Opinion
No. CV 04-0199068 S
August 18, 2004
MEMORANDUM OF DECISION
The plaintiff brings this action against Kenneth Griffin, Executor of the Estate of Florence Hart Heath, arising from a residential lease of property located in Greenwich, Connecticut. The plaintiff was at all relevant times a tenant on the property under a written lease signed by the defendant's decedent (the "landlord") on January 17, 2002.
The plaintiff claims to have suffered keratitis to both eyes caused by the landlord's breach of certain provisions of the lease, and the landlord's negligence relating to the property. The plaintiff's amended complaint contains counts in breach of lease, negligence and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), respectively. Under the CUTPA count the plaintiff seeks actual damages, punitive damages and attorneys fees.
In the first count, the plaintiff alleges that the landlord breached the lease at issue by failing to comply with the terms of the lease pertaining to compliance with all building and housing codes; failing to make repairs and keep the premises in a fit and habitable condition; failing to keep in good condition all the utilities and other systems; and by failing to provide the plaintiff with a peaceable and quiet enjoyment of the premises. The plaintiff claims that those contractual omissions caused the plaintiff's personal injuries and damages.
The plaintiff repeats the alleged breaches in the second count, but couches them in negligence terms claiming that specific negligence of the landlord concerning the premises caused his personal injuries and damages.
In the third count alleging a CUTPA violation, the plaintiff repeats all of the allegations of the breach of lease count along with those paragraphs of the negligence count that specify the acts of negligence, and the injuries and damages caused by the negligence. After repeating those allegations, the plaintiff concludes that the alleged contractual breaches and negligence of the landlord constitute unfair or deceptive acts or practices in violation of General Statutes § 42-110b, and caused the plaintiff to suffer an ascertainable loss of money or property.
The defendant moves to strike the third count sounding in CUTPA for the following reasons: (1) simple breach of contract and negligence claims are legally insufficient to support a CUTPA claim; (2) the conduct allegedly constituting a violation of the Act did not arise from the landlord's trade or business; and (3) the CUTPA action did not survive the death of the landlord under the survival of action statute, General Statutes § 52-599. The plaintiff objects to the defendant's motion to strike making directly contrary arguments.
It is well established that "[t]he 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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). A motion to strike "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 court "take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bhinder v. Sun, Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., supra, 292.
The court will first address the issue of whether a claimed CUTPA violation survives the death of the landlord pursuant to the survival of action statute. That statute provides, in relevant part, that "[a] cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." General Statutes § 52-599(a). The survival statute further provides that the section does not apply "to any civil action upon a penal statute." General Statutes § 52-599(c)(3). The issue before the court is whether, as contended by the defendant, CUTPA is a penal statute such that the exception to the survival statute applies.
In State v. Leary, 217 Conn. 404 (1991), the Supreme Court considered constitutional attacks on the CUTPA statutory scheme, and in that context generally commented on the requirement that penal statutes must be sufficiently definite as a matter of constitutional law. In Leary, the plaintiff, State of Connecticut Office of Attorney General, commenced an action against the defendants pursuant to General Statutes § 42-110m seeking to, among other things, enjoin the defendants from ticket scalping. The trial court found that the defendants had violated the ticket scalping statute, General Statutes § 53-289, and granted the plaintiff's request for injunctive relief, restitution and the imposition of a civil penalty in accordance with General Statutes § 42-110o.
That section provides in pertinent part that the Attorney General may "apply in the name of the state of Connecticut to the superior court for [an] order temporarily or permanently restraining and enjoining the continuance of [an act or acts in violation of CUTPA] or for an order directing restitution and the appointment of a receiver in appropriate instances, or both . . ."
General Statutes § 42-110o(b) provides as follows: "In any action brought under section 42-110m, if the court finds that a person is willfully using or has willfully used a method, act or practice prohibited by section 42-110b, the attorney general, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than two thousand dollars for each violation. For purposes of this subsection, a willful violation occurs when the party committing the violation knew or should have known that his conduct was a violation of section 42-110b."
One of the defendants' claims on appeal challenged the section of the statutory scheme setting forth the legal elements of a CUTPA violation, General Statutes § 42-110b(a), as being "unconstitutionally vague and overbroad." The Court declined to review the claim "[d]ue to the inadequate record." State v. Leary, supra, 217 Conn. 417. In the context of discussing that constitutional argument and its decision not to review the argument, the Court in dictum, citing State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980), noted that "[a]s a matter of the due process of law required by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid." Id., 416.
That dictum in Leary has resulted in a split of authority in the superior courts as to whether CUTPA is a penal statute for purposes of the survival of action statute. See Touchette v. Smith, Superior Court, judicial district of New London, Docket No. CV91-0520651-S (September 29, 1993, Booth, J.) ( 10 Conn. L. Rptr. 173, 9 C.S.C.R. 39) (". . . the court holds that any action under the Unfair Trade Practices Act abates as at common law and is not saved by the survival of action statute because of the specific exclusion from that statute of penal statutes"); Medeiros v. Federal Paper Board, Superior Court, judicial district of New London, Docket No. CV 536477 (July 2, 1996, Hurley, J.) ( 17 Conn. L. Rptr. 310) (determining that the " Leary decision implicitly determined CUTPA to be a penal statute" and holding that the "plaintiff's CUTPA action did not survive" the death of the plaintiff's decedent); But see, Engram v. Zapert, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0556873 (November 6, 1996, Sullivan, J.) ( 18 Conn. L. Rptr. 231) ("The court determines that private actions under General Statutes 42-110g of CUTPA are not in fact civil actions on a penal statute such as to exclude such actions from the survival of action statute . . ."); Saturno v. Dovenmuehle, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 99 0169649 (February 21, 2001, Lewis, J.) ( 29 Conn. L. Rptr. 23) ("CUTPA is a remedial statute and not a penal statute"); Abbhi v. AMI, Superior Court, judicial district of New Haven, Docket No. CV 96 0382195 (June 3, 1997, Silbert, J.) ( 19 Conn. L. Rptr. 493) (holding that CUTPA is a remedial statute and such a claim survives the death of a party under the survival of action statute).
"The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce . . ." Willow Springs Condo. Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 42 (1998). Section 42-110b(a) of the Act states 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."
The legislature intended that the act be remedial in nature and extent. Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981); Willow Springs Condo. Ass'n, Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 42. "It is the intention of the legislature that this chapter be remedial and be so construed." General Statutes Section 42-110b(d). The plain meaning of that section is clear and unambiguous. The court need look no further than the language of the act itself for its meaning. "The entire act is remedial in character and must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; emphasis added.) Willow Springs Condo. Ass'n, Inc., supra, 245 Conn. at 42.
Public Acts 2003, No. 03-154, effective October 1, 2003, provides as follows: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
"The plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than simple damages recoverable under common law. The ability to recover both attorneys fees . . . and punitive damages . . . enhances the private CUTPA remedy and serves to encourage private CUTPA litigation." (Citations omitted.) Hinchliffe v. American Motors Corp., supra, 184 Conn. 617. In view of its enhanced remedies, CUTPA goes farther than the basic definition of a remedial statute, which statute provides "a remedy enforceable by an individual in a civil action and allows the recovery of damages in an amount commensurate with the injuries suffered." Pierce v. Albanese, 144 Conn. 241, 250, 129 A.2d 606 (1957). The enhanced remedies strengthen the legislature's remedial goal to "create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts." Hinchliffe v. American Motors Corp., supra, 618.
"Penal statutes, strictly and properly, are those imposing punishment for an offense against the State; and the expression `penal statutes,' does not ordinarily include statutes which give a private action against a wrong-doer . . . The words `penal' and `penalty,' in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the State for a crime or offense against its laws . . . [A] statute which gives no more than a right of action to the party injured to recover increased damages, is not a penal statute." (Citations omitted.) Plumb v. Griffin, 74 Conn. 132, 134, 50 A. 1 (1901); see also Mobil Oil Corporation v. Killian, 30 Conn.Sup. 87, 99, 301 A.2d 562 (1973). "Remedial statutes, in contrast, provide a remedy enforceable by an individual in a civil action that allows the recovery of damages in an amount commensurate with the injuries suffered." Abbhi v. Ami, supra, 19 Conn. L. Rptr. 495.
This court agrees with the reasoning and the decision of the court in Abbhi that, based on the facts in this case, CUTPA is a remedial, not a penal, statute, and that such an action survives the death of the landlord pursuant to General Statutes § 52-599. Notwithstanding the dictum in Leary, the legislature expressly and plainly stated their remedial intention in the Act. Also, Leary is distinguishable from the present case to the extent that, in Leary, the attorney general was seeking to recover on behalf of the state, among other remedies, a civil monetary penalty pursuant to General Statutes § 42-110o(b). In that narrow instance of state action under the statute, CUTPA may be characterized as being penal in nature. That remedy, however, does not change the overall remedial nature of the Act. See Pierce v. Albanese, supra, 144 Conn. 250 (in discussing the predecessor to the present Dram Shop Act, the Court noted that "[w]hile it may be said in one sense that the statute is penal, nevertheless it is primarily remedial because it gives a remedy enforceable by an individual in a civil action and allows the recovery of damages commensurate with the injuries suffered").
In view of the foregoing, the motion to strike the CUTPA count for the reason that such a count does not survive the death of the landlord is denied. Consequently, the court will consider the defendant's other claims.
The defendant further challenges the third count arguing that the plaintiff failed to set forth a legally sufficient CUTPA claim. The defendant argues that simple breach of contract and negligence claims, which form the basis of the CUTPA count, are legally insufficient to constitute a violation of the Act.
"[T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation . . ." (Citation omitted.) Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). "A simple breach of contract, [however,] even if intentional, does not amount to a violation of CUTPA; a [claimant] must show substantial aggravating circumstances attending the breach to recover under the Act . . ." (Internal quotation marks omitted.) Milltex Properties v. Johnson, Superior Court, judicial district of New London, Docket No. 565866 (March 15, 2004, Hurley, J.T.R.) ( 36 Conn. L. Rptr. 780). "The burdens and risks inherent in contract formation would be intolerably increased if every simple breach of contract claim were to be made the basis of a CUTPA violation." (Internal quotation marks omitted.) Rizzo Construction Pool Co. v. Riefier, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 391537 (December 3, 2003, Levin, J.) "[A]bsent an allegation of any fraudulent or deceptive practice or bad faith in procuring the original agreement . . . [a] plaintiff has failed to allege a CUTPA violation." (Internal quotation marks omitted.) Hirsch v. Ginise, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV03 0194598 (February 27, 2004, Lewis, J.T.R.) ( 36 Conn. L. Rptr. 695).
"It 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 . . . CUTPA liability should not be imposed, however, when a defendant merely has not delivered on a promise unless the defendant made a representation as to a future fact coupled with a present intent not to fulfill the promise . . . The court is not aware of a case that holds that a statement predictive of future conduct . . . somehow becomes a misrepresentation for CUTPA purposes simply when the party making the representation cannot deliver on the promise." (Emphasis added; internal quotation marks omitted.) Raffone v. Home Depot U.S.A., Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02 0465471 (June 23, 2003, Harper, J.) ( 34 Conn. L. Rptr. 747).
The plaintiff has not pled any facts in the third count that would support a CUTPA violation based on the landlord's alleged breaches of the lease. Particularly, the plaintiff has failed to set forth any facts showing any aggravating factors, such as acts of misrepresentations or deceptions of the landlord. The allegations, construed most favorably to sustaining their legal sufficiency, merely set forth a basic breach of contract claim from which flows unsupported, legal conclusions that the breaches constitute CUTPA violations.
Similarly, the defendant claims that the third count is legally insufficient because simple negligence claims cannot constitute a CUTPA violation. "Mere allegations of . . . negligence are inadequate to allege a CUTPA claim." LaRoche v. New Haven Savings Bank, Superior Court, judicial district of New Haven, Docket No. CV 95-0375771 (October 30, 1995, Hadden, J.). See A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 214-17, 579 A.2d 69 (1990) (Defendant's alleged negligence did not constitute a violation of CUTPA because neither the second or third prong of the "cigarette rule" was satisfied; that is, the defendant's negligence did not constitute an "immoral, unethical, oppressive or unscrupulous" practice and the plaintiff failed to show that the defendant caused an unfair consumer injury). The plaintiff has not alleged any facts in the third count pertaining to the landlord's alleged negligent omissions that are legally sufficient to establish a CUTPA violation.
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 120, 215, 618 A.2d 25 (1992). In view of the foregoing, the defendant's motion to strike (108.00) the third count alleging a CUTPA violation is granted. Accordingly, the court will not consider the defendant's argument that the CUTPA count should be stricken for the reason that the conduct allegedly constituting a violation of the Act did not arise from the landlord's trade or business.
BY THE COURT
TYMA, JUDGE