Opinion
No. FST CV 08-5007925 S
November 19, 2010
Memorandum of Decision
In this case, the plaintiff's action is based on damages she claimed to have suffered as the owner and occupant of a second-floor condominium unit (Unit #41) after her upstairs neighbors removed carpeting and installed wood flooring in Unit #43. The defendants are Jane Powell ("Powell"), the current owner of Unit #43; Carole Mills ("Mills") and James Scott ("Scott") the former owners of Unit #43 who installed the wood flooring; Village Walk Condominium, Inc., the unit owners' association ("Village Walk"); and Imagineers, LLC ("Imagineers"), the managing agent for Village Walk. The plaintiff, who prosecutes this action as a self-represented party, has filed her third amended complaint 105 pages in length setting forth forty-two counts against the various defendants. On August 16, 2010, a default was entered against defendant Powell for failure to plead. The remaining defendants have filed a joint motion to strike counts 1, 4, 8 through 16, 18, 21, 22 and counts 25 through 42 of the plaintiff's third amended complaint as well as the prayer for relief seeking punitive damages on the ground of legal insufficiency. On September 27 and 28, 2010, the court heard extensive arguments from the plaintiff and defense counsel with respect to the joint motion to strike and the two briefs filed by the plaintiff in opposition thereto.
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 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . 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 facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006).
PRIVATE NUISANCE
In her first count the plaintiff alleges that defendants Village Walk, Imagineers and Powell created a private nuisance by permitting wood flooring in Unit #43 which resulted in intolerable noise levels in the plaintiff's unit.
Defendants Village Walk and Imagineers move to strike this count claiming that the plaintiff has failed to allege the essential elements of a private nuisance claim.
The defendants have not moved to strike counts nineteen and twenty which assert private nuisance claims against Mills and Scott, respectively.
In order to establish a private nuisance claim, a plaintiff must allege that the defendant exercised control over the property from which the alleged nuisance originates. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184 (1987); see also Palmieri v. Beacon Falls, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 07 4018840 (June 23, 2009, Eveleigh, J.) ("[t]he plaintiff in a private nuisance case must allege that the defendant had use and/or control of the property from which the condition which constitutes the nuisance originates, either through ownership or otherwise, or else a motion to strike should be granted"). In this case the plaintiff has adequately alleged that Powell had ownership and control of Unit #43 and that unwarranted noise resulted from her installation of wood flooring. However, the plaintiff has failed to allege that defendant Village Walk, or defendant Imagineers, exercised ownership or control over Unit #43. In her rambling and unfocused brief the plaintiff cites statutes, regulations, codes and cases. None of these stands for the proposition that a condominium owner's association or a managing agent providing services to the association (but not directly to the offending unit owner) can be held responsible under the law of private nuisance for a nuisance which originates within a condominium unit owned and controlled by another. The motion to strike the plaintiff's first count is granted.
NEGLIGENCE PER SE
In her third count the plaintiff states claims of negligence against defendants Village Walk and Imagineers. The defendants have not moved to strike that count. In her fourth count the plaintiff asserts claims of negligence per se against defendants Village Walk and Imagineers. In her twenty-fifth and twenty-sixth counts she states claims of negligence per se against defendants Mills and Scott respectively. These defendants have moved to strike those counts claiming that the statutes upon which the plaintiff relies are not ones which proscribe or require a course of conduct designed to protect persons or property from injury.
"[U]nder general principles of tort law . . . a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 566 (2004). "Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery . . . That principle of the law sets forth two conditions which must coexist before statutory negligence can be actionable. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Wright v. Brown, 167 Conn. 464, 468-69 (1975). "Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct." (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn.App. 555, 580 (2010).
In opposition to the motion to strike the plaintiff relies on Gore v. People's Savings Bank, 235 Conn. 360 (1995), in which the court found that violations by a landlord of statutory duties under the lead paint law (General Statutes (Rev. to 1985) § 47a-8) constituted negligence per se but did not give rise to strict liability. Gore v. People's Savings Bank, supra, 235 Conn. 372. However, in that case the court noted that the concept of negligence per se was rarely applied outside the context of motor vehicle cases; id., 378; and that legislative intent to impose the burdens of such liability had to be found in the provisions of the statutory enactment. Id., 380-81. In this case the court finds that the statutes referred to in the plaintiff's complaint do not impose negligence per se burdens on any of the defendants. The motion to strike the fourth, twenty-fifth and twenty-sixth counts is granted.
RECKLESS MISCONDUCT
In her eighth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell were guilty of reckless misconduct. In her twenty-seventh and twenty-eighth counts she states similar claims against defendants Mills and Scott respectively. The defendants claim that the plaintiff has insufficiently alleged facts to support a claim for reckless misconduct in those counts. The plaintiff claims that a recklessness claim which "mirrors" a negligence claim is not deficient if the defendants are informed that both claims are raised.
"There is a wide difference between negligence and reckless or wanton misconduct." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 45 (1985). "Reckless misconduct refers to highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . . Recklessness, therefore, is more than negligence and also is more than gross negligence." (Citations omitted; internal quotation marks omitted.) Rubel v. Wainwright, 86 Conn.App. 728, 740-41, cert. denied, 273 Conn. 919 (2005).
The factual allegations of the complaint are that defendants Mills and Scott installed wood flooring in Unit #43, and that defendants Village Walk and Imagineers permitted, tolerated or condoned the installation. Such conduct, in and of itself, does not involve an extreme departure from the ordinary care required of reasonable persons under such circumstances. No facts are alleged in the complaint to show that under the circumstances the installation of a wood floor created a high degree of risk or danger. In order to support a claim for recklessness a complaint must allege facts demonstrating "conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342 (2003).
The motion to strike the plaintiff's eighth, twenty-seventh and twenty-eighth counts is granted.
INVASION OF PRIVACY
In her ninth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell invaded her right to privacy. The defendants claim that the plaintiff has insufficiently alleged any of the four categories of invasion of privacy recognized in Connecticut. The categories are: "(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 128 (1982). There is nothing in the plaintiff's complaint that suggests that she is attempting to assert a cause of action with respect to any of the final three categories of invasion of privacy.
"The Connecticut Appellate Courts have yet to interpret what constitutes . . . an unreasonable intrusion upon the seclusion of another . . . The Supreme Court, however, has often adopted the Restatement [(Second) of Torts] when adjudicating an invasion of privacy claim . . . and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another." (Internal quotation marks omitted.) Madera v. Hartford Housing Authority, Superior Court, judicial district of Hartford, Docket No. CV 09 5034046 (September 8, 2010, Peck, J.) [ 50 Conn. L. Rptr. 550]. "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second), Torts § 652B, p. 378 (1977).
In her complaint the plaintiff claims that the defendants have committed acts of intrusion upon her seclusion by installing or condoning the wood flooring in Unit #43. She further claims that she was repeatedly directed to call the police to deal with noise emanating from Unit #43 and that as a consequence she was subjected to "ridiculous comments by the police recommending ridiculous ways to try to deal with the situation . . ." Such acts do not constitute invasion of privacy. Furthermore, the court finds that the plaintiff cannot assert a claim for invasion of privacy against the defendants for acts allegedly committed by the police. See, e.g., Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 09 5009384 (August 2, 2010, Bellis, J.) (facts showing that a plaintiff caused the police to apply for, obtain and execute a search warrant of the defendant's home "cannot support a [counterclaim] against the plaintiff for invasion of privacy premised upon an unreasonable intrusion upon the defendant's seclusion because the defendant has not alleged that the plaintiff personally so intruded"). Accordingly, the defendants' motion to strike the ninth count is granted.
TRESPASS AND ENCROACHMENT BY STRUCTURE
In her tenth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell were guilty of trespass and encroachment by structure. In her twenty-ninth count and thirtieth count she states similar claims against defendants Mills and Scott respectively. Defendants Village Walk and Imagineers move to strike these counts claiming that the plaintiff has failed to allege an essential element of a trespass claim — a physical invasion, intrusion or entry into the plaintiff's premises. Moreover, the moving defendants argue that the plaintiff has failed to allege that they acted intentionally.
The plaintiff claims that she has adequately alleged a trespass claim. In her complaint the plaintiff claims that the wood floors "created substantial, unreasonable `flanking' and excess vibration of the drywall and wood in the building." She also claims that the defendants caused encroachment by structure because they acted with knowledge to a substantial certainty that the wood floors would result in the plaintiff installing sound insulation materials in her own unit (and in the "common area real property in the floor/ceiling assembly") and thus causing her own ceiling to be lowered.
Flanking can be explained as follows: "The movement of noise from one completely enclosed room to an adjoining room separated by a continuous partition wall may be either by direct transmission through that wall, or by indirect transmission through adjoining walls, ceilings and floors common to both rooms or through corridors adjacent to the room. Noise transmission by indirect paths is known as flanking transmission." R. Berendt, E. Corliss M. Ojalvo, Quieting: A Practical Guide to Noise Control (University Press of the Pacific 2000 Ed.) p . 47.
In her brief the plaintiff correctly notes the legal requirements for a physical invasion, intrusion or entry. She claims they are satisfied by either an intrusion by vibration or trespass by the defendant upon common elements of the condominium. The court finds no support in the law for a claim of trespass founded solely upon the transmission of noise or vibrations. The addition of sound insulation was the plaintiff's decision. The plaintiff has not alleged that her soundproofing was in any way a result of the defendants' actions or that the defendants acted intentionally. "[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Emphasis added; internal quotation marks omitted.) CT Page 22571 Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 88 (2007). Further, the court finds that the plaintiff has no standing to assert a claim for trespass if that claim is relating solely to a purported entry onto common elements by the defendant. See Boyne v. Glastonbury, 110 Conn.App. 591, 599-600, cert. denied, 289 Conn. 947 (2008) ("recent case law treats trespass cases as involving acts that interfere with a plaintiff's exclusive possession of real property"). Accordingly, the court grants the motion to strike the tenth, twenty-ninth and thirtieth counts.
The only Connecticut case that discusses the possibility of claims of trespass founded on vibration is Whitman Hotel Corp. v. Elliott Watrous Engineering Co., 137 Conn. 562 (1951). Whitman involved a defendant engineering company that used dynamite in order to widen and deepen a river. Id., 563-64. The blasting caused various damages to the plaintiff hotel lessee, including broken pipes, cracked plaster and a split floor. Id., 564. In disagreeing with the reasoning of a New York case on blasting and vibration, the Connecticut Supreme Court stated: "If it is necessary to talk about trespass as distinguished from trespass on the case, it would seem that the jarring of a man's real property by vibration or the concussion in the atmosphere above it is, in actuality, a physical invasion of that property. Trespass to real property is the doing of direct injury to that property with force . . . When one's building is damaged by vibration or concussion from a blast, the injury is done directly by the physical movement of the earth or the air which has been started by the blast. For any practical purpose such movement is just as much a physical invasion as the throwing of debris through the atmosphere and the injury done by it is just as direct." Id., 570. However, it should be noted that Whitman involved strict liability for blasting operations and a plaintiff whose property sustained actual physical damage. The defendants are not alleged to have been involved in a hazardous activity subjecting them to strict liability and they are not alleged to have caused physical damage to the plaintiff's unit.
TORTIOUS INTERFERENCE WITH CONTRACT
In her eleventh count the plaintiff alleges that defendants Village Walk, Imagineers and Powell tortiously interfered with a listing agreement to sell her unit. In her thirty-first count she states similar claims against defendant Mills. These claims are based on allegations that the defendants interfered with a contract between the plaintiff and Hastings Real Estate dated November 10, 2007 to market and sell Unit #41 and interfered with a contract signed on April 3, 2008 to sell Unit #41 with a closing date of April 25, 2008. The interference consisted of failing to resolve the plaintiff's nuisance complaints to her satisfaction, resulting in "the presence of unreasonable impact noise and/or unusual construction materials" in her unit. The plaintiff claims she told her broker Joanne Williams in January 2008 that she "would refuse to sign any real estate contract unless the nuisance situation had a resolution." The plaintiff and Williams then agreed not to hold any open house showings "until the nuisance was resolved . . ." The plaintiff alleges that the defendants knew about the listing agreement and about the April 2008 sales contract and "intentionally interfered with the contractual relationships of the [plaintiff in] order to benefit and profit" at her expense. The defendants move to strike these counts claiming that the plaintiff has failed to adequately allege causes of action of tortious interference with contract.
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13 (2000).
"[N]ot every act that disturbs a contract or business expectancy is actionable." (Internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805 (1999). "[F]or a plaintiff successfully to prosecute such an action [for tortious interference with a business contract] 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 . . . The burden is on the plaintiff to plead and prove at least some improper motive or improper means . . . on the part of the defendants." (Citations omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 365 (1985). "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.) Daley v. Aetna Life Casualty Co., supra, 249 Conn. 806.
In Locascio v. Mueller, Superior Court, judicial district of Litchfield, Docket No. CV 03 0089395 (June 5, 2003, Pickard, J.), which is relied upon by the plaintiff, the court denied to strike a counterclaim count for tortious interference. The Locascio "plaintiffs argue[d] . . . that the defendants' claim must contain allegations of malice and intentional interference without justification and that the . . . count fails to state these necessary factual allegations." Id. Reading the pleadings, the court determined as follows: "[T]he defendants allege that the plaintiff . . . refused to do the necessary repairs because the defendants complained to the plaintiff and to local building officials about the condition of the premises. In construing the facts alleged in a light most favorable to the defendants, this allegation may be interpreted as one of improper conduct or improper motive on behalf of the plaintiff. The plaintiff['s] . . . act of revenge in refusing to repair the defendant's business premises, as such allegation may be construed, is sufficiently malicious such that the plaintiffs' motion to strike count two of the defendants' counterclaim must be denied. Although the defendants do not specifically allege that the plaintiffs engaged in the commission of a tort, the allegations made are sufficient to withstand this motion to strike." Id.
The plaintiff also cites Vivirito v. Terra Firma, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 4102776 (August 29, 2006, Hurley, J.T.R.). In declining to strike the tortious interference claim, the court wrote that "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." Id.
In Eastlander Group, LLC v. Severin Hills, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 04 4003573 (November 8, 2005, Alander, J.), "the plaintiff describe[d] the actions of the defendants as constituting a `payoff' and being `illicit'" as part of its claim for tortious interference. The court ruled that "the characterization of the defendants' conduct as improper does not make it so" and that "[s]tripped of its conclusory labels, the defendants' conduct is far from sinister." Id. See also Kronholm Keeler v. Arthur A. Watson Co., judicial district of Hartford-New Britain at Hartford, Docket No. CV9 559227 (November 27, 1996, Hennessey, J.) (motion to strike a claim for tortious interference with a contractual relationship granted; "[a]lthough the plaintiff does allege that the defendant `maliciously sought to appropriate' a portion of the plaintiff's book of business, the plaintiff has failed to allege facts demonstrating that the defendant's conduct was improper or tortious").
In the present case, the plaintiff alleges that the defendants sought to "benefit and profit" at her expense. She does not plead any facts to show that the conduct was tortious. The court, having examined the allegations of the plaintiff's complaint, cannot find sufficient allegations to support a claim that the defendant tortiously interfered with either the listing contract or any contract to sell her unit. Accordingly, the motion to strike the eleventh and thirty-first counts is granted.
TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
In her twelfth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell tortiously interfered with a financial expectancy in connection with the sale of her condominium unit. In her thirty-second count she states a similar claim against defendant Mills. These claims are based on essentially the same allegations made in connection with the plaintiff's claims of tortious interference with contract, the alleged economic advantages being those which the plaintiff sought to derive from the sale of her unit.
"[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32-33 (2000).
The plaintiff directs the court's attention to Bernardini v. Lombard, Superior Court, judicial district of Litchfield, Docket No. CV 01 0086276 (March 14, 2003, Frazzini, J.) ( 34 Conn. L. Rptr. 305). In Bernardini, the plaintiff sued his neighbor for placing tall trees and fencing covered by black plastic cloth between their properties. Id., 306. The defendant moved to strike the plaintiff's claim for tortious interference of a contractual expectancy. Id. The court noted that "a binding contractual relationship is not necessary to satisfy the first . . . element [of the cause of action]. Instead, our law requires merely that plaintiff plead that a defendant has tortiously interfered with an existing or prospective business relationship." (Internal quotation marks omitted.) Id. The court later noted that "[t]he facts here certainly plead a prospective contractual relationship between [the plaintiff], who hoped to sell his land, and a prospective purchaser who had agreed to purchase the land" and that the plaintiff pleaded "that defendant knew [the plaintiff] was trying to sell his property and that a specific, named individual was interested in purchasing his property." Id. Though the Bernardini court denied the motion to strike the claim for tortious interference of a contractual expectancy; id., 306; it did so on a complaint that is very different from the one in the present case. The plaintiff does not plead the existence of a prospective purchaser and does not allege that the defendants knew about any such person. In paragraph sixty-eight of counts twelve and thirty-two, the plaintiff alleges only that "she had a valid business expectancy of financially benefiting from the sale of Unit 41, including performing various upgrades to said unit to prepare it for a more economically advantageous sale, or alternatively to benefit by renting it."
The court finds that these allegations are insufficient to support causes of action for tortious interference with business expectancies. The plaintiff does not plead the existence of a business relationship with another party. Accordingly, the motion to strike the twelfth and thirty-second counts is granted.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
In her thirteenth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell negligently inflicted her with emotional distress. In her thirty-third and thirty-fourth counts she states similar claims against defendants Mills and Scott respectively. In their motion to strike the defendants claim that the plaintiff's complaint does not adequately allege negligent infliction of emotional distress. They claim that the plaintiff did not allege that it was reasonably foreseeable that the installation of a wood floor in Unit #43 would result in intolerable noise in Unit #41 and cause the plaintiff great emotional distress. The plaintiff claims that she adequately alleged all elements of such a claim, including foreseeability.
To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003). "(A] successful claim of negligent infliction of emotional distress essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 553, cert. denied, 286 Conn. 914 (2008).
"Unreasonable conduct [for the purposes of pleading negligent infliction of emotional distress] has been interpreted by the [S]uperior [C]ourts as conduct performed in an inconsiderate, humiliating or embarrassing manner . . ." (Internal quotation marks omitted.) Caton v. Easter Seals Goodwill Industries Rehabilitation Center, Inc., Superior Court, judicial district of New London, Docket No. CV 08 5007348 (April 17, 2009, Martin, J.). "[R]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. Nevertheless, [the Supreme Court has] recognize[d] that the protection the law accords to the interest in one's peace of mind . . . must be limited so as not to open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law." (Citation omitted; internal quotation marks omitted.) Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978).
The plaintiff has pleaded that defendants Village Walk, Imagineers and Powell "should have realized that their conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily injury" and "knew or should have known that emotional distress was the likely result of their acts . . ." These are conclusions of law unsupported by facts. "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, supra, 262 Conn. 498. In this case the plaintiff has failed to allege facts regarding any conduct of defendants Village Walk and Imagineers that could have been foreseen to have caused the plaintiff emotional distress. In the absence of such allegations the plaintiff's thirteenth count must be stricken as to defendants Village Walk and Imagineers.
In her thirty-third and thirty-fourth counts the plaintiff alleges that defendants Mills and Scott removed the carpeting from the floor of Unit #43 and installed wood flooring. The allegations of the complaint include the fact that the plaintiff lived in Unit #41 directly beneath Unit #43 and that defendants Mills and Scott installed the wood flooring in Unit #43.
In Tebbets v. Oliver Group, Superior Court, judicial district of New London, Docket No. CV 09 5013052 (January 28, 2010, Cosgrove, J.), the plaintiffs, owners of residential property, commenced an action in negligent infliction of emotional distress against the defendant, a development company that owned an adjoining parcel of land. In denying the defendant's motion to strike, the court noted the following: "In addition to harming the plaintiffs' property interests, the distress of loud truck noises and the constant coming and going of vehicles at the [defendant's] facility could cause the plaintiffs additional frustrations and emotional distress independent from their concern over their property rights and interests. Taken as true, and viewed in a light most favorable to the plaintiffs, the allegations set forth in the plaintiffs' complaint could support a claim for negligent infliction of emotional distress in that they have alleged that the [defendant] should have realized that by operating a parking lot in a residential area without a proper buffer would generate excess noise and light that would cause emotional distress to those living in the surrounding area and that those activities have caused the plaintiffs emotional distress, illness and bodily harm." Id.
Under these circumstances the court finds that the allegations of the thirty-third and thirty-fourth counts adequately allege facts to support each of the elements of a claim for negligent infliction of emotional distress. As the plaintiff's upstairs neighbors, defendants Mills and Scott could have foreseen that installing wood floors could cause undue burdensome noise for the plaintiff. The defendants' motion to strike those counts is denied.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In her fourteenth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell intentionally inflicted her with emotional distress. In her thirty-fifth and thirty-sixth counts she states similar claims against defendants Mills and Scott respectively. The defendants claim that the plaintiff has failed to allege facts sufficient to constitute the extreme and outrageous conduct required to support a claim for intentional infliction of emotional distress. The plaintiff responds that the defendants intentionally abused a "position of power" and that as a consequence she was subjected to noise to such an extent as to render her condominium unit uninhabitable.
"To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements: (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Davis v. Davis, 112 Conn.App. 56, 65 (2009).
"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . Thus, [i]t is the intent to cause injury that is the gravamen of the tort." (Citations omitted; internal quotation marks omitted.) Bell v. Board of Education, 55 Conn.App. 400, 409 (1999).
The Restatement (Second) of Torts further describes conduct required to support a claim of intentional infliction of emotional distress as follows: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Restatement (Second), Torts § 46, comment (d), p. 73 (1965).
The plaintiff cites several cases in support of her argument. This court finds that those cases are not on point. In Sterry v. Cannata, Superior Court, judicial district of Middlesex, Docket No. CV08 5005092 (March 17, 2010, Bear, J.), the court, following a trial, ruled for the plaintiffs in an action against their neighbor for intentional infliction of emotional distress where the defendant neighbor was accused of encroaching onto the plaintiffs' property. This decision sheds no light on the present case, which concerns the sufficiency of the pleadings and not evidence presented at trial. Furthermore, the evidence in Sterry implicates degrees of outrageousness that have not been alleged in this case. Id. Another case cited by the plaintiff, Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 09 5028391 (October 19, 2009, Domnarski, J.), involved a plaintiff who accused her landlord of "entering the property, without invitation or permission, approximately two to three times per week, for the purposes of making unwelcome, explicit, and harassing comments of a sexual nature to the plaintiff." In denying the defendant's motion to strike the claim of intentional infliction of emotional distress, the court cited to 1 Restatement (Second), supra, § 46, comment (e), p. 74, which states in relevant part: "The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests . . . In particular police officers, school authorities, landlords, and collecting creditors have been held liable for extreme abuse of their position." The court then noted that "even less offensive behavior, when perpetrated by a person in a position of power, like a landlord, may rise to the level of outrageous conduct." Le v. Saporoso, supra, Superior Court, Docket No. CV 09 5028391. In her brief, the plaintiff claims that the defendants "intentionally abused their `position of power'" over her by allowing the wood floors to be installed and refusing to remove the wood floors.
As an example, testimony in the Sterry case revealed that the defendant "regularly banged on the plaintiffs' building," "regularly shouted and cursed at the plaintiffs and others" and "used Round Up to kill [the plaintiff's] flowers from her grandparent's grave and other flowers and plants on the plaintiffs' property." Sterry v. Canneta, supra, Superior Court, Docket No. CV 08 5005092.
The plaintiff has not alleged facts showing that the conduct of any of the defendants was either extreme or outrageous. There are no allegations of conduct meeting the Restatement standards. The defendants' motion to strike the fourteenth, thirty-fifth and thirty-sixth counts is granted.
UNJUST ENRICHMENT
In her fifteenth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell were unjustly enriched. In her thirty-seventh and thirty-eighth counts she states similar claims against defendants Mills and Scott respectively. The plaintiff claims that Village Walk and Imagineers unjustly enriched themselves at her expense by "failing to perform their duty to inspect and abate the nuisance" and receiving the benefit of the work that the plaintiff did to soundproof her unit, including "the benefit of a permanent improvement to the floor/ceiling assembly, a common area property, in the building containing the Plaintiff's Unit 41." As to defendants Mills and Scott, the plaintiff claims that they "benefited from the work performed by the Plaintiff to the floor/ceiling assembly and engineering evaluation" and were able to "sell their Unit 43 with wood floors throughout Unit 43's first floor as a valuable improvement, whereas said wood floors were in fact a nuisance so egregious as to render the Unit 41 below uninhabitable and unmarketable; and [they were] able to sell said Unit 43 at a selling price significantly higher than the price at which it would have sold with the original construction design of carpet and pad flooring." The defendants claim that the plaintiff has failed to allege facts supporting an unjust enrichment claim against any of them.
"Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83 (1994).
"This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated . . . The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?" (Citations omitted.) Franks v. Lockwood, 146 Conn. 273, 278 (1959).
The court agrees with the plaintiff that she has adequately alleged unjust enrichment claims against defendants Mills and Scott in her thirty-seventh and thirty-eighth counts. Accordingly, the defendants' motion to strike those counts is denied.
In the memorandum filed in opposition to the defendants' motion to strike the plaintiff fails to explain how the allegations of her complaint support unjust enrichment claims against defendants Village Walk and Imagineers. The court cannot find any basis in the pleading to support such claims. Accordingly, the defendants' motion to strike the fifteenth count is granted.
CIVIL CONSPIRACY
In her sixteenth count the plaintiff alleges that defendants Village Walk, Imagineers and Powell engaged in a civil conspiracy. In her thirty-ninth and fortieth counts she states similar claims against defendants Mills and Scott respectively. The defendants claim that the plaintiff has failed to sufficiently allege the essential elements of a civil conspiracy claim.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779 (2003). There is, however, "no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 779 n. 37. "[T]he essence of a civil conspiracy . . . [is] two or more persons acting together to achieve a shared goal that results in injury to another." Id., 779.
The plaintiff claims that she has adequately alleged a civil conspiracy. However, in her memorandum filed in opposition to the motion to strike, she fails to articulate which unlawful or criminal acts or means she has alleged in her complaint. After examining the allegations of the complaint, the court agrees with the defendants and finds that the plaintiff has failed to allege the essential elements of a civil conspiracy claim. Accordingly, the defendants' motion to strike the sixteenth, thirty-ninth and fortieth counts is granted.
FRAUDULENT CONCEALMENT OF A CAUSE OF ACTION
In her eighteenth count the plaintiff alleges that defendant Village Walk fraudulently concealed a cause of action from the plaintiff in violation of General Statutes § 52-595. In her forty-first and forty-second counts she states similar claims against defendants Mills and Scott respectively.
The plaintiff alleges that Village Walk "intentionally and deliberately concealed from the Plaintiff and other unit owners the extent of requests for, and the extent of installation and use of, and the extent of complaints regarding, and the extent of harm from, hard flooring" and "intentionally and deliberately concealed known nuisances at Village Walk Condominium by intentionally and wrongfully putting aggrieved unit owners in a position of either quietly suffering, or attempting to resolve the matter in ways that violated their rights, thereby causing past nuisances to remain concealed." Furthermore, the complaint alleges that Village Walk "expended some time and funds to consider the issue, and rather than performing or requiring others to perform due diligence (including legal, architectural and engineering), . . . Village Walk . . . affirmatively approved, allowed and or permitted wood flooring, with knowledge that it would or probably would create a nuisance, thereby concealing potential evidence by professional evaluation that would document that wood flooring created a nuisance." As to defendants Mills and Scott, the plaintiff alleges that they "intentionally and deliberately concealed facts from the Plaintiff sufficient to determine that [their] extensive wood flooring would create a nuisance until after [they] had vacated . . . Unit 43 . . . which happened during 2007."
General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
In State ex rel. McClure v. Northrop, 93 Conn. 558, 564 (1919), the Supreme Court held that the effect of the statute is to suspend the running of statutes of limitations until the right of action is discovered by the injured party. Proving fraudulent concealment requires one to show that the defendant: "(1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff['s] cause of action; (2) intentionally concealed these facts from the [plaintiff]; and (3) concealed the facts for the purpose of obtaining delay on the plaintiff['s] part in filing a complaint on [her] cause of action." Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 105 (2007).
General Statutes § 52-595 does not create a cause of action. "The only remedy under General Statutes § 52-595 is a tolling of the relevant statute of limitations until the time when the person entitled to sue thereon first discovers its existence." (Internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 83-84 n. 9 (2002).
Since the statute does not authorize or create a cause of action, the plaintiff's eighteenth, forty-first and forty-second counts must be stricken.
BREACH OF CONTRACT
In her twenty-first and twenty-second counts the plaintiff alleges that defendants Mills and Scott respectively breached a contract with her by "breach[ing] material terms of the Declaration of Condominium, Bylaws and Rules and Regulations of Village Walk Condominium . . ." In paragraph 19(e), the amended complaint states that "pursuant to Article 15 of the Declaration of Condominium, . . . all provisions thereof `shall be deemed and taken to be covenants running with the land' and that the `acceptance of a deed or conveyance' or `the entering into occupancy of any unit' `shall constitute agreement with such provisions.'"
The defendants move to strike both counts by challenging the plaintiff's standing to bring an action for breach of contract. The defendants argue that the condominium declaration, bylaws and related governing instruments (the declaration) are not contracts between unit owners as a matter of law. Rather, the defendants claim that the declaration is merely a contract between a condominium association and a unit owner, and thus there is a lack of privity of contract between different unit owners. The plaintiff counters that provisions of the Unit Ownership Act, General Statutes (Rev. to 1975) § 47-67 et seq., pursuant to which the condominium was created, and the Common Interest Ownership Act, General Statutes § 47-200 et seq., allow for unit owners to sue each other for damages arising out of failure to comply with the declaration.
General Statutes (Rev. to 1975) § 47-75(a) provides: "Each unit owner shall comply strictly with the bylaws and with the administrative rules and regulations adopted pursuant thereto, and with the covenants, conditions and restrictions set forth in the declaration or in the deed to his unit. Failure to so comply shall be ground for an action to recover damages or for injunctive relief, or both, maintainable by the manager or board of directors on behalf of the association of unit owners or, in a proper case, by an aggrieved unit owner." General Statutes § 47-278(a) provides in relevant part: "A declarant, association, unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws." Section 47-278(a) applies to common interest communities created before 1984 so long as the "events and circumstances" giving rise to the action occur after January 1, 1984, subject to certain exceptions listed in General Statutes § 47-217. General Statutes § 47-216. The pleadings make no suggestion that any of the listed exceptions is relevant. Because the declaration is dated November 16, 1973 and the plaintiff purchased her unit on October 30, 1997, Section 47-278(a) applies to the present action.
In their moving papers, the defendants cite to only one authority in their claim that the declaration does not give the plaintiff standing to sue another unit owner. In Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734 (2005), the Connecticut Supreme Court noted that "the declaration operates in the nature of a contract, in that it establishes the parties' rights and obligations . . ." Based on this statement, the defendants argue that "the Second Count which sounds in breach of contract against Village Walk is legally sufficient" but "the same is not true as between unit owners." The court does not agree. Cantonbury Heights did not involve or address civil actions between unit owners, and the Supreme Court did not limit its observation on the legal nature of condominium declarations to the relationship between unit owners and condominium associations. Instead, the Cantonbury Heights decision supports the plaintiff's position insofar as it indicates that the declaration is a contract. Since the declaration is by law a contract and the statutes cited above grant a unit owner standing to pursue claims arising out of the declaration, it follows that a breach of contract action brought by a unit owner is a proper vehicle for enforcing those statutory rights.
In their moving papers, defendants conceded that a breach of contract action is the proper vehicle for enforcement of these statutory rights because of their admission that "the Second Count which sounds in breach of contract against Village Walk is legally sufficient." Even if one could argue that the plaintiff's statutory rights are best pursued through something other than a breach of contract action, counts twenty-one and twenty-two should still survive the motion to strike, pursuant to the guidance supplied by General Statutes § 47-212, which provides in relevant part: "The remedies provided by [the Common Interest Ownership Act] shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed . . . This concept has also been adopted by the Connecticut Supreme Court, which has determined that the Common Interest Ownership Act "is a remedial statute and therefore must be afforded a liberal construction in favor of those whom the legislature intended to benefit." (Internal quotation marks-omitted.) Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 133 (1996).
Moreover, the Appellate Court has implicitly approved actions between unit owners for violations of condominium declarations. Grey v. Coastal States Holding Co., 22 Conn.App. 497, 503, cert. denied 216 Conn. 817 (1990). In Grey, owners of two condominium units sued owners of three other units for, inter alia, violations of an article of their association's declaration. Id. at 498. The Appellate Court ruled that "[t]he trial court was correct in finding that the defendants had violated the condominium declaration by expanding their units." Id. at 503. The Grey decision "does not contain any analysis as to whether unit owners are persons subject to suit pursuant to § 47-278, and this issue may not have been specifically raised in that case; rather, § 47-278 was apparently deemed to authorize the claim." Lenhart v. Chamberlain Development Corp., Superior Court, judicial district of New Haven, Docket No. CV 91 0326065 (April 24, 1995, Hodgson, J.). "The state of the law appears to be that a unit owner has a cause of action against another unit owner for failure to comply with the provision of the condominium declaration or by-laws." Id.
Another court examining Grey has determined that "the Appellate Court implicitly recognized a claim of one unit owner against another in the same condominium association under the [Common Interest Ownership Act]." Rosa v. Walsh, Superior Court, judicial district of Waterbury, Docket No. CV 08 5010707 (February 20, 2009, Agati, J.).
Accordingly, the defendants' motion to strike the twenty-first and twenty-second counts is denied.
PUNITIVE DAMAGES
The defendants move to strike the plaintiff's prayer for relief seeking punitive damages. In their memorandum in support of the motion to strike, the defendants fail to provide any legal argument in support of this motion to strike and in fact do not discuss the prayer for relief at all. The plaintiff argues in her brief that "[m]ovants abandoned any claim regarding punitive damages by failing to brief it."
"Each motion to strike raising any of the claims of legal insufficiency. shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. Practice Book § 10-42(a) provides: "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Furthermore, Practice Book § 11-10 provides in relevant part: "A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: . . . (3) motions to strike . . ."
The Connecticut Supreme Court "ha[s] stated that [it is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Hogan v. Dept. of Children Families, 290 Conn. 545, 578 (2009). "Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 80 (2008). Courts have treated grounds for moving to strike as abandoned in cases where defendants failed to brief those grounds. See, e.g., Gorman v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV 08 5004455 S (March 17, 2010, Marano, J.); State v. Bashura, 37 Conn.Sup. 745, 748-49 (App.Sess. 1981).
Accordingly, the defendant's motion to strike the plaintiff's prayer for relief seeking punitive damages is denied.