Opinion
No. CV 06 5003016 S
November 21, 2007
MEMORANDUM OF DECISION MOTION TO STRIKE #123
The defendants Kevin Barry and Roisin Barry have moved to strike the Second, Third, Fourth, Fifth and Sixth Counts of the Amended Complaint dated June 1, 2007. The defendants allege that said counts merely restate the original causes of action that were previously stricken from the Second Revised Complaint by order of the Court (Hiller, J.) on June 4, 2007. See Parvin Group, LLC v. Barry, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 06-500 30 16 S (June 4, 2007, Hiller, J.)
I Procedural History
A brief discussion of the procedural history is helpful. The plaintiff originally brought this action against the defendants alleging five counts sounding in breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, unjust enrichment and a foreclosure of a mechanics lien, respectively. The plaintiff alleged that after it received a number of periodic payments pursuant to the contract and had substantially completed work, the defendants ordered the plaintiff off of the subject property and refused to pay the balance due under the contract terms.
On June 30, 2006, the defendants filed a motion to discharge the mechanics lien. Said motion was granted by the court (Radcliffe, J.) as to the defendant Roisin Barry, but was denied as to the defendant Kevin Barry. See Parvin Group, LLC v. Barry, Superior Court, judicial district of Fairfield at Bridgeport, No. CV06 500 30 16S (Dec. 4, 2006, Radcliffe, J.).
In response to a request to revise, the plaintiff filed a revised complaint on March 6, 2007, attaching the contract between the parties as an exhibit. The contract, which was attached by the plaintiff did not contain a notice of cancellation as required by General Statutes § 20-429(a). The plaintiff alleged that after it received a number of periodic payments pursuant to the contract and had substantially completed work, the defendants ordered the plaintiff off of the subject property and refused to pay the balance due under the contract terms.
Sec. 20-429(a) provides in relevant part:
(a) No home improvement contract shall be valid or enforceable against an owner unless it:(6) contains a notice of the owner's cancellation rights in accordance with [General Statutes § 42-135a] . . .
On April 13, 2007, the defendants filed a motion to strike all five counts of the complaint on the ground that the plaintiff, having failed to comply with the Home Improvement Act, General Statutes § 20-418 et seq., cannot enforce the contract or recover for the value of the work performed and since the plaintiff's counts are premised on the contract or quantum meruit, the claims were insufficient and must be stricken.
The plaintiff argued that the contract was enforceable because the defendants were equitably estopped from disputing its validity since the defendants had actual notice of their right to cancel before the contract was signed, and since defendant Kevin Barry signed a cancellation notice before the plaintiff began working. The plaintiff also argued that the defendants waived their right to repudiate the contract for failure to include the cancellation form. Lastly, the plaintiff argued that the defendants signed the contract in bad faith, intentionally omitting the cancellation notice from the contract and inducing the plaintiff to sign it without an attorney present which would permit a contractor to recover on the contract or in quantum meruit, despite noncompliance with the Home Improvement Act.
In granting the motion to strike all five counts of the revised complaint, the court (Hiller, J.) stated:
The plain language of § 20-429(a) invalidates any home improvement contract in which the cancellation notice required by General Statutes § 42-135a is not included. Moreover, while a plaintiff may be able to recover in quantum meruit for certain violations of the act; see Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006) ("[s]ubsection (f) of § 20-429 allows quantum meruit recovery in certain cases of partial noncompliance with subsection (a)"); subsection (f) only extends such relief to "contractor[s] who ha[ve] complied with subdivisions (1), (2), (6), and (8) of subsection (a) of this section." General Statutes § 20-429(f) . . .
General Statutes § 20-429(f) reads as follows:
(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.
CT Page 19983 Parvin Group, LLC v. Barry, supra, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 06-500 30 16 S (Jun. 4, 2007, Hiller, J.).
[I]t is apparent from the complaint that the Home Improvement Act applies and that the plaintiff has not complied with one of the crucial provisions necessary for recovery either on the contract or in quasi-contract, which form the basis for all five of the plaintiff's claims. While the possible existence of bad faith or waiver on the defendants' part might avail the plaintiff of the right to pursue its contract or quasi-contract claims, the complaint is devoid of any allegations that might give rise to claims of bad faith, waiver or estoppel. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The defendants' motion to strike is therefore granted in its entirety.
(Internal quotation marks omitted.) Id.
II Standard of Law Regarding a Motion to Strike
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
III Discussion
The plaintiff has now filed an amended complaint dated June 14, 2007, containing six counts. The defendants in advancing arguments similar to those previously presented to Judge Hiller, argue that counts Two through Six should be stricken because with two exceptions Counts Two through Six are identical to Counts One through Five in the Second Revised Complaint, which have been ordered stricken by Judge Hiller. The first exception is that the Amended Complaint now contains new Count One alleging intentional fraud. The original five counts are now numbered Counts Two through Six. The second exception is the rewording of paragraph 3 of the new Count Three alleging the breach of implied covenant of good faith and fair dealing. Paragraph 3 of this count previously read as follows:
Count Three in the Amended Complaint dated June 1, 2007, was previously designated as Count Two in the Second Revised Complaint which was ordered stricken in its entirety.
The defendants were thereby attempting to attain a position of financial leverage over plaintiff and coerce plaintiff into performing additional work not reasonably required by the project. In doing so, defendants breached their implied covenant of good faith and fair dealing under the contract . . .
The language in paragraph 3 of the new Count Three now reads as follows:
CT Page 19985
Defendants were thereby attempting to obtain plaintiff's labor and materials without compensation. In so doing, defendants acted in bad faith and have defrauded plaintiff . . .
The defendants argue that the new allegations contained in paragraph 3 of the third Count, are not factual, but merely conclusions of law, and a motion to strike does not admit legal conclusions. Fortini v. New England Log Homes, Inc., 4 Conn.App. 132, 134, 492 A.2d 545 (1985). "Conclusions of law, absent sufficient alleged facts to support them, are subject to a motion to strike." Id. at 135. The trial court may not seek beyond the complaint for facts not alleged, or necessarily implied. Cavallo v. Derby Savings Bank, supra, 188 Conn. 285-86.
Other than the rewording of paragraph 3, Count Three of the Amended Complaint is identical to Count Two of the Second Revised Complaint, which was stricken.
In determining the issues in the present matter, the court is mindful of the doctrine of the law of the case as set forth in Breen v. Phelps, 186 Conn. 86, 97-101, 439 A.2d 1066 (1982). "A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . A judge may vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." (Internal citations and internal quotation marks omitted.) Id. at 97-101.
The allegations contained in Counts Two, Four, Five and Six of the Amended Complaint, mirror and repeat the allegations of Count One, Three, Four and Five of the Second Revised Complaint. In accordance with Judge Hiller's ruling of June 2007, they are ordered stricken. Count One of the Amended Complaint is not a subject of this motion to strike.
As for Count Three of the Amended Complaint, it varies from the former Count Two of the Second Revised Complaint only as to paragraph 3. However, this change in language is sufficient to survive the defendants' motion to strike in that it states more than a mere legal conclusion despite the defendants' protest. The conduct described in Count Three sufficiently alleges a dishonest purpose and an intent to defraud the plaintiff. The court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, supra, 219 Conn. 471.
IV Summary
For the reasons stated herein, the motion to strike the Third Count of the Amended Complaint dated June 14, 2007 is denied. The motion to strike the Second, Fourth, Fifth and Sixth Counts is granted.
The defendants have not requested that the court strike that portion of the claim for relief that requests an award of "punitive damages."