Opinion
DBDCV175012677S
02-27-2019
ADLER LAW GROUP, LLC v. Mona THORPE
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Counterclaim defendant Adler Law Group, LLC ("Adler") has moved to strike the Second and Third Counts of the Counterclaims alleged in the Third Amended Answer filed by Mona Thorpe ("Thorpe"). For the reasons stated below, the motion to strike the Second Counterclaim, alleging breach of contract based on anticipatory repudiation, and the Third Counterclaim, alleging violation of the Connecticut Unfair Trade Practices Act, C.G.S. § 42-110a et seq. ("CUTPA") based on unethical billing practices, is denied.
The Standards for Deciding a Motion to Strike
"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 challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] 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 ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, "[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 (2013).
The Second Counterclaim States a Claim for Breach of Contract.
In the Second Counterclaim Thorpe alleges that Adler breached the agreement between them by communicating the intention not to reduce the fees and costs as agreed, which excused her obligation to "sign off on" the settlement agreement.
In Solairaj v. Mannarino Builders, Inc., 168 Conn.App. 1, 9 (2016), the Appellate Court affirmed that repudiation of contractual duties may constitute a breach of contract that excuses the other party’s performance: "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages ... In our case law, ‘even a mere statement indicating unwillingness to perform a contractual duty owed to another may constitute a total breach of contract ... Once a party repudiates a contract, the nonbreaching party is excused from its obligations under the contract.’" (Citations omitted).
Assuming that the allegations are true, Thorpe has alleged a breach of contract claim against Adler based on an anticipatory repudiation theory in the Second Counterclaim. The motion to strike the Second Counterclaim is denied.
Adler asked the Court to conclude that anticipatory repudiation may only be cited as a defense to a breach of contract claim by another; the Court declines to do so because modern theory permits a breach of contract claim to be based on anticipatory repudiation. See e.g., Symes v. Quinnipiac University, 2017 WL 1017793 *1-2 (Conn.Super. 2017) (Ecker, J.). Adler also argued that Thorpe’s repudiation of the contract occurred prior to any alleged conduct of Adler. If so, this could provide a defense to the breach of contract counterclaim, see e.g. Gilman v. Pedersen, 182 Conn. 582, 584 (1981), but matters of defense are not before the Court on a motion to strike.
The Third Counterclaim States a Claim for Violation of CUTPA.
The Third Counterclaim purports to state a claim for violation of CUTPA. On November 15, 2018, the Court struck the CUTPA counterclaim in the prior answer citing inter alia Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781 (2006), because the claim was based on the representational conduct of the attorney.
The new CUTPA counterclaim seeks to fit within the exception recognized in Suffield for claims of improper conduct that is part of the "entrepreneurial aspect of practicing law." 260 Conn. at 781. In the new pleading Thorpe has carried over her allegation she was pressured into a settlement but has focused on uncorrected billing errors, billing for services not provided, double billing and refusal to provide back-up for the bills, albeit in the context of Adler’s threat to withdraw representation on the eve of trial.
Thorpe also alleged Adler’s refusal to arbitrate the fee dispute violated CUTPA but provided no allegations associated to the refusal to arbitrate that would constitute a CUTPA violation.
In Anderson v. Schoenhorn, 89 Conn.App. 666, 674 (2012), the Appellate Court noted that a law firm’s "billing practices" fell within the entrepreneurial aspects of practicing law. See also Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 656 (2004) ("the conduct of a law firm in obtaining business and negotiating fee contracts" falls within CUTPA). The unethical billing practices alleged in the Third Counterclaim would violate CUTPA if true. See Hurowitz v. Garbinski, 2015 WL 6405913 *4-5 (Conn.Super. 2015) (Nazzaro, J.) (and cases collected therein). See generally Leth v. Halloran & Sage, L.L.P., 2017 WL 1194321 *5 (Conn.Super. 2017) (Noble, J.).
"The plaintiff finally claims that the court incorrectly found that CUTPA did not apply on the facts of this case. In general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice ... Although ‘[m]any decisions made by attorneys eventually involve personal profit as a factor, but are not considered part of the entrepreneurial aspect of practicing law’; ... the conduct of a law firm in obtaining business and negotiating fee contracts does fall within the ambit of entrepreneurial activities. Except for a challenge to the content of the agreement and the firm’s billing practices, which arguably fall under the entrepreneurial aspect of practicing law, the allegations of misconduct raised in the plaintiff’s CUTPA count pertain to the underlying claim of legal malpractice." Anderson, 89 Conn.App. at 674 (citations omitted).
The motion to strike the Third Counterclaim is denied.