Brian Meade v. LLC (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 115)

The opening paragraph of plaintiff's amended complaint declares that “while the Plaintiff was a tenant at property owned by the Defendants, Defendants and their servants attempted an unlawful self-help eviction.   Plaintiff is suing for redress of that unlawful action and related offenses”.   He proceeds to set forth his claims in seven counts, all of which begin by incorporating a nineteen-paragraph preamble labelled “Facts.”   Briefly summarizing the “Facts,” plaintiff alleges that he was a tenant in an apartment owned by the defendant limited liability company, Briarwood Acquisitions, LLC, of which the defendant, Roger Lehrberg is a managing member.   The “Facts” include allegations that on unspecified dates in December of 2010 the defendants' agents disrupted electrical service to the demised premises, and on February 19, 2011, acting pursuant to a “fraudulently obtained building permit,” entered the dwelling unit on a false pretext and, employing chain saws, cut holes in an exterior wall of the unit thus exposing its occupant to harsh winter conditions.

On the basis of these actions,¹ his first six counts allege that 1) defendants committed an assault upon the plaintiff;  2) their acts amounted to battery;  3) their February entry into the unit constitutes unlawful trespass and detainer;  4) the defendants violated “CUPTA” (sic), presumably meaning “CUTPA,” formally known as the Connecticut Unfair Trade Practices Act, violated his right to peaceful enjoyment of the premises, and constituted a trespass;  and 5) the defendants intentionally and 6) negligently inflicted emotional distress upon plaintiff.   Count seven is a claim for punitive damages.   He demands a total of $1,161,400 in damages, plus interest and penalties.

Defendant Briarwood now moves to strike all counts except number 4, and the claim for relief as well.   Lehrberg joins its arguments, and additionally moves to strike the entire complaint as to himself on the basis that his role as a member of a limited liability company is insufficient to confer liability upon him for the acts of the company.   Each party has submitted a memorandum of law addressed to this motion, and when the motion was printed on the short calendar of August 4 the parties waived oral argument and asked that this court take the motion and objection on the papers.

I) Nature of a Motion to Strike

Connecticut is a fact-pleading jurisdiction, and § 10–1 of our Practice Book requires that each pleading contain a plain and concise statement of the material facts on which the pleader relies.  Practice Book § 10–39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted.   Briefly stated, “[a] motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder”;  Kumah v. Brown, 307 Conn. 620, 626 (2013).   But a motion to strike may properly be granted “if the complaint alleges mere conclusions of law that are unsupported by the facts alleged”;  Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498 (2003).

The court must accept as true all well pleaded facts and construe them in the light most favorable to pleader.  Lestorti v. DeLeo, 298 Conn. 466, 472 (2010).   If facts provable in the complaint would support a cause of action, the motion to strike must be denied.  Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002).   The court cannot rely on facts outside of the pleading;  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 347–48 (1990);  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7 (2008);  nor on grounds not specified in the motion.  Gazo v. Stamford, 255 Conn. 245, 259 (2001).

II) Specific Details of the Motion to Strike

The moving defendants are represented by the same counsel, and have filed a single motion to strike.   As required by Practice Book § 10–39, the motion clearly sets forth their claims as to the legal sufficiency of each of those counts which they challenge, as well as the claim for relief.   Additionally, the motion articulates Lehrberg's assertion that the existence of the limited liability company shields him from claims of this type.   The court will examine each of their arguments separately.

1) Count One—Assault

The plaintiff alleges that the conduct of the defendants constituted an assault.  “A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another;” Dewitt v. John Hancock Mut. Life Ins. Co., 5 Conn.App. 590, 594 (1985);  Perez v. Minore, 147 Conn.App. 704 (2014).

The fact pattern comprising the assault alleged here is, to say the least, unusual.   Plaintiff states that several agents of the defendant “armed” with a “fraudulently obtained building permit” appeared at his door on February 19, entered the apartment, and, using chain saws, removed an outside wall.   There is no allegation that the entry was obtained by force or threat.   The complaint does not allege that any gestures were made towards plaintiff with these tools.   It is silent as to any words the parties might have exchanged during whatever time it might have taken for these events to elapse, except to say that plaintiff's protests eventually resulted in his being arrested for breach of the peace.

The court will not speculate on what motivated defendants to proceed with this task at this time and under these circumstances.   Conceivably there is an exculpatory explanation for the events described, if they even occurred, but discerning that explanation is not the court's function in ruling upon a motion to strike.   On the state of the concrete facts alleged, the court disagrees with defendants' contention that the acts alleged could not be interpreted as assaultive.   Accordingly, the motion to strike the first count must be denied.

In so ruling, the court leaves for another day plaintiff's argument that the maxim “Defendant takes the Plaintiff as he finds him” allows his subjective “fear threshold” to be the standard which the jury can use, as well as the question whether this case will ever reach a jury.

2) Count Two—Battery

The plaintiff alleges that the conduct of the defendant constituted a battery.  Simms v. Chaisson, 277 Conn. 319, 331 (2006), informs us that “liability for battery arises ‘if [a] a person acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and [b] a harmful contact with the person of the other directly or indirectly results,’ “ citing 1 Restatement of Torts (Second), supra, § 21.   The complaint alleges no direct contact between the parties.   Plaintiff opposes the motion to strike on the basis that his subsequent arrest flowing from the defendants' actions satisfies the requirement that “a harmful contact with the person” be alleged.

He cites but one case for this proposition, namely Whitley v. Andersen, 37 Colo.App. 486, 551 P.2d 1083 (1976).   Having gone to the trouble of locating an intermediate level case almost forty years old from a different state, plaintiff ought to have explained how the facts of that case match his.   Consider this recitation at page 1084 of the Pacific Reporter citation (page 487 of the Colorado edition):  “[plaintiff] was struck in the jaw by defendant Andersen while standing in front of her locker at school ․ [Plaintiff] was then allegedly shoved towards her locker by defendant LeGault ․ She suffered a fractured jaw as a consequence of the blow delivered by Andersen;  no physical injuries were attributed to her physical contact with LeGault.”  “No physical injuries” is a far cry from “no physical contact.”

Additionally, he claims that Whitley supports an argument that defendants' damage to his personal property constitutes a personal attack upon his person.   This court cannot find that conclusion expressly or by implication within that decision.   The court will not look further than the pronouncement of our Supreme Court to locate authority indicating that an allegedly false report to police resulting in an allegedly illegal arrest satisfies the “harmful contact” prong of the civil action for battery.   Plaintiff is incorporating overtones of false arrest, malicious prosecution, and liability for tortious activity of third parties into what ought to be a simple and direct pleading, and the motion to strike must be granted as to the second count.

3) Count Three—Trespass and Detainer

Thus captioned, plaintiff blends into one count two causes of action, one recognized at common law and the other having a basis in statute.   He asserts that “Defendants' actions constitute an unlawful trespass” (¶ 27), and then, immediately, “Defendants' actions and ensuing events constitute wrongful detainer” (¶ 28).

Defendants address the statutory action in their motion.   They argue that the action arises by virtue of Conn. Gen.Stat. § 47a–43, which in creating the action for wrongful entry and detainer also sets forth the procedure whereby such an action must be initiated, and limits the time period in which such a case must be brought to six months following the entry complained of.   Plaintiff responds that he is not proceeding according to the statute (¶ 28 to the contrary notwithstanding), but is suing in trespass only, and the limitations which the statute imposes are irrelevant.

“The tenant's remedy for a lock-out, an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer;” Karatonis v. East Hartford, 71 Conn.App. 859, 862 (2002).   Plaintiff correctly points out that “occupancy was not severed as a result of the trespass;” memorandum of law in opposition, page 2;  and that the statutory citation is therefore inapplicable.   Taking plaintiff at his word, the motion to strike ought to be granted as to paragraph 28,² only.

4) Count Five—Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress, according to DeLaurentis v. City of New Haven, 597 A.2d 807, 220 Conn. 225, 266–7 (Conn.1991), depends upon the establishment of four elements:  “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 a 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.”

Defendants' principal argument as to this count is that plaintiff has not alleged conduct that is “extreme and outrageous” on their part.   They seem to be overlooking the incorporated nineteen paragraphs of the “Facts,” which include allegations that men armed with chain saws and possessing fraudulent papers entered plaintiff's apartment and cut a hole in the wall over his protests.

In Petyan v. Ellis, 200 Conn. 243, 253 (1986), the Court had defined “extreme and outrageous” conduct to be that “exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.”   Lest the application of those adjectives be left purely to the eye of the beholder, it has been held that a trial court must exercise a gatekeeping function before submitting the question in a particular case to the jury;  see, Szekeres v. Szekeres, 126 Conn.App. 829, 847 (2011).  “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!’ “;  Appleton v. Board of Education, 254 Conn. 205, 210–11 (2000).

By whatever standard one applies, this court holds that entering one's home on a pretext, armed with chain saws, and then proceeding to chop the wall down passes the initial cut as to what constitutes outrageous and extreme conduct.

Defendants also attack the fifth count as missing allegations that defendants intended to inflict emotional distress or that defendants knew that their conduct would cause emotional distress;  these elements may be inferred from the behavior objectively described.   Finally, they claim the fifth count is devoid of allegations that their conduct was the actual cause of the distress experienced by plaintiff, or that his distress was severe.   The court agrees that a direct cause and effect relationship between the defendants' behavior and the plaintiff's subsequent medical conditions is not directly expressed, but believes that the necessary connection between the two is capable of being inferred from the narrative plaintiff supplies.   Whether any of it can be proven is not the issue at the moment.

The motion to strike must be denied as to the fifth count.

5 Count Six—Negligent Infliction of Emotional Distress

Szekeres, supra, also involved a claim of negligent infliction of emotional distress, and the court ruled that to prevail on that cause of action “a 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;” 126 Conn.App. 829, at 844–5, citing Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).   Defendants' primary argument is that the sixth count is lacking in language that makes these necessary allegations.   Again, the court reads the nineteen paragraphs of incorporated “Facts” as sufficiently satisfying plaintiff's pleading requirements in this respect.   Defendants' outline of the deficiencies they note in this sixth count tracks the material discussed with respect to the fifth, and need not be reiterated.   For the same essential reasons, the motion to strike the sixth count should be denied.

6) Count Seven—Punitive Damages

There is not much bulk to the seventh count.   After incorporating the allegations of the “Facts,” plaintiff adds a single paragraph (¶ 40) claiming punitive damages under a) “CUPTA”;  b) “Sections 47a–43, et seq.”, and c) “52–215.”   The count is captioned “punitive damages.”   Its form immediately generates two questions:  first, does this amount to an impermissible foreshadowing of the content of a prayer for relief (see, Practice Book Rule 10–20:  “the complaint ․ shall contain a concise statement of the facts constituting the cause of action and, on a separate page, a demand for relief”), or is it a separate but miscaptioned count sufficiently stating the plaintiff's claims under one of these statutes?   Defendants' motion assumes the latter, and addresses the particulars of this paragraph on their merits, and the court will do likewise.   The second question, the same as arose with respect to the third count, is how to treat one count alleging three separate statutory claims, and the court will respond as it did to the third, addressing each claim separately.

a. The CUTPA “Count”

CUTPA, the Connecticut Unfair Trade Practices Act, is codified at §§ 42–110a et seq. of the General Statutes.  “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, real or personal, as a result of the use or employment of a [prohibited] method, act or practice;’ “ Stevenson Lumber Co. Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213–4 (2007).   Numerous cases have examined the reach of this statute to the context involved here, namely landlord-tenant law.   When a landlord engages in intentionally tortious conduct to recover possession of leased premises, as here alleged, he has engaged in a prohibited act or practice bringing this statute into play;  Ulbrich v. Groth, 310 Conn. 375, 410 (2013) (“a finding of intentional, reckless, unethical or unscrupulous conduct ․ will support a CUTPA claim under the second prong of the cigarette rule”).   This court disagrees with defendants' argument that the complaint “fails to set forth any aggravating circumstances”;  chain saws are an unacceptable alternative to a summary process writ.³

All that Rule 10–20 requires is a concise statement” of the facts constituting a cause of action.   Paragraph 40, following plaintiff's incorporation of the “Facts,” is a model of concision but in the court's opinion a minimally sufficient statement of an action under the CUTPA statute.

b. The Wrongful Entry and Detainer Statute “Count”

In response to the defendants' observation regarding plaintiff's third count that in alleging wrongful entry and detainer he had completely bypassed the procedural requirements of Section 47a–43, and moreover that his complaint arrived at court more than two years following the applicable limitation period on such an action, plaintiff countered that that count really sounds in trespass and thus these statutory criteria are immaterial.   Now, it appears, he nevertheless intends to rely upon the statute.   He cannot have it both ways.   No punitive damages can be awarded on the basis of this statute, given the prior allegations of the complaint and his argument with respect to this issue.

c. Section 52–215

C.G.S. § 52–215 is the statute controlling how court dockets are organized.   It is utterly silent as to punitive damages and provides no basis for a claim that they be awarded, or not, in any given case.

d. Procedural Defect Involved in the CUTPA Count

Defendants have only raised the foregoing substantive challenges to the seventh count, which suffice to allow a decision striking the references to § 47a–43 and to § 52–215.   As to the CUTPA count, the court further notes that the complaint fails to certify that plaintiff has served the office of the Attorney General or the Commissioner of Consumer Protection, as required by C.G.S. § 42–110g(c).  This omission is not jurisdictional;  “failure to comply with § 42–110g(c) does not create a jurisdictional defect”;  Vasiliou v. Russian Lady Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV116022732 (January 25, 2012;  Domnarski, J.).

7) Claim for Relief

Defendants challenge the claim for relief on account of where it is located, and on account of what it contains.

They correctly point out that the amended complaint fails to segregate the “demand for relief” on a separate page.   On this basis, they move to strike the prayer for relief in its entirety.   The court agrees that the form in which plaintiff has expressed his claims and his demand for relief runs afoul of Practice Book Rule 10–20, and of the statute governing that rule, C.G.S. § 52–91, which mandate that the demand for relief be set forth on a separate page of the complaint.   There is a split of authority on the superior court as to what consequences attend upon this impropriety.   In some cases—for instance, Usui v. Heymann, Superior Court, judicial district of Fairfield, Docket No. FSTCV 11 6011402.  (November 19, 2013;  Tobin, J.T.R.)—courts have stricken the complaint.   Other courts, for instance in Andrews v. Metro Auto and Tow, Superior Court, judicial district of Hartford, Docket No, CV 07–5013619 (March 27, 2008;  Dubay, J.), have held that striking the complaint is not warranted:  “[t]his error, however, is insufficient to sustain the motion to strike ․ [C.G.S.] § 52–123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer ․ in an original writ, summons, or complaint ․ When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error.”  (Citations omitted.)

This court believes that the defect highlighted is a matter of form which could be addressed by a request to revise under Practice Book Rule 10–35:  “Whenever any party desires to obtain ․ (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading.”   The court will not strike the complaint on this basis.

Defendants also claim that elements within the demand for relief are individually inappropriate and ought to be stricken, specifically the demands 1) for reimbursement under CUTPA;  4) for attorney fees;  and 5) for a jury trial.   As to the CUTPA demand, their argument builds upon their objection to that portion of the seventh count, an objection which this court has overruled.   Also, CUTPA claimants may be awarded attorney fees, and hence the demand therefor is not legally insufficient.   Finally, defendants are also correct in noting that a litigant's demanding a jury trial is not going to provide him with a trial in that format unless he also files the required certificate (see JDCV–11) and pays the statutory fee (C.G.S. § 52–258), but plaintiff's inclusion of such a demand within the prayer for relief is a harmless excrescence which, like the misplacement of the demand itself, may be addressed via a request to revise.

8) Lehrberg's Claim of Corporate Shield

Lastly, the individual defendant moves to strike the entire complaint on the basis that plaintiff has not alleged any ground for piercing the corporate veil furnished by his affiliation with Briarwood Acquisitions, LLC. He relies upon C.G.S. § 34–133 which provides in pertinent part that “a person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.”

Plaintiff's response is to contend that because corporations (he relies upon Chapter 601, which treats of “corporations,” instead of Chapter 613, treating of “limited liability companies”), are only authorized to perform lawful acts, and those which he alleges here are unlawful, there is no corporate shield to pierce.   He is entitled to cite authority under the corporations statute, at least, since the principle that “[a] corporation is a separate legal entity ․ also is applicable to limited liability companies;” Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 147 (2002).   He cites none, however, which speaks to the pleading deficiency or lack thereof in this case;  practically speaking, he has not briefed the issue in any meaningful way and has left the court to decide on the strength of Lehrberg's memorandum alone whether he has persuasively shown that his motion should be granted.

A plaintiff attempting to pierce the corporate (or limited liability company) veil soon runs up against the reality, articulated, for instance, in Sturm v. Harb Development, LLC, 298 Conn. 124, 132 (2010), that “[i]t is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position.”   That case involved something other than a veil-piercing attempt.   Plaintiff had sued the limited liability company and its officer in tort, but the individual was in the suit because the complaint alleged his own individual participation in the tortious activity;  “[w]here, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby ․ Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.”  298 Conn. 124, 133.  (Citations omitted;  internal quotation marks omitted.)

In his rendition of the “Facts,” plaintiff alleges that Roger Lehrberg is a (not the) managing member of Briarwood.   Following this introduction, plaintiff alleges that the team which invaded his premises included a set of individuals not named as parties, and not including Lehrberg, and in fact fails to mention Lehrberg again in any respect.   He is not alleged to have personally participated in the behavior which plaintiff claims occurred, and as a managing member of the company it cannot be presumed that he directed the activity of the team described.   In short, only his managing member status is given as the reason why plaintiff includes him as a defendant in this suit.

As pled, this court finds that the allegations against Lehrberg fall within the general rule set forth in Sturm, and not the exception it recognizes for joint liability between a corporation and a tortfeasor who happens to also be a corporate officer.   Plaintiff has failed to satisfy the requirement of Practice Book Rule 10–1 that a complaint set forth the material facts upon which he attempts to reach a judgment against each defendant named in this case.   His motion to strike should be granted.

III) Conclusion and Orders

1) The motion to strike is granted as to the second count in its entirety, as to paragraph 28 of the third count, as to the seventh count insofar as it is captioned “punitive damages” or alleges violations of C.G.S. § 47a–43 or § 52–215, and as to the entire complaint with respect to Roger Lehrberg, individually;

2) The motion to strike is denied as to the first, fifth, and sixth counts, and as to the demand for relief, further, it is denied with respect to the remainder of the third and seventh counts.

Boland, J.

FOOTNOTES

FN1. The “Facts” include additional allegations relating to a summary process action or actions which defendants filed.   While inappropriate resort to legal process may be tortious under certain circumstances, such an act cannot be construed as an element of the torts of assault, battery, trespass and detainer, or an intentional or negligent infliction of emotional distress.   Since these are the torts actually sued upon, the court will not examine how the allegations relating to legal process relate to the several torts plaintiff has actually pled.   Similarly, the “Facts” include numerous paragraphs detailing plaintiff's alleged injuries;  these, also, are not germane to the causes of action upon which he relies..  FN1. The “Facts” include additional allegations relating to a summary process action or actions which defendants filed.   While inappropriate resort to legal process may be tortious under certain circumstances, such an act cannot be construed as an element of the torts of assault, battery, trespass and detainer, or an intentional or negligent infliction of emotional distress.   Since these are the torts actually sued upon, the court will not examine how the allegations relating to legal process relate to the several torts plaintiff has actually pled.   Similarly, the “Facts” include numerous paragraphs detailing plaintiff's alleged injuries;  these, also, are not germane to the causes of action upon which he relies.

FN2. Since neither party focused upon the hybrid character of this third count, neither raised any issue as to the propriety of the court's striking part though not all of a particular count.   As articulated in Gregory Lucas v. JSN LLC, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV02–0187731 (August 9, 2005, Wilson, J.) [39 Conn. L. Rptr. 764], “[c]ontrary to the plaintiff's claim that the defendant's motion to strike must fail if any part of the pleading or count is viable, ‘most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Only an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense;’ citing Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.) (31 Conn. L. Rptr. 380);  Pinho v. Daly, Superior Court, judicial district of New Britain, Docket No. CV 00500895 (May 3, 2001, Shapiro, J.);   and Cain v. Destefano, Superior Court, judicial district of New Haven, Docket No. CV 98 420347 (December 17, 1999, Zoarski, J.)..  FN2. Since neither party focused upon the hybrid character of this third count, neither raised any issue as to the propriety of the court's striking part though not all of a particular count.   As articulated in Gregory Lucas v. JSN LLC, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV02–0187731 (August 9, 2005, Wilson, J.) [39 Conn. L. Rptr. 764], “[c]ontrary to the plaintiff's claim that the defendant's motion to strike must fail if any part of the pleading or count is viable, ‘most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Only an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense;’ citing Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.) (31 Conn. L. Rptr. 380);  Pinho v. Daly, Superior Court, judicial district of New Britain, Docket No. CV 00500895 (May 3, 2001, Shapiro, J.);   and Cain v. Destefano, Superior Court, judicial district of New Haven, Docket No. CV 98 420347 (December 17, 1999, Zoarski, J.).

FN3. The court notes that while plaintiff alleges economic damages of $1,400 resulting from the alleged incursion, the heart of his complaint is that he suffered grave personal and emotional consequences including that he “felt ill ․ and his health continued to deteriorate” (¶ 15B), that he “was diagnosed with cancer and began a course of chemo and radiation therapy” (¶ 16), and “underwent radical surgery in an effort to treat his cancer” (¶ 17).   It is an unsettled question whether “actual damages” awardable to a successful CUTPA plaintiff include damages for pain and suffering, or emotional distress;  see, Connecticut Practice Series, Volume 11, “Connecticut Unfair Trade Practices Act, etc.,” 2012–2013 edition, § 6.7, generally:  “[l]ess clear is if and to what extent damages for personal injuries ․ can be recovered as ‘actual damages' under [CUTPA] ․ Connecticut trial courts are divided on this issue.   Some courts have held that CUTPA is not designed to furnish rights and remedies in connection with personal injuries.   A majority of trial courts addressing the issue, however, held that damages for personal injuries can be recovered under CUTPA”), and cases cited therein.   More problematic is the concern that plaintiff has fallen prey to the “post hoc ergo propter hoc” fallacy and that ultimately no proximately causal link may be shown to exist between the events of February 19, 2011, and his later health conditions.   The present motion has not raised either of these questions, and hence the court will not further analyze this issue on this occasion..  FN3. The court notes that while plaintiff alleges economic damages of $1,400 resulting from the alleged incursion, the heart of his complaint is that he suffered grave personal and emotional consequences including that he “felt ill ․ and his health continued to deteriorate” (¶ 15B), that he “was diagnosed with cancer and began a course of chemo and radiation therapy” (¶ 16), and “underwent radical surgery in an effort to treat his cancer” (¶ 17).   It is an unsettled question whether “actual damages” awardable to a successful CUTPA plaintiff include damages for pain and suffering, or emotional distress;  see, Connecticut Practice Series, Volume 11, “Connecticut Unfair Trade Practices Act, etc.,” 2012–2013 edition, § 6.7, generally:  “[l]ess clear is if and to what extent damages for personal injuries ․ can be recovered as ‘actual damages' under [CUTPA] ․ Connecticut trial courts are divided on this issue.   Some courts have held that CUTPA is not designed to furnish rights and remedies in connection with personal injuries.   A majority of trial courts addressing the issue, however, held that damages for personal injuries can be recovered under CUTPA”), and cases cited therein.   More problematic is the concern that plaintiff has fallen prey to the “post hoc ergo propter hoc” fallacy and that ultimately no proximately causal link may be shown to exist between the events of February 19, 2011, and his later health conditions.   The present motion has not raised either of these questions, and hence the court will not further analyze this issue on this occasion.

Boland, John D., J.