Opinion
No. CV 10-6001205 S
November 8, 2010
MEMORANDUM OF DECISION
This is a decision on the defendant's motion to strike, dated May 27, 2010. On March 8, 2010, the plaintiff, Michael Hennessey, filed a three-count complaint sounding in negligence, breach of contract and breach of fiduciary duty against the defendants, Edward J. McManus and Jacobs Brudberg Belt Dow Katz, P.C. (Jacobs Grudberg) and therein alleged the following facts. On February 12, 2006, the plaintiff, who was a resident of the premises located at 815 Broad Street, Meriden, CT (the premises), suffered significant injuries when a portion of the ceiling of the premises fell on him and knocked him down. The premises were owned and managed by Hartford Investment Group (Hartford Investment) and JRH Asset Management, LLC (JRH) respectively. The plaintiff hired the defendants to represent him in a lawsuit sounding in negligence against Hartford Investment and JRH. Pursuant to General Statutes § 52-584 any potential cause of action had to be brought on or before February 11, 2008. The defendants, due to their carelessness, negligence and failure to exercise due care, failed to advise the plaintiff of the statute of limitations applicable to his personal injury action and failed to commence an action against Hartford Investment and JRH on or before February 11, 2008. The defendants' negligence is the direct and proximate cause of the plaintiff's damages.
General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
Count two incorporates by reference count one in its entirety and adds that the plaintiff and the defendants entered into a contract, that the defendants agreed to act as the plaintiff's attorney and "perform services in accordance with generally accepted standards for attorneys, and to exercise due care in the prosecution of the plaintiff's case" and that the defendants agreed, moreover, to commence an action on the plaintiff's behalf against all the parties responsible for his injuries. The plaintiff further alleges that the defendants breached the contract because they "failed to act in accordance with generally accepted standards for attorneys, and with due care or diligence, and never filed the [w]rit, [s]ummons, and [c]omplaint on behalf of the plaintiff . . . as the [defendants] had promised and contracted to do," and as a result, the plaintiff suffered damages.
Count three incorporates by reference counts two and three in their entirety and adds that the plaintiff retained the defendants due to their superior knowledge, skill and expertise in the law, and that a unique degree of trust and confidence existed between the plaintiff and the defendants. The plaintiff further alleges that as the plaintiff's attorney, "the [defendants] owed the plaintiff the fiduciary duty of utmost loyalty, fidelity, and care, to use their best efforts on his behalf, the duty to keep the plaintiff informed of all important facts relating to his case, the duty to respond to questions and correspondence, and the duty to act [at] all times and in all respects in furthering and promoting the plaintiff's rights and best interests in the matter for which they were engaged as [the] plaintiff's legal counsel and advisors." The plaintiff asserts that the defendants breached their fiduciary duties to him because they failed to provide competent legal service, failed to act in his best interest, and failed to commence an action against all responsible parties within the applicable statute of limitations, and, as a result, he suffered damages. The plaintiff requests monetary damages, costs, attorneys fees and such other relief the court deems appropriate.
On May 27, 2010, the defendants filed a motion to strike supported by a memorandum of law. The defendants argue that count two of the complaint fails to allege a breach of contract claim. Specifically, they contend that the breach of contract claim "is merely a professional negligence claim clothed in contractual language." They further argue that count three of the complaint fails to allege a breach of fiduciary duty claim. Specifically, they assert that the plaintiff "failed [to] allege any conduct which would implicate the immorality of the [defendants'] conduct" or that the defendants engaged in self-dealing. On July 29, 2010, the plaintiff filed a memorandum in opposition to the defendants' motion to strike and the court heard the matter at the short calendar hearing on August 2, 2010.
I.
Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a 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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f 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). Furthermore, the court must "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 (2006).
II.
The defendants first claim that count two of the complaint insufficiently alleges a breach of contract claim. "Connecticut law recognizes that one may bring against an attorney an action sounding in both negligence and contract." (Internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008). "A claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result states a true contract claim." Rosenfield v. I. David Marder Associates, LLC, 110 Conn.App. 679, 685 n. 4, 956 A.2d 581 (2008). "To sustain an action in both tort and contract . . . on the basis of negligent performance of a contract, the plaintiff must allege facts and damages sufficient to maintain those causes of actions separately." Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 872 n. 7, 794 A.2d 997 (2002). "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Keller v. Backenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913 983 A.2d 274 (2009). "[T]he elements of a breach of contract include the formation of an agreement . . . which, in turn, requires the presence of adequate consideration." Hadey v. Indian Spring Land Co., 123 Conn.App. 800, 819 n. 15, 3 A.3d 992 (2010). "Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made . . ." (Internal quotation marks omitted.) Martin Printing, Inc. v. Sone, 89 Conn.App. 336, 345, 873 A.2d 232 (2005). The court will strike a breach of contract claim that fails to allege any consideration to support the alleged contract. Ulster Savings Bank v. 28 Brynwood Lane, LTD., Superior Court, complex litigation docket at Stamford-Norwalk, Docket No. X08 CV 054007323 (January 11, 2010, Jennings, J.T.R.); Tinney v. Lichatz, Superior Court Judicial district of Hartford, Docket No. HHD CV 07 5014574 (September 4, 2008, Graham, J.) [ 46 Conn. L. Rptr. 229]; Finnucane v. Dandio, Superior Court, judicial district of New Haven, Docket No. CV 0366182 (May 28, 1997, Gray, J.).
Further, "[a]lthough ordinarily — indeed, in most cases — in reviewing a motion to strike, the court must take the plaintiff's allegations at face value, that rule is not absolute . . . When a defendant's liability to a plaintiff is premised . . . on principles of tort law . . . the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint . . . and consequently a reviewing court may pierce the pleading veil to ensure that such is not the case . . . Thus, in doing so, we look beyond the language used in the complaint to determine the true basis of the claim." (Citations omitted; internal quotations omitted.) Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008). Thus, "[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 him or engaged his services." (Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 79-80, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).
The defendants argue that the "[p]laintiff has failed to state a claim for breach of contract as his claim is merely a professional negligence claim clothed in contractual language." Specifically, they argue that the plaintiff's breach of contract claim incorporates by reference the negligence count in its entirety and adds allegations to make it appear to be a breach of contract claim. According to the defendants, such pleading is strictly prohibited and, therefore, the court should strike the plaintiff's breach of contract claim. Furthermore, the defendants argued at the short calendar hearing that the breach of contract count is legally insufficient because there are no allegations that the contract was breached and no allegations of consideration.
The plaintiff, on the other hand, asserts that his breach of contract count is legally sufficient because it specifies the "matters for which the defendants were retained, the dates the agreement was entered into, and the affirmative acts of failing to engage in actions specifically set forth in the contract." Furthermore, the plaintiff argued at the short calendar that there was consideration because he promised to pay the defendants for their services. The plaintiff relies solely on Hill v. Williams, 74 Conn.App. 654, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), to support his arguments. In that case, the plaintiff specified in her complaint the matters for which the defendant had been hired and the dates on which the parties created the agreements, and further alleged that the defendant agreed to represent her in various civil actions and refused to take certain actions in furtherance of those actions. Id., 659. The court, reasoning that "[u]se 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., 660; determined that "the complaint [went] beyond being merely `couched in the language of tort . . .'"; id., 659; and, therefore, sounded in breach of contract. Id.
Turning to count two of the complaint, the plaintiff alleges in paragraph twenty-six that he "entered into an agreement with the defendants . . . wherein he engaged their services in a claim against all parties responsible for the injuries he sustained . . ." In paragraphs thirty-three through thirty-seven, he alleges "[o]n or about November 25, 2007, the plaintiff . . . and defendants entered into a contract for services to be rendered by defendants for the benefit of [the] plaintiff," that "[t]he [d]efendants agreed to act as attorney for [the] plaintiff, to perform services in accordance with generally accepted standards for attorneys, and to exercise due care in the prosecution of the plaintiff['s] case, that they "further agreed to file a [w]rit and [s]ummons, together with a [c]omplaint, on the plaintiff's behalf against all responsible parties," that they "failed to act in accordance with generally accepted standards for attorneys, and with due care or diligence, and never filed the [w]rit, [s]ummons and [c]omplaint . . . as [they] had promised and contracted to do," and, finally, that the defendants "thereby breached their contract with the plaintiff," and, as a result of that breach, the plaintiff suffered damages.
Even when construed in a manner most favorable to sustaining its legal sufficiency, the plaintiff's breach of contract is legally insufficient because he failed to allege any consideration to support the alleged contract. Specifically, the plaintiff has not alleged what benefit the defendants would receive in return for prosecuting the plaintiff's case. Although the plaintiff argued at the hearing that he agreed to pay the defendants for their services, he failed to allege that fact in his pleadings. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., CT Page 22123 240 Conn. 576, 580, 693 A.2d 293 (1997). Accordingly, the plaintiff's breach of contract count is legally insufficient.
As the court has determined that the plaintiff's breach of contract count is legally insufficient, the court does not have to address whether that count is, as the defendants argue, a negligence claim cloaked in contractual language. The court points out, however, that the present case is distinguishable from the case relied on by the plaintiff, Hill v. Williams, supra, 74 Conn.App. 654. In that case, the Appellate Court determined that the plaintiff's claim sounded in breach of contract because she specifically alleged that the defendant's breach of their agreement was intentional rather than negligent. Here, the plaintiff alleges in paragraph thirty-two of his complaint that the defendants'"failure to file or bring any action was due to [their] carelessness, negligence and failure to exercise due care . . ." The plaintiff further alleges in paragraph thirty-six that the defendants "failed to act in accordance with generally accepted standards for attorneys, and with due care or diligence, and never filed the [w]rit, [s]ummons, and [c]omplaint on behalf of the plaintiff . . . as [they] had promised and contracted to do." Unlike the plaintiff in Hill, the plaintiff in the present case does not allege that the defendants intentionally refused to commence an action against the parties responsible for the plaintiff's injuries. On the contrary, the plaintiff specifically alleges that the defendants' failure to perform was due to carelessness, negligence and failure to exercise due care. Compare Law Offices of Thomas E. Porzio, LLC v. Northern Expansion, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 08 5008203 (April 15, 2009, Brunetti, J.) (citing Hill and concluding that defendant's counterclaim was negligence claim couched in breach of contract language because allegations characterized law firm's oversight as careless and negligent rather than intentional) with Tracey v. Still, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 4001883 (June 8, 2005, Stevens, J.) ( 39 Conn. L. Rptr. 471, 472-73) (complaint sufficiently asserted breach of contract claim because it alleged that defendant agreed to file action against appropriate parties but failed to do so and attempted to conceal this failure by falsely representing that work was being pursued); see also Hebert v. Frontier of Northeast Connecticut, Inc., Superior Court, judicial district of Windham, Docket No. CV 01 0065465 (January 29, 2004, Swienton, J.) ( 36 Conn. L. Rptr. 448, 451) (examined Hill and concluded that when faced with allegations of "failing to act" and "refusing to act," allegations pertaining to "refusing to act" would be treated as contract claims). Accordingly, the defendant's motion to strike count two is granted.
III.
The defendants also claim that count three of the complaint insufficiently alleges a breach of fiduciary duty claim. "[A]n attorney-client relationship imposes a fiduciary duty on the attorney . . . characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Updike, Kelly and Spellacy, P.C. v. Beckett, 269 Conn. 613, 648 n. 28, 850 A.2d 145 (2004). "Professional negligence alone, however, does not give rise automatically to a claim for breach of fiduciary duty. Although an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of that fiduciary duty . . . Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 56-57, 717 A.2d 724 (1998). "The fiduciary duty of loyalty is breached when the fiduciary engages in self-dealing by using the fiduciary relationship to benefit her personal interest." Mangiante v. Niemiec, 82 Conn.App. 277, 284, 843 A.2d 656 (2004). Consequently, a claim that a fiduciary breached its duty must allege facts that would support a claim of fraud, self-dealing or conflict of interest. Sherwood v. Danbury Hospital, 278 Conn. 163, 196-97, 896 A.2d 777 (2006); Lee v. Brenner, Saltzman Wallman, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 5000728 (May 24, 2007, Esposito, J.) ( 43 Conn. L. Rptr. 462, 464). Furthermore, to survive a motion to strike, a breach of fiduciary duty claim must allege facts that assert dishonesty, disloyalty or immorality. Memoli v. Galpin, Superior Court, judicial district of Litchfield, Docket No. LLI CV 04 4001269 (June 30, 2006, Pickard, J.) ( 41 Conn. L. Rptr. 564, 565); J.S.T. Development Corp. v. Vitrano, Superior Court, judicial district of New Britain, Docket No. CV 03 0521186 (June 22, 2004, McWeeny, J.) ( 37 Conn. L. Rptr. 590, 592); Lavitt v. Meisler, Superior court, complex litigation docket at New London, Docket No. X04 CV 01 27150 (July 15, 2003, Quinn, J.) ( 35 Conn. L. Rptr. 133, 135); Nosik v. Bowman, Superior Court, judicial district of Fairfield, Docket No. CV 00 0379089 (July 12, 2002, Doherty, J.).
The defendants argue that the plaintiff's breach of fiduciary duty count is legally insufficient on two grounds. First, they argue that "there are no allegations to support a claim based on the improper conduct of these defendants as it relates to their `honest, loyalty or morality.'" Second, they point out that, as alleged by the plaintiff, attorney McManus notified the plaintiff that the complaint was not filed within the statute of limitations and advised him to seek legal counsel, which, the defendants contend, indicates that they did not "put the interests of any other person over those of the plaintiff." Accordingly, the defendants argue, the court should strike the plaintiff's breach of fiduciary duty count.
In response, the plaintiff argues that "[t]he defendants are misplaced that a valid claim for [b]reach of [f]iduciary [d]uty requires pleading or evidence of dishonesty, disability, or immorality." In support of his argument, the plaintiff cites Cadle Co. v. D'Addario, 268 Conn. 441, 844 A.2d 836 (2004). Specifically, the plaintiff points out that once a fiduciary relationship is established, the burden shifts to the fiduciary to prove fair dealing. Id. 456-57.
In his breach of fiduciary duty count, the plaintiff alleges that the defendants breached their fiduciary duties to the plaintiff in at least the following respects: (a) they failed to provide competent legal representation and services; (b) they failed to act in the plaintiff's best interest; and (c) they failed to file a claim against all responsible parties within the applicable statute of limitations. The plaintiff does not allege that the defendants engaged in self-dealing or that the defendants' conduct was dishonest, disloyal or immoral. Instead, the defendants' breach of duty sounds in negligence, and professional negligence alone does not give rise to a breach of fiduciary duty. Accordingly, the plaintiff's breach of fiduciary duty claim is legally insufficient.
Furthermore, the plaintiff's reliance on the burden-shifting scheme articulated in Cadle Co. v. D'Addario, supra, 268 Conn. 456-57 is misplaced because that scheme applies to evidentiary requirements and burdens of proof at trial. See, e.g., Barber v. Skip Barber Racing School, LLC, 106 Conn.App. 59, 76, 940 A.2d 878 (2008) (where it is undisputed that plaintiff owed fiduciary duty to defendant, defendant's counterclaim alleged conflict of interest and self-dealing and defendant admitted evidence of plaintiff's dual and conflicting positions of trust at trial, court should have shifted burden to plaintiff to prove fair dealing by clear and convincing evidence); Mangiante v. Niemiec, supra, 82 Conn.App. 284 (defendants burden at trial is to prove fair dealing by clear and convincing evidence). The plaintiff must first make a prima facie showing that the defendants acted in self-interest before the burden shifts to them to prove fair dealing. Saginaw Products Corp. v. Cavallo, Superior Court, judicial district of New Haven, Docket No. CV 92 0326329 (August 10, 1994, Burns, J.), aff'd, 40 Conn.App. 771, 673 A.2d 120 (1996). See also Cadle Co. v. D'Addario, supra, 268 Conn. 457 (when breach of fiduciary duty is alleged and allegations concern fraud, self-dealing or conflict of interest, burden of proof shifts to the fiduciary to prove fair dealing); Mangiante v. Niemiec, supra, 82 Conn.App. 284 (when complaint against fiduciary alleges self-dealing, fiduciary carries burden of proving fair dealing).
Accordingly, the defendant's motion to strike count three is granted.
IV.
For the foregoing reasons, the defendant's motion to strike is granted in its entirety.