Ring v. Litchfield Bancorp , 174 Conn. App. 813 ( 2017 )

 MARY ANN RING v. LITCHFIELD BANCORP
(AC 39111)
DiPentima, C. J., and Keller and Graham, Js.
Syllabus
The plaintiff sought to recover damages from the defendant bank for its
alleged violation of the Connecticut Unfair Trade Practices Act (§ 42-
110 et seq.). The plaintiff had made a $40,000 payment to C Co. pursuant
to an agreement to remediate water damage at the plaintiff’s home, and
although C Co. failed to provide labor or materials to the plaintiff, it
deposited the payment into its account with the defendant. The defen-
dant subsequently exercised its right to a setoff against the funds in C
Co.’s bank account and informed C Co.’s owner of the setoff, who
responded that certain of the funds in its account belonged to the
plaintiff. The defendant refused the plaintiff’s demand for the return of
the payment she had made to C Co., and the plaintiff brought the present
action alleging that the defendant’s conduct in offsetting the funds in
C Co.’s account that included her payment to C Co. violated the act.
The trial court granted the defendant’s motion to strike the complaint,
concluding that the allegations were insufficient to support the requisite
elements of a claim under the act. The court reasoned that, in the
absence of a seasonable stop payment order or a designation that the
money was being held for the benefit of someone other than C Co.,
once the plaintiff’s payment had been deposited in C Co.’s account, it
became the property of C Co. and the defendant could exercise its right
to a setoff against those funds. The plaintiff thereafter filed an amended
complaint again alleging that the defendant had violated the act by
offsetting the funds in C Co.’s account. The trial court granted the
defendant’s motion to strike the amended complaint. The court recog-
nized that the substance of the plaintiff’s claim in the original complaint
and the amended complaint was not materially different and concluded
that the allegations in the amended complaint continued to be insuffi-
cient to support a claim under the act. On appeal, the plaintiff claimed
that the trial court erred in concluding that she had failed to plead a
cognizable cause of action under the act and striking her amended
complaint. The defendant argued on appeal that the plaintiff’s claim
was waived because her amended complaint was not materially different
from the original complaint. Held that the plaintiff waived her right to
appeal from the trial court’s ruling granting the motion to strike her
amended complaint, as the amended complaint merely reiterated the
claim in her original complaint previously disposed of by the court, and
the additional alleged facts did not materially alter the allegations in
the original complaint: the new factual allegations in the amended com-
plaint did not correct the deficiencies identified by the trial court when
it granted the motion to strike the original complaint, and although there
were some differences between the two complaints, those differences
primarily pertained to the communications between the defendant and
C Co.’s owner after the defendant had exercised its right to a setoff,
and did not pertain to how the defendant’s actions had violated the act.
Argued April 25—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Litchfield, J. Moore, J.)
Procedural History
Action to recover damages for violation of the Con-
necticut Unfair Trade Practices Act, and for other relief,
brought to the Superior Court in the judicial district of
Litchfield, where the court, J. Moore, J., granted the
defendant’s motion to strike the complaint; thereafter,
the court granted the defendant’s motion to strike the
amended complaint; subsequently, the court granted
the defendant’s motion for judgment and rendered judg-
ment thereon, from which the plaintiff appealed to this
court. Affirmed.
Charles F. Brower, for the appellant (plaintiff).
Linda Clifford Hadley, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Mary Ann Ring, appeals
from the judgment of the trial court rendered in favor
of the defendant, Litchfield Bancorp, following the
granting of the defendant’s motion to strike her
amended complaint. On appeal, the plaintiff claims that
the court improperly granted the motion to strike
because she sufficiently alleged a cause of action
against the defendant for violating the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110 et. seq. We conclude that the plaintiff waived
her right to appeal from the granting of the motion to
strike the amended complaint. Accordingly, we affirm
the judgment of the trial court.
As a preliminary matter, we note that ‘‘[i]n ruling on
a motion to strike, we take the facts alleged in the
complaint as true.’’ St. Denis v. de Toledo, 90 Conn.
App. 690, 691, 879 A.2d 503, cert. denied, 276 Conn. 907,
884 A.2d 1028 (2005). Here, the allegations include the
following facts. Water pipes in the plaintiff’s home froze
and caused significant water damage to the property.
The plaintiff engaged the services of a contractor,
Chamberlin Kitchen & Bath, LLC (Chamberlin),1 to
repair her home. On May 23, 2015, Chamberlin pre-
sented a proposal for the work to be performed, which
estimated that the cost to remediate the water damage
would be $84,636. The plaintiff accepted that proposal.
After executing a contract with Chamberlin to per-
form the repairs, the plaintiff made a series of payments
to Chamberlin. On June 9, 2015, the plaintiff paid Cham-
berlin the sum of $10,000. On June 29, 2015, the plaintiff
made another payment of $10,000 to Chamberlin.
Finally, on July 30, 2015, the plaintiff paid Chamberlin
the sum of $40,000. That final payment is the only sum
of money in dispute in the present action. Following
the final payment on July 30, 2015, Chamberlin did
not provide the plaintiff with any materials or perform
any labor.
At all relevant times, Chamberlin held a banking
account with the defendant. On August 4, 2015, Cham-
berlin’s account had $42,037.36 on deposit, which
included the plaintiff’s July 30, 2015 payment of $40,000.
On that date, the defendant exercised its setoff rights2
against Chamberlin’s account by offsetting the balance
in the sum of $42,037.36.
The defendant’s setoff of Chamberlin’s account was
confirmed by a letter sent to Chamberlin’s owner, Tyson
Chamberlin (Tyson), dated August 4, 2015. That same
day, Tyson contacted the defendant’s special assets offi-
cer, Dan Casey, and informed him that $40,000 of the
deposited money in the Chamberlin account belonged
to the plaintiff. Casey told Tyson that there was nothing
that could be done. Tyson also spoke with the defen-
dant’s president, Paul McLaughlin, and claimed that the
defendant was not entitled to the setoff. In addition,
the plaintiff, through counsel, made several demands
to the defendant and its counsel to return the $40,000
that was deposited in Chamberlin’s account. The defen-
dant refused to return the deposited money.
On August 24, 2015, the plaintiff commenced the pre-
sent action with a one count complaint against the
defendant, alleging that its conduct in offsetting the
funds in Chamberlin’s account violated CUTPA. On Sep-
tember 9, 2015, the defendant filed a motion to strike
the plaintiff’s complaint, which the court granted by
memorandum of decision issued on December 7, 2015.
On December 15, 2015, the plaintiff filed an amended
complaint, again alleging that the defendant violated
CUTPA by offsetting the account.3 Thereafter, the
defendant filed a motion to strike the amended com-
plaint, which the court granted on February 29, 2016.
The court rendered judgment in favor of the defendant
on April 11, 2016. This appeal followed.
On appeal, the plaintiff claims that the court erred
in striking her amended complaint and concluding that
she had failed to plead a cognizable cause of action
under CUTPA. In response, the defendant argues that
the court’s ruling was proper because the facts alleged
in the amended complaint do not support a cause of
action under CUTPA. The defendant also argues that
the plaintiff’s claim on appeal was waived because her
amended complaint was not materially different from
the original complaint.4 We agree with the defendant
that the plaintiff waived her claim on appeal.
With respect to the waiver argument, we are guided
by the following legal principles and standard of review.
‘‘After a court has granted a motion to strike, the plain-
tiff may either amend his pleading or, on the rendering
of judgment, file an appeal. . . . The choices are mutu-
ally exclusive [as] [t]he filing of an amended pleading
operates as a waiver of the right to claim that there
was error in the sustaining of the [motion to strike] the
original pleading.’’ (Citation omitted; internal quotation
marks omitted.) St. Denis v. de Toledo, supra, 90 Conn.
App. 693–94; see also Practice Book § 10-44. ‘‘Further-
more, if the allegations in a complaint filed subsequent
to one that has been stricken are not materially different
than those in the earlier, stricken complaint, the party
bringing the subsequent complaint cannot be heard to
appeal from the action of the trial court striking the
subsequent complaint.’’ Caltabiano v. L & L Real Estate
Holdings II, LLC, 128 Conn. App. 84, 90, 15 A.3d 1163
(2011). ‘‘Construction of pleadings is a question of law.
Our review of a trial court’s interpretation of the plead-
ings therefore is plenary.’’ Kovacs Construction Corp.
v. Water Pollution & Control Authority, 120 Conn. App.
646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912,
995 A.2d 639 (2010).
We first examine the ruling striking the original com-
plaint to determine whether the waiver rule applies. St.
Denis v. de Toledo, supra, 90 Conn. App. 694. In that
ruling, the court concluded that the complaint alleged
insufficient facts to support the requisite elements of
a CUTPA claim.5 With respect to the defendant exercis-
ing its setoff rights, the court noted that ‘‘once a check
has been endorsed, has cleared, and has been deposited
into an account, absent a seasonable stop payment
order or a designation known to the [defendant] on the
account or the money held therein that informs the
[defendant] that the money is being held for the benefit
of a person other than the account owner, the deposited
money becomes the money of the account owner. After
that time, the [defendant] may treat it as the account
owner’s money and exercise its right to a setoff.’’ Ulti-
mately, the court concluded that the alleged facts were
insufficient to establish a CUTPA claim and granted the
motion to strike.
We next examine the court’s ruling on the amended
complaint. In granting the defendant’s motion to strike
the plaintiff’s amended complaint, the trial court recog-
nized that the substance of the plaintiff’s CUTPA claim
in the original complaint and as claimed in the amended
complaint were not materially different by stating: ‘‘The
court will not reiterate its legal discussion of either a
motion to strike or of the legal sufficiency of CUTPA
claims. Rather, in both of these regards, the court incor-
porates by reference its December 7, 2015 memoran-
dum of decision striking the original complaint.’’ The
court further stated that ‘‘the allegations of the substi-
tuted complaint are actually less sufficient than those
of the original complaint, which at least alleged an
unfounded legal conclusion of misappropriation.’’
On the basis of our review of the relevant pleadings
and the court’s rulings in granting the defendant’s
motions to strike, we conclude that the plaintiff failed
to allege any new facts in her amended complaint that
materially altered the original complaint. In short, none
of the new factual allegations in the plaintiff’s amended
complaint corrected the deficiencies identified by the
court when it granted the motion to strike the original
complaint. For example, the alleged facts in the
amended complaint do not suggest that the defendant
owed a duty to the plaintiff as a consumer, that the
defendant engaged in an act or practice that was against
public policy, or in an act or practice that was immoral,
unethical, oppressive or unscrupulous, or alleged a con-
scious departure from known, standard business
norms. See Artie’s Auto Body, Inc. v. Hartford Fire
Ins. Co., 287 Conn. 208, 217–18, 947 A.2d 320 (2008)
(discussing elements plaintiff must prove to prevail on
CUTPA claim); see also Ulbrich v. Groth, 310 Conn.
375, 409–410, 78 A.3d 76 (2012). Moreover, the plaintiff
failed to allege any facts as to whether the defendant,
prior to exercising its setoff rights, was aware or should
have been aware that the funds deposited by Chamber-
lin belonged to the plaintiff.6 We further note that,
although there are some differences in the two com-
plaints, the primary differences in the original com-
plaint from the amended complaint pertain to Tyson’s
communications with the defendant subsequent to the
defendant exercising its right to a setoff, as opposed
to how the defendant’s actions violate CUTPA. In our
view, those additions do not materially alter the allega-
tions set forth in the original complaint.
Because the amended complaint merely reiterates
the CUTPA claim that was previously disposed of by the
court, and the additional alleged facts do not materially
alter the original complaint, we conclude that the plain-
tiff has waived her right to appeal from the court’s
ruling granting the motion to strike the amended com-
plaint. Thus, we need not reach the merits of her claim.7
See St. Denis v. de Toledo, supra, 90 Conn. App. 691
n.1. Accordingly, the court properly granted the motion
to strike the amended complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Chamberlin is not a party to the present action.
2
‘‘Connecticut law, like law generally, treats a deposit in a bank as a
promise to pay from the bank to the depositor. If the depositor is also
indebted to the bank, such debts of the depositor and the bank are mutual,
and the bank may set off a past due debt with deposits held by the bank,
provided there is no express agreement to the contrary and the deposit is
not specifically applicable to some other particular purpose.’’ In re Colonial
Realty Co., 208 B.R. 616, 618 (Bankr. D. Conn. 1997), citing Southington
Savings Bank v. Rodgers, 40 Conn. App. 23, 29, 668 A.2d 733 (1995), cert.
denied, 236 Conn. 908, 670 A.2d 1307 (1996).
3
The plaintiff’s amended complaint initially contained two counts: (1) a
violation of CUTPA; and (2) a claim for unjust enrichment. During the
pendency of the defendant’s motion to strike the amended complaint, the
plaintiff withdrew the unjust enrichment claim.
4
We note that the plaintiff has not filed a reply brief in this court addressing
the defendant’s waiver claim. At oral argument, however, the plaintiff simply
argued that the additional facts pleaded in the amended complaint materially
altered the original complaint.
5
The court identified several deficiencies from which the original com-
plaint suffered, including the failure to identify an act or practice that violated
public policy, an act or practice that was immoral, unethical, oppressive or
unscrupulous, or a conscious departure from known, standard business
norms, among other things.
6
In its memorandum of decision granting the defendant’s second motion
to strike, the court concluded, as it did in ruling on the first motion to strike,
that there were ‘‘no allegations at all that the [defendant] even knew of any
relationship between the plaintiff and Chamberlin prior to the setoff.’’ In
that same ruling, the court also concluded, for the second time, that ‘‘[o]nce
the $40,000 was deposited into the Chamberlin account and cleared . . . it
became Chamberlin’s money and was available for the setoff.’’ The amended
complaint simply did not cure the deficiencies identified by the court because
it was not alleged that the defendant was aware, prior to the setoff, that
the funds were held for the benefit of the plaintiff. Moreover, the funds
were furnished to Chamberlin for services rendered in repairing the plain-
tiff’s home. Nothing about that transaction suggests that the funds were
held in trust or for the benefit of the plaintiff. Nonetheless, the plaintiff’s
allegation that the defendant was not entitled to exercise its setoff right is
legally unsound. See In re Colonial Realty Co., 208 B.R. 616, 618 (Bankr.
D. Conn. 1997), citing Southington Savings Bank v. Rodgers, 40 Conn. App.
23, 29, 668 A.2d 733 (1995), cert. denied, 236 Conn. 908, 670 A.2d 1307 (1996).
7
We note, however, that even if we were to reach the merits, her claim
would likely fail in light of this court’s prior decision in Southington Savings
Bank v. Rodgers, 40 Conn. App. 23, 29, 668 A.2d 733 (1995), cert. denied,
236 Conn. 908, 670 A.2d 1307 (1996).