Opinion
MMXCV166016697S
09-28-2017
Chapco, Inc. v. Hot Tub Products, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 108)
W. Glen Pierson, J.
The present action involves a commercial dispute concerning the purchase and sale of manufactured hot tub frames and parts. The plaintiff, Chapco, Inc., brings this lawsuit in seven counts against the defendants, Hot Tub Products, LLC (Hot Tub Products) and Andrew Tournas, alleging breach of contract (counts one and four), claims under the Uniform Commercial Code--Sales, General Statutes § § 42a-2-703 and 42a-2-709 (counts two and three), breach of Tournas' personal guarantee (count five), unjust enrichment (count six), and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (count seven). The defendants deny liability; interpose special defenses; and assert counterclaims sounding in breach of contract (counts one through six), negligence (count seven), and negligent representation (count eight).
PROCEDURAL HISTORY
According to the plaintiff's complaint, the plaintiff and Hot Tub Products are parties to a written agreement entitled, " Terms and Conditions of Sale" (sales agreement), which was executed on or about September 9, 2014. Hot Tub Products allegedly executed the agreement through its member, Tournas. Moreover, Tournas also allegedly signed and guaranteed the terms of the sales agreement in his individual capacity. In addition, the plaintiff claims that Hot Tub Products signed a second document entitled, " Credit Agreement" (credit agreement), in which it agreed to adhere to all of the terms and conditions of the sales agreement. Further, according to the plaintiff, under the sales agreement, the plaintiff agreed to sell to Hot Tub Products, and Hot Tub Products agreed to buy from the plaintiff, custom-manufactured hot tub frames and related parts. The plaintiff claims that, pursuant to the sales agreement, amounts payable were due within thirty days of the invoice date and late payments were subject to interest of 18 percent per annum. The plaintiff does not attach to the complaint copies of the sales or credit agreements.
The plaintiff claims that Hot Tub Products executed the credit agreement through nonparty Michelle Tournas, Hot Tub Products' president and managing member.
In count one, the plaintiff alleges that Hot Tub Products issued four purchase orders and invoices, as follows:
Description
Amount
Purchase Order 195 and Invoice 75145:
$290
Purchase Order 300 and Invoice 75476:
$3, 859.24
Purchase Order 194 and Invoice 75559:
$14, 300
Purchase Order 194 and Invoice 75838:
$14, 300
Although the goods ordered by Hot Tub Products pursuant to the foregoing purchase orders were delivered to it, it failed to pay the plaintiff for these goods. The plaintiff attaches to the complaint a copy of its accounts receivable aging schedule regarding these orders and claims that, with interest, Hot Tub Products owes the plaintiff $39, 616.22 and that interest continues to accrue. The plaintiff claims a breach of contract.
The accounts receivable aging schedule attached to the complaint reflects that all the purchase orders at issue in count one were dated after the September 9, 2014 date of the sales agreement.
In count two, the plaintiff alleges that, under the sales agreement, Hot Tub Products issued purchase order number 1028 for certain custom-manufactured parts in the total amount of $66, 500. The plaintiff delivered all the parts that were the subject of this purchase order except for certain pieces identified as missing from the shipment amounting to several hundred dollars. The plaintiff remains ready to deliver the missing pieces. The plaintiff manufactured the missing pieces, set them aside, and is ready to ship them to Hot Tub Products under the sales agreement, but Hot Tub Products has refused to accept them and is withholding payment of the entire $9, 443 due the plaintiff. The undelivered goods were custom-made for Hot Tub Products' specific purposes, and circumstances reasonably indicate that reasonable efforts to resell the undelivered goods at a reasonable price will be unavailing. As a result, the plaintiff claims that, because Hot Tub Products breached the whole sales agreement, the plaintiff, pursuant to § 42a-2-703, is entitled to recover damages under § 42a-2-709 in the full amount of the invoice price for the undelivered goods.
In count three, the plaintiff claims that Hot Tub Products issued purchase order number 194 for 275 metal kits to be custom-manufactured by the plaintiff in the total amount of $39, 325. A copy of this purchase order is attached to the complaint. The metal kits were manufactured and delivered to Hot Tub Products in three shipments. Hot Tub Products accepted the first two deliveries of 100 such kits, but it has not paid for them. With respect to the seventy-five remaining kits, amounting to $10, 725 of the total purchase order price, Hot Tub Products has refused to accept delivery of them. With respect to these remaining kits, the plaintiff set them aside and is holding them ready to ship to Hot Tub Products under the sales agreement. These undelivered goods were custom made for Hot Tub Products' specific purposes, and circumstances reasonably indicate that reasonable efforts to resell them at a reasonable price would be unavailing. The plaintiff further claims that, because Hot Tub Products breached the whole sales agreement, the plaintiff, pursuant to § 42a-2-703, is entitled to recover damages under § 42a-2-709 in the full amount of the invoice price for the undelivered goods.
In count four, the plaintiff claims that Hot Tub Products breached the sales agreement by refusing delivery of the ordered parts. In count five, the plaintiff seeks to recover against Tournas, in his individual capacity, on its claims against Hot Tub Products, on the basis of Tournas' personal guarantee of full and prompt payment of amounts owed under the sales agreement. Finally, in counts six and seven, the plaintiff asserts claims against Hot Tub Products for unjust enrichment and violation of CUTPA, respectively.
As to all counts, the plaintiff claims money damages, interest, and costs. The plaintiff also demands attorneys fees, interest, and costs pursuant to the sales agreement, attorneys fees pursuant to General Statutes § 42-110g(d), and punitive damages pursuant to General Statutes § 42-110g(a).
On January 24, 2017, Hot Tub Products filed an answer and thirteen special defenses (docket entry no. 102). On that same date, Hot Tub Products filed eight counterclaims against the plaintiff (docket entry no. 103), alleging breach of contract (counts one through six), negligence (count seven), and negligent misrepresentation (count eight).
In its first counterclaim, Hot Tub Products claims that it entered into an agreement with the plaintiff on an unspecified date whereby the plaintiff was to provide it with goods in accordance with purchase orders that it submitted to the plaintiff. In consideration thereof, Hot Tub Products would pay the plaintiff for the goods tendered to it pursuant to its purchase orders and in accordance with its specifications and conditions. Hot Tub Products submitted a purchase order to the plaintiff for 500 " Complete Lifter Units" (unit) of goods, which were to be shipped in two separate lots, each of which would contain all necessary parts of the unit. The first lot was to contain 225 units, was dated April 21, 2014, and was identified by purchase order number 1028. The second lot was to contain 275 units, was dated April 8, 2015, and was identified by purchase order number 194. Prior to the placement of any purchase orders, Hot Tub Products communicated to the plaintiff the purpose of the orders, as well as its specifications and conditions in connection with the orders, including that each lot was to include all the parts necessary to assemble the number of units reflected in the purchase order, thereby allowing Hot Tub Products to sell each complete and assembled individual unit to its customers. Before accepting Hot Tub Products' purchase orders and/or tendering any goods to it, the plaintiff agreed to Hot Tub Products' terms, specifications, and conditions. The plaintiff failed to tender lots to Hot Tub Products in accordance with the parties' agreement in that the lots did not contain all the parts necessary to assemble the quantity of units that the plaintiff represented were in each respective lot and/or in that the individual parts contained in the lots did not conform to Hot Tub Products' specifications. As a result, Hot Tub Products could not assemble the number of units that the plaintiff represented was in each lot. Hot Tub Products contends that, as a result of the foregoing, the sales agreement was rendered inapplicable to the transactions involving the units. On the basis of the foregoing, Hot Tub Products further contends that the plaintiff breached its contract with Hot Tub Products, thereby causing Hot Tub Products to suffer certain specified damages.
In its second counterclaim, Hot Tub Products claims that, after discovering the plaintiff's purported failure to tender a lot in accordance with Hot Tub Products' purchase orders, Hot Tub Products provided notice of such noncompliance to the plaintiff, after which the plaintiff subsequently shipped, after substantial delay, individual parts that were omitted from the initial delivery. Thereafter, Hot Tub Products assembled the units and sold them to its customers. Following these sales, Hot Tub Products was informed by its customers that some of the individual parts of the completed units did not conform to Hot Tub Products' specifications, and, as a result, Hot Tub Products was forced to immediately replace the defective parts, to its loss and damage.
In its third counterclaim, Hot Tub Products alleges that, after the plaintiff received notice of the foregoing, it agreed to repair or replace the nonconforming goods and that, after Hot Tub Products received the replaced or repaired goods, it discovered that the replaced or repaired parts were also nonconforming, thereby causing it to suffer damages. In the fourth counterclaim, Hot Tub Products claims that, after it provided notice to the plaintiff that the replaced or repaired parts were also nonconforming, the plaintiff refused, failed, and neglected to replace the parts, thereby causing Hot Tub Products to suffer damages.
In its fifth counterclaim, Hot Tub Products alleges that, upon discovering that the plaintiff had failed to tender a lot in accordance with Hot Tub Product's purchase orders, Hot Tub Products provided notice to the plaintiff of such noncompliance. After receiving such notice, the plaintiff agreed to provide Hot Tub Products with parts omitted from the respective lots. After receiving the omitted parts, Hot Tub Products allegedly assembled the units and sold them to its customers. Thereafter, Hot Tub Products' customers notified it that some of the individual parts of the completed units did not work properly, and Hot Tub Products determined that this was so because the parts built by the plaintiff did not conform with Hot Tub Products' specifications. Although the plaintiff agreed to repair or replace the nonconforming parts, the replaced or repaired parts provided by the plaintiff were also nonconforming, thereby breaching the sales agreement--to the extent the sales agreement applies to the transactions alleged and causing Hot Tub Products to suffer damages.
In its sixth counterclaim, Hot Tub Products claims that, after receiving all necessary parts from the plaintiff, Hot Tub Products assembled the units and that, at or about the time of such assembly, it discovered that some of the parts did not conform to its specifications. Although Hot Tub Products provided notice of such nonconformity to the plaintiff, the plaintiff refused or neglected to repair or replace the defective goods, thereby breaching the sales agreement to the extent the sales agreement applies to the transactions described herein and causing Hot Tub Products to suffer damages. Hot Tub Products does not attach a copy of the sales agreement to its counterclaims or to any other pleadings it has filed in this matter.
Finally, in counterclaims seven and eight, Hot Tub Products alleges claims of negligence and negligent misrepresentation, respectively, in connection with the transactions described in the other counterclaims.
On March 27, 2017, the plaintiff filed a motion to strike all eight of Hot Tub Products' counterclaims (docket entry no. 108) on the grounds that counts one through six are barred by the parol evidence rule, counts five and six do not allege the necessary element of performance, and counts seven and eight are barred by the economic loss doctrine. The motion was accompanied by a supporting memorandum of law (docket entry no. 109). In its memorandum of law, the plaintiff further contends that counts five and six should be stricken for the additional reason that the claims for money damages set forth in those counts are barred by the terms of the sales agreement; this ground does not appear in the motion itself. On April 28, 2017, Hot Tub Products filed a memorandum of law in opposition to the plaintiff's motion (docket entry no. 110). Oral argument on the motion was held on July 10, 2017, at which time the matter was submitted to the court.
Although the plaintiff asserts in the motion that the first six counterclaims are barred by the parol evidence rule, in its supporting memorandum of law, it limits its argument concerning the parol evidence rule to the first four counterclaims.
DISCUSSION
I
Standard of Review
" [A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000); see also Practice Book § 10-39(a); Cadle Co. v. D'Addario, 131 Conn.App. 223, 230, 26 A.3d 682 (2011). It is the proper procedural vehicle to test a counterclaim. JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). The standard of review applicable to motions to strike is well established. As the motion is directed to the viability of a party's pleading as a matter of law, the court's inquiry is limited to the facts alleged in the challenged pleading. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). Any consideration of matters outside the pleadings is generally prohibited. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) (" [i]n deciding upon a motion to strike . . . a trial court must take the facts to be those alleged in the [pleadings] . . . and cannot be aided by the assumption of any facts not therein alleged" [citations omitted; internal quotation marks omitted]).
So-called " speaking" motions to strike, which import facts from outside the pleadings, have long been prohibited in our practice. Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . ." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). The trial court may not rely upon evidence outside the four corners of a challenged pleading in determining its legal sufficiency. Beck & Beck, LLC v. Costello, 159 Conn.App. 203, 207-08, 122 A.3d 269 (2015). " Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [moving party] must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotations marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). Although the court is thus limited to an examination of the pleadings on a motion to strike, " [w]hat is necessarily implied [in an allegation] need not be expressly alleged"; (internal quotation marks omitted) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998); and the court is required to " read the allegations of the [challenged pleading] generously to sustain its viability . . ." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997) (in keeping with its obligation to interpret pleading generously, court " must construe the facts in the [challenged pleading] most favorably to the [claimant]" [internal quotation marks omitted]).
Some courts have suggested that, in some circumstances, other pleadings in the same court file may be considered. See, e.g., Aurioso v. KH Ass'n, Inc., Superior Court, judicial district of New Haven, Docket No. CV-08-5018521-S, (January 9, 2009, Corradino, J.) (in ruling on motion to strike apportionment complaint, holding that " [t]he court must confine itself to the pleadings, that is the motion to strike and perhaps other pleadings in the file made by either [the defendant] or [the apportionment defendant] which might be considered admissions"); Markiewicz v. Bajor, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-90-032458-S (December 7, 1990, Fuller, J.) (3 Conn. L. Rptr. 12, 12, ) (" [i]n some cases other pleadings which are part of the same court file may be consulted for essential facts, but the general rule is that when considering a motion to strike, only the facts alleged in the challenged pleading can be considered").
Even so, a motion to strike " does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). Thus, the motion must be granted " if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215. " For the purpose of ruling upon a motion to strike, the facts alleged in a [challenged pleading] . . . are deemed to be admitted." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 271 n.1, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
II
Counterclaims One through Six
In the present case, the plaintiff challenges the sufficiency of counterclaims one through six on the ground that these claims are barred by the parol evidence rule. Our Supreme Court has observed repeatedly that the parol evidence rule is not an exclusionary rule of evidence, but a substantive rule of contract law. Weiss v. Smulders, 313 Conn. 227, 248, 96 A.3d 1175 (2014); Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 609, 849 A.2d 804 (2004); Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 779, 653 A.2d 122 (1995); TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991). As stated by the court in Heyman Associates No. 1, " [t]he rule is premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme." (Internal quotation marks omitted.) 231 Conn. at 780. Put another way, " [t]he parol evidence rule ordinarily prohibits a court from considering extrinsic evidence in interpreting an agreement when that evidence tends to alter the explicit terms of the agreement." Battalino v. Van Patten, 100 Conn.App. 155, 167, 917 A.2d 595, cert. denied, 282 Conn. 924, 925 A.2d 1102 (2007). Parole evidence offered solely to vary or contradict the written terms of an integrated contract is not deficient per se, as an evidentiary matter; rather, such evidence is legally irrelevant. TIE Communications, Inc. v. Kopp, supra, 288. As observed by the court in Weiss, " [t]he parol evidence rule does not itself . . . forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract . . . but forbids only the use of such evidence to vary or contradict the terms of [an integrated] contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant." (Internal quotation marks omitted.) Weiss v. Smulders, supra, 249. By contrast, parol evidence is admissible (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral, oral agreement that does not vary the terms of the writing; (3) to add a missing term in a writing that indicates on its face that it does not set forth the complete agreement; and (4) to show mistake or fraud. Jay Realty, Inc. v. Ahearn Development Corp., 189 Conn. 52, 56, 453 A.2d 771 (1983).
" In order for the bar against the introduction of extrinsic evidence to apply, the writing at issue must be integrated, that is, it must have been intended by the parties to contain the whole agreement . . . and to be a final expression of one or more terms of [the] agreement . . ." (Citation omitted; internal quotations marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 503, 746 A.2d 1277 (2000). " The parol evidence rule does not apply . . . if the written contract is not completely integrated . . . As a threshold matter, therefore, a court must conduct an inquiry . . . as to whether there is an integrated agreement." (Citation omitted; emphasis in original; internal quotation marks omitted.) Conn Acoustics, Inc. v. Xhema Construction, Inc., 88 Conn.App. 741, 745, 870 A.2d 1178 (2005); see 2 Restatement (Second), Contracts § 209(2) (1981) (" [w]hether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol evidence rule"); id., § 213, comment (b), p. 129 (in applying parol evidence rule, court must make preliminary determination that there is integrated agreement); see also Weiss v. Smulders, supra, 313 Conn. 249 (after discussing principles underlying parol evidence rule, noting that, " [w]ith these principles in mind, we turn to the language contained in the [subject] agreement").
" The intent of the parties determines whether the written agreement was the final repository of any oral agreements. If the court determines that the parties intended the writing to be an integrated agreement, the oral agreements are not considered when determining the contractual obligations of the parties." Conn Acoustics, Inc. v. Xhema Construction, Inc., supra, 88 Conn.App. 746. " A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotations marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., supra, 269 Conn. 610.
Turning to the present case, the first question presented by the plaintiff's motion is whether the parol evidence rule--being a substantive rule of contract law--may be invoked to challenge the legal sufficiency of a pleading by way of a motion to strike. Some judges of the Superior Court have held that a party may not invoke the rule in this context. For example, in denying a motion to strike on the basis of the parol evidence rule, one court held that " [i]n judging a motion to strike . . . it is of no moment that the plaintiff may not be able to prove [his] allegations at trial [because of the rule] . . . The sole inquiry at this stage is whether the [nonmoving party's] allegations, if proved, state a cause of action." (Citation omitted; internal quotation marks omitted.) Levine v. Bess & Paul Sigel Hebrew Academy of Greater Hartford, Inc., 39 Conn.Supp. 129, 132, 471 A.2d 679 (1983) (quoting Doyle v. A& P Realty Corp., 36 Conn.Supp. 126, 127, 414 A.2d 204 [1980]); accord Crocker Enterprises, Inc. v. Union Trust Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-92-0515326-S, (May 5, 1993, Walsh, J.) (denying motion to strike and holding that parol evidence rule " is irrelevant to the issue . . . [of] whether or not the plaintiffs' allegations, if proved, state a cause of action"); Fleet Bank of Connecticut, FKA v. George A. Tomasso Construction Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-90-0381955-S, (August 12, 1991, Maloney, J.) (denying motion to strike premised on parol evidence rule and holding that " [t]he fact that the claim might be difficult or impossible to prove under the rules of evidence does not render the claim insufficient as a matter of law" [citations omitted]). Courts in other jurisdictions have taken a different view. See, e.g., Holloway v. King, 161 Fed.Appx. 122, 124 (2d Cir. 2005) (holding that it was " proper for the district court to invoke the parol evidence rule to grant a [Federal Rules of Civil Procedure] [r]ule 12(b)(6) motion to dismiss" in a case arising under New York law); De Lage Landen Financial Services, Inc. v. Barton Nelson, Inc., United States District Court, Docket No. 08-0530 (MMB), (E.D.Pa. November 4, 2008) (" [w]here the parol evidence rule will bar the admission of statements necessary to establish a contract or tort claim, a court may properly grant a motion to dismiss" under rule 12[b]). The court in the present case, however, need not decide whether it is improper in all cases for a party filing a motion to strike to rely on the parol evidence rule, for it is clear that, on the current record, the rule does not bar counterclaims one through six.
A motion to dismiss filed pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure is similar to a motion to strike filed pursuant to Practice Book § 10-39. See DeLaurentis v. New Haven, 220 Conn. 225, 239-40, 597 A.2d 807 (1991) (observing that a motion to dismiss pursuant to rule 12(b)(6) " is similar to our motion to strike . . . and permits the court to dismiss the complaint for failure to state a claim upon which relief can be granted" [citation omitted; internal quotation marks omitted]); see also Soto v. Bushmaster Firearms International, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6048103-S (April 14, 2016, Bellis, J.) (62 Conn. L. Rptr. 141, 144, ) (" [r]ule 12(b)(6) is used to challenge the legal sufficiency of a pleading . . . and its equivalent in the state of Connecticut is our motion to strike").
To determine whether the parol evidence rule renders counts one through six legally insufficient, the court must begin with an analysis of the sales agreement to determine whether it is an integrated contract. Conn Acoustics, Inc. v. Xhema Construction, Inc., supra, 88 Conn.App. 745. This determination cannot be made in the context of the plaintiff's motion to strike. As previously discussed, a motion to strike must be adjudicated on the basis of an examination of the challenged pleading in this case, Hot Tub Products' counterclaims. The counterclaims, however, are devoid of any allegations relating to the issue of the integration of the sales agreement, and the sales agreement has not been attached to the counterclaims as an exhibit. Consequently, the court is unable to determine whether the sales agreement relied on by the plaintiff is integrated. Absent a threshold finding concerning contractual integration, the court cannot make a determination as to whether the parol evidence rule bars Hot Tub Products' counterclaims. Conn Acoustics, Inc. v. Xhema Construction, Inc., supra, 745. Given that the court cannot make a determination concerning integration based on the pleadings, the issue becomes one of fact necessarily precluding the granting of the plaintiff's motion to strike based on the parol evidence rule. Commissioner of Labor v. C.J.M. Services, Inc., supra, 268 Conn. at 293; see also Neiditz v. Housing Authority, 43 Conn.Supp. 283, 289, 654 A.2d 812 (1994) (whether a writing has been adopted as an integrated agreement is a question of fact).
In addition, even if the court were in a position to determine the question of contractual integration at this stage, the court cannot determine whether the " prior understanding" between the parties, as set forth in Hot Tub Products' counterclaims, would be admissible to: (1) explain an ambiguity appearing in the instrument; (2) prove a collateral oral agreement that does not vary the terms of the writing; (3) add a missing term in a writing that indicates on its face that it does not set forth the complete agreement; and/or (4) show mistake or fraud. Relying on Jay Realty, Inc. v. Ahearn Development Corp., supra, 189 Conn. 52, the plaintiff claims that Hot Tub Products' allegations do not satisfy any of the foregoing grounds for admitting parol evidence and thus, its allegations concerning the parties' prior understanding are legally insufficient. This argument fails. Without benefit of the sales agreement, the court cannot determine whether the sales agreement contains an ambiguity that requires explanation, or whether Hot Tub Products is attempting to prove a collateral oral agreement and/or add a missing term or terms.
Mistake or fraud is not claimed by Hot Tub Products.
Reading the counterclaims generously, the court concludes that the parol evidence rule does not render counterclaims one through six legally insufficient.
II
Counterclaims Five and Six
With respect to counterclaims five and six in particular, the plaintiff additionally argues that these claims are legally insufficient because Hot Tub Products has not alleged that it performed its obligations under the sales agreement and because the relief requested--money damages--is not permitted under the agreement.
A
Element of Contractual Performance
In Connecticut, the elements of a breach of contract action are: (1) the formation of an agreement; (2) performance by one party; (3) breach of the agreement by the other party; and (4) damages. Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
As set forth in its supporting memorandum of law, the plaintiff's legal analysis is limited to a citation of the necessary elements of an action for breach of contract, followed by the bare claim that the necessary element of performance is not alleged by Hot Tub Products. The plaintiff's argument concerning the issue of performance is devoid of meaningful legal analysis concerning the issue of contractual performance. Given this, the court will not consider the argument. A court is " not required to review issues that have been improperly presented to [it] through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Conn. Light & Power Co. v. Dep't of Pub. Util. Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
B
Claim for Money Damages
The court likewise will not address the plaintiff's argument with respect to Hot Tub Product's prayer for money damages, as this argument was raised only in the plaintiff's supporting memorandum and not in the motion itself. Practice Book § 10-39(b) requires that " [e]ach claim of legal insufficiency enumerated in [§ 10-39(a)] shall be separately set forth and shall specify the reason or reasons for such claimed insufficiency." In the present case, the plaintiff did not set forth in its motion to strike any claim that counterclaims five and six are insufficient because they request relief not provided for in the sales agreement. Rather, the only claims of insufficiency that are asserted in the motion with respect to these counterclaims are that they are barred by the parol evidence rule and fail to allege the necessary element of performance. As a result, the plaintiff did not comply with the requirements of § 10-39(b) as to this additional, claimed ground of legal insufficiency. Motions to strike that do not specify the grounds of claimed insufficiency should not be granted absent a waiver by the party opposing the motion. Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). " Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that [§ 10-39(c)], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [§ 10-39(b)] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart, supra, 861.
III
Counterclaims Seven and Eight
Finally, the plaintiff moves to strike counterclaims seven and eight--alleging negligence and negligent misrepresentation, respectively--on the ground that those counts are barred by the economic loss doctrine. In its opposition memorandum, Hot Tub Products stated its intention to replead these counts pursuant to Practice Book § 10-44 and did not brief any of the issues raised regarding the economic loss doctrine. In addition, at oral argument on the motion to strike, counsel for Hot Tub Products represented to the court that Hot Tub Products does not oppose the plaintiff's motion as to these particular counterclaims. As a result, the court does not address the substance of the plaintiff's arguments regarding these claims.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike is denied as to the first six counterclaims and granted as to the seventh and eighth.