Marjorie Partch v. Wilton Meadows Health Care Center Corp. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 112.00)

I. INTRODUCTION AND SUMMARY OF FACTS

On March 8, 2013, the plaintiff, Marjorie Partch, filed her second revised complaint (complaint) in which she alleges the following facts against the defendant Wilton Meadows Health Care Center Corp. In 2004, the plaintiff moved from Vermont to Norwalk, Connecticut to care for her mother, Dorothy Partch (Partch), a task the plaintiff undertook for six years between 2004 and 2010.   During this time, the plaintiff also came to reside at her mother's residence.

On February 3, 2005, Partch gave the plaintiff a durable power of attorney and also made the plaintiff her health care agent and attorney-in-fact for healthcare decisions.   In addition, Partch designated the plaintiff to be her conservator, should one become required.

Partch suffered a major stroke on April 7, 2010.   As a result, she was transferred to the defendant health care facility.   At the time of Partch's admittance to the defendant's health care facility, the plaintiff informed the defendant that her mother had executed a power of attorney and advanced conservatorship indicating her authorization for the plaintiff to act on her behalf as stipulated in those documents.   The defendant retained copies of the documents evidencing the same.   In early June of 2010, the defendant learned that Partch's Medicare benefits would soon terminate and it recommended that the plaintiff remove Partch from its facility and explore the option of in-home care.   Thereafter, the defendant learned that Partch possessed substantial assets, including her personal residence.   Accordingly, the defendant altered its previous recommendation that Partch be discharged and, instead, prepared an application for the appointment of a conservator.   The defendant erroneously represented on the application that Partch had not appointed a health care agent and that the defendant did not know whether Partch had executed a durable power of attorney.

On July 27, 2010, the Probate Court granted the application and appointed non-party Matthew Caputo as conservator over Partch, effectively precluding the plaintiff from making any medical decisions on behalf of her mother.¹  In addition, Caputo elected to confine Partch to the defendant's healthcare facility instead of returning Partch to her home, despite Partch's desire to do so.   Caputo also evicted the plaintiff from Partch's home.²  The plaintiff alleges as a result of the foregoing that she suffered financial loss, the loss of her residence, emotional damages, and damage to her close personal relationship with her mother.

Based upon the above, the plaintiff alleges the following causes of action:  Count one—negligence;  Count two—intentional misrepresentation;  Count three—negligent misrepresentation;  Count four—a violation of General Statutes 42–110g, the Connecticut Unfair Trade Practices Act (CUTPA);  Count five—intentional infliction of emotional distress.

Following this court's denial of the defendant's motion to dismiss (# 106);  see Partch v. Wilton Meadows Health Care Center Corp., Superior Court, judicial district of Fairfield, Docket No. CV–12–6029435–S (August 2, 2013, Sommer, J.) [56 Conn. L. Rptr. 684];  the defendant filed the present motion to strike (# 112) and accompanying memorandum of law (# 113) on September 9, 2013.   The defendant moves to strike all counts of the plaintiff's complaint and the plaintiff's prayer for relief in the form of treble damages.   The plaintiff filed her objection (# 116) on November 1, 2013.   The court heard oral argument on the short calendar on November 4, 2013.   Further facts will be recited as necessary.

II. LEGAL STANDARD

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39.  “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).   Connecticut courts have “long have eschewed the notion that pleadings should be read in a hypertechnical manner.   Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties ․ Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012).

Thus, a motion to strike “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).  “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).

The defendant presents one argument that is applicable to four of the five counts of the complaint, as well as a number of arguments that are specific to a single count of the complaint.   The court will address these in turn.

III. ANALYSIS

A. Arguments Common to Counts One, Two, Three, and Five

The defendant argues with respect to counts one, two, three, and five of the plaintiff's complaint that these counts fail to state a cause of action because they are each based upon an alleged fraud upon the Probate Court.   The defendant contends that fraud upon the court cannot support a cause of action.   The plaintiff responds that the false allegations made to the Probate Court affected the plaintiff directly.   The plaintiff also argues that this issue was already decided in the court's earlier memorandum of decision on the defendant's motion to dismiss, when the court analogized the present cause of action to one in which an injured party had a claim against another for fraudulently causing the arrest of the injured party.   See Partch v. Wilton Meadows Health Care Center Corp., supra, Superior Court, Docket No. CV–12–6029435–S.³

Fraud on the court is not a recognized cause of action in Connecticut because a plaintiff alleging such a fraud cannot establish that he or she relied upon a false misrepresentation.   See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777–79, 802 A.2d 44 (2002).   The court does not agree with the defendant that counts one, two, three, and four must be stricken on the ground that they are each based upon allegations of fraud upon the court.  “The interpretation of pleadings is always a question of law for the court.”  (Internal quotation marks omitted.)   Grenier v. Commissioner of Transportation, supra, 306 Conn. 536.   None of the counts challenged by the defendant on this ground attempt to allege a cause of action for fraud upon the court, nor does the plaintiff anywhere attempt to recover that type of discrete injury.   That is to say, the plaintiff is not attempting to recover on behalf of the court.   Any injury to another party that may be gleaned from the allegations of the plaintiff's complaint, including any injury to the Probate Court, is incidental to the causes of action that the plaintiff does allege.

Accordingly, the motion to strike is denied insofar as the issue of fraud upon the court is concerned.

B. Count One:  Negligence

The defendant presents three arguments with respect to count one:  that the plaintiff has failed to allege a cause of action for negligent infliction of emotional distress,⁴ that the plaintiff has failed to allege that the defendant owed the plaintiff a duty and that count one is barred by the economic loss doctrine.   The court addresses these arguments out of order, beginning with the question of duty.

First, the defendant argues that the plaintiff has failed to allege that the defendant owed the plaintiff any duty because the plaintiff did not have a direct relationship with the defendant.   Thus, the defendant argues, it was not foreseeable to the defendant that its actions could have caused harm to the plaintiff.   The defendant also argues, relying upon the decisions of courts of other states, that a health care facility has no duty to a patient's relatives with respect to the financial aspects of a patient's treatment.   The plaintiff responds, again relying upon the court's August 2, 2013 memorandum of decision, that the court has already concluded that the plaintiff has claimed a redressable injury.⁵

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Internal quotation marks omitted.)  Jarmie v. Troncale, supra, 306 Conn. 589.

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   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 ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result.”  (Internal quotation marks omitted.)  Jarmie v. Troncale, supra, 306 Conn. 590.

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for we recognize that duty is not sacrosanct in itself ․ but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”  (Internal quotation marks omitted.)  Jarmie v. Troncale, supra, 306 Conn. 590.

In the present case, the plaintiff has alleged that she suffered the following harms as a result of the defendant's allegedly negligent conduct:  eviction from her home, financial losses both due to the eviction and subsequent litigation, a violation of the power of attorney Partch had given to the plaintiff, and emotional losses due to damage to her close personal relationship with her mother which the court addresses below.   The court agrees with the defendant that it was not foreseeable to the defendant that its conduct could lead to harm of the general nature alleged by the plaintiff for the following reasons.

In the present context, the question of duty can be viewed through two lenses;  indirect duty and direct duty.   Indirect duty can be described as a duty owed to the plaintiff, but which duty is based upon conduct committed by a defendant against a third party.   For the purpose of this motion, the court accepts as established that the defendant disregarded the power of attorney and advanced conservatorship executed by Partch.   Although the defendant may have been able to actually foresee that its conduct could cause the various harms claimed by the plaintiff, the court question for the court is whether the circumstances presented are sufficient to establish an indirect duty to the plaintiff.

Connecticut courts have carefully circumscribed the duties owed by health care facilities to the relatives of patients.   For example, although there is no directly applicable Appellate or Supreme Court authority on the issue, the majority of the Superior Courts have held that Connecticut does not recognize a general cause of action for bystander emotional distress within the context of medical malpractice.   See, e.g., Maffe v. Banker, Superior Court, judicial district of Fairfield, Docket No. CV–10–6010305–S (May 1, 2013, Bellis, J.) (56 Conn. L. Rptr. 86, 90) (collecting cases;  concluding that majority viewpoint, which declines to recognize such a duty, has the better argument).   These courts base their conclusion upon the notion that damages to a relative of a patient at a healthcare facility are simply too attenuated to be foreseeable, and allowing such duty could produce inconsistent results.  Id.

This court has also recently reached a similar conclusion in a somewhat different context.   In Costello v. Yale New Haven Health Services Corp., Superior Court, judicial district of Fairfield, Docket No. CV–13–6032324–S (December 13, 2013, Sommer, J.), this court concluded that a hospital did not owe a duty to the relatives of a patient to safeguard the patient's personal property.

The restriction of duties owed to relatives of patients is further supported by the law of at least one other state.   For example, in Mraz v. Taft, 85 Ohio App.3d 200, 619 N.E.2d 483 (1993), the Ohio Appellate Court concluded that a health care facility did not owe a patient's relative a duty to give financial advice.   Accordingly, the court concludes that the defendant did not owe an indirect duty to the plaintiff because it was not foreseeable that harm to the plaintiff was a natural result of the defendant's allegedly tortious conduct vis a vis the plaintiff's mother and the probate court.   Based on the above analysis as applied to the facts alleged by the plaintiff, the court declines to find that the defendant owed an indirect duty to the plaintiff.

Respecting the existence of a direct duty, the plaintiff contends that she has brought a claim that is designed to recover for conduct that directly affected her;  that is to say, tortious conduct that was committed against her.   The majority of the allegedly tortious conduct contained in the complaint, however, was directed against Partch or the Probate Court, not the plaintiff.   Respecting all such conduct, the plaintiff cannot state a cause of action for negligence because the defendant did not violate a duty to the plaintiff.   The only conduct alleged by the plaintiff that was arguably taken directly against the plaintiff was that the defendant was responsible for the appointment of the outside conservator who effected the plaintiff's eviction from the house and also disregarded the power of attorney executed by Partch in which she authorized the plaintiff to act on her behalf.

Addressing the eviction, the plaintiff has not attempted to allege a cause of action for wrongful and/or negligent eviction.   Accordingly, the plaintiff has not stated a cause of action in relation to her eviction from the house.⁶

As to the power of attorney which Parch executed, “[o]ur Supreme Court has held with respect to a Power of Attorney that the agent's authority is defined by the Power of Authority document.  Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981).   The principal can limit the power of his agent.  Conte v. Dwan Lincoln–Mercury, Inc., 172 Conn. 112, 125, 374 A.2d 144 (1976).   The scope of [the agent's] agency [depends] on the construction of the terms of the Power of Attorney, the purpose of the agency and the circumstances existing at the time of its creation.  Bank of Montreal v. Gallo, 3 Conn.App. 268, 274, 487 A.2d 1101 (1985).”  (Internal quotation marks omitted.)   Bannister v. Bannister, Superior Court, judicial district of Middlesex, Docket No. CV–06–5001356–S (December 18, 2006, McWeeny, J.).   Connecticut courts interpreting powers of attorney apply the same principles as construction of contract.   Flor v. B. Bourgeois Antiques, LLC, Superior Court, judicial district of Litchfield, Docket No. CV–08–5004882–S (February 5, 2010, Pickard, J.).   See also, Bank of Montreal v. Gallo, 3 Conn.App. 268, 273, 487 A.2d 1101 (“[a] written power of attorney constitutes a formal contract of agency and creates a principal-agent relationship” [internal quotation marks omitted] ), cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985);  Gerardo v. Laraia, Superior Court, judicial district of New Britain, Housing Session, CVN–9809–1696–BU (February 6, 2001, Tanzer, J.) (power of attorney interpreted as contract);  Consolidated Ass'n. of the Birches at Foxon, Inc. v. Gaetano, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH–9508–44160 (January 4, 1996, Jones, J.) (16 Conn. L. Rptr. 191) (same).

The plaintiff alleges that Partch granted the plaintiff a durable power of attorney on February 3, 2005, designating the plaintiff as Partch's attorney-in-fact for all healthcare decisions.   The power of attorney itself, which is attached to the complaint, states, in relevant part:  “I, Dorothy S. Partch ․ do hereby appoint Marjorie Partch ․ my attorney(s)-in-fact to act:  First:  In my name place and stead in any way which I could do, if I were personally present ․” (Emphasis omitted.).   Partch's health care instructions, which are also attached to the complaint, provide further, in relevant part:  “These are my health care instructions ․ together with the appointment of my health care agent and my attorney-in-fact for health care decisions, and the designation of my conservator of person for future incapacity.   As my physician, you may rely on any decisions made by my health care agent, attorney-in-fact for health care decisions or conservator of my person, if I am unable to make a decision for myself ․ I appoint Marjorie Partch ․ to be my health care agent and my attorney-in-fact for health care decisions.”  (Emphasis omitted.).

The language of the power of attorney and health care instructions provide that the plaintiff stands in the shoes of Partch for all health care decisions.   It does not, however, authorize the plaintiff to bring an action on behalf of herself.   Rather, the plaintiff is only authorized to act on behalf of her mother.

The common law does recognize, in limited circumstances, the right of an agent to bring an action on her own behalf for acts taken against her while in the course of her agency.   For example, 2 Restatement (second), Agency, Actions of Tort by Agents against Third Persons § 374, p. 164 (1958), provides:  “(1) The fact that an act, otherwise a tort upon an agent, is committed by another while the agent is conducting the affairs of the principal, or because of the agency relation, does not prevent the agent from maintaining an action against the other on [her] own account.  (2) A servant or other agent has no action of tort because another has tortiously harmed the principal or destroyed [her] business, unless the other acted for the purpose of harming the agent's interest.  (3) A servant or other agent has a cause of action against one who, without privilege, purposely causes the principal not to perform his contract of employment or not to continue the employment.”

The commentary explains that “[a]n agent whose personal interests have been interfered with can maintain an action as though he were not at the time employed as an agent, and this right is free from interference by the principal.   Thus, if an agent is assaulted while protecting his principal's goods, or if he is defamed because of his relations with the principal, the resulting cause of action belongs to him and to him only ․ Moreover, an agent in possession of property can maintain an action for harm to his possessory interests.   An agent is entitled to exercise many of the privileges of [her] master ․ and a third person may be liable for interference with the agent while in the exercise of such a privilege ․ Thus, [for example] a household servant may have an action against a landlord who negligently fails to keep in repair a common stairway on which the servant is hurt.”   2 Restatement (Second), supra, § 374, comment (a), p. 164–65.   The commentary also notes, however, that “[i]t is not within the scope of the Restatement of this Subject to state generally what acts are tortious.”  Id., 164.   Thus, although the Restatement recognizes the right of an agent to bring an action on her own behalf, the Restatement does not purport to identify the precise circumstances under which such an action may be maintained, and the Restatement still requires the plaintiff to establish a cognizable cause of action.   For example, the Restatement provides as an illustration that an agent may bring an action for assault, should she be assaulted in the course of her agency.   The Restatement does not, however, recognize or otherwise create a duty from a third party to an agent to not interfere with the agency, except in the context of an employment contract, which is not alleged here.

Accordingly, despite the plaintiff's allegation that the defendant negligently interfered with the plaintiff's ability to act as her mother's agent, the plaintiff nevertheless fails to allege a legally sufficient cause of action under a theory of common law negligence.   The defendant did not owe a duty to the plaintiff to avoid interfering with an agency relationship given to the plaintiff by Partch.   Instead, it is incumbent upon Partch to bring a cause of action to redress any such interference.⁷  Because the court has found that the defendant did not owe the plaintiff a duty, the court does not address the defendant's economic loss argument.

Finally, the defendant argues that count one can be construed as alleging a cause of action for negligent infliction of emotional distress, but does so insufficiently because the plaintiff has failed to allege that the defendant knew or should have known that its actions would cause emotional distress that would result in illness or bodily harm.   The defendant also argues, based upon caselaw from other states, that an action for negligent infliction of emotional distress cannot lie between a health care facility and a relative of a patient because there is no direct relationship between the plaintiff and the health care facility.   The plaintiff responds that she has not attempted to allege in count one a cause of action for negligent infliction of emotional distress but, rather, common law negligence.

In Connecticut, “[t]o prevail on a claim of negligent infliction of distress, the plaintiff is required to prove that (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  (Internal quotation marks omitted.)  Hall v. Bergman, 296 Conn. 169, 182 n.8, 994 A.2d 666 (2010).   The court agrees with the defendant that, to the extent count one may be construed as alleging a cause of action for negligent infliction of emotional distress, the plaintiff has not sufficiently alleged a cause of action because the plaintiff does not bring forth allegations showing that the defendant should have foreseen that its conduct would cause distress severe enough to result in illness or bodily harm.

C. Count Two:  Intentional Misrepresentation

The defendant concedes that a fraudulent misrepresentation can be made indirectly, but argues that the allegations of count two are nonetheless insufficient because the plaintiff has failed to allege that she personally relied upon the alleged misrepresentation.   Rather, the misrepresentations identified by the plaintiff were each made to the Probate Court, the only entity that could have relied upon them.   The plaintiff responds that no direct relationship is required for the tort of intentional misrepresentation.   The plaintiff argues further that the misrepresentations made to the Probate Court did affect the plaintiff, analogizing the situation to an action for false arrest.⁸

“The essential elements of an action in common law fraud ․ are that:  (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 that false representation to his injury ․ [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance.”  (Internal quotation marks omitted.)  Simms v. Seaman, 308 Conn. 523, 548, 69 A.3d 880 (2013).   See also, 3 Restatement (Second) of Torts, § 533, p. 147 (1977) (representation made to a third person).

The court agrees with the defendant that the plaintiff has failed to allege sufficiently a cause of action for intentional misrepresentation because the plaintiff does not allege that she personally relied upon any of the misrepresentations outlined in the complaint.   The plaintiff's analogy to false arrest is inapposite despite the fact that the plaintiff draws the analogy from this court's prior memorandum of decision in this case.   There, this court addressed the defendant's motion to dismiss for lack of standing and, accordingly, analyzed whether the plaintiff had alleged an injury personal to herself.   In reaching its conclusion, this court found that a combination of factors, including the allegation of damage to a close personal relationship, did represent a personal injury sufficient to grant the plaintiff standing.   The analysis did not, however, reach the issue of whether the plaintiff had alleged sufficiently a cognizable cause of action to redress such an injury.   The court answers that question here and, with respect to count two, answers it in the negative.

Accordingly, the motion to strike is granted as to count two.

D. Count Three:  Negligent Misrepresentation

The defendant argues that count three fails for the same reason as count two;  because the plaintiff has not alleged that she relied upon any representation that was allegedly negligently made.   The plaintiff's response is also the same;  that the misrepresentations made to the Probate Court did affect the plaintiff, analogizing the situation to an action for false arrest.⁹

“Guided by the principles articulated in § 552 of Restatement (Second) of Torts, [the Supreme Court] has long recognized liability for negligent misrepresentation ․ [The court has] 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 ․ 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.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Coppola Construction Co., Inc. v. Hoffman Enterprises L.P., 309 Conn. 342, 351–52, 71 A.3d 480 (2013).

The court's conclusion is the same with respect to count three as it is with respect to count two.   The defendant is correct that the plaintiff has not alleged that she relied upon any representations that were made to the Probate Court.   The fact that she was “affected” by such representations is immaterial to the analysis.

Applying the principles set forth in the Restatement above and by our Supreme Court in Coppola, supra, the court finds that the plaintiff has failed to state a claim for negligent misrepresentation.   Accordingly, the motion to strike is granted with respect to count three.

E. Count Four:  CUTPA

The defendant presents one argument concerning the scope of CUTPA and two arguments concerning the availability of damages pursuant to CUPTA.   With respect to the scope of CUTPA, the defendant argues as a threshold matter that count four must be stricken because the plaintiff had no business relationship with the defendant and was not a consumer of goods or services offered by the defendant.   Rather, the only party who possessed any such relationship with the defendant was Partch.   Continuing, with respect to damages, the defendant argues first that CUTPA does not allow recovery for the cost of having to litigate something.   Second, the defendant contends that the plaintiff has failed to allege an ascertainable loss because she does not allege that she possessed a legally recognized interest in her mother's home and because CUTPA does not permit recovery for emotional damages.

In response, the plaintiff argues that she was injured by the defendant's alleged false misrepresentations in the same manner as a plaintiff who alleges false advertising.   The plaintiff also argues that the complaint alleges financial hardship as a result of the plaintiff having been evicted from the home, and that the court has already concluded, in its previous memorandum of decision, that the plaintiff has alleged an injury.   The issue is whether the plaintiff has stated an actionable claim in order to recover for the alleged injury.

General Statutes § 42–110g(a) provides, in pertinent part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages.”  General Statutes § 42–110b provides further, in relevant part:  “(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. (b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 USC 45(a)(1)), as from time to time amended.”

CUTPA requires that the defendant have committed the offending act in the conduct of any “trade” or “commerce,” defining these two terms together as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.”  General Statutes § 42–110a(4).   Although it is commonly stated that “a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or to her.”   (Internal quotation marks omitted.)  Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 727, 627 A.2d 374 (1993), recently, however, the Supreme Court has held “[w]e previously have stated in no uncertain terms that CUTPA imposes no requirement of a consumer relationship.   In McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 473 A.2d 1185 (1984), we concluded that CUTPA is not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury.”  (Internal quotation marks omitted.)  Fink v. Golenbock, 238 Conn. 183, 215, 680 A.2d 1243 (1996).   Thus, today, the Supreme Court interprets the “trade” or “commerce” language of §§ 42–110b and 42–110a(4) to merely require some sort of business or commercial relationship with the defendant.   See, e.g., Ganim v. Smith and Wesson, 258 Conn. 313, 373, 780 A.2d 98 (2001).

In the present case, the plaintiff does not allege that she has any sort of business or commercial relationship with the defendant.   Instead, the defendant possessed a relationship only with Partch.   Accordingly, the defendant's motion to strike is granted as to count four.   Because the plaintiff has failed to allege wrongdoing in the conduct of trade or commerce, the court does not address whether the plaintiff has pleaded sufficiently that she suffered an ascertainable loss.

F. Count Five:  Intentional Infliction of Emotional Distress

The defendant argues that the court must strike count five of the complaint because the allegations therein do not support a cause of action for intentional infliction of emotional distress.   Specifically, the defendant contends that the allegations of the complaint, when taken as true, do not allege conduct that surpasses all bounds of decency.   Further, the defendant argues, the allegations of the complaint do not show intent on the part of the defendant to inflict emotional distress.   Finally, the defendant argues that although there is no Connecticut case law addressing intentional infliction of emotional distress within the context of conduct to a third person by a health care facility, courts in other states addressing the issue context have found that the cause of action does not lie.

The plaintiff responds that the actions of the defendant directly affected the plaintiff and, accordingly, should be construed by the court as conduct directly against the plaintiff, not as conduct against a third party.   The plaintiff argues further that our society does not tolerate the loss of one's home based upon fraud.

“In order for the plaintiff to prevail in a case for liability ․ [alleging intentional infliction of emotional distress], four elements must be established.   It must be shown:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury ․” (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012).

“Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!  ․ Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, supra, 304 Conn. 527.

The court agrees with the defendant that the allegations of the complaint are insufficient to support a cause of action for intentional infliction of emotional distress.   The allegations of the complaint, even when construed in the light most favorable to the plaintiff, fail to allege sufficiently an intent on the part of the defendant to cause distress to the plaintiff.   Therefore, although the allegations of the complaint, when taken as true, are disturbing in that they allege defendant misled the probate court with the goal of obtaining the financial benefit of applying the proceeds of the sale of plaintiff's mother's house to her care, the fact remains that none of the specific conduct of which the plaintiff complains was directed at the plaintiff.   It is not sufficient, as the plaintiff argues, that the conduct affected the plaintiff because, even accepting that allegation as true, the complaint fails to allege intentional infliction of emotional distress.   Accordingly, the motion to strike is granted as to count five.

Finally, the defendant argues that paragraph two of the plaintiff's prayer, which seeks treble damages, must be stricken because Connecticut does not permit treble damages based upon intentional misrepresentation.   Because the court has already concluded that count two of the complaint must be stricken, the court also strikes paragraph two of the prayer for relief.

IV. CONCLUSION

For the foregoing reasons, the motion to strike is granted as to counts one through five.

SOMMER, J.

FOOTNOTES

FN1. Based upon the representations of the parties, Caputo has since submitted his resignation as conservator to the Probate Court..  FN1. Based upon the representations of the parties, Caputo has since submitted his resignation as conservator to the Probate Court.

FN2. Specifically, although the court remains mindful of its obligation to base its decision solely upon the facts pleaded in the complaint, the court finds it helpful to take judicial notice of the fact that non-party Wilton Meadows Limited Partnership, an affiliate of the defendant, previously brought a successful action against Partch and Caputo to recover $109,399 in unpaid medical fees.   See generally, Wilton Meadows Limited Partnership v. Partch, Superior Court, judicial district of Fairfield, Docket No. CV–11–5029523–S.   It was through this action that Partch's home was ultimately attached and which ultimately caused the plaintiff to leave her mother's home.   The defendant possessed a right to bring such an action and the plaintiff does not and cannot contend that Partch was not obligated to the defendant for the amount of unpaid fees.   In this sense, it cannot be argued that Partch's substantive rights were violated by the defendant..  FN2. Specifically, although the court remains mindful of its obligation to base its decision solely upon the facts pleaded in the complaint, the court finds it helpful to take judicial notice of the fact that non-party Wilton Meadows Limited Partnership, an affiliate of the defendant, previously brought a successful action against Partch and Caputo to recover $109,399 in unpaid medical fees.   See generally, Wilton Meadows Limited Partnership v. Partch, Superior Court, judicial district of Fairfield, Docket No. CV–11–5029523–S.   It was through this action that Partch's home was ultimately attached and which ultimately caused the plaintiff to leave her mother's home.   The defendant possessed a right to bring such an action and the plaintiff does not and cannot contend that Partch was not obligated to the defendant for the amount of unpaid fees.   In this sense, it cannot be argued that Partch's substantive rights were violated by the defendant.

FN3. Although the court rejects the defendant's argument for other reasons, it takes this opportunity to note that the court's prior decision on the defendant's motion to dismiss does not require the court to conclude that the plaintiff has pleaded sufficiently a cause of action.   The court's previous inquiry considered only whether the plaintiff had pleaded a personal injury to a legally protected interest.   The court has not previously considered whether the plaintiff has met her burden of pleading a legally sufficient cause of action to recover upon that injury.   The two inquiries are separate and distinct, and the distinction is important because “[w]hile it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.”   (Internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 599, 50 A.3d 802 (2012)..  FN3. Although the court rejects the defendant's argument for other reasons, it takes this opportunity to note that the court's prior decision on the defendant's motion to dismiss does not require the court to conclude that the plaintiff has pleaded sufficiently a cause of action.   The court's previous inquiry considered only whether the plaintiff had pleaded a personal injury to a legally protected interest.   The court has not previously considered whether the plaintiff has met her burden of pleading a legally sufficient cause of action to recover upon that injury.   The two inquiries are separate and distinct, and the distinction is important because “[w]hile it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.”   (Internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 599, 50 A.3d 802 (2012).

FN4. Count one can be construed as alleging both negligent infliction of emotional distress and common law negligence.   This places the court in a difficult position.   Although each count should contain only one cause of action, in practice, it is not uncommon for a count to contain more than one.   The proper method to have addressed this deficiency, however, would have been via a request to revise, now foreclosed by our rules of practice, not a motion to strike..  FN4. Count one can be construed as alleging both negligent infliction of emotional distress and common law negligence.   This places the court in a difficult position.   Although each count should contain only one cause of action, in practice, it is not uncommon for a count to contain more than one.   The proper method to have addressed this deficiency, however, would have been via a request to revise, now foreclosed by our rules of practice, not a motion to strike.

FN5. See footnote 3 of this opinion..  FN5. See footnote 3 of this opinion.

FN6. The court makes no determination as to whether a cause of action for “negligent eviction” is cognizable in Connecticut..  FN6. The court makes no determination as to whether a cause of action for “negligent eviction” is cognizable in Connecticut.

FN7. Accordingly, the plaintiff, as Partch's agent, could, for example, very likely bring an action in Partch's name to enforce Partch's decision to appoint the plaintiff as her agent..  FN7. Accordingly, the plaintiff, as Partch's agent, could, for example, very likely bring an action in Partch's name to enforce Partch's decision to appoint the plaintiff as her agent.

FN8. The plaintiff draws this analogy from this court's previous decision on the defendant's motion to dismiss.   The analogy is inapposite here.   See footnote 3 of this opinion..  FN8. The plaintiff draws this analogy from this court's previous decision on the defendant's motion to dismiss.   The analogy is inapposite here.   See footnote 3 of this opinion.

FN9. See footnote 3 of this opinion..  FN9. See footnote 3 of this opinion.

Sommer, Mary E., J.