David Warfield et al. v. LLC (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (# 106)

The plaintiffs, David and Karen Warfield, by their third revised complaint dated May 20, 2014 (the complaint), have sued the defendant Northeastern Exteriors, LLC, doing business as Rhino Shield North East, in five counts arising from a contract for work by the defendant on the plaintiffs' property in Norwich, Connecticut.   On June 16, 2014, the defendant moved to strike the third, fourth, and fifth counts of the complaint and the plaintiffs' prayer for punitive damages.   The plaintiffs filed an opposing brief on August 15, 2014.   The motion was argued on October 14, 2014.

FACTS

In ruling on a motion to strike, 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) (complaint is construed broadly;  necessarily implied allegations are deemed true).   Viewing the complaint in this light, the basic facts pertinent to the subject counts are as follows.

On or about August 18, 2012, the plaintiffs entered into a contract with the defendant for the application of a “Rhino Shield” coating to the exterior of their historic residence and related preparations, including the safe removal of lead paint.

The facts added in the third count, for negligent misrepresentation, are that the defendant represented to the plaintiffs that it had the necessary training, experience and qualifications to remove lead paint without contaminating the soil at the property and that “Your crew chief has been provided with all of the information needed to perform your project.”   When those representations were made, the defendant knew or should have known they were false, but made them anyway to induce the plaintiffs to enter into the contract, which the plaintiffs did.

The key facts in the fourth count, for breach of warranty, are that the defendant made two expressed warranties to the plaintiffs, including an unconditional lifetime guaranty that defective material would be replaced without charge.   The defendant breached that warranty by failing to use the proper materials (“failed to use conforming materials and/or substituted and used nonconforming materials;” ¶ 8(d)).

The fifth count is for violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq.  (CUTPA).  In addition to the facts already stated, the key facts in the fifth count are that the defendant was, at all pertinent times, engaged in trade or commerce in this state;  the defendant intentionally made the representations of fact mentioned above to deceive or defraud the plaintiffs;  and the defendant not only breached the contract with the plaintiffs but abandoned the job after damaging their property (e.g., damaged trees and shrubs and discharged lead and other contaminants on the plaintiffs' property;  ¶ 6 (first count ¶ 5)).

DISCUSSION

A motion to strike contests the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   A motion to strike is confined to the facts alleged.   See Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   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).   If any facts provable under the explicit and implied allegations support a cause of action, the motion must be denied.   See Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

I. The Third Count.

“[A]n 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 ․ [A]n 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.”  (Citation omitted;  internal quotation marks omitted.)  Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 351–52, 71 A.3d 480 (2013).

The defendant argues that the third count fails to state a claim of negligent misrepresentation because, first, none of the alleged representations were of fact.   Second, the defendant argues that, even if the statements are regarded as factual, there is no allegation that the defendant knew or should have known the statements were false.

The allegation in paragraph 5 of the third count is one of fact:  the defendant “had the necessary training, experience, and qualifications to remove the lead paint during the prep process to avoid any such contamination.”   So is the allegation in paragraph 6(g) that the defendant's representative “Brunstrom told the plaintiffs:  ‘Your crew chief has been provided with all of the information needed to perform your project.’  “ While the rest of paragraph 6 consists of inactionable representations of future facts (essentially promises), opinions and sales puffery, the actionable facts alleged are enough for present purposes.   If any part of a count is sufficient, it is neither necessary nor appropriate to strike superfluous allegations.   See Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06–CV–12–6014260–S (October 31, 2012) (54 Conn. L. Rptr. 887, 889) (only an entire claim, not portions of a count, may be subject to a motion to strike).

As for the second ground, the third count, construed in favor of its legal sufficiency;  New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747;  does allege in paragraphs 5 and 6(g), along with opinion and puffery, the facts cited above.   It is enough that the complaint alleges in paragraph 7 that the defendant knew or should have known that its representations were false when made.   For present purposes, the possibility that the plaintiffs may fail to prove that those representations were false is irrelevant.

II. The Fourth Count.

The fourth count of the complaint, entitled “Warranty (See agreement Attachment B),” ¹ alleges that two separate, expressed warranties were breached by the defendant.  (Apparently, since the plaintiffs cite no statutory basis, the fourth count is a common-law claim.   See Practice Book § 10–3(a).)   The defendant's motion to strike the fourth count is based on the plaintiff's failure to allege that a warranty existed, as required for a common-law claim.   See Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 351, 525 A.2d 57 (1987) (plaintiff bears the burden of proving existence of an express warranty);  Chipperini v. Hoffman of Hartford, Inc., Superior Court, judicial district of New London, Docket No. CV–13–6017444–S (July 16, 2014) (58 Conn. L. Rptr. 537, 539) (elements of common-law breach of warranty include that there was a warranty or representation).   It is true that the fourth count alleges a conditional “warranty to be issued 45 days after the completion of the job and issuance of job completion certificate” and then alleges failure of that condition:  the defendant never completed the job.   The plaintiffs, however, also allege in this count, at paragraph 7, that, “[i]n connection with said contract, the defendant extended expressed lifetime guarantee to replace defective materials free of charge.”   This warranty is separately alleged, is supported by language in the contract attached to the complaint,² and, in the next paragraph, the fourth count does refer to the plural “warranties.”   The fourth count does allege the existence of an expressed warranty.³  The insufficient allegations of another warranty, the condition of which was not met, does not matter.   See Ames v. East Brook F, LLC, Superior Court, judicial district of New London, Docket No. CV–13–6016325–S (December 17, 2013) (superfluous parts of sufficient count are not subject to motion to strike).

III. The Fifth Count.

The defendant argues that the fifth count of the complaint is legally insufficient to state a claim under CUTPA.  “[I]n determining whether a practice violates CUTPA, [our Supreme Court has] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission 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 unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors, or other business persons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.”  (Internal quotation marks omitted.)   Naples v. Keystone Building & Development Corp., 295 Conn. 214, 227–28, 990 A.2d 326 (2010).   The plaintiffs may avoid the requirements of the “cigarette rule” by pleading facts sufficient to establish that the defendant engaged in 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).

The fifth count essentially aggregates allegations from the first, third, and fourth counts, as summarized above.   Construed in the manner most favorable to their sufficiency as a CUTPA violation, the fifth count, though inelegant,⁴ is sufficient.   So construed, and although not every business error or 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);  the fifth count essentially alleges a classic “bait and switch”:  promises made to the consumer to induce a purchase ⁵ and delivery of something very different.   This meets the requirements of the first two elements of the cigarette rule and, alternatively, of a common-law claim for deceptive practices.   See Glazer v. Dress Barn, Inc., supra.   The statutory requirement of “ascertainable loss”;  General Statutes § 42–110g(a);  captured in the third cigarette rule element is adequately alleged in paragraph 16 of the fifth count.⁶

IV. Punitive Damages.

The defendant challenges the legal sufficiency of the plaintiffs' prayer for punitive damages ⁷ on the ground that is unsupported by any of the allegations of the complaint.   Specifically, citing Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 139–40, 30 A.3d 703, cert. granted, 303 Conn. 904, 905, 31 A.3d 1179, 1180 (2011) (appeals withdrawn January 26, 27, 2012), the defendant claims there is no allegation in the complaint indicating the defendant's actions “reveal a reckless indifference to the rights of others.” ⁸  Pursuant to General Statutes § 42–110g(a) and (d),⁹ a prevailing plaintiff in a CUTPA action may be awarded punitive damages and reasonable attorneys fees.   Since the court must deny the motion to strike the plaintiffs' CUTPA count, there is no good cause to strike the prayer for relief specifically authorized by CUTPA.

As another reason to strike the prayer for punitive damages, the defendant argues that the point of a punitive damages award under CUTPA is to deter unfair trade practices;  Bridgeport Harbour Place I, LLC v. Ganim, supra, 131 Conn.App. 140;  and that the facts of this case do not “point to any large pattern of conduct in need of deterrence.”   This argument is without merit either alone or to bolster the first ground.   This is not a motion for summary judgment, let alone a trial.   Having found that the fifth count is sufficient as a CUTPA claim, it is not for this court, now, to weigh the allegations, let alone the evidence, and take any prayer authorized by CUTPA away from the trial court.

For the foregoing reasons, the defendant's motion to strike is denied in its entirety.

Cole–Chu, J.

FOOTNOTES

FN1. The court cannot tell to what document, “Attachment B,” the plaintiffs refer.   No page of the attachments to the complaint is detectably so labeled.   However, this does not matter for present purposes..  FN1. The court cannot tell to what document, “Attachment B,” the plaintiffs refer.   No page of the attachments to the complaint is detectably so labeled.   However, this does not matter for present purposes.

FN2. “COMPANY'S GUARANTEE:  Lifetime Residential ․ Warranty[.]  Will replace defective material within the guarantee free of charge.”   See Attachment A to the complaint, third page..  FN2. “COMPANY'S GUARANTEE:  Lifetime Residential ․ Warranty[.]  Will replace defective material within the guarantee free of charge.”   See Attachment A to the complaint, third page.

FN3. The plaintiffs less clearly allege breach of this warranty.   They do allege that the defendant “failed to use conforming materials and/or substituted and used non-conforming materials.”   The court construes that allegation in favor of the sufficiency of the fourth count.  New London County Mutual Ins. Co. v. Nantes, supra.   Also, the court could not grant the present motion for failure to allege a breach because such failure is not a ground of the motion.   See Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987)..  FN3. The plaintiffs less clearly allege breach of this warranty.   They do allege that the defendant “failed to use conforming materials and/or substituted and used non-conforming materials.”   The court construes that allegation in favor of the sufficiency of the fourth count.  New London County Mutual Ins. Co. v. Nantes, supra.   Also, the court could not grant the present motion for failure to allege a breach because such failure is not a ground of the motion.   See Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).

FN4. The fifth count incorporates much mere puffery and repeats two paragraphs..  FN4. The fifth count incorporates much mere puffery and repeats two paragraphs.

FN5. The plaintiffs allege statements were made with the intention of inducing them “to take action.”   Construed in a manner most favorable to the count's sufficiency, the court can logically infer from the surrounding factual allegation that “to take action” means to enter into an agreement with the defendant..  FN5. The plaintiffs allege statements were made with the intention of inducing them “to take action.”   Construed in a manner most favorable to the count's sufficiency, the court can logically infer from the surrounding factual allegation that “to take action” means to enter into an agreement with the defendant.

FN6. Paragraph 16 is the incorporated paragraph 12 from the third count:  “The defendant's negligent misrepresentations, statements, wrongful acts, and misconduct caused the plaintiffs to suffer damages.”.  FN6. Paragraph 16 is the incorporated paragraph 12 from the third count:  “The defendant's negligent misrepresentations, statements, wrongful acts, and misconduct caused the plaintiffs to suffer damages.”

FN7. Practice Book § 10–39(a) provides, in part, that a “motion to strike shall be used whenever any party wishes to contest:  ․ (2) the legal sufficiency of any prayer for relief ․”.  FN7. Practice Book § 10–39(a) provides, in part, that a “motion to strike shall be used whenever any party wishes to contest:  ․ (2) the legal sufficiency of any prayer for relief ․”

FN8. This being a motion to strike, the court disregards the defendant's claim that there is no evidence of “wanton and malicious injury.”.  FN8. This being a motion to strike, the court disregards the defendant's claim that there is no evidence of “wanton and malicious injury.”

FN9. General Statutes § 42–110g(a) provides in relevant part that “[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”  Section 42–110g(d) further provides that “[i]n any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery.”.  FN9. General Statutes § 42–110g(a) provides in relevant part that “[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”  Section 42–110g(d) further provides that “[i]n any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery.”

Cole–Chu, Leeland J., J.