414 A.2d 1177 | Conn. Super. Ct. | 1980
The plaintiffs are a nonstock corporation which is a condominium association (hereinafter referred to as the association) and two individual condominium owners acting for themselves and for the class of past and present condominium unit owners. The right of the plaintiffs to represent all the class members was determined in an earlier decision in the case. Governors Grove CondominiumAssn. v. Hill Development Corporation,
The purpose and scope of a motion to strike are identical to those of the demurrer under the previous rules of practice, and the rules which applied to the demurrer apply to the motion to strike. It is axiomatic that the factual allegations of the pleading to which the motion is addressed are to be considered as true; that unsupported legal conclusions are, however, not admitted; and that the motion is tested, not by the bare factual allegations, but "by the facts provable under the allegations of the pleading to which the . . . [motion] is addressed."Fraser v. Henninger,
The gist of the allegations against LaCava in the first count is breach of warranty, express or implied, *147
arising out of the contract between LaCava and Hill. A careful reading of Coburn v. Lenox Homes, Inc.,
To the extent that the claim rests on express warranty, "[t]he proposition that one who was neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract merits little discussion. Knapp v. NewHaven Road Construction Co.,
The plaintiffs' claim in implied warranty is similarly lacking. The court in Coburn v. Lenox Homes,Inc., supra, noted "`that the overwhelming trend in recent decisions from other jurisdictions, as well as in our own Superior Court, is to invoke the doctrine of implied warranty of workmanship and habitability in cases involving the sale of new homes by the builder.' . . . The cases recognizing an implied warranty covering homes have almost uniformly limited recovery to actions by the original purchaser against the builder-vendor of a new home. . . . We find these limits to be well-founded and fatal to the plaintiffs' implied warranty claim." (Citations omitted.) Id., 571. The allegations of the first count as against LaCava do not amount to a claim by original *148
purchasers against a builder-vendor. The cases relied on by the plaintiffs are not in point. Hamon
v. Digliani,
The court in Coburn did appear to imply that where a house is the product of a mass marketing scheme or is designed as a temporary dwelling, and where the builder attempted to insulate itself behind a wall of intermediaries who destroyed the chain of privity, the doctrine of privity might not apply. See Coburn v. Lenox Homes, Inc., supra, 572-73. No such facts are provable under the allegations made here, however. The Coburn case also recognized that privity is not a prerequisite to a negligence claim against a home builder-vendor; but no such claim is alleged here. Id., 574-76.
As against Hill the first count is an a fortiori case. Not only does the count fail to allege that the plaintiffs were parties to the contract or intended beneficiaries thereof, or that they were in privity with the implied warrantor, but it also fails to allege any warranty by Hill. The only warranty, express or implied, alleged is that of LaCava.
The plaintiffs claim in their brief that Hill's liability is based on a theory of a joint enterprise between Hill and LaCava. There is, however, no allegation of that in the first count, nor would the allegations of the business relationship between the *149
defendants, even read broadly, permit proof thereof. Nor are there any allegations of a combination of property, money, efforts, skill or knowledge in a common undertaking, with sharing of profits and losses, necessary to spell out a claim of joint adventure or enterprise. See Wall v. Wason,
The plaintiffs also claim in their brief that the first count contains allegations that Hill "created and controlled the construction." Suffice it to say that, while this claim may appear in the brief, the court does not perceive it in the complaint.
Accordingly, the motion to strike the first count is granted as to both defendants.
As against LaCava, the second count adds nothing to the first count. Therefore the motion to strike is granted as to LaCava.
As against Hill, the additional allegation supplies the missing link in the chain of privity. While the pleading is something less than a model of artfulness, it would permit proof of facts that Hill sold condominium units to some of the members of the class represented by the plaintiffs and that those *150 sales carried a warranty with them.1 As to the nature of that warranty, the allegation is that it was a "warranty of quality . . ." which applied to the quality of construction of the roof. Again, while this may be somewhat general, it can only be reasonably interpreted as having been intended to mean and to refer to the warranty of good workmanship and standard practices for specified materials incorporated in the second count by reference to the first count. Thus read, the second count amounts simply to a claim that Hill sold condominium units to some of the class with warranties, express or implied, that the roofs had been constructed in a good and workmanlike manner and in accordance with standard practices for the materials specified for them.
To the extent that the claim is one of sale with an express warranty, it is one of simple contract and, since the parties are in privity, it is legally sufficient. To the extent that it is one of sale with an implied warranty, however, the language of Coburn v. LenoxHomes, Inc., supra, 571, applies: "The cases recognizing an implied warranty covering homes have almost uniformly limited recovery to actions by the original purchaser against the builder-vendor of a new home. See, e.g., cases collected at 25 A.L.R.3d 383, 413-19. We find these limits to be well founded and fatal to the plaintiffs' implied warranty claim." Since Hill is claimed to be the vendor, but not the builder-vendor, and since the allegations do not suffice to spell out a joint enterprise by Hill with LaCava, the builder, the allegations fail to state a claim in implied warranty. *151
Accordingly, as against Hill, the motion to strike is denied insofar as the second count states a claim based on sales with express warranties. The motion is granted insofar as the second count purports to state a claim based on sales with implied warranties.
The third count, therefore, is grounded on the theory of civil conspiracy. The gist of a civil action for conspiracy is not conspiracy as such, without more, but the damage caused by the acts committed pursuant to the formed conspiracy. Benoit v. AmalgamatedLocal 299,
Here there is no question that the plaintiffs have alleged both a combination between Hill and LaCava and resulting damage to the plaintiffs. Thus the first and fourth requirements are satisfied. As to the third, the overt act in furtherance of the combination, the defendants make much of the fact that the actions claimed by the plaintiffs to have been taken by Hill and LaCava in furtherance of the conspiracy were labeled by the plaintiffs as further agreements rather than as actions — namely, the agreements not to repair, to make temporary repair only, not to enforce the contract against LaCava for corrective action, and to keep information from the plaintiffs. The allegations that Hill and LaCava agreed to do those things would, however, permit proof that they did in fact do them. See Tango v.New Haven,
This leaves the issue of whether plaintiffs have sufficiently alleged that the combination was to do *153
an unlawful act or a lawful act by unlawful means.2
A cause of action for civil conspiracy must allege the purpose or objective of the claimed conspiracy.Benoit v. Amalgamated Local 299,
To constitute fraud by nondisclosure or suppression there must be a failure to disclose known facts and, as well, a request or an occasion or circumstance which imposes a duty to speak. Duksa v.Middletown,
The allegations of this count involve a sale by Hill, with express warranties of workmanship and material, to some of the plaintiffs, and fraudulent concealment from the plaintiffs of the roofs' defective conditions. Those allegations spell out a breach of legal duty owed by Hill to the plaintiffs. Under these circumstances, therefore, the combination or conspiracy of Hill and LaCava to keep the defects a secret was to perform either an unlawful act or a lawful act by unlawful means, i.e., to effectuate the sales by means of concealment of the defects. *154
LaCava argues that it cannot be liable under this count because there are no allegations that it had any duty to disclose. Therefore, it argues, the purpose of the alleged conspiracy was not unlawful as to it. It is true that, under the facts alleged here, only Hill had the duty to disclose. While LaCava cites no authority for its proposition, and while the court has found no Connecticut authority on point, persuasive precedent exists elsewhere for the proposition that an action for civil conspiracy will lie for breach of legal duty even though not all the alleged conspirators are under the duty. See Jackson
v. Smith,
Accordingly, the motion to strike the third count is denied as to both defendants.
As against Hill, the fourth count states a claim upon which relief can be granted. Although there do not appear to be any Connecticut cases specifically on point, it is a well established rule of law that a dominant or majority shareholder bears the same fiduciary duty to the corporation and its minority shareholders as does a director. Pepper
v. Litton,
As against LaCava, the fourth count essentially alleges participation in a conspiracy with Hill to conceal the defects, which concealment was a violation *156
of Hill's fiduciary duty to the association. Although LaCava is not alleged to have been in a fiduciary relationship with the association, the allegations that it created the defects, that it knew of them, and that it conspired with Hill to conceal them in violation of Hill's fiduciary duty are legally sufficient. "[P]ersons who knowingly join a fiduciary in an enterprise which constitutes a breach of his fiduciary duty of trust are jointly and severally liable for any injury which results." Laventhol,Krekstein, Horwath Horwath v. Tuckman,
Accordingly, the motion to strike the fourth count is denied as to both defendants.