Opinion
No. 4102776
August 29, 2006
MEMORANDUM OF DECISION
This is an action for adverse possession and prescriptive easement brought by way of a complaint filed on August 16, 2005. The plaintiff, Thomas Vivirito, is the owner of a certain parcel of land situated in Ledyard, Connecticut, known as 1322 Baldwin Hill Road. The defendant, Terra Firma, Inc., is the owner of certain parcels of land situated in Ledyard, Connecticut, known as 1352 and 1354R Baldwin Hill Road. By way of an amended complaint, filed on April 3, 2006, the plaintiff seeks a decree determining the rights of the parties as to a right-of-way which crosses over a portion of the defendant's property. Additionally, counts three and four of the plaintiff's amended complaint allege tortious interference with a business relationship and a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), respectively.
On December 22, 2005, the plaintiff, Thomas W. Vivirito, filed a motion to substitute Baldwin Hill Associates, LLC as the proper party plaintiff. On January 13, 2006, this court granted the plaintiff's motion.
Counts one and two of the plaintiff's complaint, respectively, allege adverse possession and prescriptive easement claims. These two counts are not the subject of the defendant's motion to strike.
On April 12, 2006, the defendant filed a motion to strike counts three and four of the plaintiff's amended complaint. Additionally, the defendant moves to strike the second and fourth prayers of relief seeking attorneys fees and costs, as well as punitive damages pursuant to General Statutes § 42-110g(a). In its motion to strike, the defendant avers that counts three and four of the amended complaint should be stricken on the grounds that these counts are legally insufficient and fail to state claims upon which relief can be granted. Specifically, the defendant argues that count three fails to state a claim for tortious interference with a business relationship because no business relationship is alleged. Further, the defendant contends that count four fails to properly allege an unfair or deceptive practice and fails to allege a business relationship between the parties as is required to set forth a claim under CUTPA.
In response, the plaintiff filed an opposition to the defendant's motion to strike on April 24, 2006. The plaintiff argues that a business relationship has been sufficiently alleged in counts three and four. Specifically, the plaintiff contends that a business relationship between the parties rose out of an option agreement executed between the plaintiff and the defendant in December 2002, pursuant to which the defendant was to purchase the plaintiff's property. The plaintiff further contends that a CUTPA claim has been properly alleged in count four, namely the defendant's restriction of the plaintiff's access to his own property, allegedly in response to the plaintiff's refusal to extend the option agreement after the defendant failed to exercise its option, as well as the defendant's interference with the plaintiff's wish to sell his property.
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). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000).
A Tortious Interference
"It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000); see also Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 428-29, 780 A.2d 967 (2001). "[The Supreme Court] has long recognized a cause of action for tortious interference with contract rights or other business relations . . . Nevertheless, not every act that disturbs a contract or business expectancy is actionable . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means . . . [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." (Citations omitted; internal quotation marks omitted.) Desrosier of Greenwich v. Shumway Capital Partners, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4004621 (May 30, 2006, Lewis, J.T.R.), citing Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36, 546 A.2d 216 (1988). "The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification . . . In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the actor." (Internal quotation marks omitted.) Id.
Stated simply, "our law requires merely that [the] plaintiff plead that a defendant has tortiously interfered with an existing or prospective business relationship." (Emphasis added; internal quotation marks omitted.) Bernardini v. Lombard, Superior Court, judicial district of Litchfield, Docket No. CV 01 0086276 (March 14, 2003, Frazzini, J.) ( 34 Conn. L. Rptr. 305, 306), quoting Hi-Ho Tower, Inc. v. Com-tronics, Inc., supra, 255 Conn. 31. In Bernardini, the plaintiff alleged that the defendant tortiously interfered with his contractual expectancy to sell his land to a prospective buyer. The defendant was alleged to have erected tall trees and chicken-wire fencing covered by black plastic between her property and the neighboring properties in an attempt to intentionally interfere with a contractual expectancy between the plaintiff and a putative buyer. The court, in reading the allegations of the complaint most favorably to the plaintiff and assuming facts necessarily implied from those allegations, found that the "logical implication of the allegation that [the] defendant intended to interfere with the business expectancy is that it was [the defendant's] conscious purpose to bring about that specific result." Id., 307. The court concluded that these allegations were sufficient to plead a claim for tortious interference with a business expectancy.
In the present case, the plaintiff alleges in count three, inter alia, that the defendant has barred access and/or denied the plaintiff his right to use a right-of-way to access the plaintiff's property. Furthermore, the plaintiff alleges that the defendant knew that the plaintiff wanted to sell his property, that the defendant intentionally interfered with the plaintiff's rights in order to obtain an unfair advantage in negotiating for the purchase of the plaintiff's property, and that the defendant's actions have limited the plaintiff's ability to sell the subject property. Reading the plaintiff's complaint in a light most favorable to the plaintiff, and taking what is necessarily implied in an allegation — which need not be expressly alleged; Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000); the court finds that these allegations are sufficient to withstand a motion to strike. The plaintiff alleges that the defendant knew that he wanted to sell his property, yet the defendant intentionally interfered with the plaintiff's right in regard to the sale of that property. Moreover, the plaintiff alleges an inability to sell that property because of the actions of the defendant. The plaintiff's inability to sell the property necessarily implies that there are potential or prospective buyers and, therefore, prospective business relationships. As such, the allegations of count three sufficiently set forth a claim for tortious interference, and the motion to strike count three of the amended complaint is denied.
B CUTPA
The court next addresses whether the plaintiff has pleaded sufficient facts to demonstrate a violation of CUTPA. General Statutes § 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." "[W]e previously have stated in no uncertain terms that CUTPA imposes no requirement of a consumer relationship. In McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, [566-67], 473 A.2d 1185 (1984), we concluded that CUTPA is not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury." (Emphasis added; internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005).
In the present case, the plaintiff's CUTPA claim is based on the facts contained in count three alleging tortious interference, all of which allegations are repeated in the fourth count. The defendant contends in its motion to strike that count four fails to properly allege a business relationship between the parties or an unfair or deceptive practice.
The plaintiff alleges in count four that the parties entered into an option agreement in December 2002. The option agreement gave the defendant an option to purchase the plaintiff's property. The plaintiff further alleges that the defendant failed to exercise its option within the specified time period set forth in the agreement and the plaintiff refused to extend the option agreement. More than three months after the expiration of the option agreement, the defendant allegedly barred the plaintiff from accessing his property by use of the claimed right-of-way located on the defendant's property.
As noted by the defendant in its memorandum of law in support of the motion to strike, the allegations in count four indicate that the option agreement had expired over three months before the defendant's denial of the plaintiff's alleged right to access the property. Thus, the relationship between the plaintiff and the defendant at the time the defendant denied the plaintiff access to the right-of-way was one of neighboring landowners. Such a relationship cannot form the basis of a CUTPA claim where no business or competitive relationship is alleged. See Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 157. Accordingly, this court finds that the allegations of count four do not sufficiently set forth a claim for CUTPA, therefore, the motion to strike count four of the amended complaint is granted.
CONCLUSION
For all the foregoing reasons, the court hereby denies the defendant's motion to strike count three. The motion to strike count four and the corresponding fourth prayer for relief seeking punitive damages is granted. Moreover, because the plaintiff has failed to plead a basis for recovery of attorneys fees and costs, the motion to strike the second prayer for relief is granted. CT Page 15567