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`FBT-CV-21-6106152-S
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`THE VILLAGE AT BLACK ROCK
`CONDOMINIUM ASSOCIATION, INC.
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`V.
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`DCBUILDS LLC and RESIDENTIAL
`ENGINEERING AND DESIGN LLC
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`SUPERIOR COURT
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`J.D. OF FAIRFIELD
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`: AT BRIDGEPORT
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`: DECEMBER 1, 2021
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`CONSOLIDATED OBJECTION TO MOTIONS TO STRIKE
`Pursuant to Connecticut Practice Book §10-40, plaintiff, The Village at Black Rock
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`Condominium Association, Inc. (“VBR”), through counsel, hereby submits this consolidated
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`objection to the motions to strike filed by Defendants DCBuilds LLC (“DCBuilds”) and
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`Residential Engineering & Design LLC (“RE+D”) (collectively, “Defendants”).
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`INTRODUCTION
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`As set forth more fully below, the allegations in VBR’s Revised and Amended Complaint
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`dated September 3, 2021 (Complaint”) are legally sufficient to sustain Defendants’ challenge to
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`strike Counts III, XIV, XVII and XXI as to DC Builds and IV, XV, XVIII, XX and XXII as to
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`RE+D sounding in unjust enrichment, violations of CUTPA, breach of express warranty, breach
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`of fiduciary duty and tortious interference with contractual relations. Because DCBuilds’ motion
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`simply incorporates all of the arguments propounded by RE+D, whether or not they apply, the
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`court’s findings as to RE+D will apply to DCBuilds. Furthermore, RE+D’s rationale to strike
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`the CUTPA and beach of express warranty counts, predicated upon RE+D’s profession as an
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`architect, do not apply to DCBuilds, which is a contractor and not a design professional.
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`Therefore, regardless of the court’s ruling as to RE+D with regard to the CUTPA and breach of
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`express warranty counts, the court ought to deny DCBuilds motion as to these counts.
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`STATEMENT OF FACTS
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`By contracts dated June 3, 2016 and March 17, 2017, RE+D was retained by VBR to
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`perform professional engineering inspection, engineering design and owner representative
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`services in connection with the investigation and repair of exterior elevated walkways to the
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`three-building condominium complex located in Bridgeport Connecticut (the “Project”)
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`(Complaint, ¶¶ 9-22). The Project consisted of improvements/remediation to the exterior
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`elevated walkways, which, in accordance with the specifications for the Project, required, a
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`positive pitch to the nearest walkway edge for drainage, using shims or tapered sleepers as
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`necessary to address the ponding on the walkways (Complaint ¶ 31- 34). In addition, a
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`waterproof coating was applied to the exterior walkways (Compliant ¶ 36). Following
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`completion of the design documents by RE+D and based upon the recommendation from RE+D,
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`VBR entered into a contract with DCBuilds to serve as the contractor to perform the designed
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`improvements for the walkways and apply the waterproof coating (Complaint ¶¶ 43-45).
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` During construction VBR raised numerous issues with the work, including but not limited
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`to, discoloration of the walkway coating and excessive ponding (more than had existed prior to
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`implementation of the improvements) on the exterior walkways (Complaint ¶¶ 64-66; 72-75).
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`VBR instituted suit, originally against RE+D and DCBuilds for their failure to design and
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`construct the Project in accordance with the design documents and the standard of care. VBR’s
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`twenty-two (22) count complaint asserts allegations for breach of contract, professional
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`negligence, breach of warranty, fraud, CUTPA violations, breach of fiduciary duty, breach of the
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`implied covenant of good faith and fair dealing, tortious interference with contractual relations,
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`negligent misrepresentation, quantum meruit, and unjust enrichment. RE+D has moved to strike
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`the following Counts: IV (unjust enrichment), XV (CUTPA), XVIII (express warranty), XX
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`(breach of fiduciary duty) and XXII (tortious interference with contractual relations). By
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`extension and solely by adopting all of RE+D’s arguments, DCBuilds has moved to strike the
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`following Counts: III (unjust enrichment), XIV (CUTPA), XVII (express warranty) and XXI
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`(tortious interference with contractual relations).
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`As fully set forth below, Defendants’ motion ought to be denied and plaintiff objection
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`granted. With regard to the unjust enrichment counts, Defendants misread the Complaint to
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`include allegations of breach in the unjust enrichment count when VBR only asserts the
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`existence of a contract in that count, in accordance with court precedent.
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`As to CUTPA, Defendants incorrectly attempt to expand to architects, the rationale adopted
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`by courts finding that the special relationship between clients and doctors or lawyers, precludes
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`CUTPA claims. Similarly, as to breach of express warranty, again Defendants erroneously
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`attempt to expand to architects, the Supreme Court’s decision finding express warranty claims
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`against health providers are not cognizable1. This is contrary to law.
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`As to breach of fiduciary duty, RE+D inaccurately focuses on RE+D’s role as an architect,
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`with respect to whom no fiduciary relationship exists. RE+D ignores the allegations in the
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`Complaint addressing RE+D’s role as an owner’s representative and how, in that role VBR
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`entrusted RE+D to prepare a Project Manual, select the contractor, and secure performance
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`consistent with the Project Manual.
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`Finally, as to tortious interference with contractual relations, contrary to the Defendants’
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`assertions, VBR has alleged an actual loss and, VBR has alleged that the interference by the
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`1 As noted previously, RE+D’s rationale to strike the CUTPA and beach of express warranty counts,
`predicated upon RE+D’s profession as an architect, do not apply to DCBuilds, which is a contractor and
`not a design professional. Therefore, as to DCBuilds, regardless of the decision related to RE+D,
`DCBuilds’ motion to strike Counts XIV and XVII ought to be denied.
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`Defendants was tortious because they were improper and that improper conduct caused VBR to
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`lose the benefit of its bargain.
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`Accordingly, because the facts alleged in the Complaint are to be construed in the manner
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`most favorable to sustaining its legal sufficiency and VBR has properly plead each count, this
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`Court should deny the Motions to Strike from RE+D and DCBuilds in their entirety.
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`ARGUMENT
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`Legal Standard.
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`In “highly fact dependent” cases, “the striking of complaints, like the granting of
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`I.
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`summary judgment, is disfavored.” Parkes v. Greyhound Lines, Inc., No. CV010805839S, 2001
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`WL 1468751, at *2 (Conn. Super. Ct. Nov. 1, 2001). Stated differently: in “negligence cases
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`such as this, which are highly fact dependent,” this Court “bears in mind that . . . the striking of
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`complaints, like the granting of summary judgment, is disfavored.” Bendowski v. Quinnipiac
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`Coll., No. CV 950248346S, 1996 WL 219532, at *5 (Conn. Super. Ct. Apr. 8, 1996).
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`“A motion to strike challenges the legal sufficiency of a pleading . . . .” Rest. Supply,
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`LLC v. Giardi Ltd. P'ship, 330 Conn. 642, 648 (2019) (quoting Giacalone v. Housing Auth., 306
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`Conn. 399, 403–404 (2012)). This court, in reviewing a motion to strike, takes “the facts to be
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`those alleged in the complaint” and construes “the complaint in the manner most favorable to
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`sustaining its legal sufficiency.” Id. (quoting Giacalone, 306 Conn. at 403–404). When “facts
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`provable in the complaint would support a cause of action, the motion to strike must be denied.”
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`Id. (quoting Giacalone, 306 Conn. at 403–404).
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`Notably, this Court reads “the allegations” of the complaint “broadly . . . rather than
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`narrowly” when considering a motion to strike. Id. (quoting Giacalone, 306 Conn. at 403–404).
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`To that end, the Court assumes “the truth of both the specific factual allegations and any facts
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`fairly provable thereunder.” Id. (quoting Giacalone, 306 Conn. at 403–404).
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`Under this standard, the Court should deny the Motions to Strike. The Complaint
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`sufficiently states causes of action for unjust enrichment, violation of CUTPA, breach of express
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`warranty, breach of fiduciary duty, and tortious interference with contractual relations.
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`II.
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`Plaintiff has Properly Pleaded Counts III and IV, Unjust Enrichment, as an
`Alternative to Counts I and II, Breach of Contract.
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`Defendants claim that VBR’s unjust enrichment claim is deficient because the Complaint
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`alleges breach of the contract between RE+D and VBR. This assertion misreads the Complaint,
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`which alleges breach and unjust enrichment in the alternative.
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`Defendants acknowledge that “courts have sometimes allowed plaintiff to plead
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`alternative theories of recovery,” but argue that courts do not allow plaintiff to incorporate
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`breach of contract allegations into the unjust enrichment count; however, “superior court
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`opinions” draw a distinction between the incorporation of allegations pertaining to the existence
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`of a contract and those pertaining to breach, see O'Malley v. Devivo, No. CV094019885, 2010
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`WL 2573381, at *5 (Conn. Super. Ct. May 7, 2010) (emphasis added). In other words, courts
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`“permit incorporating allegations” as to the existence of a contract “so long as the allegation that
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`the contract was breached does not appear in the count for unjust enrichment.” Id, emphasis
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`supplied.
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`That is precisely the situation here. To explain: Paragraphs 1 through 83 of Counts III
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`and IV incorporate Paragraphs 1 through 83 of the Background, and it is true that Paragraphs 9,
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`16, and 44 alleged the existence of contracts between VBR and RE+D and DCBuilds,
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`respectively. But the Complaint does not allege breach of those contracts until Counts I and II,
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`for breach of contract, which are not incorporated into Counts III and IV. Therefore, consistent
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`with O’Malley and the cases cited therein, this Court should not strike Counts III and IV.
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`III.
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`Plaintiff has Properly Pleaded Count XV, CUTPA, Against RE+D Because
`Plaintiff’s CUTPA Claim Relates to RE+D’s Performance as an Architect, Which is
`not Analogous to that by a Lawyer or Healthcare Provider.
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`RE+D argues that the CUTPA claim should be stricken because the Supreme Court has
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`held that professional malpractice claims against doctors and lawyers are not cognizable under
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`CUTPA, and asks this Court to extend that rationale to claims against design professionals, like
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`RE+D. This argument misunderstands the limited nature of the Supreme Court’s opinions
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`pertaining to lawyers and doctors.
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`As one Court has observed:
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`The Supreme Court's exclusion of medical and legal malpractice claims [in
`Haynes v. Yale-New Haven Hosp., 243 Conn. 17, 34-35 (1997)], turned . . . on
`considerations of public policy. While there are similarities among the three
`professions, there are differences as well. Whether the ‘special relationship’
`between doctor/patient and attorney/client applies to the architect/client
`relationship so as to implicate the public policy considerations applied in Haynes
`is uncertain. Given this uncertainty, it would be inappropriate to extend the
`CUTPA exclusion beyond the holding in Haynes.
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`Franco v. Mediplex Constr., Inc., No. CV 96390458, 1999 WL 185179, at *2 (Conn. Super. Ct.
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`Mar. 22, 1999). Accordingly, in Franco, the Court denied the motion to strike a CUTPA claim
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`against an architect. See id.
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`Here, VBR alleges that RE+D failed to perform its duties as an architect by inadequately
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`designing the Project Manual. Consistent with Franco, it would be inappropriate, particularly at
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`the pleadings stage, to analogize RE+D to lawyers or healthcare providers and strike VBR’s
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`CUTPA claim. Thus, this Court should decline to strike Count XV.
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`IV.
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`Plaintiff has Properly Pleaded Count XIV, CUTPA, Against DCBuilds Because the
`Rationale Provided in RE+D’s Motion to Strike for Striking Plaintiff’s CUTPA
`Claim does not Apply to DCBuilds, Which is not a Design Professional.
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`With respect to Count XIV, CUTPA, DCBuilds, in its motion to strike, “adopts and
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`incorporates” the arguments made by RE+D in the memorandum in support of its motion to
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`strike Count XV. For its part, RE+D argues that design professionals are not subject to CUTPA
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`under Connecticut law for professional services.
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`The problem with DCBuilds’ attempt to incorporate this argument is rather
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`straightforward: DCBuilds is not a design professional. DCBuilds is a contractor. Accordingly,
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`the argument advanced by RE+D does not apply to DCBuilds, and DCBuilds has not advanced a
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`viable theory for striking Count XIV.
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`V.
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`Plaintiff has Properly Pleaded Count XVIII, Express Warranty, Against RE+D
`Because Connecticut Permits Breach of Express Warranty Claims Against
`Architects.
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`Again, RE+D argues that the express warranty claim in Count XVIII should be stricken
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`because the Supreme Court has held that professional malpractice claims against health care
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`providers are not cognizable. RE+D asks this Court to extend that rationale to claims against
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`architects, like RE+D.
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`The first problem with this argument is that Connecticut courts have repeatedly permitted
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`plaintiff to proceed with express and implied warranty claims against architects related to
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`defective plans. See, e.g., Coppola Const. Co. v. Hous. Auth. of City of Middletown, No.
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`CV010095090S, 2002 WL 450546, at *2 (Conn. Super. Ct. Mar. 5, 2002); Gersten v. JSB
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`Consulting Engineers, No. CV92-0510554 S, 1994 WL 271357, at *2 (Conn. Super. Ct. June 7,
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`1994); accord Skidmore, Owings & Merrill v. Connecticut Gen. Life Ins. Co., 25 Conn. Supp. 76,
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`92 (Super. Ct. 1963) (observing that a breach of warranty claim against architect may be asserted
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`under either contract or tort theories).
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`The second problem with this argument is the same as the problem with RE+D’s CUTPA
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`argument: architects are not medical professionals. An architect’s express warranty to meet
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`certain design specifications is not the same as a doctor’s generic warranty to provide services in
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`accordance with generally accepted professional standards. It may be true that certain types of
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`express warranty claims against architects overlap with professional negligence claims; however,
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`VBR’s claim is that RE+D warranted to ensure walkways with positive pitch and then failed to
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`meet that standard, irrespective of whether RE+D’s performance met generally accepted
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`professional standards.
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`In short, VBR’s express warranty claim against RE+D is legally distinct from its
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`professional negligence claim against RE+D. Therefore, consistent with Connecticut precedent,
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`this Court should not strike VBR’s express warranty claim.
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`VI.
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`Plaintiff has Properly Pleaded Count XVII, Express Warranty, Against DCBuilds
`Because the Rationale Provided in RE+D’s Motion to Strike for Striking Plaintiff’s
`Express Warranty Claim does not Apply to DCBuilds, Which is not an Architect.
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`With respect to Count XVII, Express Warranty, DCBuilds, in its motion to strike, “adopts
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`and incorporates” the arguments made by RE+D in the memorandum in support of its motion to
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`strike XVIII. For its part, RE+D argues that architects are not subject to express warranty
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`claims.
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`The problem with DCBuilds’s attempt to incorporate this argument is, just as with its
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`attempt to incorporate the argument pertaining to CUTPA, rather straightforward: DCBuilds is
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`not an architect. DCBuilds is a contractor. Accordingly, the argument advanced by RE+D does
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`not apply to DCBuilds, and DCBuilds has not advanced a viable theory for striking Count XVII.
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`VII. Plaintiff has Properly Pleaded Count XX, Breach of Fiduciary Duty, Against RE+D
`Because RE+D, in its Capacity as Owner’s Representative, had a Fiduciary Duty to
`Plaintiff.
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`Here, RE+D argues that its relationship with VBR was merely that of an architect, with
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`respect to whom no fiduciary relationship exists.2 This neglects RE+D’s performance as owner’s
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`representative as alleged in paragraphs 21, 22, 37, 38, 61, 62 of the Complaint, and specifically
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`with regard to its claims for breach of fiduciary duty at paragraphs 84, 85 and 86 of the
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`Complaint.
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`At least one court has recognized that an owner’s representative may have a fiduciary
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`relationship with an owner during the course of a construction project. See Tricon Int'l, Ltd. v.
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`United Const., Inc., No. X03CV980518862S, 2005 WL 1097103, at *22 (Conn. Super. Ct. Apr.
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`1, 2005). In Tricon International, the Court noted that it had rejected the premise that the
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`plaintiff, an owner, and the defendant, a contractor, had “entered into a general agreement which
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`would “ensure that [the plaintiff] would receive the full benefit of each of its contracts to
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`develop” the parcel in question. Id. That said, the Court went on to explain how it might have
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`ruled on a different set of facts:
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`Had such a relationship been supported by the evidence, giving rise to an
`inference that [the defendant] was under a contractual duty to render personal
`services to [the plaintiff] for its benefit, e.g. as its construction manager or
`owner's representative instead of as the President of a corporation doing business
`with it, then a fiduciary relationship might fairly be found to have existed between
`them based upon the existence of that [general agreement] and its underlying duty
`to the plaintiff.
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`2 It is somewhat ironic that RE+D, after analogizing itself to a doctor or a lawyer for the purpose
`of striking Plaintiff’s CUTPA and express warranty claims, then shifts its conception of its
`relationship with VBR and argues that, as an architect, it had no fiduciary relationship with
`RE+D.
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`Id. (emphasis added).
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`The Complaint alleges that RE+D performed services as an owner’s representative for
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`VBR. In sum, VBR entrusted to RE+D the preparation of a Project Manual, the selection of
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`contractors, and the task of securing performance consistent with the Project Manual. This is far
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`different than the relationship of an architect who merely provides plans to an owner.3 As such,
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`this Court should permit VBR to maintain its claim for breach of fiduciary duty against RE+D.
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`VIII. Plaintiff has Properly Pleaded Counts XXI and XXII, Tortious Interference with
`Contractual Relations.
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`A.
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`Plaintiff has alleged actual loss.
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`RE+D and, by extension, DCBuilds, claim that the Complaint does not allege an actual
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`loss from the alleged tortious interference. In support, they claim the Complaint does not allege
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`whether the warranty in fact remains in place.
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`On the contrary, Paragraph 88 alleges: “RE+D’s knowing and intentional interference
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`inured to VBR’s detriment and caused damages, namely, without limitation, through the voiding
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`of the Limited Material Warranty.” (Emphasis added). In short, the claim is just plain wrong.
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`B.
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`Plaintiff needs only allege interference by either improper means or improper
`motive, and Plaintiff has alleged interference by improper means.
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`3 Lest VBR be accused of the same argumentative inconsistencies as RE+D, two things are
`worthy of note. First, VBR is permitted to plead in the alternative. Second, and more
`importantly, the Complaint alleges that RE+D performed certain tasks as an architect and certain
`tasks as an owner’s representative. Ultimately, VBR seeks to hold RE+D liable as an architect
`for the services performed in its capacity as an architect and to hold RE+D liable as an owner’s
`representative for the services performed in its capacity as an owner’s representative pursuant to
`its March 17, 2017 Contract. In other words, the claims are not inconsistent—they relate to
`different tasks.
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`RE+D and, by extension, DCBuilds, also argue that one must plead improper motive to
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`maintain a tortious interference claim. To that end, they claim the Complaint does not allege
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`improper motive.
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`Connecticut courts have explained that a plaintiff need only show “the interference was
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`tortious.” Metcoff v. Lebovics, 123 Conn. App. 512, 520 (2010). A plaintiff may do so by
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`alleging “improper motive or improper means.” Id. (emphasis added). This is a question for the
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`jury. See id.
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`The whole point of VBR’s Complaint is that DCBuilds and RE+D acted tortiously with
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`respect to their obligations to VBR. To be clear, VBR alleges that the actions of DCBuilds and
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`RE+D with respect to the project were improper. As a result of that improper conduct, VBR lost
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`the benefit of its bargain with Pecora. Stated differently: DCBuilds and RE+D interfered with
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`VBR’s contract through improper means, which suffices to maintain a tortious interference
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`claim. Separately, the question of whether improper motive or improper means exist is a
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`question for the jury. Thus, this Court should deny the motions to strike Counts XXI and XXII.
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`For these reasons, this Court should deny the motions to strike from RE+D and
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`CONCLUSION
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`DCBuilds.
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`THE PLAINTIFF,
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`THE VILLAGE AT BLACK ROCK
`CONDOMINIUM ASSOCIATION, INC.
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` /s/ Laurann Asklof
`Laurann Asklof
`lasklof@goodwin.com
`Shipman & Goodwin LLP
`One Constitution Plaza
`Hartford, CT 06103-1919
`Tel.: (860) 251-5000
`Juris No.: 057385
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`Peter G. Barrett, Esq.
`Markey Barrett, PC
`360 Bloomfield Avenue
`Suite 301
`Windsor, CT 06095
`(860) 607-3265
`pbarrett@markeybarrett.com
`mpatryn@markeybarrett.com
`mbutron@markeybarrett.com
`Counsel for DCBuilds LLC
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`Donald W. Doeg, Esq.
`Updike Kelly & Spellacy
`100 Pearl St., 17th floor
`P.O. Box 231277
`Hartford, CT 06123
`ddoeg@uks.com
`Counsel for Gary Tierney and
`Design Two Architecture
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`Black Rock Village Development, LLC
`875 Gulf Shore Boulevard
`South Naples, FL 34102
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`c/o Agent Willinger
`Willinger & Bucci, P.C.
`1000 Bridgeport Ave., 5th Fl.
`Shelton, CT 06484
`Non-Appearing Party
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`Joseph J. Blyskal, III, Esq.
`Gordon & Rees LLP
`95 Glastonbury Boulevard, Suite 206
`Glastonbury, CT 06033
`jblyskal@grsm.com
`Counsel for Pecora Corporation
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`10605972
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`CERTIFICATION OF SERVICE
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`The undersigned hereby certifies that on December 1, 2021 a copy of the foregoing was
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`filed electronically through the Court's Electronic Filing System and served by electronic means
`via email transmission on the following counsel of record:
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`Benjamin J. Berger, Esq.
`Di Gioia Berger
`657 Orange Center Road
`Orange, CT 06477
`(860) 270-0255
`Bberger@dblawct.com
`Counsel for Residential Engineering and
`Design LLC
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`Jonathan M. Shapiro, Esq.
`Aeton Law Partners LLP
`311 Centerpoint Drive
`Middletown, CT 06457
`jms@aetonlaw.com
`alex@aetonlaw.com
`brian@aetonlaw.com
`Counsel for Superior Epoxy and
`Waterproofing, LLC
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`Morrison Mahoney LLP
`One Constitution Plaza
`Hartford, CT 06103
`slafantasie@morrisonmahoney.com
`Counsel for Patric’s Carpentry, LLC
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`13
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`/s/ Laurann Asklof
`Laurann Asklof
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