Opinion
No. HHD CV 06-6000665S
May 22, 2007
MOTION TO STRIKE FOURTH COUNTERCLAIM (FILE #106)
On motion to strike, the facts are those alleged in the pleading; such facts are to be construed in the manner most favorable to sustaining legal sufficiency. Bhinder v. Sun Oil, 263 Conn. 358, 366 (2003). As a motion to strike challenges legal sufficiency, it requires no factual findings by the court. Id. If facts provable under the allegations would support a cause of action, the motion must be denied. Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002); Faulker v. United Technologies Corp., 240 Conn. 576, 580 (1997).
The fourth count of defendants' counterclaim, asserting a CUTPA violation, incorporates paragraphs 1-6 of the third count. Defendants contend that paragraphs 7-11 bring the count within #2 of the "cigarette rule." cf. McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 566 fn. 10 (1984). It is my view that the facts alleged in paragraphs 7 and 8 do not furnish an aggravating circumstance; rather, the claimed CUTPA violation, as alleged, is merely breach of contract. Raffone v. Home Depot, USA, Inc., 34 Conn. L. Rptr. 747 (Conn.Super. 2003); Emlee Equipment Leasing Corporation v. Waterbury Transmission, Inc., 41 Conn.Sup. 575, 580 (1991) ("a simple breach of contract, even if intentional, does not amount a violation of the Act; a [defendant] must show substantial aggravating circumstances attending the breach to recover under the Act . . ."). It is recognized that CUTPA is a remedial statute; Johnson Electric Co. v. Salce Contracting Assoc., 72 Conn.App. 342, 353 (2002); however, while defendants have argued additional facts, those facts are not alleged, and in my view, would not be provable under count four, as the allegations now stand.
The defendants have cited certain recent authorities as supporting the legal sufficiency of their fourth counterclaim; the plaintiff contends, and the court agrees, that the cases are not apposite. In Zappone v. Plymouth Commons, 99 Conn.App. 175 (2007), relied on by the defendants, the issue was whether an ascertainable loss had been established under the CUTPA count. The same conduct was alleged, and proven, for both the breach of contract and CUTPA claims; the court stated that the finding of a breach, entitling the plaintiff to contract damages, was sufficient to establish the ascertainable loss requirement for CUTPA. Similarly, in Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586 (2003), also an ascertainable loss case, which was referred to in Zappone, the plaintiff also alleged the same conduct as the basis for both the breach of contract and the CUTPA counts; that conduct consisted of engaging in improper sales practices that were misleading and unfair to consumers. The court held that the loss of the contract due to the breach constituted an "ascertainable loss" for purposes of CUTPA. These cases deal with the "ascertainable loss" requirement of CUTPA, and do not hold that a mere breach of contract, absent an aggravating circumstance, constitutes an actionable CUTPA claim.
With regard to Whitaker v. Taylor, 99 Conn.App. 719 (2007), also cited by the defendants, the plaintiff's CUTPA count, on which the defendants had been defaulted, incorporated the fraud allegations of a previous count and included "a recitation of facts establishing the violation with the necessary boilerplate characterizations that the representations were known by [defendants] to be false and were made with the purpose of inducing the plaintiff to make the loan." Here, no such comparable allegations are included in the fourth counterclaim. Additionally, in Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571 (2004), the court acknowledged that a finding of a breach of contract would not necessarily require a conclusion that the breach conduct achieved the level of a CUIPA notation.
Based on the above, the motion to strike is granted.