Opinion
No. MMX CV10-6003857-S
May 25, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
I.
PROCEDURAL HISTORY
On November 9, 2010 the plaintiff, Eclipse Systems, Inc., filed a two-count complaint against the defendant, Charles Harrell, alleging breach of contract and CUTPA violations, respectively. On December 8, 2010, the defendant filed a motion to strike the second count of the complaint on the ground that the plaintiff has failed to plead the substantial aggravating circumstances necessary to recover under CUTPA. The defendant filed a memorandum in support of his motion. On December 22, 2010, the plaintiff filed a memorandum in opposition to the defendant's motion to strike, as well as an amended complaint. The defendant filed a reply on December 22, 2010. The matter was heard on the short calendar on March 21, 2011.
II.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof . . ." Practice Book § 10-39. In ruling on the motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (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). In its consideration, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[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, supra, 292 Conn. 120.
The defendant argues that, in count two, the plaintiff merely alleges a breach of contract and then states, in conclusory terms with no factual allegations in support, that the defendant's activities constitute deceptive and unfair trade practices. The defendant asserts that for a CUTPA claim to survive a motion to strike the plaintiff must allege substantial aggravating factors, but has failed to do so in the present case. The plaintiff argues that the original complaint describes the defendant's unethical behavior and is, therefore, legally sufficient to state a claim under CUTPA. Nonetheless, the plaintiff submitted an amended complaint purporting to address the arguments made by the defendant in his memorandum. In his reply, the defendant argues that an amended complaint cannot be filed to avoid an adverse decision on a motion to strike. The defendant further asserts that even the amended complaint is legally insufficient in that it, too, fails to plead substantial aggravating circumstances and also fails to allege why the defendant's activities are immoral, unethical, unscrupulous or offensive to public policy.
Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day." In the present case, the return date noted on the original complaint is November 30, 2010. As the amended complaint was filed on December 22, 2010, less than thirty days after the return day, the complaint was properly amended as of right and, therefore, the amended complaint is the operative complaint. See Conroy Electric, LLC v. Dos Santos, Superior Court, judicial district of Hartford, Docket No. CV 06 5005023 (July 30, 2007, Wiese, J.). Pursuant to Practice Book § 10-61, "[w]hen any pleading is amended . . . [and] the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading." The court will, therefore, consider the defendant's motion to strike as it applies to count two of the amended complaint, which, as in the original pleading, sounds in violation of CUTPA.
"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). It is well settled that in determining whether a practice violates CUTPA [our Supreme Court has] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or 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] . . . 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." (Internal quotation marks omitted.) Naples v. Keystone Bldg. and Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010).
"[T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation." Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). "Although there is a split of authority in the Superior Courts regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of Superior Court decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA]." (Internal quotation marks omitted.) Raffone v. Home Depot U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0465471 (June 23, 2003, Harper, J.) ( 34 Conn. L. Rptr. 747). "When the superior courts have permitted a CUTPA cause of action based on a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances . . . The question therefore becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation." (Internal quotation marks omitted.) Patrician v. Melanson, Superior Court, judicial district of Middlesex, Docket No. CV 05 4004508 (July 10, 2006, Dubay, J.). "Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims . . . and multiple breaches of contract." (Citations omitted.) Reich v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV 07 5012682 (December 10, 2010, Peck, J.).
"A simple contract breach is not sufficient to establish a violation of CUTPA . . . where a count simply incorporates by reference the breach of contract claim and does not set forth how or in what respect the defendant's activities are either, immoral, unethical, unscrupulous, or offensive to public policy." (Internal quotation marks omitted.) Riggott v. Candelora, Superior Court, judicial district of New Haven, Docket No. CV 10 6013382 (February 25, 2011, Woods, J.), citing Ranger v. Gianmarco, Superior Court, judicial district of Middlesex, Docket No. CV 08 5004260 (October 7, 2008, Holzberg, J.). In the present case, the plaintiff, in his amended complaint, merely states that the defendant repeatedly, willfully and intentionally breached a term of their contract, and that such breach was unethical, unscrupulous and offensive to public policy, without alleging facts in support of those conclusory statements. Moreover, the plaintiff does not allege substantial aggravating circumstances, such as fraud or misrepresentation. Accordingly the court grants the defendant's motion to strike count two of the amended complaint.
III.
CONCLUSION
For the foregoing reasons, the motion to strike is granted.
So ordered.