Opinion
FBTCV156052685S
03-29-2016
David Dubinsky v. Meyers, Breiner & Kent, LLP et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Richard E. Arnold, Judge.
MOTION TO STRIKE
The defendants have filed a motion to strike Counts Two, Three and Four of the plaintiff's Complaint dated September 16, 2015. Count Two alleges breach of contract. Count Three alleges a breach of the implied covenant of good faith and fair dealing. Count Four alleges intentional infliction of emotional distress. The defendants argue that Count Two fails to state a viable claim for breach of contract because the allegations contained, therein, implicate issues of negligence, not contract. As to Count Three, the defendants argue that since no contractual relationship exists, the plaintiff fails to sufficiently allege a viable action for a breach of the implied covenant of good faith and fair dealing. Lastly, as to Count Four, alleging intentional infliction of emotional distress, the defendants argue that the plaintiff has failed to allege facts which establish the defendants acted intentionally or knowingly or that the conduct alleged was extreme or outrageous.
The complaint contains four counts. Count One alleges legal malpractice.
The defendants additionally request that the court strike the plaintiff's claim for punitive damages in his prayer for relief as the plaintiff's negligence claims contain no allegations that the defendants acted with reckless indifference to the rights of others.
This action arises out of the defendants' legal representation of the plaintiff in a divorce action. The First Count of the plaintiff's Complaint alleges legal malpractice and contains thirty-five paragraphs. The Second Count alleging a breach of contract contains forty paragraphs. The first thirty-five paragraphs of Count Two have been incorporated from Count One alleging legal professional negligence. Count Three alleging a breach of the implied covenant of good faith and fair dealing contains forty-four paragraphs, of which the first thirty-five paragraphs of the negligence counts have been incorporated. The Fourth Count contains forty-eight paragraphs, which include the first thirty-five paragraphs of Count One, which alleges professional negligence.
Dubinsky v. Dubinsky, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT FA12 4040496 S.
The plaintiff alleges that on or about July 24, 2012, he retained the defendants to represent him in a dissolution of marriage action brought by his wife. The plaintiff agreed to pay the defendants fees and sums for their services throughout their representation. The plaintiff has alleged that the defendants, in their representation of the plaintiff, breached the applicable standard of care, including but not limited to, advising the plaintiff to sign a September 20, 2012, Agreement in his divorce case without an understanding of his rights. Further, the plaintiff argues he has alleged that the defendants failed to properly advise him as to his right to have a hearing in regards to the supervised visitation of his minor son and the possession of the marital home. The plaintiff alleges that the defendants breached their contract with him. The contract was for a specific result, namely, the representation of the plaintiff's interests in the divorce proceedings. The plaintiff alleges that the defendants breached the covenant of good faith and fair dealing that is implied in every contract in Connecticut, in that a party will not impede a party's right to receive the benefits of the contract. Lastly, the plaintiff alleges that the defendants inflicted intentional emotional distress on the plaintiff through their representation of the plaintiff in his divorce by neglecting and refusing to address key issues and by refusing to pursue a coherent strategy to resolve the marital residence and custody issues. The plaintiff claims this refusal caused him severe physical and emotional damages.
A.
Standard of Law
" 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). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2005). Further, our Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
B.
Count Two
Breach of Contract
In moving to strike Count Two, the defendants argue that while Count Two purports to state a claim for breach of contract, an examination of the allegations makes it clear that the foundation of this claim is the alleged failure of the defendants to adequately represent the plaintiff's interests in his divorce action. The defendants argue that Count Two sounds in negligence and should be stricken.
Regarding Count Two alleging breach of contract, the defendants argue that the plaintiff incorporates wholesale the allegations of negligence asserted in the first count, a claim of legal malpractice, and recasts his tort claim as one for breach of contract without alleging any specific actions or undertakings, or any failure to undertake certain actions by the defendant beyond a general duty of care imposed upon an attorney.
" What the plaintiff is alleging is, in effect, that every task an attorney performs for a client in furtherance of the retainer agreement is a contractual commitment to undertake a specific task and that an attorney's failure to accomplish the task or to achieve the intended goal constitutes both professional negligence and an actionable breach of contract. The defendant contends that this, however, would provide every plaintiff with two causes of action, one for professional negligence, and one for breach of contract for every legal malpractice claim, which is inconsistent with the law that a claim for legal malpractice does not give rise to a separate cause of action for breach of contract, when the latter is merely a tort claim cloaked as a breach of contract claim by using contract language of promise and breach." Burns v. Grudberg, Superior Court of Connecticut, judicial district of New Haven, No. CV156051882S, (Aug. 20, 2015, Wilson, J.)
In response, the plaintiff counters that, pursuant to Connecticut law, he may bring a claim against an attorney in an action sounding in both negligence and breach of contract. Weiner v. Clinton, 106 Conn.App. 379, 384, 942 A.2d 469 (2008). He argues that he has alleged a breach of the standard of care of a contract by setting forth specific acts that the defendants were deficient in their legal representation of his interests. Count Two, alleges in its first thirty-five paragraphs, the same allegations as contained in Count One, which alleges negligence. In summary, the relevant paragraphs allege:
1. That the plaintiff entered into a retainer agreement with the defendants, wherein the defendants would represent the plaintiff in his divorce action;
2. The defendants failed to listen to the plaintiff's concerns regarding the appointment of a guardian ad litum because the plaintiff was unable to pay the associated fees for the guardian ad litum;
3. The defendants insisted that the plaintiff hire a guardian ad litum and failed to advise the plaintiff of the detriments of hiring a guardian ad litum;
4. The defendants, while informing the plaintiff of a scheduled court hearing on September 20, 2012, did not inform the plaintiff of the subject of the hearing;
5. On September 20, 2012, defendant Breiner, met with legal counsel for the plaintiff's wife and drafted an Agreement, wherein the plaintiff's wife would retain sole and exclusive possession of the marital residence, when the plaintiff had preciously informed the defendants that he needed access to the marital residence because his business was located in the marital residence;
6. The aforementioned agreement also provided only with supervised visitation with the plaintiff's minor son;
7. The defendants failed to diligently and properly represent the plaintiff's interests in drafting the Agreement and advising the plaintiff to enter into and sign the Agreement without the plaintiff's full knowledge and understanding of the Agreement and the " repercussions" of the Agreement;
8. The defendants failed to request a reconciliation between the parties pursuant to General Statutes § 46b-53, despite the plaintiff's request for reconciliation;
9. The defendants failed to adequately protect the plaintiff's financial interests regarding " disproportionately high" alimony obligations.
In the remaining paragraphs of Count Two that differ from Count One, the plaintiff alleges the relationship between he and the defendants constituted a contract for a specific result, namely, " the representation of the plaintiff's interests" during his divorce proceedings. The plaintiff alleges that as a result of the breach of contract by the defendants he has been economically damaged and also emotionally distressed due to the supervised visitation with his minor son and isolation from his son.
" [A]lthough one may bring against an attorney an action sounding in both negligence and contract . . . one [cannot] bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract." (Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 79, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). " To ensure that plaintiff's do not attempt to convert negligence claims into breach of contract claims by 'talismanically invoking contract language in [the] complaint'; Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001); reviewing courts may 'pierce the pleading veil' by looking beyond the language used in the complaint to determine the true basis of the claim. Id., at 262-63." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014).
" Whether [a] plaintiff's cause of action is one for malpractice [or contract] depends upon the definition of [those terms] and the allegations of the complaint . . . Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damages to the recipient of those services . . . 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 . . . In other words, '[a]n action in contract is for the breach of duty arising out of a contract' . . . [whereas] an action in tort is for a breach of duty imposed by law." (Citations omitted; internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. at 291; see also Law Office of Norman Voog, LLC v. Stevens, Superior Court, judicial district of Danbury, Docket No. CV-02-0347140-S (December 17, 2004, Shay, J.), 38 Conn. L. Rptr. 433, (" While it is clear that a plaintiff may assert a claim for negligence and breach of contract in the same complaint, the alleged breach of contract must not arise from the negligent acts of the defendant, but rather, it must arise out of a breach of the terms of the contract itself.").
" [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). As the Appellate Court explained, " [n]otwithstanding that embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach, [w]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained . . . or engaged [the attorney's] services." (Internal quotation marks omitted.) Alexandru v. Strong, supra, 81 Conn.App. at 79-80.
In Meyers v Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. at 292, the court analyzed the issue by first citing to cases and providing parenthetical explanations as to when an attorney breaches a duty arising out of a contract; Id., at 292-93. Then the court cited to cases as to when an attorney performs the tasks in a deficient manner such that the cause of action sounds in tort. Id., at 294-95. Following a review of all of these cases, the court concluded that " the plaintiff's allegations in the present case [did] not sound in breach of contract." Id., at 295.
The court then pointed out that the plaintiff's claim " that her complaint alleges breach of contract simply because the defendant did not represent her interests and wishes . . . has no legal support." Id., 297. The court emphasized that " the complaint contain[ed] no allegations that the defendant breached any specific contract provisions [and] relie[d] in part on language typically used in negligence cases . . . This language and the remedy of damages is identical to the language and remedy of damages sought in connection with causes of action for negligence . . ." Id. 298-99.
The question to be determined in the present case is whether allegations of the second count alleging a breach of contract set forth a claim in contract or are an attempt to convert the negligence claim in count one into a breach of contract claim. As noted previously, the allegations of the first and second counts, negligence and contract claims respectively, of the plaintiff's complaint are largely identical. Count two incorporates all of count one and then realleges that the plaintiff and the defendant entered into a contract in which the defendant agreed to provide skilled and competent legal representation and undertook to represent the plaintiff. The plaintiff's next allegations use words to make it sound like a contract action.
Both counts one and two allege that the defendant failed to use reasonable care, skill and diligence in providing legal services in a good and workmanlike manner, causing the plaintiff injury and damages. Moreover, the plaintiff's allegations that the defendant failed to take specific actions to which he contracted does not as the plaintiff argues make count two different from count one. The plaintiff's claim that the defendant's failure to take specific actions all relate to his legal services, which involve the appropriate standard to be followed in the practice of law and that the defendant breached that standard of care applicable to legal professionals. The second count, by incorporating all of the first count, and rewording some of those allegations still sounds in negligence, even though the plaintiff has labeled this count as one of a breach of contract, and additionally has added the allegation that the defendant breached their contract. While the plaintiff has alleged he entered into a retainer agreement with the defendants on July 24, 2012, and agreed to pay for their services in return for legal representation by the defendants, the plaintiff has not set forth any specific terms of an agreement. The plaintiff alleges only that the agreement obligated the defendants to represent him diligently and to meet the applicable standard of care for an attorney representing a client in a divorce action. The allegations of negligence by the defendants in Count One are the same allegations used by the plaintiff to allege how the defendants allegedly breached the contract-retainer agreement.
The plaintiff relies on Hill v. Williams, 74 Conn.App. 654, 659, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), to advance his theory that the second count is a cause of action in breach of contract because the defendant failed or refused to produce a specific result. In Hill, the Appellate Court determined that the plaintiff's claims sounded in contract and were not barred by the tort statute of limitations because the plaintiff had alleged that the defendant refused " to take certain actions" that he had previously agreed to do. See. Burns v. Grudberg, supra, Superior Court of Connecticut, judicial district of New Haven, No. CV156051882S. As noted previously, here, the plaintiff did not include the " legal services agreement" or reference any specific terms of the legal services retainer agreement in Count Two. Id. Therefore, the plaintiff in count two does not allege that the defendants' refusal to follow to take certain actions specific actions in violation of specific terms of their agreement. Moreover, the plaintiff's factual allegations that he sustained injuries as a result of the deficient nature of the legal services the defendants provided to him indicate that the damages he is seeking are those that are recoverable in a tort action. Id.
" One may not bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. In the present case, the contract action alleged in count two is not for the breach of a duty arising out of a contract but instead is for an alleged breach of duty imposed by law, which is a tort claim. Construing the language of the second count in the light most favorable to sustaining its legal sufficiency, the allegations are insufficient to support a contract claim." (Internal citations omitted.) Id. Accordingly, the motion to strike Count Two is granted.
C
Count Three
Breach of contractual Duty of Good Faith and Fair Dealing
The defendants argue that to the extent Count Two alleging a breach of contract is stricken, the plaintiff is unable to maintain a claim for a breach of the implied covenant of good faith and fair dealing, as he would be unable to establish the existence of a contractual relationship. The defendants additionally argue that Count Three is insufficient in that it fails to allege any facts demonstrating bad faith which is an essential element for breach of the contractual duty of good faith and fair dealing. The plaintiff argues that he has established the existence of a contractual relationship and the allegations of Count Three imply that the defendants acted with malicious intent or sinister motives.
" The relevant legal principles are well established. [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted, citations omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 563, 979 A.2d 1055 (2009). " Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . ." (Citations omitted; internal quotation marks omitted.) Id., at 563-64.
First, the court has already stricken the breach of contract claim. The existence of a contract is a necessary antecedent to a claim for a breach of duty of good faith and fair dealing. Carford v. Empire First & Marine Ins. Co., 94 Conn.App. 41, 891 A.2d 55 (2006). Second, a favorable review of the allegations in Count Three fails to reveal any allegations of bad faith either specific or implied. The allegations are those of negligence and bad faith is more than mere negligence. Bad faith means more than mere negligence; it involves a dishonest purpose. Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). Count Three is ordered stricken.
D.
Count Four
Intentional Infliction of Emotional Distress
The defendants move to strike Count Four arguing that the plaintiff has failed to allege sufficient facts that the defendants acted intentionally or that the conduct of the defendants was extreme and/or outrageous.
" In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
" Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Id., at 210-11. " [P]laintiff's [alleging intentional infliction of emotional distress] must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." (Internal quotation marks omitted.) Cassotto v. Aeschliman, 130 Conn.App. 230, 236, 22 A.3d 697 (2011).
Count Four alleges all of the allegations contained in the plaintiff's first three counts alleging (1) legal negligence; (2) breach of contract; and (3) breach of the implied duty of good faith and fair dealing. Count Four additionally alleges that the defendants' conduct was outrageous and intentional. The plaintiff alleges the defendants knew their actions would cause him physical and emotional harm. Specifically, the plaintiff alleges the defendants failed to develop a coherent strategy to deal with the marital residence and supervised visitation issues and refused to address key issues in his divorce action. As a result the plaintiff claims he was caused to suffer severe emotional distress and anxiety, as well as, economic losses of legal fees and business income.
The court finds that the plaintiff has merely incorporated the factual allegations set forth in the prior counts of the plaintiff's complaint and has gone on to label such actions as extreme and outrageous behavior. These allegations allege a breach of the professional standard of care, and this does not constitute extreme and outrageous conduct. Count Four is ordered stricken.
E.
Claim for Relief
Punitive Damages
Practice Book § 10-39 allows for a prayer for relief to be stricken, only if such relief could not be legally awarded. Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). To obtain an award of punitive damages, the plaintiff must show " evidence of a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). Plaintiff's negligence claims in Count One, when viewed favorably, do not contain allegations that can be construed or implied to allege a reckless indifference to the rights of the plaintiff or an intent to harm the plaintiff. The claim for punitive damages is ordered stricken.
Summary of Orders
For the reasons set forth herein, the court grants he defendants' motion to strike Counts Two, Three and Four of the plaintiff's complaint and the plaintiff's claim for punitive damages.