Sturm v. Harb Dev. Llc.

• Decision Date: 31 August 2010
• Docket Number: No. 18447.,18447.
• Citation: 298 Conn. 124,2 A.3d 859
• Court: Connecticut Supreme Court
• Parties: Chris K. STURM et al. v. HARB DEVELOPMENT, LLC, et al.

298 Conn. 124

2 A.3d 859

Chris K. STURM et al.

v.HARB DEVELOPMENT, LLC, et al.

No. 18447.

Supreme Court of Connecticut.

Argued Jan. 6, 2010.

Decided Aug. 31, 2010.

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Taryn D. Martin, with whom, on the brief, were Robert A. Ziegler and Leslee B. Hill, Plainville, for the appellants (plaintiffs).

Melissa A. Scozzafava, with whom, on the brief, was Pasquale M. Salvatore, Waterbury, for the appellee (defendant John J. Harb).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js. ^*

VERTEFEUILLE, J.

The plaintiffs, Chris K. Sturm and Tammy Sturm, brought this action against the defendants, Harb Development, LLC (Harb Development), and its principal, John J. Harb, ¹ alleging that their poor workmanship in the construction of the plaintiffs' new home constituted, inter alia, negligence and fraud, and violated both the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the New Home Construction Contractors Act (new home act), General Statutes § 20-417a et seq. The trial court granted the defendant's motion to strike all counts of the complaint against him in his individual capacity, concluding that the plaintiffs had failed to plead sufficient facts to warrant piercing the corporate veil provided by General Statutes § 34-133 ² with regard to all of those counts. The plaintiffs now appeal, ³ claiming that the trial court improperly: (1) required the pleading of facts sufficient to pierce the corporate veil for all counts against the defendant; and (2) determined that they failed to plead sufficient facts to support the causes of action against the defendant in three counts of the complaint. We agree with the plaintiffs that the trial court misconstrued all of the counts of the complaint against the defendant and improperly required the plaintiffs to plead facts sufficient to pierce the corporate veil in order to establish the defendant's personal liability. We conclude, however, that the motion to strike counts three and four of the complaint alleging the CUTPA violation and negligence properly was granted because the plaintiffs failed to adequately state a cause of action for the defendant's individual liability on those counts. We further conclude that the trial court properly found the allegations of counts seven and eight of the complaint, fraudulent misrepresentation and negligent misrepresentation, respectively, insufficient to set forth a valid cause of action.

The complaint alleges the following facts. On March 17, 2005, the plaintiffs and Harb Development entered into a contract for the construction of a new home in Bristol. After the house was built, the plaintiffs found that the house had not been built in accordance with the contract and that the workmanship was poor. Specifically, the plaintiffs claimed that: the foundation lacked an adequate concrete slab; the lot was not properly sloped, which resulted in water pooling against the foundation; the dormer was built incorrectly; the first and second floors varied from the construction plans; two adjacent windows were not installed symmetrically; the windows throughout the house were improperly installed, resulting in noticeable drafts; the stairway was installed on an uneven floor and without proper trim; the shutters, beam details and floor adjacent to the fireplace were negligently installed; and the interior painting was deficient.

The plaintiffs alleged several causes of action arising from these defects against both Harb Development and the defendant. Against Harb Development, the plaintiffs alleged: breach of contract in the first count; violation of CUTPA in the second count; and failure to comply with the new home act in the fifth count. Against the defendant in his individual capacity, the plaintiffs alleged: individual liability for Harb Development's violation of CUTPA in the third count; ⁴ negligence in the fourth count; failure to comply with the new home act in the sixth count; fraudulent misrepresentation in the seventh count; and negligent misrepresentation in the eighth count.

The defendant filed a motion to strike all counts against him in his individual capacity. The defendant claimed that because the plaintiffs had asserted fundamentally similar claims against both Harb Development and himself, the plaintiffs were required to allege facts sufficient to pierce the corporate veil in order to state a valid claim against him in his individual capacity. In the plaintiffs' opposition to the motion to strike, they responded that they were not making a claim to pierce the corporate veil, but instead were bringing an action against the defendant for his own personal liability in tort. The trial court agreed with the defendant and granted the motion to strike, ruling, first, that, because the counts against the defendant in his individual capacity arose out of his management of Harb Development, the plaintiffs were required, but failed, to allege facts sufficient to warrant piercing the corporate veil. In addition, the trial court further concluded that there were additional reasons for striking the sixth, ⁵ seventh and eighth counts of the complaint, namely, the plaintiffs' failure to plead properly the required elements for each cause of action. This appeal followed. ⁶

We begin with the appropriate standard of review. “In an appeal from a judgment granting a motion to strike, we operate in accordance with well established rules.” Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). “A motion to strike challenges the legal sufficiency of a pleading ... and, consequently, requires no factual findings by the trial court. As a result, our review of the [trial] court's ruling 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.... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly ... rather than narrowly.” (Internal quotation marks omitted.) Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009); see also Practice Book § 10-39 (addressing motion to strike). “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.” Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992).

In addition, it is well settled that “[t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint....” (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004). As a result, “[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.” (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009); Practice Book § 10-20 (complaint “shall contain a concise statement of the facts constituting the cause of action”). Yet “[w]e previously have recognized [that] ... if the complaint puts the defendant on notice of the relevant claims, then a plaintiff's failure specifically to allege a particular fact or issue is not fatal to his claim unless it results in prejudice to the defendant.” Machado v. Hartford, 292 Conn. 364, 370 n. 7, 972 A.2d 724 (2009).

ITORT LIABILITY OF A MEMBER OF A LIMITED LIABILITY COMPANY

We first address whether the trial court properly struck all counts of the complaint against the defendant on the basis that, in order to establish the defendant's personal liability, the plaintiffs were required to plead facts sufficient to pierce the corporate veil. ⁷ The plaintiffs contend that the trial court improperly required them to plead facts sufficient to warrant piercing the corporate veil in order to hold the defendant personally liable. Put another way, the plaintiffs claim that the trial court misconstrued the complaint, failing to understand that their claim is that the defendant is personally and individually liable in tort despite being a member or manager of Harb Development, and it therefore is not necessary to pierce the corporate veil in order to establish his personal liability. ⁸ The defendant responds that he is immune from liability on these grounds because of the protection against personal liability found in § 34-133(a). ⁹ More specifically, because the allegations against him not only arise from his membership in or management of Harb Development but also appear to be substantially similar to the allegations against Harb Development, the defendant contends that the plaintiffs must allege facts sufficient to warrant piercing the corporate veil. We agree with the plaintiffs.

We begin our analysis with a brief review of Connecticut law concerning the individual liability in tort of a corporate agent or officer. “It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby.... Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.” (Citations omitted; internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 141-42, 881 A.2d 937 (2005), ...