Opinion
No. FST CV 08-5008751 S
January 13, 2010
MEMORANDUM OF DECISION MOTION TO STRIKE #107 BACKGROUND
The plaintiff filed a writ, summons and complaint dated August 29, 2008. The complaint alleges a single count of breach of contract by the defendants, Kathleen and Frank Plimpton. The complaint also alleges that the plaintiff entered into a written agreement to have the plaintiff perform interior decorating services for the defendants. The defendants filed an answer and a counterclaim on November 25, 2008. The counterclaim includes five counts. The second count of the counterclaim alleges a violation of the Uniform Commercial Code-Sales, C.G.S. § 42a-2-301 and 42a-2-309(1). The plaintiff now seeks to strike the second count of the counterclaim for failure to state a cause of action upon which relief can be granted. The defendants have filed an Objection to the motion dated August 7, 2009. The motion was heard by the court on October 13, 2009.
DISCUSSION
"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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
The plaintiff contends that the allegation of a violation of Article 2 of the Uniform Commercial Code applies to "goods" and does not apply in the present action because it is not a contract for "goods." In particular, the plaintiff argues that if there is a mixed contract, that is goods and services, the predominant purpose test would apply. In this action, the plaintiff contends under this theory, the claim must be stricken.
The defendants contend that there are no sums of money designated as to the costs of the goods and that as such, the costs when compared to the overall amounts paid were substantial and therefore the plaintiff cannot be successful on the motion to strike because of the amounts paid for goods.
The defendants' argument, although interesting, is misguided because it is not the actual amount that is expended on the goods that determines whether it is services or goods. If this were so, one expensive product that is purchased in conjunction with a service could improperly place the contract within the Uniform Commercial Code. (UCC).
The defendant has alleged that; "Connie Beale is a seller under article 2 of the Uniform Commercial Code" and that the "furnishing are goods under article 2 of the Uniform Commercial Code." (Counterclaim, Second Count, Par. 18 and 19.) Article two of the UCC applies to "transactions in goods." General Statutes § 42a-2-102. The UCC defines goods as "all things . . . which are movable at the time of identification to the contract for sale other than money in which the price is to be paid . . ." General Statutes § 42a-2-105(1). Further, "[g]oods must be both existing and identified before any interest in them can pass . . . A purported present sale of future goods or of any interest therein operates as a contract to sell." General Statutes § 42a-2-105(2).
Article two of the UCC does not provide guidance for contracts that consist of mixed services and goods. Additionally, although there is no Appellate authority on the matter, Connecticut trial courts have held that article two does not apply when the predominant purpose of the contract is for services rather than goods: "It is clear that where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods under the UCC." Gulash v. Stylarama, 33 Conn.Sup. 108, 111, 364 A.2d 1221 (1975).
In Gulash v. Stylarama, a Connecticut trial court held that a contract for the installation of a swimming pool was not covered by the UCC. Gulash v. Stylarama, supra, 33 Conn.Sup. 108. The court noted that "the contract describe[d] the transaction as a furnishing of labor and materials. It [did] not label the arrangement as a `sale' of the pool." Id., 111. Further, the court was persuaded by the wording of the contract and by the difficulty in separating the labor and services from the material and equipment. Id., 113. The court stated: "The two component parts do not readily permit that cleavage." Id., 113.
In another case, a Connecticut trial court held that the use of products in a beauty treatment was not a sale of goods. Epstein v. Giannattasio, 25 Conn.Sup. 109, 197 A.2d 342 (1963). The court looked at the jurisprudence of other states and noted a common reliance on finding the predominant purpose of a contract, whether it be for goods or services, when determining whether to apply the UCC. Id., 113. The court stated: "Building and construction transactions which include materials to be incorporated into the structure are not agreements of sale." Id., 113. The court then reasoned that "the plaintiff asked [the defendant] for a beauty treatment, and not for the purchase of goods." Id., 112. In that case, the court concluded that "the subject of the contract was not a sale of goods but the rendition of services." Id., 114.
In the present case, the plaintiff and counterclaim defendant, interior designer Connie Beale (Beale), moves to strike count two of the counterclaim for failure to state a cause of action upon which relief may be granted. In the counterclaim, the defendants and counterclaim plaintiffs, Kathy Plimpton and Frank Plimpton (the Plimptons) state they entered into a written contract with Beale to perform interior decorating services. The counterclaim notes that Beale would present new furniture, re-upholstery, window coverings, wall coverings, fabrics, and floor covers for the project to the Plimptons before ordering them, Further, the Plimptons allege that Beale is a seller under the UCC and that she violated General Statutes §§ 42a-2-3301 and 42a-2-309(1) when she failed to transfer and deliver goods to the Plimptons in a reasonable time.
The Plimptons argue that article two of the UCC applies, because their allegation specifically regards Beale's failure to turn over goods purchased by the Plimptons. Additionally, the Plimptons argue that the majority of Beale's charges were for goods rather than services. Beale argues that the contract between the Plimptons and herself is not governed by the UCC, because the contract is predominantly a services contract.
Courts in other states have looked at the relationship of goods to interior design contracts, specifically. In one case, the Supreme Court of New Mexico looked at a mixed contract for interior design services and the sale of goods and found that the interior design services were the predominant purpose of the contract. Kirkpatrick v. Introspect Healthcare, 845 P.2d 800, 114 N.M 706 (1992). In order to come to this conclusion, the court noted that the contract itemized the services to be performed, which included developing an ambience, choosing a color scheme, and suggesting architectural changes. Id., 804. Those services required the plaintiff's "experience and expertise to develop a distinctive interior design . . ." Id., 804.
The Supreme Court of Kansas also addressed this issue. Care Display, Inc. v. Didde-Glaser, Inc., 589 P.2d 599, 225 Kan. 232 (1979). In Care Display, Inc. v. Didde-Glaser, Inc., the court held that a contract for the design and construction of a trade show exhibit was one for services, rather than goods. Id., 605. The court reasoned that "the major objective [of the contract] contemplated utilizing the knowledge and expertise of [the plaintiff] to create a unique setting in which to exhibit and promote to best advantage the products of Didde-Glaser." Id., 605. These holdings advance the notion that designers are chosen for their expertise and skill in creating a setting rather than for their ability to provide goods.
The Plimpton's allegations support a finding that the predominant purpose of the contract was for services rather than goods. The counterclaim alleges that the Plimptons contracted with Beale to perform interior decoration. A transaction that requires the incorporation of materials does not make it an agreement for a sale, and a contract for interior design and decorating services necessarily incorporates the provision of some materials. Additionally, the arrangement was not labeled as a sale of furnishings.
Based upon the above, the court grants the counterclaim defendant's motion to strike the second count of the counterclaim.