Zettergren v. Turn Key Renovations, LLC

William ZETTERGREN et al. v. TURN KEY RENOVATIONS, LLC et al.

No. NNHCV186078820S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

March 1, 2019

UNPUBLISHED OPINION

OPINION

PIERSON, J.

STATEMENT OF THE CASE

This action involves the construction of a new home on a lot located at 74 Melba Street in Milford, Connecticut. In their operative complaint, the plaintiffs, William Zettergren and Carla Apura, allege that the defendants, Turn Key Renovations, LLC (Turn Key) and Lombardo Building Group (Lombardo Building), are Connecticut limited liability companies, and that the defendant, Vincent R. Lombardo, Jr. was a licensed new home construction contractor. They further allege that the defendant, Christopher J. Bjorklund, was the managing member of Turn Key. According to the plaintiffs, Turn Key, Lombardo Building, and Lombardo entered into agreement whereby Lombardo Building and Lombardo would construct a new home on a lot owned by Turn Key, located at 74 Melba Street in Milford, Connecticut (property). Further according to the plaintiffs, on or about September 15, 2016, the plaintiffs executed a purchase and sale agreement (agreement) in which they agreed to purchase a newly-constructed home owned by Turn Key and built by Lombardo Building and Lombardo. The plaintiffs allege that in Schedule F of the agreement, Turn Key, Lombardo Building, and Lombardo refer to themselves as "the owning partnership." The plaintiffs claim that, in addition to the agreement, the parties agreed to several punch list items and change orders.

The plaintiffs allege that they completed their purchase of the property on or about January 19, 2017.

This action is brought in seventeen counts, alleging breach of contract (First, Fifth, Tenth, and Fifteenth Counts), breach of the covenant of good faith and fair dealing (Second, Sixth, and Eleventh Counts), breach of warranties (Third, Seventh, and Twelfth Counts), violations of the Connecticut Unfair Trade Practices Act, General Statutes § § 41-110a et seq. (CUTPA) (Fourth, Eighth, Thirteenth, and Sixteenth Counts), and unjust enrichment (Ninth, Fourteenth, and Seventeenth Counts). Rev. Compl. (Docket Entry No. 112). By their motion to strike (Docket Entry No. 116), the defendants, Bjorklund and Turn Key, challenge the legal sufficiency of the Fourth, Fifteenth, Sixteenth and Seventeenth Counts.

The Fourth and Sixteenth Counts purport to allege claims for violation of CUTPA against Turn Key and Bjorklund, respectively. In the Fourth Count, the plaintiffs assert that Turn Key was engaged in the conduct of trade or commerce in the State of Connecticut and that Turn Key was prohibited by CUTPA from engaging in unfair or deceptive acts or practices. The plaintiffs further allege that Turn Key violated CUTPA by conveying and/or building a home that was not free of faulty materials, constructed according to sound engineering standards, constructed in a workmanlike manner, and fit for habitation, at the time of the delivery of the deed. Furthermore, the plaintiffs contend that Turn Key violated CUTPA by not registering as a new home contractor while representing itself to be the builder of a new home at the property, in violation of General Statutes § § 20-417b and 20-417d. The plaintiffs also contend that Turn Key violated CUTPA by failing to provide the plaintiffs with a copy of their certificate of registration, in violation of General Statutes § 20-417d. Additionally, the plaintiffs allege that Turn Key acted deceptively and with a dishonest purpose in violation of CUTPA by deliberately omitting work and completing work poorly in an effort to meet deadlines; deliberately ignoring town codes adopted from the International Residential Code; and deliberately using substandard materials in an effort to cut costs. The plaintiffs allege that the foregoing acts and omissions were immoral, unethical, oppressive, unscrupulous, and offended public policy, and that they suffered resulting ascertainable monetary losses.

In the Sixteenth Count, the plaintiffs allege that Bjorklund "maintained control of the finances, business operations and policy decisions of Turn Key [ ]." The plaintiffs further allege that the plaintiffs entered into several change orders with Bjorklund and that these change orders included the name of another entity, non-party Bjorklund Properties, LLC. The plaintiffs assert that Bjorklund was the managing member of Bjorklund Properties, LLC and that he maintained control of the finances, business operations and policy decisions of that entity (in addition to Turn Key). The plaintiffs further assert that Bjorklund breached his written contracts with the plaintiffs by failing to complete the work described in the change orders, and that he is vicariously liable for the breaches of contract committed by Turn Key (as alleged in the First Count). In support of their CUTPA claim, the plaintiffs assert allegations similar to those made against Turn Key.

A distinction between the claims against Turn Key and Bjorklund appears in the paragraph alleging that Bjorklund acted deceptively and with a dishonest purpose, in violation of CUTPA, by conveying an improvement to an intermediate purchaser to evade the provisions of General Statutes § 47-116 et seq.; deliberately providing misleading change orders to the plaintiffs which included the names of two entities managed by him; deliberately providing misleading change orders to the plaintiffs which presented the appearance that he was the builder of the home; deliberately omitting work in an effort to meet deadlines; completing work poorly in an effort to meet deadlines; deliberately ignoring town codes; and/or deliberately using substandard materials.

As with the Sixteenth Count, the remaining counts at issue— namely, the Fifteenth and Seventeenth Counts— assert claims against Bjorklund, in breach of contract and unjust enrichment, respectively. In the Fifteenth Count, the plaintiffs allege the breaches of contract set forth in the Sixteenth Counts, stated above. In the Seventeenth Count, the plaintiffs claim that Bjorklund "was at all relevant times a managing member of Turn Key and Bjorklund Properties, LLC[, ]" that he received payment to build a new home for the plaintiffs, that he failed to build a new home properly and free of defects, and that as a result of his conduct, the plaintiffs "have suffered a detriment and Bjorklund has been unjustly benefitted."

In the motion to strike, Bjorklund argues that all the counts against him (Fifteenth, Sixteenth, and Seventeenth) should be stricken "because there is no cause of action against an individual merely because that individual is a member of an LLC." In addition, the defendants, Turn Key and Bjorklund, move to strike the Fourth and Sixteenth Counts of the complaint, alleging violations of CUTPA, on the grounds that the CUTPA counts allege mere breaches of contract and the plaintiffs’ allegations "of deliberate or otherwise deceptive conduct are conclusory, containing no specific facts supporting the same." Finally, the defendants argue that the allegations "pertaining to the New Home Construction Contractor Act [General Statutes § 20-417a et seq. (NHCCA) ] do not sufficiently identify an ascertainable loss caused by the alleged violation[s]." Docket Entry No. 116. In support of their motion, Turn Key and Bjorklund submitted a supporting memorandum of law. Docket Entry No. 117.

The plaintiffs filed an objection to the motion to strike, together with a supporting memorandum of law. Docket Entry No. 120. In the objection and accompanying memorandum, the plaintiffs argue that the CUTPA counts are legally sufficient because they allege in detail aggravating circumstances as well as statutorily-based, per se violations. Furthermore, the plaintiffs claim that with respect to the breach of contract count against Bjorklund, it states a sufficient claim against him individually. In the alternative, the plaintiffs argue that even if the Fifteenth Count fails to state a claim in breach of contract against Bjorklund individually, "the [plaintiffs] have alleged sufficient facts to pierce the corporate veil of a limited liability company." Pl. Opp. Brief., p. 6. As for the claim of unjust enrichment in the Seventeenth Count, the plaintiffs argue that they have alleged an adequate claim against Bjorklund.

Turn Key and Bjorklund filed a reply brief. Docket Entry No. 121. Thereafter, on November 5, 2018, oral argument was held and the motion and objection were submitted to the court for adjudication.

DISCUSSION

I

"[A] motion to strike challenges the legal sufficiency of a pleading ..." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000); see also Practice Book § 10-39(a); Cadle Co. v D’Addario, 131 Conn.App. 223, 230, 26 A.3d 682 (2011). It is the proper procedural vehicle to test a counterclaim. JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). The standard of review applicable to motions to strike is well established. As the motion is directed to the viability of a party’s pleading as a matter of law, the court’s inquiry is limited to the facts alleged in the challenged pleading. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). Any consideration of matters outside the pleadings is generally prohibited. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) ("[i]n deciding upon a motion to strike ... a trial court must take the facts to be those alleged in the [pleadings] ... and cannot be aided by the assumption of any facts not therein alleged" [citations omitted; internal quotation marks omitted]).

So-called "speaking" motions to strike,...