GIBBS v. SOUTHEASTERN INV. CORP.

Civ. No. H-86-565 (PCD)

651 F. Supp. 1419 (1987) | Cited 0 times | D. Connecticut | February 4, 1987

RULING ON MOTION FOR RECONSIDERATION

Plaintiff, now joined by the Connecticut Attorney General asamicus curiae, seeks reconsideration of the prior dismissal ofplaintiff's claims under the Connecticut Unfair Trade PracticesAct ("CUTPA"), Conn.Gen.Stat. § 42-110b. As the priorpresentation of the issues was overly narrow, reconsideration isgranted and, upon reconsideration, defendant's motion to dismissCounts 1 through 10, in which CUTPA claims are alleged, isdenied.

Plaintiff alleges ownership of a mobile home which had beenplaced on a lot rented from defendant. Plaintiff was evicted bydefendant and claims resulting damages. In Counts 1-6 and 9-10,plaintiff asserts several violations of the mobile homeowner'sbill of rights, specifically Conn.Gen.Stat. § 21-70(a)(requiring notice of a mobile homeowner's rights); § 21-79(precluding restriction on mobile home owner's right to sell); §21-80(b)(3)(B) (precluding summary process under certaincircumstances); § 21-82(e) and (f) (specifying mobile homeowner's rights to sell the home on the lot and right to have anyground for eviction in the rental agreement). These violationsare alleged to constitute unfair acts or practices under CUTPA.In Counts 7 and 8, plaintiff alleges unfair acts in the form ofmisrepresentations and court actions on the part of defendant'sattorney.

Defendant's motion to dismiss is based on Mead v. Burns,199 Conn. 651, 509 A.2d 11 (1986), which is claimed to preclude aCUTPA claim based on acts solely directed to plaintiff and torequire allegations of a general course of conduct by defendant,i.e., directed more broadly than just to plaintiff. There is thuspresented a question of law, for if plaintiff cannot prevail,even if her factual allegations are presumed true, a dismissal isproper. Fed.R.Civ.P. 12(b)(6).

A muddied water is presented because of the manner in which theConnecticut legislature in CUTPA specified the right to seekredress on the basis of unfair acts. Congress adopted an "unfairacts and practices" law, 15 U.S.C. § 45(a)(1), but it did notprovide for a private enforcement action. Enforcement wasassigned to the Federal Trade Commission ("FTC"), which ischarged principally with preserving fairness in interstatecommerce and not with resolving purely individual disputes. Thestatute sought to prohibit unfair acts, acts which were adjudgedunfair based on generally applicable criteria. See FTC v. Sperry& Hutchinson Co., 405 U.S. 233, 244-45 n. 5, 92 S.Ct. 898, 905-06n. 5, 31 L.Ed.2d 170 (1972).

Connecticut's legislature decided a similar prohibition wasappropriate in Connecticut and, in 1973, enacted CUTPA, but itdiffered from the national Act. The Legislature adopted, in largemeasure, the language used by Congress, particularly in statingthe prohibition in terms of "unfair and deceptive acts orpractices." Conn.Gen.Stat. § 42-110b(a). Connecticut's courtswere directed for guidance to the "interpretations given by theFederal Trade Commission and the federal courts to Section5(a)(1) of the Federal Trade Commission Act.(15 U.S.C. § 45(a)(1)." Conn.Gen.Stat. § 42-110b(b)). This built in aconflict between the federal statute, which was directed againstgeneral courses of conduct, and the state statute, which usedmuch the same prohibiting language, but which provided forprivate or individual enforcement actions. Conn.Gen.Stat. §42-110g. The federal statute, directed toward prohibiting coursesof action with broad national impact was appropriately couched interms of "acts and practices." On the other hand, if one wantedto give an individual the right to sue, the prohibition couldsimply be described as any unfair or deceptive act. The pluralwould be unnecessary, for an act does not lose its wrongfulquality by being repeated and acts which are repeated andinterrelate become a practice.

In Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc.,190 Conn. 528, 461 A.2d 1369 (1983), relying on an analysis of15 U.S.C. § 45(a), FTC practices, and federal court holdings, theConnecticut Supreme Court held that CUTPA, as did the federalstatute from which it was copied, authorized an action only ifthe wrong complained of adversely affected a public interest orbrought about a public injury, i.e., a wrong with a broaderimpact than solely upon the claimant. Id. at 533-36,461 A.2d 1369. That case was decided solely in relation to CUTPA, as theacts alleged to have been wrongful were claimed to be unfairsolely by their nature and the circumstances of their commissionand not by their proscription by any other statute. TheConnecticut Legislature responded in 1984 by eliminating thenecessity of proof of a public interest or public injury in anyaction under Conn.Gen.Stat. § 42-110g(a). See Public Act 84-468,§ 2. However, the Legislature thereby left in effect an act whichcopies the federal statutes and uses language not intended by theCongress to create an individual cause of action to redresswrongs inflicted against an individual.In effect, the amendment in Public Act 84-468, § 2, runs counterto the language copied from the national Act, which did notaccommodate an individual enforcement action. The Legislature hasthus failed to recognize, analyze, and resolve the incongruity ofusing language intended by Congress to create different rightsthan now seemingly is intended in CUTPA.

Plaintiff and the amicus claim that CUTPA does afford anindividual the right to bring a CUTPA claim based on an actsingularly directed to her and that Mead v. Burns does notdictate to the contrary. Mead may be distinguished as itsrequirement of a general course of action, for CUTPA relief wasbased on acts alleged to be unfair by reason of theirproscription in the Connecticut Unfair Insurance Practices Act("CUIPA"), Conn.Gen.Stat. § 38-60, et seq. The particularviolation asserted in Mead — unfair claim settlement practices —was held to require proof of general business practices, §38-61(6). Since it states a public policy, which, if violated,might constitute an unfair practice, such violation is alsoactionable under CUTPA. Mead held that such a CUTPA violation, byreason of the language of CUIPA, required proof of a generalcourse of conduct. Mead, 199 Conn. at 666, 509 A.2d 11. Mead wasdecided on the basis of the language of CUIPA and did not statethe requirement generally as did Ivey. It was not necessary inMead for the court to decide the requirements of CUTPA other thanin relation to CUIPA and its analysis of the issues suggest thatit did not do so.

Nor is defendant's position supported by reading Mead to applywhere, as here, each statute invoked by plaintiff is not couchedin language comparable to CUIPA. Defendant points to nosimilarity between Conn.Gen.Stat. §§ 21-70, 21-79, 21-80, 21-82and 47a-21(i), on the one hand, and CUIPA, which would make theholding in Mead applicable to the claims alleged here. Thelanguage of these statutes reveals no comparability that wouldsuggest, as Mead held CUIPA to require, a legislative intent torequire a general course of action before CUTPA would apply.

As Mead does not require, generally, proof of a general courseof conduct to sustain a CUTPA claim, and the statutes involvedherein are not analogous to CUIPA such as to warrant the limitedapplication of Mead, the controlling language is in § 42-110g. Asamended by Public Act 484, § 2, that statute's language,construed in the context in which it was adopted and liberallyinterpreted to effectuate its remedial purpose (Conn.Gen.Stat. §42-110b(d)), reflects an intent that an individual may maintaina private cause of action for a CUTPA violation on the basis ofconduct which singularly impacts on the individual, without thenecessity of the claim being based on a general course ofconduct.

For the foregoing reasons, defendant's motion to dismiss Counts1 through 10 is denied.

SO ORDERED.

RULING ON MOTION FOR RECONSIDERATION

Plaintiff, now joined by the Connecticut Attorney General asamicus curiae, seeks reconsideration of the prior dismissal ofplaintiff's claims under the Connecticut Unfair Trade PracticesAct ("CUTPA"), Conn.Gen.Stat. § 42-110b. As the priorpresentation of the issues was overly narrow, reconsideration isgranted and, upon reconsideration, defendant's motion to dismissCounts 1 through 10, in which CUTPA claims are alleged, isdenied.

Plaintiff alleges ownership of a mobile home which had beenplaced on a lot rented from defendant. Plaintiff was evicted bydefendant and claims resulting damages. In Counts 1-6 and 9-10,plaintiff asserts several violations of the mobile homeowner'sbill of rights, specifically Conn.Gen.Stat. § 21-70(a)(requiring notice of a mobile homeowner's rights); § 21-79(precluding restriction on mobile home owner's right to sell); §21-80(b)(3)(B) (precluding summary process under certaincircumstances); § 21-82(e) and (f) (specifying mobile homeowner's rights to sell the home on the lot and right to have anyground for eviction in the rental agreement). These violationsare alleged to constitute unfair acts or practices under CUTPA.In Counts 7 and 8, plaintiff alleges unfair acts in the form ofmisrepresentations and court actions on the part of defendant'sattorney.

Defendant's motion to dismiss is based on Mead v. Burns,199 Conn. 651, 509 A.2d 11 (1986), which is claimed to preclude aCUTPA claim based on acts solely directed to plaintiff and torequire allegations of a general course of conduct by defendant,i.e., directed more broadly than just to plaintiff. There is thuspresented a question of law, for if plaintiff cannot prevail,even if her factual allegations are presumed true, a dismissal isproper. Fed.R.Civ.P. 12(b)(6).

A muddied water is presented because of the manner in which theConnecticut legislature in CUTPA specified the right to seekredress on the basis of unfair acts. Congress adopted an "unfairacts and practices" law, 15 U.S.C. § 45(a)(1), but it did notprovide for a private enforcement action. Enforcement wasassigned to the Federal Trade Commission ("FTC"), which ischarged principally with preserving fairness in interstatecommerce and not with resolving purely individual disputes. Thestatute sought to prohibit unfair acts, acts which were adjudgedunfair based on generally applicable criteria. See FTC v. Sperry& Hutchinson Co., 405 U.S. 233, 244-45 n. 5, 92 S.Ct. 898, 905-06n. 5, 31 L.Ed.2d 170 (1972).

Connecticut's legislature decided a similar prohibition wasappropriate in Connecticut and, in 1973, enacted CUTPA, but itdiffered from the national Act. The Legislature adopted, in largemeasure, the language used by Congress, particularly in statingthe prohibition in terms of "unfair and deceptive acts orpractices." Conn.Gen.Stat. § 42-110b(a). Connecticut's courtswere directed for guidance to the "interpretations given by theFederal Trade Commission and the federal courts to Section5(a)(1) of the Federal Trade Commission Act.(15 U.S.C. § 45(a)(1)." Conn.Gen.Stat. § 42-110b(b)). This built in aconflict between the federal statute, which was directed againstgeneral courses of conduct, and the state statute, which usedmuch the same prohibiting language, but which provided forprivate or individual enforcement actions. Conn.Gen.Stat. §42-110g. The federal statute, directed toward prohibiting coursesof action with broad national impact was appropriately couched interms of "acts and practices." On the other hand, if one wantedto give an individual the right to sue, the prohibition couldsimply be described as any unfair or deceptive act. The pluralwould be unnecessary, for an act does not lose its wrongfulquality by being repeated and acts which are repeated andinterrelate become a practice.

In Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc.,190 Conn. 528, 461 A.2d 1369 (1983), relying on an analysis of15 U.S.C. § 45(a), FTC practices, and federal court holdings, theConnecticut Supreme Court held that CUTPA, as did the federalstatute from which it was copied, authorized an action only ifthe wrong complained of adversely affected a public interest orbrought about a public injury, i.e., a wrong with a broaderimpact than solely upon the claimant. Id. at 533-36,461 A.2d 1369. That case was decided solely in relation to CUTPA, as theacts alleged to have been wrongful were claimed to be unfairsolely by their nature and the circumstances of their commissionand not by their proscription by any other statute. TheConnecticut Legislature responded in 1984 by eliminating thenecessity of proof of a public interest or public injury in anyaction under Conn.Gen.Stat. § 42-110g(a). See Public Act 84-468,§ 2. However, the Legislature thereby left in effect an act whichcopies the federal statutes and uses language not intended by theCongress to create an individual cause of action to redresswrongs inflicted against an individual.In effect, the amendment in Public Act 84-468, § 2, runs counterto the language copied from the national Act, which did notaccommodate an individual enforcement action. The Legislature hasthus failed to recognize, analyze, and resolve the incongruity ofusing language intended by Congress to create different rightsthan now seemingly is intended in CUTPA.

Plaintiff and the amicus claim that CUTPA does afford anindividual the right to bring a CUTPA claim based on an actsingularly directed to her and that Mead v. Burns does notdictate to the contrary. Mead may be distinguished as itsrequirement of a general course of action, for CUTPA relief wasbased on acts alleged to be unfair by reason of theirproscription in the Connecticut Unfair Insurance Practices Act("CUIPA"), Conn.Gen.Stat. § 38-60, et seq. The particularviolation asserted in Mead — unfair claim settlement practices —was held to require proof of general business practices, §38-61(6). Since it states a public policy, which, if violated,might constitute an unfair practice, such violation is alsoactionable under CUTPA. Mead held that such a CUTPA violation, byreason of the language of CUIPA, required proof of a generalcourse of conduct. Mead, 199 Conn. at 666, 509 A.2d 11. Mead wasdecided on the basis of the language of CUIPA and did not statethe requirement generally as did Ivey. It was not necessary inMead for the court to decide the requirements of CUTPA other thanin relation to CUIPA and its analysis of the issues suggest thatit did not do so.

Nor is defendant's position supported by reading Mead to applywhere, as here, each statute invoked by plaintiff is not couchedin language comparable to CUIPA. Defendant points to nosimilarity between Conn.Gen.Stat. §§ 21-70, 21-79, 21-80, 21-82and 47a-21(i), on the one hand, and CUIPA, which would make theholding in Mead applicable to the claims alleged here. Thelanguage of these statutes reveals no comparability that wouldsuggest, as Mead held CUIPA to require, a legislative intent torequire a general course of action before CUTPA would apply.

As Mead does not require, generally, proof of a general courseof conduct to sustain a CUTPA claim, and the statutes involvedherein are not analogous to CUIPA such as to warrant the limitedapplication of Mead, the controlling language is in § 42-110g. Asamended by Public Act 484, § 2, that statute's language,construed in the context in which it was adopted and liberallyinterpreted to effectuate its remedial purpose (Conn.Gen.Stat. §42-110b(d)), reflects an intent that an individual may maintaina private cause of action for a CUTPA violation on the basis ofconduct which singularly impacts on the individual, without thenecessity of the claim being based on a general course ofconduct.

For the foregoing reasons, defendant's motion to dismiss Counts1 through 10 is denied.

SO ORDERED.

Case Summary:
To generate a summary for GIBBS v. SOUTHEASTERN INV. CORP. click here.
Back to top