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striking conversion claim where plaintiffs claimed they "were deprived of the use of [real] property"
Summary of this case from Malick v. J.P. Morgan Chase Bank, N.A.Opinion
No. CV-09-5009664S
August 18, 2011
MEMORANDUM OF DECISION RE DEFENDANTS' "MOTION TO STRIKE, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT" (#146)
The issue is whether the court should grant the defendants' "motion to strike, or, in the alternative, motion for summary judgment." For the following reasons, the court grants the motion to strike as to counts five and fifteen, which allege conspiracy to commit conversion and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), respectively, but denies the motion as to count seven, which alleges conspiracy to commit theft. The court also declines to treat the present motion as both a motion to strike and a motion for summary judgment, as the defendants request. Rather, the court treats the present motion as a motion to strike alone.
FACTS
On October 21, 2010, the plaintiffs, Richard Barretta, Jr. (Richard Barretta) and Barretta Realty Associates, LLC (Barretta Realty), filed a fifteen-count, amended complaint against Christopher Barretta, Barretta Gardens, LLC (Barretta Gardens), Jena Bonazzoli-Barretta, Barretta Enterprises, LLC (Barretta Enterprises), Barretta Property Management, LLC (Barretta Property Management), Barretta Companies, LLC (Barretta Companies) and CLSLA, LLC (CLSLA). Jena Bonazzoli-Barretta is an alleged member and manager of Barretta Enterprises and the sole member and manager of Barretta Property Management and Barretta Companies. The plaintiffs assert that CLSLA is an unincorporated, unregistered business entity used by Christopher Barretta and Jena Bonazzoli-Barretta to hold assets. In counts one and nine, the plaintiffs allege the following relevant facts.
Richard Barretta, one of the plaintiffs, and Christopher Barretta, one of the defendants, are brothers who have been involved in a number of business relationships over the years. In October 2001, Richard Barretta and Christopher Barretta formed Barretta Realty in order to purchase and manage property at 945 North Street in Milford, Connecticut (the North Street property). Each brother contributed half of the cost of the purchase price, and as a result, each received a fifty percent ownership share in Barretta Realty. Since 2001, Christopher Barretta and his wife, Jena Bonazzoli-Barretta (Bonazzoli-Barretta), have operated Barretta Gardens out of the North Street property, solely for their benefit and without paying reasonable rent to Barretta Realty.
On or about August 1, 2008, Christopher Barretta and Bonazzoli-Barretta dissolved Barretta Realty by filing articles of dissolution with the secretary of the state. Both the execution of the dissolution papers and the filing of the dissolution papers were done without Richard Barretta's knowledge, or consent. Thereafter, on November 10, 2008, Christopher Barretta and Bonazzoli-Barretta transferred the North Street property from Barretta Realty to Christopher Barretta through a quitclaim deed. Bonazzoli-Barretta, who has a law degree, prepared the deed, and Christopher Barretta executed it. The deed, which falsely states that Christopher Barretta is the sole member of Barretta Realty, was recorded on the Milford, Connecticut land records on May 11, 2009. The plaintiffs allege that neither Richard Barretta nor Barretta Realty received any consideration for this transaction and that a conveyance tax was not paid on the transfer. The plaintiffs also allege that the quitclaim deed was executed and recorded without Richard Barretta's knowledge or consent.
Moreover, the plaintiffs allege, inter alia, that this action began with a writ, summons and complaint seeking a prejudgment remedy and a disclosure of assets against Christopher Barretta and Barretta Gardens, which the court granted on January 4, 2010. Subsequently, the plaintiffs allege that Christopher Barretta and Bonazzoli-Barretta caused Barretta Gardens to fraudulently transfer assets to Bonazzoli-Barretta, including a security interest in the company's equipment, inventory and assets. Bonazzoli-Barretta subsequently filed a UCC-1 financing statement showing the grant of a security interest from Barretta Gardens to Bonazzoli-Barretta and Barretta Enterprises. Bonazzoli-Barretta and Barretta Enterprises received such interest with knowledge of the plaintiffs' claims against Christopher Barretta and Barretta Gardens, and the plaintiffs allege that these actions were taken to "hinder, delay or defraud" the plaintiffs.
As a result of these allegations, the plaintiffs have filed a fifteen-count complaint. Counts one through four are against Christopher Barretta and sound in: (1) breach of fiduciary duty; (2) accounting and a constructive trust; (3) judicial supervision of winding up; and (4) conversion, respectively. Count six is also against Christopher Barretta and sounds in theft. Counts five and seven are brought against both Christopher Barretta and Bonazzoli-Barretta and sound in conspiracy to commit conversion and conspiracy to commit theft, respectively. Count fifteen is brought against Christopher Barretta, Bonazzoli-Barretta, Barretta Gardens, Barretta Enterprises, Barretta Property Management, Barretta Companies and CLSLA. In count fifteen, the plaintiffs assert a violation of the Connecticut Unfair Trade Practices Act (CUTPA).
The remaining counts are not at issue on the present motion.
On January 19, 2011, Bonazzoli-Barretta, Barretta Enterprises, Barretta Property Management, Barretta Companies and CLSLA (hereinafter the defendants) filed "a motion to strike, or, in the, alternative, a motion for summary judgment." The defendants move to strike counts five, seven and fifteen. Alternatively, the defendants ask the court to grant summary judgment on counts four, five, six and seven. The plaintiffs filed an objection to the defendants' motion on March 29, 2011, to which the defendants filed a reply on May 12, 2011. This matter was heard at the May 16, 2011 short calendar.
DISCUSSION I STANDARD OF REVIEW
"[A] motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) 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 admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technology Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 120.
At the outset, the court notes that it declines to treat the defendants' motion as both a motion to strike and a motion for summary judgment. The standards for such motions are inherently different. A motion to strike must be considered within the confines of the pleadings, while a moving party must provide supporting documentation to prevail on a motion for summary judgment. Thus, the court disregards the defendants' motion for summary judgment and treats the motion as a motion to strike alone.
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).
Even if the court were to treat the present motion as a motion for summary judgment, the defendants would not prevail. The defendants argue that the court should grant summary judgment on counts four, five, six and seven on the grounds that: (1) these counts have been "nullified" because Christopher Barretta subsequently re-transferred the North Street property back to Barretta Realty; and (2) the status of Barretta Realty as a business entity has been previously adjudicated by another trial court. As a result, the defendants claim that there can been no cause of action for conversion or theft. The defendants fail to cite a single legal authority supporting their position that the conversion and theft claims have been "nullified" as a result of these actions. The defendants are required to support their motion with a memorandum of law outlining the claims of law and pertinent legal authority. See Practice Book § 11-10.
II COUNTS FIVE AND SEVEN: CONSPIRACY TO COMMIT CONVERSION AND CONSPIRACY TO COMMIT THEFT
The defendants move to strike counts five and seven, conspiracy to commit conversion and conspiracy to commit theft, respectively, which are based on the conversion and theft claims in counts four and six, respectively. The defendants are moving to strike both counts on the grounds that: (1) the plaintiffs have failed to satisfy the second element of civil conspiracy because the "purported actions taken by [Bonazzoli-Barretta] were neither criminal nor unlawful nor undertaken through unlawful means"; and (2) the plaintiffs fail to state valid causes of action for the underlying torts of conversion and theft. The plaintiffs contend that they have adequately pleaded civil conspiracy and that they have valid causes of action for both underlying torts.
"Under a civil conspiracy theory, the requisite elements are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or unlawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Charter Oak Lending Group, LLC v. August, 127 Conn.App. 428, 447, 14 A.3d 449 (2011). "[A]ll conspirators are civilly liable for the damage resulting from any overt act committed by one of them pursuant to the combination." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 17, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
"[T]o state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d 522 (2005). "Consequently, for a plaintiff to recover on a conspiracy claim, the court must find the facts necessary to satisfy the elements of an independent underlying cause of action." (Internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).
The defendants argue that nothing Bonazzoli-Barretta did was unlawful, and thus, the plaintiffs cannot establish a prima facie case of conspiracy. In count five, the plaintiffs assert, inter alia, that both Christopher Barretta and Bonazzoli-Barretta "agreed to transfer [the North Street property] from Barretta Realty to Christopher and deprive Richard and/or Barretta Realty of the use of the [North Street property] despite Christopher having no lawful claim to sole ownership of such property." The plaintiffs assert similar allegations in count seven. The plaintiffs also assert that Bonazzoli-Barretta prepared the quitclaim deed to assist in the transfer, as well as the articles of dissolution for Barretta Realty.
In their motion to strike and supporting memorandum of law, the defendants focus solely on Bonazzoli-Barretta's actions in preparing the quitclaim deed and the articles of dissolution, and they argue that such actions are not inherently criminal. The defendants fail to acknowledge the plaintiffs' allegation that both Christopher Barretta and Bonazzoli-Barretta agreed to transfer the North Street property and deprive the plaintiffs of the use of the property. Even if Christopher Barretta was the only party that engaged in the physical act of transferring the property by signing the deed to do so, conspirators are liable for "any overt act committed by one of them pursuant to the combination." (Internal quotation marks omitted.) Biro v. Hirsch, supra, 62 Conn.App. 17. Moreover, the defendants fail to provide any supporting case law for the proposition that both conspirators must engage in the unlawful, overt act in order to establish the second element of civil conspiracy. As a result, the plaintiffs have pleaded sufficient allegations to satisfy the second element of civil conspiracy. Thus, the next question is whether the plaintiffs have adequately pleaded the underlying torts at issue.
A Conversion
The defendants argue that count five, conspiracy to commit conversion, must be stricken because the underlying tort of conversion, which is asserted in count four, only applies to chattel and not to real property. The defendants contend that the plaintiffs' claim is based on an assertion of conversion of real property since the plaintiffs argue that Christopher Barretta and Bonazzoli-Barretta improperly transferred the North Street property to Christopher Barretta, such that the plaintiffs were deprived of the use of the property. The plaintiffs argue that they have sufficiently pleaded all of the elements of conversion and that the Connecticut Supreme Court has noted that conversion applies to intangible property rights when those rights are evidenced by written documentation. The plaintiffs rely on Hi-Ho Tower, Inc. v. Com-Tronics, Inc., CT Page 17707 255 Conn. 20, 43, 761 A.2d 1268 (2000), and several Superior Court decisions to support their position.
Conversion is an "unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted; emphasis added) Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). "To establish a prima facie case of conversion, [the plaintiffs must] demonstrate that (1) the material at issue belonged to the [plaintiffs], (2) that [the defendants] deprived the [plaintiffs] of that material for an indefinite period of time, (3) that [the defendants'] conduct was unauthorized and (4) that [the defendants'] conduct harmed the [plaintiffs]." News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837, aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
In Hartlin v. Cody, 144 Conn. 499, 508, 134 A.2d 245 (1957), the Connecticut Supreme Court plainly stated that "[w]rongful conversion can only apply to personal property." (Internal quotation marks omitted.) Since Hartlin, the Connecticut Supreme Court has applied conversion to intangible property in certain instances. For example, in Hi-Ho Tower, the court noted: "In Connecticut, intangible property interests have not traditionally been subject to the tort of conversion, except for those intangible property rights evidenced in a document. See, e.g., Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790 n. 6, 646 A.2d 799 (1994) (conversion of trust account); Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979) (conversion applicable to account passbook)." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 44. The court also noted: "Comment (f) to § 242 of the Restatement (Second) of Torts, however, provides that `in a proper case liability for intentional interference with some . . . kind of intangible rights may . . . be found.'" Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 44. Despite this latter commentary, the court declined to resolve the issue because the jury's interrogatories showed that the plaintiff in that case had not persuaded the jury of its conversion claim. Id.
Since Hi-Ho Tower, at least two trial courts have specifically cited Hartlin when ruling against the recognition of conversion claims as applied to real property. In Rustici v. Malloy, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0164460 (July 1, 2004, Schuman, J.), the court rejected the applicability of conversion when one party asserted that the defendants interfered with and converted the personal and real property of a fire company. The court reached its conclusion after the party asserting the conversion claim conceded that "there can be no conversion of real property." Id. Additionally, in Ventres v. Goodspeed Airport, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0076812 (May 21, 2004, Sferrazza, J.) ( 37 Conn. L. Rptr. 197, 205), aff'd, 275 Conn. 105, 881 A.2d 937 (2005), one issue before the court was whether tree cutting and clearing constituted conversion. Citing Hartlin, the court concluded that conversion does not apply to real property and that land and plants growing on property falls within the definition of real property. Id.
At least one post- Hi-Ho Tower trial court has concluded that an option to purchase real property in a lease could be the subject of a conversion claim. In Zanker Group v. Summerville at Litchfield Hills, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. CV 04 4010223 (July 18, 2006, Munro, J.) [ 41 Conn. L. Rptr. 664], the court denied a motion to strike while considering the issue. In doing so, the court stated and reasoned: "The defendants urge that the lease (and thus the option) is an intangible property right and thus cannot be converted. However, this argument fails to apprehend that in the present case — and unlike Hi-Ho Tower — the property averredly converted is evidenced by a document. As noted above, the plaintiff has alleged that the defendants exercised control and dominion over the lease in a manner that rendered the option worthless. Construing these allegations in the light most favorable to the plaintiff, the inference may reasonably be drawn that the acts of conversion pled involved conduct with respect to the physical lease document that resulted in the option being rendered worthless." Id.
In the present matter, the plaintiffs do not dispute that the subject of their conversion claim is the North Street property, which constitutes real property. Rather the plaintiffs rely on Hi-Ho Tower and Zanker to support their position that conversion applies to the present matter. In doing so, the plaintiffs treat real property and intangible property as one in the same. After reviewing the case law, however, this court concludes that the courts of this state appear to treat real and intangible property as distinct categories. Moreover, the distinction between these categories is critical to the question of whether conversion applies because the Connecticut Supreme Court has specifically stated that "[w]rongful conversion can only apply to personal property." (Emphasis added; internal quotation marks omitted.) Hartlin v. Cody, supra, 144 Conn. 508. In Hi-Ho Tower, the subject of the conversion claim was the right to use the tower for transmission signals, while the subject of the conversion claim in Zanker was the option to purchase real property. In both cases, it appears that intangible, personal property rights were at issue, even though the intangible right in Zanker was also connected to real property. Thus, the present matter is more akin to Rustici and Ventres, which dealt with claims of conversion of real property. As a result, the court grants the motion to strike as to count five.
B Theft
The defendants argue that count seven, conspiracy to commit theft, must be stricken because the plaintiffs cannot plead statutory theft if they cannot adequately plead conversion. The defendants assert that statutory theft is identical to conversion, with an additional requirement of intent. Moreover, the defendants argue that statutory theft does not apply to real property. The plaintiffs argue that they have adequately pleaded theft because the applicable definition of property for statutory theft, which is found in General Statutes § 53-118(a), includes real property.
"Statutory theft pursuant to § 52-564 . . . is synonymous with larceny under General Statutes § 53a-119 . . ." Weiss v. Weiss, 297 Conn. 446, 470 n. 18, 998 A.2d 766 (2010). General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." General Statutes § 53a-119 provides in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-118(a)(1), which applies to § 53a-119, provides in relevant part: "`Property' means any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind." (Emphasis added.)
"Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521, 705 A.2d 215 (1998); see also Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). In News America Marketing In-Store, Inc. v. Marquis, CT Page 17710 86 Conn.App. 527, 546, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005), the court stated in dicta that "liability for conversion is a precondition to a finding of liability for treble damages under § 52-564 . . ." The court made such a statement when affirming the trial court's conclusion that the plaintiff in that case had failed to prove all of the elements of conversion. Id.
In the present matter, this court could arguably strike the present count simply by relying on dicta from News America that "liability for conversion is a precondition to a finding of liability for treble damages under § 52-564 . . ." Id. This court concludes, however, that this dicta is inapplicable to the present matter, and the plaintiffs' analysis is more persuasive for several reasons.
First, the Appellate Court made this statement while analyzing whether the plaintiff in News America had proved all of the elements of conversion, In fact, the court's full statement was that: "Because liability for conversion is a precondition to a finding of liability for treble damages under § 52-564 and because the plaintiff failed to establish a prima facie case for its claim of conversion, we also conclude that the court properly determined that § 52-564 did not apply in this case." (Emphasis added.) Id. Since the elements of conversion and statutory theft are identical, with one additional requirement for statutory theft, it would be impossible for one party to be liable for statutory theft if that party could not prove the elements of conversion. In the present matter, however, the question before the court with regard to the plaintiffs' conversion claim is not whether the plaintiffs can satisfy all of the elements of conversion, but whether conversion is an available tort as it relates to real property. The defendants never argue that the plaintiffs are unable to satisfy the elements of either conversion or statutory theft.
As already noted with regard to count five, the tort of conversion does not apply to real property.
Second, the defendants rely on the aforementioned language from Suarez-Negrete for the proposition that property within the meaning of conversion and property within the meaning of statutory theft are the same. Once again, while Suarez-Negrete states that the elements of conversion and statutory theft are similar, the aforementioned quote does not stand for the proposition that the defendants advance. As the plaintiffs note, § 52-564 does not define property. Section 53a-118(a)(1), which is applicable to the larceny statute in § 53a-119, does define property, and provides that property includes "real property." Since the Connecticut Supreme Court has stated that statutory theft is synonymous with larceny, the plaintiffs' reasoning is persuasive that, in the absence of a specific definition of property for the theft statute, the court should utilize the same definition of property as is used for larceny. As a result, the court concludes that statutory theft may apply where the plaintiffs allege theft of real property, and the court denies the motion to strike as to count seven.
III COUNT FIFTEEN: CONNECTICUT UNFAIR TRADE PRACTICES ACT (CUTPA)
The defendants argue that count fifteen should be stricken on the ground that the plaintiffs have failed to allege sufficient facts to support a viable CUTPA claim. Specifically, the defendants contend that the plaintiffs have failed to allege that the defendants' actions were taken in the course of their primary trade or business. They assert that Bonazzoli-Barretta works in a law office and owns Barretta Enterprises, a landscaping company. They argue that neither drafting a quitclaim deed nor accepting a security interest, as alleged, have anything to do with either party's primary trade or business. Additionally, the defendants argue that the plaintiffs have failed to allege that the defendants "have a business, competitive or commercial relationship with the plaintiffs as is required to create liability under CUTPA." Specifically, they assert that neither Bonazzoli-Barretta nor any of the businesses that she owns or controls have ever done business with the plaintiffs, even though they admit that Christopher Barretta and Barretta Gardens have a "substantial prior business history" with the plaintiffs.
The plaintiffs counter that the primary trade or business requirement is satisfied because the defendants "committed unfair trade practices within the trade or commerce" of Barretta Realty. Specifically, the plaintiffs contend that Christopher Barretta and the other defendants have usurped the corporate opportunity of Barretta Realty by "depriving [the plaintiffs] of any benefit from the trade or commerce of owning and managing the [North Street property]." Thus, the plaintiffs argue that Christopher Barretta and Bonazzoli-Barretta "acted in competition with [Barretta Realty] within the sole trade or commerce for which [Barretta Realty] was created." Moreover, the plaintiffs contend that CUTPA applies to a broad spectrum of commercial activity and that a consumer injury is not necessary to establish a CUTPA claim.
General Statutes § 42-110b, also known as CUTPA, provides in subsection (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," In addition, General Statutes § 42-110g provides in relevant part: "(a) 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 . . . to recover damages." "The entire act is remedial in character . . . and must be liberally construed . . ." (Citations omitted; internal quotation marks emitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995).
"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 unfairness; (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. 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 . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Harris v. Bradey Memorial Hospital Health Center, 296 Conn. 315, 350-51, 994 A.2d 153 (2010).
"[A] CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce," McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). Moreover, "CUTPA requires that a plaintiff must have some kind of commercial relationship with the alleged wrongdoer, commercial relationship not being so much a business relationship but some kind of relationship in the marketplace so that the particular acts of wrongdoing alleged will interfere with fair and open competition in that particular marketplace." (Internal quotation marks omitted.) Ferraro v. Tamarac Ridge Condominium Association, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5015500 (June 3, 2009, Bellis, J.). ( 47 Conn. L. Rptr. 670, 672).
"It is well settled that purely intracorporate conflicts do not constitute CUTPA violations. Metcoff v. Lebovics, 123 Conn.App. 512, 519, 2 A.3d 942 (2010). In Russell v. Russell, 91 Conn.App. 619, 882 A.2d 98, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005), the Connecticut Appellate Court upheld a trial court's conclusion that CUTPA did not apply to a dispute over life insurance proceeds between family members who were in business together. In doing so, the court noted: "Here, the court's conclusion that no CUTPA violation had been established, was based on its findings that this dispute essentially was between two private parties and that it concerned their jointly owned business, and, therefore, did not affect the public at large . . . Our Supreme Court has stated that purely intracorporate conflicts do not constitute CUTPA violations . . . It has distinguished, however, such internal corporate actions that also have the effect of usurp[ing] the business and clientele of one corporation in favor of another . . . For example, in Fink [ v. Golenbock, 238 Conn. 183, 212, 680 A.2d 1243 (1996)], where one owner of a private corporation denied the other owner the right to participate in the medical practice that was the business of the corporation, and thereafter formed a new corporation and practice using the assets of, and soliciting the clientele from, the first corporation, a finding of a CUTPA violation was upheld . . . Similarly, in Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 485, 656 A.2d 1009 (1995), a corporate president accepted employment with a competing firm, falsely told clients of the corporation that it was being taken over by the competitor and that they should take their business to the competitor and solicited employees of the corporation to seek employment with the competitor. The president's actions were found to be unfair trade practices and, thus, violations of CUTPA." (Citations omitted; internal quotation marks omitted.) Russell v. Russell, supra, 646-47.
Even assuming, arguendo, that the defendants in the present matter usurped the corporate opportunity of Barretta Realty, and thus, the primary trade or business requirement is satisfied, CUTPA does not apply to the present matter. Although the plaintiffs assert that the defendants' actions deprived them of trade or benefit of the North Street property, for which Barretta Realty was allegedly created to purchase and manage, the plaintiffs have not alleged that the defendants' actions were taken to usurp Barretta Realty's business and clientele in favor of another corporation. Rather, the plaintiffs allege that the North Street property was fraudulently transferred to Christopher Barretta, as an individual. Moreover, the plaintiffs have not alleged that Barretta Realty did anything but purchase and manage the North Street property, and they fail to allege that Barretta Realty had any clientele that could be usurped to benefit another business. As a result, the plaintiffs have alleged a purely intracorporate conflict, which is distinguishable from the unique facts of Fink and Larsen Chelsey Realty, and the court grants the motion to strike as to count fifteen.
Since the present allegations represent a purely intracorporate conflict to which CUTPA does not apply, the court need not reach the question of whether the plaintiffs have sufficiently alleged a commercial relationship with the defendants.
CONCLUSION
Based on the foregoing analysis, the court grants the defendants' motion to strike as to counts five and fifteen, which allege conspiracy to commit conversion and a violation of CUTPA, respectively, but denies the motion as to count seven, which alleges conspiracy to commit theft. The court also declines to treat the present motion as both a motion to strike and a motion for summary judgment. Regardless, the defendants' summary judgment arguments are inadequate given their failure to cite supporting legal authority, which is required by Practice Book § 11-10.