Opinion
No. CV 05 4020023S
July 2, 2008
MEMORANDUM OF DECISION AS TO DEFENDANT'S MOTION TO STRIKE
The defendant has filed a Motion to Strike (Motion 152) dated July 3, 2007. Since that motion was filed the over 30 motions have been filed in this matter including a request to amend the complaint (Motion 160). The plaintiff has filed an Objection to Motion to Strike (Motion 181.10). This is an action for breach of contract, negligence, misrepresentation, fraud and CUTPA arising out of a contract for the defendant to build a new home for the plaintiffs.
Due to the amended complaint, the only issue before the court pertains to count five which is the CUTPA claim.
The defendant is claiming that the plaintiff has failed to state a cause of action under Connecticut General Statute section 42-100A, (CUTPA).
The plaintiff claims that the defendant's failure to renew his New Home Construction Contractor's License is a per se violation of CUTPA. In addition, the plaintiff also claims that the defendant made promises to return to the job site to finish or repair work being performed, issued checks knowing they were drawn on accounts with insufficient funds and made commitments for completion dates knowing that the consumers (and homeowners) would rely upon those promises to their detriment.
DISCUSSION OF THE LAW
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.26 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, CT Page 11132 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
A motion to strike is an appropriate means of presenting to the court legal issues at the onset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
DISCUSSION
"It is well settled that in determining whether a practice violates CUTPA [the Connecticut Supreme Court has] 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." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). In this matter, there are two statutes, which read together satisfy the first criteria of "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." They are the statutes which pertain to the licensing of contractors who build new homes.
The statutes pertaining to licensing are as follows:
Sec. 20-417b. Registration of contractors required. Application. Fees. Renewal.
CT Page 11133
(a) No person shall engage in the business of new home construction or hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration by the commissioner in accordance with the provisions of sections 20-417a to 20-417j, inclusive. No new home construction contractor shall be relieved of responsibility for the conduct and acts of its agents, employees or officers by reason of such new home construction contractor's compliance with the provisions of sections 20-417a to 20-417j, inclusive.
(b) Any person seeking a certificate of registration shall apply to the commissioner, in writing, on a form provided by the name, business street address and business telephone number, (2) the identity of the insurer that provides the applicant with insurance coverage for liability, (3) if such applicant is required by any provision of the general statutes to have workers' compensation coverage, the identity of the insurer that provides the applicant with such workers' compensation coverage, and (4) if such applicant is required by any provision of the general statutes to have an agent for service of process, the name and address of such agent. Each such application shall be accompanied by a fee of one hundred twenty dollars, except that no such application fee shall be required if such person has paid the registration fee required under section 20-421 during any year in which such person's registration as a new home construction contractor would be valid.
(c) Certificates issued to new home construction contractors shall not be transferable or assignable
(d) All certificates issued under the provisions of sections 20-417 to 20-417j, inclusive, shall expire biennially. The fee for renewal of a certificate shall be the same as the fee charged for an original application, except that no renewal fee is due if a person seeking renewal of a certificate has paid the registration fee under section 20-427 during any year in which such person's registration as a new home construction contractor would be valid.
(e) A certificate shall not be restored unless it is renewed not later than one year after its expiration.
(f) Failure to receive a notice of expiration or a renewal application shall not exempt a new home construction contractor from the obligation to renew.
Sec. 20-417g. Unfair trade practice.
A violation of any of the provisions of sections 20-417a to 20-417j, inclusive, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.
Therefore, if the defendant did not have a license pursuant to Section 20-417a then 20-417g makes such a violation an unfair or deceptive trade practice. See also Malone v. Krieder, Superior Court, judicial district of Fairfield, Docket No. CV 06-4014215S (Nov. 14, 2006, Richards, J.) 2006 Ct.Sup. 21023.
Further, the plaintiff has alleged sufficient facts to state a violation of CUTPA when they claimed that they suffered damages as a result of the defendant's conduct. In Hoydic v. BE Juices, Inc., Superior Court, judicial district of Stamford at Stamford, Complex Litigation Docket No. X08-CV03-4010104S (February 27, 2008, Jennings, J.) 2008 Ct.Sup. 3570 the court held "It has been held that a misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would in effect be a deceptive act . . . CUTPA liability should not be imposed, however, when a defendant merely has not delivered on a promise unless the defendant made a representation as to a future act coupled with a present intent not to fulfill the promise." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates, Superior Court, judicial district of Windham, Docket No. CV 03 0070166 (June 21, 2007, Martin, J.). But it is has also been held that "[even an] innocent misrepresentation can amount to a CUTPA violation." Friedlander Limited Partnership v. Cohen, Superior Court judicial district of Bridgeport, Docket No. CV 04 0412571 (April 15, 2005, Skolnick, J.). "Where . . . a defendant made a misrepresentation during the course of the defendant's business practice, with or without the intent to deceive or fraud, and that misrepresentation led a plaintiff to lose money or property, that plaintiff has alleged a cause of action under CUTPA . . . Negligent misrepresentation suffices as a basis for a CUTPA claim and as an aggravating factor making a breach of contract action also the basis of a CUTPA claim." Id. at CT pg. 3583.
Therefore, the Motion to Strike is denied.