No. CV08 5004343-S
June 23, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #125
On March 11, 2009, the plaintiff, Satoshi Kawanobe, filed a request for leave to amend his complaint pursuant to Practice Book § 10-60(a)(3), seeking to add counts for violation of the Connecticut Unfair Trade Practices Act (CUTPA) against each defendant. The defendant City of New Haven filed an objection thereto on March 13, 2009. The defendants Mary Licata, Coldwell Banker Residential Mortgage and NRT, LLC (collectively "Coldwell Banker") filed a joint motion to strike the sixteenth, seventeenth and eighteenth counts pursuant to Practice Book § 10-39 on March 12, 2009. "The Plaintiff objected to [Coldwell Banker's] motion to strike by treating same as an objection to his request for leave to amend." The matter was heard at short calendar on March 30, 2009.
On February 17, 2009, Smith filed a revised cross complaint against the City of New Haven. The City of New Haven moved to strike Smith's revised cross complaint on March 12, 2009. Smith withdrew his cross complaint on April 14, 2009.
On March 12, 2009, Coldwell Banker filed an amended cross complaint against the City of New Haven. Coldwell Banker withdrew its cross complaint against the City of New Haven on April 15, 2009.
In his March 11, 2009 amended complaint "[t]he Plaintiff alleges that the Coldwell Banker Defendants listed the Property for the Seller and listed the Property as a `three family home with steady income.' Further, the Plaintiff alleges that the Coldwell Banker Defendants negligently misrepresented that the Property was a three family home when the City of New Haven's Building Department identifies the Property as an approved two family residential dwelling even though the City of New Haven's Assessor's Card and Vision Appraisal system identify the Property as a three family dwelling."
At issue here is Coldwell Banker's motion to strike the sixteenth, seventeenth and eighteenth counts of the plaintiff's amended complaint. Counts sixteen through eighteen allege that Coldwell Banker's "actions of concealing and/or misrepresenting the legal status of the Property at or prior to the closing on said Property by the Plaintiff was in conscious disregard of the Plaintiff's rights and best interests and constitute an unfair act or trade practice in violation of Connecticut General Statutes § 42-110a et seq."
"Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "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." (Internal quotation marks omitted.) Faulkner v. United Technologies Conn., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff 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). "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., supra, 240 Conn. 580. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
In its memorandum of law in support of its motion to strike, Coldwell Banker argues that the essential elements of CUTPA have not been alleged and the challenged counts are thus mere conclusions of law. Coldwell Banker argues that "the Plaintiff has not set forth the requisite aggravating factual circumstances [of immoral or unscrupulous behavior] necessary to bring the Complaint within the reach of CUTPA. The allegations of the Complaint, even if true, establish no more than an act of negligence."
In his objection to Coldwell Banker's motion, the plaintiff argues that the three criteria of the cigarette rule; see Williams Ford, Inc. v. The Hartford Courant, 232 Conn. 559, 591 (1995); are satisfied here because Coldwell Banker acted in contravention of public policy by violating a statute governing fairness among real estate agents and agencies, such acts were unethical because they were proscribed by real estate industry standards and the plaintiff was harmed financially by Coldwell Banker's actions. The plaintiff also argues that "[i]t does not matter that the Defendants' mistakes and misrepresentations were unintentional or the alleged result of a codefendant's negligence."
CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or trade practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). "Whether the defendant is subject to CUTPA is a question of law, not fact . . . This review concerns statutory construction and the application of the statutes to the allegations of the plaintiff's complaint to determine if the plaintiff has stated a cause of action." (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn.App. 704, 712, 757 A.2d 1207 (2000).
`To establish a CUTPA violation, a claimant's evidence must establish that the conduct at issue falls within one of three criteria. A court must decide whether the conduct (1) offends public policy, (2) is immoral, unethical, oppressive or unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen." (Citations omitted; internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 646, 882 A.2d 98, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005). All three criteria, commonly known as the "cigarette rule," need not be established in order to state a CUTPA claim; see Jacobs v. Healy Ford Subaru, 231 Conn. 707, 725-26 (1995). In effect, it is a balancing test where a strong showing on one factor can compensate for a weak showing on another. Toshiba American Medical Systems, Inc. v. Mobile Medical Systems, Inc., 53 Conn.App. 484, 491 n. 3, 730 A.2d 1219, cert. denied, 249 Conn. 930, 733 A.2d 1219 (1999). "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." De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).
There is generally no "special requirement of pleading particularity connected with a CUTPA claim." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002). However, the Supreme Court has indicated that the "first prong [of the cigarette rule] standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence." (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593, 657 A.2d 212 (1995).
In Wuchek v. Estate of Colatosti, Superior Court, judicial district of New Haven, Docket No. CV 06 5007278 (May 27, 2008, Robinson, J.), the plaintiffs brought suit claiming that they had purchased a residence based "in reliance on a Multiple Listing Service advertisement, which represented that the premises were connected to the public sewers," though it in fact was not. The defendants filed a motion to strike counts sounding in negligent misrepresentation and CUTPA. Id. The court held that "[i]n the present case the allegations contained in count five [CUTPA count] are taken verbatim from count two (the negligent misrepresentation count) with the mere addition of one paragraph [stating that misrepresentation constituted unfair and deceptive trade practices] . . . At most, the plaintiffs have only alleged that the practices offended public policy, the first prong, but not the other required elements. Accordingly, the plaintiffs have failed to sufficiently allege a CUTPA violation because CUTPA liability does not exist for mere negligence when, as here, the sole CUTPA claim is that the defendant's negligence offends public policy." (Internal quotation marks omitted.) Id.
The negligent misrepresentation count from which the language was used in the CUTPA count alleged that "[a]t the time that the defendant, David Hawes, represented that [p]remises were connected to public sewers, such representation was false, he either knew that representation was false or had no reasonable basis for believing in the truth of that representation and the plaintiffs relied on the false representation to their detriment." Wuchek v. Estate of Colatosti, supra, Superior Court, Docket No. CV 06 5007278. The court interpreted the language of this count to sound only in negligent misrepresentation, not intentional misrepresentation. Id.
In Liberty Bank v. New London, Superior Court, judicial district of New London, Docket No. CV 06 4005236 (August 7, 2006, Devine, J.), allegations of "intentional and wanton" violation of rights through improper default and acceleration of a note done with "reckless indifference" to the plaintiff's rights were found by the court as a failure "to allege any facts that demonstrate that the plaintiff's actions offend public policy, are unfair, immoral, unethical, oppressive or unscrupulous, to constitute a violation of CUTPA . . ." (Internal quotation marks omitted.)
In the present case, Coldwell Banker has moved to strike counts sixteen through eighteen of the amended complaint on the grounds that the plaintiff has failed to allege any aggravating factors that would elevate the negligent misrepresentation claim into a CUTPA cause of action. As in Wuchek v. Estate of Colatosti, supra, Superior Court, Docket No. CV 06 5007278, the plaintiff here has only alleged facts in his complaint that could satisfy the first prong of the cigarette rule, that being a violation of public policy. "In order to withstand a motion to strike for legal insufficiency, the plaintiff must allege practices or methods of trade by the defendant that can be described as immoral, unethical, oppressive, unscrupulous or offensive to public policy." Michaud v. St. Paul's Housing Corp., Superior Court, judicial district of New Britain, Docket No. CV 02 0516320 (March 12, 2003, Bryant, J.). Allegations of failure to exercise diligence in presenting accurate information, innocent misrepresentation of a material fact and negligent misrepresentation of a material fact do not rise to the level of immoral and unscrupulous behavior that CUTPA was enacted to combat. Accordingly, where as here, the plaintiff has failed to allege sufficient facts to support a CUTPA claim, Coldwell Banker's motion to strike must be granted.
Although counts sixteen through eighteen allege that Coldwell Banker's "actions of concealing and/or misrepresenting the legal status of the Property . . . was in conscious disregard of the Plaintiff's rights and best interests," the plaintiff alleges no further facts to support these CUTPA counts other than those incorporated from previous counts in his amended complaint, which included failure to exercise diligence in presenting accurate information, innocent misrepresentation of a material fact and negligent misrepresentation of a material fact.
For the above stated reasons, the court must grant the defendant Coldwell Banker's motion to strike the sixteenth, seventeenth and eighteenth counts of the plaintiff's amended complaint dated March 10, 2009.