Opinion
FSTCV196039611S
10-30-2019
Pamela Blair v. Kirk Bennett et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sommer, Mary E., J.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103.00
SOMMER, J.
I. INTRODUCTION AND SUMMARY OF FACTS
The plaintiff initiated this action against her former attorney and his law firm for claims arising out of his representation of the plaintiff in the action for dissolution of her marriage. The defendants have filed a motion to strike counts two and three of the complaint for failure to state a claim upon which relief can be granted. The following facts are relevant to the court’s consideration of the defendant’s motion.
The plaintiff, Pamela Blair, alleges the following facts in her complaint against the defendants, Kirk Bennett and the firm in which he practices law, Law Offices of Kirk Bennett, LLC. By way of background, the plaintiff retained the defendants to represent her interests in a divorce proceeding against her former husband. She paid a retainer fee to Attorney Bennett who then commenced the dissolution action and represented her in that action. As part of that representation, Attorney Bennett negotiated a separation agreement with the plaintiff’s husband which was incorporated by the court at the time of dissolution. The plaintiff’s complaint sounds in three counts: legal malpractice (count one); breach of contract (count two) and negligent representation (count three).
The plaintiff claims in this action that the agreement which she signed upon the advice of the defendants did not adequately protect her financial interests, including the division of marital assets and her right to alimony and child support. Specifically, she alleges that she advised the defendants failed to include in the separation agreement, a provision for how the parties would share the responsibilities for the existing mortgage on the marital home.
The plaintiff alleges in count one that as a result of the defendants’ negligence, i.e., his actions or failure to act, she did not receive the appropriate share of marital assets to which she was entitled. Counts two and three repeat the allegations of the negligence count alleging further claims of contract and negligent misrepresentation.
On May 2, 2019, the defendants filed a motion to strike counts two and three of the plaintiff’s revised complaint (#102.00), accompanied by a memorandum of law. On June 13, 2019, the plaintiff filed an objection to the motion to strike. On June 27, 2019, the defendants filed a reply to the plaintiff’s objection. The court heard oral argument at short calendar on August 19, 2019. Based on the court’s consideration of the facts and application of the relevant principles of law the court makes the following findings and issues its decision thereon.
The plaintiff’s objection is untimely pursuant to Practice Book § 10-40(a) because she filed it more than thirty days after the defendants filed the motion to strike. Nevertheless, the court, in its discretion, will consider it. See McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5024230-S (May 27, 2010, Wilson, J.).
II. APPLICABLE LAW AND ANALYSIS
Motion to Strike
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike ... requires no factual findings by the trial court ... [The court construes] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action the motion to strike must be denied ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
The defendants move to strike counts two and three of the revised complaint on the ground that they are legally insufficient. Specifically, they argue that count two merely repeats the allegations of count one, the claim of negligence and count three fails to allege facts which are sufficient to state a claim for negligent misrepresentation. The plaintiff objects, arguing that she has alleged sufficient facts to support all of the causes of action as alleged in her revised complaint.
Count Two: Breach of Contract
The defendants first move to strike count two, which alleges breach of contract, on the ground that it fails to state a cause of action and is merely a rewrite of the legal malpractice claim in count one.
"The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." (Internal quotation "marks omitted.) CCT Communications, Inc. v. Zone Telecom, Inc., 327 Conn. 114, 133, 172 A.3d 1228 (2017). "[I]t is well established that claims may be brought against attorneys sounding in contract or in tort, and that [s]ome complaints state a cause of action in both contract and tort ... [O]ne cannot bring an action [under both theories, however] merely by couching a claim that one has breached a standard of care in the language of contract ... [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims ... To ensure that plaintiffs do not attempt to convert negligence claims into breach of contract claims by talismanically invoking contract language in [the] complaint ... reviewing courts may pierce the pleading veil by looking beyond the language used in the complaint to determine the true basis of the claim." (Citations omitted; internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 290-91, 87 A.3d 534 (2014).
"[A] claim alleging that the defendant attorney violated the specific instructions of his client [sounds] in breach of contract." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. 292. "[A]n attorney’s failure to comply with the specific provisions of a contract [also sounds] in breach of contract." Id. In contrast, "claims alleging that the defendant attorney had performed the required tasks but in a deficient manner [sounds] in tort rather than in contract." Id., 294. "[A] claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach." Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003); accord Alexandru v. Strong, 81 Conn.App. 68, 79-80, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). "[N]o Connecticut court has deemed an allegation of [an attorney failing to represent the client’s interests] sufficient to constitute a breach of contract claim unless accompanied by specific allegations that the defendant attorney failed to take action normally expected of an attorney in furtherance of the agreed on purpose for which the attorney was hired, such as failing to prosecute, defend, or take an essential step in litigating a cause of action." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. 297.
It is clear from the above cases that the issue of an attorney’s liability for a breach of contract claim by a former client has been the subject of considerable review and analysis by both the Appellate and Supreme Courts of this state. The court has carefully reviewed the allegations of the revised complaint comparing the allegations of count one and count two.
The plaintiff’s claim that the defendant contracted to obtain a specific result, i.e., "equitable division" of marital assets and "representation of [her] interests" is not a promise of performance sufficient to remove it from the allegations of negligence in count one. Such a promise is no different than a promise to comply with the standard of care or obtain a full and fair recovery, which have been found insufficient to support a breach of contract claim against an attorney. For example, in Caffery v. Stillman, supra, at 197, the Appellate Court found that a purported breach of contract count was in reality a negligence count, even though the plaintiff alleged that the defendant attorney agreed to "pursue vigorously all legal rights and remedies available to the plaintiff for damages sustained as a result of his [injuries] and to diligently represent, protect and defend the plaintiff’s rights to a full and fair economic recovery, and to provide the plaintiff with competent and accurate advice concerning his legal rights and remedies in connection therewith." Id. at 194 (emphasis added).
In Hill v. Williams, 74 Conn.App. 654 (2003) where the defendant was alleged to have "refused" to take certain actions that were promised, the court stated, "Use of the word ‘refuse’ imports an intentional act rather than some inadvertence or negligent act or omission on the part of the defendant in breach of the agreements between the parties." Id. at 660. Hill v. Williams is, thus, distinguishable from the instant case where there is no allegation that Attorney Bennett refused to do any contractually agreed act. In this case, the plaintiff has incorporated the entire first count of negligence or legal malpractices into the breach of contract count. Review of the complaint reflects that all claims in this lawsuit are based on allegations that Attorney Bennett negligently failed to properly do certain things that the plaintiff believes should have been done. The plaintiff’s allegations that the defendants failed to perform an investigation into her husband’s assets, to adequately and properly evaluate the husband’s income and assets, to properly and adequately advise her as to the proper division of assets; and to conduct full and adequate discovery are all allegations of failure to meet a standard of care, not a refusal to carry out specific contract provisions.
Plaintiff argues, "The contract was for a specific result, namely, the equitable division of the marital assets and representation of the Plaintiff’s interests during the divorce proceedings." In particular, the Plaintiff requested that the Defendant obtain sufficient financial discovery to support and ensure that the provisions relating to the marital home permit her financially to carry the home until sold. By agreeing to such an undertaking, plaintiff further argues that the defendant is not only agreeing to produce a specific result, "an equitable division of the marital assets," but he is also agreeing to the undertaking of the work necessary to achieve that goal. However, plaintiff has not provided any authority for this argument.
The defendant’s alleged failure to conduct a proper investigation into such matters as the husbands’ claims as to such things as income, values of certain assets and retirement accounts are claims of negligence. Plaintiff argues that they constitute breach of contract because the promised result could never be achieved without the defendants taking certain actions. Although the plaintiff lists these actions in her contract claim, that list does not transform a negligence claim into a breach of contract claims. These actions were among those which plaintiff alleges defendants were obligated to do in order to meet the standard of care.
The court agrees with the defendant’s argument that the allegation of obtaining an "equitable" outcome was not a promise for a specific result and that this does not change the essential nature of the cause of action. For example, in Weiner v. Clinton, 106 Conn.App. 379, 385 (2008), the court held that a plaintiff’s allegation that the defendant attorney’s use of reasonable care, skill and diligence was an express and/or implied term of the contract between the parties did not transform the cause of action into a breach of contract claim, even where the plaintiff also alleged that the defendant failed to seek a stay of an action based on an agreement to arbitrate; failed to seek additional extensions of time; failed to object to discovery; and failed to file timely discovery compliance. Id. at 384, n.5.
Merely claiming that the defendant failed to adequately "represent the Plaintiff’s interest in her Divorce Action" is too vague to state a claim for a breach of contract against an attorney. See Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. 297 ("[t]o the extent the plaintiff suggests that her complaint alleges breach of contract simply because the defendant did not represent her interests and wishes, this claim has no legal support"). The plaintiff’s purported breach of contract count does not seek recovery for breach of any specific contractual obligation. Reading the first and second counts together demonstrates that the plaintiff is alleging that Attorney Bennett failed to provide "proper" or "adequate" advice and representation, which is a negligence claim, not a breach of contract claim. Consequently, the court concludes that count two is merely a negligence action for legal malpractice cloaked in contract language. For this reason, the motion to strike count two is granted.
Count Three: Negligent Misrepresentation
The defendants next move to strike count three which purports to state a claim of negligent representation on the ground that the plaintiff has failed to state a cause of action because she has not alleged that the defendant made misrepresentations of fact. The plaintiff claims that the defendant’s statements to her were not opinions, but misrepresentations of fact, which he knew or should have known were false and that she reasonably relied on these statements to her detriment. Citing Stuart v. Frieberg, 316 Conn. 809, 116 A.3d 1195 (2015), she argues that she has satisfied the requirements for a claim of negligent misrepresentation.
In the present case, the plaintiff alleges that the defendant made factual assertions that the discovery was reasonable and complete and that the financial information provided by the husband was accurate with regard to the value of the Porsche and his two businesses, that the husband was not able to earn more than his Social Security benefits and that the separation agreement was adequate to protect her share of both the equity in the marital home and her equity in the marital estate. As a basis for her assertion that these were not merely opinions she states that they all eventually proved to be false. The plaintiff’s husband did understate the values of the Porsche and other assets, he proved capable of earning more than what Social Security provided as he made $160,000 in the first quarter of 2016 and the issue of equity in the marital home was affected by the fact that she and her former spouse had different equations for the carrying costs of the marital home and the division of that equity.
The plaintiff also alleges that the defendant misrepresented the division of the shared retirement accounts and that he failed to advise her that opposing counsel removed from the final draft the sentence: "Wife should receive an amount equivalent to the amount of the marital portion of the party’s retirement accounts need to equalize the marital portion after the credit and after taxes and penalties are deducted." The plaintiff alleges that she relied upon the defendant’s promise that the division of assets would be equitable, but that the defendant failed to protect her financial interests and allowed her former spouse to receive a larger share of the martial estate than she believed was equitable. She also alleges that he misrepresented how the assets of the marital estate would be divided and that she relied on all of these representations to her detriment. For these reasons the plaintiff argues that count three of the revised complaint satisfies the elements of negligent misrepresentations.
The defendant argues that the statement was that the separation agreement was adequate and proper for the circumstances of the divorce was made in the context that the terms of a separation agreement necessarily comprise many factors. The defendant argues that statements about the agreement were opinions and that in the course of negotiating a separation agreement, an attorney will have many conversations with the client in which the attorney will express his opinions and provide advice as to the value or weight of negotiated terms.
The plaintiff maintains that given the fiduciary relationship between the parties in an attorney-client relationship, the defendant’s superior knowledge as the plaintiff’s attorney, and the plaintiff’s reliance on that statement by signing the agreement, the defendant’s statements were more likely facts than opinions. At this stage in the pleadings, the plaintiff’s numerous allegations that the defendant made statements about financial matters relating to valuation of her husband’s assets which were not accurate and that he further told her that the terms of the separation agreement were adequate and protected her interests without having the knowledge that such statements were false, are sufficient to state a claim for negligent misrepresentation, considering the plaintiff’s reliance on the defendant’s skill and knowledge. Therefore, the motion to strike count three is denied.
III. CONCLUSION
For the reasons stated above, the motion to strike is granted as to count two and denied as to count three.