Opinion
LLICV186018676S
02-21-2019
Susan SHEEHAN v. SORAGHAN CONSTRUCTION, LLC
UNPUBLISHED OPINION
File Date: February 22, 2019
Bentivegna, J.
I
STATEMENT OF THE CASE
This case concerns a dispute regarding the production and installation of shower doors. The complaint alleges the following claims: Count One— Conversion; Count Two— Statutory Theft; and Count Three— Violation of the Connecticut Unfair Trade Practices Act (CUTPA).
In Count One, the plaintiff alleges the following facts that are incorporated by reference into Count Three. The plaintiff utilized the services of the defendant for renovations and other construction at the plaintiff’s property in Norfolk, Connecticut. The plaintiff desired to purchase shower doors for this property and received a recommendation from her architect to purchase the doors from Mr. Shower Door, Inc. The defendant persuaded the plaintiff to allow the defendant to buy materials from Mr. Shower Door, Inc., but utilized Expert Glass LLC to build the shower doors, which it has in its possession. Although the shower doors are now completed and the plaintiff has paid in full for them, the defendant has failed to and refused to surrender the doors to the plaintiff.
Count Three alleges that the defendant is engaged in trade or commerce in Connecticut within the meaning of CUTPA; the defendant’s conduct in question was done in the course of its trade or commerce; the defendant’s conduct was unfair or deceptive and offends public policy, and it is immoral, unethical, oppressive, or unscrupulous. The plaintiff alleges that the defendant’s conduct has caused substantial injury to the plaintiff, and the plaintiff has suffered and will continue to suffer an ascertainable loss of money and property.
The defendant has moved to strike Count Three based on the plaintiff’s failure to allege facts sufficient to establish the elements of a CUTPA violation. The plaintiff objects to the motion to strike and argues that Count Three sufficiently sets forth factual allegations supporting such a claim. The matter was heard at civil short calendar on February 4, 2019. For the following reasons, the motion to strike Count Three is granted.
II
DISCUSSION
"[W]henever 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. Practice Book § 10-39(a)(1); Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any [pleading] ... to state a claim upon which relief can be granted ... A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ... [The court] take[s] the facts to be those alleged in the [pleading] ... and [it] construe[s] the [pleading] in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied ... A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
General Statute § 42-110b(a) of CUTPA 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." The plaintiff must prove that the defendant engaged in an unfair method of competition or an unfair or deceptive act or practice in the conduct of trade or commerce and that this caused the plaintiff to sustain an ascertainable loss. See Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 197, 117 A.3d 876, cert. denied, 318 Conn. 902, 122 A.3d 631 (2015). "It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (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— 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 businesspersons] ... 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." (Citation omitted; internal quotation marks omitted.) National Waste Associates, LLC v. Scharf, 183 Conn.App. 734, 751, 194 A.3d 1 (2018). "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 ... Whether a practice is unfair and thus violates CUTPA is an issue of fact ... The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." (Citations omitted; internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 714-15, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).
Construing the complaint in the manner most favorable to sustaining its legal sufficiency, the plaintiff’s allegations do not rise to the level of a CUTPA violation. This is a dispute between a contractor and a home owner regarding the production and installation of shower doors. The plaintiff has not pleaded sufficient facts to support her allegation that the defendant’s conduct was unfair or deceptive and offends public policy, and it is immoral, unethical, oppressive, or unscrupulous. Additionally, there are insufficient facts pleaded regarding the plaintiff’s allegations that the defendant’s conduct has caused substantial injury to the plaintiff and the plaintiff has suffered and will continue to suffer an ascertainable loss of money and property. Instead, the plaintiff has pleaded legal conclusions rather than facts, which are not admitted on a motion to strike and, as such, the court cannot consider those allegations in determining the legal sufficiency of the challenged claim. Faulkner v. United Technologies Corp., supra, 240 Conn. 588. Contrary to the plaintiff’s argument, the defendant’s conduct, as alleged, fails to satisfy the cigarette rule. Moreover, the alleged facts seem to give rise to a breach of contract claim rather than a CUTPA claim. See Paulus v. LaSala, 56 Conn.App. 139, 153, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000) ("Even if, as the plaintiffs claim, the defendants breached a contract, such a breach is not sufficient to establish a CUTPA violation"); Calandro v. Allstate Ins. Co., 63 Conn.App. 602, 617, 778 A.2d 212 (2001) (not every misrepresentation rises to level of CUTPA violation).
III
CONCLUSION
For the foregoing reasons, the defendant’s motion to strike Count Three of the complaint is granted.
SO ORDERED