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HHD-CV23-61177054-S : SUPERIOR COURT
PEKAR, IGOR AND PEKAR, ANNA : JD OF HARTFORD
VS. : AT HARTFORD
CLOG MASTER LLC, ET AL : APRIL 11, 2024
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
MOTION TO STRIKE
The defendants move to strike the 2nd, 3rd, 4th and 6th counts of the
complaint along with claims for relief 2 through 6. The second, third and
sixth counts are addressed only to the defendant Clog Master LLC (CM),
while the fourth count is addressed only to the individual defendant
Christine Mozelak. For all the reasons given below the defendants’ motion is
wholly without merit.
A.
BACKGROUND
The factual narrative on this case is captured in ¶¶. 1-16 of the first
count, to wit:
1. At all times material and relevant hereto, the plaintiffs
Igor M. Pekar and Anna I. Pekar, husband and wife, were
residents of the town of Simsbury, County of Hartford and State
of Connecticut.
2. At all times material and relevant hereto, the plaintiffs
owned property at 15 Fawnbrook Lane, Simsbury, Connecticut,
hereinafter, the “subject property,” which property is more
particularly described as follows:
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
A certain piece or parcel of land with the buildings and
improvements thereon, situated on the southerly side of
Fawnbrook Land in the Town of Simsbury, County of
Hartford and State of Connecticut, being known as 15
Fawnbrook Lane and being shown as Lot No. 32 on a map
entitled: “Final Plot Plan Fawnbrook Property of Emilio
F. Martocchio, Trustee Simsbury, Connecticut April 21,
1976 Scale 1 in. = 100 ft. Ed Lally Civil Engineer 30Hope
Circle, Windsor, Conn,” which map is on file in the
Simsbury Town Clerk’s office; said premises are more
particularly bounded and described as follows:
Northerly: by Fawnbrook Lane, 100.67 feet;
Easterly: by Lot no. 33, as shown on said map;
Southerly: by land now or formerly of Ethel Walker
School, 103.21 feet;
Westerly: by Lot No. 31, as shown on said map, 146.77
feet
3. At all times material and relevant hereto, the defendant
Clog Master LLC, also know as or doing business as CT
Mechanical Solutions, [hereinafter referred to as “CM”] was a
limited liability company formed and existing under the laws of
the State of Connecticut and was authorized to do business
within the State of Connecticut.
4. In or around late January and/or early February of 2023,
plaintiffs sustained significant water damage to their residence
and their personal property therein.
5. On or about February 7, 2023, the plaintiffs engaged the
defendant CM to perform repair, mitigation and cleaning at the
plaintiffs’ residence for the water damage to their home and
personal property.
6. CM sent a written contract proposal to the plaintiffs for
their execution before CM would start work on the project,
which contract proposal was executed by the plaintiff Igor M.
Pekar on or about February 7, 2023.
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
7. The defendant CM did not provide plaintiffs with a copy
of the contract proposal executed in turn by CM.
8. The plaintiffs’ said losses were covered under a personal
risk insurance policy, as defined in section 38a-663, or a
commercial risk policy, as defined in section 38a-663, and
therefore before CM commenced any repair, remediation or
mitigation, including cleaning, it needed to comply with the
enumerated requirements set out in Conn Gen. Stat. § 38a-313a
(A) (B) & (C).
9. The scope of work covered by the said contract is
considered to be a “home improvement” under Conn. Gen. Stat.
§ 20-419 (4) and subject to the requirements set out in Chapter
400 (“Home Improvement Contractors”).
10. Said contract also is considered a home solicitation sale
pursuant to chapter 740 of the general statutes and subject to
the requirements of said chapter.
11. In or around February 2023 the plaintiffs removed CM
from the project, with most of the repair, remediation, clean-up
or mitigation work needed to complete the project left
unfinished.
12. Prior to it being removed from the project the defendant
CM had “packed out” a substantial number of items of personal
property from the plaintiffs’ residence to a private storage
facility, not accessible to the plaintiffs.
13. Subsequent to being so removed from the project, the
defendant CM did not engage in or perform any further
construction, raising, removal or repairs to the plaintiffs’ said
home.
14. On or about June 16, 2023, the defendant CM recorded a
mechanic lien claiming a lien on the plaintiffs’ house and land in
the amount of $109,392.65 with the town clerk of the town of
Simbury.
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
15. On information and belief, plaintiffs aver that their said
items of personal property packed out and removed from the
plaintiffs’ home by CM have been lost, discarded or have
suffered additional damage while in the care, custody and
control of the defendant CM’s.
16. The defendant CM refuses to return plaintiffs’ items of
personal property, or to provide the plaintiffs with a reasonable
accounting of the items of personal property removed and placed
in storage by CM, or to allow plaintiffs reasonable inspection
thereof.
Other facts pertinent to the challenged counts of the complaint will be
discussed separately below, as needed.
B.
LEGAL STANDARDS ON MOTIONS TO STRIKE
“[A] motion to strike contest[s] . . . the legal sufficiency of the
allegations [in a] complaint . . . to state a claim upon which relief can be
granted.” Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498
(2003). [Internal quotations omitted]. A court considering a motion to strike
does not decide facts, Lestorti v. DeLeo, 298 Conn. 466, 472 (2010), rather it
takes the facts to be those alleged in the complaint. Faulkkner v. United
Technologies Corp., 240 Conn. 576, 580 (1997). In its consideration of a
motion to strike the trial court must “construe the complaint in the manner
most favorable to sustaining its legal sufficiency.” Connecticut Coalition for
Justice in Education Funding, Inc. v. Rell, 295 Conn 240, 252-53 (2010). In
4
ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
the end, when determining whether pleadings are legally sufficient, a trial
court is required:
. . . to construe [the] pleadings broadly and realistically, rather
than narrowly and technically. . . Although essential allegations
may not be supplied by conjecture or remote implication . . . the
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 proceed[s], and do substantial justice between the
parties. . . . As long as the pleadings provide sufficient notice of
the facts claimed and the issues to be tried and do not surprise
or prejudice the opposing party, [a court should not] conclude
that the complaint is insufficient to allow recovery . . . Whether
a complaint gives sufficient notice is determined in each case
with reference to the character of the wrong complained of and
the underlying purpose of the rule which is to prevent surprise
upon the defendant . . . The interpretation of pleadings presents
a question of law [.]
Gleason v. Durden, 211 Conn. App. 416, 430-431 (2022) (quotations
and citation omitted).
D.
DISCUSSION
(i)
THE SECOND COUNT STATES A VIABLE CLAIM UNDER THE
CUTPA
The plaintiffs’ second count states a claim for relief under the
Connecticut Unfair Trade Practices Act, [CUTPA] as against the defendant
Clog Master LLC.1 The defendant CM raises two grounds in their motion as
1 Conn. Gen. Stat. §§ 42-110b et seq
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
to this CUTPA claim, to wit: (1) that there are insufficient facts pleaded to
satisfy ascertainable loss requirement under CUTPA; and (2) that the
plaintiffs claim sound in negligence and the plaintiffs have not alleged a
violation of public policy that caused a substantial and unjustified injury.
Neither ground has any merit.
The defendant’s arguments made in support of their first point
mainly flow from an unreasonably narrow reading of the CUTPA
claims set out in the second count. The defendant inexplicitly reads
the CUTPA claims as being limited to those set out in ¶. 20 - claims of
per se statutory CUTPA violations. In doing so, however, defendants
turn a blind eye to the other multiple CUTPA violations detailed in ¶.
18 (a)-(x). The defendant also ignores the unambiguous law
surrounding the concept of “ascertainable loss” under the CUTPA.
The ascertainable loss requirement [of § 42–110g] 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. CUTPA, however, is not limited to providing
redress only for consumers who can put a precise dollars and
cents figure on their loss; as the ascertainable loss provision
does not require a plaintiff to prove a specific amount of actual
damages in order to make out a prima facie case. Rather . . .
[d]amage is only a species of loss; hence the term ‘loss'
necessarily encompasses a broader meaning than the term
‘damage.’ Accordingly, for purposes of § 42–110g, an
ascertainable loss is a deprivation, detriment or injury that is
capable of being discovered, observed or established. A loss is
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
ascertainable if it is measurable even though the precise amount
of the loss is not known. Under CUTPA, there is no need to
allege or prove the amount of the actual loss.
Marinos v. Poirot, 308 Conn. 706, 66 A.3d 860 (Conn. 2013) [citations and
quotations omitted].
In paragraph #20 of their second count the plaintiffs allege as follows:
“As a result of one or more of defendant CM’s said CUTPA violations, the
plaintiffs have suffered an ascertainable loss of money and property and have
otherwise been harmed.” Incorporated into this allegation are the manifold
specified instances or acts complained of set out in ¶. 18 (a.) – (x). These
allegations taken together certainly are more than sufficient to make out a
claim under the CUTPA. Any more information or detail on the losses
suffered should more properly be sought in pre-trial discovery.
As to their second claim, it is predicated on the defendant’s
inexplicable belief that the CUTPA claims are grounded in negligence.
Throughout the second count, however, the plaintiffs claim knowing or
reckless conduct by defendant. See, ¶. 18 (a.) – (x). “Knowing” conduct is the
same as willful and intentional conduct. Black’s Law Dictionary, (6th ed.);
whereas, “reckless” conduct tends to take on the aspect of highly
unreasonable conduct involving an extreme departure from ordinary care, in
a situation where a high degree of danger is apparent.” Matthiessen v.
Varech, 26 Conn. 822, 833 (citations and quotes omitted).
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
[And] [i]n cases where the facts that establish a breach of
contract are the same as those relied on to support a CUTPA
claim, our focus has been on whether the defendant's breach of
contract was merely negligent or incompetent, in which case the
CUTPA claim was barred, or whether the defendant's actions
would support a finding of intentional, reckless, unethical or
unscrupulous conduct , in which case the contractual breach will
support a CUTPA claim under the second prong of the cigarette
rule.
Pointe Residential Builders BH, LLC v. TMP Constr. Grp., LLC, 213
Conn. App. 445, (2022) [citations and quotes omitted; emphasis in
original].
Clearly, allegations of knowing or reckless conduct are sufficient
here to make a CUTPA claim.
(ii)
THE THIRD COUNT STATES A VIABLE CLAIM FOR BREACH OF
IMPLIED COVENANT OF GOOD FAITH
The defendant CM wants this court to strike plaintiffs’ breach of the
implied covenant of good faith and fair dealing mainly because the plaintiffs
did not use the word “incorporate” when they referenced the list of bad acts in
¶. 18 (a) – (x). What the plaintiffs allege is as follows: “¶. 16 The defendant
CM has acted in bad faith towards the plaintiffs in one or more of the ways
listed in ¶. 18 (a)-(x) of the second count.” It could not be clearer to any
reader that the bad acts supporting this claim are indeed set out in Ҧ. 18 (a)-
(x) of the second count, and in making this claim the defendant is simply
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
being persnickety. And otherwise the plaintiffs do allege an underlying
contract, and the related enumerated bad faith acts. The acts complained of
are quite specific. There is also the requisite claim of damage and harm as a
consequence to defendant’s bad faith conduct.
The allegations as to this claim are sufficient because they provide
enough to afford the defendant sufficient notice of the claims being pressed to
enable it to defend itself, in keeping with the general pleading requirements
laid out in Gleason v. Durden, 211 Conn. App. at 430-431. The allegations
give fair notice of the claim made and the basis of the claim. The defendants
can dive deeper into the claim in discovery, should they so chose.
(iii)
THE FOURTH COUNT STATES A VIABLE CLAIM UNDER THE
CUTPA AS AGAINST THE INDIVIDUAL DEFENDANT CHRISTINE
MOSELAK
Count Four of the complaint makes a CUTPA claim against the
individual defendant Christine Mozelak. In ¶. 16 of this count it is alleged
that Ms. Mozelak is the sole and managing member of the defendant Clog
Master LLC. And, in ¶. 17 it is alleged the Ms. Mozelak “knowingly or
recklessly engaged in all or some of the unfair or unscrupulous acts identified
above in ¶. 18 (a) – (x) of the second count, in violation of the CUTPA.” These
allegations are more than sufficient to support this claim, because liability
will attach to the individual defendant Christine Moselak if it is proven that
9
ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
she “knowingly or recklessly engaged in unfair or unscrupulous act [under
CUTPA, as she is alleged to have done in the fourth count].” Joseph General
Contracting, Inc. v. Couto, 317 Conn. 565, 587, 119 A.3d 570 (2015). 2
(iv)
THE SIXTH COUNT STATES A VIABLE CLAIM OF DEFAMATION
The plaintiffs claim in their sixth count, which sounds in slander/libel,
that the defendant Clog Master LLC “[o]n more than one occasion since when
CM’s services were terminated by plaintiffs a representative, agent, member or
employee of CM contacted employees of the plaintiffs’ insurance carrier
verbally and in writing via various media sources and accused the plaintiffs
of defrauding the carrier in this matter.” (¶. 13, Sixth Count). The defendant
CM takes aim at this allegation, claiming that the allegation is insufficient to
support a slander/libel action because it fails to provide the statements made,
by whom and to whom. CM cites to a footnote (p. 247, n.3) set out in Stevens
v. Helming, 163 Conn. App. 241 (2016) as authority for its claim.
Stevens v. Helming, however, is not binding authority on the level or
need for specificity in slander actions beyond what is necessary to prevent
surprise upon the defendant. Indeed, in the later case of Stevens v. Khalily,
2 Defendants again argue that even though the allegations explicitly reference the acts and
conduct detailed in ¶. 18 (a) – (x) of an earlier count, since the word “incorporate” is not
employed, such negates the entire claim. As said above, this is yet another persnickety
argument.
10
ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
220 Conn. App. 634, 642-644 (2023), the appellate court made it clear that
the footnote in Helming relied on by CM in its memorandum is dicta and not
controlling law on the level of specificity needed to plead a slander/libel
action. And while Khalily leaves the question of what, if any, heightened
specificity is needed to make a slander/libel claim for another time, in its note
#11, it does points to a split on the topic at the superior court level since
Helming was released.
The plaintiffs posit that their defamation/libel pleading is sufficient
because it provides enough to afford the defendant sufficient notice of the
communications and enable it to defend itself, in keeping with the general
pleading requirements laid out in Gleason v. Durden, 211 Conn. App. at 430-
431. Repeating what has been said often in this memorandum, any more
details or specifics can be obtained as needed through our liberal pre-trial
discovery processes.
(vii)
PLAINTIFFS’ CLAIMS FOR RELIEF ARE PROPERLY CLAIMED
Injunctive or declaratory relief is available under the CUTPA in
addition to or in lieu of actual damages. In this regard, § 42-110g says in
relevant part as follows:
(a) 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
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
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. Proof of public
interest or public injury shall not be required in any action
brought under this section. The court may, in its discretion,
award punitive damages and may provide such equitable
relief as it deems necessary or proper.
...
(d) . . . In any action brought under this section, the court may,
in its discretion, order, in addition to damages or in lieu of
damages, injunctive or other equitable relief.
(Emphasis provided).
C.
CONCLUSION
The plaintiffs’ complaint provides a great deal of detail regarding each
of the legal theories being pursued. As such, it most certainly affords
defendants with sufficient notice of the claims being pressed in the suit to
enable them to defend themselves. Indeed, defendants do not claim
otherwise anywhere in their motion or memorandum. Any additional
information can readily be obtained through pre-trial discovery.
The Plaintiffs,
By: 102608
James Colin Mulholland
His Attorney
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ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
CERTIFICATION OF SERVICE
I hereby certify that a copy of the above was or will immediately be
mailed or delivered electronically or non-electronically on 04-11-24 to all
counsel and self-represented parties of record and that written consent for
electronic delivery was received from all counsel and self-represented parties
of record who were or will immediately be electronically served.
Attorney Anthony W. Pignatiello
apignatiello@dctlaw.com
102608
James Colin Mulholland
13
ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608
202 WEST ROAD, SALEM, CONNECTICUT 06420
jcolinesq@gmail.com
Preview
HHD-CV23-61177054-S : SUPERIOR COURT PEKAR, IGOR AND PEKAR, ANNA : JD OF HARTFORD VS. : AT HARTFORD CLOG MASTER LLC, ET AL : APRIL 11, 2024 PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO STRIKE The defendants move to strike the 2nd, 3rd, 4th and 6th counts of the complaint along with claims for relief 2 through 6. The second, third and sixth counts are addressed only to the defendant Clog Master LLC (CM), while the fourth count is addressed only to the individual defendant Christine Mozelak. For all the reasons given below the defendants’ motion is wholly without merit. A. BACKGROUND The factual narrative on this case is captured in ¶¶. 1-16 of the first count, to wit: 1. At all times material and relevant hereto, the plaintiffs Igor M. Pekar and Anna I. Pekar, husband and wife, were residents of the town of Simsbury, County of Hartford and State of Connecticut. 2. At all times material and relevant hereto, the plaintiffs owned property at 15 Fawnbrook Lane, Simsbury, Connecticut, hereinafter, the “subject property,” which property is more particularly described as follows: 1 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com A certain piece or parcel of land with the buildings and improvements thereon, situated on the southerly side of Fawnbrook Land in the Town of Simsbury, County of Hartford and State of Connecticut, being known as 15 Fawnbrook Lane and being shown as Lot No. 32 on a map entitled: “Final Plot Plan Fawnbrook Property of Emilio F. Martocchio, Trustee Simsbury, Connecticut April 21, 1976 Scale 1 in. = 100 ft. Ed Lally Civil Engineer 30Hope Circle, Windsor, Conn,” which map is on file in the Simsbury Town Clerk’s office; said premises are more particularly bounded and described as follows: Northerly: by Fawnbrook Lane, 100.67 feet; Easterly: by Lot no. 33, as shown on said map; Southerly: by land now or formerly of Ethel Walker School, 103.21 feet; Westerly: by Lot No. 31, as shown on said map, 146.77 feet 3. At all times material and relevant hereto, the defendant Clog Master LLC, also know as or doing business as CT Mechanical Solutions, [hereinafter referred to as “CM”] was a limited liability company formed and existing under the laws of the State of Connecticut and was authorized to do business within the State of Connecticut. 4. In or around late January and/or early February of 2023, plaintiffs sustained significant water damage to their residence and their personal property therein. 5. On or about February 7, 2023, the plaintiffs engaged the defendant CM to perform repair, mitigation and cleaning at the plaintiffs’ residence for the water damage to their home and personal property. 6. CM sent a written contract proposal to the plaintiffs for their execution before CM would start work on the project, which contract proposal was executed by the plaintiff Igor M. Pekar on or about February 7, 2023. 2 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com 7. The defendant CM did not provide plaintiffs with a copy of the contract proposal executed in turn by CM. 8. The plaintiffs’ said losses were covered under a personal risk insurance policy, as defined in section 38a-663, or a commercial risk policy, as defined in section 38a-663, and therefore before CM commenced any repair, remediation or mitigation, including cleaning, it needed to comply with the enumerated requirements set out in Conn Gen. Stat. § 38a-313a (A) (B) & (C). 9. The scope of work covered by the said contract is considered to be a “home improvement” under Conn. Gen. Stat. § 20-419 (4) and subject to the requirements set out in Chapter 400 (“Home Improvement Contractors”). 10. Said contract also is considered a home solicitation sale pursuant to chapter 740 of the general statutes and subject to the requirements of said chapter. 11. In or around February 2023 the plaintiffs removed CM from the project, with most of the repair, remediation, clean-up or mitigation work needed to complete the project left unfinished. 12. Prior to it being removed from the project the defendant CM had “packed out” a substantial number of items of personal property from the plaintiffs’ residence to a private storage facility, not accessible to the plaintiffs. 13. Subsequent to being so removed from the project, the defendant CM did not engage in or perform any further construction, raising, removal or repairs to the plaintiffs’ said home. 14. On or about June 16, 2023, the defendant CM recorded a mechanic lien claiming a lien on the plaintiffs’ house and land in the amount of $109,392.65 with the town clerk of the town of Simbury. 3 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com 15. On information and belief, plaintiffs aver that their said items of personal property packed out and removed from the plaintiffs’ home by CM have been lost, discarded or have suffered additional damage while in the care, custody and control of the defendant CM’s. 16. The defendant CM refuses to return plaintiffs’ items of personal property, or to provide the plaintiffs with a reasonable accounting of the items of personal property removed and placed in storage by CM, or to allow plaintiffs reasonable inspection thereof. Other facts pertinent to the challenged counts of the complaint will be discussed separately below, as needed. B. LEGAL STANDARDS ON MOTIONS TO STRIKE “[A] motion to strike contest[s] . . . the legal sufficiency of the allegations [in a] complaint . . . to state a claim upon which relief can be granted.” Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). [Internal quotations omitted]. A court considering a motion to strike does not decide facts, Lestorti v. DeLeo, 298 Conn. 466, 472 (2010), rather it takes the facts to be those alleged in the complaint. Faulkkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). In its consideration of a motion to strike the trial court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn 240, 252-53 (2010). In 4 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com the end, when determining whether pleadings are legally sufficient, a trial court is required: . . . to construe [the] pleadings broadly and realistically, rather than narrowly and technically. . . Although essential allegations may not be supplied by conjecture or remote implication . . . the 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 proceed[s], and do substantial justice between the parties. . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, [a court should not] conclude that the complaint is insufficient to allow recovery . . . Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant . . . The interpretation of pleadings presents a question of law [.] Gleason v. Durden, 211 Conn. App. 416, 430-431 (2022) (quotations and citation omitted). D. DISCUSSION (i) THE SECOND COUNT STATES A VIABLE CLAIM UNDER THE CUTPA The plaintiffs’ second count states a claim for relief under the Connecticut Unfair Trade Practices Act, [CUTPA] as against the defendant Clog Master LLC.1 The defendant CM raises two grounds in their motion as 1 Conn. Gen. Stat. §§ 42-110b et seq 5 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com to this CUTPA claim, to wit: (1) that there are insufficient facts pleaded to satisfy ascertainable loss requirement under CUTPA; and (2) that the plaintiffs claim sound in negligence and the plaintiffs have not alleged a violation of public policy that caused a substantial and unjustified injury. Neither ground has any merit. The defendant’s arguments made in support of their first point mainly flow from an unreasonably narrow reading of the CUTPA claims set out in the second count. The defendant inexplicitly reads the CUTPA claims as being limited to those set out in ¶. 20 - claims of per se statutory CUTPA violations. In doing so, however, defendants turn a blind eye to the other multiple CUTPA violations detailed in ¶. 18 (a)-(x). The defendant also ignores the unambiguous law surrounding the concept of “ascertainable loss” under the CUTPA. The ascertainable loss requirement [of § 42–110g] 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. CUTPA, however, is not limited to providing redress only for consumers who can put a precise dollars and cents figure on their loss; as the ascertainable loss provision does not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case. Rather . . . [d]amage is only a species of loss; hence the term ‘loss' necessarily encompasses a broader meaning than the term ‘damage.’ Accordingly, for purposes of § 42–110g, an ascertainable loss is a deprivation, detriment or injury that is capable of being discovered, observed or established. A loss is 6 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com ascertainable if it is measurable even though the precise amount of the loss is not known. Under CUTPA, there is no need to allege or prove the amount of the actual loss. Marinos v. Poirot, 308 Conn. 706, 66 A.3d 860 (Conn. 2013) [citations and quotations omitted]. In paragraph #20 of their second count the plaintiffs allege as follows: “As a result of one or more of defendant CM’s said CUTPA violations, the plaintiffs have suffered an ascertainable loss of money and property and have otherwise been harmed.” Incorporated into this allegation are the manifold specified instances or acts complained of set out in ¶. 18 (a.) – (x). These allegations taken together certainly are more than sufficient to make out a claim under the CUTPA. Any more information or detail on the losses suffered should more properly be sought in pre-trial discovery. As to their second claim, it is predicated on the defendant’s inexplicable belief that the CUTPA claims are grounded in negligence. Throughout the second count, however, the plaintiffs claim knowing or reckless conduct by defendant. See, ¶. 18 (a.) – (x). “Knowing” conduct is the same as willful and intentional conduct. Black’s Law Dictionary, (6th ed.); whereas, “reckless” conduct tends to take on the aspect of highly unreasonable conduct involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” Matthiessen v. Varech, 26 Conn. 822, 833 (citations and quotes omitted). 7 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com [And] [i]n cases where the facts that establish a breach of contract are the same as those relied on to support a CUTPA claim, our focus has been on whether the defendant's breach of contract was merely negligent or incompetent, in which case the CUTPA claim was barred, or whether the defendant's actions would support a finding of intentional, reckless, unethical or unscrupulous conduct , in which case the contractual breach will support a CUTPA claim under the second prong of the cigarette rule. Pointe Residential Builders BH, LLC v. TMP Constr. Grp., LLC, 213 Conn. App. 445, (2022) [citations and quotes omitted; emphasis in original]. Clearly, allegations of knowing or reckless conduct are sufficient here to make a CUTPA claim. (ii) THE THIRD COUNT STATES A VIABLE CLAIM FOR BREACH OF IMPLIED COVENANT OF GOOD FAITH The defendant CM wants this court to strike plaintiffs’ breach of the implied covenant of good faith and fair dealing mainly because the plaintiffs did not use the word “incorporate” when they referenced the list of bad acts in ¶. 18 (a) – (x). What the plaintiffs allege is as follows: “¶. 16 The defendant CM has acted in bad faith towards the plaintiffs in one or more of the ways listed in ¶. 18 (a)-(x) of the second count.” It could not be clearer to any reader that the bad acts supporting this claim are indeed set out in “¶. 18 (a)- (x) of the second count, and in making this claim the defendant is simply 8 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com being persnickety. And otherwise the plaintiffs do allege an underlying contract, and the related enumerated bad faith acts. The acts complained of are quite specific. There is also the requisite claim of damage and harm as a consequence to defendant’s bad faith conduct. The allegations as to this claim are sufficient because they provide enough to afford the defendant sufficient notice of the claims being pressed to enable it to defend itself, in keeping with the general pleading requirements laid out in Gleason v. Durden, 211 Conn. App. at 430-431. The allegations give fair notice of the claim made and the basis of the claim. The defendants can dive deeper into the claim in discovery, should they so chose. (iii) THE FOURTH COUNT STATES A VIABLE CLAIM UNDER THE CUTPA AS AGAINST THE INDIVIDUAL DEFENDANT CHRISTINE MOSELAK Count Four of the complaint makes a CUTPA claim against the individual defendant Christine Mozelak. In ¶. 16 of this count it is alleged that Ms. Mozelak is the sole and managing member of the defendant Clog Master LLC. And, in ¶. 17 it is alleged the Ms. Mozelak “knowingly or recklessly engaged in all or some of the unfair or unscrupulous acts identified above in ¶. 18 (a) – (x) of the second count, in violation of the CUTPA.” These allegations are more than sufficient to support this claim, because liability will attach to the individual defendant Christine Moselak if it is proven that 9 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com she “knowingly or recklessly engaged in unfair or unscrupulous act [under CUTPA, as she is alleged to have done in the fourth count].” Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 587, 119 A.3d 570 (2015). 2 (iv) THE SIXTH COUNT STATES A VIABLE CLAIM OF DEFAMATION The plaintiffs claim in their sixth count, which sounds in slander/libel, that the defendant Clog Master LLC “[o]n more than one occasion since when CM’s services were terminated by plaintiffs a representative, agent, member or employee of CM contacted employees of the plaintiffs’ insurance carrier verbally and in writing via various media sources and accused the plaintiffs of defrauding the carrier in this matter.” (¶. 13, Sixth Count). The defendant CM takes aim at this allegation, claiming that the allegation is insufficient to support a slander/libel action because it fails to provide the statements made, by whom and to whom. CM cites to a footnote (p. 247, n.3) set out in Stevens v. Helming, 163 Conn. App. 241 (2016) as authority for its claim. Stevens v. Helming, however, is not binding authority on the level or need for specificity in slander actions beyond what is necessary to prevent surprise upon the defendant. Indeed, in the later case of Stevens v. Khalily, 2 Defendants again argue that even though the allegations explicitly reference the acts and conduct detailed in ¶. 18 (a) – (x) of an earlier count, since the word “incorporate” is not employed, such negates the entire claim. As said above, this is yet another persnickety argument. 10 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com 220 Conn. App. 634, 642-644 (2023), the appellate court made it clear that the footnote in Helming relied on by CM in its memorandum is dicta and not controlling law on the level of specificity needed to plead a slander/libel action. And while Khalily leaves the question of what, if any, heightened specificity is needed to make a slander/libel claim for another time, in its note #11, it does points to a split on the topic at the superior court level since Helming was released. The plaintiffs posit that their defamation/libel pleading is sufficient because it provides enough to afford the defendant sufficient notice of the communications and enable it to defend itself, in keeping with the general pleading requirements laid out in Gleason v. Durden, 211 Conn. App. at 430- 431. Repeating what has been said often in this memorandum, any more details or specifics can be obtained as needed through our liberal pre-trial discovery processes. (vii) PLAINTIFFS’ CLAIMS FOR RELIEF ARE PROPERLY CLAIMED Injunctive or declaratory relief is available under the CUTPA in addition to or in lieu of actual damages. In this regard, § 42-110g says in relevant part as follows: (a) 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 11 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com 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. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. ... (d) . . . In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief. (Emphasis provided). C. CONCLUSION The plaintiffs’ complaint provides a great deal of detail regarding each of the legal theories being pursued. As such, it most certainly affords defendants with sufficient notice of the claims being pressed in the suit to enable them to defend themselves. Indeed, defendants do not claim otherwise anywhere in their motion or memorandum. Any additional information can readily be obtained through pre-trial discovery. The Plaintiffs, By: 102608 James Colin Mulholland His Attorney 12 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com CERTIFICATION OF SERVICE I hereby certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on 04-11-24 to all counsel and self-represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. Attorney Anthony W. Pignatiello apignatiello@dctlaw.com 102608 James Colin Mulholland 13 ATTORNEY JAMES COLIN MULHOLLAND * T. 860-604-2583 * JURIS: 102608 202 WEST ROAD, SALEM, CONNECTICUT 06420 jcolinesq@gmail.com