Opinion
No. 462911
June 14, 2005
MEMORANDUM OF DECISION
The defendant Jack A. Halprin Associates moves to strike the plaintiff's claim for attorneys fees. The court applies the settled standard for a motion to strike, which provides that although all well pleaded facts are deemed admitted, legal conclusions are not. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).
"In the United States, the general rule of law known as the American Rule is that a prevailing litigant ordinarily is not entitled to collect a reasonable attorneys fee from the opposing party as part of his or her damages or costs . . . There are certain exceptions to this rule . . . In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorneys fees by a prevailing litigant . . . Attorneys fees may also be awarded as a component of punitive damages." (Internal quotation marks omitted.) Narcisco v. Brown, 63 Conn.App. 578, 580, 777 A.2d 728 (2001). The plaintiff's complaint fails to disclose any statutory or contractual authorization for attorneys fees. In such circumstances, "[t]o furnish a basis for recovery of punitive damages, the pleadings must allege . . . wanton or wilful malicious misconduct . . ." Label Systems Corp v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004). As to the defendant Jack A. Halprin Associates, the complaint does not allege such facts. Although the plaintiff alleges that "Halprin knew or should have known that the conclusion in his report was incorrect" (Complaint, sixth count, para 4), "the phrase `knew or should have known' typically connotes negligence." See Worden v. Francis, 148 Conn. 459, 465, 172 A.2d 196 (1961); Ruocco v. United Advertising Corp., 98 Conn. 241, 244, 119 A. 48 (1922); O'Keefe v. National Folding Box Paper Co., 66 Conn. 38, 45, 33 A. 587 (1895); Vaillancourt v. Southington, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 01 0510816 (May 7, 2002, Aurigemma, J.) ( 32 Conn. L. Rptr. 191, 194); Jerez v. Danbury, Superior Court, judicial district of Danbury, Docket No. CV 99336499 (August 25, 2000, Moraghan, J.)." Yuille v. Bridgeport, Superior Court, judicial district of Fairfield, No. 395994 (March 12, 2003) ( 34 Conn. L. Rptr. 538); see also Steward v. Miller, Superior Court, judicial district of Fairfield, No. CV94 031 7408 (Dec. 13, 1995 and Feb. 15, 1996). Nor do the plaintiffs adequately allege facts, as opposed to legal conclusions, giving rise to a fiduciary relationship, for purposes of the seventh count. See Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38-40, 761 A.2d 1268 (2000).
The motion also seeks to strike the plaintiff's claim for interest and costs. Interest may be recovered in a negligence action; General Statutes § 37-3b; and is primarily in the equitable discretion of the court. State v. Stengel, 192 Conn. 484, 187, 472 A.2d 350 (1984). Costs are generally awarded to the prevailing party in any civil action. General Statutes § 52-257. "Interest and costs need not be specially claimed in the demand for relief, in order to recover them." Practice Book § 10-28. Neither, however, does the Practice Book prohibit pleading them. See Precision Computer Services, Inc. v. Concentrex, Inc., Superior Court, judicial district of Fairfield, No. CV01 38 28 93 S (Apr. 16, 2002) (Thim, J.).
The motion to strike (#137) the plaintiff's claim for attorneys fees is granted. The motion is denied insofar as it seeks to strike the plaintiff's claim for interest and costs.
BY THE COURT
Bruce L. Levin Judge of the Superior Court