Opinion
No. CV08 5016870
October 1, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE SECOND COUNT OF COUNTERCLAIM
The plaintiff has moved to strike the Second Count of the defendant's Counterclaim dated March 5, 2009, claiming that it fails to state a legally sufficient claim upon which the requested relief can be granted. The plaintiff argues that the Second Count alleging a breach of contract is merely a negligence claim cloaked in contract language and therefore is legally insufficient.
The current action was initiated by the plaintiff by means of a Summons and Complaint dated June 17, 2008. The complaint alleges that the defendant, a former client of the plaintiff law firm, failed to pay a balance due for services performed by the plaintiff on the defendant's behalf in connection with an underlying action for dissolution of marriage. The parties agree that their relationship began on or about October 4, 2005, pursuant to a written agreement, and continued to September 2007. On September 17, 2007, the plaintiff's motion to withdraw its appearance from the dissolution of marriage matter was granted by the court (Schofield, J.). See Mayer v. Mayer, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA05 4006617 (Sept. 17, 2007, Schofield, J.).
The defendant has filed a Answer, Special Defenses and Counterclaim in the instant matter which are dated March 5, 2009. In the Counterclaim, the defendant alleges the plaintiff committed legal malpractice and breached the parties' contract for legal services. Each claim is based on identical factual allegations, initially enumerated by the defendant in the First Count of the Counterclaim, which alleges legal malpractice and then incorporated by reference into the Second Count, which alleges a breach of contract. The defendant has filed his objection to the motion to strike arguing that Practice Book § 10-65 and General Statutes § 52-136 permit a claimant to amend its complaint to add a breach of contract count which arises from the same set of facts as a count which sounds in tort. Each party has submitted a memorandum of law. The plaintiff has also submitted its Reply to the defendant's objection to the motion to strike.
Sec. 10-65. Amending Contract to Tort and Vice Versa
A complaint for breach of contract may be amended so as to set forth a cause of action founded on a tort arising from the same transaction or subject of action; and a complaint founded on a tort may be amended so as to set forth a cause of action for a breach of contract arising out of the same transaction or subject of action.
Sec. 52-136. Amendment from contract to tort and vice versa.
The complaint in an action brought for breach of contract may be amended so as to set forth instead a cause of action founded on a tort, arising from the same transaction or subject of action; and any complaint founded on a tort may be amended so as to set forth instead a cause of action for a breach of contract arising out of the same transaction or subject of action.
I. Standard of Law
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988) . . . A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II. Discussion
The First Count of the defendant's Counterclaim dated March 5, 2009, alleges legal malpractice by the plaintiff. These claims involve the plaintiff's representation of the defendant in the dissolution of marriage. In the First Count the defendant agrees that the plaintiff's legal representation of the defendant were based on a written agreement dated and signed by the parties, on or about October 4, 2005 ("Engagement Letter"). The defendant argues that the plaintiff, in executing the Engagement Letter, agreed to represent the defendant in a "good and workmanlike manner, adhering to all rules of professional responsibility and meeting all applicable standards of care."
A review of the First Count reveals that the defendant's claim is that the plaintiff's fees were excessive and violate "applicable" Rules of Professional Responsibility. The defendant then alleges that the plaintiff breached the standards of care applicable for "divorce lawyers" in that the plaintiff:
A. Failed to secure evidence and documentation of his wife's assets;
B. Incurred over $20,000 of fees and costs to take depositions in the United Kingdom and never took a deposition and never obtained any information regarding the wife's assets;
C. Demonstrated no knowledge or ability to obtain financial information from the United Kingdom, despite holding herself out as competent in the field;
D. Billed excessive time on pointless telephone calls, in particular relating to financial discovery, but never succeeded in obtaining any information concerning his wife's assets in Europe; and
E. Billed over $400,000 and did not even begin to build the financial case.
The defendant claims that as a result of the plaintiff's negligence, he has incurred damages, including needless attorneys fees and the loss of the ability to discover all of his wife's financial matters.
The Second Count of the defendant's Counterclaim alleging a breach of contract repeats the identical allegations contained in the first eleven paragraphs of the First Count. The defendant then adds two additional paragraphs alleging: (1) that the relationship between the parties constituted a contract; and (2) that the plaintiff failed to provide legal services in a "good and workmanlike" manner.
The court begins its analysis with the observation that "[t]he interpretation of pleadings is always a question of law for the court. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985) . . ." (Citations omitted.) Jacques All Trades Corp. v. Brown, 33 Conn.App. 294, 302, 635 A.2d 839 (1993).
"Although ordinarily — indeed, in most cases — in reviewing a motion to strike, the court must take the plaintiff's allegations at face value, that rule is not absolute." Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001). When a defendant's liability to a plaintiff is premised, however, "on principles of tort law . . . the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint"; id.; and consequently a reviewing court may "pierce the pleading veil" to ensure that such is not the case. id., 263. Thus, in doing so, we look beyond the language used in the complaint to determine the true basis of the claim. Id.
Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007).
The question before this court is whether the allegations of the second count alleging a breach of contract set forth a claim in contract or in tort. The court believes the language of the second count, even when construed in the light most favorable to its preservation, is no more than a tort claim clothed in contract terms.
The court agrees with the plaintiff's argument that one may bring against an attorney an action sounding in both negligence and contract. See Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529-30, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). That does not mean, however, that "one may bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract." Caffery v. Stillman, 79 Conn.App. 192, 829 A.2d 881 (2003). The plaintiff's claim that the defendant promised to work in a "good and workmanlike manner" or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach. Id.
The first and second counts of the plaintiffs' complaint largely are identical. Both allege that the defendant failed to use reasonable care, skill and diligence in providing legal services in a good and workmanlike manner, causing the plaintiff injury and damages. The Second Count sounds in negligence, even though this breach of contract count additionally alleges only that "the relationship parties constituted a contract." See Weiner v. Clinton, 106 Conn.App. 379, 385, 942 A.2d 469 (2008).
"Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . ." (Internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984).
The plaintiff argues that General Statutes § 52-136 and Practice Book § 10-65 permit a claimant to amend its complaint to add a breach of contract count which arises from the same set of facts as a count which sounds in tort. The court disagrees. Section 52-136 and Practice Book § 10-65 allow the plaintiff to "alter" his claim from one theory of recovery to another, rather than to replicate another cause of action from an existing one. Allen v. Woodruff, 63 Conn. 369, 28 A. 532. In interpreting the predecessors to General Statutes § 52-136 and Practice Book § 10-65, the court in Allen v. Woodruff, supra, stated: "[C]omplaints founded on a tort may be amended so as to set forth instead a cause of action for a breach of contRact arising out of the same transaction or subject of action"; but this refers not to the addition of a new count, but to such an amendment of the statement of the cause of action as will make it a statement of another cause of action; this substituting a new cause for the original one, sounding differently, though founded on the same transaction." Id. 371-72.
See General Statutes § 1024 and Practice Book, page 18, chap. 6, § 1.
Accordingly, the court, in piercing the pleading veil, concludes that the plaintiffs' claim in the second count alleging a breach of contract is actually a count sounding in malpractice "masked in contract garb." Weiner v. Clinton, supra, 106 Conn.App. 386. The motion to strike the Second Count of the plaintiff's Counterclaim is granted.