Piccolo v. Am. Auto Sales, LLC

• Decision Date: 28 January 2020
• Docket Number: AC 41988
• Parties: Andrew J. PICCOLO, Jr. v. AMERICAN AUTO SALES, LLC, et al.
• Court: Connecticut Court of Appeals

195 Conn.App. 486

225 A.3d 961

Andrew J. PICCOLO, Jr.

v.AMERICAN AUTO SALES, LLC, et al.

AC 41988

Appellate Court of Connecticut.

Argued October 24, 2019

Officially released January 28, 2020

Andrew J. Piccolo, Jr., self-represented, the appellant (plaintiff).

Michael A. Fasano, Jr., Middlebury, with whom were Julie R. Fasano and, on the brief, Michael A. Fasano, Sr., Middlebury, for the appellee (defendant).

DiPentima, C.J., and Lavine and Eveleigh, Js.

LAVINE, J.

The self-represented plaintiff, Andrew J. Piccolo, Jr., appeals from the judgment of the trial court, rendered after a trial to a jury, in favor of the defendants, American Auto Sales, LLC (business), and Robert J. Vitale, Sr. (Vitale). On appeal, the plaintiff claims that the court erred as a matter of law by striking counts four and eight of his revised complaint, which sounded in unjust enrichment, because it mistakenly concluded that the plaintiff had incorporated the allegations of the existence and breach of an express contract and unjust enrichment in those counts. We agree with the plaintiff and, therefore, reverse the judgment of the trial court.

The record discloses the following facts. On July 26, 2010, the plaintiff purchased a used 1997 Chevy Lumina motor vehicle (auto) from the business for $2398. At that time, Vitale held a managerial position with and had an ownership interest in the business. On July 30, 2013, the plaintiff commenced a civil action against the defendants. Pursuant to an order of the court, the plaintiff filed a revised eight count complaint on February 3, 2017. The counts sounded in fraud, negligent misrepresentation, breach of contract, and unjust enrichment against each of the defendants. The first four counts were alleged against the business, and the second four counts were alleged against Vitale. The plaintiff alleged that Vitale had made certain representations concerning the soundness of the auto, which the plaintiff relied on when he bought it. He also alleged that Vitale had agreed to repair the auto at no cost, if necessary. The plaintiff further alleged that the auto was not in good condition and that the defendants failed to make the repairs as promised.

In reply, the defendants filed a motion to strike counts four through eight of the revised complaint.¹ The court granted the motion to strike counts four and eight, the unjust enrichment counts. In doing so, the court cited Burke v. Boatworks, Inc. , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-04-4001838-S, 2005 WL 1971821 (July 26, 2005) ("allegations of express contract between the parties incorporated into a count stating a claim for unjust enrichment cause a violation of the rule that those alternative causes of action must be pleaded in separate counts"); and Superior Court cases cited therein. Thereafter, the court granted the defendants' motion for judgment on those counts. The remaining counts were tried to a jury in July, 2018. The jury found in favor of the defendants, and the court rendered judgment accordingly. The plaintiff appealed, claiming that the court erred in striking counts four and eight of his revised complaint because (1) the defendants had failed to present a valid reason to strike the unjust enrichment counts and (2) the court erred in its reading of the revised complaint or misapplied the law.

We begin by setting forth the standard of review with respect to a motion to strike. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [defendants' motion] is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a complaint challenged by a [defendants'] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Emphasis omitted; internal quotation marks omitted.) Kumah v. Brown , 127 Conn. App. 254, 259, 14 A.3d 1012 (2011), aff'd, 307 Conn. 620, 58 A.3d 247 (2013).

"Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them." (Internal quotation marks omitted.) Criscuolo v. Mauro Motors, Inc. , 58 Conn. App. 537, 544, 754 A.2d 810 (2000). "The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint.... A plaintiff may not allege one cause of action and recover on another." (Internal quotation marks omitted.) Id., at 544–45, 754 A.2d 810.

"The interpretation of pleadings is always a question of law for the court .... Our review of the trial court's interpretation of the pleadings therefore is plenary.... Furthermore, [t]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Internal quotation marks omitted.)

McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc. , 93 Conn. App. 486, 491, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

The defendants' motion to strike does not set forth the basis of the motion; see Practice Book § 10-39 (b) (requiring specification of reason for claimed legal insufficiency); but in their memorandum in support of the motion to strike the defendants argued that "[u]njust enrichment is a form of the equitable remedy of restitution by which a [p]laintiff may recover the benefit conferred on a [d]efendant in situations where no express contract has been entered into by the parties. Unjust enrichment is not based on an express contract. Instead, litigants normally resort to the remedy of unjust enrichment when they have no written or verbal contract to support their claim for relief." The defendants pointed out that paragraph 5 of count one of the revised complaint alleged that "[t]he plaintiff did rely on the representations, both oral and written, that said [auto] was in good condition and that all mechanical and other deficiencies would be repaired at no cost." The defendants also noted that paragraph 5 was incorporated by reference in each of the succeeding counts of the revised complaint, including counts four and eight alleging unjust enrichment. The defendants argued that because the plaintiff had alleged that there was an oral and written contract that had been breached, the plaintiff properly could not allege unjust enrichment.

The plaintiff opposed the motion to strike, arguing that Connecticut requires fact-based pleadings, which permit separate legal theories to be alleged in separate counts. He contended that he pleaded different legal theories in different counts and in the alternative, acknowledging that a plaintiff may recover under only one theory, not both. "Generally, if two theories are alleged in the same pleading, it is for the trier of fact to determine whether the plaintiff has proved both, neither, or but one of them." Burns v. Koellmer , 11 Conn. App. 375, 386, 527 A.2d 1210 (1987). In addition, the plaintiff set forth the principles underlying unjust enrichment.

In ruling on the defendants' motion to strike, the court stated in relevant part: "Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract and no remedy is available by an action on the contract. Unjust enrichment is consistent with the principles of equity, a broad and flexible remedy.... The plaintiff seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiff for the benefits, and (3) that the failure of payment was to the plaintiff's detriment.... Indeed a lack of a remedy under the contract is a precondition for recovery based on unjust enrichment.... Despite these limiting principles, [p]arties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims.... Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails." (Citations omitted; internal quotation marks omitted.)

The court continued, stating that although the appellate courts of this state "have [not yet decided] whether it is sufficient to merely incorporate allegations of an express contract into a claim for unjust enrichment, several judges of the Superior Court have addressed [the] matter." The court cited several Superior Court cases. See William Raveis Real Estate v. Cendant Mobility Corp. , Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-4002709-S (December 5, 2005) (plaintiff may plead unjust enrichment in alternative but this is not accomplished by incorporating into that count allegations of express contract; such complaint does not involve alternative pleading but inconsistent pleading); Burke v. Boatworks, Inc. , supra, Superior Court, Docket No. CV-04-4001838-S (allegations of express contract...