Opinion
HHDCV156063186S
05-06-2016
Greg Treacy et al. v. Chamberlin Kitchen & Bath, LLC et al
UNPUBLISHED OPINION
Filed Date: May 10, 2016
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
This action, filed by the plaintiffs, Greg Treacy and Helen Treacy, stems from an alleged agreement that the plaintiffs entered into with the defendant, Plain N' Fancy Kitchens, Inc. DBA Plain & Fancy Custom Cabinetry (manufacturer), through an order form prepared by the defendants, Chamberlin Kitchen & Bath, LLC (retailer) and the employee of the retailer, Tyson Chamberlin (the employee), for the plaintiff's purchase of certain kitchen cabinetry and accessories produced by the manufacturer (order). In the revised complaint, the plaintiffs allege that the retailer and the employee were agents of the manufacturer because: (1) the retailer " was listed on [the manufacturer's website as such an authorized dealer who would serve the customer well on behalf of [the manufacturer] and its products; " (2) [the manufacturer's] logo appear[ed] atop the plaintiff's order forms; and (3) the manufacturer's website states " all warranty claims must be made through its local dealers." The plaintiffs allege that they paid the retailer for the order, which was not delivered to the plaintiffs, and the money was not refunded. The plaintiffs' counts against the manufacturer allege the transaction was tortious and violated the Connecticut Unfair Trade Practices Act.
The manufacturer moves to strike the counts five through eight of the revised complaint on the ground that the plaintiffs have not pleaded sufficient facts to allege an actual agency relationship or an agency relationship based upon apparent authority. The manufacturer also moves to strike the counts on the ground that a principal cannot be liable for the tortious act of its alleged agent on the theory of apparent authority.
" [T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact." (Citation omitted; internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 203 n.16, 994 A.2d 106 (2010). The court may strike a complaint that " fail[s] to allege the facts necessary to prove the existence of [an agency] relationship" including an " allegation [that the principal] had the right to control the work of [the agent]." Hollister v. Thomas, 110 Conn.App. 692, 706-07, 955 A.2d 1212 (2008), cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). " A mere direction to perform a task does not imply control over the performance of that task." Id.
An agency relationship based on apparent authority requires a finding " (1) [t]hat the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question . . . and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe, and did believe, that the agent possessed the necessary authority. The apparent power of an agent is to be determined by the acts of the principal, and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent's own conduct and statements have created the apparent authority. The liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent." (Internal quotation marks omitted.) Fireman's Fund Ind. Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496-97, 18 A.2d 347 (1941). Notwithstanding those statements, " the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent." (Citation omitted; internal quotation marks omitted.) Cefaratti v. Aranow, 154 Conn.App. 1, 45, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015).
This court must determine whether in construing the revised complaint in the light most favorable to the plaintiffs, the plaintiffs allege that the manufacturer had the right to control the work of the retailer and the employee. This court concludes there are no such allegations in those counts, not even an allegation that the manufacturer directed the agent to perform a task, which under Hollister would be insufficient to allege that a principal controlled an agent's activity. Accordingly, the plaintiffs have failed to plead a cause of action of actual agency. Furthermore, this court need not reach the issue of whether the plaintiffs have pleaded an agency relationship based upon apparent authority between the manufacturer, and the retailer and the employee, as any attempt by the plaintiffs " to hold a principal liable for the tortious actions of its alleged agent" is not a recognized cause of action before this court under Cefaratti v. Aranow, supra, 154 Conn.App. 45. Accordingly, the manufacturer's motion to strike is granted.