Opinion
FSTCV176033502S
06-20-2019
Finalya MYLEN v. ADELMAN LAW OFFICE et al.
UNPUBLISHED OPINION
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, three and four 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, Finalya Mylen, alleges the following facts in her complaint against the defendants, Adelman Law Office and its agent, attorney Daniel Adelman. By way of background, the plaintiff retained the defendants to represent her interests in a divorce proceeding against her former husband, James D. Mylen, Jr. She paid a retainer fee to attorney Adelman who then commenced the dissolution action and represented her in that action. As part of that representation, attorney Adelman negotiated a separation agreement with the plaintiff’s husband.
The plaintiff alleges that on September 15, 2014, the defendants advised the plaintiff to sign the separation agreement and she did so upon their advice. The plaintiff subsequently commenced this action against the defendants by way of a complaint filed on October 5, 2017. After multiple amendments, the operative complaint is now the fourth amended complaint. It alleges four counts: legal malpractice (count one); breach of contract (count two); breach of the duty of good faith and fair dealing (count three); and intentional misrepresentation (count four).
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 marital assets and her right to alimony and child support. Specifically, she alleges that she advised the defendants, and they 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 husband’s agreement to pay above the maximum amount described in Connecticut General Statutes 46b-56c(f) for the college education of the parties’ children and to include an agreement which the parties allegedly had to include a portion of the husband’s bonus in the definition of alimony. Paragraph 13, which is incorporated in all four counts of the plaintiff’s fourth amended complaint, states nine instances of the defendants’ alleged violation of the standard of care. The plaintiff has alleged that as a result of the defendants’ actions or failure to act that she did not receive the appropriate share of marital assets to which she was entitled.
On March 5, 2019, the defendants filed a motion to strike counts two, three, and four of the amended complaint, accompanied by a memorandum of law. On April 11, 2019, the plaintiff filed an objection to the motion to strike. On April 18, 2019, the defendants filed a reply to the plaintiff’s objection. On April 22, 2019, the plaintiff filed a sur-reply to the defendants’ reply. The court heard oral argument at short calendar on May 6, 2019.
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.).
The plaintiff did not seek the court’s permission to file her sur-reply, in violation of Practice Book § 11-10(c). Nevertheless, the court, in its discretion, considers it. See Teodoro v. Bristol, 184 Conn.App. 363, 384, 195 A.3d 1 (2018).
II. APPLICABLE LAW AND ANALYSIS
"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, three, and four of the amended complaint on the ground that they are legally insufficient. Specifically, they argue that count two is merely a repetition of count one, and counts three and four fail to allege facts supporting their respective causes of action. The plaintiff objects, arguing there are sufficient facts to support all of the causes of action as alleged in the complaint.
Count Two: Breach of Contract
The defendants first move to strike count two, 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. In the present case, the plaintiff’s breach of contract claim is legally insufficient because it fails to allege that the defendants violated a specific provision in the retainer agreement or that the defendants failed to obtain a specific result for the plaintiff that they promised to obtain. Merely claiming that the defendants failed to adequately "represent the Plaintiff’s interest in her Divorce Action" is too vague and nonspecific 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"). Consequently, this claim is merely a negligence action for legal malpractice cloaked in contract language. As such, the motion to strike count two is granted.
Count Three: Breach of the Duty of Good Faith and Fair Dealing
The defendants next move to strike count three which alleges breach of the duty of good faith and fair dealing, on the ground that the claim fails to state a cause of action.
The "duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 399. "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 ... Bad faith in general implies ... 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." (Internal quotation marks omitted.) Id., 399-400.
In the present case, the plaintiff’s bad faith claim is legally insufficient. The plaintiff’s allegations largely involve the defendants’ negligence to perform various legal services. She has not alleged that the defendants acted with a dishonest purpose or ulterior motive to harm the plaintiff. Therefore, the claim is legally insufficient and the motion to strike count three is granted.
Count Four: Intentional Misrepresentation
The defendants next move to strike count four, intentional misrepresentation, on the ground that the claim fails to state a cause of action.
"[A]t common law, fraudulent misrepresentation and intentional misrepresentation are the same tort." Kramer v. Petisi, 285 Conn. 674, 684 n.9, 940 A.2d 800 (2008). "To assert a claim for intentional misrepresentation or fraudulent inducement the [plaintiff] must prove that (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Peterson v. McAndrew, 160 Conn.App. 180, 204, 125 A.3d 241 (2015). "[T]he general rule is that a misrepresentation must relate to an existing or past fact to be actionable." (Internal quotation marks omitted.) Kenneson v. Eggert, 176 Conn.App. 296, 308, 170 A.3d 14 (2017). "In determining whether a statement constitutes a statement of fact, as opposed to, for example, a statement of judgment or opinion, [t]he question is ... not alone one of the language used but of the sense in which it is reasonably understood." (Internal quotation marks omitted.) Id.
There is an exception to this rule, although it does not apply here. "A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 681, 902 A.2d 30, cert. denied, 280 Conn . 916, 908 A.2d 536 (2006).
Relying on the allegations of paragraphs 1-14 of the First Count, the plaintiff makes the allegation required by law to state a claim for intentional misrepresentation. In order to assess whether a party has intentionally misrepresented a matter to another individual, the court will often examine the relationship between the parties. "Where the relation between the parties is such that they do not deal at arm’s length, as where the person expressing the opinion has, or professes to have, superior knowledge, the expression of an opinion may constitute fraud." (Internal quotation marks omitted.) Leonard-Anthony Associates, LLC v. Sherman Gardens, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5018651-S (June 29, 2009, Cronan, J.). "[A]n attorney-client relationship imposes a fiduciary duty on the attorney ... [A] fiduciary or confidential relationship is 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." (Citation omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d 724 (1998).
Some states hold that "[a]n attorney’s advice or opinion, if knowingly false, may constitute fraud." Brownell v. Garber, 199 Mich.App. 519, 533, 503 N.W.2d 81 (1993); Lietz v. Primock, 84 Ariz. 273, 277, 327 P.2d 288 (1958). The Restatement (Second) of Torts provides: "One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation." 3 Restatement (Second), Torts, Liability for Fraudulent Misrepresentation § 525, p. 55 (1977). "To be actionable, a misrepresentation of fact must be one of a fact that is of importance in determining the recipient’s course of action at the time the representation is made." Id., comment (e), p. 57.
Our Appellate Court approves the use of the Restatement (Second) of Torts as persuasive authority. See Kenneson v. Eggert, supra, 176 Conn.App. 296 n.4.
In the present case, the defendants’ statement was that the separation agreement was adequate and proper for the circumstances of the divorce. The terms of a separation agreement necessarily comprise many factors. There is no established formula for the allocation of property or the amount, or even inclusion of financial orders in a separation agreement. Courts recognize the complexity of negotiating separation agreements and the fact that each agreement reflects the unique circumstances of the parties. The individual components of a separation agreement are often referred to as a "mosaic" which the courts may only modify upon proof of substantial changes in circumstances. In the course of negotiating a separation agreement, an attorney will have many conversations with the client in which the attorney will express his opinion and provide advice as to the value or weight of negotiated terms.
Although the defendants argue that the defendants’ statement about the agreement was an opinion, given the fiduciary relationship between the parties as an attorney-client relationship, the defendants’ superior knowledge as the plaintiff’s attorney, and the plaintiff’s reliance on that statement by signing the agreement, the statement was more likely a fact than an opinion. See Green v. White, 229 Ga.App. 776, 780, 494 S.E.2d 681 (1997) ("[a]lthough [the attorney’s] initial advice concerning the dischargeability of the 1986 taxes may constitute erroneous conjecture as to future events, in light of the confidential relationship of the parties and evidence ... that [the attorney] knew his advice was inaccurate and that he failed to inform [the plaintiff] of this fact, his conduct could constitute fraud" [emphasis omitted; internal quotation marks omitted]). At this stage in the pleadings, the plaintiff’s allegation that the defendants told her that the terms of the separation agreement were adequate and protected her interests, knowing that such statement was false, is sufficient for a statement of fact for intentional misrepresentation, considering the position of the plaintiff as a client lacking the knowledge and details the defendants possessed. Therefore, the motion to strike count four is denied.
CONCLUSION
For the reasons stated above, the defendants’ motion to strike is granted as to counts two and three and denied as to count four.