Opinion
CV156059983S
04-04-2016
Mozzer Built, LLC et al. v. Robert Uguccioni et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS OR, IN THE ALTERNATIVE, STRIKE COUNTS 50, 51, AND 52 OF PLAINTIFFS' COMPLAINT (#198)
Jane S. Scholl, J.
In Counts 50, 51, and 52 of the plaintiffs' complaint, each of the plaintiffs bring an action pursuant to the Unfair Trade Practices Act against the Law Offices of Charles G. Walker and Travelers Indemnity Company. They claim that Travelers Indemnity and the Law Offices of Charles G. Walker do not have a certificate on file in the city of Hartford as required by General Statutes § 35-1 and that the failure to file a fictitious name certificate is an unfair trade practice in violation of General Statutes § 42-110b, et seq. The plaintiffs claim that the defendants make their business appear to be a law firm when it is in fact a division of Travelers. They allege that as a result they have suffered an ascertainable loss. The defendant Travelers Indemnity Company, as and for itself and as improperly sued as the Law Offices of Charles G. Walker, has moved to dismiss, or in the alternative, strike Counts 50, 51, and 52. It argues that the plaintiffs have no standing to bring these claims because they have suffered no ascertainable loss and do not have a commercial relationship with the Travelers on which to base a claim under CUTPA.
" Standing concerns the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Med-Trans of Connecticut, Inc. v. Department of Public Health & Addiction Services, 242 Conn. 152, 160, 699 A.2d 142 (1997). " If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485-86, 815 A.2d 1188 (2003).
The plaintiffs' CUTPA claim is based on the allegation that Travelers and the Law Offices of Charles G. Walker do not have a certificate on file in the city of Hartford as required by General Statutes § 35-1.
General Statutes § 35-1 provides: " (a) No person, except as provided in this subsection, shall conduct or transact business in this state, under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the person or persons conducting or transacting such business, unless there has been filed, in the office of the town clerk in the town in which such business is or is to be conducted or transacted, a certificate stating the name under which such business is or is to be conducted or transacted and the full name and post-office address of each person conducting or transacting such business or, in the case of a corporation or limited liability company using such an assumed name, its full name and principal post-office address. Such certificate shall be executed by all of such persons or, in the case of a corporation or limited liability company, by an authorized officer thereof, and acknowledged before an authority qualified to administer oaths . . . Failure to comply with the provisions of this subsection shall be deemed to be an unfair or deceptive trade practice under subsection (a) of section 42-110b . . ."
General Statutes § 42-110g(a) provides: " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."
" CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . . General Statutes § 42-110g(a) . . . Thus, in 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 . . . With regard to the requisite causal element, it is axiomatic that proximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act." (Citations omitted; internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306-07, 692 A.2d 709 (1997).
In Heath v. Micropatent, Superior Court, Docket No. CV 980401481, (June 4, 1999), Judge Silbert addressed a similar claim as that made here. " In their complaint, the plaintiffs allege that the defendants have not complied with General Statutes § 35-1 and as a result have violated CUTPA. The plaintiffs do not, however, allege any injury as a result of the defendants' alleged violation of § 35-1. The plaintiffs must allege some injury as a result of the defendants' failure to comply with § 35-1 in order to support their CUTPA claim based on the alleged violation of that statute . . . This failure is fatal to the plaintiffs' CUTPA count, and the defendants' motion to strike count one is therefore granted." (Citations omitted; internal quotation marks omitted.) Here there are no factual allegations in the complaint that support the plaintiffs' claim that they suffered an ascertainable loss as a result of the failure of the defendants to comply with General Statutes § 35-1. The complaint alleges that Travelers carries out its contractual obligations to its insureds under the name of Law Offices of Charles G. Walker. The complaint simply alleges that the defendants were the attorneys for the defendants Horvaths in a premise liability action in which the plaintiffs were added as defendants, allegedly based on input from Jan Pennito, the attorney from the Offices of Charles Walker who represented the Horvaths. The factual allegations in the complaint do not support the plaintiffs' conclusory statement that they have suffered an ascertainable loss.
The plaintiffs also are not within the zone of interest that the provisions of General Statutes § 35-1 were designed to protect. " Conn. Gen. Statute, § 35-1 is intended to protect creditors and not employees. The plaintiff alleges he is an employee and not a creditor. It is found that § 35-1 does not itself create a private cause of action, but can be a basis of a cause of action if facts necessary to support a CUTPA claim are pled . . . From this we conclude that, even though as an incidental benefit § 35-1 may provide some protection to persons transacting business under a trade name, it is primarily intended to protect creditors by giving them constructive notice of the contents of the trade name certificate . . . The second ground for striking the challenged count is that it does not allege a nexus between the plaintiff's alleged injuries and the failure to register the partnership certificate. The plaintiff's claim, however, must fail because in order to prove a private cause of action under CUTPA, the plaintiff must show not only that [the defendant] engaged in an unfair trade practice, but that he suffered harm as a result." (Citations omitted; internal quotation marks omitted.) Perez v. Ellis, Superior Court, Docket No. CV 950552958S, 1996 WL 240426, at *1 (Spada, J., Apr. 16, 1996) . " Connecticut cases have consistently ruled that the fictitious name statute was principally intended for the protection of creditors . . . This interpretation is in accordance with the general view throughout the country . . . In this regard, the plaintiff's status as personal injury claimant is not that of a creditor and thus outside the primary purpose of § 35-1. While protection of creditors is the principal object of § 35-1, our cases make clear that it is not the only object. Its purpose is also to protect the public against fraud and deceit . . . and those who might deal with the fictitious entity . . . Our Supreme Court has stated that the object of the statute is to enable a person dealing with another trading under a name not his own, to know the [person] behind the name, that he may know or make inquiry as to his business character or financial responsibility . . . In assessing the appropriate reach of § 35-1, one must be mindful that the statute is in derogation of the common law, and is penal in nature and therefore should be strictly construed and not extended to situations not clearly within its provisions . . . Based on the above, the court finds that § 35-1 should not apply to personal injury claimants such as the plaintiff. Even extending the statute beyond the protection of creditors, its fundamental purpose remains the same-to let people know who they are really dealing with so that they can investigate and protect their interests. In other words, the purpose is prospective in nature allowing persons, in advance, to guard against fraud." (Citations omitted; internal quotation marks omitted.) Sangan v. Stop & Shop Companies, Inc., Superior Court, Docket No. CV000441810S, 2001 WL 761141, at *2 (Devlin, J., June 15, 2001) .
The plaintiffs attempt to claim that they are creditors of Travelers in order to confer on them standing to bring the claims set forth in Counts 50, 51, and 52. They claim that they have expended unnecessary legal fees and expenses in trying to determine who should be named as a defendant in this case and having to amend their complaint to serve another entity, Travelers, for the misdeeds of the Law Offices of Charles G. Walker. This argument is without merit since it reveals that the plaintiffs, prior to instituting this action, had not suffered any loss as a result of any actions by the defendants. The court in Phelps, Inc. v. Friedman, Superior Court, Docket No. CV 96558 154S, 1997 WL 85200, at *6 (Sullivan, J., Feb. 10, 1997) held that: " The plaintiff herein does not claim that had someone filed a certificate of trade name the plaintiff would have made any decisions differently than the decision which it did in fact make in entering into and performing this work. Had the plaintiff known the full corporate name of the corporation the end result would have been exactly the same. No claim is made as to reliance on one name rather than another, or that it would have made further inquiry, or the like, or that it would have done anything differently than what it did. The court determines that even if it could be established that the individual defendant would have been authorized by law, as a non-officer, to file a certificate on behalf of the corporation, (which he would not be so authorized or required under the literal reading of General Statutes § 35-1), a failure to file such a certificate would not, under the facts proven here, be a proximate cause of the loss of money or property of the defendant. The plaintiff's claim for damages under CUTPA, General Statutes § 42-110a et seq. cannot prevail." Similarly here there is no allegation by the plaintiffs that they have suffered any loss as a result of the failure of the defendants to file a trade name certificate.
Travelers also claims that the plaintiffs do not have a commercial relationship with Travelers such as to confer standing. In Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 725-27, 627 A.2d 374 (1993), the plaintiff attempted to bring a CUTPA claim against the attorney who represented her opponent in an eviction and collection action brought against her. The Court held that:
" Although § 42-110b(d) provides that [i]t is the intention of the legislature that this chapter be remedial and be so construed . . . and although [p]rivate litigation under this act is essential and the [1979] proposal would ease the burden on private individuals and thus encourage private litigation . . . it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any 'trade' or 'commerce.' Although privity, in the traditional contractual sense of an exchange of consideration between parties, may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or to her." (Citations omitted; internal quotation marks omitted.)
In Macomber v. Travelers Prop. & Cas. Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002), however the Court reiterated the limited scope of its holding in Jackson as explained in Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 656 A.2d 1009 (1995). There the Court stated: " We previously have stated in no uncertain terms that CUTPA imposes no requirement of a consumer relationship. In McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 473 A.2d 1185 (1984), we concluded that CUTPA is not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury . . . Despite this pronouncement, the defendants cite to language quoted in Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 727, 627 A.2d 374 (1993), that 'a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or to her.' We clarified this language, however, in Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 495-96, 656 A.2d 1009 (1995), stating: 'Although we acknowledge the presence of dicta in Jackson pertaining to consumer relationships, our holding in that case was merely that allowing a plaintiff to sue her opponent's attorney under CUTPA would infringe on the attorney-client relationship.' We then went on to reaffirm our position that a consumer relationship is not a prerequisite to having standing to assert a CUTPA violation." (Citation omitted.) Although Travelers' concedes that one need not be a consumer to sue under CUTPA, it argues that a plaintiff still must have some sort of commercial relationship with the defendant. The court agrees. " Although our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Citation omitted.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269 (2006). " CUTPA has its own standing requirements . . . The act recognizes three categories of plaintiffs: consumers, competitors and other business persons affected by unfair or deceptive acts . . . Although privity, in the traditional contractual sense . . . may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly causes harm to him or to her." (Citations omitted.) Gilbert v. Beaver Dam Ass'n of Stratford, Inc., Superior Court, Docket No. CV003749055, 2001 WL 950864 (Rush, J., July 24, 2001). The only relationship alleged by the plaintiffs to Travelers is that an attorney from the Law Offices of Charles G. Walker represented the Horvaths in a premises liability action brought by the defendant Uguccioni for injuries he sustained as a result of a slip and fall on the Horvaths' property, and that the Horvaths' attorney encouraged, requested, suggested, and recommended to Uguccioni's attorneys that the plaintiffs here be made defendants in that premises liability action, which was done. There is no allegation in the complaint that the defendants had any dealings with the plaintiffs, commercial or otherwise, simply that the plaintiffs may have been brought into the Uguccioni litigation at the defendants' suggestion.
Therefore the motion to dismiss Counts 50, 51, and 52 is granted.