Opinion
No. CV-04-4000970-S
May 3, 2007
MEMORANDUM OF DECISION RE: PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' COUNTERCLAIM — #115
FACTS
On September 28, 2004, the plaintiff, CIT Group/Equipment Financing, Inc., commenced the present action against the defendants, Quality Design Manufacturing, LLC (Quality Design) and Richard Grano, to recover the remaining debt that the defendants owe to it under a leasing contract. The plaintiff alleges the following facts in the complaint. On or about December 1, 2000, Quality Design entered into an equipment leasing contract with a third party, Manufacturers Financing Services (MFS), for the purpose of leasing a lathe. On October 30, 2000, which was prior to the date of the lease, MFS assigned its rights to the plaintiff. In addition, as part of the lease, Grano signed a guaranty that made him personally liable for the debts incurred thereunder. The defendants defaulted on the lease on October 26, 2002, and have not made any payments since March 31, 2003. The plaintiff brought a replevin action in November 2003, pursuant to which the court, Carroll, J., granted an order of replevin. The plaintiff subsequently repossessed and sold the lathe, leaving a deficiency balance due of $ 43,683.96, which the plaintiff seeks to recover in the present action.
In the summons, the plaintiff also named Carl Martovich, III and Susan Martovich as defendants. On December 20, 2004, the plaintiff withdrew its claims as to these two defendants.
See CIT Group/Equipment Financing Inc. v. Quality Design Manufacturing, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 083595 (withdrawn January 25, 2007).
The defendants filed an amended answer, special defenses and two counterclaims on June 1, 2005. In the first counterclaim, the defendants allege a claim against the plaintiff for fraud in the inducement. In the second counterclaim, the defendants incorporate all of the factual allegations of the first counterclaim and allege a claim against the plaintiff for violating the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The defendants premise their counterclaims on the following allegations. Quality Design entered into the lease referred to in the complaint with MFS. The purpose of the lease was to finance MFS's purchase of the lathe from Packard Machinery Co., Inc. (Packard). MFS, in turn, leased the lathe to Quality Design. Both Packard and MFS expressly agreed to provide Quality Design with support services in its use of the lathe. Before Quality Design entered into the lease and before Grano signed the guaranty, MFS and Packard, in conspiracy with the plaintiff, entered into a secret transaction assigning the lease to the plaintiff. They structured the transaction so that the plaintiff would become the leaseholder, but would not be responsible for the promises and representations that MFS and Packard made to Quality Design. As a result of the assignment, Packard and MFS severed their financial relationship with Quality Design and stopped providing Quality Design with support for the equipment. In addition, the plaintiff, which is an entity that is separate from MFS, used MFS's name when billing and otherwise contacting the defendants, despite the fact that the plaintiff had not registered itself under the trade name MFS in Connecticut, which constitutes a violation of General Statutes § 35-1. Quality Design would not have entered into the lease, and Grano would not have signed the guaranty, if they had been told that the plaintiff secretly arranged to have the contract assigned to it. Both defendants have been damaged to the extent that payments they made to MFS actually benefitted the plaintiff.
The plaintiff filed a motion to strike both of the defendants' counterclaims on June 17, 2005, accompanied by a memorandum of law in support of its motion. The defendants filed a memorandum in opposition on July 15, 2005. The matter was heard by the court on February 12, 2007. The next day, on February 13, 2007, the plaintiff filed a reply memorandum in which it raises two additional grounds for its motion.
DISCUSSION
"Practice Book § 10-39(a) provides in relevant part: Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 116 n. 3, 889 A.2d 810 (2006). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id., 117-18. The plaintiff argues that the first counterclaim should be stricken because a party's failure to register a trade name as required by § 35-1 does not give rise to an independent cause of action. The defendants counter that their reference to the plaintiff's violation of the statute is not intended as a separate cause of action but is part of its factual allegations concerning its claim of fraudulent inducement.
The plaintiff is correct in stating that an allegation that a party violated § 35-1 will not, by itself, give rise to a cause of action. "General Statutes § 35-1 does not provide for an independent cause of action, but rather, states that failure to comply with the requirements of Section 35-1 `shall be deemed to be an unfair or deceptive trade practice under subsection (a) of Connecticut General Statutes § 42-110b.'" Shah v. Cover-It, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 0068182 (April 10, 2000, Arnold, J.). Nevertheless, a plain reading of the counterclaim reveals that the defendants included the allegation that the plaintiff violated § 35-1 to supplement their allegations that the plaintiff misrepresented the nature of their relationship to the lease and MFS.
In its reply, the plaintiff argues that the court should strike the first counterclaim because the plaintiff has not pleaded that it suffered any injury, which is a necessary element of a cause of action for fraud in the inducement. "The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it had to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment . . . Because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). "The plaintiff in an action at law for fraud must prove that he has been injured in order to recover . . . A plaintiff who has not suffered damage or injury cannot pursue an action at law or in equity for nominal damages resulting from fraudulent actions." (Citations omitted.) Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991). "The damages asserted in a fraud action must not be speculative or contingent." (Internal quotation marks omitted.) Criscuolo v. Shaheen, 46 Conn.Sup. 53, 58, 736 A.2d 947 (1999).
In their first counterclaim, the defendants allege that the plaintiff, acting in conspiracy with MFS and Packard, fraudulently induced Quality Design to enter into the leasing contract and fraudulently induced Grano to make a personal guaranty on any resulting debt. The defendants make several allegations that they have been injured by the plaintiff's conduct. Specifically, they allege that MFS and Packard "expressly agreed to provide support services to [Quality Design] in its use of the equipment," and that, as a result of the plaintiff's role in the secret assignment, both MFS and Packard "severed their relationship with [Quality Design] and stopped providing after sales support of the equipment." Further, the defendants allege that they "have suffered damages in the form of various payments which they believed were made to MFS but in actuality were made solely for the benefit of [the plaintiff]."
The plaintiff contests the defendants' allegations that they were damaged by a lack of support services by citing to a provision in the lease, which provides in relevant part that "[l]essor [MFS] makes no express or implied warranties whatsoever . . . Lessor is not responsible for any repairs or service to the equipment . . ." The plaintiff thus argues that the defendants do not and cannot allege a sufficient injury because no warranties were made to them prior to the allegedly secret assignment. The lease provisions do not, however, negate the defendants' allegations that MFS and Packard expressly agreed to provide Quality Design with support services. It is well accepted that in deciding a motion to strike, the trial court assesses the legal sufficiency of the pleadings and does not make factual findings. Sullivan v. Lake Compounce Theme Park Inc., supra, 277 Conn. 117-18. In addition, the defendants also allege that they would not have entered into the lease or the personal guarantees, which have resulted in a $ 43,683.96 outstanding debt. Construing the allegations in a light most favorable to the defendants, their allegations are sufficient to constitute injury for the purposes of maintaining their counterclaim of fraud in the inducement. Therefore, this court should denies the motion to strike as to the first counterclaim.
Paragraph 6 of the lease provides: "Lessor [MFS] makes no express or implied warranties whatsoever, including, without limitation, the equipments merchantability, fitness for a particular purpose, design, condition, capacity, durability, quality of material or workmanship conformity of any description or patent infringement and hereby disclaims any such warranty. Lessor is not responsible for any repairs or service to the equipment, defects therein or failures in the operation thereon or for any indirect special, incidental or consequential damages. Lessee has made the selection of each item of equipment based on its own judgment and expressly disclaims any reliance upon statements or representations made by lessor, lessee leases the equipment `as is.'"
The court may consider the provisions of the lease that the plaintiff relies on because the plaintiff attached the contract to its complaint; thus it is a part of the complaint. See Practice Book § 10-29(a). The defendants then refer to the lease in their counterclaim, thereby making it a part of their pleading. See Practice Book § 10-29(b).
"A defendant cannot say: `I, by my fraudulent representations, induced you to pay over your money, but since you in fact owed me this sum you cannot recover for my fraud.'" Meader v. Trout Brook Ice Feed Co., 96 Conn. 454, 464, 564 114 A. 668 (1921).
The plaintiff's first argument in support of striking the second counterclaim is that the defendants have failed to allege that the plaintiff's failure to register its trade name is the proximate cause of their injuries, and therefore the defendants cannot recover under CUTPA. The defendants counter that they have alleged a proximate connection between the plaintiff's deceptive conduct and their injury by alleging that they would not have entered into the lease or guaranty if they had known of the plaintiff's secret involvement in the transaction.
General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Section 35-1(a) specifies that a party's failure to register a trade name "shall be deemed to be an unfair or deceptive trade practice under subsection (a) of 42-110b." Thus, "[a] violation of General Statutes § 35-1 . . . [has] the effect of establishing that there was an unfair or deceptive trade practice . . . [in that] it offends public policy as it has been established by the statutes." (Internal quotation marks omitted.) Lemoult v. Benedetto, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 990173711 (June 6, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 362, 365).
Our appellate courts have not determined, however, whether a party that is relying on a violation of § 35-1 to establish a CUTPA claim must also allege that the violation was the proximate cause of its injuries. "There is a split of authority within the Superior Court on the issue . . . Some have agreed that proximate cause is required to find CUTPA liability based on General Statutes 35-1 . . . Other trial courts have not required [this element] . . ." (Citations omitted.) Lemoult v. Benedetto, supra, 27 Conn. L. Rptr. 364. The former line of cases finds support in Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997), in which the court stated that, "in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Internal quotation marks omitted.) The phrase "as a result of" that the court referred to is contained in General Statutes § 42-110g(a), which provides: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." "The Connecticut Supreme Court [in Abrahams,] arrived at this interpretation by reading General Statutes § 42-110b(a) and § 42-110g(a) together. The deceptive practice of the defendant described in § 42-110b(a) requires a showing of proximate cause because the language in § 42-110g(a) requires [a]n actual cause that is a substantial factor in the resulting harm." (Internal quotation marks omitted.) Lemoult v. Benedetto, supra, 27 Conn. L. Rptr. 364.
In Scrivani v. Vallombroso, 99 Conn.App. 645, 653-54, 916 A.2d 827 (2007), the Appellate Court recently relied on this same language in determining that a party that asserts a CUTPA claim that is premised on a violation of the Home Improvement Act (HIA) must establish that the violation was the proximate cause of the party's harm. The HIA, similarly to § 35-1, provides that a violation of its provisions "shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." General Statutes § 20-427(c). Scrivani is persuasive authority that a party relying on a violation of § 35-1 to establish a CUTPA claim must allege that its injury was proximately caused by the violation.
In determining whether a party has alleged sufficient proximate cause in the context a CUTPA violation that is premised on § 35-1, the judges of the Superior Court have analyzed whether the party has alleged that he or she has been "misled as to the real identity or address of the person conducting business with them." Bordieri v. Nelson, Superior Court, judicial district of Hartford, Docket No. CV 04 0834274 (September 28, 2006, Keller, J.). See also Carbonella Desarbo, Inc. v. Dealer's Quest, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0446146 (May 12, 2003, Hadden, J.T.R.). This analysis is consistent with the public policy behind enacting the statute, that is, "protecting consumers and creditors from the potential fraud that can arise when legal entities do business under assumed names that may or may not be revealed to those consumers or creditors . . ." America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 480, 866 A.2d 698 (2005). In both Bordieri and Carbonella, the court held that the plaintiffs did not properly allege a CUTPA claim because although they alleged a § 35-1 violation, they failed to allege that they were somehow misled by the defendants' failure to register a trade name or that they were unaware of the real party with whom they were contracting.
In the present case, the defendants allege that the plaintiff had a secret, undisclosed interest in the lease transaction and that the plaintiff did not register its trade name in furtherance of its purported scheme to keep its involvement a secret from the defendants. The defendants further allege that the plaintiff's affirmative concealment of its involvement and identity with respect to the transaction actually deceived the defendants to their detriment, as they never would have entered into the contract had they been aware of the plaintiff's involvement. Unlike Bordieri and Carbonella, where the court determined that the plaintiffs failed to allege proximate cause because they knew the real identity of the party with whom they were dealing, the second counterclaim is replete with allegations that the defendants were injured precisely because they were unaware of the plaintiff's involvement in the transaction. It is also noted that the defendants' CUTPA claim is not premised solely on the plaintiff's violation of § 35-1. Rather, they also rely on their allegations that the plaintiff deceived them into entering into the lease and the guaranty and then structured the assignment transaction with MFS and Packard in such a way as to absolve it from its obligations and duties thereunder. Therefore, the allegations, construed in the light most favorable to the defendants, are sufficient to establish a proximate cause connection between the plaintiff's deceptive conduct and the defendant's injury.
In its reply, the plaintiff argues that even if the defendants have alleged sufficient proximate cause, the second counterclaim should nonetheless be stricken because the plaintiffs have failed to allege "any damages whatsoever." CUTPA provides a remedy to "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." General Statutes § 42-110g(a). "An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss . . . A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case [under CUTPA]." (Citations omitted; internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638-39, 698 A.2d 258 (1997).
Contrary to the plaintiff's assertions, the defendants do allege ascertainable losses: they allege that as a result of the plaintiff's fraudulent conduct, Quality Design was induced to pay the plaintiff monies, including "excessive interest, late fees, and other expenses," and the plaintiff sought to hold Grano personally liable for Quality Design's debt. Construing the counterclaim in the light most favorable to the defendants, the defendants have alleged sufficient injury to withstand a motion to strike.
CONCLUSION
Therefore, the court denies the plaintiff's motion to strike with respect to both counterclaims because the defendants have alleged sufficient injury for a claim of fraud in the inducement and they have alleged sufficient proximate cause and injury for a CUTPA claim.