Opinion
CV156054480
09-14-2016
The Tortilla Villa, Inc. v. Harold M. Peschell et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE COUNTS TWO, THREE AND FOUR OF DEFENDANTS' REVISED COUNTERCLAIM AND DEFENDANTS' CLAIMS FOR ATTORNEYS FEES PURSUANT TO COUNT FOUR AND PUNITIVE DAMAGES (NO. 111)
Jon C. Blue, Judge
The Motion To Strike now before the court seeks to strike three counterclaims and two prayers for relief. A careful review of the pleadings is required.
The Tortilla Villa, Inc. (" Villa") commenced this action by service of process on April 27, 2015. The defendants are Harold M. Peschell and Evelyn C. Peschell (the " Peschells"). Villa's complaint consists of eight counts.
Count One alleges breach of a lease covenant to repair. It specifically claims that the Peschells are the owners of real property (" Property") located in West Haven and, on December 31, 2013, leased the Property to Villa for use as a bakery. The Peschells have allegedly refused to make certain structural repairs required by the lease. Counts Two and Three arise out of the same factual allegations. Count Two alleges negligence. Count Three alleges breach of a covenant of quiet enjoyment. Count Four alleges misrepresentation of material facts, claiming that the Peschells should have known of the presence of asbestos and other structural defects on the Property. Counts Five, Six, and Eight arise out of the same factual allegations. Count Five alleges fraud in the inducement. Count Six alleges fraudulent concealment of material facts. Count Seven alleges unjust enrichment, claiming that Villa has expended substantial sums on the Property, thereby increasing its value. Count Eight alleges breach of an implied covenant of good faith and fair dealing.
On March 11, 2016, the Peschells filed four counterclaims. Counterclaim One is not in question here. Counterclaim Two alleges negligent infliction of emotional distress. It claims that Villa commenced this action " in an attempt to bully, harass and intimidate" the Peschells and to force the Peschells to sell the Property to Villa at a below-market price. This conduct has allegedly caused the Peschells severe emotional distress. Counterclaim Three alleges intentional infliction of emotional distress. It claims that Villa " sent messages" to the Peschells " making accusatory statements about items missing" from the Property and " also sent letters" to the Peschells " trying to impose additional responsibilities" on the Peschells " not agreed to in the lease." This conduct allegedly caused the Peschells severe emotional distress. Counterclaim Four alleges a violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), Conn. Gen. Stat. § 42-110a, et seq. It alleges that Villa is " sophisticated and . . . well versed in real estate deals, negotiations, and leases, " that it " harassed and annoyed the elderly landlords in an effort to obtain an improper advantage, " that it commenced this action to prevent the Peschells " from living their retirement years in peace and tranquility" and " created issues with regard to the Property in an effort to get the [Peschells] to sell the Property, and that it " sent letters and other communications in an effort to harass the elderly landlords so that they would . . . sell the Property." The Peschells, inter alia, pray for attorneys fees pursuant to Counterclaim Four and punitive damages.
On March 24, 2016, Villa filed the Motion To Strike now before the court. The Motion seeks to strike Counterclaims Two, Three, and Four, and the prayers for relief pursuant to Counterclaim Four and for punitive damages. The Motion was heard on August 8, 2016. Postargument briefs were filed on September 1, 2016.
The disputed counterclaims will now be considered in turn.
Counterclaim Two
Counterclaim Two alleges negligent infliction of emotional distress. " To prevail on a claim of emotional distress, the plaintiff is required to prove that (1) the defendant's conduct caused an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Hall v. Bergman, 296 Conn. 169, 182 n.8, 994 A.2d 666 (2010). (Internal quotation marks and citation omitted.) Although Counterclaim Two alleges elements (1), (2), and (4), it does not allege element (3). There is no claim that the emotional distress suffered by the Peschells was severe enough that it might result in illness or bodily harm.
Although the omission just discussed would warrant striking Counterclaim Two if claimed by Villa, the Motion To Strike now before the court does not mention this omission. Villa instead claims that Counterclaim Two is legally insufficient because it alleges conduct by Villa " occurring after the events which gave rise to the original complaint and therefore, the allegations do not arise out of the same transaction as the . . . Complaint."
P.B. § 10-10 required that counterclaims " arise[] out of the transactions or one of the transactions which is the subject of the plaintiff's complaint." This " is a common-sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy . . . 'Transaction' is regarded as a word of flexible meaning . . . The 'transaction test' is one of practicality . . . Relevant considerations in determining whether the 'transaction test' has been met include whether the same issues of fact and law are presented by the complaint and the cross claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976).
Where the facts alleged in a counterclaim " involve interactions between the plaintiff and the defendant that occurred well after" the facts alleged in the complaint, the counterclaim may be stricken. South Windsor Cemetery Association, Inc. v. Lindquist, 114 Conn.App. 540, 548, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009) (affirming the striking of an emotional distress counterclaim). Counterclaim Two plainly focuses on the litigation of this action as the event allegedly causing them emotional distress. When questioned by the court as to whether Counterclaim Two alleges additional facts that would take the counterclaim out of the South Windsor Cemetery ambit, the Peschells could only point to paragraph 5, which alleges that, " At the inception of the Lease, [Villa] desired to buy out [the Peschells'] interest in the Premises." That allegation, however, merely involves an alleged intention rather than any affirmative action responsible for causing distress to the Peschells. The Peschells do not allege that the original signing of the lease caused them emotional distress. That distress was allegedly caused by the action commenced by Villa. Under these circumstances, the Motion To Strike Counterclaim Two must be granted.
Counterclaim Three
Counterclaim Three alleges intentional infliction of emotional distress. " In order for plaintiff to prevail in a case for liability . . . alleging intentional infliction of emotional distress, four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012). (Internal quotation marks, brackets, and citation omitted.) Villa does not contend that the Peschells have failed to allege these elements.
Villa's contention with respect to Counterclaim Three is the same as it makes with respect to Counterclaim Two--that it alleges conduct occurring after the facts giving rise to the action commenced by Villa. In the case of Counterclaim Three, however, the alleged facts do not fit neatly into this mold. Paragraph 11 alleges that Villa " sent messages to the [Peschells] making accusatory statements about items missing at the Premises." Paragraph 12 alleges that Villa " also sent letters to the [Pesehells] trying to impose additional responsibilities on the [Pesehells] not agreed to in the Lease." Although Counterclaim Three does not state the content of the messages and letters referred to, paragraphs 13 and 14 of Count One of the complaint allege that Villa gave " written notice" of the alleged defects to the Peschells on March 24, 2014 and April 23, 2014, and paragraph 39 of Count Eight alleges " multiple written requests" from Villa to the Peschells to repair structural defects. Under these circumstances, it is virtually certain that the entire history of Villa's communications with the Peschells during the period of the lease will come into evidence in the trial of Villa's action. Given this fact, " separate trials of the respective claims would involve a substantial duplication of effort by the parties and the courts." Jackson v. Conland, supra, 171 Conn., at 166-67. Under these circumstances, the Motion To Strike Counterclaim Three must be denied.
Counterclaim Four
Counterclaim Four alleges a CUTPA violation. A CUTPA violation must have " some nexus with a public interest, some violation of a concept of what is fair, some immoral, oppressive or unscrupulous business practice or some practice that offends public policy." Milford Paintball, LLC v. Wampus Milford Associates, LLC, 156 Conn.App. 750, 765 n. 11, 115 A.3d 1107, cert. denied, 317 Conn. 912, 116 A.3d 812 (2015). (Internal quotation marks and citation omitted.)
Villa asserts two different arguments in support of its Motion To Strike Counterclaim Four. It first argues that a CUTPA violation cannot be alleged and proven on the basis of " a single occurrence." The short answer to this argument is that it was rejected by the Appellate Court in Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 353, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002). In any event, Counterclaim Four plainly alleges a series of events rather than a single transaction.
It is well established that CUTPA violations can arise from a landlord-tenant relationship. Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983). Counterclaim Four is unusual in that it consists of a tenant's complaint that a landlord has violated CUTPA rather than the other way around. There is no reason in principle, however, why such a situation cannot occur. CUTPA prohibits immoral and unscrupulous conduct by either part to a commercial transaction. Although it is ordinarily the landlord who is cast as the predator and the tenant who is cast as victim, occasionally the shoe may be placed on the other foot. Counterclaim Four alleges that Villa is a sophisticated (and unscrupulous) commercial party and that the Peschells are unsophisticated elderly victims. The actual underlying facts, of course, cannot be determined from the pleadings. The Peschells have alleged a plausible CUTPA violation. They are entitled to the opportunity to prove it.
Villa alternatively argues that Counterclaim Four, like Counterclaims Two and Three, the alleged conduct occurred after the events which gave rise to the original lawsuit. The short answer to this contention is that Counterclaim Four incorporates by reference paragraphs 11 and 12 of Counterclaim Three and additionally alleges in paragraph 15(d) that Villa " sent letters and made other communications in an effort to harass the [Peschells]." For reasons discussed with respect to Counterclaim Three, the history of the parties' communications will undoubtedly come into evidence in the trial of the original action, so that separate trials would involve a duplication of judicial effort.
Under these circumstances, the Motion To Strike Counterclaim Four must be denied.
The Prayer For Attorneys Fees
Since the Motion To Strike Counterclaim Four has been denied, the Motion To Strike the prayer for attorneys fees pursuant to the CUTPA violation alleged in Counterclaim Four must also be denied.
The Claim For Punitive Damages
The Peschells pray for punitive damages. Punitive damages may be awarded for a CUTPA violation. Conn. Gen. Stat. § 42-110g(a). Since the Motion To Strike Counterclaim Four has been denied, the Motion To Strike the prayer for punitive damages must also be denied.
Conclusion
The Motion To Strike is granted as to Counterclaim Two. It is otherwise denied.