Opinion
No. CV-08-5020144
May 20, 2009
MEMORANDUM OF DECISION ON MOTION TO STRIKE ( #113)
The defendant has filed this motion to strike, arguing that despite the rules regarding the ability to plead in the alternative, the plaintiff's complaint is inconsistent because the factual allegations supporting unjust enrichment are the same factual allegations supporting the breach of contract claim. The court agrees and for the following reasons grants the motion to strike count two of the complaint.
The plaintiff's complaint is in two counts, alleging breach of an oral contract and unjust enrichment for electrical work performed at the plaintiff's residence. The second count, alleging unjust enrichment, incorporates all of the paragraphs of the first count by reference.
"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, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
"Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); DeVita v. Esposito, 13 Conn.App. 101, 105, 535 A.2d 364 (1987) (alternative pleading justified when pleader does not know all facts necessary to make election), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988); see also Practice Book § 10-25.
"Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims. See, e.g., Banks Building Co. v. Malanga Family Real Estate Holding, LLC, 92 Conn.App. 394, 395 n. 2, 885 A.2d 204 (2005) (`plaintiff alleged breach of contract and, alternatively, unjust enrichment'); MD Drilling Blasting, Inc. v. MLS Construction, LLC, 96 Conn.App. 798, 804, 902 A.2d 686 (2006) (`while we acknowledge that the plaintiff may not recover more than a single measure of damages, we conclude that the plaintiff was entitled to judgment on the breach of contract and unjust enrichment claims'). Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails. See, e.g., United Coastal Industries v. Clearheart Construction Co., 71 Conn.App. 506, 511, 802 A.2d 901 (2002) (`[c]ounts two and three of the complaint, which seek damages for unjust enrichment and quantum meruit are meant to provide an alternative basis for recovery in the event of a failure to prove the breach of contract claim in count one'); Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986) (`[a]lthough the plaintiffs did not specifically label [the unjust enrichment] count as being in the alternative to the first and second counts, it is clear that it is meant to provide an alternative basis for recovery in the event of a failure of proof under those counts'). The [moving party's] argument that a party may not, as a matter of law, plead an alternative related count for unjust enrichment when that party has a good faith belief that a valid breach of contract cause of action lies, therefore, is without merit." Stein v. Horton, 99 Conn.App. 477, 485-86, 914 A.2d 606 (2007).
"It has been held in several recent Superior Court cases that allegations of [an] 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." Burke v. The Boat-Works, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 044001838 (July 26, 2005, Jennings, J.) (granting motion to strike unjust enrichment claim based upon plaintiff incorporating allegations of breach of express contract between plaintiff and defendant into claim).
By incorporating allegations of the previous counts, the plaintiff alleges in paragraph three of count two that on or about "May 7, 2003 the parties entered into an oral agreement . . . The plaintiff further alleges in paragraph five that "the defendant has failed and/or neglected to pay . . ." Thus, the plaintiff clearly alleges the existence and breach of an express contract in the count seeking unjust enrichment, contrary to the rule that alternative causes of action must be pleaded in separate counts. In short, the plaintiff may plead unjust enrichment in the alternative, but this is not accomplished by incorporating into this count all the allegations of an express contract. Such a complaint does not involve alternative pleading, but involves legally inconsistent pleading.
For all of the foregoing reasons, the motion to strike count two is GRANTED.