Opinion
NNHCV156058446S
09-27-2019
Nicole BENCIVENGO v. A BETTER WAY WHOLESALE AUTOS, INC. et al.
UNPUBLISHED OPINION
OPINION
SYBIL V. RICHARDS, JUDGE
The plaintiff, Nicole Bencivengo, initiated this action by way of service of process on November 4, 2015, against the defendants, A Better Way Wholesale Autos, LLC (Better Way) and BCI Financial Corp. (BCI). In her seven-count complaint, the plaintiff alleges that she purchased a motor vehicle from Better Way on July 31, 2012 and entered into a contract to purchase it through a financing agreement on that same date. This financing agreement was subsequently assigned to BCI, which collected the plaintiff’s monthly payments. Notwithstanding prior representations regarding the vehicle’s condition, the plaintiff had numerous problems with it. She also eventually learned that on its certificate of title, the vehicle was listed as "rebuilt" and was previously declared a constructive total loss. From these facts, the plaintiff alleges the following claims: (1) a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes § 42-110 et seq., against Better Way by virtue of false misleading statements about the car and failure to disclose the vehicle’s condition prior to sale, as required by General Statutes § 42-225; (2) a CUTPA violation against BCI by virtue of its status as an assignee; (3) breach of contract as to Better Way; (4) breach of contract as to BCI; (5) fraud as to Better Way; (6) fraud as to BCI; and (7) unjust enrichment as to Better Way.
On March 27, 2019, the defendants moved to dismiss the plaintiff’s action in its entirety on the basis that it is barred by the statute of limitations. By way of objection, dated April 26, 2019, the plaintiff contends that a motion to dismiss is not the proper basis to contest the timeliness of her claims. While the plaintiff concedes that the timeliness of her CUTPA claims could possibly be determined by way of motion to dismiss, she asserts that dismissal is still, nonetheless, improper as the statute of limitations on these claims has been tolled or is otherwise inapplicable due to various, non-time barred, actions on the part of the defendants.
Ordinarily, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[when] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite ..." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
In light of these principles, the plaintiff’s claims that existed at common law breach of contract, fraud, and unjust enrichment are not properly subject to abatement by way of a motion to dismiss at this juncture. It has been held, however, that CUTPA’s "statute of limitations is jurisdictional"; Blinkoff v. O & G Industries, 113 Conn.App. 1, 9, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009); and, thus, the timeliness of the plaintiff’s CUTPA claims shall be considered.
A CUTPA claim may not be brought more than three years after the occurrence of a violation. See General Statutes § 42-110g(f). Here, the alleged conduct of the defendants occurred July 31, 2012, and this action was not initiated until November 4, 2015. Accordingly, the plaintiff’s CUTPA claims are untimely and subject to dismissal absent a sufficient plea in avoidance. The plaintiff advances several arguments against dismissal. First, she contends the action should be tolled by virtue of the contractual relationship between the parties and that the act of accepting her monthly payments created a continuous course of conduct. Absent a special or fiduciary relationship, however, CUTPA’s statute of limitations is typically not tolled by a continuing course of conduct. See Szynkowicz v. Bonauito-O’Hara, 170 Conn.App. 213, 230, 154 A.3d 61 (2017). No such relationship is pleaded here, only the existence of a contractual relationship, and it has been held that "[s]uch a ... relationship ... does not create a fiduciary obligation that might have imposed upon the defendants as the perpetrators of a fraud the continuing duty to disclose their prior lack of candor to the plaintiffs." Fichera v. Mine Hill Corp., 207 Conn. 204, 210, 541 A.2d 472 (1988). Moreover, it is not alleged that the act of accepting these payments was an independent CUTPA violation, and the court is doubtful that the mere acceptance of payments would be an unfair, or deceptive act, anticipated by the act. Indeed, persuasive authority has determined, albeit within a different context, that the acceptance of monthly payments is "hardly evidence supporting the existence of unfair or deceptive acts or practices in the conduct of any trade or business." Grant v. Philpot, Superior Court, judicial district of New Haven, Docket No. CV-03-0475403-S (October 20, 2003, Skolnick, J.). Under these circumstances, the court agrees.
Second, the plaintiff asserts that § 42-225(b) creates a continuing duty to disclose, pursuant to which her CUTPA claims would be timely. There is no language within § 42-225(b), however, imposing a continuing duty to disclose, and to read such language into the statute would work to abrogate the requirement that a CUTPA claim be brought within three years of a violation. See Garvey v. Valencis, 177 Conn.App. 578, 588, 173 A.3d 51 (2017) ("[w]e reject the plaintiff’s invocation to read words into a statute that are not there").
Lastly, the plaintiff argues that her CUTPA claims are not limited to a violation of § 42-225. Specifically, the plaintiff contends that her complaint also alleges that the defendants violated CUTPA because their acts offended public policy, are immoral, unethical, oppressive or unscrupulous. The plaintiff contends that the defendants has failed to demonstrate that these additional claims are untimely. This argument must fail. In Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 105, 202 A.3d 252 (2019), a case on which the plaintiff relies, the court held that CUTPA claims that were unspecified as to the time period in which they occurred, were still viable because they, nevertheless, were based on specific, articulated, ongoing, marketing practices of the defendant. Here, by contrast, the allegations merely state the defendants’ actions also violate CUTPA for additional, seemingly unspecified, reasons. These allegations, to the extent they seek to assert an additional CUTPA claim, must fail as they are mere conclusions of law, untethered by any additional factual support. Szynkowicz v. Bonauito-O’Hara, supra, 170 Conn.App. 220 n.3. Accordingly, the court grants the defendants’ motion to dismiss as to counts one and two of the plaintiff’s complaint and denies the remaining counts.