Opinion
No. HHB CV 10 5015074 S
April 6, 2011
MEMORANDUM OF DECISION RE DEFENDANT DENNEHY COMPANY, LLC'S MOTION TO STRIKE
BACKGROUND:
This is an action in twelve counts against multiple defendants resulting from the plaintiffs' purchase of real estate ["the premises"]. Count Nine is directed against defendants, Muriel Iorli, Dino Iorli and Dennehy Company, LLC, ["Dennehy"] a real estate brokerage firm. This count asserts that the actions of the Iorlis are imputed to Dennehy and constitute unfair trade practices under General Statutes § 42-110a, et seq., the Connecticut Unfair Trade Practices Act ["CUTPA"].
In support of this cause of action, the plaintiffs allege that Muriel Iorli is a licensed realtor, working at Dennehy. 104.00, Complaint, Count Nine, ¶ 4. Although the complaint does not directly allege this, apparently Muriel and Dino Iorli were the owners of the premises. They entered into an agreement to sell the premises to the plaintiff, Jason Bennett. The plaintiffs claim that numerous issues with the premises came to light after the conveyance of the property, ¶ 11, the rectification for some of which the Iorlis agreed to make payment. ¶ 12. The plaintiffs further assert that the Iorlis were aware of "undisclosed conditions," ¶ 13 and made untrue and knowingly false representations about the conditions of the premises. ¶¶ 14-15.
A realtor is a real estate agent who is a member of the National Association of Realtors.
The plaintiffs' allegations continue that Muriel Iorli, as a licensed real estate agent, knew of general statutes and regulations requiring full and accurate disclosure of the conditions of the premises and prohibiting misrepresentation or concealment of any material facts. ¶¶ 17-18. The plaintiffs further allege that, as an employee or principal of Dennehy, Muriel Iorli's actions are imputed to Dennehy, ¶ 20 and that these practices constitute unfair trade practices under CUTPA. ¶ 21.
Dennehy has filed a motion to strike Count Nine on the ground that it fails to state a CUTPA claim, together with a supporting memorandum. The plaintiffs filed an opposing memorandum and both sides were heard at oral argument.
The defendant has not stated in its motion that the claim is legally insufficient and has failed to comply with Practice Book § 10-41, which requires that the motion "shall distinctly specify the reason or reasons for each such claimed insufficiency." However, the plaintiff has not raised any objection to this failure to comply with the rules of practice.
LEGAL STANDARD:
"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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (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). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).
ANALYSIS:
In its memorandum of law, Dennehy asserts that the plaintiffs cannot obtain punitive damages against it in Count Nine because the sole basis of the action is upon a theory of respondeat superior and the plaintiffs have failed to allege that Dennehy, as principal, authorized or ratified Muriel Iorli's conduct or that Dennehy was reckless in employing or retaining her. Dennehy does not address the plaintiffs' other claims for relief from Count Nine, which include money [presumably compensatory] damages, attorneys fees, prejudgment interest, interest for loss of use of money and costs.
In the memorandum, Dennehy attacks only the claim for relief of punitive damages as to Count Nine, rather than the count itself. This would be Practice Book § 10-39(a)(2), rather than (a)(1). However, at oral argument, counsel for Dennehy stated that Dennehy was seeking to strike Count Nine, not just the claim for punitive relief. As counsel for the plaintiff also argued the validity of Count Nine in its entirety, the court will consider the pleading as a motion to strike Count Nine, not just the claim for punitive relief.
In Count Nine, the plaintiffs assert a CUTPA claim based solely upon the conduct of Dennehy's alleged employee. 104.00, Complaint, Count Nine, ¶ 20. 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." General Statutes § 42-110b(a). It is well settled that whether a defendant's acts constitute deceptive or unfair trade practices under CUTPA is a question of fact for the trier. To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce. Landmark Investment Group, LLC v. Chung Family Partnership, LLC, 125 Conn.App. 678, 699, 10 A.3d 61 (2010). Although the plaintiffs have not specifically alleged this, it is inferred by the totality of the allegations.
Therefore, the issues are two-fold. The first issue is whether the plaintiffs have sufficiently pled agency. The second issue is whether the plaintiffs have sufficiently pled the elements of respondeat superior.
I. Agency
The references to any claim of principal and agent in the complaint are thin. There are no such allegations as to Dino Iorli, so there can be no such claim of respondeat superior as to Dino Iorli as claimed by the plaintiffs in Count Nine. See ¶¶ 21-22.
As to the claimed agency of Muriel Iorli, the plaintiffs merely allege that she was working as a realtor at Dennehy and that, as an employee or principal of Dennehy, her actions are imputed to Dennehy. ¶¶ 2, 20. The plaintiffs did not, however, actually allege anywhere in the complaint that Muriel Iorli was a principal of Dennehy, so this assertion is nothing more than conclusory. The court does, however, consider whether the allegation of agency was sufficiently pled.
"[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 892 A.2d 389 (2006).
In Hollister v. Thomas, 110 Conn.App. 692, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008), the Appellate Court considered the sufficiency issue of factual pleading in an agency cause of action. In Hollister, the plaintiff alleged that a subcontractor was the agent of a contractor. The court noted that the complaint failed to allege the facts necessary to prove the existence of an agency relationship, including an allegation that the contractor had a right to control the work of the subcontractor. Id. at 706. Further, the complaint merely used labels of "agent" and "subcontractor." "`[T]he labels used by the parties in referring to their relationship are not determinative; rather a court must look to the operative terms of their agreement or understanding.' Wesley v. Schaller Subaru, Inc., [ supra], 277 Conn. 543-44." The court concluded that the plaintiff failed to allege an agency relationship.
In the present case, the plaintiffs have not alleged the three elements of agency. A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. at 498. As the plaintiffs have not sufficiently alleged the elements of agency upon which the CUTPA claim is predicated, the motion to strike is granted.
II. Respondeat Superior
"A corporation may also be held vicariously liable under the doctrine of respondeat superior if the person actually committing the violation was a servant of the corporation when the acts were committed, and the acts were committed within the scope of the servant's employment and in furtherance of the corporation's business." R. Langer, J. Morgan D. Belt, 12 Connecticut Practice Series: Unfair Trade Practices (2003) § 6.7, p. 425. Landmark Inv. Group v. Chung Family Realty, 125 Conn.App. 678, 702, fn.24, 10 A.3d 61 (2010). While it is not stated in the pleadings whether or not Dennehy, a limited liability company [LLC], is a corporation, the same principle applies, as it is a business entity and, in providing professional services as defined by General Statutes § 34-101(23), is liable for negligent and wrongful acts of its agents or employees while they are engaged in proving such services on behalf of the LLC. General Statutes § 34-133(b).
"The underlying rationale of the modern doctrine of respondeat superior in its application to this type of case is that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others, while they are engaged upon his business and within the scope of their authority . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order of the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968).
"[T]o constitute the relation of master and servant, the one for whom the service is rendered must consent to receive the services as master, that is consent to their being performed under his direction and control. There must be submission by one giving service to the directions and control of the one receiving it as to the manner of performance . . . In the absence of this the relation does not exist . . . There is no dispute about the ultimate test. It is the right of general control of the means and methods used by the person whose status is involved." (Citations omitted; internal quotation marks omitted.) Oleksinski v. Filip, 129 Conn. 701, 702-03, 30 A.2d 912 (1943).
The pleadings in their present state do not sufficiently allege a cause of action of respondeat superior. Mere conclusions of law are insufficient to withstand a motion to strike. Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. at 498.
In their memorandum in opposition to the motion to strike, the plaintiffs assert that they are entitled to punitive damages against Dennehy if they can show that Muriel Iorli's acts constitute gross misconduct or that Dennehy was grossly negligent or approved [of] her actions, citing Maisenbacker v. Society Concordia, 71 Conn. 369, 379-80, 42 A. 67 (1899). However, the plaintiff's cause of action is based upon CUTPA, not vicarious liability based upon common-law negligence or gross negligence.
It is a well established principle that Connecticut is a fact pleading jurisdiction. See Practice Book § 10-1. "Pleadings have an essential purpose in the judicial process . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . ." (Internal quotation marks omitted.) Somers v. Chan, 110 Conn.App. 511, 528, 955 A.2d 667 (2008). Although the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading . . . [O]ur rules of practice allow a party to timely replead a claim that has been stricken, thereby providing a method for deficient pleadings to be remedied in the event that an alternative legal theory was not considered by the court when a motion to strike a claim for legal insufficiency is granted. See Practice Book § 10-44.
Pike v. Bugbee, 115 Conn.App. 820, 828, fn.5, 974 A.2d 743 (2009).
The plaintiffs also argue that the determination of whether Dennehy authorized, directed, approved or ratified the conduct of Muriel Iorli "must necessarily await a full hearing on the merits, and is therefore inappropriate to decide on a Motion to Strike. See Larson Chelsea Realty Company v. Larsen, 232 Conn. 480, 507-10[, 656 A.2d 1009] (1995)." While this may be true, it is not the issue. It is not the court's role to decide the merits of the cause of action, merely to determine if it is sufficiently pled. The court determines that the cause of action in Count Nine has not been sufficiently pled.
ORDER:
The defendant Dennehy Company, LLC's motion to strike Count Nine (107.00, 114.00) is granted.