1368 WING DEVELOPMENT CORP. v. CHAN, No. CV-07-5101397 (Jul. 31, 2008)

1368 WING DEVELOPMENT CORP. ET AL. v. PAULUS CHAN ET AL.

2008 Ct. Sup. 13434, 46 CLR 207
No. CV-07-5101397Connecticut Superior Court Judicial District of New London at Norwich
July 31, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO STRIKE (#123)
JAMES W. ABRAMS, JUDGE.

This action stems from a real estate transaction in which plaintiffs purchased a building, but were allegedly of the understanding that they also were purchasing the adjoining parking lot. Upon discovering that they had only purchased the building, plaintiffs sued their attorney, the seller, their real estate agent and agency. By Motion dated May 1, 2008, defendant realtor Frank Busch and defendant Loft Realty seek to strike several counts of plaintiff’s Substitute Complaint dated April 23, 2008. Plaintiffs filed an Objection dated June 2, 2008 and the parties presented oral argument before the Court on July 28, 2008. Specifically, defendants seek to strike Counts Five and Ten which state claims for breach of contract and Counts Nine and Fourteen which state claims for violation of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42a-110b et seq. (hereinafter “CUTPA”).

I Motion to Strike Standards
“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552-53
(2008). “The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail.” Mingachos v. CBS, Inc., 196 Conn. 91, 108-09 (1985).

II Counts Five and Ten — Breach of Contract
Defendants seek to strike plaintiffs’ breach of contract claims based on the argument that they constitute improper restatements of plaintiffs’ negligence claims: “[P]utting a contract tag on a tort claim will not CT Page 13435 change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of a duty imposed by law.” Gazo v. City of Stamford, 255 Conn. 245, 263
(2001).

However, it appears that such an argument is more appropriately made in a motion for summary judgment or at trial, rather than in a motion to strike. “Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.” Drier v. Upjohn Co., 196 Conn. 242, 245 (1985). A review of the Substitute Complaint in this matter reveals that plaintiff has asserted legally sufficient claims for breach of contract and, as a result, defendants’ Motion to Strike Counts Five and Ten of the Substitute Complaint is hereby denied.

III Counts Nine and Fourteen — CUTPA
Defendants argue that the CUTPA claims contained in Counts Nine and Fourteen should be stricken because CUTPA does not apply to allegations of professional malpractice. Professional malpractice claims cannot be brought under CUTPA if the activity complained of relates to the actual representation of the client, as opposed to the entrepreneurial or commercial aspects of the profession: “We conclude that professional negligence — that is, malpractice — does not fall under CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA.” Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34
(1997).

In this case, plaintiff’s CUTPA claims involve defendants’ dual representation of buyer and seller in the transaction at issue, including an allegation that defendants failed to inform plaintiffs of this arrangement, rather than claims involving defendants’ actions relating to the real estate transaction itself. The Court concludes that these allegations, when afforded the favorable construction necessary in considering a Motion to Strike, involve the entrepreneurial and commercial aspects of the real estate practice and, as a result, can support a claim under CUTPA. See, Facchini v. Miller, Judicial District of Hartford at Hartford, Docket No. 99-0587686 (January 31, 2000, Wagner, J.). As a result, defendants’ Motion to Strike Counts Nine and Fourteen of the Substitute Complaint is hereby denied.[1]

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[1] The parties’ briefs both address the question of whether the professional malpractice exemption from CUTPA claims extends to realtors, a question that the Court does not need to decide in ruling on this Motion. While this protection from CUTPA claims has been extended to a number of professions beyond law and medicine, including engineering, accounting, insurance, education, and architecture, see, Krassner v. CPM Insurance Services, Judicial District of New Haven at New Haven, Docket No. CV O1-0456362 (August 8, 2002, Booth, J.) [32 Conn. L. Rptr. 701], there does not appear to be any direct authority on the question of whether it applies to realtors. While plaintiffs cite Cornerstone Realty, Inc. v. Dresser Rand Co., 993 F.Sup. 107 (D.Conn. 1998), in support of the proposition that realtors can be held liable for CUTPA violations under Connecticut law, that case is of limited applicability as the realtor was also the seller of the property.

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