Judith Kenly v. Don Beach Movers of New London, Inc. et al. (2014)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE FOURTH COUNT OF COMPLAINT (# 103)

By her complaint dated June 10, 2013, the plaintiff Judith Kenly has sued the defendants, Don Beach Movers of New London, Inc., and Don Beach Movers, Inc., doing business as Gardner Moving & Storage, for breach of contract, negligence, conversion and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110g et seq.  (CUTPA).  On September 6, 2013, the defendants moved to strike count four, the CUTPA count.   The plaintiff filed an opposing brief on October 30, 2013.   The motion was argued on November 4, 2013.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).   A motion to strike does not admit legal conclusions or the correctness of opinions.   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Viewing the allegations of count four in this light, the essential facts are as follows.

The defendants own and operate a storage facility known as Gardner Moving and Storage in New London.   The defendants held themselves out to the public, including the plaintiff, for storage services “for one item or [the] entire house hold” and to have a “state of the art warehouse” providing “a clean, organized and secured warehouse to store belongings worry free.”   On or about March 11, 1976, the plaintiff placed over 400 of her goods in storage with the defendants, for a monthly charge, which the plaintiff paid for over thirty-eight years, receipt of which the defendants acknowledged by an invoice/statement sent to the plaintiff.¹  The defendants never notified the plaintiff of any “issues with the condition” of her goods in storage, particularly that any of her property was in a condition other than as originally delivered to the defendants.   In 2003, the plaintiff observed her goods in storage.   In August of 2011, when she did so again, she discovered that many of her good were damaged and destroyed.²

As part of their agreement with the plaintiff, the defendants were to “safe-keep plaintiff's goods.”   The plaintiff performed her obligations under the agreement by paying the defendants' storage fees.   The defendants cannot return the plaintiff's goods to her in substantially the same condition they were in when they were entrusted to the defendants.   The defendants breached the agreement by allowing the goods to be damaged, to the plaintiff's damage.

By holding themselves out to the public as a storage warehouse and accepting the plaintiff's goods for safekeeping, the defendants had a duty to maintain and protect those goods.   The damage, destruction or loss of the plaintiff's goods breaches a duty by which breach the plaintiff has been damaged.

The defendants were entrusted with the plaintiff's goods and failed to maintain them.   On more than one occasion, the defendants moved some or all of the plaintiff's goods to different locations within the warehouse where they were not as protected.³  In doing so, the defendants jeopardized the plaintiff's goods without her authority.   The plaintiff never authorized the defendants to move the goods to a location other than where they had been safely stored.⁴  The defendants' unauthorized actions harmed the plaintiff.

DISCUSSION

The defendants move to strike count four on the ground that it alleges insufficient facts to constitute a claim for violation of CUTPA.   The court agrees.

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (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—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of fairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness).”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).   The plaintiff may avoid the requirements of the “cigarette rule” by pleading facts sufficient to establish the defendant's deceptive trade practices.   See Glazer v. Dress Barn, Inc., 274 Conn. 33, 82–83, 873 A.2d 929 (2005);  see also Independence Ins. Service Corp. v. Hartford Life Ins. Co., United States District Court, Docket No. 3–04–CV–1512 (JCH) (D.Conn. March 31, 2006).   Not every business error, not even every breach of contract, constitutes a violation of CUTPA.  Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571, 845 A.2d 417 (2004).

Construed broadly and in the manner most favorable to their sufficiency as a CUTPA violation, the facts alleged in count four—none in addition to previous counts—make out no violation of the “cigarette rule.”   Nor do they show deception by the defendants in trade or business.   That the defendants claimed their storage facility was “worry free” is ordinary commercial puffery.   See Davies v. General Tours, Inc., 63 Conn.App. 17, 38, 774 A.2d 1063 (2001) ( “[F]avorable comments by sellers with respect to their products are universally accepted and expected in the market place ․ and do not give rise to liability”).   That was not a warranty or factual representation.   Indeed, it appears that the plaintiff's goods were stored without damage for twenty-seven years from 1976 to her 2003 inspection.   To make out a claim for violation of CUTPA, the plaintiff must allege conduct that violates some legally established concept of unfairness or is immoral, unethical, oppressive or unscrupulous.   Deception might qualify as any of those.   But more is required than the error, bad luck or even incompetence that is apparent from count four.

For these reasons, the defendants' motion is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The complaint uses the singular article “an” before “invoice/statement.”   Whether the plaintiff is alleging that such a document was sent once or more often is unclear but unimportant to the present analysis..  FN1. The complaint uses the singular article “an” before “invoice/statement.”   Whether the plaintiff is alleging that such a document was sent once or more often is unclear but unimportant to the present analysis.

FN2. Count one of the complaint does not allege that any of the plaintiff's goods were missing.   Count two, for negligence adds “or lost” after “damaged, destroyed ․”.  FN2. Count one of the complaint does not allege that any of the plaintiff's goods were missing.   Count two, for negligence adds “or lost” after “damaged, destroyed ․”

FN3. Paragraph 27 alleges, “[b]y doing so, the defendants took the plaintiff's good from locations where they had not been damaged, and moved them to locations where they were not as protected, in an exclusion of the plaintiff's rights to the goods.”   Even construing “in an exclusion of the plaintiff's rights to the goods” broadly and in favor of the legal sufficiency of count four, that is a legal conclusion.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN3. Paragraph 27 alleges, “[b]y doing so, the defendants took the plaintiff's good from locations where they had not been damaged, and moved them to locations where they were not as protected, in an exclusion of the plaintiff's rights to the goods.”   Even construing “in an exclusion of the plaintiff's rights to the goods” broadly and in favor of the legal sufficiency of count four, that is a legal conclusion.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN4. The plaintiff does not allege that the defendants agreed not to move her goods..  FN4. The plaintiff does not allege that the defendants agreed not to move her goods.

Cole–Chu, Leeland J., J.