DocketNumber: No. CV97 05 99 97
Citation Numbers: 1998 Conn. Super. Ct. 4822, 21 Conn. L. Rptr. 659
Judges: CORRADINO, J.
Filed Date: 4/9/1998
Status: Non-Precedential
Modified Date: 7/5/2016
9. Prior to entering into the aforementioned agreement, the plaintiff informed the defendant that the plaintiff was working on other projects. The plaintiff also informed the defendant that CT Page 4823 it would require materials delivered to the jobsite in order to fulfill its obligations to defendant. The plaintiff further informed the defendant that without delivery of these materials, it would be unable to complete construction of other projects.
10. The plaintiff also informed the defendant that it would have to forego other potential jobs in order to enter into the aforementioned agreement with the defendant.
11. In order to induce the plaintiff to enter into the agreement, the defendant represented to the plaintiff that certain construction materials would be delivered to the jobsite in a timely fashion.
12. In reliance on the defendant's representation, the plaintiff refused employment at other jobsites.
13. In reliance on the defendant's representation, the plaintiff entered into the agreement with the defendant.
14. During the course of the job, the defendant failed to supply the construction materials as promised, and the plaintiff's ability to complete the job in a timely fashion was substantially hindered.
15. As a result of the defendant's misrepresentations and the delays occasioned by the misrepresentations, the plaintiff was terminated from at least one other project.
16. As a result of the defendant's actions, plaintiff has suffered an ascertainable loss in the nature of money damages.
The defendant has filed a motion to strike this CUTPA claim arguing that it is not legally sufficient. The standards to apply in addressing a motion to strike are well-known. The complaint must be given that reading that is most favorable to the non-moving party, Amodio v. Cunningham,
1.
The defendant contends that the motion should be granted because a simple breach of contract does not offend traditional notions of fairness and thus no violation of CUTPA can be found. The weight of Superior Court decisions supports this position,Chaspek Mfg. Corp. v. Tandet,
The burdens on and risks inherent in contract formation would be intolerably increased and simple breach of contract claims would turn into wind falls in every case.
The reasoning behind this rule is well stated by Judge Calabresi at
A rule to the contrary — that a company violates CUTPA whenever it breaks an unprofitable deal — would convert every contract dispute into a CUTPA violation. We cannot assume that the Connecticut legislature, in enacting CUTPA, intended such an extraordinary alteration of the common law
2.
But it is also true that "the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation", Lester v. Resort Campgrounds International Inc.,
In this case are there any aggravating circumstances which make this claim more than a simple breach of contract claim and thus either unfair or deceptive under §
(a)
Are the allegations sufficient to raise a claim that the defendant was "unfair" in the sense that the actions of the defendant were sufficiently aggravating so as to make this more than a simple breach of contract case. Given the reasons behind the rule of not having simple breach of contract claims qualify under CUTPA, the allegations that the defendant was told that without delivery of the materials in question the plaintiff could not complete other jobs, that it refused other jobs and forgoed the chance to take such jobs cannot suffice. Such claims are no more than the ordinary class of claims that accrue upon any breach of contract action. Courts should be reluctant to turn a simple breach of contract claim into a CUTPA claim merely because substantial damages are alleged especially where the plaintiff is not an individual consumer.
(b)
Were the actions of the defendant "deceptive" under the act — a separate grounds for a CUTPA violation. Here there are allegations of "misrepresentation". The defendant in effect represented he would deliver the materials necessary to do the job — that is comply with a contractual obligation.
It has been held that a "misrepresentation" can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would in effect be a deceptive act, cf CNF Constructors, Inc. v. CulliganWater Conditioning Co., supra, dicta in Production Equipment Co.v. Blakeslee Arpaia Chapman Inc, et al, supra. CT Page 4826
In enforcing CUTPA our courts look to the actions of the Federal Trade Commission for guidance. Under federal precedents and CUTPA decisions, a CUTPA plaintiff is not bound by the limitations on the common law action for misrepresentation when making that the basis of his or her claim. Such a plaintiff for example need not prove reliance on the misrepresentation or that the representation became part of the basis for the bargain, WebPress Services Corp. v. New London Motor Inc.,
However, 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 representation cannot deliver on the promise. This not to say that to be a misrepresentation the representation must relate to an existing or past fact. Even at common law, there were exceptions to such a requirement such as where the representation as to a future fact was coupled with a present intent not to fulfill the promise,Piava v. Vaneck Heights Construction Co, supra or where there has been non-disclosure of facts by a party having a duty to disclose, Egan v. Hudson Nut Products,
There is no such allegation here. There is no allegation that the defendant knew or even should have known it could not deliver the materials when it made its representations to that effect or that it failed to disclose facts relative to its ability to do so which in fairness it ought to have disclosed.1
The Court in effect adopts the reasoning of Judge Haynsworth in interpreting the North Carolina unfair trade practices act. InUnited Roasters Inc. et al v. Colgate-Palmolive Company,
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 this is why remedial damages are awarded on contract claims. If such an award is to be trebled, the North Carolina legislature must have intended that substantial aggravating circumstances be present. The statute outlaws unfair competition, and the unfair acts and practices made unlawful include acts or practices not apply described as deceptive. The North Carolina Supreme Court in J.C. Penney, in dicta, listed a number of acts or practices thought to be representative of those things proscribed by the statute. They are actually deceptive or approach deception. In each instance, the deception or unfairness was present at the time of contract formation. Those acts or practices were quoted by Judge McMillan in CF Industries, Inc. v. Continental Gas Pipe Line Corp. ,
948 F. Sup. 475 (W.D.N.C. 1978), when he adopted a limited construction of the North Carolina statute. He concluded that an intentional breach of a valid contract was not a violation of the statute. Under the jury's resolution of facts, Colgate violation of its contractual obligation was an intentional breach, but there was neither unfairness nor deception in formulation of the contract, and the jury found no deception in the CT Page 4828 circumstances of its breach. The contract here was carefully negotiated and drawn by sophisticated parties. There is no hint of any unfairness to either party before Colgate's cessation of performance. It then broke the contract, but we cannot conclude that unfairness inhered in the circumstances of the breach within the meaning of the statute simply because the breach was intentional and not promptly disclosed.
The motion to strike the Third Count is granted.
CORRADINO, J.
National Labor Relations Board v. M & M Oldsmobile, Inc. , 377 F.2d 712 ( 1967 )
boulevard-associates-a-general-partnership , 72 F.3d 1029 ( 1995 )
Amodio v. Cunningham , 182 Conn. 80 ( 1980 )
Tim Bartolomeo, D/B/A Quality Brands, Inc. v. S.B. Thomas, ... , 889 F.2d 530 ( 1989 )
united-roasters-inc-v-colgate-palmolive-company-state-of-north , 649 F.2d 985 ( 1981 )
Egan v. Hudson Nut Products, Inc. , 142 Conn. 344 ( 1955 )
Emlee Equipment Leasing v. Waterbury Transmission , 41 Conn. Super. Ct. 575 ( 1991 )