Opinion
CV156052285S
05-16-2016
Santa Buckley Energy LTD. v. Tiscia Corporation dba Michael's Trattoria
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#116)
Robin L. Wilson, Judge.
The plaintiff, Santa Buckley Energy LTD (plaintiff) commenced this action by service of writ, summons and complaint against the defendant, Tiscia Corporation d/b/a Michael's Trattoria. On October 22, 2015, the plaintiff filed a substituted revised complaint which is the operative complaint and alleges the following facts. On or about the dates of January 1, 2014 through July 31, 2014, the plaintiff provided fuel/gas services for the defendant pursuant to a contract/agreement dated May 29, 2010. The plaintiff provided natural gas as agreed and invoiced the defendant. Despite demand, the defendant has refused and/or neglected to pay the balance due. As of December 18, 2014, there remains an outstanding principal balance due of $7, 033.65 plus interest per annum pursuant to General Statutes § 37-3b for interest in the amount of $295.29 to the date of judgment, for a total amount due of $7, 328.94. Count one alleges a breach of contract and count two alleges unjust enrichment.
On January 28, 2016, the defendant filed an answer, special defense and counterclaim. In its answer, the defendant admits that the plaintiff provided gas services to the defendant but denies that it was pursuant to the contract dated May 29, 2010. The defendant denies the remainder of the allegations of the plaintiff's complaint and sets forth three special defenses and a counterclaim. In its first special defense the defendant claims that any agreement under which the plaintiff rendered services was procured in bad faith as the plaintiff's agent and/or employee(s) made material misrepresentations about the cost of the plaintiff's services and/or product. The defendant reasonably relied on the misrepresentations to its detriment. In its second special defense the defendant claims that the agreement is not drafted so as to be understandable to a non-lawyer, its language is ambiguous, was not understood by the defendant and that there was no meeting of the minds and therefore no contract. The third special defense alleges that the delivery charges added by the plaintiff were not commercially reasonable and the language is ambiguous.
The defendant has filed a counterclaim for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., which alleges the following. The plaintiff/counterclaim defendant, through a salesperson, solicited defendant/counterclaim plaintiff's agent to allow the plaintiff counterclaim defendant to supply gas services to defendant/counterclaim plaintiff's restaurant. The plaintiff/counterclaim defendant's agent made representations regarding the terms under which the plaintiff/counterclaim defendant would supply gas services to the defendant/counterclaim plaintiff including cost. The representations by the plaintiff/counterclaim defendant's agent were made to induce the defendant/counterclaim plaintiff to do business with the plaintiff/counterclaim defendant. Said representations were false and misleading and plaintiff/counterclaim defendant has charged defendant/counterclaim plaintiff significantly more than defendant/counterclaim plaintiff's previous gas service provider. The conduct of the plaintiff/counterclaim defendant constitutes an unfair trade practice as defendant's conduct was unethical, immoral, illegal and/or unscrupulous within the meaning of § 42-110b. On February 11, 2016, the plaintiff/counterclaim defendant filed a motion to strike the defendant/counterclaim plaintiff's counterclaim and a memorandum in support on grounds that the counterclaim fails to allege sufficient facts to establish a claim under the CUTPA. The defendant/counterclaim plaintiff also moves to strike the corresponding prayer for relief for punitive damages and attorneys fees. On March 8, 2016, the defendant/counterclaim plaintiff filed a memorandum in opposition to the motion to strike and argues that the counterclaim does allege sufficient facts to establish a CUTPA claim. The motion was originally scheduled on this court's nonarguable calendar as take papers on April 11, 2016. The court scheduled oral argument, and the motion was heard on May 9, 2016.
I
DISCUSSION
A
Legal Standard
" 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). " A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). " 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 in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The role of the trial court in ruling on a motion to strike is " to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). " Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Doe v. Board of Education, 76 Conn.App. 296, 299-300, 819 A.2d 289 (2003). The plaintiff/counterclaim defendant argues that the allegations of the counterclaim fail to support a CUTPA claim because this is a simple breach of contract action, and the counterclaim plaintiff has failed to allege aggravating factors. The plaintiff/counterclaim defendant further argues that the defendant/counterclaim plaintiff has failed to particularize how the defendant's activities were either immoral, unethical, unscrupulous or offensive. The counterclaim defendant argues that while misrepresentations may form a basis for a CUTPA violation, the misrepresentations that have been found to have violated CUTPA involve non-compete clauses or exclusive distribution contracts wherein the non-compete clause or exclusive distribution contract are not being honored but affirmative misrepresentations are being made to make a party believe that the contract is in fact being honored. The defendant claims that this is not the case in the present case because the alleged misrepresentations, if any, appear to involve pricing and costs in a matter wherein the terms are set forth in a contract signed by both parties, executed between the parties and upon which the defendant paid, as invoiced for four years until the cost of gas spiked.
The defendant/counterclaim plaintiff argues in opposition that it has alleged sufficient aggravating factors because it has alleged that the plaintiff/counterclaim defendant made false statements and misrepresentations as to the cost of the gas and that misrepresentations can form a basis for a CUTPA violation.
B
CUTPA/Aggravating Factors
" CUTPA provides in relevant part 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. General Statutes § 42-110b(a). Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--whether, 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 (or competitors or other businessmen) . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court . . . Additionally, our Supreme Court has stated that [ a ] ll 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 ." (Emphasis added; internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 711, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013)." Gaynor v. High-Tech Homes, 149 Conn.App. 267, 275-76, 89 A.3d 373 (2014).
" [N]ot every contractual breach rises to the level of a CUTPA violation. (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010). [N]ot every misrepresentation 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 must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy. Muniz v. Kravis, 59 Conn.App. 704, 715, 757 A.2d 1207 (2000). In the absence of allegations arising to such a level of conduct, the plaintiffs have failed to properly plead a cause of action under CUTPA." (Internal quotation marks omitted.) Id., 276.
" A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn.App. 786, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).
Although " the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation"; Greene v. Orsini, 50 Conn.Supp. 312, 315, 926 A.2d 708 (2007); " [a] breach of contract claim can make out a legally sufficient CUTPA claim [only] as long as there are substantial aggravating circumstances." (Internal quotation marks omitted.) Alliance Food Management v. Gem Sensors, Superior Court, judicial district of Waterbury, Docket No. CV 06 5002996, (June 12, 2007, Gallagher, J.).
" 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." (Internal quotation marks omitted.) Zelencich v. American Yacht Services, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-02 0187145, 2006 WL 2411471 (July 31, 2006, Jennings, J.).
A simple breach of contract does not offend traditional notions of fairness and, standing alone, does not offend public policy so as to invoke CUTPA. A CUTPA claim lies where the facts alleged support a claim for more than a mere breach of contract. Depending upon the nature of the assertions, however, the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation. Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). That generally is so when the aggravating factors present constitute more than a failure to deliver on a promise. Tienshan, Inc. v. George, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV-04 4006907, 2006 WL 2349157 (July 28, 2006, Sheedy, J.) .
" Connecticut case law demonstrates that the aggravating factors present must involve bad faith conduct or violation of some concept of fairness in order to sufficiently plead a CUTPA claim by way of breach of contract. Compare Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 708, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011); (upholding finding of aggravating factors sufficient to prove a violation of CUTPA where, in addition to a breach of an employment contract, the defendant engaged in multiple false misrepresentations and other acts exhibiting 'a pattern of bad faith conduct, seeking to escape its contractual obligations unfairly while negotiating a more favorable offer with . . . a third party'), with Naples v. Keystone Building & Development Corp., supra, 295 Conn. 227-29 (upholding finding of no aggravating factors where defendant performed unworkmanlike construction per the contract, but its conduct 'lacked the unethical behavior' necessary for a CUTPA claim since the defendant attempted to remedy problem and '[i]n the absence of aggravating unscrupulous conduct, mere incompetence does not by itself mandate a trial court to find a CUTPA violation'), and IN Energy Solutions, Inc. v. Realgy, LLC, 114 Conn.App. 262, 274-75, 969 A.2d 807 (2009) (upholding finding that no aggravating factors accompanied breach of contract so as to constitute CUTPA violation where plaintiff failed to show that the defendant's 'conduct in failing to pay commissions [pursuant to the contract] was unethical, unscrupulous, wilful or reckless')." Metromedia Energy, Inc. v. 21st Century Management, Inc., Superior Court, judicial district of New Haven, Docket No. CV 13-6043097 S, (October 2, 2014, Wilson, J.).
In addition, " a misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would, in effect, be a deceptive act." (Citations omitted; internal quotation marks omitted.) Greene v. Orsini, supra, 50 Conn.Supp. 317.
" In enforcing CUTPA our courts look to the actions of the Federal Trade Commission for guidance. Under federal precedents and CUTPA decisions, a CUTPA plaintiff is not bound by the limitations on the common law action for misrepresentation when making that the basis of his or her claim. Such a plaintiff for example need not prove reliance on the misrepresentation or that the representation became part of the basis for the bargain . . . and knowledge of falsity either constructive or actual need not be shown." (Citation omitted.) Designs on Stone, Inc. v. John Brennan Construction Co., Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 059997 (April 9, 1998, Corradino, J.) (21 Conn L. Rptr. 659, 660, *7).
Thus, the issue for the court here, is whether the defendant/counterclaim plaintiff has alleged substantial aggravating circumstances demonstrating bad faith or unethical conduct which accompanied the breach of contract so as to set forth a cognizable claim for violation of CUTPA. Here, the defendant/counterclaim plaintiff has alleged that the " Plaintiff/Counterclaim Defendant, through a salesperson, solicited the Defendant/Counterclaim Plaintiff's agent to allow Plaintiff/Counterclaim Defendant to supply gas services to Defendant/Counterclaim Plaintiff's restaurant; Plaintiff/Counterclaim Defendant's agent made representations regarding the terms of under which the Plaintiff/Counterclaim Defendant would supply gas services to Defendant/Counterclaim Plaintiff including cost; The representations made by Plaintiff/Counterclaim Defendant's agent were made to induce Defendant/Counterclaim Plaintiff to do business with the Plaintiff/Counterclaim Defendant; The representations by Plaintiff/Counterclaim Defendant's agent were false and misleading and Plaintiff/Counterclaim Defendant has charged Defendant/Counterclaim Plaintiff significantly more than Defendant/Counterclaim Plaintiff's previous gas service provider; The aforementioned conduct of the Plaintiff/Counterclaim Defendant constitutes an unfair trade practice as Plaintiff/Counterclaim Defendant's conduct was unethical, immoral, illegal and/or unscrupulous within the meaning of C.G.S. § 42-110b; The Defendant/Counterclaim Plaintiff has sustained an ascertainable loss of money as [a] result of the Plaintiff/Counterclaim Defendant's conduct."
When read in the light most favorable to sustaining the counterclaim's legal sufficiency, the defendant/counterclaim plaintiff's allegation that the " representations by Plaintiff/Counterclaim Defendant's agent were false and misleading" is enough to withstand a motion to strike a CUTPA claim. As this court previously noted, courts have found that a misrepresentation is a deceptive act that can constitute an aggravating circumstance that would allow a simple breach of contract action to be treated as a CUTPA violation. See Greene v. Orsini, supra . The complaint in the instant case can be read as alleging that the counterclaim defendant's agent made misrepresentations other than the promises made in the contract as to the terms under which the counterclaim defendant would supply gas services and the cost of same. The counterclaim plaintiff does not specifically allege what the representations were and how they were false as it must do in order to successfully plead a fraud claim, but as this court previously noted, " a CUTPA plaintiff is not bound by the limitations on the plaintiff is not bound by the limitations on the common law action for misrepresentation when making that the basis of his or her claim." Designs on Stone, Inc. v. John Brennan Construction Co., Inc., 21 Conn. L. Rptr. at 660.1, at *7. Therefore, the motion to strike is denied on this ground.
Citing two cases, the defendant seems to suggest that the types of aggravating factors that will support a CUTPA claim based on a breach of contract action are limited to " the failure to honor a noncompetition clause or maliciously withholding contract monies which were otherwise due to exert financial pressure." This court's research found no such limitation, and as previously discussed a misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract action to form the basis of a CUTPA violation. Although the defendant acknowledges that " [w]hile misrepresentations may form a basis of a CUTPA violation, it argues that, the misrepresentations found to have violated CUTPA [are limited to cases involving] non-compete clauses or exclusive distribution contracts wherein the non-compete clause or exclusive distribution contract are not being honored but affirmative misrepresentations are being made to make a party believe that the contract is in fact being honored." Def. Mem. Again, the defendant seems to suggest that where the type of aggravating circumstances involve misrepresentations to form the basis of a CUTPA violation, such misrepresentations are only in those cases that involve non-compete clauses or exclusive distribution contracts. This court's research does not bear this out. See Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 708, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011) (upholding finding of aggravating factors sufficient to prove a violation of CUTPA where, in addition to a breach of an employment contract, the defendant engaged in multiple false misrepresentations and other acts exhibiting " a pattern of bad faith conduct, seeking to escape its contractual obligations unfairly while negotiating a more favorable offer with . . . a third party"); Bartold v. Wells Fargo Bank, N.A., No. 14-cv-00865 (VAB) (D.Conn. November 24, 2015), 2015 WL 7458504 (in a breach of contract action involving a reverse mortgage loan Federal District Court denied defendant's motion to dismiss CUTPA count based on fraudulent and negligent misrepresentations. Citing Connecticut state cases, the federal court noted: " Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims[, ] and multiple breaches of contract [.]"); RAB Associates, LLC v. Bertch Cabinet Mfg., Inc., Superior Court, judicial district of New Haven, Docket No. CV-106015934S, (March 29, 2012, Young, J.) (seller of kitchen cabinets brought action against cabinet manufacturer for terminating their relationship; motion to strike CUTPA count was denied because court found that plaintiff had sufficiently pled aggravating circumstances. " Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations . . . [K]nowledge of falsity [of a misrepresentation], either constructive or actual, need not be proven to establish a violation of CUTPA . . . Moreover, . . . a single act of misconduct can constitute a violation of CUTPA, Superior Courts have found that a single misrepresentation can support a CUTPA claim); Reich v. Spencer, Superior Court, judicial district of Hartford, Docket No. HHDCV075012682S, (Dec. 10, 2010, Peck, J.) (case arising out of defendant's failure to return to the plaintiff a portion of her deceased husband's cremated remains until approximately four years after his cremation and funeral; court denied motion for summary judgment as to CUTPA count finding aggravating circumstances and noting that: " [c]onduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims; and multiple breaches of contract. [S]ince CUTPA does not require proof of intent to deceive, to mislead or to defraud, [even an] innocent misrepresentation can amount to a CUTPA violation"); Fourteen Bradbury Place v. LeCamp, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 076000533, (January 16, 2009, Malone, J.) (court denied motion to strike in home construction case where plaintiff challenged the legal sufficiency of defendant's count in counterclaim containing CUTPA violation based upon breach of contract noting that " [i]t has been held that a misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would in effect be a deceptive act . . . While [n]ot every misrepresentation constitutes a CUTPA violation; . . . since CUTPA does not require proof of intent to deceive, to mislead or to defraud, [even an] innocent misrepresentation can amount to a CUTPA violation . . . Where . . . a defendant made a misrepresentation during the course of the defendant's business practice, with or without the intent to deceive or fraud, and that misrepresentation led a plaintiff to lose money or property, that plaintiff has alleged a cause of action under CUTPA . . ."); Gray v. Sullivan Real Estate, Inc., Superior Court, judicial district of New Britain, Docket No. CV-095012402, (May 18, 2010, Trombley, J.) (the plaintiff contracted with Sullivan Real Estate to represent him exclusively to find a home to purchase. The contract provided that the defendant would disclose all material information to the plaintiff; allegation of negligent misrepresentation served as an aggravating factor for the breach of contract action and the court denied the motion to strike the CUTPA count). Thus, there are cases, other than those involving non-compete clauses or exclusive distribution contracts, that involve misrepresentations which serve as aggravating factors to form the basis of a CUTPA claim based on a breach of contract.
The plaintiff/counterclaim defendant also argues the plaintiff has failed to allege sufficiently a CUTPA violation because it does not particularize how the defendant's activities were either immoral, unethical, unscrupulous or offensive. The defendant/counterclaim plaintiff alleges in paragraph four that the representations by the counterclaim defendant's agent were " false and misleading and Plaintiff/Counterclaim Defendant has charged Defendant/Counterclaim Plaintiff significantly more than Defendant/Counterclaim Plaintiff's previous gas service provider " and said conduct of the plaintiff counterclaim defendant was unethical, immoral, illegal and/or unscrupulous. When read in the light most favorable to sustaining the counterclaim's legal sufficiency, however, these allegations are sufficient to withstand a motion to strike. As this court previously discussed at length, courts have found that a misrepresentation is a deceptive act that can constitute an aggravating circumstance that would allow a simple breach of contract action to be treated as a CUTPA violation. Dunleavey v. Paris Ceramics, USA, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 02 0395709, (April 20, 2005, Richards, J.). Although the counterclaim plaintiff in paragraph four of the counterclaim " does not specifically allege what the representations were and how they were false [and misleading] as it must do in order to successfully prove a fraud claim, . . . a CUTPA plaintiff is not bound by the limitations on the common law action for misrepresentation when making that the basis of his or her claim. Designs on Stone, Inc. v. John Brennan Construction Co., Inc., supra, 21 Conn L. Rptr. 659, 660, *7." LESMSD, LLC v. R& J Properties, LLC, Superior Court, judicial district of Waterbury, Docket No. CV030177537S, (November 22, 2005, Gallagher, J.). The motion to strike is therefore denied on this ground.
C
Ascertainable Loss
" The ascertainable loss requirement [of CUTPA] is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . CUTPA, however, is not limited to providing redress only for consumers who can put a precise dollars and cents figure on their loss . . . as the ascertainable loss provision do[es] not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case . . . Rather . . . [d]amage . . . is only a species of loss . . . hence [t]he term 'loss' necessarily encompasses a broader meaning than the term 'damage.' . . . Accordingly, this court previously has concluded that, for purposes of [CUTPA], an ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . Under CUTPA, there is no need to allege or prove the amount of the actual loss." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 713-14, 66 A.3d 860 (2013).
A party does not need to plead an ascertainable loss beyond the damages alleged due to a breach of contract as a requirement for CUTPA. " We find nothing in CUTPA, or case law, to support the court's conclusion that when a claimant recovers damages for his breach of contract claim, that compensation serves to eradicate any 'ascertainable loss' that may have formed the basis for his recovery under CUTPA and restores him to the position he was in before the defendant engaged in such acts of misconduct." Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 597, 821 A.2d 283 (2003).
In the present case, the counterclaim plaintiff alleges that, " the Defendant/Counterclaim Plaintiff has sustained an ascertainable loss of money as a result of the Plaintiff/Counterclaim Defendant's conduct." The damages alleged by the plaintiff that relate to the counterclaim defendant's agent's false and misleading representations resulting in the counterclaim plaintiff being charged significantly more for gas service than it was charged by its previous gas service provider, are clearly an injury that is capable of being established. The plaintiff has therefore sufficiently pleaded an ascertainable loss as required by CUTPA.
The plaintiff/counterclaim defendant, in its argument that the plaintiff has failed to sufficiently plead an ascertainable loss, makes a passing reference to the " economic loss doctrine" but fails to adequately brief its argument regarding this doctrine. The court will consider this argument abandoned and therefore not address its applicability to the present case. " It is well settled that [the court is] not required to review claims that are inadequately briefed . . . [The Appellate Court] consistently [has] held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . [F]or [a trial court] judiciously and efficiently to consider claims . . . raised . . . the parties must clearly and fully set forth their arguments in their briefs . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited . . . [Claims] which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by [the trial] court." (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn.App. 601, 603-04, 10 A.3d 59 (2010); see Cooke v. Cooke, 99 Conn.App. 347, 353, 913 A.2d 480 (2007)." Nowacki v. Nowacki, 129 Conn.App. 157, 163-64, 20 A.3d 702 (2011).
Finally, the plaintiff/counterclaim defendant argues that the defendant/counterclaim plaintiff had ample opportunity to research better terms for gas delivery and retain another provider and therefore, the third element of the cigarette rule cannot be met. The counterclaim defendant claims that the counterclaim plaintiff could have avoided the injury.
As previously discussed, to sustain a CUTPA violation the following three criteria must be met: " (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--whether, 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 businessmen)] (Emphasis added; internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 711, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013)." Gaynor v. Hi-Tech Homes, 149 Conn.App. 267, 275-76, 89 A.3d 373 (2014).
The defendant argues that the plaintiff has failed to prove the third element of the cigarette rule. This court has already determined that the defendant/counterclaim plaintiff has sufficiently pled aggravating factors which allow the CUTPA count to go forward. The defendant/counterclaim plaintiff's allegations of the counterclaim defendant's agent's false and misleading representations are enough to withstand a motion to strike. At this stage of the proceedings, the counterclaim plaintiff is only obligated to set forth factual allegations sufficient to allege a CUTPA violation, it is not required to prove those allegations. The counterclaim defendant's argument that the counterclaim plaintiff has failed to meet the third element of the cigarette rule by not avoiding the injury with due diligence on its part, goes to proof and therefore more appropriate for a motion for summary judgment.
In Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995), the case cited by the counterclaim defendant in support of this argument, automobile dealership groups brought an action against the Hartford Courant to recover damages for intentional misrepresentation or fraud, negligent misrepresentation and violation of the Connecticut Unfair Trade Practices Act (CUTPA) in connection with the newspaper's sale of advertising space to dealership groups. The trial court granted the newspaper's motion for directed verdict on intentional misrepresentation claims, and verdicts were returned for the dealerships on the negligent misrepresentation and CUTPA claims, and thereafter the trial court granted the newspaper's motion to set aside the verdicts as to the CUTPA claims and rendered judgment for the dealerships on the negligent misrepresentation claims. The newspaper appealed, and the automobile dealership groups cross-appealed.
One of the issues for the Supreme Court, inter alia, was whether the dealerships' CUTPA claim had been proved . " The dealerships' second claim [was] that the trial court improperly concluded that, because there was no evidence of fraud, the dealerships could not prevail on a CUTPA claim and, therefore, the trial court improperly set aside the jury's verdict on the CUTPA counts. The Courant argue[d], to the contrary, that negligence alone does not sustain a claim under CUTPA, either as a general matter or on the facts of this case . . .
" The Courant argue[d] that [the Supreme Court's] decision in A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215-16, 579 A.2d 69 (1990), supports the trial court's ruling. [The court] agree[d], because it read that decision as holding that there is no CUTPA violation when the sole basis of the claim is the defendant's negligence and the jury determines that the plaintiff was contributorily negligent . . .
" In discussing the third criterion, the federal trade commission has stated: The independent nature of the consumer injury criterion does not mean that every consumer injury is legally unfair, however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided . . ." (Emphasis added) Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 589-90, 591.
The court therefore agreed with the Courant that, " under the facts of this case, no CUTPA violation has been proved, and affirmed the ruling of the trial court on that basis . . . The dealerships have not satisfied either the second or third prong of the 'cigarette rule.' We conclude, therefore, that the Courant's negligence was not an unfair practice within the meaning of CUTPA. The record does not support a conclusion that the Courant's negligence constituted an 'immoral unethical, oppressive or unscrupulous' practice. Moreover, because the jury found that the dealerships were 10 percent contributorily negligent, the dealerships have not proved that they 'could not reasonably have avoided' any injury. On the basis of this record, we conclude that the dealerships have failed to show that the Courant caused an unjustified consumer injury, 'a necessary predicate' for recovery under CUTPA. Contrary to the claim of the [dealerships], the first prong, standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 592-93. In Williams Ford, Inc., the case had already gone to trial and the court was reviewing the setting aside of the jury's verdict by the trial court. Thus, the question before the court was whether dealerships had sufficiently proved the necessary elements to establish their CUTPA claim and not whether they had sufficiently alleged a violation of CUTPA. At this stage of the proceedings in the present case, the counterclaim plaintiff is only required to allege sufficient facts that if provable in the complaint would support a CUTPA cause of action. The counterclaim plaintiff at this stage is not required to actually prove the elements of CUTPA. As the court has already determined, when viewing the complaint in a light most favorable to sustaining its legal sufficiency, the counterclaim plaintiff has sufficiently pled a CUTPA violation, the counterclaim defendant's motion to strike is therefore denied. In light of the court's ruling on the counterclaim defendant's motion to strike the CUTPA claim, the court also denies its request to strike the corresponding prayers for relief.
CONCLUSION
For the foregoing reasons, the plaintiff/counterclaim defendant's motion to strike the defendant/counterclaim plaintiff's counterclaim and corresponding prayer for relief is denied.