Opinion
No. CV 05-4015964.
January 3, 2007.
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AMENDED COUNTERCLAIM
The plaintiff has filed a motion to strike four of the eight counts contained in the defendant's amended counterclaim dated October 9, 2006. Plaintiff moves to strike count one on the basis that it is a count in common-law breach of contract which had been preempted by Article II of the Uniform Commercial Code (U.C.C.) as codified in the Connecticut General Statutes § 42a-1-101, et seq. The plaintiff also moves to strike Count five, a breach of the implied covenant of good faith and fair dealing, which it claims is legally insufficient because the defendant fails to allege "dishonest purpose or sinister motive." The plaintiff also moves to strike count six alleging innocent misrepresentation and count seven alleging negligent misrepresentation because they failed to allege that the defendant "justifiably or reasonably" relied on plaintiff's alleged misrepresentations.
Plaintiff has filed a memorandum of law in support of its motion. The defendant has filed a memorandum of law objecting to the motion and the plaintiff has filed a reply to the defendant's objection.
This case arises out of a contract wherein the plaintiff agreed to custom-build and install a blast freezer for the defendant, Wellington Best Foods, in exchange for a payment of $30,740.00. In count one of the amended counterclaim the defendant asserts that the plaintiff breached "a contract between the parties . . . in that the freezer was not of good, merchantable quality, fit for use as a commercial blast freezer, its door was defective, it was installed in a defective manner and it did not perform in accordance with the representations made by the plaintiff's personnel regarding its capabilities." The plaintiff moves to strike count one on the grounds that: (1) the defendant did not identify the statute on which the pleading is grounded as required by Practice Book Section 10-3; and (2) the defendant has not properly plead the count under Article II of the Uniform Commercial Code, (UCC), as codified in the Connecticut General Statutes § 42a-1-101 through CT Page 229 42a-2-725.
In its brief the plaintiff argues that the defendant has set forth a common law breach of contract claim instead of a claim under the UCC. The plaintiff further asserts that such a claim is insufficient because "[c]ommon law claims are barred if a UCC provision governs the transaction." DSP Software Engineering v. NCT Group, Superior Court, judicial district of Fairfield, docket no. CV 00-0370062 (August 10, 2000, Melville, J.) ( 2000 Ct.Sup. 10536). In Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988) the Connecticut Supreme Court concluded that "Practice Book 109a [is] directory, rather than mandatory." Hence the failure to precisely identify the statute underlying a motion does not invalidate the motion. Id. Moreover, "[a]lthough a proper pleading should set forth a particular [s]tatute upon which the plaintiff relies . . . the failure to do so does not affect the viability of the pleading but may be the proper subject of a request to revise." Burns v. Landers, Superior Court, judicial district of Tolland, docket no. CV 96-61671 (February 16, 1998, Sullivan, J.) ( 21 Conn. L. Rptr. 24). Accordingly, because the defendant's counterclaim is not invalidated by its failure to include the applicable UCC statute, the motion to strike cannot be granted on this ground.
The elements for a common law "breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). Breach of contract actions involving the sale of goods, however, are governed by Article II of the UCC and require the parties to plead and prove additional facts. See Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 270, 439 A.2d 314 (1981). Under the UCC, a buyer that delivered nonconforming goods may "(a) reject the whole; or (b) accept the whole; or (c) accept the commercial unit or units and reject the rest." General Statutes § 42a-2-601. Yet, "[r]ejection of goods must be within a reasonable time after the delivery or tender" and "is ineffective unless the buyer seasonably notifies the seller." General Statutes § 42a-2-602(1). Additionally, "if the buyer has before rejection taken physical possession of goods in which he does not have a security interest . . . he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them." General Statutes § 42a-2-602(2)(b). "[I]f the seller gives no instructions within a reasonable time after notification of rejection, the buyer may store the rejected goods for the seller's account or re-ship them to him." General Statutes § 42a-2-604. In paragraph 8 of count one the defendant asserts that on March 29, 2004, the plaintiff delivered a freezer that did not conform to the specifications of their contract. The defendant also alleges, in paragraph 10, that it "gave Kelly due notice on or about December 2004 that it was . . . rejecting the freezer due to its defective condition and poor performance." In paragraph 11 the defendant further asserts that it held the freezer at its site for five months until Kelly agreed to have it removed. Finally, in paragraph 12, the defendant claims that it paid to have the freezer returned to the plaintiff.
The aforementioned paragraphs of count one of the defendant's counterclaim incorporate the requirements and language of the UCC as codified in General Statute § 42a-2-601 through 42a-2-604. Therefore, the defendant has properly plead an action for breach of contract under the UCC as opposed to the common law. Accordingly, the plaintiff's motion to strike count one is denied.
The plaintiff moves to strike count five on the ground that (1) the amended counterclaim fails to allege any facts that demonstrate a sinister motive or dishonest purpose while the contract was in existence as required under Connecticut law. "[I]t is axiomatic that the . . . duty of good faith and fair dealing is the covenant implied into a contract or a contractual relationship," Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566 (1994) (citations and punctuation omitted). See also 2 Restatement (2d), Contracts Section 205 (1979). The plaintiff maintains that since the alleged misrepresentations of fact to the defendant by the plaintiff were made before the parties executed the contract, the defendants' entire argument is irrelevant and fails as a matter of law because Connecticut's Juris Prudence requires the existence of a contract between the parties before a claim for breach of the implied covenant of good faith and fair dealing arises. The plaintiff quotes Hoskins v. Titan Value Equities Group, 252 Conn. 789, 793, 749 A.2d 1144 (2000). In Hoskins no contract was entered into. In this case, a contract was entered into on the strength of the misrepresentations made by the plaintiff which give rise to a covenant of good faith and fair dealing. In the opinion of this court, for the purposes of determining a motion to strike, "what is necessarily implied in an allegation need not be expressly alleged." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000) (citations and punctuation omitted). It is well-settled law that "pleadings are to be construed broadly and realistically rather than narrowly and technically." Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496 (1994) (citations and punctuation omitted). A broad and realistic reading of the relevant allegations of count five show that Wellington relied on Kelly to provide it with a freezer capable of satisfying its requirements, that Kelly made certain representations regarding the capabilities of the freezer and that it would be fit for use as a commercial blast freezer. In addition, there are also numerous allegations that Kelly's representations about the performance of the freezer were false, untrue, reckless or careless. Misrepresentations or nondisclosure of the type at issue here are precisely the sort which gives rise to a breach of implied covenant of good faith and fair dealing. Scappaticci v. GE Capital Mortgage Service, Inc., 2000 Conn. Super. LEXIS 3319, 3 (Conn.Sup.Ct. Nov. 27, 2000 (Freed, J.)). The motion to strike count five is denied.
The plaintiff moves to strike counts six (innocent misrepresentation) and count seven (negligent misrepresentation) on the ground that they fail to allege sufficient facts that constitute or imply " reasonable reliance." "It is fundamental that in determining the sufficiency of a complaint challenging a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Doe v. Board of Education, 76 Conn.App. 296, 299-300, 819 A.2d 289 (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." Szezapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622 (2000). "[t]he cause of action for negligent misrepresentation lies when (1) defendant had a duty to use reasonable care in giving information; (2) defendant supplied false information; (3) upon which the plaintiff relied; (4) to its damage." Winn v. Ameriquest Mortgage Company, 2006 Conn.Super. LEXIS 1129, 15 (Conn.Super.Ct. 2006) (citations and quotations omitted). ([a] person is subject to liability for an innocent misrepresentation if in a sale, rental or exchange transaction with another, [he or she] makes a representation of material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it . . . even though it is not made fraudulently or negligently." Gibson v. Capano, 241 Conn. 725, 730 (1997) (internal citations omitted). The elements for a cause of action for innocent misrepresentation are similar to those for a claim of negligent misrepresentation and involve "(1) a representation of material fact, (2) made for the purpose of inducing the purchase, (3) the representation is untrue, (4) there is justifiable reliance by the plaintiff on the representation by the defendant, and (5) damages." Matyas v. Minck, 37 Conn.App. 321, 333 (1995) (internal citations omitted). In the opinion of this court it is clear that Wellington has properly pleaded justifiable or reasonable reliance with respect to its negligent and innocent misrepresentation claims. The operative counterclaim clearly states that Wellington relied on Kelly's representations. In addition, the language of the counterclaim necessarily implies that Wellington's reliance was reasonably justifiable. A fair reading of the counterclaim demonstrated that Kelly held itself out as being a merchant who was skilled in the selection, production and sale of custom-built commercial blast freezers and that Wellington relied upon Kelly's purported expertise in the purchase of the freezer. The foregoing allegations are more than sufficient to place Kelly on notice of what Wellington intends to prove. The court rejects the plaintiff's attempt to impose a "hyper-technical pleading" standard on the defendant. See D'Ulisse-Cupo, 202 Conn., at 218 concluding that it is unnecessary for a plaintiff to cite the negligent misrepresentation standard verbatim in order to survive a motion to strike. Accord, Emrick v. Kuhn, 1995 Conn.Super. LEXIS 1953, 16-17 (Conn.Sup.Ct. June 14, 1995 (Handy, J.)). The motions to strike counts six and seven are denied.