Opinion
No. CV07-5010641S
January 30, 2008
MEMORANDUM OF DECISION RE #111, 112, 116, 117, 118, 119, AND 122
Defendants Cantor, Floman, Gross, Kelly Sacramone, PC ("Cantor, Floman") and Frank Sacramone ("Sacramone") filed Motions to Strike the Second, Third and Fourth Counts of the plaintiffs' complaint. The plaintiffs oppose the motions. For reasons more fully set forth below, the court denies the defendants' motions to strike the Second Count, Third Count and Fourth Count.
This case arises out of the legal representation of the plaintiffs by the named defendants. That representation, the plaintiffs allege, led to inter alia the loss of their home through foreclosure and emotional distress. In the Second Count of the complaint, the plaintiffs allege Negligent Infliction of Emotional Distress. In the Third Count of the complaint, the plaintiffs allege Recklessness. And, in the Fourth Count of the complaint, the plaintiffs allege Intentional Infliction of Emotional Distress.
"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 challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 588. "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, 262 Conn. 498.
I.
The defendants claim that the Second Count is legally insufficient because it fails to properly allege that emotional distress was foreseeable (defendant Cantor, Floman); because the plaintiffs have failed to allege that the defendants knew their conduct would result in emotional distress (defendant Sacramone); and because a Negligent Infliction of Emotional Distress claim cannot derive solely from property loss (defendants Cantor, Floman and Sacramone).
The plaintiffs counter that their allegations sufficiently allege that the defendants knew that their conduct involved an unreasonable risk of causing the plaintiffs emotional distress; and emotional distress claims can, in some instances, arise from property losses.
The pertinent language in Second Count of the Revised Complaint, dated June 20, 2007, alleges that: the defendants provided legal representation to the plaintiffs (pars. 5, and 6); the defendants were negligent in their representation of the plaintiffs (par. 8); the defendants' negligence resulted in the loss of their home (par. 9); and the defendants' negligence caused the plaintiffs to incur attorneys fees (para. 10 and 12). As particularly relates to the emotional distress component of their claims, the plaintiffs further allege in paragraphs 13 and 14 that:
At all times the defendants knew or should have known that their conduct involved an unreasonable risk of causing the Plaintiffs to suffer emotional distress and that such if it were caused might result in illness or bodily harm to the Plaintiffs. As a result of the Defendant's (sic) negligence and carelessness, the Plaintiffs suffered severe and extensive emotional distress.
"In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . ." (Citations omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
While all parties agree that there is no appellate authority deciding the legal sufficiency of a negligent infliction of emotional distress claim based upon alleged legal malpractice, they also all concede that the Connecticut Supreme Court has expressly limited emotional distress claims to those claims in which the "conduct [of the defendant(s)] involved an unreasonable risk of causing emotional distress and that distress, if it were caused might result in bodily harm." Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997); see also, Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 343-45, 398 A.2d 1180 (1978). The requirement of forseeability in negligent infliction of emotional distress claims is different from that required in general negligence actions. Scanlon v. Conn. Light Power, 258 Conn. 436, 447-48, 782 A.2d 287 (2001). "[T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress . . . [which] might result in illness or bodily harm." Id.
Although there is no appellate authority on the issue of whether a negligent infliction of emotional distress claim predicated upon alleged legal malpractice may prevail, at least one trial court has considered this general issue. In Picard v. O'Rourke, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 010381204 (August 13, 2001, Skolnick, J.), the court decided that the negligent infliction of emotional distress claim was insufficient, not because it arose out of legal malpractice, but because it was predicated solely upon property damages. "In the present case, the plaintiff is seeking recovery for negligent infliction of emotional distress resulting from an injury solely to his property and, therefore, he fails to sufficiently allege a cause of action for negligent infliction of emotional distress. See, Hixon v. Eilers, [Superior Court, judicial district of Hartford, Docket No. 592937] (February 13, 2001, Fineberg, J.) [29 Conn. L. Rptr. 254]."
Though this action arises from the legal representation provided by the defendants to the plaintiffs, this court cannot conclude, as a matter of law, that the negligent infliction of emotional distress claim is insufficient. There is no Connecticut case law which mandates that an action alleging negligent infliction of emotional distress be stricken, merely because the action also alleges legal negligence. See, DiStefano v. Millardo, 276 Conn. 416, 419, 886 A.2d 415 (2005) (Case, which was decided by jury verdict, was based upon a complaint which alleged both legal malpractice and negligent infliction of emotional distress). Based upon the specific allegations in the complaint, the plaintiffs have set for the required elements for a negligent infliction of emotional distress cause of action, including a claim that an emotional injury exists and that the emotional injury was foreseeable. While the plaintiffs' allegations set forth the bare minimum, in terms of articulating both foreseeability and the alleged resulting injuries, they do allege both. Whether the plaintiffs are able to prove foreseeability and the existence of such injuries, is beyond the scope of the required inquiry. The motion to strike the Second Count is denied.
II.
Both defendants next argue that the Third Count, alleging recklessness, is legally insufficient. The defendants argue that the plaintiffs merely parrot the negligence claims, adding a few adjectives. Thus, both defendants claim that the recklessness count is legally insufficient. The plaintiffs counters that their allegations are sufficient because the count contains all the necessary elements for the cause of action.
In the Third Count of the complaint, the plaintiffs do, in fact, repeat many of the allegations of negligence, with the addition of words like "willfully" or "recklessly." However, in paragraphs 8(d) and (e), the plaintiffs also qualitatively change their allegations by alleging:
The defendants failed to prepare and submit to the Bankruptcy Court necessary and desirable statements, schedules, answers, order, reports, documents and other legal papers on the Plaintiffs' behalf, when the Defendant knew or should have known that their failure to do so would jeopardize the rights of the Plaintiffs and was likely to result in the loss of Plaintiffs' home and other damages;
The defendants failed to keep the Plaintiffs' advised as to the status and progress of their case knowing that the Plaintiffs were relying on them to do so and that their failure to do so would jeopardize the rights of the Plaintiffs and was likely to result in the loss of their home and additional financial losses;
The Connecticut Supreme Court mandated that allegations of recklessness must articulate "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Reckless conduct is "more than any mere mistake resulting from inexperience, excitement, or confusion and more than mere thoughtlessness or inadvertence, or simply inattention." Id. "Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence." (Internal citations omitted.) Craig v. Driscoll, 64 Conn.App. 699, 720, 781 A.2d 440 (2001). "[A] plaintiff cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence." Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987). Rather, the allegations must allege that the actor intended his actions; acted wilfully; and with knowledge of and disregard for the potential harmful results. "Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional. (Citations omitted; internal quotation marks omitted.)" Dubay v. Irish, supra, 207 Conn. 533.
In this case, the plaintiffs have alleged that the defendants acted recklessly: that they knew of the potential harm; that they acted intentionally; and that they intended or recklessly disregarded the harm to the plaintiffs. These allegations state more than mere negligence. They state more than mere mistake, inexperience, confusion, thoughtlessness or inadvertence. These allegations, viewed in the light most favorable to the pleader, sufficiently allege recklessness. For this reason, the motion to strike Count Three is denied.
III.
Finally, the defendants move to strike the Fourth Count of the Complaint, the Intentional Infliction of Emotional Distress claim, on the grounds that the Fourth Count fails to allege extreme and outrageous behavior (defendants Cantor, Floman and Sacramone); or intent to cause harm (defendant Sacramone). The plaintiffs contest the motions by arguing that they have alleged that the defendants knew or should have known that emotional distress was likely to result, and because the conduct alleged is clearly outrageous.
Turning, once again to the pleading, itself, the court finds that the plaintiffs allege that the "defendants knew or should have known that emotional distress was a likely result of their conduct." Paragraph 13. Also, the plaintiffs allege that the defendants: intentionally failed to provide sound legal advice; intentionally failed to attend numerous hearings; intentionally failed to render sound legal advice regarding reorganization; intentionally failed to prepare necessary and desirable statements, schedules, answers, order, reports, documents and other legal papers; intentionally failed to keep plaintiffs advised as to status of case; intentionally failed to consult with plaintiffs; intentionally failed to inform plaintiffs that defendants would no longer represent them; intentionally failed to advise plaintiffs to obtain replacement counsel; and intentionally failed to deliver the plaintiffs' file. Paragraph 8.
In order to state a claim for Intentional Infliction of Emotional Distress, the plaintiffs must allege: 1.) That the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was likely to result; 2.) That the conduct was extreme and outrageous; 3.) That the defendants' conduct was the cause of the plaintiffs' emotional distress; and 4.) That the emotional distress was severe. Carroll v. Allstate, 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
"`Whether the defendant's conduct and the plaintiff's resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance for [the] court. Only where reasonable minds can differ does it become an issue for the jury. Reed v. Signode Corp., 652 F.Sup. 129, 137 (D. Conn., 1986); 1 Restatement (Second), Torts section 46, comment (h) (issue of extreme and outrageous conduct) and comment (j) (issue of severe emotional distress).' Mellaly v Eastman Kodak Co., 42 Conn.Sup. 17, 18-19, 597 A.2d 846 (1991) (Berdon, J.).
`Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Petyan v. Ellis, supra 200 Conn. 254, n. 5, quoting W. Prosser W. Keeton, Torts (5th Ed. 1984), section 12, p. 60. 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 intolerably in a civilized community. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!' Carrol v. Allstate Ins., 262 Conn. 433, 443, 815 A.2d 119 (2003)." Turner v. Dannehoffer, Superior Court, judicial district of New Haven at New Haven, Docket No. 055001048 (July 28, 2007, Robinson, A. J).
The plaintiffs' complaint explicitly alleges that the defendants knew or should have known that emotional distress was likely to result, therefore the first element of the Intentional Emotional Distress claim is sufficiently alleged. Regarding whether or not the conduct alleged is sufficiently outrageous, this court concludes that the issue is sufficiently stated to survive the motion to strike. Because this court concludes that reasonable minds could disagree, this court cannot conclude, as a matter of law, that the plaintiffs' allegations are legally insufficient. For this reason, the motion to strike the Fourth Count is also denied.