Opinion
No. CV07-5004505S
November 21, 2007
MEMORANDUM OF DECISION
FACTS
On April 26, 2007, the plaintiff, Pamela Hewitt, filed a two-count complaint against the defendant, Larry Albaitis, alleging a breach of contract and violations of the Connecticut Unfair Trade Practices Act (CUTPA). In her complaint, the plaintiff alleges the following facts. From June 2006 through February 2007, the plaintiff and the defendant had an agreement for the defendant to remodel the plaintiff's residence. The plaintiff made periodic payments between July and November 2006. On January 25, 2007, upon the defendant's request, the plaintiff tendered payment of $93,000 for work started but not yet completed. Thereafter, the defendant made no significant progress in the work, and, on March 2, 2007, the borough of Naugatuck building department ordered the work stopped for violations of the residential building code. Despite the plaintiff's written request, the defendant has made no refund.
On August 30, 2007, the defendant filed a motion to strike the complaint on the ground that both counts of the complaint allege that the defendant violated the Connecticut Home Improvement Act, which does not provide homeowners with a right of action against contractors. The defendant submitted a memorandum of law in support of this motion. On September 10, 2007, the plaintiff filed an objection to the defendant's motion, along with a memorandum of law in opposition to the motion to strike.
DISCUSSION
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "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). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Id. "[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, 281 Conn. 277, 294, 914 A.2d 996 (2007). "[P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
In his memorandum of law in support of the motion to strike, the defendant asserts that the plaintiff bases her complaint on a violation of the Home Improvement Act. The defendant argues that a homeowner cannot use the Home Improvement Act to sue a contractor; instead, the homeowner may use the act as a defense if the contractor sues her. The defendant argues that, because the statute does not provide a right of action, the court should strike count one. Furthermore, the defendant argues that the court should strike count two because the plaintiff bases her CUTPA claim solely on a violation of the Home Improvement Act. The plaintiff counters that count one of the complaint states a breach of contract claim, not a violation of the Home Improvement Act. Additionally, the plaintiff argues that, even if the complaint is based on the Home Improvement Act, the court should allow her to avail herself of this act's protections. Finally, the plaintiff argues that the court should not strike count two because a violation of the Home Improvement Act can be the basis for a claim filed under CUTPA.
In count one, the statutory provision in question is General Statutes § 20-429, which contains specific requirements for home improvement contracts. The provisions of this statute define when a contract is valid or enforceable against the homeowner, but do not provide an expressed remedy for a violation. General Statutes § 20-429. Accepting for the sake of argument that this act does not provide a right of action, count one of the complaint still survives a motion to strike because it does not depend on the statutory violation for its cause of action. The only reference to the statute is in the third paragraph of the count, which states that the defendant "failed to provide a written contract as required pursuant to Section 20-429 . . ." The plaintiff does not allege that her damages came from the violation of this statute or that relief should be granted because of the defendant's alleged violation of § 20-429.
Upon examining the allegations of the first count in their entirety, one can see that the plaintiff spells out the elements for a common-law breach of contract claim. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). Here, the plaintiff alleges that the two parties had an agreement. Pursuant to that agreement, the plaintiff performed by paying $93,000 to the defendant, who, in turn, did not perform his side of the contract. The plaintiff alleges damages of $93,000 as a result of this breach. These allegations support a cause of action for breach of contract and do not depend upon the alleged violation of § 20-429.
In count two, the plaintiff incorporates the first ten paragraphs of count one and alleges a number of Home Improvement Act violations by the defendant. The plaintiff alleges that the portions incorporated from count one, when read with the Home Improvement Act violations, constitute a cause of action under CUTPA. The defendant argues that, because the Home Improvement Act provides no cause of action for homeowners, a violation of the act cannot support a CUTPA claim on its own.
"[I]n order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Emphasis in original; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn.App. 645, 652, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007). The Connecticut Appellate Court has determined that "[i]t is possible to use CUTPA as a vehicle through which to bring a claim, regardless of whether the Home Improvement Act provided a private right of action that could stand alone." Id., 652 n. 5; accord, Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 381, 880 A.2d 138 (2005) ("[T]he plaintiffs could use CUTPA as a vehicle through which to bring the claim, regardless of whether the underlying statute conveyed a private right of action that could stand alone."); Macomber v. Traveler's Property Casualty Corp., 261 Conn. 620, 645 n. 14, 804 A.2d 180 (2002) (holding violation of statute without right of action can support CUTPA claim). Additionally, the Home Improvement Act itself provides that "[a] violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of [CUTPA]" General Statutes § 20-427(c). Therefore, CUTPA is a proper means of seeking recovery for a violation of the Home Improvement Act.
In examining the complaint, one can see that the plaintiff's allegations tie the defendant's violation of the Home Improvement Act to the plaintiff's alleged damages, satisfying the requirements of CUTPA. The defendant's failure to refund the plaintiff's money upon her written request in violation of § 20-427(b)(8) could be tied to the plaintiff's alleged damages of the $93,000. Also, the allegations of violations of the Home Improvement Act along with the allegations of the shutdown of the construction project by the borough of Naugatuck building department allow an inference that the two were connected. Therefore, the allegations of the second count of the complaint support a cause of action under CUTPA.
The court denies the defendant's motion to strike counts one and two of the complaint because the plaintiff has stated two causes of action for which relief can be granted. Count one states factual allegations that support a common-law breach of contract action, and the allegations of violations of the Home Improvement Act in count two provide a valid CUPTA claim.