Patel v. Manner, No. Cv98-0493175s (Jun. 21, 1999)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The defendant filed a motion to strike the Seventh and Eighth Counts of the plaintiffs complaint arguing that these claims of a CUTPA violation and of theft are legally insufficient. For the following reasons, this court grants the defendant's motion.

The Seventh Count of the complaint alleges that the defendant violated CUTPA. That count incorporates the allegations in the First Count, a breach of contract count, and adds paragraphs stating that the acts of the defendants violated the CUTPA statute.

"It is well settled that in determining whether a practice violates CUTPA we 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 practice, without necessarily having been previously considered unlawful, offends CT Page 8078 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 in jury to consumers, [competitors or other business persons]. . . . 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." Willow Springs CondominiumAssociation, Inc. v Seventh BRT Development Corp. , 245 Conn. 1,43, 717 A.2d 77 (1998).

Merely alleging breach of contract is insufficient to plead a violation of CUTPA. "A simple breach of contract does not offend traditional notions of fairness, and . . . standing alone does not offend public policy to invoke CUTPA. . . . The plaintiff must allege more than a mere breach of contract." (Citation omitted).Grolio v Elrac, Superior Court. judicial district of Stamford/Norwalk at Stamford, docket number CV 970160928 (January 19, 1999, D'Andrea, J.). A breach of contract claim will only support a CUTPA count, when the plaintiff alleges circumstances that are substantial and aggravating. The Production Equipment Co. vBlakeslee Arpaia Chapman, Superior Court, judicial district of New Haven at Meriden, Docket No. 247285 (January 3, 1996, Silbert, J.).

The plaintiffs counsel conceded that the allegations in his complaint did not specifically use the words "unscrupulous" or "unethical" and did not specifically plead the egregious nature of the conduct, but he argued that these concepts were implied by the type of conduct he described in the complaint. Implied conduct, in this case, is not sufficient to support a CUTPA claim. The plaintiff must specifically plead the type of conduct he claims violated CUTPA. As the complaint is currently drafted, the allegations do not support a CUTPA claim. Therefore, the defendants' motion to strike the Seventh Count is granted.

The Eighth Count of the complaint alleges a violation of Connecticut General Statute section 52-564. That count re-alleges the claims in the first count, the breach of contract count and adds a paragraph claiming that the defendants had committed theft.

Section 52-564 of Connecticut General Statute provides that CT Page 8079 "any person who steals any property or another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." In order to sufficiently plead a violation of section 52-564 the plaintiff must plead intent. Failing to do so renders the count legally insufficient. Therefore, the Eighth Count must be stricken.

ANGELA CAROL ROBINSON JUDGE, SUPERIOR COURT CT Pages 8079 — 8084

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