Opinion
No. CV05 40102111S
April 15, 2009
MEMORANDUM OF DECISION
MOTION TO STRIKE
The defendants, Thomas J. Capozziello, individual and Thomas J. Capozziello, as Trustee, Joyce Capozziello, Jennifer Capozziello, Jessica Capozziello and Thomas Capozziello have filed a motion to strike all eleven counts of the plaintiff's Fourth Revised Complaint dated October 23, 2008, and each claim for relief on the basis that these counts fail to state legally sufficient claims on which the requested relief can be based. Additionally the defendants argue that the motion should be granted for the plaintiff's failure to include all necessary, indispensable or interested parties, more specifically, the 373 Noble Avenue Trust, whose address is 373 Noble Avenue, Bridgeport, Connecticut.
The defendants have stated additional grounds, which will be addressed within this decision. The defendants have not filed any memorandum of law regarding any of their claims.
The present case was commenced by way of a writ, summons and original complaint, dated May 19, 2005, bearing a return date of June 14, 2005. It is a dispute between the plaintiff Booker and the defendants surrounding the plaintiff's tenancy at a boarding house located at 500 Clinton Street, Bridgeport, Connecticut. The plaintiff claims that while he was a tenant, the door to his room was removed and his possessions were taken and disposed of. This wrongful entry and detainer according to the plaintiff was performed by and at the direction of the defendant Thomas J. Capozziello, Sr., as landlord or acting as an agent of the landlord and occurred on December 16, 2004 and December 17, 2004. The boarding house at the subject location is held in the name of the 373 Noble Avenue Trust ("Trust") and Capozziello, Sr. was allegedly the Trustee of said Trust. The plaintiff claims that there are, in fact, other boarding houses held by this Trust where similar acts of illegal lockout and wrongful entry and detainer are a regular occurrence.
The plaintiff additionally alleges that while certain properties are held by the Trust, the Trust failed to follow any trust formalities and is, despite the language of the Trust Indenture, controlled and used for the benefit of Capozziello, Sr., individually. The plaintiff seeks to void the Trust, alleging that the Trust is a fraudulent self-settled trust.
The First Count alleges entry and detainer. The Second Count addresses entry and detainer damages. The Third Count alleges unlawful entry. The Fourth Count alleges larceny and conversion. The Fifth Count alleges a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). The Sixth Count alleges intentional infliction of emotional distress. The Seventh Count alleges negligent infliction of emotional distress. The Eighth Count alleges breach of contract. The Ninth Count alleges negligence. The Tenth Count alleges a fraudulent conveyance. The Eleventh Count alleges a cause of action based on an "alter ego theory." The corresponding claims for relief include remedies, damages, costs and attorneys fees pursuant to General Statutes § 47a-45a, § 47a-18a, § 47a-46, § 42-100g(d) and statutory interest pursuant to § 37-3a.
The plaintiff argues "piercing the corporate veil" and "reverse piercing of the corporate veil."
A. Standard of Review
The law governing the review of a motion to strike is well-settled. A motion to strike tests the legal sufficiency of the allegations contained in the pleadings. Faulkner v. United Techs Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "In determining whether a motion to strike should be granted, the sole question is whether, if the facts alleged are taken to be true, the allegations provide a cause of action or defense." County Fed. Sav. Loan Ass'n v. Eastern, 3 Conn.App. 582, 585, 491 A.2d 402 (1985). "This includes the facts necessarily implied and fairly provable under the allegations." Westport Bank and Trust Co. v. Corcoran, Mallin Aresco, 221 Conn. 490, 495, 605 A.2d 862 (1992). Additionally, the court must interpret the facts alleged in the light most advantageous to the nonmoving party and "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Warner v. Konover, 210 Conn. 150, 152, 553 A.2d 1138 (1989). In doing so, the court must "read the allegations broadly, rather than narrowly." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
First Count: Entry and Detainer
The First Count alleges an illegal entry and detainer as to the defendants Thomas J. Capozziello, Sr., Trustee of the 373 Noble Avenue Trust ("Trust"), Thomas J. Capozziello, Sr., as the landlord of 500 Clinton Ave., Bridgeport, Connecticut ("Trust property") and Jennifer L. Capozziello, agent of the landlord, as well as, one of three beneficiaries of the trust. Thomas J. Capozziello, Sr. and Thomas J. Capozziello, Sr., Trustee, are listed as the owners of the trust property on tax records maintained by the City of Bridgeport. The complaint alleges that both Thomas Capozziello, Sr. and Jennifer Capozziello have personally held themselves out as agents of the landlord and have duties which include the collection of rents and security deposits. The complaint further alleges that one or both are responsible for noticing tenants of policies and procedures regarding maintenance and evictions at the subject trust property. It is also alleged these defendants are in the business of leasing the property as a dwelling unit.
The complaint further alleges that the plaintiff began his tenancy at the trust property on June 25, 2004 and was in actual possession of his rental unit until the defendant Thomas J. Capozziello, Sr. in his dual capacity, and/or his duly authorized agents carried out a "self-help" eviction on December 16, 2004 and December 17, 2004, and locked the plaintiff out of the property. The defendants are alleged to also have removed the plaintiff's personal property. The plaintiff alleges that Thomas J. Capozziello, Sr. took his personal property from the dwelling unit without his permission and has detained or disposed of his property, despite the fact the plaintiff was current in his rental payments. This alleged action by Capozziello, Sr. taken with the authority and knowledge of the defendant Jennifer Capozziello, and was without benefit of the institution of summary process proceedings by way of a notice to quit or court proceedings.
The plaintiff alleges a violation of General Statutes § 47a-43, which provides in relevant part:
When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
The plaintiff moves to strike the First Count as to additional defendants Joyce Capozziello, Jessica Capozziello and Thomas Capozziello, Jr. because the First Count "makes no allegations" as to these defendants. A review of the First Count of Fourth Revised Complaint reveals that this count is not directed to them. The First Count is directed only to the defendants Thomas J. Capozziello, Sr., Trustee of the 373 Noble Avenue Trust ("Trust"), Thomas J. Capozziello, Sr., as the landlord of 500 Clinton Ave., Bridgeport, Connecticut ("Trust property") and Jennifer L. Capozziello, agent of the landlord, as well as, one of three beneficiaries of the trust. "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
The plaintiff next alleges that the First Count is barred by the limitation of actions provisions contained in General Statutes § 52-589, as applied to the defendants Joyce Capozziello, Jennifer Capozziello, Jessica Capozziello and Thomas Capozziello, Jr. The court notes that none of these defendants, other than Jennifer Capozziello, are the subject of the allegations in the First Count. The defendants fail to state why the First Count applies to these defendants and why § 52-589 is applicable to them.
General Statutes § 52-589 provides that "[n]o complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of. Ordinarily, a claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike. Greco v. United Technologies Corporation, 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006); Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993); see also Practice Book § 10-50. There are two exceptions to this general rule regarding the use of a motion to strike, as to questions surrounding a statute of limitations. First, when "a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citations omitted) (Internal quotation marks omitted). Greco v. United Technologies Corporation, supra, 277 Conn. 344 n. 12. The second exception to the general rule is when the parties agree that the complaint sets forth all the facts pertinent to the question of whether the action is barred by the statute of limitations. Id. at 344-45 n. 2.
The remedy of forcible entry and detainer originated in England in 1382. 3 Blackstone Commentaries, 179. These remedies were introduced in Connecticut in 1722. Conn. Gen. Stat. (1808), p. 347 n. 1. "By enactments dating back to colonial times, our legislature has proscribed the use of self-help remedies in obtaining possession of demised premises. A colonial enactment from 1722, for example, established fines and a cause of action to remedy any Forceable Entry made into any lands, tenements or other Possessions . . . or of any wrongful detainer of any lands, tenements, or other possessions, with force and strong hand. These legislative enactments were designed to protect . . . peaceable possession . . . from disturbance by any but lawful and orderly means, and to protect the peace of the neighborhood." (Internal citations omitted) (internal quotation marks omitted.) Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257-58, 550 A.2d 1061 (1988); see. 6 Colonial Records of Connecticut 1717-25, p. 343. Our law has evolved to the present statute, General Statutes § 52-589. Section 52-589 is a statute in derogation of the common law and is to be strictly construed. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993). A motion to strike is therefore a proper pleading to address this statute of limitations issue.
The Fourth Revised complaint alleges the original entry by the defendants occurred December 16 and December 17, 2004. The court's record reveals the initial complaint was dated May 19, 2005. The return date was June 14, 2005. Both dates fall within the six-month period provided in § 52-589. As to why the defendants have raised the statute of limitations defense only as to the defendant Jennifer Capozziello and not Thomas J. Capozziello, Sr., as well, cannot be determined by reviewing the content of the First Count or the defendants' motion to strike. The defendants have not filed a separate memorandum of law as required by Practice Book 10-42 citing the legal authorities upon which the motion relies; nor do the defendants address what makes the situation regarding the application of § 52-589 unique as to Jennifer Capozziello, as opposed to Capozziello, Sr.
The First Count alleges the initial entry was December 16, 2004. The plaintiff called the police who arrived at the scene shortly thereafter. The locks to the dwelling unit had been removed along with the plaintiff's personal property. The plaintiff's personal property items were found in a first floor area, packaged in plastic garbage bags. Upon reviewing the plaintiff's rent receipts and speaking to the plaintiff, the police recorded the incident and directed the plaintiff to regain possession of his personal property and the dwelling unit, which the plaintiff did. On December 17, 2004, the plaintiff again returned to the property at approximately 12:00 p.m. to find that once he had been evicted from the unit a second time, and his personal property was missing. The police recorded a second complaint against Thomas J. Capozziello, Sr.
Practice Book § 10-42 provides in relevant part:
(a) Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies.
The defendants also claim that the First Count is legally insufficient as pleaded and does not set forth a claim upon which relief can be granted. Again, as noted the defendants present no legal memorandum of law citing the legal authorities upon which they rely. Where the defendants do not brief the grounds relied upon in their motion to strike, the court will not consider those grounds. See State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (App.Sess. 1981).
"The tenants remedy for a lock-out, an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer." (Citations omitted.) Karatonis v. East Hartford, 71 Conn.App. 859, 862, 804 A.2d 861 (2002); see R. Burke, Connecticut Real Property Law (1994) § 47, p. 126. "The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry." (Citation omitted.) Id.
The court has reviewed § 47a-43 regarding the elements for an action for forcible entry and detained, along with the allegations contained in the First Count. The court finds the plaintiff has sufficiently pleaded an action for forcible entry and detainer.
The defendants also argue that the motion should be granted for the plaintiff's failure to include all necessary, indispensable or interested parties, more specifically, the 373 Noble Avenue Trust, whose address is 373 Noble Avenue, Bridgeport, Connecticut. This argument fails.
The plaintiff's original action named the 373 Noble Avenue Trust as a party defendant. On June 26, 2006, the defendant Thomas Capozziello, Sr., in his individual capacity and as Trustee, filed a motion to dismiss the original complaint as to the Trust on the grounds that the court lacked subject matter jurisdiction over the trust because the trust, as a common-law trust, is not a legal entity capable of being sued. The court (Gilardi, J.), in granting the motion to dismiss, found that absent a statute to the contrary, a common-law trust cannot sue or be sued in Connecticut. Suit must normally be brought by or against the trustees. Booker v. Capozziello, Superior Court, judicial district of Fairfield at Bridgeport, No. CV05 401 02 11 S (Jul. 21, 2006, Gilardi, J.) 41 Conn. L. Rptr 693. "Noble is aptly characterized as a trust, as the trust indenture clearly names a trustee, beneficiaries and it also establishes the trust res. Absent a state statute authorizing suit against a common-law trust, such suits will not lie." Id.; Bogert, Trusts Trustees § 247(M), at 204.
Following the granting of the motion to dismiss, which eliminated the Trust as a party to the action, the plaintiff filed a motion to cite in new party defendants. The plaintiff alleges that Jennifer Capozziello, Joyce Teto, Jessica Capozziello and Thomas J. Capozziello, Jr. are individuals having an interest in the trust. The plaintiff argued that the court could not make a complete determination of the issues in this case without the addition of these parties based on their interests in the trust. The plaintiff claims the trust has been perpetrating a self-settled trust and has asked the court, as an equitable remedy, to void the trust. It is alleged that Jennifer Capozziello is the managing agent of the trust and is a beneficiary of the trust. Joyce Teto is alleged to be the settlor of the trust and is a creator of the trust. Thomas Capozziello, Jr. and Jessica are beneficiaries of the trust. The motion to add these new parties was granted by the court (Hiller, J.) on September 18, 2007, despite the objections of the defendants.
It now defies common sense for the defendants to argue that the Trust is an indispensable party to this action, after the defendants successfully moved to have the action dismissed as to the trust. Additionally, the defendants fail to identify other parties or entities that may be indispensable parties. The court will not waste its time or its resources playing a guessing game with the defendants, which amounts to "hide and seek." The court finds little merit to the motion to strike as it applies to the First Count of the Fourth Revised Complaint.
Second Count: Entry and Detainer Damages Third Count: Unlawful Entry Fourth Count: Larceny, Theft, Conversion
The defendants repeat the same arguments as in the First Count regarding the statute of limitations contained in § 52-589 and the fact that the Second Count contains no allegations as to defendants Joyce Capozziello, Jessica Capozziello and Thomas Capozziello, Jr. The court need not review these issues again, as they were adequately addressed in the preceding section. The defendants also make additional claims, but have failed to address them in a required memorandum citing any substantive case law. Again, where the defendants do not brief the grounds relied upon in their motion to strike, the court will not consider those grounds. See State v. Bashura, supra, 37 Conn.Sup. 748-49.
Fifth Count: CUTPA
The defendants again raise similar claims that the court has already addressed and a claim that a trustee cannot be sued under CUTPA because CUTPA does not govern common law trusts. Again the defendants submit no substantive case law in support of their position, as they have failed to file a memorandum of law. Additionally, the defendants argue that the plaintiff has failed to allege the defendants were engaged in trade or commerce; that they used deceptive, immoral or unscrupulous methods; or they the defendants engaged in a prohibited business method, act or practice in violation amounting to a CUTPA violation.
Connecticut applies the so-called cigarette rule, which sets out the standard for a CUTPA violation: "(1) [w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen] ." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591-92, 657 A.2d 212 (1995). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992). "Whether a practice is unfair and thus violates CUTPA is an issue of fact." DeMotes v. Leonard Schwartz Nissan, Inc., 22 Conn.App. 464, 466, 578 A.2d 144 (1990); Tarka v. Filipovic, 45 Conn.App. 46, 55-56, 694 A.2d 824 (1997).
The court has already determined that the plaintiff has sufficiently alleged an action for entry and detainer pursuant to § 47a-43. A violation of the entry and detainer statute, § 47a-43 can be the basis for a violation of CUTPA. Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 257; Freeman v. Alamo Management Co., 24 Conn.App. 124, 586 A.2d 619 (1991); rev'd on other grounds, 221 Conn. 674, 607 A.2d 370 (1992).
The defendants also argue that the three-year statute of limitations provided for CUTPA, § 42-110g(f), should be preempted by the six-month limitations on actions provided for in § 52-589, as the basis of the CUTPA action is § 47a-43. Again, the defendants provide no case law in support of this claim. A violation of the entry and detainer statute can be a factual predicate for the alleged violation of CUTPA, as well as, other factors. Freeman v. Alamo Management Co., supra, 24 Conn.App. 124; Dudley v. Brown, Superior Court, judicial district of New Haven at Meriden, No. CV04 4000078-S (Jan. 20, 2005, Tanzer, J.) The Fifth Count sufficiently alleges an action pursuant to CUTPA, for which the statute of limitations is three years.
Sec. 42-110g(f) reads as follows:
(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.
Sixth Count: Intentional Infliction of Emotional Distress
The defendants argue that the Seventh Count is insufficient in that the allegations set forth mere conclusions of law and not a claim upon which relief can be granted. Specifically, the defendants state the plaintiff has failed to allege that the defendants: (1) created an unreasonable risk of causing emotional distress; (2) that the plaintiff's distress was forseeable; (3) that such distress was severe enough to result in illness or bodily harm; (4) that the defendants' conduct was the cause of the plaintiff's distress; or (5) that the defendants owed some duty imposed by law.
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." Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). "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 . . . [I]t is the intent to cause injury that is the gravamen of the tort." (Internal quotation marks omitted.) Id., 569. "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).
A review of the Sixth Count reveals that the initial twenty-three paragraphs set forth the allegations regarding the claimed unlawful entry and detainer. The remaining paragraphs allege the four necessary elements for an intentional infliction of emotional distress, but contain nothing more. However, the court can include facts that are implied when read in conjunction with the initial twenty-three paragraphs of the Sixth Count. Westport Bank and Trust Co. v. Corcoran, Mallin Aresco, supra, 221 Conn. 490, 495, and interpret the facts alleged in the light most advantageous to the nonmoving party and "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Warner v. Konover, 210 Conn. 150, 152, 553 A.2d 1138 (1989).
It is fair to infer that an illegal entry and detainer by a defendant was an intentional act that a defendant should know will be likely to cause distress. It is fair to infer that the defendant caused the plaintiff distress when a defendant enters the premises where a plaintiff resides and removes and detains a plaintiff's personal property and belongings, which to date have not been recovered. As to whether the plaintiff's distress was severe, is a question of fact, which is not a proper determination for a motion to strike.
Lastly, the court must determine whether the allegations surrounding this incident sufficiently allege that the conduct of the defendants was extreme and outrageous. There is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain an action. The court looks to the specific facts and circumstances of each case in making its decision. Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999). "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!" . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form a basis for an action based upon intentional infliction of emotional distress." Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "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." DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991).
In considering whether such conduct is extreme or outrageous, the court notes that there is a strong public policy expressed by statute in our state, dating to colonial times, prohibiting illegal entry and detainer. It is also noted that this public policy is expressed by the provisions of General Statutes § 47a-46, which allows an aggrieved party to recover double damages if such party prevails in an action brought pursuant to § 47a-43. The allegations of the plaintiff's complaint regarding entry and detainer are also public policy considerations addressed in CUTPA. Our Supreme Court has ruled that CUTPA applies to residential landlord-tenant transactions, and that a landlord's violation of the public policy of the landlord-tenant act, Conn. Gen. Stat. 47a-1, et seq., is a CUTPA violation. Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983); Pinette v. McLaughlin, 96 Conn.App. 769, 777, 901 A.2d 1269 (2006). Such behavior pursuant to CUTPA is that behavior which can be described as immoral, unethical, oppressive, or unscrupulous when applying the so-called "cigarette rule." See Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 591-92.
In the present case the plaintiff alleges that the defendants and/or their agents on two occasions entered the subject premises without the plaintiff's knowledge or permission and dispossessed him of the premises, despite his rent being current. On the first occasion, the plaintiff was able to recover his personal belongings and property with the help of the police. On the second occasion, less than twenty-four hours later, the plaintiff was unable to recover his property, which is still missing. For the purposes of a motion to strike, this type of behavior qualifies as more than merely insulting or bad manners resulting in hurt feelings. Appleton v. Board of Education, supra, 254 Conn. 210-11. This type of behavior is calculated to cause and does cause serious mental distress. See DeLaurentis v. New Haven, supra, 220 Conn. 267. Viewing the allegations contained in this count in a light most favorable to the non-moving plaintiff, the court concludes that the defendants behavior, as alleged, is sufficiently outrageous to survive the motion to strike.
Seventh Count: Negligent Infliction of Emotional Distress
A cause of action for negligent infliction of emotional distress requires the plaintiff to prove that: "(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, 815 A.2d 119 (2003). "In order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Id., 446. A review of the plaintiff's allegations, interpreted in a light most advantageous to the plaintiff reveals that the plaintiff has sufficiently pleaded a cause of action for the negligent infliction of emotional distress. Warner v. Konover, supra, 210 Conn. 152.
The defendants also claim that this count is barred by the limitation of action provisions of § 52-584 as to Joyce Teto, Jennifer Capozziello, Jessica Capozziello and Thomas Capozziello, Jr. As noted on several occasions herein, the defendants present no legal memorandum of law citing the legal authorities upon which they rely. Where the defendants do not brief the grounds relied upon in their motion to strike, the court will not consider those grounds. See State v. Bashura, 37 Conn.Sup., supra, 748-49.
Sec. 52-584. Limitation of action for injury to person or property caused by negligence, misconduct or malpractice reads in relevant part as follows:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
Count Eight: Breach of Contract
Count Eight alleges a breach of an oral contract for the rental of the subject apartment by the plaintiff. The plaintiff claims Capozziello, Sr., as landlord, had a duty to keep the premises safe, fit and habitable and had a further duty to provide the plaintiff peaceable and quiet enjoyment pursuant to the landlord-tenant statutes. The plaintiff alleges that he and the defendants entered into an oral lease and that the plaintiff paid the rent for the periods alleged. The plaintiff claims the defendant, Capozziello, Sr., as landlord and trustee, breached this contract by failing to allow peaceable and quiet enjoyment of the trust property and by failing to make the doors and the locks of the building and the rented apartment, safe. As a result, the plaintiff claims he has been damaged.
Sec. 47a-7 reads in relevant parts:
(a) A landlord shall: (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition . . . (3) keep all common areas of the premises in a clean and safe condition . . .
See n. 1 regarding the alleged removal of door locks by defendants.
The defendant argues that this count should be stricken, as a breach of contract and a "tort claim" may not be maintained in a single count. Once again, the defendant offers no substantive law in support of his argument. Additionally, the defendants' claims are more properly addressed by way of a Request to Revise pursuant to Practice Book § 10-35. The count as it presently exists is not artfully pleaded and may be somewhat confusing. Nonetheless, it pleads sufficient allegations to survive as a breach of contract claim.
Sec. 10-35. Request to Revise reads as follows:
CT Page 6913
Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading.
Ninth Count: Negligence
The defendants claim that the plaintiff has not sufficiently alleged an action sounding in negligence, and that any such action is barred by the limitation on such actions provided in General Statutes § 52-584, as it pertains to Joyce Teto, Jennifer Capozziello, Jessica Capozziello and Thomas Capozziello, Jr. The Ninth Count of the plaintiff's complaint incorporates many paragraphs of the preceding eight counts. It additionally alleges the defendant Thomas Capozziello, Sr. had a duty to make the premises safe and secure during the plaintiff's tenancy. It alleges that this defendant breached that duty and such breach was the immediate and direct cause of the plaintiff's injury, which caused the plaintiff to sustain damages. As noted repeatedly, herein, the defendants have failed to offer any substantive law to support their claim and have not filed a memorandum of law as required by Practice Book § 10-42. For this reason, the court refuses to address the defendants' claim regarding § 52-584. See State v. Bashura, 37 Conn.Sup., supra, 748-49 (Where the defendants do not brief the grounds relied upon in their motion to strike, the court will not consider those grounds).
The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. (Citation omitted) (Internal quotation marks omitted.) Right v. Breen, 277 Conn. 364, 371-72, 890 A.2d 1287 (2006). While the complaint does not specifically state that this count, alleging negligence, is based on the statutory provisions of § 47a-7, which requires the landlord to keep the premises in a safe and habitable condition, the court interprets the allegations broadly for the purposes of a motion to strike. Whether the plaintiff claims common law negligence or statutory negligence, the court find he has sufficiently alleged a duty by the defendant to the plaintiff; a breach of that duty; causation; and actual injury. Right v. Breen, supra, 277 Conn. 371-72.
"In order to predicate a recovery on the ground of statutory negligence, two elements must coexist . . . [T]he violation of the statute must constitute a breach of duty owed to the plaintiff . . . Second, a plaintiff must prove that the violation of the statute . . . was a proximate cause of his injuries." (Internal quotation marks omitted.) Blancato v. Randino, 33 Conn.App. 44, 48, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 (1993).
Tenth Count: Fraudulent Conveyance
The defendants claim the plaintiff has not sufficiently pleaded a cause of action for fraudulent conveyance and that this count is also barred by General Statutes § 52-577. The plaintiff argues that this count sufficiently pleads allegations consistent with General Statutes § 52-552e regarding fraudulent transfers. Section 52-552e states:
Sec. 52-577 reads as follows:
No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor's claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.
(b) In determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether: (1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the property transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor's assets, (6) the debtor absconded, (7) the debtor removed or concealed assets, (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, (10) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
The complaint alleges that the subject 373 Noble Avenue Trust, ("Trust") was created as a self-settled trust rather than a third party trust to protect the Capozziello family's assets from creditors and other third parties during the time in which Thomas Capozziello, Sr. was (criminally) sentenced on federal and state charges and at which time judgments were pending against related family businesses. Capozziello Sr.'s children are the trust beneficiaries and the trust was setup with his assets. Capozziello, Sr.'s wife, Joyce Teto, is the settlor of the trust. Capozziello, Sr., as Trustee, holds legal title to the trust property and retains a beneficial interest in the assets, as he resides in several of the properties owned by the trust. Additionally, the complaint alleges that Capozziello, Sr. fails to keep appropriate records of the trust assets and uses the income from the trust properties, as he sees fit. "[T]he determination of the question of fraudulent intent is clearly an issue of fact which must often be inferred from surrounding circumstances . . . Such a fact is, then, not ordinarily proven by direct evidence, but rather, by inference from other facts proven — the indicia or badges of fraud." Dietter v. Dietter, 54 Conn.App. 481, 485-86, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617, 737 A.2d 926 (1999). The court finds the complaint sufficiently alleges a fraudulent transfer.
The court will not consider the defendants' claim that § 52-577 bars this claim because the defendants have not submitted any substantive law in support of this claim have not informed the court as to what factors they rely upon in support of this argument. See State v. Bashura, 37 Conn.Sup., supra, 748-49.
Eleventh Count: Alter Ego Theory
The Eleventh Count alleges that the subject Trust has been completely dominated in policy and business practice by the defendant Thomas Capozziello, Sr. and that he has contributed most if not all of the assets held by the Trust. It also alleges Capozziello, Sr. has used the Trust assets at his discretion and takes income from the Trust properties for his personal gain. The Eleventh Count also alleges that Capozziello, Sr., directs the transfer of property into and out of the Trust at his sole discretion and for personal gain. The plaintiffs allege the Trust is a "mere shell" for Capozziello, Sr., and serves no legitimate purpose other than an intermediary to perpetrate fraud and to promote injustice. The Trust is alleged to have no separate existence from Capozziello, Sr. and is the alter ego of Capozziello, Sr. The plaintiff requests that the court void the Trust.
The defendants move to strike this count on the basis that the plaintiff's allegations consist entirely of legal conclusions and are, thus, insufficient to properly allege a claim. Specifically, the defendants argue that the "blanket" allegations that Thomas Capozziello, Sr. is the alter ego of the Trust and has been managing and controlling the business as if it were his own business is unsupported by facts. Additionally, even if facts support the allegation of commingling of funds, these allegations are insufficient to pierce the corporate veil. Lastly, the defendants set forth additional arguments as to why the motion to strike should be granted. However, as to the claims set forth by the defendants, no substantive law is cited, and no memorandum of law is submitted.
"A court's disregard of an entity's structure is commonly known as `piercing the corporate veil.'" Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 148 n. 10, 799 A.2d 298, cert. denied, CT Page 6909 261 Conn. 911, 806 A.2d 49 (2002). "In the usual veil piercing case, a court is asked to disregard a corporate entity so as to make available the personal assets of the owners to satisfy a liability of the entity.' Id., 149. "That principle also is applicable to limited liability companies and their members." Id., 147; General Statutes § 34-133.
Sec 34-133(a) reads as follows:
(a) Except as provided in subsection (b) of this section, a person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.
"The concept of piercing the corporate veil is equitable in nature and courts should pierce the corporate veil only under `exceptional circumstances.'" Davenport v. Quinn, 53 Conn.App. 282, 301, 730 A.2d 1184 (1999). Such exceptional circumstances would include instances "where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice." (Internal quotation marks omitted.) SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 230, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S.Ct. 2839, 115 L.Ed.2d 1008 (1991). "No hard and fast rule, however, as to the conditions under which the entity may be disregarded can be stated as they vary according to the circumstances of each case." (Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., 187 Conn. 544, 555-56, 447 A.2d 406 (1982).
While the defendants have not submitted any law to support any of their various arguments, the plaintiff has not addressed the issue of whether the concept of piercing the corporate veil is applicable to a trust. Additionally, the plaintiff has not addressed the defendants' argument of whether the plaintiff has standing to claim a breach of fiduciary duty. However, the issue of standing and subject matter jurisdiction will not be determined by a motion to strike.
Neither party has submitted any substantive law to address the application of piercing the corporate veil to a trust. Nonetheless, the court must interpret the facts alleged in the light most advantageous to the nonmoving party and "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Warner v. Konover, supra, 210 Conn. 152. The court will not strike Count Twelve, given the absence of substantive law by the defendants. The court will not consider any arguments, which have not been properly briefed. See State v. Bashura, supra, 37 Conn.Sup. 748-49.
Various Claims for Relief
The court has not granted the motion to strike as to any of the eleven counts of the Fourth Revised Complaint. However it is noted that the plaintiff's prayer for relief requests punitive damages for counts sounding in negligence, negligent infliction of emotional distress, intentional infliction of emotional distress and breach of contract.
Regarding an award of punitive damages, the "American Rule" states that "attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). The plaintiff has failed to allege the existence of a contractual or statutory exception which would entitle her to these sums, and thus the plaintiff would be prohibited from making such a recovery under the "American Rule." However, the American rule "does not apply . . . to situations in which the opposing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 394, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155-56, 735 A.2d 333 (1999)." Maris v. McGrath, 58 Conn.App. 183, 189, 753 A.2d 390 (2000), aff'd, 269 Conn. 834, 850 A.2d 133 (2004). "Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Citations omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008).
"The rule in this state as to torts is that punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). "To furnish a basis for recovery of punitive damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought . . . If awarded, punitive damages are limited to the costs of litigation less taxable costs, but, within that limitation, the extent to which they are awarded is in the sole discretion of the trier . . . Limiting punitive damages to litigation expenses, including attorneys fees, fulfills the salutory purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury . . ." (Citations omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004).
A review of the counts alleging negligence, negligent infliction of emotional distress, intentional infliction of emotional distress reveals that the language used in the allegations is insufficient to allege that the defendants' conduct was "wanton, reckless, wilful, intentional and malicious." The plaintiff has failed to state facts that allege that the defendants' conduct "evinced the state of consciousness with reference to the consequences of one's acts required for recklessness." Hawkins v. Handyman Hardware, Superior Court, judicial district of Stamford-Norwalk at Stamford, complex litigation docket, X08 CV 01 0186766 (February 6, 2003, Adams, J.); Alswanger Bush v. Lametta Constr., Superior Court, judicial district of Stamford-Norwalk at Stamford No. FST CV 07 5005709 S (Jan. 20, 2009, Adams, J.). As for the count alleging a breach of contract, the plaintiff has not alleged any terms of a contract providing for an award of punitive damages or any contractual exception allowing for punitive damages. Punitive damages are not applicable to these causes of action and, therefore are ordered stricken.
As to the remaining claims for relief, the defendants have submitted no legal authority to support their arguments. Accordingly, the court will not consider the defendants' claims. State v. Bashura, supra, 37 Conn.Sup. 748-49.
Orders
The motion to strike each of the eleven counts of the plaintiff's Fourth Revised Complaint is hereby denied. The motion to strike claims for an award of punitive damages for counts alleging negligence and breach of contract is hereby granted. As to all other claims for relief, the motion to strike is denied.