Opinion
No. CV-04-4001838 S
July 26, 2005
Procedural/Factual Background
Plaintiff Edward Burke brings this action individually, as purchaser of a Grand Banks Classic yacht, and as Trustee of the Judgment Proof Trust u/a/d August 8, 2003, against defendants The Boatworks, Inc. d/b/a Boatworks Yacht Sales, R.G. Ely Sons, Inc. d/b/a Boatworks Yacht Sales (collectively, the Boatworks defendants) and New England Yacht Services, LLC (defendant New England Yacht). The plaintiff's Third Amended Complaint, filed on February 7, 2005, sets forth the following allegations in six counts, respectively: breach of contract; negligence/malpractice; fraudulent misrepresentation/common-law fraud; violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110b et seq.; unjust enrichment/equity; and negligent infliction of emotional distress.
The Judgment Proof Trust is a revocable trust agreement executed under the laws of Connecticut. Edward Burke attests that he currently owns the yacht in his capacity as Trustee.
The plaintiff filed his initial complaint on October 21, 2004. A First Amended Complaint was filed on December 15, 2004. A Second Amended Complaint was filed on January 12, 2005. A Third Amended Complaint to which the present motion to strike Counts Five and Six is directed — was filed on February 7, 2005. Since this motion to strike was argued on March 28, 2005 the plaintiff has filed a Fourth Amended Complaint dated April 20, 2005. The Fifth Count (Unjust Enrichment/Equity) and the Sixth Count (Negligent Infliction of Severe Emotional Distress) of the Fourth Amended Complaint are virtually identical to the Fifth and Sixth Counts of the Third Amended Complaint. The Boatworks defendants have moved on May 9, 2005 to strike all six counts of the Fourth Amended Complaint (which motion has not yet been heard or decided), but the defendant New England Yacht has not moved to strike any count of the Fourth Amended Complaint. Under those circumstances, pursuant to Practice Book § 10-61 the court will address the instant Motion to Strike filed by defendant New England Yacht under date of February 16, 2005 as if it were directed to the Fifth and Sixth Counts of the later-filed Fourth Amended Complaint. See, Harris v. Town of Clinton Board of Education et al., 2000 Conn.Super LEXIS 1528 (Docket No. VV 990090095, J.D. of Middlesex at Middletown, Gordon, J., May 4, 2000.)
The following factual allegations are gleaned from the operative complaint: On November 13, 2002, the plaintiff made an oral agreement with the Boatworks defendants, in their capacity as a full service yacht sales company and authorized Grand Banks yacht dealer, to act as his broker in finding him a yacht to use recreationally and to live aboard year-round. On December 2, 2002, the Boatworks defendants offered the plaintiff a 1979 Grand Banks Classic yacht and advised him to have the yacht surveyed before purchase. On December 3, 2002, the plaintiff executed a written contract with defendant New England Yacht for the latter to survey the yacht to determine its value and condition. On December 11, 2002, defendant New England Yacht issued its report which made no mention of any problem with the vessel's exhaust risers, and on January 9, 2003, the plaintiff purchased the yacht. Between October 15, 2003 and January 31, 2004, the yacht's port exhaust riser failed (a condition ultimately diagnosed by a diesel mechanic on May 19, 2004); failure of the starboard exhaust riser was also deemed imminent and required replacement.
The plaintiff states that the yacht, which he had made into his primary residence, was out of service for approximately four months while undergoing repair. As a result, the plaintiff bore the expense of alternate lodging, existing mortgage payments on the yacht and repair costs, and had to forego all of the 2004 boating season. The plaintiff contends that the defendants knew or should have known of the defect in the yacht's exhaust risers — a problem he later learned is common to the yacht's make and vintage and known to the yacht's manufacturer — and should have disclosed such condition to him prior to purchase.
On February 22, 2005, the defendant New England Yacht Services, LLC filed, together with a memorandum in support, a motion to strike counts five and six for failure to state a claim on which relief can be granted. The plaintiff filed an objection, with supporting memorandum, on March 22, 2005.
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, L.L.C. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). The court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so [the court must] . . . read the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
Count Five: Unjust Enrichment
In count five of the complaint, the plaintiff alleges that the defendants misrepresented the condition and value of the yacht to induce the plaintiff to purchase the vessel and were unjustly enriched through the receipt of compensation to which they were not entitled. Specifically, the plaintiff claims that the movant, New England Yacht, accepted payment for a survey which failed to note and disclose the defects in the exhaust risers. The plaintiff claims that he suffered damage as the party who tendered payment of the survey fee.
"Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff . . . The doctrine's three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment." (Citation omitted.) Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). Unjust enrichment is a fact-driven doctrine: "All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine." Id.; see also Gardner v. Pilato, 68 Conn.App. 448, 791 A.2d 707, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002).
In following the doctrine's three requirements, the plaintiff alleges that: (1) defendant New England Yacht was benefited in that it received a fee from the plaintiff for the survey; (2) New England Yacht failed to confer a benefit on the plaintiff in exchange for the fee, in that the survey was incomplete and did not assess the true condition and value of the yacht, and (3) the failure of New England Yacht to produce an adequate survey was to plaintiff's detriment, since he relied upon it in deciding to purchase a yacht that proved to contain substantial defects. New England Yacht contends that it did not receive any benefit at the plaintiff's expense because the plaintiff received the survey he paid for. This assertion, in and of itself, does not defeat the plaintiff's claim. In Zeigler v. Sony Corp. of America, 48 Conn.Sup. 397, 849 A.2d 19 (2004) ( 36 Conn. L. Rptr. 531), the plaintiff, Zeigler, alleged that the digital video disc (DVD) player that he purchased from the defendants Sony Corporation of America and Sony Electronics, Inc. (Sony) was defective, and maintained that it would be unconscionable to permit Sony to retain profits unjustly obtained from the sale. In denying Sony's motion to strike Zeigler's claim for unjust enrichment, the court explained: "It is disingenuous of the defendants to argue that, because the plaintiff got a Sony DVD player, he received the benefit of his bargain when the player he got is alleged to have been defective . . . It is that alleged failure to deliver what the plaintiff believed he would get in return for his payment that operated to his detriment. Because the court is required to construe the facts alleged in favor of the pleader and because recovery under an unjust enrichment claim is fact driven, a broad reading of the . . . count arguably supports such a claim." Id., 405. Here, the plaintiff alleges that he expected that he would get a complete and accurate survey in return for his payment, he alleges that the survey was incomplete and inaccurate and did not meet his expectations, and he alleges that New England Yacht's failure to deliver on those expectations operated to his detriment. Reading the allegations broadly and construing the facts in a manner most favorable to him, the plaintiff has stated the elements of a cause of action for unjust enrichment. The motion to strike must be granted, however, not for what Count Five fails to allege but for the reason that it also contains allegations of an express written contract between the plaintiff and the defendant New England Yacht. It must be noted that "[u]njust 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." (Internal quotation marks omitted.) Meaney v. Connecticut Hospital Assn., 250 Conn. 500, 511, 735 A.2d 813 (1999). "Indeed, lack of a remedy under the contract is a precondition for recovery based on unjust enrichment." Gagne v. Vaccaro, supra, 255 Conn. 401. Pursuant to Practice Book § 10-25, the plaintiff is permitted to plead unjust enrichment as an alternative to breach of contract, as long as it is done in separate counts as required by Practice Book § 10-26. It has been held in several recent Superior Court cases that allegations of express contract between the parties incorporated into a count stating a claim for unjust enrichment cause a violation of the rule that those alternative causes of action must be pleaded in separate counts. Berman Sable v. National Loan Investors, LP, 2002 Ct.Sup. 225 (Superior Court, Judicial District of Waterbury, Docket No. CV 00 016745, January 16, 2002, McWeeny, J.); Ravski v. Connecticut State Medical Society, 2005 Ct.Sup. 1335 (Superior Court, Judicial District of Waterbury, Complex Litigation Docket, Docket No. X01-CV04-4000582S, January 26, 2005, Sheedy, J.), Alvarez v. Fleet National Bank, 2004 Ct.Sup. 5553 (Superior Court, Judicial District of New Haven, Docket No. CV01-0450643S, April 20, 2004, Skolnick, J.); and Heaven v. Timber Hill, LLC., 2004 Ct.Sup. 15250 (Superior Court, Judicial District of Stamford/Norwalk, Docket No. CV02-0188007, December 6, 2002, Lewis, J.) The plaintiff herein has violated that rule by incorporating into Count Five, his unjust enrichment count, "Paragraphs 1 through 18 of Count III." Paragraphs 1 through 16 of Count III are in turn incorporated from paragraphs 1 through 16 of Count I, which sets forth plaintiff's claims of breach of contract against both defendants including specifically an allegation that "On or about December 3, 2002 Plaintiff, on the advice and counsel of Buyer's Broker, contracted with Surveyor [defendant New England Yacht] to perform a pre-purchase survey of the Vessel to determine both the Vessel's value and condition and in so doing expected Surveyor to fulfill his duties to plaintiff." (¶ 8); "On or about December 11, 2002 Surveyor issued its report about the condition and value of the Vessel." (¶ 9); "On or about January 9, 2003, in reliance upon the advice and/or representations made by Surveyor and Buyer's Broker, none of which included any mention of a current or potential future problem that could arise involving the exhaust risers . . . plaintiff purchased the Vessel." (¶ 10); and "Unbeknownst to Plaintiff, the Vessel had already suffered a partial failure of its port exhaust riser . . . rendering the vessel's condition and value less than reported by Surveyor . . ." (¶ 11). These allegations incorporated into Count V, which clearly allege a breach of an express contract between the plaintiff and the defendant New England Yacht, cause Count V to be in violation of the rule that separate alternative causes of action must be pleaded in separate counts. Accordingly, the motion to strike Count V is granted.
Practice Book § 10-25 provides: "The plaintiff may claim alternative relief, based on an alternative construction of the cause of action." Practice Book § 10-26 provides: "Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be shall be prefaced by the words " Second Count," and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one."
Count Six: Negligent Infliction of Emotional Distress
The plaintiff alleges that he suffered severe emotional distress both as a consequence of the failure of the exhaust risers and as a consequence of his lost faith in the defendants' services, particularly New England Yacht's survey. He maintains that the defendants should have foreseen that their conduct would create an unreasonable risk of emotional distress, potentially resulting in illness, in that the defendants knew the plaintiff purchased the yacht intending to make it his home and had strained his finances to do so. The defendant New England Yacht asserts that count six should be stricken as not legally cognizable because the emotional distress claim is based solely on property damage.
A cause of action for negligent infliction of emotional distress has four requirements that a plaintiff must plead and prove: "(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). "Unreasonable conduct has been interpreted as conduct performed in an inconsiderate, humiliating or embarrassing manner." (Internal quotation marks omitted.) Early v. Derby Neck Library, Superior Court, Judicial District of Ansonia-Milford at Derby, Docket No. CV 00 0072405 (September 27, 2001, Nadeau, J.) ( 30 Conn. L. Rptr. 450).
In part, the plaintiff pleads that his emotional distress was caused by the failure of his yacht's exhaust risers. Such a claim must fail as a matter of law. Although "[n]o appellate decision, as yet, deals with a claim for negligent infliction of emotional distress where the damage alleged is injury to property," it is the case that "[e]very Superior court case that has addressed this issue, however, has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property." Early, supra. This is because "[w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Duffy v. Wallingford, 49 Conn.Sup. 109, 122, 862 A.2d 890 (2004).
See, e.g. Early v. Derby Neck Library, supra, 30 Conn. L. Rptr. 450 (finding that the defendants would not reasonably have foreseen that the damage to the plaintiffs' retaining wall and driveway caused by the defendant's excavation and construction next door would have caused the plaintiff's emotional distress potentially leading to illness or bodily harm); Hixon v. Eilers, Superior Court, judicial district of Hartford, Docket No. CV 99 0592937 (February 14, 2001, Fineberg, J.) ( 29 Conn. L. Rptr. 254) (declining to recognize a cause of action for negligent infliction of emotional distress resulting from the defendants' removal of trees, shrubbery and plants on the plaintiffs' property, based on lack of foresecability on the part of the defendants that such conduct would result in illness or bodily harm.)
The plaintiff also asserts that he was caused severe emotional distress in the form of lost faith in New England Yacht's survey and other services. He pleads that New England Yacht should have foreseen that its conduct involved an unreasonable risk of causing emotional distress and that such distress might result in illness. These assertions are merely legal conclusions. To withstand a motion to strike, legal conclusions in a complaint must be supported by the facts alleged. Novametrix Medical Systems, Inc., v. BOC Group, Inc., 224 Coun. 210, 215, 618 A.2d 25 (1992). The plaintiff alleges that New England Yacht knew that the plaintiff's finances were strained by the purchase of the yacht, which he intended to make his home. No matter how crafted, the plaintiff's emotional distress claim is ultimately based on the damage to his property. He alleges in Count ¶ 19 that "The defendant's conduct, as described above, caused Plaintiff severe emotional distress, in that Plaintiff has lost all faith in the quality of the survey provided by Surveyor . . ." (emphasis added). So far as the court can ascertain, the "conduct as described above" all relates in one way or the other, to the failure of the exhaust riser on the yacht, and defendant New England Yacht's failure to detect that allegedly impending failure. There is no other fact alleged that would form the basis of a loss of confidence in the defendant New England Yacht's quality of work.
Moreover, the plaintiff does not allege that he suffered any illness or injury to his person, leaving only his negative impressions of the survey as the alleged product of his dealings with New England Yacht. "[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 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, 398 A.2d 1180 (1978). Clearly, a claim of negligent infliction of emotional distress should not be recognized here, where the plaintiff has alleged what amounts to mere disappointment with New England Yacht's work.
Accordingly, the motion to strike Count VI is granted.
Order
For the foregoing reasons the defendant New England Yacht's motion to strike Count V and Count VI (No. 147) of the Fourth Amended Complaint (see f.n. 2) is granted.
BY THE COURT
Alfred J. Jennings, Jr. Judge