Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#111)
Robin L. Wilson, J.
The plaintiff, Godek Construction Company, commenced this action by service of process against the defendant, Debaise Construction Company, Inc., on January 25, 2015. As the result of a request to revise, the plaintiff filed a five-count amended complaint on April 13, 2015, alleging breach of contract, promissory estoppel, restitution, statutory theft, and violations of the Connecticut Unfair Trade Practices Act (CUTPA), against the defendant.
In the amended complaint, which is the operative complaint, the plaintiff alleges the following facts. On or about November 4, 2010, the plaintiff, through its agent, Alfred Godek (Alfred) contracted with the defendant construction company through the defendant's agent, Steven Debaise (Steven). The plaintiff was a sub-contractor, who orally agreed with the contractor, Debaise, to excavate property located at 2223 Thomaston Avenue in Waterbury, Connecticut so that Debaise could construct an addition to the property.
Alfred agreed to remove the tar and all pavement, and to dig footings. When the plaintiff started to dig, it discovered debris located underneath the ground. Alfred notified Steven, who then instructed the plaintiff to remove the debris and allow it to be trucked and stock piled on site. The plaintiff was notified that the new materials, including tar, could be hauled on site and then compacted, and the plaintiff was further instructed to put in two or three storm basins and concrete piping. The contract price for the services totaled $22, 400 for labor, and the plaintiff has fully performed on the contract.
The complaint further alleges states that the defendant was paid in full from the owner of the property, and paid the plaintiff amounts totaling $18, 000, leaving a balance due and owing of $4, 400. Additionally, on or about September 9, 2011, Steven requested that the plaintiff add a sewer line with the agreement that the plaintiff would only charge $2, 500 in labor. This agreement was an addition to the existing contract, mutually agreed to by the parties, and subsequently performed by the plaintiff. The defendant owes the plaintiff a balance of $6, 900, and the plaintiff agreed to allow the defendant's agent to pay on the account until the defendant's agent was paid in full by the property owner, or within a reasonable time thereafter. Despite the plaintiff's demands, the defendant has ignored and or refused payment.
On or about November 2014, the plaintiff met with Steven's brother, David Debaise (David), who informed Godek that he was taking over bookkeeping for the defendant, and that if the plaintiff resubmitted the bill, David would make sure the plaintiff was paid. The plaintiff understood that David Debaise was an employee of the defendant, and therefore would be acting as an agent regarding financial matters. The plaintiff resubmitted the bill for $6, 900, and despite the promises of both Steven and David, the plaintiff was never paid. The plaintiff alleges that it has relied on the representations of Steven and David to its detriment. The plaintiff seeks compensatory damages, reliance and restitutionary interest, and treble damages and other costs and fees.
On May 15, 2015, the defendant filed a motion to strike supported by a memorandum of law. In its motion, the defendant moves to strike count one on the ground that the plaintiff failed to plead the existence of consideration to form the contract; count two on the ground that the plaintiff failed to plead that the alleged promises were made with the reasonable expectation of inducing action or forbearance; count four on the ground that the plaintiff failed to claim that the defendant's agent retained funds wrongfully from its owner; count five and its corresponding prayer for relief on the ground that the plaintiff failed to allege special aggravating circumstances under CUTPA; and the claims for relief under counts one, two, and three based on the plaintiff's failure to allege facts sufficient to support a damage claim of $6, 900; and lastly the defendant is moving to strike the treble damages sought relative to count four due to the plaintiff's failure to allege sufficient facts to support a treble damages claim.
The plaintiff filed a memorandum in opposition to the defendant's motion to strike on June 5, 2015. This matter was heard at short calendar on June 29, 2015.
Standard of Review
" 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Count One: Breach of Contract