Opinion
No. CV 06-5006389
June 22, 2007
MEMORANDUM OF DECISION
FACTS
On December 1, 2006, the plaintiff, Loris Thompson, filed an amended six-count complaint against the defendant, Home Depot U.S.A., Inc. The six counts are as follows: count one, breach of contract; count two, negligence; count three, fraud; count four, conversion; count five, a violation of the Home Improvement Act (HIA), General Statutes § 20-418 et seq.; and count six, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff alleges, inter alia, that the defendant failed to install new cabinetry that she purchased; tried to install cabinets and a microwave, both of which she did not purchase; and, for over six months, left the plaintiff with no kitchen cabinets, countertop, and hood over her stove.
On February 27, 2007, the defendant filed a motion to strike counts two, three and five on the grounds that the second count's allegations of negligence do not arise from a breach of a duty separate and distinct from the contract; the third count fails to allege fraud with sufficient specificity; and the fifth count is not an independent cause of action when brought offensively by a plaintiff homeowner and must, instead, be brought under CUTPA. The defendant submitted a memorandum of law in support of the motion on February 28, 2007. On May 7, 2007, the plaintiff filed a memorandum of law in opposition, the same date that the matter was heard at the short calendar.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . and consequently requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court must] assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
I
Initially, the court must address the procedural issues raised at the short calendar hearing. First, the plaintiff claims that the defendant failed to comply with the rules of practice because it filed the motion to strike more than fifteen days after the plaintiff filed her amended complaint. Practice Book § 10-8 provides in relevant part: "[S]ubsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the judicial authority thereon if one is required . . ." Pursuant to Practice Book § 17-32, the proper course to follow where one party wishes to challenge the timeliness of the filing of a pleading is the filing of a motion for default or nonsuit. Where a party does not avail itself of this procedure, this court has stated that "[i]t is within the court's discretion to accept the motion to strike even if filed outside of the fifteen day window set forth in § 10-8. Practice Book § 1-8 provides: `The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.' " Blackhawk Security v. Nolan, Superior Court, judicial district of New Haven, Docket No. CV 06 5002138 (February 23, 2007, Holden, J.). Further, "the court, in its discretion, may overlook the fact that a motion to strike is untimely where both parties have submitted arguments on the merits of the motion." Lawrence v. Commodore Commons Condominium Ass'n., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 063281 (September 8, 2000, Curran, J.T.R.) (28 Conn. L. Rptr. 56, 57).
Practice Book § 17-32(a) provides: "Where a defendant is in default for failure to plead pursuant to [Practice Book §]10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar."
In the present case, the operative complaint was filed on December 1, 2006, and the subsequent pleading, the motion to strike before the court, was filed on February 27, 2007, outside of the fifteen-day window. The plaintiff did not file a motion for default but has submitted arguments on the merits of the motion. For reasons of judicial efficiency and in the interest of justice, the issues raised in the motion to strike will be addressed. Accordingly, the plaintiff's request to deny the defendant's motion to strike due to untimely filing pursuant to Practice Book § 10-8 is denied.
Next, the plaintiff agreed to amend the complaint by merging the allegations contained in count five, the Home Improvement Act, with that of count six, the CUTPA claim, in response to the defendant's argument that the fifth count is not an independent cause of action where, as here, it is brought by a homeowner. The plaintiff has agreed to withdraw count five, and accordingly the defendant's motion to strike that count is denied.
Next, the defendant points out, without stating a formal objection, that the plaintiff failed to comply with Practice Book § 10-42(b), which provides: "Any adverse party who objects to this motion shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law." The plaintiff submitted her memorandum of law in opposition to the motion to strike on the day of the short calendar hearing. A split of authority exists within the Superior Court regarding the effect of this provision, and further research does not reveal any appellate authority as to whether the failure to file a timely opposing memorandum is necessarily fatal to the nonmoving party. "Although the 1989 amendment to this rule deleted the former provision that a party failing to file an opposing memorandum in a timely fashion has consented to the granting of the motions, the authors caution that a party intending to oppose a motion to strike should stilt file an opposing memorandum of law five days prior to the short calendar to protect its rights . . . Trial courts have generally been willing to exercise their discretion to prevent rigorous application of the timely memorandum requirement to thwart justice." (Citations omitted.) W. Horton K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules (2007), p. 495.
"Practice Book § 155, now § 10-42, previously provided that a party who failed to file such a memorandum `shall be deemed by the court to have consented to the granting of the motion.' (Internal quotation marks omitted.) Hughes v. Bemer, 200 Conn. 400, 402, 510 A.2d 992 (1986), quoting Practice Book § 155, now § 10-42. That language was subsequently removed from . . . § 10-42. [O]ur Appellate Court as recently as Doe v. Board of Education, 76 Conn.App. 296, [298] n. 5, 819 A.2d 289 (2003), declined to consider whether a failure to file a memorandum in opposition to a motion to strike continues to remain a sufficient basis for the granting of a motion to strike, as the Appellate Court affirmed the judgment on the merits of the motion to strike." DaPonte v. Rowe, Superior Court, judicial district of New Haven, Docket No. CV 044000495 (June 17, 2005, Arnold, J.) (considering motion to strike on its merits). Accord Meadowside of Woodstock, Inc. v. Vargo, Superior Court, judicial district of Windham, Docket No. CV 05 4002594 (February 22, 2006, Martin, J.) (noting lack of appellate authority; considering motion to strike on its merits).
Research reveals that a minority in the Superior Court has continued to hold that a party who fails to comply with § 10-42(b) consents to the granting of the motion to strike. These decisions have concluded that the filing of an opposing memorandum is mandatory and that the motion to strike must be granted on procedural grounds alone. By contrast, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike. One decision in the majority has stated that the absence of an opposing memorandum "adds some force" to the moving party's arguments, suggesting that the adverse party's failure to file an opposing memorandum should be construed against them. Sullivan v. Guzman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 044002010 (October 26, 2006, Adams, J.) (42 Conn. L. Rptr. 233, 234). In declining to grant the motion to strike on the basis of an untimely opposing memorandum, some of the decisions in the majority have stressed the absence of an objection from the moving party, while others have waived the five-day requirement of § 10-42(b) and have considered the merits of the motion to strike and the untimely opposing memorandum, over the moving party's objection. One decision in the latter group has relied explicitly on the rationale that, notwithstanding an objection, the moving party will not be prejudiced by the court's consideration of the merits of the motion. Phillips Industrial Service Corp. v. Connecticut Light Power Co., Superior Court, judicial district of New Haven, Docket No. 409665 (March 22, 1999, Levin, J.).
DiNuzzo v. Butt, Superior Court, judicial district of New Haven, Docket No. CV 020469411 (October 7, 2005, Martin, J.); Pastore v. Papaleo, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 044000886 (February 2, 2005, Lewis, J.T.R.); Stamford v. Clear Channel Outdoor Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0194433 (January 19, 2005, Wilson, J.); Pierce v. Verzillo, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 082001 (February 18, 2004, Bear, J.); Bonelli v. Giguere, Superior Court, judicial district of Hartford, Docket No. CV 020819257 (October 15, 2003, Hale, J.T.R.); Armitage v. Harco Laboratories, Superior Court, judicial district of New Haven, Docket No. CV 02 0471092 (September 17, 2003, Harper, J.); Leshine v. Goodrich, Superior Court, judicial district of New Haven, Docket No. CV 01 0448323 (May 15, 2003, Licari, J.); Resigna v. Connecticut, Superior Court, judicial district of Middlesex, Docket No. CV 98 86683 (March 8, 1999, Gordon, J.).
See DaPonte v. Rowe, supra, Superior Court, Docket No. CV 04 4000495; Meadowside of Woodstock, Inc. v. Vargo, supra, Superior Court, Docket No. CV 05 4002594; Young v. Ferraj, Superior Court, judicial district of Windham, Docket No. 064191 (March 21, 2001, Foley, J.); Delmoral v. Tilcon Connecticut, Superior Court, judicial district of Waterbury, Docket No. CV 990155116 (May 12, 2000, Doherty, J.); Griffith v. Espada, Superior Court, judicial district of New Britain, Docket No. CV 98 0489998 (January 25, 1999, Robinson, J.); Barbagallo v. Rob's Automotive, Superior Court, judicial district of New Britain, Docket No. CV 990494861 (December 3, 1999, Wollenberg, J.) [26 Conn. L. Rptr. 90]; Computer Clearing House, Inc. v. Stamford Computer Group, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0164240 (October 5, 1998, D'Andrea, J.); Sullivan v. Reiner, Superior Court, judicial district of Hartford, Docket No. CV 97 0567323 (May 14, 1998, Hennessey, J.); Merola v. Ripley, Superior Court, judicial district of Litchfield, Docket No. 97 0074775 (January 9, 1998, Pickett, J.); Southern New England Telephone Co. v. Pagano, Superior Court, judicial district of New Haven, Docket No. CV 98 0409079 (December 24, 1998, Zoarski, J.); Finnucane v. Dandio, Superior Court, judicial district of New Haven, Docket No. 0366182 (May 28, 1997, Gray, J.); Fire Systems, Inc. v. Semac Electrical Contractors, Inc., Superior Court, judicial district of New Haven, Docket No. 382930 (October 10, 1996, Zoarski, J.); Bushka v. Bushka, Superior Court, judicial district of Waterbury, Docket No. CV 95 0126366 (July 22, 1996, Peck, J.); Collins v. Milford Health Care, Superior Court, judicial district of Ansonia-Milford, Docket CV 94046662 (July 17, 1995, Comerford, J.) (14 Conn. L. Rptr. 486, 487); Honan v. Chamberlain, Superior Court, judicial district of Danbury, Docket No. 313387 (August 12, 1994, Mihalakos, J.); Centerbank v. GRI Investment Co., Superior Court, judicial district of Waterbury, Docket No. 117702 (May, 12, 1994, Sylvester, J.); Integlia v. Jackson, Superior Court, judicial district of New Haven, Docket No. 345342 (August 19, 1993, Zoarski, J.); Doyle v. K-Mart Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 038874 (July 16, 1992, McGrath, J.) (7 C.S.C.R. 1065, 1065) [7 Conn. L. Rptr. 764]; Castillo v. Brito, Superior Court, judicial district of Hartford, Docket No. CV 91 0394099 (October 28, 1991, Hennessey, J.) (5 Conn. L. Rptr. 201, 202); Rephan v. Clohessy Building Company, Inc., Superior Court, judicial district of New Haven, Docket No. CV 90295925 (April 2, 1991, McKeever, J.) (3 Conn. L. Rptr. 428, 429); Olshefski v. Stenner, Superior Court, judicial district of Hartford, Docket No. CV 880351899 (September 27, 1990, Clark, J.) (2 Conn. L. Rptr. 477, 478), rev'd on other grounds, 26 Conn.App. 220, 599 A.2d 749 (1991).
See Hayden v. Main, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 4002715 (April 17, 2007, Esposito, J.); Jodoin v. Colleoni, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084260 (August 7, 2001, Cremins, J.); Steenson v. Total Lighting Service, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0071803 (June 26, 2001, Arnold, J.); Hengen v. Coyne, Superior Court, judicial district of Windham, Docket No. CV 00 0062233 (April 30, 2001, Foley, J.); Ratner v. Laviano, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000177011 (April 16, 2001, D'Andrea, J.); Andretta v. Rudig, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99065340 (January 2, 2001, Grogins, J.); Capital Crossing Bank v. Sherman, Superior Court, judicial district of New London, Docket No. 554794 (November 16, 2000, Hurley, J.T.R.); Danielson v. Cummings Insulation Co, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375887 (November 15, 2000, Moran, J.); Corbin v. Arcadia Financial Ltd., Superior Court, judicial District of Waterbury, Docket No. 151811 (March 30, 2000, Leheny, J.); Brouillard v. United Illuminating Co., Superior Court, judicial district of New Haven, Docket No. CV 98 0418595 (June 1, 1999, Silbert, J.).
See Papas Group, Inc. v. Turner, Superior Court, judicial district of New London, Docket No. 559336 (February 26, 2002, Martin, J.); Moomau v. Doumar, Superior Court, judicial district of Fairfield, Docket No. CV 970347368 (June 8, 1998, Skolnick, J.); National Mortgage Co. v. Tempkin, Superior Court, judicial district of Litchfield, Docket No. CV 940065542 (May 24, 1995, Pickett, J.; Fitzpatrick v. East Hartford B.P.O. Elks, Superior Court, judicial district of Hartford, Docket No. 380905 (January 25, 1991, Clark, J.) (3 Conn. L. Rptr. 163, 164).
Upon review of the case law, the procedural context of the present case and the risk of unfair prejudice to the defendant, this court will consider the defendant's motion to strike and the plaintiff's opposition to it on the merits.
II A
In its memorandum of law in support of the motion to strike, the defendant argues that the plaintiff has not alleged a legally sufficient negligence claim in the second count because the allegations do not arise from a breach of a duty separate and distinct from the performance of the contract. The plaintiff counters that a separate duty is pleaded and implied in the allegations of the second count and refers this court to paragraph twelve of her complaint. Paragraph twelve, however, reads: "As a result of the negligence of the defendant . . . the plaintiff has incurred damages." Since the allegations relating to the installation of the cabinetry and countertops are set forth in paragraph eleven and not in twelve, the court will consider those factual allegations in support of the plaintiff's negligence claim. Alternatively, the plaintiff argues that "a court may still find that the claim of negligence [is] legally sufficient as a duty to exercise reasonable care may result from duties articulated in a contract."
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . Furthermore, [a] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 630-31, 910 A.2d 209 (2006).
"[A] party may be liable in negligence for the breach of a duty that arises out of a contractual relationship . . . Even though there may not be a breach of contract, liability may arise because of injury resulting from negligence occurring in the course of performance of the contract." (Citation omitted; internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 870, 794 A.2d 997 (2002). "[A] contract may create a state of things which furnishes the occasion of a tort so that negligent performance of a contract may give rise to an action in tort, if the duty exists independently of the performance of the contract. The contract then creates the relation out of which rose the duty to use care and the performance of a responsibility prescribed by the contract." (Internal quotation marks omitted.) Marx v. McLaughlin, Superior Court, judicial district of New London, Docket No. CV 00 0556383 (July 3, 2001, Corradino, J.).
In the present case, the first count of the plaintiff's complaint contains allegations of the parties signing a home improvement agreement. The first count also contains other allegations pertaining to the formation of the agreement, but the only relevant allegation incorporated into the second count is that the parties signed an agreement. The agreement appending the complaint contains a covenant by the defendant to complete installation in a workmanlike manner. The second count contains further allegations that the defendant "was negligent in the performance of [its] duty under said contract" in that it took inaccurate measurements of the plaintiff's kitchen, refused to remedy obvious defects in the installation of the cabinetry that she had purchased, left the plaintiff with a dismantled kitchen and left the plaintiff's home in a hazardous condition "by removing the hood to the oven/stove and leaving it off so that fumes collect in the house when the plaintiff tries to use the stove . . ." The plaintiff further alleges that she incurred damages as a result of the defendant's negligence.
The motion to strike count two is denied as the plaintiff has alleged sufficient facts to give rise to an independent duty beyond that which is provided for under the agreement. Accordingly, count two contains sufficient allegations to state a cause of action for negligence. The motion to strike is denied.
B
The defendant moves to strike the third count on the ground that it contains no allegation that the alleged representations made by the defendant were ones that it knew to be untrue. The plaintiff counters that fraud is alleged with sufficient specificity.
"In order to plead a cause of action for fraud, a plaintiff must allege that: (1) a false representation was made [by the defendant] as a statement of fact; (2) the statement was untrue and known to be so by [the defendant]; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . . Furthermore, when a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint." (Citation omitted; internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 628.
In the present case, the plaintiff alleges in count three that the defendant "knew or should have know[n]" that, among other things, the plaintiff would rely on the agreement and would be forced to pay additional money to have installation completed by someone else. Additionally, the plaintiff alleges that the defendant "knew or should have known that they could not provide the product the client requested for that price" but nonetheless made the latter representation in order to induce her to purchase the cabinets. The plaintiff further alleges that the defendant's representations were false.
Allegations of what a defendant "knew or should have known" do not satisfy the requirement that the plaintiff must allege that the defendant knew the representation of fact to be untrue when made. See Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 628.
CONCLUSION
For the foregoing reasons, the court denies the defendant's motion to strike counts two and five, and grants the motion as to count three.