Opinion
No. CV07 5009490
May 22, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101
The defendants, Leslie Richmond and Melissa Richmond have filed a motion to strike dated January 18, 2008. The pro se plaintiffs are Ruben Martinez and Raymond Janisch. The grounds stated for the motion to strike are: (1) nonjoinder of a necessary party; (2) legal insufficiency of the allegations to state a claim under the Connecticut Home Improvement Act, General Statutes § 20-429; and (3) legal insufficiency of the stated prayers for relief. The pro se plaintiffs' complaint is comprised of seven counts claiming: (1) breach of contract; (2) quantum meruit; (3) "false pretenses/fraud"; (4) "deceit and fraud upon the court"; (5) "misfeasance and willful and intentional breach of contract-tortious and wrongful termination"; (6) violation of Connecticut Unfair Trade Practices Act; and (7) "interference of contract-tortious and wrongful disruption of relations with subcontractor." In their prayer for relief, the plaintiffs "demand a judgment against the defendants in the amount of $120,000 . . . plus interest, costs, legal fees and legal expenses." The plaintiffs also "ask the court to place an attachment against the defendants' property . . ."
In moving to strike, the defendants argue that they entered into a contract with Three Amigos Engineering Builders, LLP ("Three Amigos") for the renovation of their home. They dealt and negotiated with the plaintiffs in the plaintiffs' capacities as agents or employees of Three Amigos and not in their individual capacities. The defendants also argue that subsequent to the execution of the aforesaid document, they learned that Three Amigos was not a registered home improvement contractor in Connecticut. Finally, the defendants state that the document signed by the parties is not in compliance with the Connecticut Home Improvement Act, General Statutes § 20-429, et seq. In that it did not contain a notification of the defendants' right to cancel.
"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). In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n 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).
Ordinarily, noncompliance with the Home Improvement Act should be pleaded as a special defense by a homeowner being sued on a home improvement contract. See Sidney v. DeVries, 18 Conn.App. 581, 586-87, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990); K Builders Remodelers, Inc. v. Curioso, Superior Court, judicial district of New London, Docket No. 559213 (April 18, 2002, Martin, J.) (denying motion to strike based on noncompliance with Home Improvement Act because it was not clear from complaint whether the act applied).
Nevertheless, "a motion to strike may be proper where the allegations of the complaint show dispositively that a case is governed by the [Home Improvement] Act and that the Act's provisions have not been met . . ." Mill Wan Mechanical Contractors v. Elliott, Superior Court, judicial district of Hartford, Docket No. 375971 (January 30, 1992, Hennessey J.), citing Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 572, A.2d 149 (1990). See also Parvin Group, LLC v. Barry, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 06-50030 16 S (Jun. 4, 2007, Hiller, J.) (granting motion to strike based on a contract copy attached to the complaint for improvements to a residence where contract didn't contain a cancellation notice required by § 20-429(a)); Chiulli v. Zola, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0194728 (August 4, 2004, Lewis, J.T.R.) (granting defendant homeowner's motion to strike because complaint had alleged contract was oral, thus not complying with the Home Improvement Act), rev'd on other grounds, 97 Conn.App. 699, 905 A.2d 1236 (2006); Skovron v. Belgrail Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 900108653 (May 8, 1991, Ryan, J.) (17 Conn. L. Rptr. 22) (same; additionally noting that allegations that contract was to provide "landscaping material and services" to defendant homeowner made it clear that contract fell within Home Improvement Act).
Count One Breach of Contract
A fair reading of the plaintiffs' complaint reveals that the defendants reside at 550 Morehouse Road in Easton, Connecticut. In April 2006, the plaintiffs and the defendants entered into a "contract" for a total price of approximately $275,800, whereby the plaintiffs agreed to supply labor and materials necessary to provide demolition and building services at said property. Subsequently during November 2006, and again in December 2006, the plaintiffs claim the defendants repudiated the contract. The plaintiffs claim that they had completed approximately 75% of the total work at a cost of "at least" $300,000, of which the approximate sum of $180,000 was paid by the defendants. The plaintiffs claim that the defendants by their actions have breached the contract between the parties.
General Statutes § 20-429(a) provides:
No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner's cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of the contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.
The plain language of General Statutes 20-429(a) invalidates any home improvement contract in which the cancellation notice required by General Statutes § 42-135a is not included.
Sec. 42-135a. regarding notice of right to cancel reads in relevant parts as follows:
No agreement in a home solicitation sale shall be effective against the buyer if it is not signed and dated by the buyer or if the seller shall:
(1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form:
YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
(2) Fail to furnish each buyer, at the time such buyer signs the home solicitation sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned "NOTICE OF CANCELLATION," which shall be attached to the contract or receipt and easily detachable, and which shall contain in ten-point boldface type the following information and statements in the same language as that used in the contract:
NOTICE OF CANCELLATION
___________________(Date of Transaction)
YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM TUE ABOVE DATE.
IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED . . .
(3) Fail, before furnishing copies of the "Notice of Cancellation" to the buyer, to complete both copies by entering the name of the seller, the address of the seller's place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation.
(4) Include in any home solicitation sale contract or receipt any confession of judgment or any waiver of any of the rights to which the buyer is entitled under this chapter, including specifically such buyer's right to cancel the sale in accordance with the provisions of this section.
(5) Fail to inform each buyer, orally, at the time such buyer signs the contract or purchases the goods or services, of such buyer's right to cancel.
(6) Misrepresent in any manner the buyer's right to cancel . . .
The plaintiffs did not attach a copy of the contract to its complaint and nor did they submit a copy to the court. The copy of the contract in the court's possession comes from the defendants who attached the copy to their motion to strike. While the court is cognizant that the contract copy submitted by the defendants reveals that no cancellation notice is included in the contract, the court cannot consider it when determining the merits of the motion to strike. "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., supra, 240 Conn. 580. In viewing the complaint broadly and in a light most favorable to the plaintiffs, the plaintiffs have sufficiently pleaded a cause of action for breach of contract. Whether or not the contract executed by the parties complies with the requirements of General Statutes 20-429(a) regarding the lack of a notice of the right to cancel is more properly addressed through the use of a special defense and/or a motion for summary judgment.
The defendants also argue that the plaintiffs lack standing to bring this action, as the subject contract was between Three Amigos Engineering Builders, LLP. and the defendants. "Standing is the legal right to set judicial machinery in motion . . . and implicates this court's subject matter jurisdiction . . . A party cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Citations omitted; internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004); Payne v. TK Auto Wholesalers, 98 Conn.App. 533, 537-38 (2006). "The question of standing does not involve an inquiry into the merits of the case . . . It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by [a] statute or common law." (Internal quotation marks omitted.) McGinty v. McGinty, 66 Conn.App. 35, 38, 783 A.2d 1170 (2001).
The named plaintiffs are Ruben Martinez and Raymond Janisch. The complaint states that Martinez and Janisch were "doing business as a legally registered business and partnership," and that the "plaintiffs and defendants entered into a contract . . ." Once again in ruling on the motion to strike the court is limited to the allegations in the complaint. The complaint never mentions "Three Amigos Engineering Builders, LLP.," and once again, the plaintiffs have not attached a copy of the contract to the complaint. It is the defendants who submitted the contract copy to the court. The court will not consider the contract copy for the purposes of the motion to strike.
The question of standing and the lack thereon as noted, implicates the court's subject matter jurisdiction. "The issue of subject matter jurisdiction can be raised at any time . . ." (Internal quotation marks omitted.) Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992). "[O]nce the question of lack of jurisdiction of a court is raised . . . the court must fully resolve it before proceeding further with the case . . ." (Internal quotation marks omitted.) Figueroa v. CS Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). When a lack of subject matter jurisdiction is called to the court's attention the court may act on its own motion and should do so. Woodmont Association v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912).The question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at anytime. See Daly v. DelPonte, 27 Conn.App. 495, 608 A.2d 93, cert. denied, 223 Conn. 903, 610 A.2d 177 (1992); Planning Zoning Commission v. Gaal, 9 Conn.App. 538, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987).
However, for the court to raise the subject of subject matter jurisdiction sua sponte it would need to be apparent on the face of the record before the court. Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). Again, as the contract copy was submitted by the defendants and not the plaintiffs, the court feels it would be improper to consider the contract terms, as the court is limited to reviewing the pleadings when ruling on the motion to strike. Subject matter jurisdiction is more properly contested by the use of a motion to dismiss. "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . ." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
Count Two Quantum Meruit
The plaintiff's second count is a claim sounding in quantum meruit. "The Home Improvement Act was enacted in 1979; see Public Acts 1979, No. 79-606; not only to protect homeowners from substandard work but also to ensure that homeowners are able to make an informed choice on a decision that has potentially significant financial consequences." Accordingly, § 20-429(a)(6) expressly invalidates and declares unenforceable a home improvement contract that does not give a homeowner written "notice of the owner's cancellation rights in accordance with the provisions of [the Home Solicitation Sales Act, General Statutes § 42-134 et seq.] . . ." (Internal citations omitted) (internal quotation marks omitted) New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 658-59, 927 A.2d 333 (2007); General Statutes § 20-429(a)(6). "[I]n the absence of a showing of bad faith on the part of the homeowner, a contractor who does not comply substantially with § 20-429(a) is barred from any monetary recovery, contractual or restitutionary." Id.
Subsection (f) was added to General Statutes § 20-429 in recognition that strict enforcement of the Home Improvement Act sometimes leads to harsh results. See Public Acts 1993, No. 93-215, § 1 ( P.A. 93-215). The new subsection (1) affords access to equitable relief for home improvement contractors who meet some, but not all of the requirements stated in the remainder of the statute. See P.A. 93-215; New England Custom Concrete, LLC v. Carbone, supra, 102 Conn.App. 659; see also Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006) ("[s]ubsection [f] of § 20-429 allows quantum meruit recovery in certain cases of noncompliance with subsection [a]"). Subsection (f) provides: "Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery." General Statutes § 20-429(f). "[E]ven as amended, § 20-429 does not provide restitutionary relief for a contractor who . . . seeks enforcement of a home improvement contract that does not contain . . . a proper notice of cancellation." New England Custom Concrete, LLC v. Carbone, supra, 102 Conn.App. 659.
Once again, the court faces the situation where its ruling on a motion to strike is limited to a review of the allegations in the second count of the complaint. For the reasons stated earlier herein, the court will not review the contract copy offered by the defendants, even though it may conclusively show that the contract lacked the statutory requirements regarding a notice to cancel, and thereby be dispositive of the plaintiffs' claims regarding quantum meruit. The motion to strike Count Two is denied.
Count Three False Pretenses/Fraud
The plaintiffs' claims regarding false pretenses and/or fraud revolve around claims of non-payment by the defendants and the defendants' alleged knowledge that they were contracting with the individual plaintiffs rather than with "Three Amigos."
"Fraud consists [of] deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal." Miller v. Guimaraes, 78 Conn.App. 760, 780-81, 829 A.2d 422 (2003); Giulietti v. Giulietti, 65 Conn.App. 813, 836, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). "The determination of what acts constitute fraud is a question of fact . . ." Id.
Again, the defendants' allegations that the contract did not contain a right to cancel may be dispositive of the plaintiffs' claims regarding non-payment by the defendants. Whether the plaintiffs and the Three Amigos limited partnership were registered as home improvement contractors with the State of Connecticut may also be dispositive. However, the court is limited to a review of the pleadings for the reasons already stated. Any review of the alleged contract will occur in the future. The complaint contains sufficient allegations of fraud to survive a motion to strike. The determination of whether the acts complained of constitute fraud is a question of fact. Miller v. Guimaraes, supra, 78 Conn.App. 780-81. The motion to strike Count Thee is denied.
Count Four Deceit and Fraud Upon the Court
The court does not recognize the legal theory being advanced by the plaintiffs in count four other than the fact that the plaintiffs are repeating certain allegations already contained in previous counts. Count Four is ordered stricken.
Count Five Misfeasance and Willful and Intentional Breach of Contract
Count One already alleges a breach of contract. Adding the words "willful and intentional" adds nothing to the plaintiffs' action and is only an attempt to "spice-up" what amounts to a breach of contract action. Count Five is nothing more than repetition. Count Five is ordered stricken.
Count Six CUTPA
The plaintiffs allege that the defendants have violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., in that the defendants "engaged in a calculated pattern to avoid paying for materials and services which they had knowingly authorized." General Statutes § 42-110g states in relevant parts:
(a) 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 in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section.
This court turns to the issue of whether or not a purportedly unfair or deceptive act was undertaken in the conduct of trade or commerce as required by the provisions of CUTPA. General Statutes § 42-110b provides that "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 42-110a(4) defines "trade or commerce" as "the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state."
The plaintiffs have not alleged that the defendants were engaging in any trade or commerce. Additionally, the plaintiffs provide no legal authority in support of their argument that the conduct alleged herein constitutes trade or commerce within the meaning of the act. The purpose of CUTPA is to "protect the public from unfair practices in the conduct of any trade or commerce . . ." Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). In the present case, the complaint makes no allegation that the defendants are anything but residential property owners who contracted with the plaintiffs for repairs and improvements to their homes. Reading the complaint in a light most favorable to the plaintiffs, the court can not find that the defendants' relationship with the plaintiffs constituted the defendants' primary business. See Dickson v. Tomatore, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV07 5012580 (May 5, 2008, Frankel, J.); see also, Cornerstone Realty, Inc. v. Dresser Rand Co., 993 F.Sup. 107, 113 (D.Conn. 1998) (sale of contaminated property was not defendant's primary business); Brandewiede v. Emery Worldwide, 890 F.Sup. 79, 81 (D.Conn. 1994) (leasing aircraft was merely incidental to primary business of overnight freight delivery); Marten Transport Ltd. v. MacDermid, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0160172 (March 26, 2001) (29 Conn. L. Rptr. 433); NY-CONN Corp. v. Southbury Diagnostic Imaging Center, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 99015863, (October 24, 2000) (28 Conn. L. Rptr. 521). Count Six alleging a violation of CUTPA is ordered stricken.
Claims for Relief
The plaintiffs claim judgment in the amount of $120,000 and request that the court "place an attachment against the defendants' property." These are clearly improper claims for relief and are hereby ordered stricken. See Practice Book § 10-20; see also, General Statutes § 52-91.
Sec. 10-20. Contents of Complaint
The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52-91.
Sec. 52-91 reads as follows:
There shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.
Orders
The motion to strike is denied as the Counts One, Two and Three. The motion to strike is granted as to Counts Four, Five and Six.