Opinion
No. FST CV 08 6000995S
August 31, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (108.00)
I. BACKGROUND AND FACTS
On July 30, 2008, the plaintiff, Richard Harris, commenced this action by service of process against the defendants, Corey Kupersmith (Kupersmith), Millenium Par Holdings, LLC (Millenium), and Farlap Development Corporation (Farlap). On December 24, 2008, the plaintiff filed a sixteen-count second amended complaint which is now the operative pleading and which sets forth the following claims against each defendant, respectively: (1) breach of contract; (2) promissory estoppel; (3) violation of General Statutes § 31-71e; (4) misrepresentation; and (5) unjust enrichment. Additionally, the plaintiff sets forth a claim of defamation against Kupersmith.
The second amended complaint alleges the following facts. In early 2000, the defendants hired the plaintiff as vice president of construction to assist the defendants in the construction of a golf course on Martha's Vineyard. The defendants agreed to pay the plaintiff $9,000 per month for his services. Soon after the plaintiff started working, however, the defendants asked if they could defer part of his compensation while the project was pending. The plaintiff agreed, relying on the defendants' promise to pay him the deferred compensation in the future.
From September through December of 2000, the defendants paid the plaintiff $6,000 per month, deferring, $3,000 of his pay per month. From January through September 2001, the defendants paid the plaintiff $3,000 per month, deferring $6,000 of his salary per month. As time went on the defendants continued to defer more of the plaintiff's salary. Beginning in September 2001, the defendants paid the plaintiff only $1,500 per month, deferring the rest. In April 2002, the defendants requested that the plaintiff defer all of his compensation. The plaintiff agreed, relying on the defendants' promise to pay this compensation in the future. The plaintiff continued to work for the defendants, without receiving immediate compensation, through March of 2004. The plaintiff left the defendants' employment when the golf course project was rejected by Martha's Vineyard officials.
After leaving the defendants' employment, the plaintiff waited for payment of his deferred compensation. It is alleged that he knew that much of the property purchased for the rejected golf course had been sold and the rest of it had been approved for new home development. The plaintiff periodically asked various individuals when he would receive his deferred compensation and was continuously reassured through the first half of 2008 that he would be compensated. Although it appeared that the defendants were finally going to pay the plaintiff at least part of what was owed to him, Kupersmith decided that he would not pay the plaintiff, and the plaintiff never received any of the outstanding deferred compensation.
On October 24, 2008, the defendants moved to strike all counts in the plaintiff's amended complaint. The defendants submitted a memorandum in support of their motion. On December 24, 2008, the plaintiff submitted an objection to the defendants' motion to strike, as well as the second amended complaint. By agreement of the parties, the court will view the motion to strike as directed at the second amended complaint, dated December 24, 2008. The parties were heard at short calendar on May 4, 2009.
The defendants move to strike counts one through fifteen of the complaint on the ground that the plaintiff's claim is barred by the applicable statute of limitations. In addition, the defendants move to strike counts one, four, seven, ten, eleven, twelve, thirteen and sixteen as legally insufficient.
The grounds for the motion are stated only in the defendants' brief and not on the face of the motion, as required by Practice Book § 10-41, rendering it defective. See Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001) (stating "that Practice Book § [10-42] . . . requir[ing] a motion to strike to be accompanied by an appropriate memorandum of law . . . does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself"). The court, however, may entertain the motion if the opposing party has not objected on this basis because the requirement is not jurisdictional in nature. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991). In the present case, the plaintiff has not so objected, and thus, the court will consider the merits of the motion.
II. STANDARD OF REVIEW
"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. 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).
III. DISCUSSION A. Statute of Limitations
First, the court will address whether the plaintiff's claims are barred by the applicable statutes of limitations. The defendants contend that the plaintiff commenced this action outside the applicable statutes of limitations for each of his claims. In response, the plaintiff claims that the defendants' acts constitute a continuing course of conduct, and therefore, toll the applicable statutes of limitations. Specifically, as alleged in the complaint, the plaintiff contends that the defendants deferred the plaintiff's wages and then subsequently made statements and promises regarding the payment of the plaintiff's deferred compensation. In reliance on the defendants' statements, the plaintiff withheld bringing an action to enforce the debt. The defendants, however, failed to act in accordance with their statements and promises and never paid the plaintiff the deferred compensation owed.
The defendants contend that the following statutes apply to the plaintiff's claims. For counts one through three, sounding in breach of contract, counts seven through nine, alleging a failure to pay wages in violation of General Statutes § 31-71e and counts thirteen through fifteen, sounding in unjust enrichment, the defendants claim that General Statutes § 52-596 is applicable. Section 52-596 provides in relevant part: "No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues . . ." For counts four through six, sounding in promissory estoppel, the defendant asserts that General Statutes § 52-581 is applicable. Section 52-581(a) provides: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues."
Lastly, for counts ten and eleven, sounding in misrepresentation, the defendants assert that General Statutes § 52-584 is applicable. Section 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
"Ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn 337, 344-45 n. 12, 890 A.2d 1269 (2006). "In two limited situations, however, [the court] will allow the use of a motion to strike to raise the defense of statute of limitations. The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question of whether the action is barred by the [s]tatute of limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer . . . The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citation omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993); see Phills v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. CV 09 4027290 (March 25, 2009, Bellis, J.).
In the present case, the parties fail to address substantively the issue of whether a motion to strike is appropriate to raise statute of limitations issues. The plaintiff objects only on the ground that the "continuing course of conduct" doctrine bars the application of the appropriate statutes of limitations to counts one through fifteen. The defendants mention the issue in a footnote in their memorandum of law, but do not argue that the "two limited situations" mentioned in Ballaro apply in this case. As it is not the province of the court to formulate arguments for the parties, the court will not address the issue. Further, as the plaintiff has not objected on the ground that the statutes that the defendant argues apply to the plaintiff's claims do not apply, the court will address the claims as if the parties agree that said statutes apply to each claim. See Wright v. DB Co., Superior Court, judicial district of New Haven, Docket No. CV 0486068 (May 3, 2007, Licardi, J.) (stating that the court will decide the motion on the grounds argued by the parties and will not address the statute of limitations exceptions set out in Girard v. Weiss, as the plaintiff has not opposed the motion on those grounds); Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003) (permitting a deviation from ordinary procedure where the nonmovant fails to object to defendant's use of motion to strike for adjudication of otherwise improperly pleaded grounds).
"When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [A] statute of limitations . . . may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a [party] to commence his or her lawsuit at a later date." (Citations omitted; internal quotation marks omitted.) Southern New England Telephone Co. v. Lewis, Superior Court, judicial district of New Haven, Docket No. CV 98 0408723 (February 18, 2003, Robinson-Thomas, J.).
"The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . [W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . To support a finding of a `continuing course of conduct' that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have [terminated prior] to commencement of the period allowed for bringing an action for such wrong . . . The courts have developed a test for determining whether such a duty existed: Where we have upheld a finding that a duty continued to exist after the cessation of the `act or omission' relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . But, the existence of an initial breach of a duty and the continued existence of that duty into the period of limitations is not sufficient to satisfy the continuing course of conduct doctrine." (Citations omitted; internal quotation marks omitted.) White Oak Corp. v. American International Group, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 07 4027319 (July 6, 2009, Shortall, J.T.R.). "[T]he application of the continuing course of conduct doctrine [is] conspicuously fact-bound." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 210, 746 A.2d 730 (2000).
In the present case, the plaintiff alleges that he was hired by the defendants in 2000, to assist in building a golf course on Martha's Vineyard. The defendants agreed to pay the plaintiff $9,000 per month. Soon after the plaintiff began working, the defendants asked if they could defer part of his compensation while the project was pending. The plaintiff agreed, and from September through December 2000, the defendants deferred the $3,000 per month of the plaintiff's compensation. The defendants gradually increased the amount of compensation deferred per month, and in September 2001, the defendants were deferring $7,500 of the plaintiff's compensation. The plaintiff continued to work for the defendants, receiving reduced compensation, until March 2004.
While awaiting payment of his deferred compensation, the defendants reassured the plaintiff that he would be paid. The defendants are alleged to have carried the deferred payments on their books as a liability. The plaintiff periodically made inquiries as to when he would be paid, and the defendants and their chief financial officer continued to reassure him that he would be paid. In early 2007, the plaintiff sent the defendant Kupersmith an email requesting payment of his deferred compensation. Thereafter, in May 2007, the defendant Kupersmith again promised the plaintiff that he would be paid the deferred compensation, and blamed the delay on his chief financial officer. In early 2008, the plaintiff continued to seek his deferred compensation, and corresponded with the new chief financial officer, who acknowledged that the defendants owed the plaintiff deferred compensation. The plaintiff, however, has not been paid any of the deferred compensation.
When reading the allegations in the light most favorable to the nonmoving party, the plaintiff sufficiently alleges a continuing relationship between the parties and continued wrongful conduct relating to the defendant's promises of future payment of the plaintiff's deferred compensation. As the plaintiff alleges facts of continued wrongful conduct, the court finds that the plaintiff sufficiently alleges a "continuing course of conduct" that tolls the applicable statute of limitations for counts one through fifteen. The plaintiff alleges that defendant's misrepresentations relating to his pay continued from the time he stopped being employed by the defendants in 2004, through 2007 and into early 2008. As the present case was commenced on July 30, 2008, it is clear that these allegations are sufficient to overcome a motion to strike based on the applicable statutes of limitations. Accordingly, the defendants' motion to strike on the grounds that the statute of limitations has run is denied.
The court will now address the defendant's motion to strike challenging the legal sufficiency of counts one, four, seven, ten, eleven, twelve and sixteen.
The defendants alternatively argue that count four should be stricken because there are no allegations that Kupersmith "did or said anything calculated to induce the plaintiff's reliance." This argument is unpersuasive as the plaintiff clearly alleges that the "defendants" and specifically Kupersmith, made promises to pay the plaintiff his deferred compensation and the plaintiff relied on these promises to his detriment.
Although the defendants challenge the legal sufficiency of counts two and three in their motion, they failed to mention this point at all in their memorandum of law, and thus, the court will not address the legal sufficiency of said counts. "[This court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract reasoning, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted . . . but thereafter received only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed abandoned." (Emphasis added; internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
B. Piercing the Corporate Veil
The defendants move to strike counts one and seven on the ground that Kupersmith cannot be held personally liable for the acts or omissions of the defendant companies Millenium and Farlap merely because of his official position. In response, the plaintiff claims that court should pierce the corporate veil and hold Kupersmith personally liable for the acts of the companies, as he exercised complete control over the companies and used their assets for his personal benefit. Thus, the corporate structure should be disregarded and Kupersmith should not enjoy the immunity typically afforded to corporate officers.
In count one, the plaintiff alleges the following facts that support his claim that the court should pierce the corporate veil and hold Kupersmith liable for the acts of Millenium and Farlap. The plaintiff alleges that Kupersmith is the owner of the defendant corporations Millenium and Farlap, which assumed the assets of Millenium. Kupersmith exercised complete control over the corporations with respect to all aspects of the business and as to all dealings with the plaintiff. Specifically, Kupersmith used assets of the companies for his own personal use. He bought a share in a private jet with corporate assets and then used this jet to provide transportation for his family and friends, as well as renting a house on Martha's Vineyard with corporate assets for both business and personal use.
The plaintiff incorporates these facts into all subsequent counts.
The plaintiff further alleges that Kupersmith employed the plaintiff and Keith Crocco (Crocco), to handle his private mail, bank accounts and other private matters. Both the plaintiff and Crocco were paid with corporate assets. Among other things, Kupersmith used the plaintiff to supervise and perform renovations on his private home. This work included: expansion of the lower level game room; the addition of a new half bathroom in the basement; the instillation of a new bilco door entrance and stairs to the storage area; renovation of the pool house and the barn and stable; reconstruction of a road and path for Kupersmith's horse; and the building of a new paddock area. Additionally, as part of his employment, Kupersmith had the plaintiff: negotiate and secure a tenant for the lease of Kupersmith's barn and stables; take care of property Kupersmith owns in Rye, New York; and take care of and make repairs to a residence owned by Kupersmith which was on the market in order to facilitate the sale. Lastly, the plaintiff alleges that it was Kupersmith's decision to not pay the deferred compensation.
Typically, members of a limited liability company are not held personally liable on corporate contracts, absent tortious conduct on behalf of the individual. See General Statutes § 34-133. Section 34-144(a) provides in relevant part: "[A] person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company."
"[O]ur Supreme Court has held that we may disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor . . . The doctrine of piercing the corporate veil applies equally to limited liability companies." (Citation omitted; internal quotation marks omitted.) Fischer v. Bella-Vin Development, LCC, Superior Court, judicial district of Danbury, Docket No. CV 07 5003012 (October 10, 2008, Shaban, J.).
"The concept of piercing the corporate veil is equitable in nature." Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., 187 Conn. 544, 555, 447 A.2d 406 (1982). "It is clear that the key factor in any decision to disregard the separate corporate entity is the element of control or influence exercised by the individual sought to be held liable over corporate affairs . . . The court must avoid an over-rigid preoccupation with questions of structure . . . and apply the preexisting and overarching principle that liability is imposed to reach an equitable result . . . The party seeking to pierce the corporate veil bears the burden of proof . . .
"Connecticut recognizes two theories under which it will permit the corporate veil to be pierced and the protection of the corporate structure to be set aside. Those theories also apply to the protection afforded by a limited liability company . . . The first theory is the instrumentality rule. The instrumentality rules requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of . . .
"The second theory is the identity rule. The identity rule is typically used to reach beyond the corporate veil to another corporation but may also be used to reach an individual . . . If plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise . . . The identity rule primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities . . . There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will, or existence of its own and is but a business conduit for its principal." (Citations omitted; internal quotation marks omitted.) Tzvolos v. Wiseman, Superior Court, judicial district of New Haven, Docket No. CV 04 0488839 (May 3, 2007, Cosgrove, J.).
"The identity rule has been stated as follows: [I]f a plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of corporate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise . . ." (Citations omitted; internal quotation marks omitted.) Cadle Co. v. Zubretsky, Superior Court, judicial district of Hartford, Docket No. CV 04 0832477 (January 30, 2008, Hale, J.T.R.) ( 44 Conn. L. Rptr. 843, 844). Further, "[a]lthough the `identity' or `alter-ego' doctrine has been primarily applied to reach beyond the veil to another corporation, it may also be employed to hold an individual liable." Klopp v. Thermal-Sash, Inc., 13 Conn.App. 87, 89 n. 3, 534 A.2d 907 (1987).
"We note additionally that of the many factors underlying a finding that the instrumentality or identity rule has been satisfied, no one factor or group of factors is necessarily dispositive of the inquiry. However, when the statutory privilege of doing business in the corporate form . . . is employed as a cloak for the evasion of obligations, as a mask behind which to do injustice, or invoked to subvert equity, the separate personality of the corporation will be disregarded." (Internal quotation marks omitted.) Cadle Co. v. Zubretsky, supra, 44 Conn. L. Rptr. 844.
In Davenport v. Quinn, 53 Conn.App. 282, 301-02, 730 A.2d 1184 (1999), the court stated that: "Utilizing the identity rule, [the court] concludes that the evidence compels the conclusion that [Quinn] was, at all relevant times, the `alter ego' of all of his enterprises. The relative lack of formalities observed, the failure to completely document various transactions, the free use by the entities and [Quinn] to make `officer's loans,' loans and pay various debts, and the payments to himself of large salaries after the claim arose, as well as other evidence make it clear that there was such a unity of interest and ownership that the independence of the corporation, if it indeed ever existed, ceased to exist."
In the present case, the plaintiff's aforementioned allegations state that Kupersmith used the assets of the companies for his own personal use and exercised complete control over the companies with respect to all aspects of the business. Thus, when reading these allegations in the light most favorable to the nonmovant, the allegations are sufficient to show that the lack of formalities, use of employees for personal business and use of the LLC's assets for personal matters, evidence such a unity of interest and ownership that the independence of the LLCs, if it indeed ever existed, ceased to exist. Thus, the court finds that the plaintiff has alleged sufficient facts to pierce the corporate veil and hold Kupersmith liable for the acts and omission of the defendant companies.
In addition, with respect to count seven, as the plaintiff points out, the Connecticut Supreme Court has held that an individual can be personally liable as an employer pursuant to General Statutes § 31-72 despite the fact that a corporation is the nominal employer of the employee, if the individual is ultimately responsible for paying the wages, setting the hours, and is the cause of the wage violation. Butler, Commissioner of Labor ex rel Marjorie Skidmore v. Hartford Technical Institute, Inc., 243 Conn. 454, 464 (1997).
C. Kupersmith's Liability for Tortious Conduct
The court will now address the defendants' argument that the court must strike counts four, ten and thirteen, as Kupersmith cannot be held liable for his conduct when acting in his capacity as a member of defendant companies. In response, the plaintiff argues that, with respect to these counts, Kupersmith cannot escape personal liability for his own tortious conduct simply because he is a member of the defendant companies.
It is clear that "an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." Scribner v. O'Brien, Inc., 169 Conn. 389, 403, 363 A.2d 160 (1975); Fischer v. Bella-Vin Development, LLC, supra, Superior Court, judicial district of Danbury Docket No. CV 07 5003012 (October 10, 2008, Shaban, J.). Thus, an officer of a limited liability company is personally liable and accountable for wrongful acts or misconduct committed by him.
In the present case, the plaintiff alleges that on multiple occasions "the defendants" made promises to pay the plaintiff the deferred compensation allegedly owed, and failed to do so. Additionally, the plaintiff alleges specifically that Kupersmith promised to pay the plaintiff, blaming the delay on an employee. As the plaintiff has alleged that Kupersmith participated in the tortious acts, the plaintiff has sufficiently alleged facts to impose individual liability on Kupersmith.
D. Misrepresentation
In counts ten through twelve, the plaintiff alleges misrepresentation against the defendants. The plaintiff claims that the defendants represented to the plaintiff several times that his deferred compensation would be paid and that the defendants knew, or should have known, that such representations were false. The plaintiff further claims that he relied on the defendants' misrepresentations and that as a result of the defendants' actions he suffered financial damages. The plaintiff does not state what form of misrepresentation the claim is for.
"A cause of action for a misrepresentation can take several forms, innocent, negligent and intentional . . . [and] the elements required differ slightly between each cause of action." Gandolfo v. Barker, Superior Court, judicial district of Hartford, Docket No. CV 06 5003862 (March 11, 2008, Dubay, J.). "Intentional misrepresentation is synonymous with fraudulent misrepresentation." (Internal quotation marks omitted.) Walker v. Connecticut General Life Ins. Co., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 05 4006649 (June 21, 2007, Cremins, J.).
The defendants first move to strike the plaintiff's claim of fraudulent misrepresentation on the ground that the plaintiff has not alleged the first and second elements of fraudulent misrepresentation. "The essential elements of a cause of action in [fraudulent misrepresentation] are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates, Ltd. Partnership, 113 Conn.App. 509, 522, 967 A.2d 550 (2009).
In the present case, the plaintiff alleges the defendants knew or should have known their representations were false. "It is not sufficient to claim the defendant should have known of the falsity of a representation in a claim for fraudulent misrepresentation; the plaintiffs must allege the defendant actually knew his statements were false. In contrast, a claim for negligent, or innocent misrepresentation, may be actionable if the declarant had the means of knowing, ought to know, or has the duty of knowing the truth." Wardak v. Wierzbicki, Superior Court, judicial district of Hartford, Docket No. CV 04 4002711 (April 17, 2006, Keller, J.). As such, the plaintiff has failed to allege the necessary elements for fraudulent misrepresentation.
The court will, therefore, examine the defendants' argument that the plaintiff has also failed to make a legally sufficient claim for negligent misrepresentation. "[Connecticut courts have] long recognized liability for negligent misrepresentation. [The courts] have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts [1979]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information . . . Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result . . . There must be a justifiable reliance on the misrepresentation for a plaintiff to recover damages . . . The basic element of a claim for misrepresentation, however, is whether there was a misstatement . . . Without a misrepresentation, there can be no justifiable reliance." (Internal quotation marks omitted.) Pursuit Partners, LLC v. UBS AG, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X05 CV 08 4013452 (July 8, 2009, Blawie, J.).
The defendants move to strike the plaintiff's claim for negligent misrepresentation on the ground that the plaintiff fails to plead the elements of negligent misrepresentation and that the plaintiff merely states a conclusion of law without supporting facts.
"Connecticut's [A]ppellate [C]ourts have stated that conclusory statements or statements of legal effect not supported by allegations of fact will not enable a complaint to withstand a motion to strike . . . however, they have accepted very summary or general allegations as sufficient to withstand a motion to strike." Lavoie v. Bayer Corporation, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 01 010168392 (January 23, 2002, Hodgson, J.) ( 31 Conn. L. Rptr. 391, 392). "[E]ven if the complaint contains a `sparsity' of facts, for purposes of a motion to strike a court must assume that evidence is available to give content to the sparse facts alleged on an element of the cause of action." Id., 393, citing, Bohan v. Last, 236 Conn. 670, 675, 674 A.2d 839 (1996).
For example, in D'Ulisse-Cupo v. Board of Directors, 202 Conn. 206, 520 A.2d 217 (1987), our Supreme Court found that a plaintiff who alleged that the defendants "negligently misrepresented the facts to the plaintiff" had stated a cause of action for negligent misrepresentation even though the plaintiff did not allege the precise conduct that she claimed was negligent. In addressing this issue, the court in D'Ulisse-Cupo stated, "the plaintiff's allegation that the defendants negligently misrepresented the facts to the plaintiff necessarily implied that the defendants did not exercise reasonable care or competence in communicating with the plaintiff about her prospects for reemployment. Although the complaint could have alleged the nature of the defendants' negligence more precisely, the lack of linguistic specificity does not warrant striking the second count . . . [U]nder the rules of practice governing pleading, a party may plead legal effect as long as the pleading fairly [apprises] the adverse party of the state of facts which it is intended to prove . . . [T]he facts alleged by the plaintiff in this case fairly apprised the defendants of her intent to pursue a claim for negligent misrepresentation. Moreover, if the defendants were in doubt as to the nature of this claim or the legal theory underlying it, they could have sought a more particular description of the negligence charged by filing a request to revise . . . The defendants in this case never filed such a request. We conclude, therefore, that . . . the plaintiff's allegation of negligent misrepresentation . . . is sufficient to withstand a motion to strike." (Citations omitted; internal quotation marks omitted.) Id., 220-21.
In the present case, the plaintiff alleges the following: (1) that the defendants made a misrepresentation of fact by representing to the plaintiff that he would be compensated for his work; (2) that the defendants knew or should have known that this statement was false; (3) that the plaintiff reasonably relied on this misrepresentation and continued to work for the defendants with the expectation of future compensation; and (4) that the plaintiff suffered pecuniary harm in that he was not paid for his work. Even though the representations made to the plaintiff were about a future event, "[a] representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 681, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).
This court finds that "the facts alleged by the plaintiff in this case fairly apprised the defendants of [his] intent to pursue a claim for negligent misrepresentation;" D'Ulisse-Cupo v. Board of Directors, supra, 202 Conn. 220; and that the plaintiff's allegations sufficiently set forth the elements required for a cause of action for negligent misrepresentation. Accordingly, the plaintiff has alleged a legally sufficient cause of action for negligent misrepresentation.
E. Defamation
In count sixteen, the plaintiff alleges that he was defamed by the defendant Kupersmith. The plaintiff claims that on May 20, 2008, Kupersmith published an email to a number of people in which he called the plaintiff "an extortionist, a big sc-m, a piece of sh-t, a bottom feeder, and a blood sucking son of a b-tch." The plaintiff contends that said written statements constitute libel per se.
The defendants move to strike this count on the ground that it is legally insufficient because even assuming the truth of the plaintiff's allegations, the statements made are not defamatory as Kupersmith was merely expressing an opinion. In the alternative, the defendants move to strike on the ground that the plaintiff has not alleged that he requested, in writing, a retraction of the alleged libelous statement.
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). "Additionally, [t]o be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Shea v. Waterbury, Superior Court, judicial district of New Britain, Docket No. CV 08 5007926 (February 20, 2009, Tanzer, J.).
"Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him." (Internal quotation marks omitted.) Id. "Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." (Internal quotation marks omitted.) Mercer v. Cosley, supra, 110 Conn.App. 297.
"While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod . . . A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication . . . When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover . . . The damages must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed and that conduct must be directly caused by the publication . . .
"Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him . . .
"Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached . . . To fall within the category of libels that are actionable per se because they injure a man's profession, it must be a statement that charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business." (Citations omitted; internal quotation marks omitted.) Shea v. Waterbury, supra, Superior Court, Docket No. CV 08 5007926. In the present case, the defendants argue that the statements the plaintiff alleges Kupersmith wrote in an email were merely an opinion. "A statement can be identified as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . In a libel action, such statements of fact usually concern a person's conduct or character . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact . . . This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated . . . Thus, while this distinction may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact . . .
"A defamatory communication may [however] consist of a statement in the form of an opinion [and] a statement of this nature is actionable . . . if it implies the allegation of undisclosed defamatory facts as the basis for the opinion . . . The Supreme Court, albeit in the different context of `fair comment,' noted that an opinion must be based upon facts; if the facts are neither known nor stated, then a defamatory opinion implies that there are undisclosed defamatory facts which justify the opinion . . . The damage of such an implication is that the person defamed becomes the victim of the prejudiced and distorted judgment of not only the defamer, but also of everyone who hears and believes the opinion without knowing it is based on incorrect and untrue facts . . . In short, expressions of `pure' opinion (those statements based upon known or disclosed facts) are guaranteed virtually complete constitutional protection . . . On the other hand, opinion statements that `imply knowledge of existing facts' are not protected and can ultimately be considered as defamatory as pure factual statements." (Citations omitted; internal quotation marks omitted.) Shea v. Waterbury, supra, Superior Court, Docket No. CV 08 5007926.
"The application of the fact/opinion analysis is a difficult one . . . The coarseness of modern conversation and the increasing acceptance of hyperbole in social discourse have made the proper application of the concept even harder . . . A certain amount of vulgar name-calling is tolerated, on the theory that it will necessarily be understood to amount to nothing more . . . [A statement such as] `[h]e is a big piece of crap' is clearly an expression of opinion that is not actionable, as it implies no specific undisclosed facts." (Citations omitted; internal quotation marks omitted.) Snyder v. Cedar, Superior Court, judicial district of New Haven, Docket No. CV 01 0454296 (February 16, 2006, Pittman, J.).
This court concludes that the plaintiff's claim that Kupersmith wrote the plaintiff was a "piece of sh-t," a "bottom feeder," a "big sc-m" and a "blood sucking son of a b-tch," are merely expressions of opinion and are not legally sufficient to set for a claim of libel per se. See Id. The plaintiff's claim that Kupersmith wrote that he was an "extortionist," however, is a statement that could be based upon fact. It is not apparent from the face of the complaint the context in which the statements were made and whether the statement made by Kupersinith was based on facts that were stated or known thereby transforming it into a pure opinion statement. The court is limited to the facts in the complaint as pleaded by the plaintiffs and as read in a light most favorable to them. Therefore, the allegation that Kupersmith called the plaintiff an "extortionist" cannot necessarily be considered a pure opinion statement. See Shea v. Waterbury, supra, Superior Court, Docket No. CV 08 5007926. Accordingly, the defendants' argument that even assuming the truth of the plaintiff's allegations, the statements made are not defamatory because Kupersmith was merely expressing an opinion, must fail.
The defendants alternatively move to strike this count on the ground that the plaintiff has not alleged that he requested, in writing, a retraction of the alleged libelous statement as required by General Statutes § 52-237.
Section 53-237 provides: "In any action for a libel, the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved." In the present case, the defendants have failed to acknowledge that there are two possible courses of action a plaintiff may take. According to the statute, the plaintiff can prove " either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge . . . failed to do so . . ." (Emphasis added.) General Statutes § 52-237. Therefore, the defendants' reasoning that the count is legally insufficient because the plaintiff did not submit a written request for a retraction is flawed.
This court will not address whether the plaintiff has sufficiently pleaded "malice in fact," as this issue is not raised by the defendant in his motion to strike.
IV. CONCLUSION
In conclusion, the court denies the defendants' motion to strike counts one through fifteen on the grounds that the plaintiffs claims are barred by the applicable statutes of limitations, as the plaintiff sufficiently alleges a continued course of conduct by the defendants which tolls the statutes of limitations.
The court also denies the defendants' motion to strike counts one, two, three, four, seven, ten and thirteen on the ground that Kupersmith cannot be held personally liable, as the plaintiff sufficiently alleges that Kupersmith participated in the tortious conduct.
Further, the defendants' motion to strike counts ten, eleven and twelve is denied, as the plaintiff's allegations sufficiently set forth the elements required for a cause of action for negligent misrepresentation.
Lastly, it is submitted that the defendants' motion to strike count sixteen is denied, as the plaintiff's allegation that Kupersmith called him an "extortionist" cannot necessarily be considered a pure opinion statement.