DocketNumber: No. CV97 0074843
Citation Numbers: 1998 Conn. Super. Ct. 1318
Judges: PICKETT, STATE JUDGE REFEREE.
Filed Date: 1/21/1998
Status: Non-Precedential
Modified Date: 7/5/2016
On December 23, 1997, the defendant, Theresa Bendell, filed a motion to strike count one of the complaint and those paragraphs of the prayer for relief which seek attorney's fees and punitive damages. The basis for the motion to strike is that count one, a claim for fraudulent misrepresentation, is legally insufficient because it fails to allege that Theresa Bendell knew her statements about the property were untrue. Pursuant to Practice Book § 155, the defendant filed a memorandum of law in support of the motion to strike. On December 31, 1997, the plaintiffs filed a memorandum of law in opposition to the motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Faulkner v.United Technologies Corp. ,
In support of the motion to strike, the defendant claims that the plaintiffs failed to allege the second element for a claim CT Page 1320 sounding in fraudulent misrepresentation. Specifically, the defendant contends that count one fails to allege facts which support the conclusion that the defendant knew her statements concerning the property's boundaries were untrue. According to the defendant, count one's allegation that a neighbor previously told the defendant about the boundary problem is not sufficient to show that the defendant knew her statements to the plaintiffs were untrue. The defendant also argues that the prayer for relief should be stricken as to the claim for attorney's fees and punitive damages. A claim for attorney's fees must invoke statutory or contractual language, but the plaintiffs failed to do this according to the defendant. Similarly, the defendant contends that the plaintiffs failed to allege facts which would support an award of punitive damages.
The plaintiffs contend that the motion to strike count one should not be granted because the defendant had the best means of knowledge, per the conversation with the neighbor, and made an affirmation contrary to the truth in order to secure the sale. Under these circumstances, the plaintiffs argue, our law treats the defendant as knowing what she affirmed. Additionally, the plaintiffs claim that they sufficiently alleged facts to support an award of punitive damages because they alleged the defendant's failure to tell the plaintiffs of her conversation with the neighbor. Clearly, the plaintiffs contend, this allegation constitutes an allegation of the defendant's reckless indifference to the rights of the plaintiffs; in turn, supporting a claim for punitive damages. Finally, the plaintiffs make no argument as to why the claim for attorney's fees is sufficient.
"The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement was made to induce the plaintiff to act; and (4) the plaintiff acted on the false representation to her detriment." (Citation omitted.) Dorsey v. Mancuso,
In this case, the question at hand is whether the plaintiffs sufficiently alleged that the defendant knew her statements about the boundaries were untrue. Paragraph eleven of count one states, "[d]efendant Bendell knew that her representations as to the acreage and boundaries of the land were false in that she had been previously informed by a neighbor that a portion of the property represented was owned, in fact, by said neighbor and not by the CT Page 1321 [d]efendant Bendell." Accordingly, no further discussion is required. The plaintiffs have clearly alleged that the defendant knew her representations were untrue. Whether or not the conversation with the neighbor adequately supports such an allegation is a matter which the trier of fact will determine. The motion to strike count one is denied.
"[P]unitive damages and attorney's fees may properly be awarded in actions for fraud." (Citation omitted.) Lamalfa v.Higgins,
Pursuant to the American rule regarding the recovery of attorney's fees, the plaintiffs in this case have to invoke either statutory or contractual language in order to recover such fees. The plaintiffs' prayer for relief invokes neither statutory nor contractual language. As such, the portion of the prayer for relief which requests attorney's fees is stricken. The effect of striking this portion of the prayer for relief, however, may be minimal. For if the plaintiffs are able to recover punitive damages, such damages will include attorney's fees. At this juncture, the only question is whether the plaintiffs sufficiently allege wanton, wilful, or reckless malicious misconduct in their claim for fraudulent misrepresentation. Count one does not allege wanton, wilful, or reckless malicious misconduct. Thus, the request for punitive damages is legally insufficient and must be stricken.
For the reasons discussed, the motion to strike is denied as to count one and granted as to the request for attorney's fees and punitive damages contained in the prayer for relief. CT Page 1322
HON. WALTER M. PICKETT, JR. State Judge Referee