2010 Ct. Sup. 9467
No. CV 09 6005922SConnecticut Superior Court Judicial District of New Haven at New Haven
April 23, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
WILSON, J.
PROCEDURAL AND FACTUAL BACKGROUND
By service of the writ, summons and complaint, the plaintiff, Christina Pace, commenced this action against the defendant, the North Haven Academy, LLC, on November 10, 2009. The plaintiff alleges the following facts in the first count of her complaint, which sounds in breach of contract. On June 22, 2008, the plaintiff enrolled in a course of instruction in hairdressing and cosmetology offered by the defendant. She intended to obtain a license to engage in the profession of hairdressing and cosmetology, and the course is a prerequisite for the state licensing exams. The defendant arranged a student loan for the plaintiff in a sum in excess of $17,500 to compensate the defendant for that instruction, and which compensation it did receive. After the plaintiff successfully completed 1190 hours of the approximately 1483 hours of instruction required, the defendant terminated the plaintiff’s participation in the program for allegedly stealing personal property belonging to another student enrollee. Despite several requests by the plaintiff, the defendant failed to provide any proof to substantiate its purported reason for so terminating the plaintiff from its program of instruction. The plaintiff further alleges that this termination was wrongful and constituted a breach of contract and, as a result thereof, she was unable to complete the course of instruction, thereby depriving her of eligibility to sit for the licensing exams and obtain gainful employment in the field. The plaintiff must nevertheless repay her student loan in excess of $17,500, all to her further loss and detriment. In the second count, the plaintiff incorporates the foregoing and alleges that the defendant has been unjustly enriched.
In the third count, captioned “CUTPA,” the plaintiff incorporates the allegations of the first count and alleges further: “The conduct of the defendant complained of herein constitutes an unfair trade practice within the meaning of § 42-110b of the Connecticut General Statutes.” In her prayer for relief, the plaintiff seeks “[d]amages . . . [p]unitive CT Page 9468 [d]amages . . . [a]ttorneys [f]ees . . . [and an] order mandating that the [d]efendant reinstate the [p]laintiff in its course of instruction to complete the program contracted for at no further cost to the [p]laintiff pursuant to [the Connecticut Unfair Trade Practices Act (CUTPA)] § 42-110g.”
On December 10, 2009, the defendant filed a motion to strike the third count of the complaint on the ground that it is legally insufficient in that the plaintiff has alleged nothing more than a simple breach of contract and has failed to allege facts which would support a cause of action based on a violation of CUTPA. The defendant filed a memorandum of law in support of its motion. The plaintiff filed a memorandum in opposition on December 24, 2009. The court heard oral argument on March 29, 2010.
DISCUSSION
“Whenever a party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” Practice Book § 10-39(a). “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.)American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Id.
The defendant argues that the plaintiff failed to allege facts which would constitute immoral, unethical, oppressive or unscrupulous behavior. Nor does she allege that there are substantial aggravating circumstances attending the breach of contract which would permit recovery under CUTPA. Accordingly, it submits, the count must be stricken. The plaintiff maintains that she has alleged facts which support an action in CUTPA.
“[General Statutes §] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA [our courts] have 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 CT Page 9469 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 . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . .” (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008). “[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.” (Emphasis in original; internal quotation marks omitted.)Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 214, 932 A.2d 401 (2007).
“The same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation. Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). Not every contractual breach rises to the level of a CUTPA violation. Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571, 845 A.2d 417 (2004).” Greene v. Orsini, 50 Conn.Sup. 312, 315, 926 A.2d 708 (2007). “[A]bsent substantial aggravating circumstances, [a] simple breach of contract is insufficient to establish [a] claim under CUTPA.” Lydall v. Ruschmeyer, 282 Conn. 209, 248, 919 A.2d 421 (2007). Generally, “the aggravating factors present [must] constitute more than a failure to deliver on a promise.” Greene v. Orsini, supra, 50 Conn.Sup. 315. “In a sense, unfairness inheres in every breach of contract when one of the contracting parties is denied the advantage for which he contracted, but that is why remedial damages are awarded in contract claims. If such an award is to be trebled, the [state] legislature must have intended that substantial aggravating circumstances be present.” (Internal quotation marks omitted.) Designs on Stone, Inc. v. John Brennan Construction Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 059997 (April 9, 1998, Corradino, J.) (21 Conn. L. Rptr. 659, 661) (note that “[t]he [c]ourt in effect adopts the reasoning of [a North Carolina court] interpreting [that state’s] CT Page 9470 unfair trade practices act”).
“[W]hen the Superior Courts have permitted a CUTPA cause of action based on a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances.” Finocchio v. Atlantic Mutual Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5009607 (April 22, 2009, Adams, J.) (47 Conn. L. Rptr. 624, 627). See, e.g., O G Industries, Inc. v. Earth Technology, Inc., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 08 5006408 (January 6, 2010, Bellis, J.) (denying motion to strike when Konover allegedly maliciously withheld funds to exert financial pressure on plaintiff to pay O G’s claims); Lamotte v. Lamotte Landscaping, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 07 5003090 (August 5, 2009, Brazzel-Massaro, J.) (denying motion to strike when defendant provided “purposeful, intentional, untruthful information concerning the list of customers of the business” in order to induce purchase of business by plaintiff); Rampage Marketing Services, Inc. v. Simpson, Superior Court, judicial district of Windham, Docket No. CV 08 50027035 (May 27, 2009, Riley, J.) (denying motion to strike when plaintiff alleged that defendant “enticed the plaintiff into making significant improvements to the Ashram parcel by appearing to fully cooperate in the proposed business venture, even though he actually had no intention to permit the business to operate”).
In the present case, the plaintiff incorporates her breach of contract count into the CUTPA count and alleges only that “[t]he conduct of the defendant complained of herein constitutes an unfair trade practice within the meaning of [CUTPA].” She alleges that “the defendant terminated [her] participation in its program for allegedly stealing personal property belonging to another student enrollee” but “failed to provide any proof to substantiate its purported reason for so terminating [her enrollment].” These facts, if proven, do not amount to immoral, unethical, oppressive or unscrupulous behavior. She alleges that she “successfully completed 1190 hours of the approximately 1483 hours of instruction required” before the defendant terminated her enrollment, but she “must nevertheless repay her student loan in excess of $17,500, all to her further loss and detriment.” She does not allege a misrepresentation that induced her reliance in the formation of the contract with the defendant, nor does she allege an actual deceptive practice which causes substantial injury to consumers.
The plaintiff has not alleged substantial aggravating circumstances attending the breach of contract, nor any other facts which could bring her claim within the cigarette rule. Although the plaintiff may feel that CT Page 9471 it is “unfair” that she must repay her student loan without having the benefit of permission to complete her course work, such unfairness is of the kind that inheres in every alleged breach of contract when one of the contracting parties is denied the advantage for which she contracted, but it does not amount to a violation of CUTPA as pleaded.
CONCLUSION
Accordingly, the defendant’s motion to strike the third count of the complaint is granted.
CT Page 9472