June 23, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE
On June 13, 2002, the plaintiff Scott Raffone, filed a two-count complaint against the defendant, Home Depot U.S.A., Inc., seeking damages resulting from the defendant's alleged failure to deliver a specially ordered window unit to the plaintiff. Count one alleges breach of contract and count two alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
On August 9, 2002, the defendant filed a motion to strike count two and the corresponding prayer for relief accompanied by a memorandum of law in support. On February 14, 2003, the plaintiff filed a memorandum in opposition.
In count two, the plaintiff incorporates count one, the breach of contract claim, and alleges the following facts. The plaintiff entered into an agreement with the defendant for the purchase of a specially ordered window unit, which he paid for when he placed the order with the defendant. The defendant estimated that the window unit would be delivered to the plaintiff on September 3, 2001. A window unit was delivered to the plaintiff on October 5, 2001, however, it did not conform to the plaintiff's specifications. The plaintiff notified the defendant's manager and the corporate office of the problem with the order but the defendant did not take any remedial action. Additionally, the defendant's manager informed the plaintiff that it was not possible to order a window unit to meet the plaintiff's specifications. A representative from the window company, however, contradicted the manager's statement. The plaintiff alleges that these acts were unfair and deceptive, and, thus, violative of CUTPA. The plaintiff also alleges that "[these] acts and/or omissions of the defendant . . . were immoral, unethical, oppressive and unscrupulous." (Complaint, ¶ 13.)
The plaintiff has attached a copy of a "Special Services Customer Agreement" to the complaint.
The plaintiff has attached a copy of a certified letter, sent by his attorney to the defendant's corporate office, to the complaint.
DISCUSSION CT Page 7389-dj
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the [plaintiff], to determine whether the [pleading party 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). When deciding the motion, "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). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 271, 709 A.2d 558 (1998).
The defendant moves to strike count two of the complaint on the ground that the plaintiff insufficiently alleges aggravating circumstances to transform the breach of contract claim into a CUTPA claim. In its memorandum of law, the defendant acknowledges that a breach of contract claim may be sufficient to establish a CUTPA violation if the plaintiff alleges substantial aggravating circumstances. The defendant argues, however, that the allegations that it was unresponsive to the plaintiff's concerns regarding the window unit and that an erroneous representation was made about the window unit by its manager do not rise to the level of substantial aggravating factors, and, thus, fail to establish a CUTPA violation.
In opposition, the plaintiff argues that the defendant's motion to strike count two should be denied because he has sufficiently alleged a CUTPA violation. The plaintiff contends that the defendant's breach of contract, coupled with its refusal to remedy the breach and the incorrect representation made by the defendant's manager, sufficiently form the basis for a CUTPA claim. General Statutes § 42-110b (a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The Appellate Court has held that "the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation . . ." (Citation omitted; emphasis added.) Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 71, 605 A.2d 550 (1992). "Although there is a split of authority in the Superior Courts regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of Superior Court decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA]." CT Page 7389-dk (Internal quotation marks omitted.) Lunn v. Hussey, Superior Court, judicial district of Litchfield, Docket No. CV 01 0085525 (February 11, 2003, Pickard, J.).
In Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 41 Conn. Sup. 575, 595 A.2d 951, 3 Conn. L. Rptr. 711 (1991), the plaintiff, who had leased a pipe bender to the defendant, brought suit claiming that the defendant had defaulted on the lease. The defendant filed a counterclaim, asserting a violation of CUTPA. Id., 576. In his counterclaim, the defendant alleged that the plaintiff engaged in an unfair trade practice by supplying the defendant with a defective pipe bender and then failing to remedy the defect. Id. The defendant also alleged that the lease payments were in excess of the fair market value of the pipe bender. Id. The court, in granting the plaintiff's motion to strike the CUTPA claim, held: "There is no allegation of any fraudulent or deceptive practice or bad faith in procuring the original leasing agreement . . . A simple breach of contract, even if intentional, does not amount to a violation of [CUTPA]; a [claimant] must show substantial aggravating circumstances attending the breach to recover under [CUTPA] . . ." (Internal quotation marks omitted.) Id., 580.
In the present case, the plaintiff's CUTPA claim is based, in part, on the defendant's alleged breach of an agreement and its failure to remedy the breach. In viewing these allegations in the light most favorable to the plaintiff, the court finds, as did the court in Emlee, that the plaintiff has failed to sufficiently allege substantial aggravating circumstances to transform his breach of contract claim into a CUTPA claim. Absent an "allegation of any fraudulent or deceptive practice or bad faith in procuring the original . . . agreement"; Emlee Equipment Leasing Corp., supra, 41 Conn. Sup. 580, 3 Conn. L. Rptr. 711; the plaintiff has failed to allege a CUTPA violation.
In support of his CUTPA claim, the plaintiff also alleges that the statement made by the defendant's manager regarding the defendant's inability to acquire a window unit to meet the plaintiff's specifications was "false, misleading and/or deceptive . . ." (Complaint, ¶ 13(a).) "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 CT Page 7389-dl representation cannot deliver on the promise." (Citations omitted; internal quotation marks omitted.) Ruby v. Chase Manhattan Bank, Superior Court, judicial district of New Britain, Docket No. CV 00 0505309 (March 25, 2002, Quinn, J.).
In regard to the statement made by the defendant's manager, the plaintiff alleges that the manager "advised the plaintiff that it was impossible for the grilles to be installed within the windows as specified in the order." (Complaint, ¶ 8.) The plaintiff further alleges that the manager's representation was incorrect because, according to the window company, "the window grilles in question are not installed in the . . . window pro line, but they are installed in what [the company] calls the architectural line." (Complaint, ¶ 9.) The plaintiff also alleges that "[e]ven if it were true that [the defendant] could not obtain the window unit . . . as specified" the defendant's failure to notify the plaintiff about the order compounded the ordering mistake. (Complaint, ¶ 10.) The plaintiff does not allege, however, that the defendant entered into the agreement "with a present intent not to fulfill the promise." Ruby v. Chase Manhattan Bank, supra, Superior Court, Docket No. CV 00 0505309. Rather, the plaintiff merely alleges that the defendant's manager erroneously stated that it could not procure a window unit that would meet the plaintiff's specifications. Construed in favor of the plaintiff, the court finds that the manager's statement is not a "deceptive act," thus, it fails to give rise to a substantial aggravating circumstance to transform the breach of contract into a CUTPA violation.
Based on the foregoing, the defendant's motion to strike count two and the corresponding prayer for relief is granted.