MEADOWS LTD. P'SHIP v. CORATOLO, No. FST CV 09 5009680S (Jul. 28, 2010)

TAGGART D. ADAMS, Superior Court Judge.

On December 12, 2008, the plaintiff, Wilton Meadows Limited Partnership, d/b/a Wilton Meadows Rehabilitation and Health Care, commenced this action by service of process on the defendant, Sally Coratolo. In its complaint, the plaintiff alleges the following facts. On August 14, 2006, Carmen Coratolo (Coratolo), the plaintiff's husband, was admitted as a resident at the plaintiff's facility, which operates as a chronic care and convalescent facility with nursing supervision. Prior to Coratolo's admittance to the plaintiff's facility, the plaintiff and Coratolo entered into a written admissions agreement, which required the prompt payment of Coratolo's "income and assets" in exchange for the health care services provided by the plaintiff. The agreement further provided that Coratolo was to obtain medicaid benefits to pay for his care upon the exhaustion of his private sources of income. During the formation of this agreement, the defendant represented that she was acting as Coratolo's agent because of a power of attorney dated December 19, 2005. The plaintiff alleges that "[i]n making the contract for care and services, the Plaintiff relied on the Defendant's warranty of agency of authority and had no knowledge of any limits on the Defendant's authority."

The complaint alleges that unbeknownst to the plaintiff, however, the Probate Court for the District of Norwalk had already appointed Thomas Coratolo as the conservator of the estate and person of Coratolo on March 14, 2006, which extinguished the December 19, 2005 power of attorney. Between the period of August 14, 2006 and October 10, 2007, the plaintiff provided Coratolo with the standard care given at its facility, but Coratolo failed to pay in full for these services. Coratolo died on October 25, 2007, and the plaintiff alleges that no decedent's estate has been opened. Furthermore, as the defendant had no authority to act as Coratolo's agent when Coratolo and the plaintiff entered into the August CT Page 15379 14, 2006 admissions agreement, this contract has been rendered unenforceable. The plaintiff contends that there is a balance of $60,795.32 that remains unpaid. Accordingly, in count one, the plaintiff alleges a cause of action against the defendant for breach of warranty of authority.

Counts two and three of the plaintiff's complaint allege claims for breach of oral contract and breach of implied contract based on the following facts. Upon the admittance of Coratolo to the plaintiff's facility, the defendant represented that on August 10, 2006, she had applied to the department of social services to obtain medicaid benefits for Coratolo. In order to qualify for medicaid benefits, Coratolo's assets needed to be within "the $1,600 asset limit and the Defendant need to bring her assets within the $101,640.00 asset limit." On February 6, 2007, the department of social services denied Coratolo medicaid benefits because the defendant's spousal assets were over these limits. Medicaid benefits were finally granted to Coratolo on March 1, 2007, but no benefits were awarded for the period prior to that date. Beginning in March 2007, Coratolo's monthly income was diverted to pay the plaintiff's fees, but the amount was insufficient to pay the full balance due. The plaintiff alleges that the defendant breached her oral and implied contracts with the defendant because she failed "to take actions necessary to promptly qualify [Coratolo] for Medicaid benefits, and her failure to promptly qualify [Coratolo] for Medicaid left the Plaintiff with an unpaid balance . . ."

On February 25, 2010, the defendant filed an answer, along with three special defenses and a revised counterclaim. The defendant's three special defenses are each directed to all of the counts of the plaintiff's complaint. In her first special defense, the defendant alleges that she did not sign the subject admissions agreement in her personal or individual capacity, but instead signed the agreement pursuant to what she thought was a valid power of attorney. Accordingly, the plaintiff contends that she was acting in good faith. Furthermore, the defendant alleges that "[a]n agent does not become a party to a contract made on behalf of a disabled principal unless the agent and the third party so agree." For this reason, the defendant alleges that she is not personally liable under the terms of the admissions agreement.

The defendant's second special defense alleges that "[a]s an applicant to a nursing home, Carmen Coratolo had a right to the protections applicable to nursing home residents" as provided for by state and federal law; specifically, 42 U.S.C. § 1396r, General Statutes § 19a-535 and General Statutes § 19a-550. Consequently, the plaintiff was not permitted to deny Coratolo admission to the plaintiff's facility unless it was done CT Page 15380 in accordance with these statutes. The plaintiff also had a duty to provide Coratolo with the care and services described in the admissions agreement as a matter of law. Accordingly, the defendant's second special defense is for lack of consideration.

In her third special defense, sounding in fraudulent inducement, the defendant alleges that the plaintiff did not inform the defendant of the legal duties that the plaintiff owed to Coratolo pursuant to federal and state law. Instead, the plaintiff told the defendant that her signature was required on the admissions agreement as a condition to Coratolo being admitted to the plaintiff's facility. The defendant alleges that this false representation was made in order to induce the defendant to sign the admissions agreement.

The defendant's revised counterclaim alleging violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), reiterates most of the factual background from the defendant's special defenses, in that it alleges that Coratolo was the beneficiary of certain protections under federal and state law and the plaintiff was required to admit Coratolo to its facility and provide care and services in accordance with these statutes. Further, the defendant again alleges that she was not informed of these obligations and that she was fraudulently induced into signing the admissions agreement. In her revised counterclaim, the defendant alleges that the plaintiff's "primary trade or business was the operation of a nursing home and the collection of fees for said services." Moreover, the defendant alleges that she was emotionally distressed as a result of her husband's poor health and unfamiliar with the rights of nursing home residents. The defendant alleges that the plaintiff should have known of the defendant's emotional distress and lack of knowledge of nursing home procedures, and that the plaintiff took advantage of the defendant's mental state in order to make the defendant personally liable for Coratolo's nursing home expenses. According to the revised counterclaim, the plaintiff is prohibited by state and federal law from requiring a third party such as the defendant to guarantee payment to its facility as a condition of admission and that the plaintiff's actions were an attempt to circumvent these rules. As a result of these actions, the defendant contends that she "has suffered emotional distress due to her fear that her personal assets may be depleted" and she "has incurred and will hereafter incur attorneys fees in defending this lawsuit." Therefore, the defendant alleges that the plaintiff has committed an unfair trade practice in violation of CUTPA.

On March 23, 2010, the plaintiff filed a motion to strike all three of the defendant's special defenses, as well as the revised counterclaim. The plaintiff has filed a memorandum of law in support of its motion. On CT Page 15381 June 4, 2010, the defendant filed a memorandum of law in opposition to the plaintiff's motion. The court heard argument in this matter at short calendar on June 15, 2010.

A motion to strike can be used to test the legal sufficiency of both a special defense and a counterclaim. Practice Book § 10-39(a) states in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). When ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "Practice Book § 10-50 require[s] the defendant's special defense to be consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff ha[s] no cause of action," and when this does not occur, the special defense is legally insufficient and the court should grant the CT Page 15382 motion to strike. Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 167, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).

The plaintiff moves to strike all three of the defendant's special defenses on the ground that none of the special defenses "are in any way consistent with any of the Plaintiff's causes of action but nonetheless show the Plaintiff has no cause of action in accordance with Section 10-50 of the Connecticut Practice Book." In order to assess the plaintiff's argument, it is necessary to examine closely each of the plaintiff's causes of action and whether the defendant's special defenses could possibly provide a defense to these legal theories.

The defendant's first special defense is that she is not personally liable under the terms of the admissions agreement because she: (1) did not sign the admissions agreement in her personal or individual capacity; (2) signed the agreement pursuant to what she thought was a valid power of attorney and (3) was acting in good faith and in her capacity as Coratolo's agent. In its memorandum of law, the plaintiff first argues that this special defense is legally insufficient as to count one, breach of warranty of authority, because the basis of the defendant's liability for this cause of action rests on whether the defendant was validly acting as Coratolo's agent. If a fact finder determines, as alleged by the plaintiff, that the defendant was not acting as Coratolo's agent, then she could be held liable under this legal theory. Therefore, the plaintiff contends that it is immaterial whether the defendant is liable under the terms of the admissions agreement itself. In response, the defendant argues that "[t]o prevail under their claim the plaintiff must suffer a loss as a result of the contract they were induced to enter into. The defendant's special defense puts the Resident Admissions Agreement forward to defend against the plaintiff [sic] claim in that her principal would not have been liable pursuant to the Resident Admission Agreement . . . As a result the plaintiff could not have relied to their detriment upon the Defendant's Warranty of Authority."

"An agent may . . . be held liable if he acts outside the scope of his authority. A person who purports to make a contract . . . with a third party on behalf of another person, lacking power to bind that person, gives an implied warranty of authority to the third party and is subject to liability to the third party for damages caused by breach of that warranty." (Internal quotation marks omitted.) Precision Mechanical, Inc. v. Empyrean Hospitality, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 07 5002281 (September 26, 2007, Esposito, J.), citing, 3 Restatement (Third), Agency § 6.10, p. 96 (2005); 3 Am.Jur.2d, Agency § 292 (2002). "In such cases the agent is not CT Page 15383 . . . bound by the contract, because nobody intended that he should be so bound; but if, by reason of his lack of authority, the contract is not enforceable against the alleged principal, the party who has been induced to contract on the faith of the agent's authority has one of two remedies. If the agent honestly believed that he had an authority which he did not possess, he may be sued on an implied warranty of authority. If he knew, or . . . he ought to have known, that he had not the authority which he professed to have, he may be sued in the action of deceit." (Internal quotation marks omitted.) Sullivan v. Mancini, 103 Conn. 110, 112-13, 130 A. 70 (1925). "[T]he legal basis of the agent's liability in such cases [is stated as follows.] It is ordinarily more consistent with legal principles to hold as between the agent and the other party, that, where the agent has induced action, in reliance upon express or implied representations of authority, the agent and not the other party should assume the risk. This puts the warranty, express or implied, upon the basis of a representation by word or conduct, made for the purpose of influencing the conduct of another, which, being relied on and acted on to the injury of the other, cannot be denied for the purpose of escaping liability for such injury." (Internal quotation marks omitted.) Id., 113-14.

As demonstrated by this case law, the basis of liability under a breach of warranty of authority theory is representations made to a third party by the principal's purported agent. As such, the supposed agent's liability under the contract is irrelevant, as well as the agent's good faith and whether the principal is bound to the contract. Accordingly, the defendant's first special defense is legally insufficient as to count one, because this special defense alleges facts that could not provide the defendant with a valid defense.

Next, the plaintiff argues that the first special defense should be stricken as to counts two and three because the issue in those counts is whether there was an oral or implied contract between the parties requiring the defendant to obtain medicaid benefits for Coratolo. The plaintiff contends that whether the defendant is a party to the admissions agreement is not a recognized special defense to either of these claims. In response, the defendant argues that Connecticut law mandates that the defense of express contract must be specially pleaded when trying to defeat a claim for quantum meruit.

Although it is true that Jackson v. Lacy, 92 Conn. 256, 262, 102 A. 584 (1917), does suggest that the defense of express contract must be specially pleaded in a quantum meruit action, logic still dictates that the express contract in question must have a relation to the allegations of the plaintiff's complaint. In counts two and three, the plaintiff CT Page 15384 alleges that the defendant breached oral and implied contracts to obtain medicaid benefits for Coratolo. Whether the defendant is held personally liable under the admissions agreement between the plaintiff and Coratolo has no relevance as to whether the defendant breached her alleged contractual obligations to the plaintiff to procure medicaid benefits. Therefore, the defendant's first special defense fails to allege "[f]acts which are consistent with [the plaintiff's allegations] but show, notwithstanding, that the plaintiff has no cause of action . . ." Practice Book § 10-50. Consequently, the defendant's first special defense is also legally insufficient as to counts two and three.

There are similar problems with the defendant's second and third special defenses. In her second special defense, the defendant alleges that the plaintiff had a pre-existing legal duty to provide Coratolo with care and services, and, therefore, the admissions agreement is not enforceable for lack of consideration. The third special defense alleges that the admissions agreement is unenforceable against the defendant because the defendant was induced to sign it by false representations made by the plaintiff. Once again, with these special defenses, the defendant is attempting to assert that she cannot be held liable under the admissions agreement between the plaintiff and Coratolo. The plaintiff, however, has alleged claims against the defendant for breach of warranty of authority and breach of oral and implied contracts to obtain medicaid benefits. Accordingly, the defendant's second and third special defenses are legally insufficient because they allege facts that could not defeat the plaintiff's claims. The court grants the plaintiff's motion to strike the defendant's second and third special defenses.

While striking all the special defenses asserted against the second and third counts which allege claims against the defendant on the basis of allegations of implied and oral contract, the court notes, and agrees with the defendant's assertion that the written Resident Admissions Agreement is relevant to the disposition of this case. For instance, the existence of the Agreement raises questions whether there would be any reason for the defendant to make, or the plaintiff to rely on, oral representation or other actions which would give rise to an oral or implied contract, as alleged.

The plaintiff next moves to strike the defendant's CUTPA counterclaim on a number of grounds. First, the plaintiff argues that the revised CT Page 15385 counterclaim fails the transaction test included in Practice Book § 10-10 test because it does not arise out of any of the causes of action alleged in the plaintiff's complaint. Specifically, the plaintiff argues that the issues raised in its complaint are a principal-agent relationship stemming from the admissions agreement and the defendant's inability to obtain medicaid benefits for Coratolo. According to the plaintiff, the defendant's counterclaim portrays the admissions agreement as a surety contract, which is an incorrect characterization. Therefore, the plaintiff contends that the revised counterclaim should be stricken because it does not involve the same issues of fact and law as the plaintiff's complaint. In response, the defendant argues that the plaintiff's case involves "the admission of Carmen Coratolo into the plaintiff's nursing home and the conduct of the plaintiff and the defendant in facilitating that admission." The defendant further argues that "[p]ortions of the defendant's defense to the plaintiff's allegations comprise the same legal claims as her counter claim," and for that reason the court should not strike the defendant's revised counterclaim.

Practice Book § 10-10 provides in relevant part: "In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint . . ." "This section is a commonsense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy . . . The transaction test is one of practicality, and the trial court's determination as to whether that test has been met ought not be disturbed except for an abuse of discretion." (Internal quotation marks omitted.) South Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.App. 540, 546, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009). "Our Supreme Court has instructed that the [r]elevant considerations in determining whether the transaction test has been met include whether the same issues of fact and law are presented by the complaint and the [counter] claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." (Internal quotation marks omitted.) Id., 547.

In her revised counterclaim, the defendant alleges that the plaintiff has violated CUTPA for, inter alia, the following reasons: (1) the plaintiff told the defendant that her signature on the admissions agreement was necessary in order to admit Coratolo when the plaintiff already had an existing legal duty to provide health care services to Coratolo; (2) this representation was made with the intent of inducing the defendant to sign the admissions agreement; (3) the plaintiff knew CT Page 15386 that this representation was false and (4) the plaintiff's purpose in requiring the defendant to sign the admissions agreement was to make her potentially liable for the payment of Coratolo's nursing home expenses. Therefore, the crux of the defendant's counterclaim is the events surrounding the formation of the admissions agreement between the plaintiff and Coratolo. In count one of its complaint, the plaintiff alleges a claim for breach of warranty of authority stemming from the defendant's actions in forming the subject admissions agreement. Accordingly, it can be seen that both the revised counterclaim and count one of the plaintiff's complaint arise out of the same factual background, that being the creation of the admissions agreement. As the revised counterclaim and count one originate from the same factual scenario, there would be a substantial duplication of effort by the parties if there were to be two separate trials. Therefore, the revised counterclaim complies with the transaction test as set forth in Practice Book § 10-10.

Second, the plaintiff argues that the defendant's CUTPA counterclaim is legally insufficient because the facts alleged do not arise out of the plaintiff's primary trade or business. Specifically, the plaintiff argues that it "is not seeking to hold the Defendant responsible under an Admission Agreement, or any standard documentation involved in operating its business in collection of its fees. Rather, the Plaintiff sought to collect its fees from Carmen Coratolo under an agreement signed by the Defendant." The defendant counters that the plaintiff is a nursing home that provides services for a fee and that the defendant's revised counterclaim stems from a fee that it claims is due from Coratolo. Consequently, the defendant contends that the plaintiff's fee pursuit arises out of the plaintiff's primary trade or business.

"To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce . . . Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." (Citations omitted; internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 493-94, 977 A.2d 228, cert. granted, 293 Conn. 935, 981 A.2d 1080 (2009). "[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital Health Center, Inc., 296 Conn. 315, 351, 994 A.2d 153 (2010). Health care facilities are subject to CUTPA claims "only when the actions at issue are chiefly concerned with entrepreneurial aspects of CT Page 15387 practice, such as the solicitation of business and billing practices . . ." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 809, 826 A.2d 1066 (2003).

In paragraph one of her revised counterclaim, the defendant alleges that the plaintiff is a facility "whose primary trade or business was the operation of a nursing home and the collection of fees for said services." On a motion to strike, the court must accept the truthfulness of this factual allegation. Moreover, the defendant alleges that she was induced to sign the admissions agreement because the plaintiff intended for her to be held liable for the payment of Coratolo's nursing home expenses. This factual allegation arises out of the entrepreneurial aspects of the operation of the plaintiff's facility because it involves billing practices. The plaintiff's argument that the court should grant the motion to strike because the conduct alleged does not arise out of the plaintiff's primary trade or business is unconvincing.

Finally, the plaintiff argues that the court should strike the revised counterclaim because the defendant fails to plead or allege ascertainable loss or actual damages. In its memorandum of law, the plaintiff contends that the defendant has only alleged that she suffered emotional distress damages and that she will incur attorneys fees in defending this lawsuit. The plaintiff argues that neither of these measures of damages are sufficient to plead an ascertainable loss as required under CUTPA. In response, the defendant argues that she has pleaded an ascertainable loss and actual damages because the revised counterclaim alleges that: (1) the plaintiff was required to sign an admissions agreement without explaining the terms of the agreement; (2) the plaintiff was not explained the alternative ways that Coratolo could be qualified for medicaid coverage and (3) the plaintiff's purpose in requiring the defendant to sign the admissions agreement was to make her liable for the payment of Coratolo's nursing home expenses.

CUTPA provides in relevant part: "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 in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages." General Statutes § 42-110g(a). "The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . An `ascertainable loss' is a loss that is capable of being discovered, observed or CT Page 15388 established . . . The term `loss' necessarily encompasses a broader meaning than the term `damage,' and has been held synonymous with deprivation, detriment and injury . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known." (Citations omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18, 947 A.2d 320 (2008).

The defendant does not allege that she has suffered any direct financial loss as a result of the plaintiff's actions. Indeed, the defendant's revised counterclaim impliedly admits that she did not experience any actual damages when the defendant alleges in paragraphs fourteen and sixteen that the "Plaintiff's purpose in requiring [defendant] to sign the Admissions Agreement . . . was to make her potentially liable for payment of nursing home expenses from her personal assets" and "Plaintiff's attempt to hold defendant personally liable under the terms of the Admissions Agreement is . . . an attempt to circumvent the prohibitions against requiring third party guaranties." (Emphasis added.) Therefore, in the revised counterclaim, the only allegations of damage suffered to date by the defendant are "emotional distress due to her fear that her personal assets may be depleted" and that the "defendant has incurred and will hereafter incur attorneys fees in defending this lawsuit." Of course, should the Connecticut Supreme Court reverse this court in the first action (see n. 1 supra) the defendant may well be able to allege actual damages in the future, and the same may be said if the plaintiff succeeds in this case.

"A survey of case law reveals that there are no appellate decisions as to whether emotional distress or injury constitutes an ascertainable loss under CUTPA. The few Superior Court cases on this issue have determined that emotional distress or injury is not an `ascertainable loss' capable of compensation." (Internal quotation marks omitted.) Builes v. Kashinevsky, Superior Court, judicial district of Fairfield, Docket No. CV 09 5022520 (September 15, 2009, Bellis, J.) ( 48 Conn. L. Rptr. 538, 541); see also Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket No. CV 04 4003402 (June 17, 2009, Corradino, J.) ( 48 Conn. L. Rptr. 133, 134) (holding that under CUTPA, "`ascertainable loss' . . . does not appear to envisage a recovery for emotional distress"); Rees v. Flaherty, Superior Court, judicial district of Tolland, Docket No. CV 01 0077316 (June 7, 2002, Scholl, J.) ( 32 Conn. L. Rptr. 292, 293) (determining that claims for "emotional distress . . . [are] . . . types of damages [that] do not appear to come within the meaning of ascertainable loss or actual damages as contemplated by the CUTPA statute"); Lane v. First National Bank, CT Page 15389 Superior Court, judicial district of New Haven, Docket No. CV 01 0446552 (April 19, 2002, Thompson, J.) (holding that "emotional distress is not an `ascertainable loss' under CUTPA"). This court is persuaded by the above holdings and determines that emotional distress does not qualify as an ascertainable loss under CUTPA.

Regarding the issue of whether attorneys fees could constitute an ascertainable loss under CUTPA, the Connecticut Supreme Court has stated, in dicta, that "it is doubtful that the defendants would have been able to establish that the attorneys fees they incurred in defending the plaintiff's action constituted damages recoverable under General Statutes § 42-110g(a) . . ." Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 685, 657 A.2d 1087 (1995). This result makes sense because CUTPA allows for the recovery of both damages; General Statues § 42-110g(a); and attorneys fees. General Statutes § 42-110g(d). Under CUTPA, "[t]he moving party must prevail on the CUTPA cause of action before such [attorney's] fees and damages must be awarded." Vezina v. Nautilus Pools, Inc., 27 Conn.App. 810, 821, 610 A.2d 1312 (1992). As stated by one Superior Court judge when rejecting a claim that attorneys fees could qualify as an ascertainable loss under CUTPA: "The defendant contends that the cost of defending against this suit constitutes an ascertainable loss compensable under CUTPA . . . CUTPA states, in § 42-110g(d) that `in addition to the relief provided in this section' the court may award costs and attorneys fees. If the defendant's contention is correct, this language would be superfluous." Brookside Properties v. Pim-John, Inc., Superior Court, judicial district of Windham, Docket No. CV 93 0045795 (January 23, 1997, Sferrazza, J.). Given this authority, the court finds that simply alleging damages from attorneys fees incurred in defending a lawsuit is insufficient to allege an ascertainable loss or actual damages under CUTPA. As the defendant alleges no other actual damages in her revised counterclaim, the revised counterclaim is legally insufficient and it should be stricken.

For all of the reasons stated above, the court grants the plaintiff's motion to strike all three of the defendant's special defenses and well as her revised counterclaim.