Opinion
No. FST 10-6002996 S
September 27, 2011
MEMORANDUM OF DECISION MOTION TO STRIKE AMENDED COUNTERCLAIM #208.00
INTRODUCTION
The present action was filed by the plaintiff, First Service Williams Connecticut LLC ("First Service") by writ, summons and complaint dated December 23, 2009. The defendants are Cory Gubner ("Gubner") and RHYS, LLC which is the business formed by the defendant Gubner. The parties have engaged in prolonged pleading and on April 7, 2011 the defendants filed an Amended Counterclaim. The Counterclaim consists of Three Counts and a Prayer for Relief. On May 2, 2011, the plaintiff, First Service, filed a motion to strike the Third Count of the April 7, 2011 Amended Counterclaim and also the claim for double damages, attorneys fees and punitive damages in connection with the Amended Counterclaim. The defendant submitted a memorandum in opposition to the motion dated June 9, 2011. The court heard argument on June 15, 2011.
FACTUAL BACKGROUND
The action involves the relationship between First Service and Cory Gubner that ended when Mr. Gubner left the employ of the plaintiff on or about September 24, 2009 and began work with RHYS, LLC, a defendant in this action. The background of the action and the initial pleading has been fully set forth in the Memorandum of this court dated January 6, 2011. The court relies upon that background and incorporates it for purposes of this decision.
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.) CT Page 20587 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). 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 is the proper vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) ( 26 Conn. L. Rptr. 547) "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006) Further, our Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing . . . [An] argument [that] would require the court to consider facts outside the face of the pleadings . . . would be improper on a motion to strike . . ." (Citations omitted.) Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 27 92 67 (May 22, 1990, Schimelman, J.) ( 1 Conn. L. Rptr. 651).
The defendant filed an Amended Counterclaim that included as the Third Count a claim for breach of implied covenant of good faith and fair dealing. Additionally, the defendant included in his prayer for relief a claim for double damages and attorneys fees pursuant to Conn. Gen. Stat. § 31-72 based upon the claim of the Second Count and a claim for punitive damages pursuant to the allegations in the Third Count.
The plaintiff contends in the motion to strike that the allegations in the Third Count do not sufficiently allege facts in support of a claim for breach of implied covenant of good faith and fair dealing and thus the court should grant the motion to strike. The plaintiff contends that the allegations in the Third Count simply mirror the allegations of the First Count alleging a cause of action for breach of contract and thus do not satisfy the elements to rise to the level of an action for a violation of the implied covenant of good faith and fair dealing pursuant to the Third Count. The defendant contends that the Third Count adequately provides a factual basis for a claim of breach of implied covenant of good faith and fair dealing. The defendant argues that the decision as to whether there is support for the claim is a question of fact for the court. This argument is premature. The only issue now before the court is whether the factual statements in the Third Count are sufficient to allow the cause of action to continue. This motion does not go beyond the sufficiency and address claims more appropriate for summary judgment.
The Third Count of the Amended Counterclaim does incorporate a portion of the factual premise alleged in Count One. This includes paragraphs 17 and 18 that allege the following: "17. First Service purposely withheld payment to Gubner of brokerage commissions to which he was entitled subsequent to his departing First Service and/or knowingly and improperly withheld payment of brokerage commissions for an unreasonable period of time." and "18. First Service collected brokerage commissions from which Gubner was entitled to payment, and paid other brokers who were entitled to a portion of the commission while withholding payment to Gubner of brokerage commissions."
However, the Third Count includes additional allegations in paragraphs 32 through 36 in support of the claim. In part, the allegations include that:
"32. At the time that certain of the brokerage commissions were due to be paid to Mr. Gubner, First Service calculated the amount of the commissions due and owing Mr. Gubner, and checks reflecting certain of the brokerage commissions were drafted and made payable to the order of Mr. Gubner.
33. Months after the payments were due and the checks had been drafted payable to the order of Mr. Gubner the checks were intentionally withheld and not forwarded to Mr. Gubner.
34. When Mr. Gubner inquired of First Service why he was not being paid certain brokerage commissions, he was told that, even thought (sic) the brokerage commissions were due and owning, he was intentionally not paid the commissions because the parties were otherwise in litigation."
The defendant Gubner then alleges that these actions amount to a breach of good faith and fair dealing and constitute bad faith on the part of the plaintiff.
An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements: "(1) that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; (2) that the defendant engaged in conduct that injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract; and (3) that when committing the acts by which it injured the plaintiff's right to receive under the contract, the defendant was acting in bad faith." Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 095028391 (October 19, 2009, Domnarski, J.) ( 2009 Ct.Sup. 17328).
Good faith and fair dealing mean an attitude or state of mind denoting honesty of purpose, freedom from intention to defraud and being faithful to one's duty or obligation. Buckman v. People Express, Inc., 205 Conn. 166, 530 A.2d 596 (1987). "The definition [of good faith] requires not only honesty in fact but also `observance of reasonable expectations of the contracting parties as they presumably intended. Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 190, 540 A.2d 693 (1988).
The plaintiffs' arguments miss the mark as to what has been pled. They have incorporated only a small portion of the First Count and neglected to recognize the additional claims by the defendant. The plaintiff has relied upon a number of Superior Court decisions that have determined the complaint was insufficient when it incorporated only claims regarding a breach of contract violation. In Meehan v. The Press, Inc., Superior Court, judicial district of Danbury, Docket No. 321002 (February 22, 1996, Moraghan, J.) the plaintiff alleged he was owed commissions that he earned while employed by the defendant. However, in Meehan the plaintiff simply re-alleged the facts in support of his breach of contract claim to support a claim of breach of good faith and fair dealing. The court determined in Meehan that because NO other facts except the facts included in the breach of contract were included it was proper to grant the motion to strike. In the instant action, Gubner provides language in paragraphs 17 and 18 of the First Count that alleges conduct that is knowing, intentional and unreasonable. However, the amended counterclaim in the instant action includes a further allegation that the plaintiff engaged in intentional acts to hold commissions from the defendant. Gubner specifically alleges how he is treated differently than others who have received commissions. Gubner goes on to allege that the plaintiff actually determined what the amount was, wrote a check and then decided not to give it to him because the parties are in litigation. Such claims are sufficient to allege a cause of action because they speak to actions taken by the plaintiff which if true may demonstrate a sinister motive, or a purposeful act to withhold funds that are part of the contractual obligation.
In Crespan v. State Farm Mutual Automobile Insurance Co., Superior Court, judicial district of Litchfield, Docket No. CV 054002121 (January 13, 2006, Pickard, J.), the court stated that in order to prevail on a claim of bad faith it is necessary for the complaint to allege a specific act that was performed purposely and with a sinister intent. The allegations in paragraphs 32 through 36 sufficiently allege such acts to support the claim. The motion to strike the Third Count is denied.
CLAIMS FOR DAMAGES
In conjunction with the Third Count, the counterclaim requests punitive damages. The plaintiff contends that the court should strike this claim for damages because the Amended Counterclaim fails to allege wanton or willful malicious misconduct, in order to state a claim for relief. The court has denied the motion to strike this claim on the very same argument. Therefore, the motion to strike the claim for punitive damages is denied for the reasons stated above as to the factual allegations of the defendant, Gubner.
The plaintiff also contends that there is insufficient legal basis for the relief requested pursuant to the Second Count for an award of double damages, attorneys fees and costs. The prayer for relief which includes this claim for damages is not part of the pleading of the legal action. In fact, the claim is based upon § 31-72 which provides for: "a discretionary award of attorneys fees to employees who are successful in actions against their employers for wages due." Crowther v. Gerber Garnet Technology, Inc., 8 Conn.App. 254, 265-66, 513 A.2d 144 (1986). In Crowther, the court determined at the conclusion of the trial whether and to what extent the court would award the discretionary damages. The claim in the prayer for relief is dependent upon the findings of the trial court in regard to Count Two. If Gubner is successful in relation to Count Two the court will then examine the findings to determine if there is bad faith, arbitrariness or unreasonableness to support such an award. Sansone v. Clifford, 219 Conn. 217, 592 A.2d 931 (1991). The plaintiff has not filed a motion to strike in relation to Count Two and thus has not challenged the sufficiency of the pleadings. In Klein v. William Raveis Estate, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 000181224 (April 10, 2001, Lewis, J.) [ 29 Conn. L. Rptr. 355], the court granted a motion to strike the statutory claim for non payment of wages based upon the insufficiency of the pleading and thus the court included in its ruling the striking of the claim for damages. The plaintiff has referred to some Superior Court actions that have granted a motion to strike the claim for damages but the facts of this action which include the claim pursuant to § 31-72 leaves to the discretion of the court a determination of whether there is bad faith or unreasonable conduct that would allow such a finding. Nothing in the statutory claim mandates the award of such damages. Therefore, since the Second Count which alleges the statutory claim is presently remaining as a cause of action, the damages permitted by the statute should remain for the court to determine in its' discretion.
CONCLUSION
For the above reasons, the motion to strike the Third Count and the claims for damages are denied.