Opinion
No. CV 03 0181797S
June 15, 2005
MEMORANDUM OF DECISION
This is a motion to strike filed by the defendants, New Samaritan Family Housing of Waterbury, Inc., and Community Housing Management, Inc., dated December 20, 2004.
The plaintiffs, Lisa Beck, individually, and as parent and next friend of the minor child, Branden Purvis, have brought this matter as a result of a fall and injuries sustained by the minor child on March 22, 2003. The plaintiffs allege that the fall resulted from the defendant's failure to secure an unsafe second floor window. In the seven-count amended complaint, the plaintiffs allege claims of breach of contract, third-party beneficiary breach of contract, negligence, CUTPA and breach of covenant of good faith and fair dealing.
The defendants seek to strike counts one, five, six and seven of the third amended complaint which was filed on May 26, 2004. The basis for the defendants' motion is that the cause of actions brought by the parent on behalf of the minor child which sound in breach of contract, CUTPA, and breach of covenant of good faith and fair dealing, all fail to state a claim upon which relief can be granted. The defendants claim that the plaintiffs' failure to allege that the minor child was a party to the contract or that the child was a consumer renders those causes of action defective. The plaintiffs have objected to the motion and have filed a memorandum in opposition, dated February 9, 2005. The defendants have also filed a response dated February 14, 2005.
I.
The plaintiffs have raised two procedural objections in their memorandum of law. The plaintiffs first argue that the motion to strike should be denied because it is untimely as it was filed almost seven months after the last pleading, the third amended complaint. While the motion arguably was not timely, the remedy for the plaintiffs would have been to file a motion for default. Since the plaintiffs failed to do so and have briefed the issues in the motion to strike, they are not prejudiced from the tardy progression of the pleadings.
The next procedural argument raised by the plaintiffs is that the motion seeks the deletion of only select paragraphs and allegations contained in multiple counts. "[W]here individual paragraphs standing alone do not purport to state a cause of action, a motion to strike cannot be used to attack the legal sufficiency of those paragraphs . . . A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated." (Internal quotation marks omitted.) Moss Ledge Associates v. Firestone Building Products Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 170167 (October 27, 1999, Karazin, J.); accord Chaffin v. Health Works, Ltd, Superior Court, judicial district of New Haven at New Haven, Docket No. 413790 (September 17, 1999, Moran, J.); Zimmermann v. Connecticut College, Superior Court, judicial district of New London, Docket No. 544623 (July 2, 1998, Handy, J.); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (trial "court struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium . . ."). Since the plaintiffs are seeking to raise similar causes of action for both the parent and child, a motion to strike is proper to attack paragraphs within a count because those paragraphs are an attempt to state a separate cause of action on behalf of a particular party.
II.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . ." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
III.
The defendants first argue that count one, which claims damages for breach of contract, should be stricken as to the minor child. The defendants claim that the plaintiffs do not allege that the minor child was a party to the contract, and as such, the cause of action therefore fails to state a claim upon which relief can be granted.
"It is axiomatic that an action upon a contract or for breach of a contract can be brought and maintained by one who is a party to the contract sued upon . . ." (Internal quotation marks omitted.) Chila v. Stuart, 81 Conn.App. 458, 464, 840 A.2d 1176, cert. denied, 268 Conn. 917, 847 A.2d 311 (2004). The complaint does not allege that Purvis, who was a minor at the time of the formation of the lease agreement, was a party to that agreement. Indeed, according to United States Department of Housing and Urban Development documents attached to the original complaint and referenced in the third amended complaint, the minor child was younger than two years old at the time of the formation of the lease agreement. Therefore, the minor child lacks standing to allege a breach of the lease agreement as it is not alleged that he was a party to it. As such, the motion to strike count one as it pertains to the minor child is granted.
IV.
The defendants also contend that counts five and six, which allege CUTPA violations, should be stricken as to the minor child only as the plaintiffs fail to allege that the child was a consumer, competitor or other business person. In their memorandum in opposition, the plaintiffs rely on language from General Statutes § 42-110g(a) to argue that "[t]here is no requirement that a CUTPA plaintiff allege a consumer relationship as a prerequisite for sustaining a claim under the Connecticut Unfair Trade Practices Act." (Emphasis in original.) The plaintiffs assert that even if a consumer relationship is required in order to plead a CUTPA violation, the plaintiffs "plainly have plead sufficient facts to demonstrate that the minor plaintiff was a direct consumer and recipient of the benefits of the alleged lease agreement." (Emphasis in original.)
General Statutes § 42-110g(a) provides: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."
In response, the defendants cite to Macomber v. Travelers Property Casualty Co., 261 Conn. 620, 644, 804 A.2d 180 (2002) to argue that to plead a CUTPA violation, a "plaintiff must either have a consumer relationship or be a competitor or other business person." (Emphasis in original; internal quotation marks omitted.) The defendants further assert that while Beck sufficiently alleges a consumer relationship in her pleadings, the minor child does not. The defendants also cite to General Statutes §§ 42-150aa, 42-151, 42-125aa(1) and 42-110r(c) to assert that "a `consumer' is generally defined as a person who enters a business relationship for personal, family or household purposes."
Our supreme court held in Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 494-96, 656 A.2d 1009 (1995), that a party who alleges a CUTPA violation against another party must either possess a consumer relationship with that other party or be a competitor or other business person. The defendants do not dispute that a tenant who is in a consumer relationship with his or her landlord can have an actionable CUTPA claim against said landlord. There is superior court authority for the proposition that a minor child possesses a consumer relationship with a landlord. In Diaz v. Shelat, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. LPL CV 95 0467395 (March 16, 1998, Lager, J.), a minor plaintiff alleged CUTPA violations arising out of the personal injury she allegedly sustained due to exposure to lead-based paint against the co-owners of a building in which she resided. "[T]he statutes and regulations governing the abatement and management of toxic levels of lead impose a duty upon any owner of a dwelling `in which children under the age of six reside' without reference to a formal landlord-tenant relationship . . . Recognition that a CUTPA claim can be premised on a violation of these statutes would be rendered meaningless if a formal landlord-tenant relationship between the plaintiff and the defendants were required to give the plaintiff standing. Proof that the defendants knew that the minor plaintiff was residing in the apartment leased by [the tenant] and had been a long-term resident in that apartment may suffice to establish a consumer relationship between the plaintiff and the defendants for purposes of CUTPA in this case." (Citations omitted; internal quotation marks omitted.) Id.
In the present case, Beck was allegedly a tenant in the defendants' building. The plaintiffs sufficiently allege that the defendants had knowledge that Beck intended to live at the premises with several of her minor children, including the plaintiff, Brandon Purvis. Under those circumstances, the minor child possesses a consumer relationship with a landlord. Therefore, the motion to strike the allegations made by the minor child in counts five and six is denied, as the minor child does have standing to allege CUTPA violations.
V.
Lastly, the defendants contend that count seven, which alleges a breach of the covenant of good faith and fair dealing should be stricken as to the minor child only. The defendants assert that as count seven does not allege the existence of a contract between the minor child and the defendants, that count should be stricken.
"It is axiomatic that the implied duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." (Internal quotation marks omitted.) Celentano v. Oaks Condominium Assn., 265 Conn. 579, 617, 830 A.2d 164 (2003). "[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (2004). "Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended." (Internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn.App. 432, 437, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).
According to the facts as alleged in the complaint, the minor child was at most a third-party beneficiary to the alleged lease agreement between Beck and the defendants not an actual contracting party. In Chieffo v. Yannielli, Superior Court, judicial district of Waterbury, Docket No. CV 00 0159940 (July 10, 2001, Doherty, J.), the court stated: "While the appellate courts have yet to address the issue of whether a third party may allege breach of an implied covenant of good faith and fair dealing against another's insurer, our Superior Court has held, on several occasions, that third parties are generally not permitted to bring such a cause of action. The law is clear that only contracting parties may enforce the implied covenant of good faith and fair dealing . . . No Connecticut court has extended the implied covenant of fair dealing and good faith to parties who have not entered into a contractual relationship . . ." (Internal quotation marks omitted.) Id.
Since it is not alleged that the child was a party to the contract, and third-party beneficiaries cannot bring actions sounding in breach of the covenant of good faith and fair dealing, then the motion to strike the allegations made by the minor child only as to count seven is granted.
VI.
In conclusion, the defendants' motion to strike counts one and seven as to the allegations made on behalf of the minor child is granted. The motion to strike counts five and six are denied.
Matasavage, J.