breach of contract should not be stricken in that plaintiff has alleged sufficient specific contractual obligations that have not been met.

“Without some allegations of predicate facts, statements setting forth ․ merely the statutory requirement become conclusory.   A pleading must fail if it contains only unsupported conclusions of law without the required underlying facts.   And, for purposes of a motion to strike, legal conclusions are not admitted ․ [M]erely inserting the magic words of ․ acts of ․ misconduct by the defendant ․ [without] stating the factual basis for that claim is inadequate for purposes of a motion to strike.”  (Footnote omitted;  citations omitted;  internal quotation marks omitted.)   Colonial Restaurant Supply, LLC v. Travelers Indemnity Co. Of America, Superior Court, judicial district of New Haven, Docket No. CV 07 5009224 (June 12, 2007, Skolnick, J.T.R.).

As to count thirteen, the defendant alleges that by merely inserting the phrase “all of the above constitute a breach of the covenant of good faith and fair dealing,” the plaintiff sets forth a mere conclusion of law.  “[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term ․ To constitute a breach of the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  (Internal quotation marks omitted.)  Renaissance Management Co., Inc. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240 (2007).  “Bad faith has been defined in our jurisprudence in various ways.   Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose ․ [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 563–64, cert. denied, 294 Conn. (2009).  “Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient.”  Alexandru v. Strong, 81 Conn.App. 68, 81, cert. denied, 268 Conn. 906 (2004).

“[T]here is a split of authority among Superior Courts as to what factual allegations are sufficient to constitute the element of bad faith ․ The first line of cases requires specific allegations establishing a dishonest purpose or malice.   In alleging a breach of the covenant of good faith and fair dealing, courts have stressed that such a claim must be alleged in terms of wanton and malicious injury [and] evil motive ․ The second line of cases generally holds parties to a less stringent standard requiring that a plaintiff need only allege sufficient facts or allegations from which a reasonable inference of sinister motive can be made ․ Even where courts have used an inference analysis, however, they have looked to allegations that the conduct at issue was engaged in purposefully.”  (Citations omitted;  internal quotation marks omitted.)   Shiff v. Van Wyk, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. 08 5008214 (July 9, 2009, Pavia, J.).   When previously examining whether a plaintiff had sufficiently alleged a cause of action for breach of the covenant of good faith and fair dealing, one court stated that “[t]he failure to make insurance payments, by itself, does not establish a claim of lack of good faith.”   New England Fertility Institute v. CNA Commercial Ins. Co., Superior Court, Complex litigation docket at Stamford–Norwalk at Stamford, Docket No. X08 CV 00 0181244 (June 10, 2003, Adams, J.).

In the present case, applying the requirements as set forth above, the plaintiff's specific factual allegations are bare as to the defendant's intent.   The plaintiff has alleged an unsupported conclusion of law.   The motion to strike is therefore granted as to count thirteen.

Count fourteen of the complaint alleges “negligent misrepresentation.”   “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.”  Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).  “It must be established that there was a false representation in order for a plaintiff to prevail on a negligent misrepresentation claim ․ A plaintiff also is required to show that he reasonably relied on the misrepresentation.”  (Citation omitted.)  Biro v. Matz, 132 Conn.App. 272, 284–85, 33 A.3d 742 (2011).

The plaintiff's specific factual allegations are bare as to the falsity of defendant's alleged representations.   The plaintiff has alleged an unsupported conclusion of law.   The motion to strike is granted as to count fourteen.

Count fifteen of the complaint alleges “Fraud,” or “intentional misrepresentation.”  “Intentional misrepresentation is synonymous with fraudulent misrepresentation.”  (Internal quotation marks omitted.)   Heller v. LaPorte & Associates, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 0079784S (November 10, 2003, Scholl, J.).  “The essential elements of a cause of action in fraudulent misrepresentation are:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon the false representation to his injury.”  (Internal quotation marks omitted.)   Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 522, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).   “Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ․ because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient.”  (Citation omitted;  internal quotation marks omitted.)   Chiulli v. Zola, 97 Conn.App. 699, 709, 905 A.2d 1236 (2006).  “In an action based on fraudulent non disclosure the plaintiff must prove not only the non disclosure but this reliance on it.”  Creelman v. Rogowski, 152 Conn. 382, 385, 207 A.2d 272 (1965).

“Fraud by non disclosure expands on the first three of [the] four elements of fraud and 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 ․ To constitute fraud by non disclosure, 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 ․ The duty to disclose known facts is imposed on a party insofar as he voluntarily makes disclosure.   A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 454–55, 767 A.2d 732, cert. denied, 225 Conn. 949, 769 A.2d 64 (2001).   In other words, “[a] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose.”  (Internal quotation marks omitted.)  Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 180, 757 A.2d 14 (2000).

The plaintiff's specific factual allegations are bare as to the requirements for an action for intentional misrepresentation.   He has alleged an unsupported conclusion of law.   The motion to strike is granted as to count fifteen.   As to count sixteen, the plaintiff has alleged “unjust enrichment.”   The court has determined that this claim should not be stricken in that, construing the complaint in the manner most favorable to sustaining the legal sufficiency, the plaintiff has alleged sufficient factual claims to support a cause of action.

As to count seventeen, the plaintiff has no objection to the motion to strike.

In summary, the motion to strike is denied as to counts one through twelve and count sixteen.   The motion to strike is granted as to counts thirteen, fourteen, fifteen, and seventeen.

Vitale, J.

Vitale, Elpedio N., J.