ABC Printing, Inc. v. AA Office Systems, Inc.

2007 Ct. Sup. 2476
No. CV06-5005501SConnecticut Superior Court Judicial District of New Haven at New Haven
February 6, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO DISMISS CUTPA CLAIM FOR LACK OF JURISDICTION

CORRADINO, THOMAS J., J.

The defendant has filed a motion to dismiss the second count of the complaint alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The basis of the motion is that the court has no jurisdiction since “an action under CUTPA may not be brought more than three years after the occurrence of a violation of this chapter.” (Sec. 42-110g(f)).

A motion to dismiss is the appropriate vehicle to raise this claim. Our court has said that “where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during prescribed period and not thereafter . . . (U)nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite . . .”Ecker v. West Hartford, 205 Conn. 219, 232 (1987); Ambrose v. William Raveis Real Estate, Inc., 226 Conn. 757, 766 (1993). As the defendant notes Avon Meadow Cond. Assoc., Inc. v. Bank of Boston Conn., 50 Conn.App. 688, 699-700 (1998) applied this analysis to a CUTPA claim in upholding the trial court’s decision that it had no jurisdiction because § 42-110g(f) was not complied with by the plaintiff. A motion to dismiss can certainly raise “lack of jurisdiction over subject matter,” PB § 10-31(a)(1); that section sets forth the grounds for such a motion.

The defendant, in support of its motion, sets forth its conception of the nature of the claim and the factual basis for its motion to dismiss. The defendant under the facts section states:

“1. The plaintiff and the defendant entered into an agreement on or about September 23, 2002.

2. The plaintiff claims the defendant told the plaintiff that it would charge fourteen cents per color copy scan. CT Page 2477

3. The plaintiff claims that such representations were made at the time the contract was entered into.

4. The plaintiff claims that such representations were false and misleading in that the defendant has, since the date of the contract, charged double that price for scans larger than 8-1/2″ x 11″ sheets of paper.”

The defendant then cites CUTPA’s three-year statute of limitations and makes the following arguments:

The gravamen of the plaintiff’s complaint is that he thought each scan of any size paper would be charged at fourteen cents per page regardless of the size of the page. Plaintiff has never charged for sizes other than letter size paper and such is the industry standard. The unfair trade practice of which the plaintiff complains is really an alleged misrepresentation regarding the cost per scan as initially set forth in September of 2002. The plaintiff signed the contract with the Defendant on September 23, 2002. Any representations as to the pricing of the defendant’s services were made prior to that date. (See the attached affidavit of the Defendant’s President, John J. Sullivan.) Accordingly, this action is beyond the three-year statute of limitations and must be dismissed.

The plaintiff submitted no counter affidavit. It submitted the agreement and billing invoices attached to its objection to the motion to dismiss and said in the objection, “the record is clear both in the plaintiff’s complaint and in the continued billing documents attached hereto that the defendant did bill the plaintiff at a rate in excess of the stated contract price up to and including the most recent bill of June 3, 2006.”

At the hearing on this motion, the court asked counsel if an evidentiary hearing was necessary. Both sides agreed that the matter could be decided on what has been submitted which would include the briefs and which refer to the complaint. As noted, PB § 10-31 sets forth the grounds for a motion to dismiss and in the Horton and Knox commentary to the section, Vol. I, Connecticut Practice Series at page 478 the authors make two comments relevant to this inquiry. CT Page 2478

(1.) “In deciding a motion to dismiss, allegations of facts in the pleadings are read broadly in favor of the plaintiff, but conclusions of law are not given presumptive validity. Shay v. Rossi, 253 Conn. 134, 140-41 . . . (1950).”

(2) The authors also suggest “there is a distinction between standing to claim a cause of action and the validity of that cause of action. The latter should not be decided under the guise of standing, Reitzer v. Board of Trustees, 2 Conn.App. 196, 201 . . . (1984).” It would seem to this court at least, that where the jurisdictional attack on one of these statutory remedies is raised under the statute of limitations, the actual factual merits of the dispute between the parties is not in issue.

In analyzing the problem before the court, it is important to examine the complaint first, giving it every favorable inference.

The first count sets forth a standard breach of contract claim relying on the breach of a written agreement between the parties which is attached to the complaint. Paragraph 4 states that, “the terms of the contract included a charge cost copy of fourteen cents per scan for color copes to billed quarterly” (sic). The fifth count states that, “the defendant has been charging the plaintiff twenty-eight cents per color copy, which is double the amount set forth in the contract.” The CUTPA count incorporates the foregoing factual allegations of the breach of contract count then merely says in three concluding paragraphs that the acts alleged were in trade or commerce, the conduct alleged was an “unfair defective act or practice” violating § 42-110b of CUTPA and as a result of such conduct, the plaintiff has suffered an ascertainable loss.

The court will rely on its discussion in Designs on Stone, Inc. v. Brennan Cons. Co., 21 Conn. L. Rptr. 659 (1998), for the widely accepted proposition that a CUTPA claim cannot be based on a simple breach of contract but must rely on aggravating circumstances accompanying the claim of breach. It has been held that “misrepresentation” can be such an aggravating circumstance — it would, in effect, be a deceptive act CNF Constructors, Inc. v. Culligan Water Conditioning Co., Inc., 8 CSCR 1057 (1993), cf Production Equipment Co. v. Blakeslee Arpaia Chapman, Inc., 15 Conn. L. Rptr. 558. But as said in Designs on Stone: “. . . this court has found no case that holds that a statement predictive of future conduct — here performance under a contract — somehow becomes a `misrepresentation’ for CUTPA purposes simply when the party making the CT Page 2479 representation cannot (or, it should be added, does not) deliver on the promise.” There is not an explicit claim made here that a misrepresentation was made to induce the contract at the time of contract foundation or that at that time (giving the complaint every favorable inference to preserve jurisdiction) the defendant knew or should have known it could not deliver the copies at the price allegedly agreed upon.

Inotherwords, the “wrongful” conduct alleged here occurred only when and also at every time an inflated bill was sent by the defendant when it knew it had no right to the amount claimed under the contract it had entered into.

Inotherwords, every allegedly false billing was a wrongful act which could be characterized as unfair and perhaps deceptive at the time the bill was sent — maybe implicitly relying on the fact that the bills were quarterly, thus making it more difficult to discover the overcharge although this is not explicitly stated.[1]

Also, it seems to the court at least that, again giving the CUTPA claim every favorable inference from the language of the complaint, it would be unfair to apply the CUTPA statute of limitations (§ 42-110g(f) here to bar the claim, especially in light of the fact that CUTPA it is an ameliorative statute. That is, as to the breach of contract limitations statute (§ 52-576a), it has been said that “while the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered to have accrued. The true test is to establish the time when the plaintiff first could have successfully maintained the action.” Wynn v. Metropolitan Property Casualty Ins. Co., 30 Conn.App. 803, 807-08, aff’d 228 Conn. 436 (1994), cited with approval in Engelman v. Conn. Gen. Life Ins. Co., 240 Conn. 287, 294 at fn 7 (1997), cf. Kennedy v. Johns-Manville Sales Corp., 14 Conn.Sup. 464 (Inglis, J. 1946). That reasoning, at least for this court, should apply here. Until the allegedly false bills came, how on earth would the plaintiff have had any idea it was being taken advantage of, if that is in fact what occurred. And again, the court need not and has not decided the merits of the CUTPA claim, but is confining itself to the jurisdictional attack.

It should be noted, however, that the logic of the court’s position, would seem to require that a statute of limitations defense should perhaps apply to only those false billings that took place three years prior to the filing of the complaint.[2]
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In any event, the motion to dismiss on jurisdictional grounds is denied.

Thomas J. Corradino, J.

[1] Applying this view of the matter, the court does not have to get involved in the intricacies of the “continuing course of conduct doctrine,” see Fichera v. Mine Hill Corporation, 207 Conn. 204, 208 et seq. (1988). There the court said in applying § 42-110g(f) and importing prior non-CUTPA case law “where we have upheld a finding that a duty continued after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act,” id. p. 210.

Here it could be said every alleged false billing is its own separate act or omission or the later billings can be characterized as wrongful conduct related to the fact of the establishment of contractual relations.

[2] The court makes no conclusion as to any defenses that may arise after the first false billing if in fact, that billing is shown to be false.

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