Opinion
No. CV 02 0514286 S
May 12, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The first Count of the active complaint sounds in a breach of contract. The Plaintiffs allege that they are individuals whose residence is located at 96 Sylvan Road, New Britain, Connecticut. The Defendant Champion Mortgage Company, Inc., (hereinafter "Champion") is a banking institution with its principle place of business located at 2 Gatehall Drive Parsippany, New Jersey and doing business in the State of Connecticut. The Defendant Key Bank, N.A., is a banking institution with a principal place of business located at 127 Public Square, Cleveland, Ohio, and owns Champion and on whose behalf Champion was acting in the context of the subject loan.
On December 27, 2000, the Plaintiffs borrowed one hundred and ten thousand dollars ($110,000) from Champion. Said amount was secured by a mortgage on the Plaintiffs' Sylvan Road property.
Around July of 2001, the Plaintiffs approached Champion about refinancing the loan and to increasing the borrowed amount to one hundred thirty thousand dollars ($130,000.00).
A closing was scheduled for August 8, 2001. It is in dispute as to whether the Plaintiffs executed all loan documents necessary for the Defendants to approve the loan.
On August 29, 2001 Champion recorded a new mortgage on the land records for one hundred thirty three thousand dollars ($133,000.00). Although the mortgage was recorded on the land records the Plaintiffs did not receive the funds.
The Plaintiffs subsequently inquired about the status of the funds. They allege that they relied on the representations of Champion concerning the payment of their July mortgage and did not pay the same.
On or about October 2, 2001, the Plaintiffs were given notice that Champion had denied their application for the mortgage.
The Second Count of the Plaintiffs' complaint sounds in fraudulent misrepresentation. This Count incorporates paragraphs one through seventeen of the First Count. The Plaintiffs allege that Champion made representations that it would refinance and increase the loan amount to one hundred thirty three thousand dollars; that the Plaintiffs did not have to pay the July mortgage payment; that the mortgage proceeds had been sent to the Plaintiffs' Lebanon address; that it would lend the Plaintiffs an additional amount of money to allow the Plaintiffs to pay off additional bills. The Plaintiffs further allege that that they relied on Champion's representations and did not pay the July mortgage payment and as a result of the breach of the agreement the Plaintiffs could not pay creditors that they had promised to pay.
The Third Count of the Complaint sounds in bad faith. This Count incorporates paragraphs one through seventeen of the First Count and alleges that Champion acted in bad faith.
The Fourth Count incorporates paragraphs one through seventeen of the First Count and further alleges that the Plaintiffs relied on the expertise of the Defendant Champion's employee and did not pay their July mortgage or other credit obligations.
The Fifth Count sounds in a violation of the Connecticut Unfair Trade Practices Act (Hereinafter "CUTPA"). This Count incorporates paragraphs one through seventeen of the First Count. The Plaintiffs assert that the Defendant Champion violated CUTPA by: making false and fraudulent misrepresentations concerning the refinance of the Plaintiffs' mortgage; making false and fraudulent misrepresentations that the loan had closed and the Plaintiffs would be receiving their money; making false and fraudulent misrepresentations that the loan proceeds had been sent to the Plaintiffs' prior residence; making false and fraudulent misrepresentations or excuses concerning the whereabouts of the Plaintiffs' funds though the refinance; making false and fraudulent misrepresentations that they would refinance the loan and to not pay the July mortgage or other creditors; by recording the refinanced mortgage on the Plaintiffs' property and encumbering the same when it had no intention of advancing the funds; by threatening to commence a foreclosure action; and by instructing the Plaintiffs insurance company to terminate insurance on the property which was required on the first mortgage and telling said insurance company that the mortgage had been paid off.
The Sixth Count incorporates a portion of the Second Count and further alleges that the Defendant was careless and negligent in making the representations.
The Seventh Count incorporates paragraphs one though seventeen of the First Count and alleges that the Defendant Champion's misrepresentations were carelessly and negligently made.
The remaining Counts reallege the allegations of previous Counts and applies them to the Defendant Integrated Loan Services Incorporated.
On September 26, 2003 the Defendant Champion Mortgage Incorporated and Key Bank USA, N.A., moved for summary judgment for reason that "the plaintiffs, Christopher Rowe and Christine Rowe, fail to state any claim for which relief can be granted, the Defendants did not breach any duty owed to the Plaintiffs', the Defendants did not breach the valid contract agreed to by the Plaintiffs, the Plaintiffs' CUTPA violation fails to meet the required elements of such a claim, and the Plaintiffs have failed to allege that they have suffered any damages as a result of the Defendants' conduct."
DISCUSSION
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the Plaintiffs' motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted:
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, supra, 252 Conn. 201; Serrano v. Burns, 248 Conn. 419, 424 (1999); Connell v. Colwell, 214 Conn. 242, 246-47 (1990). In Connecticut, a directed verdict may be rendered only if, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969); Vuono v. Eldred, 155 Conn. 704, 705 (1967).
Armetta v. Wheelabrator Technologies, judicial district of Waterbury, at Waterbury D.N. X01-CV 98-0154590 (June 27, 2001, Hodgson, J.).
This Court will address the issues in the order that they were raised by the moving party.
The Plaintiffs' Claims Sound in Breach of Contract Rather Than Tort.
The Defendants in the instant action assert that the dispute between the parties arises from a purely contractual relationship. The Defendants further assert that the Plaintiffs have not alleged that the Defendants breached any duty imposed by law (as opposed to that imposed by contract) as is required to make out an independent tort claim.
The Defendants assert and this Court agrees that the Plaintiffs have not alleged a special relationship between themselves and the Defendants and therefore no fiduciary relationship existed between the parties. ". . . [A]s a general proposition, creditor-debtor relationships rarely give rise to a fiduciary duty "inasmuch as their respective positions are essentially adversarial." Globe Motor Car Co. v. First Fidelity Bank, 273 N.J.Super. 388, 393, 641 A.2d 1136 (Law Div. 1993), aff'd, 291 N.J.Super. 428, 677 A.2d 794 (App.Div.), cert. denied 147 N.J. 263, 686 A.2d 764 (1996).
"Generally there exists no fiduciary relationship merely by virtue of a [debtor] [creditor] relationship between a bank and its customer." Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 19, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).
In their objection to the Motion for Summary Judgment the plaintiffs assert that they "have adequately pled tort liability." We have, on occasion, looked beyond the specific language of a pleading to discern its real underlying basis. See, e.g., Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000) ("[the defendant] cannot . . . convert its apportionment claim against [the third party defendant] into something other than a product liability claim simply by alleging only negligent misconduct"). In our view, this is an appropriate case in which to pierce the pleading veil. Thus, in the present case, we look beyond the language used in the complaint to determine what the plaintiff really seeks. Just as "[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender"; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); putting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. "[W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading." W. Prosser, Torts (3d Ed. 1964) § 94, pp. 642-43. It is clear that the gravamen of the plaintiff's third party beneficiary contract theory is in reality a tort arising out of a contract." It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise." Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 410, 207 A.2d 732 (1965); see also Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) ("[t]he argument that contract rights . . . may yet give rise to liability in tort . . . is not a novel one").
Gazo v. Stamford, 255 Conn. 245, 263-64 (2001).
In the current situation, although the Plaintiffs allege that they are bringing portions of this action in tort, in actuality this is a contract action.
This is not a tort action. It is based on a contract . . . which creates rights in both parties by agreement. To draw this distinction does not exalt form over substance. It would be grossly inequitable to permit the plaintiff[s] to ignore the [defendants'] rights under the contract while seeking to vindicate [their] own. To do so would render the [defendants'] contract right illusory.
Gifford v. Conn. Life Casualty Ins. Co., judicial district of New Haven at New Haven, D.N. CV02-0470859 (Feb. 22, 2006, Licari, J.).
Summary Judgment is granted as to Counts Four and Seven.
The Plaintiffs' Breach of Contract Claim Fails as a Matter of Law and Should be Dismissed
Simply put, the Defendants assert that the Plaintiffs' breach of contract claim fails for reason that they exercised their right not to fund the mortgage that is the subject of this action. The Defendants further assert that "even if Champion orally informed the Rowes — which it did not — that they did not need to provide the repeatedly requested documents, the parties' contracts prevented any such alleged modification. Accordingly, the total integration clause causes the Rowe's claim for breach of contract to fail as a matter of law." (Citation omitted.) (See Memorandum in Support of Motion for Summary Judgment at page 16.)
The Plaintiffs on the other hand assert that "the Defendants are unable to produce a comprehensive list of exactly what documents are missing, In fact, the exact documents that were missing is so mysterious, that the Defendants' employees fully believed that there were no missing documents. (See exhibit 1 pp. 137-38.)
The Court has reviewed the deposition testimony cited by the Plaintiffs and notes that the cited testimony does not expressly speak of documentation at all, let alone indicate that "the Defendants' employees could not tell what was missing." Instead, the deponent talks about how he believed that the "closing was done, and [they] weren't receiving [their] payoff." See Deposition at page 137. The deponent further states that he was informed by the Defendants' employees that payment was sent.
The Court notes that although the Defendants provided this Court with exhibits containing the documentation that they assert was a part of the subject transaction, no affidavits or other similar evidence was submitted concerning the issue of whether all of the necessary documentation was submitted by the Plaintiffs.
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005).
Viewing the evidence in the light most favorable to the Plaintiffs, this Court finds that the moving party has failed to met its burden of proof to show the absence of any genuine issue of material fact as to whether the Plaintiffs performed all that was required of them to obtain a mortgage from the Defendants. Furthermore, the Defendants have failed to meet their burden of proof to show that a trier of fact could not reasonably reach any other conclusion then that asserted by them. The Motion for Summary Judgment is denied as to the First Count.
The Plaintiffs Breach of the Covenant of Good Faith and Fair Dealing Claim Fails as a Matter of Law and Should be Dismissed
As was previously stated herein, the Third Count of the Complaint sounds in "bad faith."
As our Supreme Court stated in Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 880 A.2d 106 (2005), a claim brought pursuant to a contract, alleging a breach of the implied covenant of good faith and fair dealing, sounds in contract because "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement . . . To constitute a breach of [that duty], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Citation omitted; internal quotation marks omitted.)
Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 611 (2006).
[B]ad faith is defined as the opposite of good faith, generally implying a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . . [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . it contemplates a state of mind affirmatively operating with furtive design or ill will. (Internal quotation marks omitted.)
Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987).
In Connecticut, "[t]he implied covenant of good faith and fair dealing has been applied . . . in a variety of contractual relationships . . ." Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984). "The claim has also been allowed in a lender-borrower relationship." Morrissey v. Connecticut National Bank, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 506035 (February 23, 1993, Hennessey J.); see also Economic Development Associates v. Cititrust, Superior Court, judicial district of Litchfield at Litchfield, Docket No. 052665 (March 27, 1991, Dranginis, J.) ( 3 Conn. L. Rptr. 403); Sorvillo v. Strother, Superior Court, judicial district of New London at New London, Docket No. 501400 (October 1, 1987, Leuba, J.) ( 2 C.S.C.R. 1095).
Cornerstone Bank v. Oak Street Center, Inc., Superior Court judicial district of Stamford-Norwalk, at Stamford, Docket No. CV99 0169832 (Jan. 8, 2001, Hickey, JTR).
The moving Defendant asserts that it had "the express right not to fund the loan if information was not verified or documents not provided. Thus, Champions['] failure to fund — which is provided for in the contracts — cannot be the basis for a breach of the covenant of good faith and fair dealing claim." (See Memorandum in Support of Motion for Summary Judgment at Page 20.)
It is undisputed that Champion informed the Plaintiffs that they needed to furnish Champion, a subordination agreement; a notarized letter from a private mortgage holder stating the loan balance and a statement that payment was not required until the property was sold; the divorce decree, including the property settlement and the amount for alimony or child support paid or received; 1999 and 2000 W-2 Forms; proof of receipt of child support and proof that it would continue for at least three years; and a payoff letter from the existing mortgage stating the next mortgage payment due date and the amount to satisfy the loan, including interest. However as was stated above, the issue of whether or not all of the required documentation was submitted is hotly contested by the parties. In fact the Plaintiffs allege that the Defendants presented them with a moving target when it came to the documents that were required to obtain the subject financing. These facts combined with the fact that there is a genuine issue of material fact concerning the Plaintiffs' allegations that they performed all of their obligations pursuant to the contract but were still not given the financing obligate this Court to deny the motion for summary judgment as to this Count.
The Plaintiffs' CUTPA Claim Fails as a Matter of Law CT Page 8924
Section 42-110b of the Connecticut General Statutes is Connecticut's Unfair Trade Practices Act. Subsection 42-110b(a) 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."
". . . In determining whether certain acts constitute a violation of this act, we have adopted the criteria set out in the cigarette rule by the federal trade commission . . . (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other business persons]." (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992). (Footnote omitted.)
Glazer v. Dress Barn, Inc., 274 Conn. 33, 82 (2005).
It is now settled law in this State that some aspects of the banking industry may come within the sphere of CUTPA. Normand Josef Enterprises v. Connecticut National Bank, 230 Conn. 486, 521, 464 A.2d 1289 (1994).
The moving Defendant argues that the Plaintiffs' CUTPA claim fails as a matter of law for reason that the Plaintiffs do not allege any independent duty owed by the Defendants aside from the obligations in the underlying contract. The movant further argues that the Plaintiff's claims "do not rise to the requisite level of rascality." See memorandum in support at page 22.
The Plaintiffs assert that the Defendant engaged in a course of conduct called "equity skimming." Equity skimming is the practice of loaning homeowners money when the loan is not based on the borrower's ability to repay it, but on the amount of equity in the home. The lender's primary purpose in lending the money is to skim off the equity by giving the borrower a loan which he or she would at best have great difficulty in repaying. The borrower eventually defaults on the loan and the lender then forecloses and reaps a large profit. See Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 123 (1992).
The Plaintiff's assertion that the lender is foreclosing on a mortgage to get access to the equity in their home in an equity skimming scheme is somewhat confusing in light of the fact that they are alleging in their Complaint that the Defendants breached their contract by refusing to complete the subject transaction and put the Plaintiffs in a situation where they could allegedly skim even more of the equity. It is even more confusing when the language of their memorandum in support of the objection to the motion for summary judgment is taken into account. The Plaintiffs assert in the memorandum that "[t]his is an equity skimming case because the Defendants agreed to lend additional money to `sub prime' borrowers without any intention of ever giving them any additional money."
The Plaintiffs have also alleged that the Defendants have violated CUTPA by:
a. making false and fraudulent misrepresentations concerning the refinance of the Plaintiffs' mortgage.
b. making false and fraudulent misrepresentations that the loan had, in fact, closed and the Plaintiffs would be receiving their money;
c. by making false and fraudulent misrepresentations that the loan proceeds had, in fact, been sent to the Plaintiff's prior residence.
d. by making false and fraudulent misrepresentations or excuses concerning the whereabouts of the Plaintiffs' funds through the refinance;
e. by making false and fraudulent misrepresentations that they would, in fact, refinance the loan and not to pay the July mortgage payment or other creditors;
f. by making false and fraudulent misrepresentations that they could close this loan in such a short period of time so that the Plaintiffs' other creditors would be paid within the normal billing cycling;
g. by recording the refinanced mortgage on the Plaintiffs' property and encumbering the same when it had no intention or advancing the funds;
h. by threatening to commence a foreclosure action pursuant to the demand letter that is attached hereto as Exhibit C; and
i. by instructing the Plaintiffs' Insurance Company to terminate the Insurance on the property which is required under the first mortgage and telling the insurance company that the loan had, in fact, been paid off and to cancel the same . . .
The Defendants have failed to meet their burden of proof to show that there are not any genuine issues of material fact as to the aforementioned issues.
The Defendants also argue that the Plaintiffs cannot maintain a CUTPA claim because they failed to plead a pattern of previously deceptive actions and that the allegations as alleged by the Plaintiffs are of an isolated nature. However it is now settled law that a CUTPA violation may arise from a single act:
This court recently addressed the issue of whether a defendant's" single act" of misconduct may constitute a violation of CUTPA. In Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002), the plaintiff subcontractor brought an action against the defendant general contractor, alleging that the defendant had violated CUTPA when it failed to award the plaintiff a subcontract for electrical work on a school project, despite the fact that the defendant, who had been required to "name" its subcontractors on the bid, had named the plaintiff as the subcontractor for the electrical work. Id. "The trial court held that, because the plaintiff did not prove that the defendant had engaged in a repeated course of misconduct, the plaintiff did not establish that the defendant violated CUTPA." Id., 349. This court reversed the judgment of the trial court and concluded that "the trial court improperly declined relief to the plaintiff on the ground that it had alleged and proven only a single act of misconduct." Id., 353. In so doing, we made it clear that a single act of misconduct may constitute a violation of CUTPA.
Hart v. Carruthers, 77 Conn.App. 610, 619 (2003).
The Plaintiffs' Claims Must Fail Because No Causal Nexus Exists Between the Plaintiffs' Claims and Alleged Damages.
A review of the Complaint shows that the Plaintiffs have made the following allegations concerning damages:
Paragraph 15 of the First Count of the Second Revised Complaint (Breach of Contract) provides that:
The Plaintiffs' (sic) relying upon the representations of the Defendant's (sic) did not pay the July mortgage to Champion Mortgage.
Paragraph 19 Second Count of the Second Revised Complaint (Fraudulent Misrepresentation) provides that:
Relying upon the various representations contained herein of the Defendant Champion Mortgage, the Plaintiffs' (sic) did not pay the July mortgage payment to Champion, and after the breach of the agreement to refinance the Plaintiffs' (sic) could not pay the creditors that they had promised to pay through the proceeds of the refinance.
Paragraph 21 of the same Count provides that:
The Plaintiffs' (sic) have sustained substantial economic damage including, but not limited to, the necessity to retain an attorney to defend the threat of foreclosure by Champion Mortgage on its first mortgage and damage to their credit rating.
Paragraph 20 of the Fourth Count (Breach of Fiduciary Duty) provides that:
The Court notes that it has granted summary judgment as to this Count.
As a direct and approximate result of the breach of fiduciary duty, the Plaintiffs' (sic) have and will sustain damages including, the payment of attorneys fees to defend the foreclosure of (sic) action brought by the Defendant's (sic) herein, and damage to their credit rating.
Paragraph 18 of the Fifth Count (Unfair Trade Practices) provides that:
The Plaintiffs' (sic) have sustained ascertainable loss and damage.
Paragraph 23 of the Sixth Count (Negligent Misrepresentations) provides that:
As a direct and approximate result of the negligent misrepresentation the Plaintiffs' (sic) have suffered substantial economic damages including, but not limited to, necessity to retain an attorney to defend the threat of foreclosure and damage to their credit rating.
Paragraph 19 of the Seventh Count (Negligence) provides that:
As a direct and approximate result of the Defendant's (sic) carelessness and negligence the Plaintiffs' (sic) have and will sustain substantial damages including, but not limited to, necessity to retain an attorney to defend the threat of foreclosure and damage to their credit rating.
The Defendants assert that the damages claimed by the Plaintiffs were wholly of their own making and that there is no causal connection between the Plaintiffs' claimed damages and the Defendants' actions. The Defendants specifically assert that the Plaintiffs' legal counsel instructed them not to make mortgage payments. The Plaintiffs respond that the Defendants told them not to pay their First Mortgage payments that were due in July and August of 2001.
Christopher Rowe's August 7, 2003 deposition at page 134.
Although the Plaintiffs have not submitted any credible evidence by affidavit or otherwise in support of their objection to the motion for summary judgment on the issue of money damages that were directly and causally related to the alleged actions of the Defendants, upon completing its review of the complaint, the Motion for Summary Judgment and the Objection thereto, this Court has come to the conclusion that what the Defendants are actually raising are issues concerning the legal sufficiency of the complaint. Although issues of the legal sufficiency of a complaint are usually raised in a Motion to Strike, it is now settled law in this State that a Motion for Summary Judgment may be used to challenge the legal sufficiency of a complaint.
Our case law addressing the question of whether a motion for summary judgment may be used instead of a motion to strike to challenge the legal sufficiency of a complaint and, if so, under what circumstances, requires some clarification. In Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-09, 279 A.2d 540 (1971), this court suggested that, in light of the similarities between the procedures, the use of a motion for summary judgment for such a purpose is proper. See also Pane v. Danbury, 267 Conn. 669, 674 n. 7, 841 A.2d 684 (2004) (allowing use of motion for summary judgment to challenge legal sufficiency of complaint when plaintiff did not raise objection in trial court); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n. 17, 699 A.2d 964 (1997) (treating motion for summary judgment as motion to strike); Hossan v. Hudiakoff, 178 Conn. 381, 382 n. 1, 423 A.2d 108 (1979) (court declined to consider whether use of motion for summary judgment instead of motion to strike was procedurally proper when motion to strike properly would have been granted); Gaudino v. East Hartford, 87 Conn.App. 353, 357-58, 865 A.2d 470 (2005) (motion for summary judgment may be used to challenge legal sufficiency of complaint); but see Burke v. Avitabile, 32 Conn.App. 765, 772, 630 A.2d 624 (purpose of motion for summary judgment is not to test legal sufficiency of complaint but to test for presence of contested factual issues), cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). We also have recognized, however, that the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because "[t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, supra, 674 n. 7, quoting Rivera v. Double A Transportation, Inc., 248 Conn. 21, 38 n. 3, 727 A.2d 204 (1999) (Berdon, J., dissenting); cf. Kroll v. Steere, 60 Conn.App. 376, 384 n. 6, 759 A.2d 541 (motion for summary judgment may be treated as motion to strike when plaintiff did not claim that she should have been allowed to replead), cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).
Larobina v. McDonald, 274 Conn. 394, 400 (2005).
Although the Supreme Court has determined that a Motion for Summary Judgment may be used to challenge the legal sufficiency of a complaint, such challenges are not without limitation.
. . . [W]e conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading. See Boucher Agency, Inc. v. Zimmer, supra, 160 Conn. 410. If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed. See Practice Book § 10-7 (filing of answer constitutes waiver of right to file motion to strike complaint). "It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint . . . Thus, failure by the defendants to demur to any portion of the . . . complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment [in favor of the defendants was] warranted." (Citation omitted; internal quotation marks omitted.) Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). Moreover, this court repeatedly "has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried." Fernandez v. Estate of Ayers, 56 Conn.App. 332, 334-35, 742 A.2d 836 (2000) (citing cases).
Larobina v. McDonald, Supra at 401-01.
As was previously stated herein, upon completing its review of the claims this Court finds that it is clear on the face of the complaint that the damages claims, with the exception of the Count alleging a CUTPA violation are legally insufficient for reason that the damages as alleged are not directly and causally related to the actions of the Defendants. However, the Court does not find that this is a situation wherein the Defendants can establish that the defect could not be cured by repleading. The Defendants' Motion for Summary Judgment on this ground is therefore denied.
As to the damages allegations and the Count sounding in CUTPA, it is settled law in this State that "[A] court may award punitive damages under § 42-110g(a) for a violation of CUTPA even when the plaintiff has failed to show any actual damages flowing from that violation." Tillquist v. Ford Motor Credit Co., 714 F.Sup. 607, 617 (D. Conn. 1989).
"In evaluating a CUTPA claim, the court must determine whether the plaintiff has suffered an "ascertainable loss." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J., September 30, 1993) ( 1993 Ct.Sup. 8193, 8206). "The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking actual damages or equitable relief . . . 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 . . . One seeking actual damages in excess of purely nominal damages must prove the amount of those actual damages . . . The award of nominal damages under CUTPA opens the door to other important remedies . . . Under CUTPA a plaintiff is entitled to have the court consider awarding both punitive damages and attorneys fees . . ." (Citations omitted; internal quotation marks omitted.)
Costin v. Collins, Superior Court, judicial district of New Haven, Docket No. CV-93-0370818 (Downey, J., March 27, 1998).
Conclusion
For all the of the foregoing reasons, summary judgment is granted as to Counts Two, Four, Six, Seven, Nine and Ten. Summary judgment is denied as to Counts One, Three, Four and Eight. So ordered.