Opinion
FBTCV196085715S
01-30-2020
Carey & Associates, P.C. v. Eric Jackel
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Jacobs, Irene P., J.
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIMS (#103.00)
Jacobs, J.
BACKGROUND
On June 5, 2019, the plaintiff commenced this action against the defendant, alleging breach of contract in failing to pay an outstanding balance for legal services rendered (count one), breach of covenant of good faith and fair dealing (count two), and defamation (count three). On June 10, 2019, the defendant filed a counterclaim, alleging violation of the Connecticut Unfair Trade Practices Act (count one) and breach of contract (count two). On July 9, 2019, the plaintiff filed a motion to strike both counts of the defendant’s counterclaim. On August 1, 2019, the defendant filed an objection to the motion to strike (#106.00). The plaintiff filed a reply brief on August 7, 2019 (#107.00). The motion and objection thereto were heard at short calendar on November 25, 2019.
DISCUSSION
"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." (Internal quotation marks omitted.) Cadle Co. v. D’Addario, 131 Conn.App. 223, 235, 26 A.3d 682 (2011). "The role of the trial court in ruling on a motion to strike is to examine the [pleading], construed in favor of the [pleading party], to determine whether the [pleading party] has stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640, 643 2011). "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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013); Melfi v. Danbury, 70 Conn.App. 679, 686, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).
Connecticut Unfair Trade Practices Act (CUTPA)
General Statutes § 42-110b(a) states that "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." "A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." Anderson v. Schoenhorn, 89 Conn.App. 666, 667, 874 A.2d 798, 800 (2005).
Only the commercial or entrepreneurial aspects of professional practice can form the basis of a CUTPA claim. Haynes v. Yale New Haven Hospital, 243 Conn. 17, 32-33, 699 A.2d 964 (1997); See also Suffield Development Associates Limited Partnership v. National Loan Investors Limited Partnership, 260 Conn. 766, 781, 802 A.2d 44, 52 (2002). "Entrepreneurial" is defined as "aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the defendant." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36.
There is Superior Court case law which holds that the collection of fees is a matter of billing which involves the entrepreneurial aspect of the practice of law and is therefore within the reach of CUTPA. See Chong Bok Park v. Kramer, Superior Court, judicial district of New Haven, Docket No. CV-03-0475833-S (Jan. 27, 2004, Licari, J.) . However, "[A]n attorney is not forbidden from presenting the client with a bill for services and his doing so does not trigger a CUTPA violation." Kegeles v. Bergman, Horowitz & Reynolds, P.C., Docket No. 391439, 1999 Conn.Super. LEXIS 3200 (Nov. 24, 1999, Levin, J.) . The court’s analysis in Proskauer Rose, LLP v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV075005353, May 19, 2008, Tobin, J. , is instructive. In Proskauer, the court sets forth factors which may lead to the conclusion that certain allegations in claims based on fee collection do not fall under CUTPA. "The defendant’s counterclaim fails to allege any wrongdoing on the plaintiff’s part other than over-billing. There are no claims that the plaintiff’s bill, for example, included time incurred in working for other clients, included time for work actually performed by associates or paralegals but billed at partner rates, or marked up or inflated billing for disbursements. Without such allegations claims of over-billing necessarily involve only the professional judgment of the plaintiff as to how to staff the defendant’s case, what pleadings to file, which experts to retain, and how to develop and implement an effective strategy to pursue the defendant’s claims. While such matters may be the basis of a claim of professional malpractice, they bear no relationship to the entrepreneurial aspects of professional practice and accordingly, cannot furnish a basis for a CUTPA claim." See also, Collins v. Rogers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV166028664, October 9, 2019, Sommer, J.
In the present action, the plaintiff alleges the following facts. On January 31, 2019, the defendant called the plaintiff seeking immediate legal services related to a demotion which was set to take place on February 8, 2019. On February 6, 2019, the plaintiff issued a retainer agreement which was signed and returned by the defendant on the same day. The plaintiff provided legal services to the defendant on the basis of an hourly retainer agreement.
On February 8, 2019, the plaintiff issued the defendant an invoice via e-mail and U.S. postal mail in the amount of $3, 210. On February 15, 2019, the plaintiff issued the defendant an invoice via e-mail and U.S. postal mail in the amount of $892.50. On February 22, 2019 and March 1, 2019, the plaintiff issued two invoices, respectively, via e-mail and U.S. postal mail for legal services previously billed in the amount of $4, 102.50. The defendant never paid the invoices. On March 5, 2019, the plaintiff issued a letter to the defendant terminating the hourly retainer agreement and requesting payment for services rendered. Between March 15, 2019 and May 3, 2019, the plaintiff sent the defendant eight additional invoices via e-mail and U.S. postal mail for legal services previously rendered. On May 3, 2019 and May 6, 2019, plaintiff alleges that the defendant filed false and defamatory reviews on the internet. On May 6, 2019, the plaintiff sent a cease and desist e-mail to the defendant regarding the defamatory review. The defendant replied on the same day with an offer to pay one-half of the amount owed. The plaintiff replied that the defendant owed the full amount due.
Martindalenolo.com and Better Business Bureau, respectively. See Plaintiff’s Amended Complaint ¶¶20-21.
In the first count of his counterclaim, the defendant alleges that the plaintiff breached its duty under CUTPA by "charging unreasonable and excessive fees and engaging in immoral and unscrupulous conduct relating to legal services provides to the [defendant]." (#102.00, ¶¶10, 11.) He alleges that he was charged a duplicate fee for a draft affidavit that was not referenced on the invoice which mentioned a February 7, 2019 telephone call. (#102.00, ¶12.) The defendant also alleges that the plaintiff’s filing of the complaint and the amended complaint were a violation of its fiduciary duty under CUTPA. (#102.00, ¶23.)
The defendant alleges that the plaintiff "double billed" him for the February 7, 2019 telephone call. However, the relevant invoice indicates that the defendant was billed for the work of two attorneys who participated in the February 7, 2019 phone call (#102.00, Exhibit A). The defendant has not alleged that the hourly rates charged by the firm for the participation of either of the two attorneys in the February 7, 2019 phone call were false or inflated. This court concludes that the decision by the plaintiff to have two attorneys participate in the phone call was strategic and, as such, does not give rise to a claim of violation under CUTPA.
The defendant also alleges that it was "excessive and unreasonable" that he was billed for a February 7, 2019 draft affidavit, which was not mentioned in the description section of the invoice. This court finds that the plaintiff’s decision to revise the draft affidavit was strategic. The defendant has not provided this court with sufficient basis on which to find that the hourly fee charged by the plaintiff for the draft affidavit was false or inflated. As such, the plaintiff’s conduct does not give rise to a claim of violation under CUTPA.
The defendant also alleges that, by creating a fraudulent invoice and filing the instant action in Superior Court, the plaintiff violated its fiduciary duty under CUTPA. However, breach of fiduciary duty does not give rise to a claim under CUTPA. Haynes v. Yale New Haven Hospital, 243 Conn. 17, 32-33, 699 A.2d 964 (1997).
Applying the analysis of Proskauer and the superior court cases which have ruled in accord, this court concludes that the defendant has not provided this court with sufficient facts on which to base the allegation that the plaintiff’s conduct constitutes an unfair or deceptive trade practice, the first threshold requirement for a party seeking to recover damages under CUTPA.
Breach of Contract
"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." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014). "When construing a contract, we seek to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." Parisi v. Parisi, 315 Conn. 370, 383, 107 A.3d 920, 929 (2015).
In the second count of the defendant’s counterclaim, the defendant alleges that the plaintiff breached the fairness provision of its contract with the defendant by "charging unfair, duplicate, and unreasonable fees and by refus[ing] to modify the unreasonable and fraudulent fees ..." (#102.00, ¶44.) The defendant argues that the charge for the eighty minute phone call was a breach of the fairness provision of the retainer agreement. However, the defendant has failed to provide this court with facts to support his conclusory statements that the plaintiff breached the fairness provision of the retainer agreement.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff’s motion to strike counts one and two of the counterclaim.