Summary
denying defendant's motion to strike intentional infliction of emotional distress claim when plaintiffs alleged that defendant wrote a letter threatening to have them arrested and then arranged for a police officer to call threatening the same, despite the fact that plaintiffs had not committed a crime
Summary of this case from Magee v. City of Gary, Indiana (N.D.Ind. 11-20-2007)Opinion
No. CV06-4009213S
June 30, 2006
MEMORANDUM RE MOTION TO STRIKE #101
By motion dated March 3, 2006, the defendant, Leonel Padilla, moves to strike counts two, three and four of the plaintiffs' complaint dated December 28, 2005. For the reasons stated below, the motion to strike is denied.
FACTS AND PROCEDURAL HISTORY
On January 23, 2006, the plaintiffs, Michael and Talia Fischer, filed a four-count complaint against the defendant, Leonel Padilla. This action arises out of a breach of contract dispute between the plaintiff homeowners and the defendant contractor, Leonel Padilla.
In count one, the plaintiffs allege that the defendant breached the contract by performing the work in an unskillful and negligent manner. Count two alleges violation of General Statutes § 42-110 et seq., the Connecticut Unfair Trade Practices Act (CUTPA) in two distinct ways. First, the plaintiff alleges that the defendant represented himself as an experienced builder who performed similar work to the work set forth under the agreement, and that, as shown by the work performed, did not have the appropriate background to perform the work agreement. Second, the plaintiff alleges that the agreement failed to contain both a notice of the owner's cancellation rights and a completion date, which did not comply with General Statutes § 20-429(a) (the "Home Improvement Act"). Count three alleges intentional infliction of emotional distress, in that the defendant (1) mailed a threatening letter to the plaintiffs, which inappropriately and outrageously threatened to have them arrested, despite their having committed no crime, and (2) arranged for a police officer to call the plaintiffs, threatening to have them arrested, despite having committed no crime. In so doing, the plaintiffs allege that the defendant intended to cause the plaintiffs extreme distress or knew or should have known that the conduct would cause the plaintiffs emotional distress. Count four alleges negligent infliction of emotional distress, alleging the same conduct from count three and additionally alleging that by writing and sending the letter and having the police officer call the plaintiffs, the defendant should have realized his conduct involved an unreasonable risk of causing emotional distress and that such distress might result in illness or bodily injury, and that, in fact, the plaintiffs suffered from emotional distress.
On March 3, 2006, the defendant filed a motion to strike counts two, three, and four of the plaintiffs' complaint on the grounds that they fail to state a legally sufficient cause of action. On March 27, 2006, the plaintiff filed an objection to the motion to strike. The matter was heard on the short calendar on April 24, 2006.
DISCUSSION
Standard of Review
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [cause of action] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC V. Alves, 262 Conn. 480, 498 (2003). A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). Thus, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "The standard of review for granting a motion to strike is well settled . . . [The court] must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn.App. 351, 359, cert. denied, 266 Conn. 911 (2003).
CUTPA
General Statutes § 20-429(a) provides in relevant part:" No home improvement contract shall be valid or enforceable against an owner unless it: (1) is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor . . ." Pursuant to General Statutes § 20-427(c), any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice and constitutes a per se violation of CUTPA. Meadows v. Higgins, 49 Conn.App. 286, 296, 714 A.2d 51 (1998) rev'd on other grounds, 249 Conn. 155, 733 A.2d 172 (1999).
Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 338-39, 815 A.2d 1276 (2003). As such, "homeowners may initiate an action with a complaint seeking damages based on allegations under CUTPA for a contractor's violation of the Home Improvement Act." Pereira v. DeLeon, Superior Court, judicial district of Danbury, Docket No. CV 04 4000637 (Aug. 5, 2005, Bellis, J.) ( 39 Conn. L. Rptr. 723) (citing Tang v. Bou-Fakhreddhine, supra, 340). See also Kenneally v. First General Services of Eastern CT, Co., Ltd., Superior Court, judicial district of Hartford, Docket No. CV 04 0832077 (August 31, 2005, Miller, J.).
The defendant has not argued that CUTPA claims based on violations of the Home Improvement Act are per se insufficient. Rather, he argues that the plaintiff must properly allege a causal connection between the noncompliance and the damages claimed in order to sustain an "ascertainable loss" under CUTPA. The defendant cites two Superior Court decisions in support of his assertion that the plaintiff has failed to allege such a connection in the present case. See Tolosi v. American Asphalt Co., Superior Court, judicial district of Litchfield, Docket No. CV 03 0091245 (March 15, 2005, Trombley, J.); Lunn v. Hussy, Superior Court, judicial district of Litchfield, Docket No. CV 01 0085525 (December 29, 2003, Brunetti, J.).
General Statutes § 42-110g(a) provides: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has its principal place of business, or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under the section. The court may, in its discretion, award punitive damages and may provide such equitable relief, as it deems necessary or proper." (Emphasis added.)
In both cases, such a conclusion was only reached after trial, where it had already been determined by the finder of fact that the plaintiff caused the damages rather than the defendant, and as such, could not recover for per se violations of CUTPA. "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Larobina v. McDonald, supra. Reading the complaint in a light most favorable to the plaintiffs, the complaint in the present case does allege a causal connection between the violations of the Home Improvement Act and the damages alleged; namely, that the violations prevented them from making informed decisions regarding the use (or termination) of the defendant. Accordingly, the motion to strike count two is denied.
Intentional Infliction of Emotional Distress
In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society.
Valentine v. LaBow, 95 Conn.App. 436, 448 (2006) (citations omitted; internal quotation marks omitted).
The defendant bases his argument on the court's "gatekeeping function" to determine whether a reasonable fact finder could find the conduct alleged to be extreme or outrageous, relying on Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 869 A.2d 275 (2005). In Hartmann, the court noted that "in assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." Id., 295.
It is submitted that such a role is quite different from that of "strict policing" as cited by the defendant in Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0050418 (June 29, 1999, Corradino, J.). In Denault, on a motion for summary judgment, the court only reached its conclusion after evaluating the evidence presented and determining that there was no genuine issue of material fact as to the character of the communications at issue. Here, the defendant correctly notes that the court cannot even properly evaluate the letters allegedly written by the defendant. Accordingly, the procedural posture of the present matter certainly prevents the court from policing the tort as strictly as in Denault.
As to count three, the defendant argues that the allegations do not rise to the level of "extreme and outrageous conduct" to support an intentional infliction of emotional distress claim. Specifically, the defendant argues that calling the police about a "legitimate dispute" and writing a letter "about collecting monies due him under the subject agreement for work he fully and properly performed" cannot legally rise to the level of "extreme or outrageous." "[The court] must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Emphasis added.) Heim v. California Federal Bank, supra, 78 Conn.App. 359. The only communications the court can properly consider on the present motion to strike are those presented by the plaintiffs, which are that the defendant (1) wrote a letter threatening to have the plaintiffs arrested, despite their having committed no crime, and (2) arranged for a police officer to call the plaintiffs threatening the same. The court cannot find that, as a matter of law, reasonable minds could not differ as to whether this behavior constituted extreme and outrageous conduct. Accordingly, the motion to strike count three is denied.
Negligent Infliction of Emotional Distress
In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court for the first time recognized a cause of action for negligent infliction of emotional distress. We continually have held that "in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001). In Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995), we further reasoned:" This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable."
Carroll v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
As to count four, the defendant, citing Carroll, argues that "the plaintiffs fail to allege the type of conduct necessary to constitute the type of behavior one would foresee as causing an unreasonable risk of emotional distress." In the present case, the plaintiff alleges that the defendant threatened to have them arrested, despite their having committed no crime. Similarly, Carroll itself dealt with a defendant whose conduct created an unreasonable risk of causing the plaintiff emotional distress, particularly because the plaintiff reasonably feared exposure to criminal arson charges. Id., 447. Under the circumstances alleged in this case, the court finds that the plaintiffs have sufficiently pled behavior one would foresee as causing an unreasonable risk of emotional distress. Accordingly, the motion to strike count four is denied.