Opinion
No. CV08-5008203S
April 15, 2009
MEMORANDUM
The counterclaim defendant, Law Offices of Thomas E. Porzio, LLC (hereinafter, "the law firm"), has filed a motion to strike the second and third counterclaims filed against it by the counter-claim plaintiff, Northern Expansion, LLC (hereinafter, "the client"). For the following reasons, the motion to strike is granted as to counterclaim two and denied as to counterclaim three.
I. Facts
This matter originated as an action to collect attorneys fees, commenced by the law firm on March 7, 2008. Thereafter, on October 8, 2008, the client filed an answer, special defenses, and three counterclaims. The first counterclaim, which is not attacked by the present motion to strike and is essentially a claim for legal malpractice, alleges that in or around November of 2006, the client and the law firm entered an agreement whereby the law firm would negotiate a lease agreement for a property located in Waterbury, Connecticut. It further alleges that the negotiations were completed and that both the client and the City of Waterbury, who owned the property in question, signed and executed the lease agreement that resulted. However, in or around January of 2007, the client contends it discovered that the City of Waterbury's attorney altered a portion of the lease agreement prior to its execution, and that the alteration required the client to pay for heat, hot water, electricity, and air conditioning. Thus, the first counterclaim alleges that the client sustained losses as the direct and proximate cause of the law firm's carelessness and negligence, which took form in one or more of the following ways:
A. By failing to read the entire lease and all changes thereto;
B. By instructing the officers of the [client] to execute the lease when in fact the lease was drafted incorrectly;
C. By failing to immediately commence an action against the City of Waterbury to reform the lease;
D. By failing to maintain adequate safeguards or PDF documents which could not be changed by the opposing party; and
E. By failing to use ordinary care and caution in review of the documents prior to directing the officer of the [client] to sign the same.
The second counterclaim, which is attacked by the present motion to strike, purports to be a claim for breach of contract. It incorporates all the allegations of counterclaim one, and then adds the following allegation: "The failure of the [law firm] to properly review the lease and advise the [client], constitute[s] [a] breach of [the] contract of legal services [with the client]. As a result of the [law firm's] breach, the [client] has sustained substantial loss and damage."
Finally, the third counterclaim, which is also attacked by the motion to strike, attempts to set out a claim for negligent misrepresentation. It, too, incorporates all the allegations from the first counterclaim. It then further alleges that the law firm "negligently represented to the [client] that the lease was in accordance with the agreement of the parties," and that "[u]pon reliance of the negligent representation, an officer of the [client] executed the lease." The third counterclaim then avers that the client suffered losses as a direct and proximate cause of this negligent misrepresentation.
On January 23, 2009, the law firm filed the motion to strike that is now before the court, challenging counterclaims two and three. The motion to strike is accompanied by a memorandum of law. Thereafter, on February 19, 2009, the client filed an objection to the law firm's motion to strike, which is also accompanied by a memorandum of law.
II. Discussion
"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] plaintiff can [move to strike] a . . . counterclaim." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
"[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); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). 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).
The court will consider counterclaims two and three in reverse order.
A. Counterclaim Three: Negligent Misrepresentation
The law firm argues, without citing any Connecticut law, that the client's third counterclaim, which seeks damages pursuant to a theory of negligent misrepresentation, must be stricken because the "alleged negligent discussions do not create an independent cause of action. Rather they are a subcomponent of the legal negligence claim set forth in the first counterclaim." Similarly, the law firm characterizes both counterclaim two and three as being "unnecessary, repetitive, [and] cumulative," given that they largely incorporate the allegations found in the first counterclaim, which seeks compensation for legal malpractice.
In response, the client argues that the law firm's motion to strike is the improper procedural vehicle for making this argument. According to the client, an argument that a counterclaim is duplicative of another counterclaim is the "appropriate [basis] for a request to revise, not a motion to strike." It points to Practice Book § 10-35, which provides that "[w]henever any party desires to obtain . . . (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading . . . the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading." It notes that a motion to strike, on the other hand, is designed merely "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, supra, 262 Conn. 498.
While "[t]here is no explicit appellate authority on the issue of the proper vehicle for the elimination of duplicative claims"; Sandru v. Boyle, Superior Court, judicial district of New Haven, Docket No. CV 07 5014056 (September 3, 2008, Zoarski, J.T.R.) (46 Conn. L. Rptr. 238, 238); a majority of the Superior Court decisions dealing with this dilemma have held that "[a] request to revise, and not a motion to strike, is the proper procedural device for deletion of duplicative pleadings." (Internal quotation marks omitted.) Id., 239 (quoting Downing v. Yale University Health Services, Superior Court, judicial district of New Haven, Docket No. CV 94 0364862 (December 26, 1995, Zoarski, J.) and listing many cases that reached the same conclusion). But see Cambodian Buddhist Society of Connecticut v. Planning Zoning Commission, judicial district of Danbury, Docket No. CV 03 0348578 (January 10, 2005, Downey, J.) (granting motion to strike "unnecessarily duplicative" counts without discussing whether request to revise is more appropriate method); Hayward v. Friendly Ice Cream Corp., Superior Court, judicial district of New Haven, Docket No. CV 95 0375622 (November 9, 1995, Hadden, J.) (striking one count as repetitive of another without discussing whether request to revise is more appropriate method).
The court agrees with the majority of Superior Court cases that have refused to allow a party to use a motion to strike to remove counts on the basis that they are duplicative of others. Instead, the request to revise is the appropriate procedural device for doing so. As such, the law firm's motion to strike is denied as it pertains to the third counterclaim.
In reaching this conclusion, the court does not consider whether the client's third counterclaim for negligent misrepresentation is legally sufficient. This is because "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). The only justification for striking the third counterclaim presented by the law firm is that it is duplicative of the first counterclaim. Thus, the court decides the motion solely on that ground. Id. Although, in its memorandum of law, the law firm does briefly and broadly state that both counterclaim two and three "fail to state claims upon which relief can be granted," with regard to the third counterclaim it does nothing more to expand upon this generalized statement. "It is well settled that the court is `not obligated to consider issues that are not adequately briefed . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived.' (Citation omitted; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008)." Ritchie v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002368 (May 13, 2008, Marano, J.). Thus, the court considers only the arguments expressly and fully made in the law firm's motion to strike and accompanying memorandum of law.
B. Counterclaim Two: Breach of Contract
With regard to counterclaim two, which attempts assert a cause of action for breach of contract, the client again opposes the motion to strike by arguing that the law firm should have instead used a request to revise. Here, however, the law firm's argument is not merely that the second counterclaim should be stricken because it is duplicative of the first. Rather, the law firm argues that counterclaim two must be stricken when considered against the Appellate Court's decisions in Alexandru v. Strong, 81 Conn.App. 68, 837 A.2d 875, cert. denied, 268 Conn. 906 (2004), and Caffery v. Stillman, 79 Conn.App. 192, 829 A.2d 881 (2003).
Caffery and Alexandru both dealt with a situation where a former client commenced an action against his or her former attorney and attempted to set out separate causes of action for legal malpractice and breach of contract. The Appellate Court was asked to determine whether the breach of contract count was in fact a claim for negligence, so that it could then apply the appropriate statute of limitations.
In Caffery, the Appellate Court noted at the outset that "one may bring against an attorney an action sounding in both negligence and contract. See Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529-30, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989)." Id., 197. However, the court rejected "the proposition . . . that one may 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." Id. The court concluded that although, for instance, a breach of contract claim could be successfully alleged where "a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result," a plaintiff cannot sustain a breach of contract claim where it alleges that an attorney "promised to work diligently or in accordance with professional standards" because such a claim is merely a negligence claim "couched in the contract language of promise and breach." Id. See also Alexandru v. Strong, supra, 81 Conn.App. 79 (following Caffery and stating that "one may bring against an attorney an action sounding in both negligence and contract [but] . . . 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.))
The Appellate Court has subsequently clarified, however, that a plaintiff seeking to assert a breach of contract claim against a professional is not required to plead the failure to achieve a promised specific result. See Pelletier v. Galske, 105 Conn.App. 77, 82 n. 2, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008). Rather, the general allegations of the complaint must allege the breach of a duty arising out of a contract, as opposed the breach of a duty imposed by law, which would sound in tort. Id., 82.
Hill v. Williams, 74 Conn.App. 654, 655, 813 A.2d 130, cert. denied, 263 Conn. 918 (2003), is illustrative of the distinction drawn in Caffery and Alexandru. In Hill, a case specifically examined by the Caffery court, the Appellate Court overruled a trial court's decision to grant summary judgment on the basis of an expired statute of limitations where it first concluded that a purported breach of contract claim was actually a legal malpractice claim. Id. The Appellate Court held that because a portion of the pro se plaintiff's complaint alleged that her former attorney "agreed to represent [her] in her family case to appeal her divorce, obtain accurate support and obtain sole custody of [her] children," and further alleged that the attorney "refus[ed] to take certain actions in furtherance of the matters for which the defendant had been hired," a claim for breach of contract was properly established and the longer statute of limitations was applicable. (Internal quotation marks omitted.) Id., 659. The Appellate Court noted that the "[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. Thus, the court determined these allegations implied the breach of a duty arising under the alleged agreement, not simply the breach of the duty of reasonable care owed as a result of the parties' attorney-client relationship. Id.
In the present case, the gist of the allegations made by the client in the second counterclaim is that the law firm failed to recognize that the City of Waterbury's attorney altered provisions of the lease agreement prior to its execution, and that this oversight ultimately obligated the client to pay various utility bills it would not have otherwise been required to pay. The second counterclaim merely incorporates the allegations found in the first counterclaim, which the client agrees is designed to set forth a negligence claim for malpractice. Those allegations, which are quoted in part I of this memorandum of opinion, consistently characterize the law firm's oversight as careless and negligent, as opposed to conscientious and intentional. The acts complained of are essentially that the law firm failed to read the lease and nevertheless instructed the client's officers to sign it; failed to immediately commence an action against the City of Waterbury to reform the lease when the alterations were discovered; failed to maintain safeguards to ensure the City of Waterbury's attorney would not be able to alter the provisions; and failed to use ordinary care and caution in review of the lease prior to instructing the client to sign it. After incorporating these allegations into counterclaim two, the client then attempts to transform them into the foundation of an operative breach of contract claim by making the following further allegation: "The failure of the [law firm] to properly review the lease and advise the [client], constitute[s] [a] breach of [the] contract of legal services [with the client]. As a result of the [law firm's] breach, the [client] has sustained substantial loss and damage." (Emphasis added.) This allegation — which is essentially nothing more than a legal conclusion — cannot, in-and-of-itself, imply the breach of a duty owed under the alleged legal agreement. In fact, it merely alleges that the law firm improperly reviewed the lease agreement, which implies only a breach of the standard of care owed by an attorney to his or her client. Nothing in counterclaim two alleges, for instance, that the legal agreement that existed between the parties obligated the law firm to negotiate a lease that relieved the client from paying the utility bills in question, or that the law firm promised to achieve that specific result but failed to do so. The only duties allegedly breached were those that arose as a result of the attorney-client relationship.
The court finds that the second counterclaim is simply a negligence claim couched in breach of contract language. It does not, therefore, properly assert a cause of action for breach of contract, since it does not allege the breach of a duty arising under the contract. It is, then, legally insufficient as pled, and must be stricken.
In its memorandum of law in opposition, the client argues that Alexandru and Caffery are inapplicable to the current motion to strike because in both of those cases the Appellate Court considered the trial court's granting of a motion for summary judgment. While this is true, in the present case the court grants the law firm's motion to strike counterclaim two not because there are no issues of material facts left to be determined, but because it is legally insufficient as pled, given that it does not allege the breach of a duty imposed by a contract. Furthermore, the Appellate Court has, elsewhere, upheld the granting of a motion to strike where the movant claimed that a purported breach of contract claim was actually a negligence claim couched in breach of contract language. See Pelletier v. Galske, supra, 105 Conn.App. 78-79 (breach of contract claim actually legal malpractice claim; motion to strike properly granted); Rumbin v. Baez, 52 Conn.App. 487, 491-92, 727 A.2d 744 (1999) (breach of contract claim actually medical malpractice claim; motion to strike properly granted).
III. Conclusion
For the reasons articulated in this memorandum of opinion, the law firm's motion to strike is granted as to counterclaim two and is denied as to counterclaim three.