Opinion
No. 08-5008444S
June 5, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112.1)
FACTS
On August 28, 2008, the plaintiffs, Dan and Laura Mackin, filed a sixteen-count complaint against the defendants, Jila Construction LLC and Irving Small. The plaintiffs allege they entered into a contract in Griswold, Connecticut to build a single family residence in Troy, Vermont. Allegedly, the defendants deficiently constructed certain items and abandoned the project before completion. The complaint alleges the following causes of actions against both defendants: breach of contract, negligence, violation of the Home Solicitation Sales Act, violation of the New Home Construction Contractors Act, violation of the New Home Warranties Act, negligent misrepresentation, civil theft, and violations of the Connecticut Unfair Trade Practices Act (CUTPA).
On January 28, 2009, the defendants filed a motion to strike counts three, four, five, seven, eight, eleven, twelve, thirteen, fifteen, and sixteen of the plaintiffs' complaint along with the corresponding second, third, and forth prayers for relief. On February 9, 2009, the defendants filed a revised motion to strike to specify the grounds on which they base their motion to strike. Specifically, the defendants note that counts three and eleven should be stricken on the grounds that the Home Solicitation Sales Act does not apply to a new home construction and as such cannot support a CUTPA claim. Counts four and twelve should be stricken because the New Home Construction Contractors Act is inapplicable to construction performed in another state and as such cannot support a CUTPA claim. Counts five and thirteen should be stricken because the New Home Warranties Act does not apply when the builder builds on land already owned by the landowner. Counts eight and sixteen should be stricken as the plaintiffs fail to plead a violation of CUTPA with sufficient particularity and do not allege violations sufficient to rise to the level of a CUTPA violation. On February 23, 2009 the plaintiffs filed their objection to the defendants' revised motion to strike. This matter was heard at short calendar on March 30, 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). Accordingly, "[i]f 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).
I. Counts Three and Eleven
The defendants move to strike counts three and eleven of the plaintiffs' complaint on the basis that the Home Solicitation Sales Act (HSSA) does not apply to new home construction and as such cannot support a CUTPA claim. The defendants note that the contract signed between the plaintiffs and defendants was for the construction of a new home. As such, the defendants argue that the HSSA, as cited by the plaintiffs in the complaint in counts three and eleven, are not applicable because the construction of a new home is not the purchase of goods or services as defined in the HSSA. The plaintiffs, in their objection to the motion to strike, argue that relevant case law actually supports the proposition that a new home construction is governed under the Home Solicitation Sales Act. The plaintiffs cite to Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087 (1995), aff'd 240 Conn. 58, 689 A.2d 1097 (1997), where the court found that the addition of a swimming pool was governed by the HSSA. The plaintiffs note that the construction of the swimming pool became part of the real property and, as such, is analogous to the construction of a new home.
In Rizzo, the Connecticut Supreme Court notes that "the trial court improperly concluded that the HSSA did not apply to the parties' contract. Because we have determined that the parties' agreement constitutes a `home improvement contract' under the [Home Improvement Act], the contract also is subject to the requirements of the HSSA. See General Statutes § 20-429(e) (`each home improvement contract entered into shall be considered a home solicitation sale pursuant to [the HSSA] and shall be subject to the requirements of said [act] regardless of the location of the transaction or of the signing of the contract')." Rizzo Pool Co. v. Del Grosso, supra 232 Conn. 680, n. 20. The decision for the court to apply the HSSA to the construction of a swimming pool was not to recognize the swimming pool as part of the real property of the home or to recognize the construction of a new home as falling under the HSSA. Rather the decision was in conformity with the Home Improvement Act (HIA) which requires all home improvement contracts to be in compliance with the HSSA.
The HIA explicitly states in its definition that a home improvement does not include "[t]he construction of a new home . . ." General Statutes § 20-419(4)(A). Since the HIA is not applicable here, then by extension the Rizzo analysis used by the plaintiffs is not applicable either. There appears to be no appellate court case on point as to whether the HSSA is applicable to new home construction. However, the trial courts seem to be of the unanimous opinion that new home constructions do not fall under the definition of a consumer good or service as defined in the HSSA. See, Jackson v. Fortunato, Superior Court, judicial district of Stamford, Docket No. CV 88 0096695 (July 31, 1995, Ryan, J.) ("It is found that the construction of a home is not a consumer good or service, and the count must be stricken."); See also, Faragasso v. Degeorge Home Alliance, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0162664 (Dec. 7, 1998, D'Andrea, J.) (citing Jackson v. Fortunato, Superior Court, judicial district of Stamford, Docket No. CV 88 0096695 (July 31, 1995, Ryan, J.) to hold that the construction of a new home is not considered the purchase of goods or services as defined under the HSSA): see also Habetz v. Condon, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 90 033236 (Sept. 27, 1991), aff'd 224 Conn. 231 618 A.2d 501 (1992) (finding that the HSSA does not apply to new home construction or a major addition to an existing home). The court in Faragasso noted that the "[c]onstruction of a residence or a major addition to it is not the purchase of goods or services. The work performed becomes part of the real estate . . . The constructions from the definition of home solicitation sale confirm that a major addition to a residence is not covered by the HSSA . . . Legislative intent not to include house construction under the HSSA is shown by the existence of a separate set of statutes for that purpose, the HIA." Faragasso v. Degeorge Home Alliance, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0162664 (Dec. 7, 1998, D'Andrea, J.). The court in Jackson, in explaining the Habetz decision, noted that the "construction of a residence is not the purchase of goods or services, reasoning that the improvement became part of the real estate, and could not be returned to the vendor. It is found that the construction of a home is not a consumer good or service, and the count must be stricken." Jackson v. Fortunato, Superior Court, judicial district of Stamford. Docket No. CV 88 0096695 (July 31, 1995, Ryan, J.). Overall, the courts seem to be of the opinion that unless the violation is one that is covered by a statute mandating compliance with the HSSA (i.e. HIA), that the construction of a new home or major addition to a residence is not covered under the HSSA. Therefore, counts three and eleven are stricken.
II. Counts Four and Twelve
The defendants move to strike counts four and twelve of the plaintiffs' complaint on the basis that the New Home Construction Contractors Act is inapplicable to construction performed in another state and as such cannot support a CUTPA claim. The defendants note that the contract was to construct a home in Troy, Vermont. The plaintiffs, in their objection to the motion to strike, note that the act does not limit itself to construction within the state. Furthermore, the plaintiffs argue that the act is meant to apply to contracts entered into in Connecticut regardless of where the home construction is to take place.
The New Home Construction Contractors Act is silent as to whether the act applies to the construction of homes outside of Connecticut. There is no case law on point either. Therefore, the meaning of the act must be derived through statutory construction. Justice Scalia has noted: "Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces substantive effect that is compatible with the rest of the law . . ." United Savings Ass'n. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). The New Home Construction Contractors Act has various references to statutes and provisions that identify it as applicable only to the State of Connecticut. In General Statutes § 20-417a(2) the statute defines "Commissioner" as the "Commissioner of Consumer Protection." It would be presumptive to conclude that such position exists in another state were this statute to apply to construction in other states. Another example is from General Statutes § 20-417b(b)(3) where the statutes discusses other "provisions of the general statutes." (Emphasis added.) Other states may not use the term "general statutes" and the use of the word "the" before "general statutes" suggests the application is limited to the Connecticut General Statutes. As such, the New Home Construction Contractors Act only applies to new homes built in Connecticut, thus, counts four and twelve are stricken.
III: Counts Five and Thirteen
The plaintiffs have withdrawn these counts.
IV: Counts Seven and Fifteen
The defendants move to strike counts seven and fifteen of the plaintiffs' complaint but do not provide a basis for the court to consider. The Connecticut Appellate Court stated "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, 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." Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). As such, the defendants' motion to strike counts seven and fifteen is denied.
V: Counts Eight and Sixteen
The defendants move to strike counts eight and sixteen on the grounds that the plaintiffs failed to plead a violation of CUTPA with sufficient particularity and do not allege violations sufficient to rise to the level of a CUTPA violation. Specifically, the defendants argue that since they believe the counts in the complaint based on the various statutes and acts should be stricken, the basis for a CUTPA claim no longer exists. The plaintiffs counter that the seventh and fifteenth counts of the complaint sound in civil theft which is a violation of General Statutes § 52-564. This provides a basis for a CUTPA violation.
"It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission 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] . . ." Updike, Keely Spellacy, P.C. v. Beckett, 269 Conn. 613, 655-56, 850 A.2d 145 (2004). The defendants' motion to strike the CUTPA claim appears to be based on the plaintiffs' failure to satisfy the first prong of the cigarette rule. The plaintiffs have established, however, that counts seven and fifteen are based on a violation of General Statutes § 52-564. Therefore, the plaintiffs meet the first prong of the cigarette rule. The motion to strike counts eight and sixteen is denied. The motion to strike the corresponding second, third, and fourth prayers for relief is denied as well.