Teris v. Dawson

Full title: MARY TERIS v. JAMES E. DAWSON

Court: Supreme Court of Connecticut

Date published: Jun 21, 1977

377 A.2d 288 (Conn. 1977)

377 A.2d 288

Opinion

The plaintiff sought to recover damages for the alleged negligence of the defendant in representing her in two separate real estate transactions. Because her claimed monetary losses did not constitute injuries to property and did not arise out of the same transaction, her joinder of the two separate causes of action violated the rules of practice (86[1]). The trial court, therefore, acted properly in sustaining the defendant's demurrer to the complaint.

Argued May 6, 1977

Decision released June 21, 1977

Action to recover damages for negligence in the representation of the plaintiff in two real estate transactions, brought to the Superior Court in Hart ford County where the court, Aaronson, J., sustained the defendant's demurrer and, the plaintiff failing to plead further, rendered judgment for the defendant. No error.

Elliott B. Pollack, with whom, on the brief, was Jeffery L. Payton, for the appellant (plaintiff).

John W. Lemega, with whom, on the brief, was Thomas J. Hagarty, for the appellee (defendant).

LONGO, J.

The plaintiff commenced this action claiming that the defendant, acting as her legal counsel, negligently represented her in two real estate transactions. The defendant demurred to the complaint on the ground that it improperly joined two separate causes of action in violation of 86 of the Practice Book. On May 28, 1976, the court sustained the defendant's demurrer and, on July 21, 1976, the defendant moved for judgment. On September 21, 1976, the plaintiff filed a motion to amend her complaint, which she withdrew the next day. Later that day the defendant filed a motion to expunge the plaintiff's substituted complaint. On September 24, 1976, the court rendered judgment in favor of the defendant on the demurrer and denied the defendant's motion to expunge. The plaintiff appealed from the entry of judgment on the demurrer and the defendant cross appealed. The defendant has since withdrawn his cross appeal. The sole question presented on appeal is whether the plaintiff's complaint improperly joined two separate causes of action in violation of Practice Book 86, thereby requiring that the court sustain the defendant's demurrer.

The present complaint arose out of two separate agreements for the sale of real estate entered into between the plaintiff and Midstate Construction Corporation, the first dated January 21, 1972, and the second dated March 20, 1972. The plaintiff was the seller and Midstate was the buyer in both agreements. In each count, the operative conduct giving rise to the claim of negligence was the defendant's failure to obtain for the plaintiff purchase money mortgages to secure her purchase money promissory notes from Midstate.

The plaintiff claims that her complaint withstands the demurrer since it falls within the provisions of Practice Book 86(1) which states that "if several causes of action are united in the same complaint, they shall all be brought to recover . . .(2) for injuries, with or without force, to person and property, or either . . . ." The plaintiff claims that the damages she has suffered through the defendant's alleged malpractice constitute injuries to property within the terms of the rule. She claims that as a result of the defendant's failure to obtain purchase money mortgages on her behalf, she has suffered losses in the amount of the sums loaned to Midstate Construction Corporation. Those monetary losses, she argues, constitute injuries to property and she is, therefore, entitled to join her separate claims in one complaint. We do not agree with the plaintiff's strained interpretation of Practice Book 86(1)(2). She has not suffered an injury to property merely because she has suffered some financial harm. According to the plaintiff's reasoning any claims for damages would constitute injuries to property and would justify their presentation in a single complaint. This reading makes the remainder of the rule extraneous.

The plaintiff's claims for malpractice, which sound in tort, must fall within Practice Book 86(1)(7) if we are to rule that the demurrer was improperly sustained. The rule states that "if several causes of action are united in the same complaint, they shall all be brought to recover . (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action." The plaintiff does not seriously press any claim that these claims arise out of the same transaction or transactions connected with the same subject of action. The agreements giving rise to the alleged negligence involved the purchase of two separate parcels of land. The agreements were executed on different dates and there is no allegation that the alleged negligence occurred at the same closing. Each act of negligence would constitute a separate tort involving a distinct subject of action. See Goggins v. Fawcett, 145 Conn. 709, 147 A.2d 187. In each claim, the duty which the defendant allegedly owed the plaintiff arose from a distinct agreement, and it does not appear from the complaint that each duty was not breached by a separate action, or failure to act, on the part of the defendant. From the pleadings it would appear that there were two primary rights which were separately infringed. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 A. 76;, 1 C.J.S., Actions, 92. Each allegation of negligence would have to be established by different evidence justifying invocation of the policy of separating issues in order to avoid complexity and confusion. See James, Civil Procedure 10.1.

Since to read Practice Book 86(1)(2) as encompassing any claim for damages to the pocketbook would render the remainder of the rule extraneous and since the plaintiff's claims cannot survive the "same transaction" test of Practice Book 86(1)(7), the court acted properly in sustaining the defendant's demurrer.