Opinion
No. CV08 502 22 19S
September 15, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #109
The plaintiff, Paul Maxwell, commenced this action by service of process on the defendant, Westbrook Technologies, Inc., in July of 2008. The plaintiff's complaint sought to recover severance benefits from the defendant. On October 2, 2008, the defendant filed a motion to strike counts two through seven of the complaint. Count two alleged a breach of an implied contract, count three alleged a breach of the covenant of good faith and fair dealing, count four alleged unjust enrichment, count five alleged negligent misrepresentation, count six alleged a statutory wage claim, and count seven alleged civil theft. On November 17, 2008, the court granted the motion with respect to counts two, three, five and seven. On February 24, 2009, the plaintiff filed a request for leave to amend his complaint, along with an amended complaint. The defendant did not file an objection to the request.
The plaintiff's amended six-count complaint alleges the following facts. On or about April 28, 2005, the defendant and the plaintiff entered into a written agreement. This agreement provided that the plaintiff would receive the equivalent of twelve months salary, including annual on target commissions and benefits, if he were terminated. The agreement was a "signing bonus or special compensation." It was proposed by the defendant, "in order for [the plaintiff] to accept a lower paying position within the company." The defendant, through its various former and current chief executive officers, assured the plaintiff on several occasions that he would receive post-termination severance benefits. On or about May 27, 2008, the defendant terminated the plaintiff's employment. Although the plaintiff made two demands upon the defendant, he has yet to receive any severance payment. Furthermore, the defendant has failed to provide a "valid reason as to why payment should not be made."
Count one alleges a breach of contract, and count two alleges a breach of an implied contract. Count three alleges a breach of the covenant of good faith and fair dealing. On April 24, 2009, the defendant filed a motion to strike counts two through seven of the amended complaint. The defendant moves to strike count two on the grounds that the plaintiff has not alleged adequate facts to support the existence of an implied contract and that the claim is legally inconsistent with count one. Additionally, the defendant moves to strike count three of the amended complaint on the ground that the plaintiff fails to plead sufficient facts to sustain a cause of action sounding in bad faith. The plaintiff filed a memorandum of law in opposition on May 08, 2009. The matter was heard at short calendar on June 23, 2009.
Although the motion is labeled " DEFENDANT'S MOTION TO STRIKE COUNTS TWO THROUGH SEVEN OF THE PLAINTIFF'S COMPLAINT," it only provides grounds for counts two and three. As no grounds have been raised with respect to counts four through seven, that the court shall deny the motion with respect to those counts. See Practice Book § 10-41. Moreover, the motion is denied with respect to count seven because no such count exists.
The defendant argued that the plaintiff did not provide adequate facts to support count two in its memorandum of law, but not in its motion. Absent a waiver by the opposing party, the court should not grant a motion to strike that does not specify the grounds in the motion itself. See Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). Nevertheless, because the plaintiff did not object to the form of the motion, the court may consider it in the form presented. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991).
"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). In considering a 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). "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 defendant moves to strike count two on the ground that a claim for breach of implied contract is unavailable when a plaintiff simultaneously alleges the existence and breach of a written contract. The defendant also argues that the plaintiff has failed to plead sufficient facts to support such a claim. Further, the defendant asserts that count three should be stricken because it fails to sufficiently allege bad faith on the defendant's part, a necessary element of a claim for breach of the covenant of good faith and fair dealing.
With respect to count two, the plaintiff argues that he is entitled to plead the existence of both an express and implied contract because, under Connecticut law, a party may plead alternative counts that may be inconsistent. He also argues that he has sufficiently alleged facts that give rise to an implied contract. With respect to count three, the plaintiff argues that he has sufficiently alleged bad faith because he has asserted that the defendant refused to honor its contractual obligations.
Count Two — Breach of Implied Contract
"A contract is an agreement between parties . . . Contracts may be express or implied . . . If the agreement is shown by the direct words of the parties, spoken or written, the contract is said to be an express one. But if such agreement can only be shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances, then the contract is an implied one." (Internal quotation marks omitted.) Boland v. Catalano, 202 Conn. 333, 336-37, 521 A.2d 142 (1987). Moreover, "[an implied in fact] contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 804-05, 826 A.2d 1066 (2003).
The defendant argues that the plaintiff is not entitled to plead the breach of an implied contract in count two because he has also pleaded a breach of an express written contract in count one. The defendant further argues that by asserting that a written contract exists, the plaintiff may only seek relief under such contract. The defendant misinterprets Bershtein, Bershtein Bershtein, P.C. v. Nemeth, 221 Conn. 236, 603 A.2d 389 (1992), wherein the court stated that "[a] true implied [in fact] contract can only exist where there is no express one." (Internal quotation marks omitted.) Id., 241. In fact, a plaintiff may chose to plead the breach of an implied contract while alternatively pleading the breach of an express contract. Practice Book § 10-25 provides: "[A] plaintiff may claim alternative relief, based upon an alternative construction of the cause of action." See also Foote v. Shea, Superior Court, judicial district of New London, Docket No. 536281 (June 22, 1999, Mihalakos, J.) (the statement "`an implied contract can only exist where there is no express one' . . . means only that two parties may not simultaneously have an express and implied agreement with one another," thus the plaintiff properly pleaded both the breach of an express contract and the breach of an implied contract in the alternative).
Notwithstanding the ability to plead in the alternative, the plaintiff in this case has not properly pleaded a breach of an implied contract. Alternative causes of action must be asserted fully and in separate counts. See Practice Book § 10-26. By specifically incorporating all of the allegations asserted in count one, count two alleges that the parties entered into a written agreement and that an implied contract arose because the defendant acknowledged this agreement and promised the plaintiff post-termination severance benefits.
In William Raveis Real Estate v. Cendant Mobility Corp., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 05 4002709 (December 6, 2005, Stevens, J.), the court addressed a similar complaint. In that case, the court was not persuaded by the plaintiff's argument that it specifically alleged the existence of a written agreement in the separate count alleging unjust enrichment merely "for the purpose of framing the issues and affording context to the claim." (Internal quotation marks omitted.) Id. The court noted, "[while] the plaintiff may plead unjust enrichment in the alternative . . . this is not accomplished by incorporating into this count all the allegations of an express contract. Such a complaint does not involve alternative pleadings, but involves legally inconsistent pleading." Id.
In the present case, by incorporating the allegations of an express contract into count two, the plaintiff fails to sufficiently plead the breach of an implied contract for the same reasons articulated in William Raveis Real Estate v. Cendant Mobility Corp., supra, Superior Court, Docket No. CV 05 4002709. As the defendant correctly argues, the premise of the plaintiff's claim in count two, which is alleged in count one and incorporated into count two by reference, is that the defendant's denial of his claim for severance benefits violated the terms of the written contract. Therefore, count two does not involve alternative pleading, but involves legally inconsistent pleading. See also Rosick v. Equipment Maintenance Service, Inc., 33 Conn.App. 25, 37, 632 A.2d 1134 (1993) (explaining that recovery under a quantum meruit theory is only available if there is no express contract that governs). Consequently, this court grants the defendant's motion to strike count two of the amended complaint.
In his memorandum, the plaintiff argues that the defendant's promises would lead to an implied contract if the written contract should fail for some reason. While under certain circumstances, such a situation might give rise to a claim of promissory estoppel; see Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 113-14, 837 A.2d 736 (2003) (promissory estoppel claim survived, in light of an invalid contract, because the employee chose not to resign in reliance on her employer's promises); it would not give rise to a claim made under an implied contract theory.
Count Three — Breach of the Covenant of Good Faith and Fair Dealing
"[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).
"An action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly plead: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Savers Property Casualty Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 04 0833347 (February 9, 2005, Wagner, J.T.R.). "Bad faith means more than mere negligence; it involves a dishonest purpose . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." (Internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 576-77, 845 A.2d 417 (2004).
There is a split of authority within the Superior Court regarding what factual allegations are necessary to constitute bad faith. The first line of cases requires specific allegations establishing a dishonest purpose or malice. See Grant v. Colonial Penn Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 95 0321277 (January 16, 1996, Hauser, J.) ( 16 Conn. L. Rptr. 49); Crespan v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 05 4002121 (January 13, 2006, Pickard, J.); Bernard v. Buendia, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003054 (July 20, 2005, Doherty, J.). The second line of cases generally holds that plaintiffs need only allege sufficient facts or allegations from which it may be reasonably inferred that the defendant breached the implied covenant of good faith and fair dealing. See Algiere v. Utica National Ins. Co., Superior Court, Docket No. CV 04 0569670 (February 7, 2005, Jones, J.); McGill v. Mutual of Omaha Ins. Co., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 0104343 (September 28, 2004, Quinn, J.). Nevertheless, although these decisions demonstrate that not all judges of the Superior Court have held plaintiffs to the same standard with regard to the level of specificity required in stating a claim for breach of the covenant of good faith and fair dealing, none of these decisions have held that conclusory allegations are sufficient to support such a claim.
But see Ceruzzi Derby Redevelopment, LLC v. Derby, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 08 5009782 (July 1, 2009, Blawie, J.) (relying on Froom Development Corp. v. Developers Realty, Inc., 114 Conn.App. 618, 628, 972 A.2d 239 (2009), to hold that while the plaintiff did not specifically use the terms "malice," "bad faith" and "ill will" in its complaint, "[t]he presence of bad faith, the opposite of good faith, is . . . a permissive inference where a breach of the duty of good faith is specifically alleged").
In the present case, the only allegations that the plaintiff puts forth to support a claim of bad faith is that the defendant has not provided any rationale for its failure to pay any severance benefits, despite its various representations that it would. Though the plaintiff's allegations, if proven, may show that the defendant refused to fulfill its obligations under the agreement, they are insufficient to show any dishonest purpose or sinister motive on the part of the defendant. See Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993) ("[n]eglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive"). Consequently, the plaintiff's allegations do not meet all three pleading requirements such that, if proven, they would support a cause of action for breach of the covenant of good faith and fair dealing.
For the foregoing reasons, the court grants the defendant's motion to strike counts two and three of the amended complaint because they are legally insufficient. Further, the court denies the motion as to counts four, five and six as the defendant has not articulated any basis for its motion as to counts four, five and six.