Opinion
MMXCV166016153
09-08-2017
Jennifer Meyer et al. v. Brignole, Bush and Lewis, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
Julia L. Aurigemma, J.
The defendants, Brignole, Bush & Lewis, LLC and Timothy Brignole, have moved to strike the entire complaint on grounds of improper joinder and Counts One through Seven and part of Eight on the grounds that they are legally insufficient. The plaintiffs, Jennifer Meyer and Christina Febbroriello, oppose the motion. Oral argument occurred on July 24, 2017.
Allegations of the Complaint
The Complaint alleges that Timothy Brignole was at all times the managing partner of Brignole, Bush & Lewis, a law firm located in Hartford, Connecticut (the " Law Firm"). Plaintiff Jennifer Meyer and plaintiff Christina Febbroriello were at all relevant times clients and/or prospective clients of the firm. Brignole and the Law Firm acting through Brignole " engaged in a practice of using their business operations, and position of trust and authority as attorneys, to engage in sexually predatory behavior towards Law Firm employees and clients." Complaint, ¶ 6. " Brignole had sexual relationships with multiple female clients." Complaint ¶ 54. " Brignole coerced disadvantaged female clients into sexual relationships. He gained information about their financial circumstances in his role as an attorney, and then offered them legal representation in exchange for sexual favors, Brignole also told female clients he would only do a good job representing them if the clients performed sexual acts with him." Complaint ¶ 55.
The Complaint further alleges:
63. In September of 2013, Plaintiff Jennifer Meyer was in a physically and emotionally abusive marriage. She approached her uncle, William Mercey, for help in finding legal representation. He recommended that Ms. Meyer meet with Brignole. Mr. Mercey is related by marriage to Mrs. Brignole . . .
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65. Ms. Meyer told Brignole that she needed to get divorced, that she was afraid of her abusive husband, and that she was concerned for her safety staying in their home, Ms. Meyer also asked to work out a payment plan, as her husband had control of their finances.
66. Brignole told Ms. Meyer she did not have to worry, that everything would be OK, and that he would take care of it.
67. Shortly thereafter, Mr. Mercey texted Ms. Meyer and informed her that Brignole was willing to work out a sexual arrangement with her in return for him providing her with legal representation.
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69. Ms. Meyer agreed to meet Brignole at his East Granby office. Brignole chose a meeting time that led Ms. Meyer to believe that there would be other people in the office, but when she arrived, Brignole was alone.
70. Brignole took Ms. Meyer into a conference room and instructed her to sign a retainer agreement which she signed. He then leaned in closely to her and in a sexual tone asked if her uncle talked to her about the arrangement. It became clear to Ms. Meyer that Brignole was expecting her to have sex with him, and that he wanted sex immediately . . .
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72. Ms. Meyer did not want to have sex with Brignole and consequently, did not engage in further contact with Brignole.
73. In 2011, Plaintiff Christina Febbroriello was attempting to find an attorney to represent her in her divorce from her then-husband who was a divorce attorney in Connecticut.
74. Ms. Febbroriello had no access to the marital finances, and her husband refused to provide her with any funds to hire her own attorney, while at the same time representing himself in their divorce.
75. She met with multiple divorce attorneys, but could barely afford their initial consultation fees, let alone their retainer fee or fee arrangements for continued representation. She inquired if she could pay them when her divorce was completed and was told no.
76. Ms. Febbroriello then contacted Defendant Brignole, whom she had previously heard about from her husband . . .
77. Ms. Febbroriello relayed to Brignole who her husband was, and also explained the difficult financial circumstance her husband had put her in.
78. Brignole told her to meet him at 8:00 p.m. in the firm's East Granby office.
79. At the meeting, Ms. Febbroriello told Brignole that she had no access to the family's bank account, and asked whether it would be possible to file a motion to force her husband to pay for her legal representation.
80. Brignole laughed and said that " really wasn't done and wasn't effective." He told her " not to worry, " and that he would represent her, that they would " work something out" with respect to payment, and winked at her.
81. Ms. Febbroriello was very uncomfortable with Brignole's flirtatious tone but felt relieved that finally someone would represent her. Soon thereafter, Brignole began texting Ms. Febbroriello telling her to meet him to discuss her case. Instead of meeting at his office, however, he told her to meet him at the construction site for his new East Granby winery. Feeling she had no choice but to meet him where he wanted since he was the only attorney who agreed to represent her without a retainer, she met him at the construction site.
82. During the meeting, Ms. Febbroriello gave Brignole more details about her difficult financial situation, after which Brignole put his hands on her hips, pulled her toward him, tried to look down her blouse, and tried to kiss her. Ms. Febbroriello felt helpless. She needed a lawyer, did not want to have Brignole treat her in this sexual way, but did not want to anger him so he would no longer represent her.
83. After that meeting, Brignole texted her again and told her to meet him in a bar in East Windsor. She met him in the bar and they discussed her case, including her increasingly desperate financial and domestic situation with her husband. Brignole spoke to her in a very sexually suggestive ways and again reassured her that he would " work out" her payment of his legal representation.
84. Brignole then texted Ms. Febbroriello and told her to meet him at a room at the Hilton Hotel in Windsor Locks. When she arrived he instructed her to have sex with him. Feeling desperate, Ms. Febbroriello complied.
85. Shortly thereafter, Brignole instructed her to come to the Law Firm's office in Hartford . . .
86. At the end of the meeting, Brignole instructed Ms. Febbroriello to sign the retainer agreement, which included a provision for a retainer fee to be paid up front and ongoing fees to be paid on an hourly basis. Brignole told her not to worry about the terms of the retainer agreement because they had their " own arrangement." He also told her the retainer agreement had to contain the financial terms because he needed it to satisfy the Law Firm and his wife, who did the Law Firm's bookkeeping.
87. The Law Firm represented Ms. Febbroriello in her divorce from December of 2011 through April of 2012.
88. During that time, Brignole texted Ms. Febbroriello and told her to meet him for sex at least two additional times, and she complied . . .
89. After the Law Firm concluded its representation of Ms. Febbroriello, the law Firm started sending Ms. Febbroriello a bill for $7, 500. After some time had passed, Brignole called Ms. Febbroriello about the Law Firm's bill. She told him that she was not paying it based on his prior representation that she was not bound to the financial terms of the retainer agreement.
90. Brignole told Ms. Febbroriello that she just needed to pay something toward the bill to satisfy his wife who did the bookkeeping and so Ms. Febbroriello paid the Law Firm $100 in March of 2013.
91. Shortly after that payment, the Law Firm stopped sending Ms. Febbroriello bills.
92. In 2015 and again in March of 2016, the Law Firm again started sending Ms. Febbroriello bills in the amount of $7, 551.52.
93. Throughout the relationship with Brignole and the Law Firm, and continuing to the present day, Ms. Febbroriello experienced severe anxiety and emotional distress by being forced into a sexual relationship with Brignole and then being harassed by the Law Firm for payment.
94. The bills from the Law Firm were ongoing acts of misrepresentation, coercion, harassment and intimidation by Brignole, and constitute a continuing course of conduct by Brignole and the Law Firm.
95. By undertaking representation of Ms. Febbroriello, Brignole and the Law Firm assumed an ongoing duty to her as attorneys and fiduciaries, with respect to all aspects of the representation and their professional relationship.
96. Brignole's unethical, coercive, and sexually predatory practices toward clients and/or prospective clients were known and discussed among employees of the Law Firm. Additional facts will be reviewed as needed.
Discussion of the Law and Ruling
The purpose of a motion to strike is to contest the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); P.B. Sec. 10-39 as amended. The court must construe the complaint in a manner most favorable to sustaining its legal sufficiency. Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). In determining the sufficiency of a complaint all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Pleadings must be construed broadly and realistically, rather than narrowly and technically. Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006); Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987).
A motion to strike requires no factual findings by the trial court. If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
The first ground of the motion to strike is improper joinder of plaintiffs. The defendants argue that the two plaintiffs' claims do not arise out of the same transaction or series of transactions and individual questions of fact and law predominate over common questions.
The Connecticut Supreme Court has taken a liberal approach to permissive joinder. Goggins v. Fawcett, 145 Conn. 709, 710, 147 A.2d 187 (1958). Joinder is allowed for the purposes of " judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition . . ." Jackson v. Conland, 171 Conn. 161, 167, 368 A.2d 3 (1976).
" [W]here plaintiffs allege the existence of a common scheme or plan on the part of the corporate entity, the plaintiffs satisfy the requirement that each plaintiff's right of relief arise out of the same transaction or series of transactions." Costello v. Goldstein & Peck, P.C., 2017 WL 1334321, at *3-4 (Conn.Super.Ct. Mar. 21, 2017) (citing and quoting Mascia v. Solhjoo, 40 Conn. L. Rptr. 784, (February 22, 2006, Gallagher, J.). " [F]or joinder purposes, a series of transactions, and multiple questions of law and fact, have been found where allegations of a company-wide policy designed to inflict the particular injury have been made." Id.; see also Harmon v. Univ. of Connecticut, 2016 WL 3085336, at *3 (Conn.Super.Ct. May 11, 2016) [62 Conn. L. Rptr. 305, ] (permitting joinder where the allegations " raise questions of common fact regarding the existence of a common plan or design"); Lofts on Lafayette Condo. Ass'n, Inc. v. Lancaster Gate, LLC, 2010 WL 937273. at *5 (Conn.Super.Ct. Feb. 17, 2010) (" if the court construes the entire complaint in relation to the motion to strike, the broad scope of the construction defects and the allegations of the defendants' intentional misrepresentations may be construed as a 'common scheme or design' that would permit joinder"); Hatfield v. Antonino Pontiac-Buick-GMC Truck, Inc., 1995 WL 780889, at *2 (Conn.Super.Ct. Dec. 20, 1995) (permitting joinder of temporally distinct CUTPA claims because " there are common questions of law and fact intermingled in the plaintiffs' nearly identical encounters with the defendant"); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 1993 WL 382121, at *1 (Conn.Super.Ct. Sept. 13, 1993) [10 Conn. L. Rptr. 52, ] (" for purposes of joinder, a series of transactions, and multiple questions of law and fact, have been found where allegations of a company-wide policy designed to inflict the particular injury have been made") (citing Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1422 (S.D.N.Y. 1989)).
The defendants rely on the cases of Zahedi v. Envirotest Sys., 2000 WL 277144 (Conn.Super.Ct. Feb. 28, 2000) [26 Conn. L. Rptr. 509, ], and Myers v. Long, 23 Conn.Supp. 93, 176 A.2d 886 (Super.Ct. 1961). In Zahedi, the court concluded that joinder is appropriate when a common scheme or plan is alleged, but did not permit joinder because the plaintiffs failed to include allegations that the defendants' acts were part of a common scheme. In Myers, the court refused to allow the joinder to two separate car accidents because they did not share sufficient issues of fact.
In this case the complaint sets forth the defendants' overarching and common " practice of using their business operations, and position of trust and authority as attorneys, to engage in sexually predatory behavior towards Law Firm employees and clients" (Complaint, ¶ 6); and that " [t]o further Brignole's goal of engaging in these sexually predatory practices, Brignole and the Law Firm acting through Brignole, engaged in a common plan, scheme or policy to harass, intimidate, dominate, control, undermine and/or discriminate against female employees and clients of the Law Firm." (Complaint, ¶ 7.) The complaint does not merely make conclusory allegations as to a pattern and practice of predatory sexual behavior, it provides detailed facts supporting a common scheme by defendant Brignole to use his position as owner of the Brignole Law Firm to engage in a pattern and practice of sexually predatory behavior.
For the foregoing reasons the motion to strike the complaint for improper joinder is denied.
The defendants have moved to strike the counts which allege intentional infliction of emotional distress: Count One for Meyer and Count Six for Febbroriello. The Supreme Court in Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000), stated:
Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. (Citations omitted; internal quotation marks omitted.)
The defendants argue that reasonable minds could not disagree that the alleged conduct of Brignole was not sufficient to constitute conduct that was " so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." See Appleton, supra . They further argue with respect to Meyer that nothing actionable happened because Ms. Meyer chose not to have sex with Attorney Brignole and consequently, did not use his legal services.
The complaint alleges that Ms. Meyer was in immediate physical danger from her abusive husband. Aided by her own uncle, Attorney Brignole, a professional from whom she sought help, offered that help contingent on her submitting to his sexual advances. This court cannot find that reasonable minds would not differ as to the outrageousness of Attorney Brignole's conduct. The fact that Ms. Meyer chose not to have sex with Attorney Brignole may lessen the amount of her damages, but it does not defeat the cause of action for intentional infliction of emotional distress.
The complaint alleges that Ms. Febbroriello was in a difficult domestic situation, had no access to the family finances and had repeatedly and unsuccessfully attempted to hire attorneys to represent her in her divorce from her husband, who was himself an attorney. Complaint ¶ ¶ 73-83. She believed she had no option but to endure Brignole's sexual advances in order to gain access to legal representation. Attorney Brignole was in a position of authority over Ms. Febbroriello, knew of her vulnerable situation and took advantage of it. As with the claims by Ms. Meyer, it must be for a jury to determine whether Attorney Brignole's actions with respect to Ms. Febbroriello were sufficiently outrageous to support a claim for intentional infliction of emotional distress. This court certainly cannot say that they were not.
For the foregoing reasons the motion to strike Counts One and Six is denied.
The defendants have also moved to strike Counts Two and Seven which allege negligent infliction of emotion distress as to Meyer (Count Two) and Febbroriello (Count Seven). A plaintiff claiming negligent infliction of emotional distress " must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . ." Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010). Both Meyer and Febbroriello allege this element at Paragraphs 103 and 125, respectively. Both plaintiffs also allege that Brignole's conduct caused them to suffer ongoing emotional distress. Complaint ¶ ¶ 104 and 126. They have stated a cause of action for negligent infliction of emotional distress and the motion to strike Counts Two and Seven is denied.
The defendants have moved to strike Count Three, in which Ms. Meyer alleges invasion of privacy. The Connecticut Supreme Court first recognized the tort of invasion of privacy in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). The law of privacy is comprised of four distinct kinds of invasion of four different interests. The four categories are set forth in 3 Restatement (Second). Torts § 652A: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public. (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 127-28. Privacy is a basic right entitled to legal protection. Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 487, 95 S.Ct. 1029, 1042, 43 L.Ed.2d 328, (1975); see also Galella v. Onassis, 487 F.2d 986, 995 n.12 (2d Cir. 1973). The right of privacy is the right to be left alone. Prosser, Torts (4th Ed. 1971) § 117, p. 802; 3 Restatement (Second), Torts § 652A, comment a; Garner v. Triangle Publications Inc., 97 F.Supp. 546, 548 (S.D.N.Y. 1951).
Since Goodrich, the Restatement and its commentary have informed the appellate analysis of the standards and elements for each of the four categories of invasion of privacy. See, e.g., Foncello v. Amorossi, 284 Conn. 225, 231, 931 A.2d 924 (2007); Perkins v. Freedom of Information Commission, 228 Conn. 158, 170-71, 635 A.2d 783 (1993).
Invading the seclusion of another, intentionally (physically or otherwise) with respect to his private affairs and concerns, if highly offensive to a reasonable person, violates this right of privacy. The commentary to § 652B makes clear that " [t]he defendant is subject to liability under the rule stated in this Section when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs." 3 Restatement (Second), Torts § 652B, comment (c) (1977).
To state a claim for intrusion upon seclusion, a plaintiff must allege facts demonstrating an intrusion upon a privacy interest that would be highly offensive to a reasonable person. Bonanno v. Dan Perkins Chevrolet, 2000 WL 192182, *1 (February 4, 2000); Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-96-0149891-S, *1, *2 (May 6, 1997) (19 Conn. L. Rptr. 474, ), citing Fields v. Kichar, Superior Court, judicial district of Tolland at Rockville, Docket No. 054868 (May 2, 1995) (14 Conn. L. Rptr. 230, ).
In Bonanno v. Dan Perkins Chevrolet, 2000 WL 192182, *1 (February 4, 2000), the court stated:
The Connecticut Appellate Courts have yet to interpret what constitutes an invasion of privacy under the first category: an unreasonable intrusion upon the seclusion of another. Comments to the section of the Restatement adopted by the Supreme Court in Goodrich, however, state that " One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second) of Torts, § 652B (1977). As way of further illustration, the Comments also state that invasion of privacy occurs when the defendant has " intruded into a private place or otherwise invaded a private seclusion that the Plaintiff has thrown about his person or affairs." Id. Several Connecticut courts that have found a sufficient claim for an unreasonable intrusion upon the seclusion of another is presented by factual scenarios in which the plaintiff has been subjected to both offensive verbal comments as well as unwanted physical contact. See Gallagher v. Rapoport, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 149891, 19 Conn. L. Rptr. 474, (May 6, 1997) (D'Andrea, J.); Fields v. Kichar, Superior Court, judicial district of Tolland at Rockville, Docket No. 945868, 14 Conn. L. Rptr. 230, (May 2, 1995) (Klaczak, J.). Contrary to the assertions of the defendant, an allegation of physical contact is not necessary to successfully state a claim for invasion of privacy via an unreasonable intrusion upon the seclusion of another.
If offensive verbal comments can constitute intrusion on seclusion, then sexual advances by an attorney towards a prospective client can also be an intrusion upon seclusion. Therefore, the motion to strike Count Three is denied.
The defendants have moved to strike Count Four of the complaint in which Ms. Meyer alleges assault by attorney Brignole.
An assault is an act that causes another person to be placed in imminent apprehension of a harmful or offensive contact with that person.
The plaintiff must have believed that the act would result in imminent contact unless prevented by self-defensive action or flight or the intervention of some outside force.
A harmful contact is one that causes physical impairment of the condition of another's body, physical pain, or illness. An offensive contact is one that offends a reasonable sense of personal dignity .
The act must be done by the defendant intentionally, wantonly, or without the exercise of due care.
Emphasis added. Civil Jury Instructions, 1.13-1; Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980); 2 Restatement (Second), Torts § § 15, 19, 21, 24 (1965).
The plaintiff, Meyer, argues that she has alleged an immediate apprehension of offensive contact when Attorney Brignole leaned toward her and asked whether she was aware of the details of their sexual arrangement. She further alleges that she believed that Attorney Brignole intended to have sex with her then and there, so she left. The defendants argue that Meyer never alleges that she feared that Brignole was going to force her to have sex, nor that Brignole tried to dissuade her from leaving. Imminent is defined as " about to happen." Oxford University Press Dictionary. The allegations of the complaint do not support Ms. Meyer's reasonable fear that any offensive contact was about to happen. Therefore the motion to strike Count Four is granted.
The defendants seek to strike all of Meyer's CUTPA (Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110a et seq.) count (Count Five) and a portion of Febbroricllo's CUTPA count (Count Eight). In both counts the plaintiffs allege that Brignole violated their CUTPA rights as consumers of legal services by gaining confidential information about them that he intended to use for some improper purpose, that he did use it to determine that they were vulnerable and susceptible to manipulation and that Brignole coerced and intimidated the plaintiffs to enter a sexual relationship with him in exchange for legal representation. The defendants argue that in Meyer's case any information she imparted to Brignole could not be regarded as confidential. Apparently, ignoring Rule 1.6 of the Rules of Professional Conduct (Confidentiality of Information) the defendants argue, " Each party to the conversation surely understood that the information was destined for a publicly available divorce complaint or that it would otherwise be used in public divorce proceedings. And what are the facts that show that Brignole manipulated, coerced and intimidated her? There are none. At most, he asked for sex. She said no; finished business. It is inconceivable that his can be a violation of Meyer's CUTPA rights as a legal services consumer." Defendants' Memorandum in Support of Motion to Strike, p. 19. It is not inconceivable to the court that offering an abused, penurious woman legal representation in exchange for sex could violate her rights as a legal services consumer.
The gravamen of the motion to strike the CUTPA counts is that neither plaintiff can prove that she suffered an ascertainable loss of money and/or property. Both plaintiffs have alleged (¶ ¶ 118 and 131 of the complaint) that they suffered " an ascertainable loss of money and/or property." The defendants argue that such loss is, essentially, impossible to image, and, therefore, the plaintiffs have failed to state a CUTPA cause of action.
The Supreme Court in Artie's Auto Body, Inc. v. Hartford Fire Insurance Co., 287 Conn. 208, 218, 947 A.2d 320 (2008), stated:
An " ascertainable loss" is a loss that is " capable of being discovered, observed or established." (Internal quotation marks omitted.) Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981). " The term 'loss' necessarily encompasses a broader meaning than the term 'damage, ' " and " has been held synonymous with deprivation, detriment and injury." Id. To establish an ascertainable loss, a plaintiff is " not required to prove actual damages of a specific dollar amount." Id. " [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known." Id., at 614, 440 A.2d 810.
When taken in a manner most favorable to the plaintiffs, Count Five and Count Eight allege an ascertainable loss within the meaning of CUTPA. Therefore, the motion to strike Counts Five and Eight is denied.