Opinion
CV185010735S
08-02-2019
CAESAR, LLC v. Linda F. CASSARINO
UNPUBLISHED OPINION
OPINION
Farley, J.
The plaintiff in this case, Caesar, LLC (Caesar), asserts claims of nuisance, adverse possession, and related property claims against the defendant, Linda Cassarino. The adverse possession claim concerns a 3400 square foot strip of land located between the neighboring properties owned by these parties. Caesar’s sole member is Lihn Davis, who has been cited in as a party by Cassarino. Caesar and Davis are the subject of a counterclaim filed by Cassarino asserting a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et eq. Caesar and Davis have moved to strike the counterclaim.
In her counterclaim, Cassarino alleges that Davis resides in a home on the property neighboring hers, which is owned by Caesar, and that Caesar and Davis operate a home renovation business from the property. She alleges Caesar and Davis have been using the strip of land at issue in the plaintiff’s complaint to transport material and equipment used in the business to and from the property. She alleges that they have also stored equipment and vehicles on the strip of land and have ignored or refused to comply with multiple requests and instructions that they stop trespassing on her property. She alleges that their conduct violates CUTPA "in that they have committed a pattern of intentional torts (trespass) in the course of trade or commerce."
"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 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 Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
CUTPA provides: "No 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). Whether a defendant is subject to CUTPA is a question of law, whereas whether an act or practice is unfair or deceptive is a question of fact. Szekeres v. Szekeres, 126 Conn.App. 829, 841, 16 A.3d 713 (2011). To determine whether an act or practice is unfair and violates CUTPA, the court considers: whether the practice offends public policy as it has been established by statutes, the common law, or some 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. Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 609 n.2, 119 A.3d 1139 (2015). "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." Id. The question raised by the motion to strike in this case is whether, under the facts alleged, Caesar and Davis are subject to CUTPA, a question of law.
Caesar and Davis move to strike Cassarino’s CUTPA claim, in part based upon an argument that CUTPA liability requires the existence of a business relationship between the parties, relying principally upon Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006) and cases that have relied upon Ventres to require a business relationship. In Ventres, the operator of an airport trespassed on the neighboring property owned by a land trust and a conservancy and cut down hundreds of trees, including some that were 100 years old and seventy-two feet high, in order to provide clearance for the airport runway. The trial court struck a CUTPA claim brought by the property owners against the airport defendants because the property owners "were not competitors or customers of the airport defendants." Id., 153. The Supreme Court affirmed that ruling and its decision has often been cited for the proposition that the existence of some business relationship is essential to establishing a CUTPA claim. Angiolillo v. Buckmiller, 102 Conn.App. 697, 709, 927 A.2d 312 cert. denied, 284 Conn. 927, 934 A.2d 243 (2007); Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269 (2006). In Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 88-100, 202 A.3d 262 (2019), however, the supreme court clarified that its discussion of that subject in Ventres was dicta and went on to hold that a business relationship is not necessarily required in order to assert a CUTPA claim. The absence of a business relationship between the parties in this case, therefore, does not necessarily render the CUTPA claim legally insufficient. While the court in Soto left open the question whether a business relationship was required in some contexts, it is unnecessary to determine whether the circumstances of this case require a business relationship because CUTPA liability does not attach for other reasons.
Caesar and Davis argue that CUTPA liability does not lie under the facts pleaded by Cassarino because the facts do not have any "nexus with a public interest" and public policy. See Szekeres v. Szekeres, supra, 126 Conn.App. 842-43. They maintain that this is just a private land title dispute between neighbors that does not rise to the level of CUTPA liability. Cassarino argues that, because Caesar and Davis use the contested strip of land to move materials and equipment related to the home renovation business to and from the property, and because they have consistently refused to respect her property line and have sought to claim ownership of the strip of land by adverse possession, this case is not just "two neighbors bickering over their property line." The court disagrees.
Cassarino relies upon Flynn v. DIRECTV, LLC, United States District Court, Docket No. 3:15-cv-1053 (JAM) (D.Conn. August 23, 2016) to oppose the business relationship argument, but also in response to the argument that the allegations in this case are otherwise insufficient to trigger CUTPA liability. In this court’s view, however, this case is squarely within the scope of the court’s holding in Ventres . The principal holding in Ventres, as the Flynn court recognized, was that imposing CUTPA liability on the facts alleged "would convert every trespass claim involving business property into a CUTPA claim." Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 157. In Flynn, a group of landlords that had no direct business relationship with DIRECTV were permitted to pursue a CUTPA claim in addition to trespass claims against DIRECTV for placing satellite dishes on the landlords’ properties pursuant to contracts with the tenants. Cassarino argues that, like DIRECTV, the allegations against Caesar and Davis indicate they are engaged in a "broad business strategy that directly implicates plaintiffs’ property." Id. In Flynn the court noted that DIRECTV had systematically exploited the tenants’ preexisting contractual relationships with the landlords, and purposely ignored the landlords’ right to control what fixtures are placed on their property, in order to enrich itself. Cassarino maintains that is what she has alleged as well.
CUTPA liability is restricted to acts and practices that occur in the conduct of trade or commerce. "[A] CUTPA violation may not be alleged for activities that are incidental to an entity’s primary trade or business." DiNardo Seaside Tower, Ltd v. Sikorsky Aircraft Corp., 153 Conn.App. 10, 25, 100 A.3d 413 (2014), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, 890 A.2d 140 (2006); see Barnes v. General Electric Co., Superior Court, judicial district of Hartford, Docket No. CV-93-0529354-S (July 20, 1995, Hennessey, J.) (14 Conn.L.Rptr. 455) (manufacturer’s disposal of hazardous waste at a landfill adjacent to plaintiffs’ property was not conduct in manufacturer’s trade or commerce). Unlike the offending conduct in Flynn, the facts alleged in this case do not involve an essential aspect of the home renovation business operated by Caesar and Davis. On the contrary, the fact that Caesar and Davis store equipment and materials at Ms. Davis’s residence is incidental to the business. In Ventres, the court viewed the attachment of a CUTPA claim to a garden variety trespass claim as extending CUTPA beyond the legislature’s intended reach. In this case, the connection to trade or commerce is far more attenuated than was the connection in Ventres .
CUTPA liability does not attach just because there is some connection to a business involved in the circumstances of a case. Szekeres v. Szekeres, supra, 126 Conn.App. 842-43 (landlord-tenant relationship does not necessarily implicate CUTPA). "There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral. unethical, oppressive or unscrupulous business practice or some practice that offends public policy." Id., 843, citing Muniz v. Kravis, 59 Conn.App. 704, 712, 757 A.2d 1207 (2000). This case involves a land dispute between residential neighbors where the counterclaim defendants also conduct unrelated business activities on the property. That incidental connection to business, however, is not sufficient to impose CUTPA liability on what is otherwise a common trespass claim.
The motion to strike Cassarino’s counterclaim is granted.