Opinion
No. CV08-5006408S
January 6, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #121 AND MOTION TO STRIKE #122
FACTS
On June 26, 2008, the plaintiff, OG Industries, Inc., filed a two-count complaint against the defendants Earth Technology, Inc. and Western Surety Company for breach of contract and for a claim against the bond, respectively. This action arises out of construction contracts for the development of a Target retail store owned by the Target Corporation in Ansonia, Connecticut. OG alleges the following in the complaint. Target "engaged" the Konover Construction Corporation "to serve as [the] construction manager" to oversee the construction and development of its retail store, herein the project contract. Konover then contracted with Earth Technology to perform sitework and environmental services, the sitework subcontract. Finally, Earth Technology contracted with OG to supply and install concrete and asphalt paving, the asphalt paving sub-subcontract. Thereafter, on December 1, 2008, the court, Tyma, J., granted the defendants' motion to cite Konover and Target as additional defendants.
Earth Technology filed a second amended, five-count complaint and counterclaim against Target and Konover on July 30, 2009. In counts one and two, Earth Technology seeks damages from Konover and Target respectively for breach of contract. Earth Technology alleges that Konover, at Target's behest, entered into an agreement which required Konover to compensate it for the work performed by it and its subcontractors, one of which was OG; that OG substantially performed under the asphalt paving sub-subcontract in substantial compliance with its specifications; that Target rejected the asphalt and demanded Konover remove and replace it; that Earth Technology then demanded OG remove and replace the asphalt, with which it complied, but did so under protest; that to pay OG for the work performed, Earth Technology billed Konover and Target; and that they have failed and refuse to pay for any of the disputed work billed by OG. Earth Technology alleges that Konover therefore breached its sitework subcontract with knowledge that without this payment, Earth Technology would be unable to pay OG $112,136.74 plus costs, interest and fees claimed. Earth Technology further alleges that Target either directly or through Konover has withheld "additional monies due [it] for work done . . . in the amount of $175,000.00 as `retainage'"; and that under the terms of the sitework subcontract, all retainage was due no later than one year after completion of the contract, or no later than September 20, 2008. In addition to seeking monetary damages for the breach of the contract in the amount of $287,136.74, exclusive of interest, costs and fees, Earth Technology seeks to recover attorneys fees and costs based on a provision in the sitework subcontract.
Although filed by both Earth Technology and Western Surety, it appears claims made in this pleading are on behalf of Earth Technology.
More specifically, in paragraphs thirteen through twenty-four, Earth Technology alleges that work completed on the property was to be in compliance with the standards set forth in the State of Connecticut, Department of Transportation's 2004 Standard Specifications for Roads, Bridges and Incidental Construction (DOT specifications) and in accordance with the specifications set forth in the project contract. It further alleges that after OG supplied and installed the asphalt paving, engineers retained by Target took the position that the paving failed to meet the gradation and compaction requirements of the DOT specifications. Earth Technology maintains, however, that the deviations in OG's asphalt paving were within the tolerances and percentages set forth in the DOT specifications.
Earth Technology's second amended complaint provides inconsistent dates as the completion date of the subcontract. Paragraph thirty-one of counts one and two state that "[Earth Technology] completed all of its work under the above [subcontract] on September 30, 2007." Paragraph thirty-two of counts one and two state that "[a]t the time of [Earth Technology's] completion of work on September 20, 2007, [Earth Technology] was owed a retainage amount . . ." This inconsistency in pleading, however, does not effect the court's analysis of the motions to strike.
In counts three and four, Earth Technology alleges that Konover and Target respectively breached their duty of good faith and fair dealing by refusing to pay the sums due under the sitework subcontract, which are entirely unrelated to OG's asphalt paving claim, even though Earth Technology posted a bond which secured one hundred percent of OG's claim. Earth Technology claims that Target and Konover acted in bad faith by "maliciously . . . withholding contract monies which were otherwise due [to Earth Technology] solely to exert financial pressure upon [Earth Technology] to pay [OG's] claims in this action" and that Konover and Target did so for their "own monetary advantage by retaining and obtaining the benefit of the use of monies due to [Earth Technology] while this litigation [was] pending." Earth Technology alleges that Konover attempted to coerce them into accepting liability for OG's claims, and Target conspired with Konover in this attempt.
Finally, in count five, Earth Technology alleges that Konover, as a business that conducts commercial real estate development, repair, renovation and contracting activities for value within the state of Connecticut, violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., by deceptively attempting to coerce Earth Technology to honor and pay OG's claims by withholding, without justification, the additional retainage amount that was due to it. This conduct, which Earth Technology characterizes as "immoral, unethical, oppressive and/or unscrupulous" allegedly caused it to suffer an ascertainable loss of money or property.
On August 19, 2009, both Konover and Target filed motions to strike various counts of the second amended complaint. Konover moves to strike paragraph thirty-four from count one, and paragraph two of its corresponding prayer for relief, on the ground that these paragraphs seek legal fees and costs without a proper contractual or statutory basis. Konover also moves to strike counts three and five, and their corresponding prayers for relief, on the ground that each fails to state a legally sufficient claim. In the alternative, Konover moves to strike paragraph two of count three's prayer for relief on the ground that it seeks legal fees and costs without a proper contractual or statutory basis. Target seeks to strike counts two and four of the second amended complaint on the ground that the counts fail to state a legally sufficient claim. At "a minimum" Target moves to strike paragraph thirty-four of count two and its corresponding prayer for relief, as well as paragraph two of count four's prayer for relief, on the ground that they seek legal fees and costs without a proper contractual or statutory basis. Both Konover and Target filed a memorandum in support of their respective motions to strike. Earth Technology filed briefs in opposition to each of these motions on October 22, 2009. The matter was heard at short calendar on October 26, 2009.
II 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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). 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.) 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. When ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
In the present case, Earth Technology argues that the court should deny the motions, as Konover and Target filed "speaking" motions to strike. "A speaking motion to strike is one improperly importing facts from outside the pleadings." Mercer v. Cosley, 110 Conn.App. 283, 292 n. 7, 955 A.2d 550 (2008). "[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . . Nonetheless, `[a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party . . . Practice Book § 10-29(a). A complaint includes all exhibits attached thereto." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). In addition, "[n]othing in our cases suggests . . . that every argument in a motion to strike is rendered defective by the moving party's allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion." Liljedahl Bros., Inc. v. Grisby, 215 Conn. 345, 348-49, 576 A.2d 149 (1990).
Even though Earth Technology argues that Konover and Target have "attempted to improperly interject many facts in to the record" it fails to identify the specific facts that it believes were improperly set forth by the defendants. Nonetheless, any reference to facts outside the complaint by the defendants in their memoranda in support of their respective motions to strike will not be considered by the court in its analysis of the merits of the motions.
A. Konover's Motion to Strike Count Three and Target's Motion to Strike Counts Two and Four
Konover has moved to strike count three on the ground that it is legally insufficient. Likewise, Target has moved to strike counts two and four on the ground that they are also legally insufficient. Earth Technology opposes the striking of these counts, arguing that Konover and Target failed to comply with the requirements of Practice Book § 10-41. Specifically, Earth Technology objects on the basis that the defendants have not "set forth each such claim of insufficiency nor [do they] distinctly specify the reason or reasons for each such claimed insufficiency."
"Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency `shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.' 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). "Simply stating that all of the counts `are legally insufficient' and that they `fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41." Id., 862.
In the present case, the movants have failed to comply with Practice Book § 10-41. Merely saying that Earth Technology "fail[ed] to state a legally sufficient claim" or "fail[ed] to allege a claim for breach of contract or any other valid cause of action" and conclusory, does not specify the reason or reasons for the claimed insufficiency. I have, in the past, exercised my discretion and considered motions to strike on the merits, where the plaintiff had not objected to the defendant's failure to identify the claimed legal insufficiency on the face of the motion. See Cimmino v. Maroccia, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 09 5023251 (August 12, 2009, Bellis, J.); Koenig v. Silvini, Superior Court, judicial district of New Haven at New Haven, Docket No. 07 5008712 (July 30, 2008, Bellis, J.). In the present case, however, as in Braffman v. Webster Bank, Superior Court, judicial district of New Haven at New Haven, Docket No. 07 5013797 (March 25, 2008, Bellis, J.), this court is without discretion to reach the merits of the defendant's motion to strike because the defendant failed to state the specific legal insufficiency at issue in its motion and because the plaintiff objected to that procedural inadequacy. See Stuart v. Freiberg, supra, 102 Conn.App. 863 (reversing and remanding lower court decision for failing to dismiss motion to strike on procedural grounds where defendant failed to state grounds of legal insufficiency in motion itself, plaintiff objected, and court proceeded to decide case on merits).
Accordingly, Konover's motion to strike count three as well as Target's motion to strike counts two and four are denied. Konover's motion to strike count five and Target's alternative arguments to strike the payers for relief for attorneys fees and costs in count two and four remain as the parties properly specified the reason for the insufficiency; these arguments are addressed below.
B. Konover's Motion to Strike Attorneys Fees and Costs
In support of its motion to strike count one's paragraph thirty-four and its corresponding prayer for relief, and paragraph two of count three's prayer for relief, on the ground that they seek legal fees and costs without a proper contractual or statutory basis, Konover argues that the sitework subcontract agreement, which Earth Technology had attached as exhibit B to its second amended complaint, does not contain a provision providing the parties a right to legal fees. In response, Earth Technology counters that the sitework subcontract agreement contains numerous provisions, including sections 2(c), 3(d), 5(b), 6, 12, 14, and 15, which provide for attorneys fees and costs for the prevailing party in a dispute over the contract. Earth Technology next argues that "[e]ven if this Court finds that none of the provisions of the [sitework subcontract] provide [Earth Technology] with a right to collect fees and costs of this action, the [project contract] may provide [the] same. Since the [project contract] is not before the court and because Konover cannot supplement the record to support its request, this Court must accept as true the allegations of Paragraph 34 of Count I of the Complaint and deny Konover's Motion."
The sitework subcontract agreement entered into by Konover [Contractor] and Earth Technology [Subcontractor] provides in relevant part as follows:
2(c). Subcontractor's Scope of Work: Fit of Subcontractor's Work. Before proceeding with the Work under the Subcontract, the Subcontractor will check all previous and surrounding Work done by other related trades and determine the correctness of the same as required to incorporate the Work of this Subcontract, and shall report any discrepancies immediately to the Contractor. Failure on the Subcontractor's part to report discrepancies will relieve the Contractor of any and all claims to recover cost or damage resulting therefrom.
3(d). Payment. In the event Contractor has reason to believe that the Subcontractor is not fulfilling its payment obligations, Contractor may take any steps necessary to insure that progress payments are utilized to pay such obligations, including, but not limited to, the right to withhold out of subsequent progress payments a reasonable amount to protect Contractor from any and all claims, loss or damage, including attorneys fees, arising out of any claim or lien, until Subcontractor submits evidence satisfactory to Contractor that all previous amounts owed in connection with the performance of this Subcontract, or any other contractual arrangements between the parties, have been paid.
Subcontractor shall also immediately reimburse Contractor for any amounts paid, including costs and attorneys fees, by Contractor or under Contractor's payment bond, if any, in connection with this Subcontract caused by Subcontractor's failure to make payments as provided in this paragraph.
5(b). Subcontractor's Liability. Subcontractor shall be liable to Contractor for all costs Contractor incurs as a result of Subcontractor's failure to perform this Subcontract in accordance with its terms. Subcontractor's failure to perform shall include the failure of its supplies and/or subcontractors of any tier to perform or comply with any law, rule, code or regulation governing the work. Subcontractor's liability shall include, but not be limited to . . . attorneys fees and related costs incurred by the Contractor in any proceeding against Subcontractor or its sureties to enforce any of Contractor's rights as provided herein.
5(d). Subcontractor's Liability. Contractor is hereby given the right to withhold amounts otherwise due under this subcontract or any other contractual arrangements between the parties to cover any costs or liability Contractor has incurred or may incur for which Subcontractor may be responsible hereunder.
6(a). Indemnification. Subcontractor shall indemnify, defend and hold harmless Contractor (including its affiliates, parents and subsidiaries), Owner and Architect, and all of their agents and employees from and against all claims, damages, loss and expense, including, but not limited to, attorneys fees, arising out of or resulting from the performance of the Subcontractor's work attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible property . . .
12(a). Liens. In the event that liens are filed by anyone in relation to the labor and/or material being furnished by Subcontractor, Subcontractor agrees to have the same discharged, by posting a bond with the appropriate authorities, or otherwise, within five (5) days of notice. In the event such lien is not so discharged, Contractor shall have the right to discharge said lien and recover from Subcontractor all costs associated therewith as provided in paragraph 3(d).
14(a). Subcontractor's Failure to Perform and Termination for Cause. In the case of termination for default, Subcontractor shall not be entitled to receive any further payment until the work shall be fully completed and accepted by Owner. At such time, if the unpaid balance of the price to be paid shall exceed the expense incurred by Contractor, such excess shall be paid by Contractor to Subcontractor. If such amount due Contractor shall exceed such unpaid balance, then Subcontractor shall pay Contractor the difference within five (5) business days following demand by Contractor. Subcontractor shall pay all reasonable costs of collection, including a reasonable attorneys fee, if any.
15(b). Subcontractor's Bankruptcy or Insolvency. If the Subcontractor is not performing in accordance with the Schedule of Work at the time of entering an order for relief, or at any subsequent time, the Contractor, while awaiting the decision of the Subcontractor or its trustee to reject or to accept this Agreement and provide adequate assurance of its ability to perform hereunder, may avail itself of such remedies under this Article as are reasonably necessary to maintain the Schedule of Work. The Contractor may offset against any sums due or to become due the Subcontractor all costs incurred in pursuing any of the remedies provided hereunder, including, but not limited to, reasonable overhead, profit and attorneys fees. The Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the contract price."
Paragraph thirty-four of count one of Earth Technology's second amended complaint states: "Additionally, the subcontractor agreement provides that if any litigation arises between the parties to enforce the obligations of the parties, that prevailing party will be entitled to recover [its] attorneys fees and costs." Paragraph two of this count's corresponding prayer for relief seeks reasonable attorneys fees and costs. Likewise, paragraph two of count three also seeks reasonable attorneys fees and costs.
"Practice Book . . . § 10-39, allows for a claim for relief to be stricken . . . if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). Similarly, "[a]lthough there is a split of [opinion], most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action . . . defense [or prayer for relief] . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of [opinion] in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action." (Internal quotation marks omitted.) Maysonet v. Cogdell, Superior Court, judicial district of New Haven, Docket No. CV 08 5024267 (June 8, 2009, Wilson, J.). Because paragraph thirty-four of count one asserts the entire basis for Earth Technology's prayer for relief of attorneys fees, the motion to strike the single paragraph, and its corresponding prayer for relief, is properly before this court.
"The general rule of law known as the `American rule' is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . [and] Connecticut adheres to the American rule . . . There are a few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs . . . or a statute may confer such rights." (Citations omitted; internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72-73, 689 A.2d 1097 (1997). Here, Earth Technology sufficiently alleges in count one that the sitework subcontract agreement it entered into with Konover contains a provision that "if any litigation arises between the parties to enforce the obligations of the parties, that prevailing party will be entitled to recover [its] attorneys fees and costs," sufficient to withstand a motion to strike paragraph thirty-four of count one and the corresponding prayer for relief.
However, because Earth Technology has not sufficiently asserted a proper contractual or statutory basis for the award of attorneys fees anywhere in the third count, paragraph two of count three's prayer for relief, which corresponds to the third count, is stricken.
C. Target's Motion to Strike Attorneys Fees and Costs
As an alternative to having counts two and four stricken in their entirety for legal insufficiency, Target has moved to strike count two's paragraph thirty-four and its corresponding prayer for relief and paragraph two of count four's prayer for relief, on the ground that there is no statutory or contractual basis for Earth Technology's assertion that it is entitled to recover attorneys fees and costs. First, Target maintains that it is not a party to the sitework subcontract agreement and therefore cannot be bound by the terms of the contract. Second, Target maintains that even if the court were to find that it is a third-party beneficiary bound by the subcontract agreement, it cannot be liable for Earth Technology's attorneys fees and costs as the subcontract agreement does not contain a provision providing Earth Technology with a right to recover legal fees. In response, Earth Technology counters that Target is subject to the sitework subcontract agreement as it is an intended beneficiary of the agreement, and as such is bound by the contract terms, which allegedly includes a provision providing that "if any litigation arises between the parties to enforce the obligations of the parties, the prevailing party will be entitled to recover its attorneys fees and costs."
Paragraph thirty-four of count two of Earth Technology's second amended complaint and its corresponding prayer for relief is identical to paragraph thirty-four of count one and its corresponding prayer for relief. It states: "Additionally, the subcontractor agreement provides that if any litigation arises between the parties to enforce the obligations of the parties, that prevailing party will be entitled to recover [its] attorneys fees and costs." Paragraph two of this count's corresponding prayer for relief, as well as paragraph two of count four's prayer for relief seeks "reasonable attorneys fees and costs." Nowhere in count two does Earth Technology allege the existence of a contract upon which it is entitled to attorneys fees, and while argument was had regarding Target's status as a third-party beneficiary to the sitework subcontract at issue, no such allegation is contained in count two. The same holds true as to count four of the prayer for relief; no contractual or statutory basis is alleged in the fourth count of the complaint. As Earth Technology has not properly pleaded a contractual or statutory basis for an award of attorneys fees and costs in count two, paragraph thirty-four, and the corresponding prayer for relief, and paragraph two of the prayer for relief for count four, are stricken.
D. Konover's Motion to Strike the CUTPA Claim
Konover seeks to strike count five of Earth Technology's second amended complaint on the ground that it fails to state a legally sufficient claim. In support of its proposition, Konover argues that count five merely alleges a breach of contract, which, it maintains, does not support a claim under CUTPA. Earth Technology maintains, however, that it has properly pleaded that Konover engaged in trade or commerce that was "immoral, unethical, oppressive and/or unscrupulous," thereby causing Earth Technology an ascertainable loss of money or property, and that such harm can be redressed pursuant to CUTPA.
While the motion, on its face, fails to specify the specific legal insufficiency, Earth Technology has not raised any objection to this defect, and has therefore waived it. As such, the court will exercise its discretion, and will address the motion to strike count five on the merits.
Section 42-110b(a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Further, "[a]ny 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 . . . to recover actual damages." General Statutes § 42-110g(a). "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] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted). Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 655-56, 850 A.2d 145 (2004).
In Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992), the Appellate Court stated that "the same facts that establish a breach of contract may be sufficient to establish a CUTPA violation." "[N]ot every contractual breach [however] rises to the level of a CUTPA violation." Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571, 845 A.2d 417 (2004). "There is a split of authority in Superior Court decisions regarding what is necessary to establish a CUTPA claim for breach of contract, the majority of courts holding that a simple breach of contract, even if intentional does not amount to a violation of CUTPA in the absence of `substantial aggravating circumstances.' Raffone v. Home Depot USA, Inc., Docket No. CV 02 0465471, Superior Court, judicial district of New Haven (June 23, 2003, Harper, J.) ( 34 Conn L. Rptr. 747)." Zelencich v. American Yacht Services, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0187145 (July 31, 2006, Jennings, J.). This court aligns itself with the majority view, and holds that to sufficiently plead a CUTPA claim arising out of a breach of contract, "a claimant must show substantial aggravating circumstances." Charlesworth v. SBC Communications, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 076399 (February 3, 2003, Ronan, J.). "Where the plaintiff alleges sufficient aggravating circumstances, beyond a mere breach of contract that may bring the case within the cigarette rule, the CUTPA claim may withstand a motion [to strike]." (Internal quotation marks omitted). Id.
In the present case, Earth Technology alleges that Konover improperly, and without justification, withheld $175,000 due to Earth Technology for work completed under the sitework subcontract, and that the failure to pay has directly injured it. Further, Earth Technology alleges aggravating circumstances beyond a mere breach of contract. In count five, paragraphs forty and forty-one, Earth Technology alleges: "40. The Bad Faith alleged above includes but is not limited to, Konover acting maliciously in withholding contract monies which were otherwise due [to Earth Technology] solely to exert financial pressure upon [Earth Technology] to pay [OG's] claims in this action and for Konover's own monetary advantage by retaining and obtaining the benefit of the use of monies due to [Earth Technology] while this litigation is pending" and "41. In this regard Konover has attempted to coerce [Earth Technology] into accepting liability for [OG's] claims." Such allegations bring the claim within the cigarette rule and permit the CUTPA claim to withstand Konover's motion to strike. Therefore, Konover's motion to strike count five is denied.
III CONCLUSION
For the foregoing reasons, Konover's motion to strike count one's paragraph thirty-four and paragraph two of its corresponding prayer for relief for attorneys fees and costs is denied. Konover's motion to strike counts three and five is also denied. Konover's motion to strike paragraph two of count three's prayer for relief is granted.
Target's motion to strike counts two and four is denied. Target's motion to strike paragraph thirty-four and its corresponding prayer for relief from count two is granted. Finally, paragraph two of count four's prayer for relief on the ground that Earth Technology has not sufficiently asserted a proper contractual or statutory basis for the award of attorneys fees is granted.