Opinion
No. CV 075013602
April 24, 2008
MEMORANDUM OF DECISION
On August 23, 2007, the plaintiffs, Lisa and William Baker, commenced this action by service of process on the defendant, Town of Cheshire ("Town"). The next day, service of process was made on the defendants, Debra and John Lanzl ("Lanzls"). The plaintiffs filed a nine-count complaint against the defendants. Both defendants have moved to strike several counts of the complaint.
The Town has moved to strike the second (Creation of Nuisance) and fourth (Connecticut Unfair Trade Act violation) counts on the grounds that the plaintiffs have failed to plead facts to support a cause of action, as well as the third (Failure to Inspect), fifth (Injunctive Relief), and sixth counts (Class Action) for failure to state a recognized cause of action. The Lanzls have moved to strike the eighth count (Reckless Misrepresentation and Non-Disclosure) on the grounds that the plaintiffs have failed to allege facts sufficient to support the cause of action, and the ninth (Connecticut Unfair Trade Act violation) count because the claim asserted is unavailable under these circumstances. All parties filed memoranda of law on these issues and the matter was heard at short calendar on January 28, 2008.
In their complaint, the plaintiffs allege that on August 25, 2005, they purchased from the Lanzls a parcel of land with a residence in Cheshire known as 395 Sheridan Drive ("the Property"); and that on October 15, 2005, a sinkhole developed in the yard of the Property. The sinkhole was allegedly caused by a barite mine shaft or adit that exists underneath the surface of the Property.
The plaintiffs further allege that the Town commissioned an expert investigation of the existence of subsurface mine shafts and adits in various parts of Cheshire. The plaintiffs claim that the report, prepared in 1993, disclosed the existence of the main shaft of a mine approximately 500 feet from the Property, as well as the likelihood that a mine adit traversed beneath the Property and residence. The plaintiffs also claim that the report also disclosed a series of sinkholes that had formed above the adit in the vicinity of the Property.
The complaint alleges that the Town did not put a notice of the contents of the report in the Town Clerk's Office or otherwise provide notice to potential buyers and the general public of the mines and any associated risks; and that the Town allowed development of property in the areas affected by the mines.
The plaintiffs claim that they have expended money to repair the sinkhole and otherwise render the Property safe, and have been damaged by a diminution in value of the Property. The plaintiffs also claim that they have and will continue to suffer emotional distress.
The first six counts, addressed to the Town, assert claims of negligence (First), participation in the creation of a nuisance (Second), failure to make adequate inspection (Third), violation of CUTPA (Fourth), injunctive relief (Fifth), and class action (Sixth). The remaining three counts, addressed to the Lanzls, assert claims of negligent misrepresentation and non-disclosure (Seventh), intentional and reckless misrepresentation and non-disclosure (Eighth), and violation of CUTPA (Ninth).
"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). "A motion to strike challenges the legal sufficiency of a [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294.
I. Second Count
In the second count of their complaint, the plaintiffs purport to assert a claim against the Town for participation in the creation of a nuisance pursuant to General Statutes § 52-557n(a)(1)(C). The plaintiffs assert that the Town's authorization of construction over mines and sinkholes constitutes the creation of a nuisance. The Town has moved to strike this count on the grounds that the plaintiffs have failed to plead the elements of nuisance. Specifically, the Town argues that the plaintiffs have not alleged that the Town was in control of the property that is the source of the purported nuisance or that the Town created or maintained the nuisance by a positive act.
General Statutes § 52-557n(a)(1)(c) codifies the common-law rule that a municipality may be held liable for nuisance. It provides, in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . (c) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ."
In the second count, the plaintiffs assert that they have been damaged individually with regard to their use and enjoyment of the property, implicating a claim for private nuisance. See Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939) ("private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land"). There is no allegation of "an unreasonable interference with a right common to the general public" which is necessary to support a claim for public nuisance. See Keeney v. Old Saybrook, 237 Conn. 135, 163, 676 A.2d 795 (1996). So, although the plaintiffs assert a class action claim to protect the interests of all individuals who own or reside on property located above subsurface mine shafts and adits in the Sixth Count, this court construes the claim in the Second Count as one for private nuisance.
"A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land . . . The law of private nuisance springs from the general principle that it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
It is well-established that "in order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages." (Emphasis added; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). To satisfy the third element, the plaintiff in a private nuisance case must allege that the defendant had control of the property in question, either through ownership or otherwise. Shukis v. Board of Education, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 0104038 (March 15, 2006, Aurigemma, J.) [ 41 Conn. L. Rptr. 54].
Our case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful "user" of that property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance . . . property ownership is not a prerequisite to nuisance liability . . .
In lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant "uses" property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance. For example, a landlord's liability for nuisance caused by a defective condition on leased property is determined, in part, by whether the portion of the property on which the condition exists is in the landlord's control or the tenant's . . . Similarly, when circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance . . . In addition, we have held that a defendant municipality may be held liable for a nuisance caused by noxious smoke and gas emitting from a dump on property which it controls, although the immediate cause of the offensive emissions was unauthorized dumping and burning by a third party who was not the defendant's agent.
(Citations omitted; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 183-84.
There is no allegation in the complaint that the Town ever owned or otherwise controlled either the mines or the property known as 395 Sheridan Drive. Nevertheless, the plaintiffs conclude in their opposition to the motion to strike that "the Town's permitting and authorizing construction . . . demonstrates control over the properties sufficient to create liability."
To support this legal proposition, the plaintiffs only cite two cases, Esposito v. New Britain Baseball Club, Inc., 48 Conn.Sup. 643, 856 A.2d 535 (2004), and Ehret v. Scarsdale, 269 N.Y. 198, 199 N.E. 56 (1935). These cases address the issue of whether the issuance of a permit constitutes a positive act, but do not address whether the issuance of a permit demonstrates control over property. Moreover, each of those cases may be distinguishable from the present circumstances because each involved the authorization of an activity on property that was owned by a municipal defendant and ultimately interfered with the use of separate property. See Esposito v. New Britain Baseball Club, Inc., supra, 48 Conn.Sup. 644 (adjacent landowners suffered from noise, smoke, and traffic due to fireworks displays at baseball stadium owned by municipality); Ehret v. Scarsdale, supra, 269 N.Y. 198 (1935) (defendant municipality maintained and controlled public street and authorized construction of drain pipe under street which caused gas leak affecting adjacent property).
Even assuming that these cases do support the plaintiffs' ultimate position, the plaintiffs have failed to allege in the complaint that the Town owned or controlled land and that the use of such land unreasonably interfered with the plaintiffs' use or enjoyment of their property. To be sure, they make this argument in their brief, but the facts are not alleged in the complaint. For this reason, the motion to strike the second count is granted.
II. Third Count
In the third count of their complaint, the plaintiffs assert that the Town failed to inspect or make adequate inspection of property which contains a hazard to public safety, under circumstances in which either it had notice of the hazard, or failure to inspect constitutes a reckless disregard for public safety. The complaint states that this claim is authorized by General Statutes § 52-557n(b)(8). The Town argues that the plaintiffs have failed to state a claim because, although that subsection defines circumstances under which a municipality is not immune from liability, it does not create a cause of action. The plaintiffs contend that even if subsection (b)(8) does not create a cause of action, it permits a cause of action for failure to inspect to be brought under General Statutes § 52-557n(a).
General Statutes § 52-557n(b)(8) provides in relevant part: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ."
General Statutes § 52-557n abrogates the general common-law rule that municipalities are immune from liability, in certain circumstances, for their tortious acts. Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991); Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Subsection (a)(1) sets forth acts for which the municipality may be liable, including the negligence of the municipality or its agents. Subsection (a)(2), however, excludes liability for negligent acts or omissions that involve the exercise of judgment or discretion. The statute, in subsection (b), also sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property, subject to exceptions. Subsection (b)(8) provides that a municipality is not liable for damages resulting from a failure to inspect property that it does not own or lease, unless it had notice of the hazard or the failure to inspect constitutes a reckless disregard for health or safety.
In several cases, plaintiffs have attempted to state causes of action predicated on the exceptions to non-liability stated in General Statutes § 52-557n(b). Connecticut courts have rejected these arguments that the exceptions in § 52-557n(b) create or authorize a cause of action against municipalities.
In Curtin v. Brookfield, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 020178124 (April 14, 2005, Schuman, J.) [ 39 Conn. L. Rptr. 173], aff'd sub nom, Kondrat v. Brookfield, 97 Conn.App. 31, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006), the Superior Court analyzed the meaning of General Statutes § 52-557n and ultimately rejected the plaintiffs' argument that the language following "unless" in subsection (b)(8) was an exception to the town's non-liability that created liability and a corresponding cause of action. The court noted that "[p]aragraph (a) of § 52-557n describes situations in which a political subdivision of the state shall be liable for damages to person or property," in contrast to paragraph (b), which delineates when a political subdivision shall not be liable. (Internal quotation marks omitted.) Id. The court explained that the plaintiff's interpretation of the exception to non-liability, which inverted the meaning of subsection (b)(8) to purportedly create a cause of action by negative inference, "flouts the language of the statute." Id. "[T]he better meaning of the exceptions to nonliability in paragraph (b)(8) is that they are simply that — situations in which the nonliability of the town would not automatically apply." Id. The court further refused to presume that the legislature intended to create liability by negative inference and concluded that § 52-557n(b)(8) does not create a cause of action. Id.
Similarly, in Gonzalez v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 97 0143396 (July 17, 1998, Hodgson, J.) ( 22 Conn. L. Rptr. 446), the court expressly rejected the argument that General Statutes § 52-557n(b)(2) creates an affirmative cause of action by negative implication. The court explained that "[Section 52-557n(b)(2)] narrows the circumstances in which a municipality may be liable for negligence arising from non-immune functions of reservoirs. Thus, the effect of [Section] 52-557n(b)(2) is to restrict liability for proprietary operations or ministerial functions at reservoirs to situations in which the injured party was using the property in a foreseeable manner, not to remove immunity in general with regard to reservoirs. This provision does not, by negative implication, create liability for discretionary government acts with regard to operation of a reservoir that is not claimed to be a corporate or proprietary activity of the municipality.
General Statutes § 52-557n(b)(2) provides in relevant part: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable . . ."
"As the defendant has pointed out in its brief, if the provisions of § 52-557n(b)(2) are read as creating affirmative liability rather than clarifying the scope of immunity, the other provisions of subsection (b) would have to be read in the same way, an unlikely construction given the nature of these other provisions." Id.
In Videll v. New London, Superior Court, judicial district of New London, Docket No. 03-0565386 (May 17, 2005, Hurley, J.T.R.), the plaintiff attempted to distinguish cases such as Gonzalez v. Waterbury and Curtin v. Brookfield, and argued that the plain meaning of subsection (b)(8) is that where the city has notice of a defective condition or a failure to make adequate inspection constitutes a reckless act that endangers a person, governmental immunity is waived. The court briefly reviewed prior decisions and observed that "Connecticut courts have consistently rejected the argument that a cause of action may be based on § 52-557n(b)(8)," and rejected the plaintiff's claim. Videll v. New London, supra, Superior Court, Docket No. 03 0565386 S.
In the present case, the plaintiffs allege in their complaint that they are authorized to bring a claim for negligent inspection under General Statutes § 52-557n(b)(8). As the preceding cases illustrate, however, trial courts have consistently concluded that subsection (b) does not affirmatively create a cause of action. This court reaches a similar conclusion, and accordingly, grants the motion to strike the third count.
Although the claim is not set forth in the complaint, the plaintiffs also argue in their memorandum in opposition to the motion to strike that even though General Statutes § 52-557n(b)(8) may not create a cause of action, it permits an action pursuant to General Statutes § 52-557n(a) under these circumstances. Assuming that the plaintiffs had attempted to plead a claim for negligent inspection pursuant to paragraph (a), which they have not, Connecticut courts have consistently found that the determination of what constitutes a reasonable and proper inspection involves the exercise of judgment by the employee, and the act is therefore, within the exception to liability set forth in subsection (a)(2)(B). See Evon v. Andrews, 211 Conn. 501, 506-07, 559 A.2d 1131 (1989).
III. Fourth Count
In the fourth count of their complaint, the plaintiffs allege that the Town violated provisions of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The Town has moved to strike this count on the grounds that the Town is exempt from liability under CUTPA, and alternatively, because the plaintiffs have not sufficiently alleged that the Town was engaging in any trade or commerce.
Although the Town bases its argument that municipalities are automatically exempt from CUTPA liability on several superior court decisions, this court finds that the more accurate statement of law is that a municipality may be exempt from liability under certain circumstances. Connecticut's appellate courts have never expressly held that municipalities in general are not subject to CUTPA. Ippoliti v. Ridgefield, Superior Court, judicial district of Danbury, Docket No. CV 990337600 (August 7, 2000, Moraghan, J.) ( 27 Conn. L. Rptr. 629). The two principal appellate decisions that address potential liability for municipalities and municipal agencies under CUTPA left open the possibility of liability, but found that the municipalities were nevertheless exempt under the particular circumstances. See Connelly v. Housing Authority, 213 Conn. 354, 365, 567 A.2d 1212 (1990) ("a municipal housing authority is exempted from liability under CUTPA when it leases subsidized rental units to low income tenants"); and Danbury v. Dana Investment Corp., 249 Conn. 1, 20, 730 A.2d 1128 (1999) (holding that a municipality is not subject to CUTPA in the assessment or collection of real estate taxes).
Subsequent to Connelly and Dana Investment Corp., numerous superior court decisions held that CUTPA does not apply to municipalities. See, Ippoliti v. Ridgefield, supra 27 Conn. L. Rptr. 629 (The "great weight of Superior Court decisions have relied upon Connelly and Dana Investment to support the conclusion that CUTPA does not apply to municipalities. See, e.g., Nettleton Mechanical Contractors, Inc. v. Meriden, Superior Court, judicial district of Waterbury, Docket No. CV 0146838 (February 3, 2000, Doherty, J.) ( 26 Conn. L. Rptr. 493); Colon v. GEICO Casualty Co., Superior Court, judicial district of New Haven, Docket No. CV 980419197 (July 28, 1999, Moran, J.); Laclair v. East Hartford Housing, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 970574379 (February 3, 1998, Wagner, J.) ( 21 Conn. L. Rptr. 359); Barnes v. General Electric Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 052 93 54 (July 25, 1995, Hennessey, J.) ( 14 Conn. L. Rptr. 455); Stratford v. Siciliano, Superior Court, judicial district of Bridgeport, Docket No. 296847 (September 13, 1993, Leheny, J.) (9 Conn. L. Rptr. 507)").
The Appellate Court has tacitly approved the approach taken by Ippoliti and many other superior court decisions which found municipalities to be exempt from CUTPA. In Lazaros v. West Haven, 45 Conn.App. 571, 576-77, 696 A.2d 1304, cert. denied, 243 Conn. 901, 701 A.2d 331 (1997), the Appellate Court affirmed the superior court's grant of a motion to strike a CUTPA claim against a municipality. The Appellate Court adopted the trial court's decision, explaining: "In a thoughtful and comprehensive memorandum of decision . . . the trial court analyzed the facts and law in a manner consistent with our statutes and case precedents. Nothing would be accomplished by our recitation of what the trial court has already so ably stated. Accordingly, we adopt the trial court's well reasoned decision . . . as a statement of the applicable law on these issues." (Citations omitted.) Lazaros v. West Haven, supra, 45 Conn.App. 576-77.
Recently, superior court decisions reflect a shift towards more specifically applying the factors set forth in Connelly, particularly when addressing a motion to strike a CUTPA claim. See, e.g. Guarco Construction, Inc. v. C R Dev. Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 064021195 (October 16, 2006, Tanzer, J.) [ 42 Conn. L. Rptr. 187], Frillici v. Westport Shellfish Commission of Town of Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05 CV 00 0176696 (October 12, 2001, Tierney, J.), and Manchester v. United Stone America Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 98 0070702 (June 15, 2000, Bishop, J.) ( 27 Conn. L. Rptr. 414).
Connelly considered four factors to determine whether CUTPA was applicable, including the following: (1) The agency is a creature of statute and is expressly authorized and regulated by both the State and Federal government; (2) Both federal regulations and state law provide carefully balanced procedural and substantive remedies for tenants in a variety of situations; (3) Those regulatory remedies carefully balance the rights and obligations of the agency and its tenants, and this balance might by upset by providing a CUTPA remedy; and (4) There has been no instance in which the Federal Trade Commission Act has been applied to a local housing authority. Connelly does not make it clear that all of these factors are essential to this analysis. In each case, the Supreme Court found authorization and pervasive regulation of the activity at issue by state and federal statutes.
In Manchester, the court first observed that "[s]ince a municipality is, in fact, a legal entity, its activities in the conduct of any trade or commerce may fall within the broad parameters of CUTPA." Then, the court (Bishop, J.) considered Connelly. And, although the court in Manchester ultimately found the Town exempt because it was not engaged in trade or commerce, it was nevertheless "unconvinced that merely because the [counterclaim defendant] is a municipality it is exempt from the proscriptions of CUTPA." Id.
Connecticut General Statutes § 42-110b provides, in part, that "(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." A "person" is defined as "a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity." (Emphasis added.) General Statutes § 42-110a(3).
Likewise, in Frillici v. Westport Shellfish Commission of Town of Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05 CV 00 0176696 (October 12, 2001, Tierney, J., the court stated that "[a]fter a careful review of Connelly, Dana and the trial court decisions, this court holds that there is no blanket immunity for municipalities from CUTPA and the factors of Connelly must be applied to find that a municipality is exempt."
Accepting the well-reasoned conclusion that the Town is not exempt from the proscriptions of CUTPA merely because it is a municipality, 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. See Manchester v. United Stone America Co., supra, 27 Conn. L. Rptr. 414. "Trade" and "commerce" are defined in the act to mean "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." General Statutes § 42-110a(4).
The plaintiffs argue that the Town distributed services within the meaning of "trade or commerce" in two ways. First, they argue that issuing permits for redevelopment of land constitutes trade or commerce. Second, the plaintiffs appear to claim that providing notice in the land records, an act exclusively within the jurisdiction and authority of the Town, is a distribution of services.
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. Nor does it appear that any Connecticut courts have decided whether the type of conduct by a municipal defendant alleged here constitutes trade or commerce. Therefore, this court examines the law of our sister state, Massachusetts, which has similar statutes. See CT Page 6568 Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 521, 646 A.2d 1289 (1994) ("[B]ecause the governing statutes in Massachusetts are virtually identical to our own . . . [w]e have repeatedly looked to the reasoning and decisions of the Supreme Judicial Court of Massachusetts with regard to the scope of CUTPA").
In application of its unfair trade practices laws, Mass. Gen. Laws 93A, the Supreme Judicial Court of Massachusetts has stated that "a municipality is not liable under G.L.c. 93A when it is not acting in a business context . . . Whether a municipality is acting in a business context depends on the nature of the transaction, the character of the parties involved and [their] activities . . . and whether the transaction [was] motivated by business . . . reasons . . . [A] party is not engaging in trade or commerce as defined by G.L.c. 93A when its actions are motivated by legislative mandate." (Citations omitted; internal quotation marks omitted.) Park Drive Towing, Inc. v. Revere, 442 Mass. 80, 86, 809 N.E.2d 1045 (2004). When determining whether a municipality's conduct takes place in the business context, Massachusetts courts have also considered whether the action taken was merely incidental to a primary government function; see id.; and whether the municipality sought to profit from its action; see All Seasons Services, Inc. v. Commissioner of Health Hospitals of Boston, 416 Mass. 269, 271, 620 N.E.2d 778 (1993).
Importing as guidance the Massachusetts standard and factors, this court concludes that the Town's authorization of construction on the plaintiffs' property and failure to provide notice regarding the mines were not undertaken in the conduct of "trade or commerce." The authorization of development in Cheshire is within the powers delegated to the Town by the State of Connecticut through legislative action. Such action is a strictly governmental function done for the benefit of the citizens of Cheshire, rather than the Town. There is no indication or allegation that the Town received any pecuniary benefit beyond its administrative costs in taking such action; or that the Town sought to profit from its action or inaction.
Therefore, the facts alleged do not support a finding that the Town was engaged in trade or commerce. Accordingly, the motion to strike the fourth count is granted.
IV. Fifth Count
In the fifth count of their complaint, the plaintiffs assert a claim for injunctive relief against the Town. The Town has moved to strike the fifth count on the grounds that "injunctive relief" is a prayer for relief rather than a cause of action, and that the plaintiffs have an adequate remedy at law. The plaintiffs argue that it is appropriate to plead a claim for injunctive relief in a separate count and that they have sufficiently pleaded a cause of action for an injunction.
It appears that a majority of Connecticut courts have recognized a claim for an injunction as a viable free-standing cause of action. See, e.g. Giunta v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0167626 (May 16, 2002, Lewis, J.T.R.) ( 32 Conn. L. Rptr. 232). In Giunta, the court denied a motion to strike a count in which the plaintiffs sought an injunction ordering the defendant municipality to immediately remediate a noxious odor, stating that "plaintiffs have set forth a cause of action for an injunction . . . [and] [i]f the plaintiffs prove one or more counts of their complaint, they should have available an injunction as a possible remedy." Id. Similarly, in Frantz v. Romaine, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0176623 (March 27, 2001, D'Andrea, J.), cert. denied, 277 Conn. 932, 896 A.2d 100 (2006), the court denied a motion to strike because the plaintiff "has alleged a legally sufficient cause of action for an injunction." Id.
At least one superior court decision arguably supports the Town's position. Stefan v. P.J. Kids, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 04 0185513 (March 1, 2005, Sheedy, J.). In Stefan, the court stated that "[a]n injunction is a form of equitable relief. It is not a 'cause of action.' What is sought in Count Seven (and Count Eight) is injunctive relief and, as such, it is appropriately part of a Prayer for Relief when the required elements are pled." Id. This court concludes that the Stefan decision, when viewed as a whole, more accurately stands for a proposition limited to its facts.
In this case, the plaintiffs have alleged facts in the body of the count and made a demand for injunctive relief in compliance with Practice Book § 10-20.
As the second ground for its motion to strike the fifth count, the Town asserts that the plaintiffs failed to sufficiently allege that they have no adequate remedy at law. The Town argues that the plaintiffs have money damages available as a sufficient remedy. It is well-settled that the "party seeking injunctive relief has the burden of proving irreparable harm and lack of an adequate remedy at law." (Emphasis omitted; internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 107, 726 A.2d 1154 (1999). Whether the plaintiffs have satisfied their burden is a determination to be made by the trial court after receipt of evidence and consideration of the issues. Maratta v. Middletown, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 07 4006915 (September 7, 2007, Holzberg, J.). When presented with a motion to strike, "the only question before the court is whether the plaintiff has set forth the essential elements of a claim for injunctive relief." Id.
For a remedy at law to be adequate so as to preclude the granting of injunctive relief, the remedy "must be as complete and beneficial as the relief in equity." (Internal quotation marks omitted.) Berin v. Olson, 183 Conn. 337, 342, 439 A.2d 357 (1981). The Supreme Court has also explained that "a remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Berger v. Cuomo, 230 Conn. 1, 6, 644 A.2d 333 (1994).
Although it is well-settled that a party seeking an injunction must establish that he or she suffered irreparable harm and has no adequate remedy at law, several courts have merely required basic allegations of the elements. See, e.g., Maratta v. Middletown, supra, Superior Court, Docket No. CV 07 4006915 (finding allegation that "plaintiff will suffer irreparable harm for which it has no adequate remedy at law" sufficient to deny motion to strike); Frantz v. Romaine, supra, Superior Court, Docket No. CV 00 0176623 (finding allegations that plaintiff "will suffer an irreparable injury to his interests under the APO for which he has no adequate remedy at law" sufficient). Some courts, however, have required facts to be pleaded in support of conclusory statements. See Thompson v. Fairfield Country Day School, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV02 039 65 13 (November 20, 2003, Wolven, J.) [ 36 Conn. L. Rptr. 45] (finding insufficient plaintiffs' conclusory allegations of irreparable harm and no adequate remedy at law, but denying motion to strike claim for injunctive relief because facts alleged would establish grounds for granting injunction).
The plaintiffs have specifically alleged in paragraph twenty-one of the fifth count that they "have no adequate remedy at law." This statement would satisfy the minimal pleading requirement set forth in Maratta and Frantz. The heightened scrutiny required by Thompson is also satisfied because the plaintiffs have alleged that, in addition to the physical harm to their property and reduction in property value, they suffer from the continuous and ongoing risk of further cave-ins and other damage to their property. Although money damages may be sufficient to remedy past harms, the possibility of receiving such relief does not preclude the plaintiffs from seeking injunctive relief. See Berin v. Olson, supra, 183 Conn. 342. Moreover, injunctions are particularly appropriate to prevent a multiplicity of litigation in situations in which money damages might be otherwise appropriate if not for the likelihood of repeated harm in the future. Id. Therefore, the plaintiffs have sufficiently alleged facts to support the conclusion that they lack an adequate remedy at law.
This court concludes that the claim for an injunction is a valid cause of action and the plaintiffs have sufficiently pleaded the requisite elements. Accordingly, the motion to strike the fifth count is denied and the determination of whether an injunction may be properly awarded should be made by the court after it has had the opportunity to consider all legal and factual issues.
V. Sixth Count
In the sixth count of their complaint, the plaintiffs incorporated each of the first three counts in their entirety and, further, purport to have pleaded the necessary elements of a class action in order to bring a lawsuit on behalf of all other similarly aggrieved property owners and residents. The Town has moved to strike the sixth count on the grounds that a "class action" is not a cause of action and the proper vehicle for class certification is by motion pursuant to Practice Book §§ 9-7 though 9-10. In opposition, the plaintiffs contend that it is appropriate to plead a class action in a separate count and then join the issues on certification by motion, as they intend to do.
The Town does not cite any case in which a court found that a count of a complaint identified as a "class action" was insufficient because a class action is not a cause of action. In contrast, it has been held that "to state a cause of action as a class action, the requirements [of Practice Book §§ 9-7 and 9-8] must be met in the complaint." (Internal quotation marks omitted.) Kubas v. The Hartford Financial Services Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 00 0073192 (July 19, 2000, Bishop, J.) ( 27 Conn. L. Rptr. 565). Accordingly, it is necessary, or at least proper, to set forth the requisite elements of a class action in the complaint. In Majette v. Housing Authority, the trial court (Beach, J.) proposed that courts should adopt a procedure which would require a plaintiff to file a motion for certification "drafted with an eye toward §§ 9-7 and 9-8 of the practice book," and in addition, "[o]ne or more counts of the complaint should state the underlying facts showing the elements of any causes of action that the class, if certified, intends to prove." Majette v. Housing Authority, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 5000090 (November 3, 2005, Beach, J.) ( 40 Conn. L. Rptr. 195) (striking class action count because plaintiff had not alleged all required elements set forth in Practice Book).
Practice Book § 9-7 provides: "One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
Practice Book § 9-8 provides: "An action may be maintained as a class action if the prerequisites of Section 9-7 are satisfied and the judicial authority finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
There are numerous decisions in which courts have addressed counts purporting to assert a class action when the challenge is to the sufficiency of the allegations to satisfy the requirements for class certification. See, e.g., Machado v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 04 4004852 (December 27, 2005, Rodriguez, J.); Majette v. Housing Authority, supra, 40 Conn. L. Rptr. 195; Kubas v. The Hartford Financial Services Co., supra, 27 Conn. L. Rptr. 565; Humiston v. Southbury, Superior Court, judicial district of Waterbury, Docket No. CV 96133244 (January 16, 1997, Pellegrino, J.) [ 18 Conn. L. Rptr. 489]. These decisions all assume that a party may plead a class action in the complaint. To survive a motion to strike, however, every requirement set forth in Practice Book §§ 9-7 and 9-8 must be alleged with supporting facts.
Based on the foregoing discussion, this court concludes that it is appropriate to plead a class action in the complaint. In the present case, the Town has not challenged the sufficiency of the pleadings to properly assert a class action and without such a challenge, this court declines to address that issue. Accordingly, the court denies the Town's motion to strike the sixth count and the plaintiffs are ordered to file a motion to certify the class if they wish to proceed in that fashion.
VI. Eighth Count
In the eighth count of their complaint, the plaintiffs assert that the Lanzls committed an intentional and reckless misrepresentation and non-disclosure related to the real estate transaction with the plaintiffs. The Lanzls have moved to strike the count on the grounds that the allegations in the complaint are insufficient to state a claim for intentional or reckless misrepresentation.
The eighth count of the complaint sets forth two causes of action: one for intentional or reckless misrepresentation, and one for intentional or reckless non-disclosure. Misrepresentation and non-disclosure, although similar, have slightly different elements. They are separate causes of action which, in this case, were pled in the same count.
"A cause of action for intentional misrepresentation is essentially a claim of fraud." Martinez v. Zovich, 87 Conn.App. 766, 778, 867 A.2d 149 (2005). "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 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 . . . The determination of what acts constitute fraud is a question of fact . . ." McCann Real Equities v. McDermott, 93 Conn.App. 486, 518, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
"Fraud by nondisclosure expands on the first three of [the] four elements [and] involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak . . . To constitute [fraud by nondisclosure], there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . The duty to disclose known facts is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak." (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 454-55, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).
The Lanzls attack only the claim for misrepresentation. The plaintiffs argue that such a "surgical" motion to strike only a portion of a count must be denied.
"Practice Book § 10-39 authorizes the trial court to strike an entire complaint or any count thereof, but it does not generally authorize the striking of a portion of a count. See Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988). When two or more causes of action are joined in a single count, 'the proper way to cure any confusion in that regard is to file a motion to revise, not a motion to strike the entire [count].' Id. 'If a count in a complaint purports to set out more than one cause of action, a demurrer [now a motion to strike] addressed to the entire count fails if it does not reach all of the causes of action pleaded.' Wachtel v. Rosol, 159 Conn. 496, 499, 471 A.2d 84 (1970)." Feen v. Benefit Plan Administrators, Inc., Superior Court, judicial district of New Haven, Docket No. 406726 (August 30, 2000, Levin, J.); see also Klimas v. Advo Systems, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 94 464854 (May 3, 1996, Arena, J.).
Pursuant to Rowe v. Godou and Practice Book § 10-35, the Lanzls should have, but did not, file a request to revise the eighth count in order to partition the misrepresentation and non-disclosure causes of action. The defendants do not address the viability of the claim for non-disclosure in their motion to strike, and therefore, the motion to strike "does not reach all of the causes of action pleaded." Wachtel v. Rosol, supra, 159 Conn. 499. Accordingly, this court denies the motion to strike the eighth count.
VII. Ninth Count
In the ninth count of their complaint, the plaintiffs assert that the Lanzls' conduct constitutes a violation of CUTPA. The Lanzls have moved to strike this count on the grounds that CUTPA does not apply to a single sale of a residential property by a private individual who is not engaged in the business of buying or selling real estate.
In a recent superior court decision, the trial court (Shapiro, J.) reviewed the state of the law regarding whether a single sale of a private residence by a person not engaged in the business of buying or selling real estate may form the basis of a CUTPA violation. Silva v. Aparo, Superior Court, judicial district of New Britain, Docket No. CV 05 4007640 (November 8, 2006, Shapiro, J.) ( 42 Conn. L. Rptr. 345). Quoting from various superior court decisions, the Silva decision stated:
[a]lthough there is a split of authority in the Superior Court over whether or not CUTPA requires that there be more than one allegation of wrongdoing . . . the majority of superior court decisions . . . have held that a litigant does not need to allege more than a single act of misconduct in order to bring an action under CUTPA . . . [U]sually, [however] when CUTPA is held to apply to a single transaction the defendant is an entity or an individual engaged in a business activity which is at the heart of the complaint and the alleged violation. The split in authority is focused on whether CUTPA applies to a single private transaction by one who is not in the business of making such transactions . . . Those selling their own personal residence in particular often fit into this latter category. While our supreme and appellate courts have not ruled on the issue, the majority of recent trial court decisions have found that CUTPA does not apply to the single sale of a personal residence by a seller not in the business of selling houses.
Many judges, . . . while recognizing that a single transaction may be the proper subject of a CUTPA count and that the sale of a residence may form the basis of a CUTPA count, have concluded that despite the broad definition of "trade" and "commerce" within the Act, the essence of the Act is its effort to provide a remedy for the unfair practices purpose of an existing or continuing enterprise, not misconduct that might occur in the course of a one-time transaction by a private individual . . .
[T]he better reasoned opinions are those which hold that a single sale of a residential home by parties not involved in the buying and selling of real estate does not give rise to a CUTPA violation . . . The word "conduct," when used in the context of a trade or commerce means the directing or taking part in the operation or management thereof. Thus it presupposes an existing and continuing enterprise, the antithesis of a one-time, solitary sale.
Id. (citations omitted; internal quotation marks omitted).
In the present case, the plaintiffs do not allege that the Lanzls are engaged in the business of buying or selling real property. Rather, the allegations of the complaint, establish that the Lanzls made a single, isolated sale of their residence to the plaintiffs. This court concurs with the reasoning of the court (Shapiro, J.) in Silva v. Aparo, supra, 42 Conn. L. Rptr. 345 and concludes that CUTPA is inapplicable to the transaction between the Lanzls and the plaintiffs. Accordingly, the motion to strike the ninth count of the complaint is granted.
VIII. Conclusion
For the foregoing reasons, this court grants the motion to strike the Second, Third, Fourth, and Ninth Counts, and denies the motion to strike the Fifth, Sixth, and Eighth Counts.