KAREN NASH SEQUINO, JUDGE.
I. Factual Background
On June 8, 2005, plaintiff, United Steel, Inc. (United Steel) filed a complaint against defendants Haynes Construction Company (Haynes) and Fidelity and Guaranty Insurance Company (Fidelity) consisting of five counts: (1) breach of contract against Haynes, (2) unjust enrichment against Haynes, (3) breach of the covenant of good faith and fair dealing against Haynes, (4) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against Haynes and (5) a statutory claim pursuant to General Statutes §§ 49-41 et seq. (payment bond statutes) against Fidelity. Plaintiff's complaint alleges that in the summer of 2003, defendant Haynes contracted with the State of Connecticut to act as general contractor for the "New Student Center" project at Southern Connecticut State University in New Haven, Connecticut. On February 6, 2003, Haynes had entered into a subcontract with United Steel to furnish certain labor, materials and equipment for this contract in exchange for $1,357,000. Plaintiff alleges that it provided all of the labor, materials and equipment required by the subcontract and the change orders issued pursuant to the subcontract, but that there remains a balance due in excess of $827,568. Count One alleges the nonpayment as a breach of contract. Count Two alleges that plaintiff provided services to defendant Haynes for which it was not paid and which unjustly enriched Haynes to plaintiff's detriment. Count Three alleges defendant intentionally misled plaintiff into providing services not required under the contract or for which it had no intention of paying under the contract, that defendant failed to adequately supervise and manage the project, that defendant denied plaintiff timely access to the site to start erection of steel and that it interfered with the progress of plaintiff's work. In Count Four, plaintiff alleges the actions alleged in Count Three constitute a violation of CT Page 77 CUTPA.
Defendant Haynes has moved to strike Count Two of the complaint on the grounds that United Steel failed to allege sufficient facts to support a claim of unjust enrichment and that unjust enrichment cannot be claimed in a case where recovery is possible under a contract. Haynes further moved to strike Count Four of the complaint on the ground that United Steel failed to allege sufficient facts to support a claim pursuant to CUTPA.
II. Standard of Review
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." Broadnax v. New Haven, 270 Conn. 133, 173, (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . ." Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292 (2004). "Moreover . . . what is necessarily implied [in an allegation] need not be expressly alleged." Id., 292-93. "Where the legal grounds for [a motion to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." Id., 293. However, a motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). The role of the court 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. Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, cert. denied, 252 Conn. 950 (2000).
III. Count Two — Unjust Enrichment
In support of its motion to strike Count Two, defendant Haynes argues that United Steel has failed to allege sufficient facts to establish a claim of unjust enrichment and, further, that United Steel cannot recover under the theory of unjust enrichment where it also has claimed recovery under a contract between the parties. United Steel argues that it has alleged facts sufficient to support a claim of unjust enrichment and, further, that it is entitled to claim unjust enrichment in the alternative to its contractual claim. CT Page 78
Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendant was benefited, (2) that the defendant unjustly did not pay the plaintiff for the benefits, and (3) that the failure of payment was to the plaintiff's detriment. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283 (1994). It is necessary that the plaintiff show that "the defendant was benefitted; that is, he has received something of value." Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246 (1971).
In Count Two, United Steel has alleged that Haynes was benefitted in the transaction by receiving labor, materials and equipment from United Steel, for which United Steel was not paid, to United Steel's detriment and loss. Defendant Haynes argues that the benefit of plaintiff's services, however, was actually conferred on a third party, Southern Connecticut State University, not on Haynes and therefore that plaintiff may not recover on this theory. Although it may be that plaintiff will be unable to prove a benefit to Haynes, this raises a factual issue outside the scope of the pleadings. As stated in Count Two, receiving the benefit of goods and services without payment is unjust enrichment. Thus, plaintiff has alleged the necessary legal requirements and sufficient facts to support a claim for unjust enrichment.
Defendant Haynes also argues that Count Two should be stricken because plaintiff is seeking the same damages by way of breach of contract in Count One, and unjust enrichment is an equitable remedy that only applies where plaintiff does not have a remedy under the contract. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. at 282. "[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied obligations . . . Proof of a contract enforceable at law precludes the equitable remedy of unjust enrichment at least in the absence of a breach of the contract by the defendant . . ." (Citations omitted; internal quotations marks omitted.) Polverari v. Peatt, 29 Conn.App. 191, 199, cert. denied, 224 Conn. 913 (1992).
However, "a plaintiff may . . . raise alternative and inconsistent claims in the same case. Although a plaintiff is, of course, under no obligation to raise such inconsistent claims, he or she reasonably may conclude that it is necessary to do so CT Page 79 pending the discovery of additional facts. Under those circumstances, one or more of the plaintiff's claims fairly may be described as contingent on the discovery of such additional facts." (Citations omitted.) Danko v. Redway Enterprises, Inc., 254 Conn. 369, 381 (2000); see also Practice Book § 10-25.
"Unjust enrichment applies whenever 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. Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment. [I]t is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff." (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401 (2001).
Although in the present case United Steel will not be able to recover under both the contract and unjust enrichment, it may advance these theories in the alternative until it has gathered sufficient facts to determine which theory more properly applies. Thus, Count Two alleges a valid alternative theory of recovery, pending further discovery and determination of plaintiff's entitlement to recover under the contract.
IV. Count Four — Connecticut Unfair Trade Practices Act
In Count Four, United Steel alleges defendant Haynes' misrepresentations as to payment and its breach of good faith and fair dealing by delaying and interfering with plaintiff's steel work constitute a violation of the Connecticut Unfair Trade Practices Act. Connecticut General Statutes Section 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The Connecticut Supreme Court has adopted the criteria set out by the Federal Trade Commission for determining when a practice is unfair: "(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; or (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be CT Page 80 unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155 (2005). "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." General Statutes 42-110g(a).
"The burdens and risks inherent in contract formation, [however], would be intolerably increased if every simple breach of contract claim were to be made the basis of a CUTPA violation. But it is also true that the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation . . . In other words, a breach of contract claim can make out a legally sufficient CUTPA claim as long as there are substantial aggravating circumstances." Production Resources Group, LLC v. Distributed Media Corp., Superior Court, Complex Litigation Docket at Waterbury, No. X06 CV 01 0170391 (February 25, 2003, McWeeny, J.).
Although United Steel has alleged that Haynes made misrepresentations to United Steel that it would pay it in accordance with the contract, this claim is nothing more than a claim for nonpayment. As to this alleged "misrepresentation," no aggravating facts or circumstances are alleged to distinguish this as an unfair trade practice. Plaintiff has also alleged that Haynes mismanaged the construction and interfered with United Steel's timely access to the site to start erection of steel and required United Steel to perform work not contemplated by the subcontract. Again, plaintiff has not alleged facts that elevate Haynes' actions "from that of contract breach . . . to the type of immoral, unethical, unscrupulous or offensive trade practices [that] CUTPA was designed to prevent." Gladue v. Cummins, Superior Court, J.D. of New London, No. 547927 (September 27, 1999, Hurley, J.T.R.). Thus, plaintiff has not sufficiently alleged a CUTPA violation.
Accordingly, defendant Haynes' motion to strike is denied as to Count Two and is granted as to Count Four of the complaint.
So ordered. CT Page 81