Opinion
FSTCV166029393S
04-24-2017
Ana Maria Eder v. Gary I. Cohen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#108.00)
Kenneth B. Povodator, J.
BACKGROUND
This is a legal malpractice action, derived from an underlying marital dissolution action. In response to a single-count complaint alleging legal malpractice, the defendants have asserted six special defenses, and the plaintiff has moved to strike all of the special defenses.
The court will not recite in any detail the well-established standards for the granting of a motion to strike. Some of the factors/considerations going into the evaluation of this particular motion are that the court is limited to consideration of the grounds/bases actually asserted in the motion to strike, and the court is required to give the nonmoving party the benefit of all favorable inferences from well-pleaded factual allegations. As something of a corollary, the court is required to assume that counsel in asserting the special defenses, was in compliance with Practice Book § 4-2 (and the corresponding ethical obligations) requiring a good faith belief that the allegations potentially have or might have merit (" The signing of any pleading . . . shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it [and] that it is not interposed for delay . . .").
As further background/context, the court must note that the plaintiff has asserted 14 specifications of negligence, some highly fact-specific and some fairly broad and general in nature. Therefore, the question for the court is whether each of the defenses, to the extent that the defense has been challenged on specific grounds, might be appropriate as to at least one (or more) of these specifications.
Discussion
The first special defense that has been attacked is waiver and estoppel. The plaintiff correctly notes that waiver involves the intentional relinquishment of a known right. Estoppel is closely related, but generally requires some element of reliance--here, by the defendants.
The doctrines of estoppel and election of remedies both require the defendant to prove detrimental reliance. We have explained that any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . (Internal quotation marks and citation, omitted.) Dinan v. Patten, 317 Conn. 185, 197, 116 A.3d 275 (2015).
The court cannot find any reference in the special defense to reliance by the defendants nor can any reliance be inferred from the allegations or even the situation presented. Nonetheless, while indicative of the absence of rigor of the defenses, the court cannot parse a single defense and the plaintiff has not specifically alluded to this problem.
The court generally agrees with the plaintiff to the extent that there is an observation that implicit in most legal malpractice cases is that there was reliance by the client upon the attorney--to the extent that there was reliance upon the attorney with respect to a decision to agree to a settlement or judgment, the agreement to enter such settlement or judgment generally would/could not be a waiver or aspect of estoppel relating to the conduct of the attorney. However, some of the specifications of negligence could be related to possible waiver or estoppel by the plaintiff as client. The plaintiff has alleged that the defendant did not engage in appropriate discovery, and did not obtain a suitable expert--if the plaintiff had been involved in that decision-making process, e.g., based on cost, then in that particularized type of circumstance, there might be a viable claim of estoppel or waiver. Since facts provable under this defense might constitute a viable defense, the motion must be denied as to the first special offense.
The second special defense asserts contributory/comparative negligence. Similar to the attack on the first special offense, the plaintiff focuses on the general inapplicability of a claim of comparative/contributory negligence in the context of a " typical" situation in which the client relies upon the attorney. As noted above, there is the possibility of conduct that might have contributed to the situation about which the plaintiff complains. The defendants have the right to try to prove that a reasonable client in the plaintiff's position would not have acted as she did, e.g., because a reasonable client would not have followed the advice that had been given or that she had done something that prevented the attorney from giving appropriate advice. The motion must be denied as to the second defense.
The third special defense asserts an intervening or superseding cause. The defendant cites--correctly (if incompletely)-- Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), as having a controlling influence. In Barry, the court made it abundantly clear that it was reversing precedent to the extent that negligence previously had been susceptible of characterization as superseding or intervening cause for purposes of this type of defense. At that time, the court left open the issue of what types of aggravated conduct might still permit such a defense. A few years later, the court issued its decision in Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 971 A.2d 676 (2009), allowing aggravated conduct such as criminal conduct to be used for such a defense, with " unforeseeable intentional acts or crimes" as the benchmark (292 Conn. 262, 973 A.2d 1207). This approach was most recently applied by the Appellate Court in Snell v. Norwalk Yellow Cab, Inc. 172 Conn.App. 38 (April 4, 2017).
It is clear that the conduct alleged by the defendant in the special defense does not meet the standards. The specific " facts" alleged make this clear:
Specifically, Defendants bear no responsibility for the actions and conduct of the Plaintiff, the fact that she entered into the Settlement Agreement voluntarily, knowingly and willingly as well as her voluntary, knowing and willing acceptance and ratification of the Settlement of Agreement as set forth above or for the acts of the Plaintiff's ex-husband, his untruthfulness or deceit, or his failure to conform to the terms of the settlement, said conduct constituting the direct and proximate cause of Plaintiff's damages.
The claim of negligence by the plaintiff herself never could have constituted a superseding/intervening cause; at most, that might be comparative/contributory negligence. (The recurring theme--how many times do the defendants need to refer to the plaintiff's agreement to the terms of the settlement/judgment, under varying labels?) Her own conduct to the extent it is not alleged to have been negligent, similarly, could not be a superseding/intervening cause but rather, at most, might be a negation of proximate cause, not a special defense.
The allegations concerning her ex-husband's conduct at least focuses on a non-party actor, but likewise are clearly insufficient. Putting aside the question of whether the conduct is sufficiently egregious to get beyond the scope of negligence-type conduct (and the failure to conform to the terms of the agreement do not suggest anything approaching egregious conduct), there is nothing about a generic claim of untruthfulness or deceit by an ex-spouse in connection with marriage dissolution proceedings that comes close to satisfying the hurdle of unforeseeability, as articulated in Barry and Sullivan. All of the conduct of the ex-husband would be considered under an " ordinary" proximate cause analysis, without invocation of superseding/intervening cause. Therefore, the motion is granted as to this defense.
The fourth special defense, as amended, states:
Plaintiff's claims against Defendants are barred or diminished in whole or in part by her own conduct in agreeing to, under oath, the terms and conditions of her divorce Settlement Agreement, which constituted ratification of any and all transactions and dealings between her and her ex-husband. Said ratification occurred on July 16, 2014, at the Stamford Superior Court, before the Honorable Michael Shay, whereby Plaintiff was canvassed by Defendant Cohen and agreed to all terms and conditions of the agreement, which was affirmed and accepted by the Court.
As stated earlier, the court is bound to consider only the grounds asserted by the moving party, and in this case, the grounds asserted are analogous to those asserted with respect to the first special offense. Indeed, this special defense itself is largely if not wholly repetitious of the first special defense, especially to the extent that the first defense also incorporated a reference to ratification. However, assuming that this defense is repetitious of the first special defense, perhaps blended with incorporation of elements of the second special defense (still more repetition), being repetitious is not a basis for striking a defense.
A more serious concern, but not asserted by the plaintiff, is the non sequitur nature of this defense. Ratification by " agreeing to, under oath, the terms and conditions of her divorce Settlement Agreement, which constituted ratification of any and all transactions and dealings between her and her ex-husband" has nothing to do with whether there was negligence on the part of the defendants in their representation of the plaintiff or whether the plaintiff was harmed by the conduct of the defendants. Indeed, there is a question as to whether what the defendants describe as ratification truly is ratification. Ratification implies an act making something valid or binding:
As a general rule, [r]atification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account . . . Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances. (Internal quotation marks and citation, omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 561, 698 A.2d 245 (1997).
The presumed submission of a signed document already sufficed to make a binding agreement. Canvassing by the court may have added a level of assurance but did not create a binding quality of the agreement. The court, in adopting the agreement, created another layer of enforceability, in turn based on the court having canvassed the plaintiff to make sure she understood the terms of the agreement.
In sum, then, whatever reservations the court may have as to whether this defense adds anything, and despite the issue of whether the defendants actually have alleged something properly characterized as ratification (in the context of this case), procedurally the court cannot strike the defense based on the grounds set forth in the motion. Yet again, relying on the technical rules for a motion to strike, the motion as to this defense must be denied.
The fifth special defense asserts that the settlement agreement between the plaintiff and her ex-husband constitutes a release:
Plaintiff's claims against Defendant are barred or diminished in whole or in part to the extent Plaintiff released Defendants from liability including but not limited to the fact that she entered into the Settlement Agreement voluntarily, knowingly, and willingly as well as her voluntary, knowing and willing acceptance and ratification of the Settlement Agreement as set forth above.
The defendants correctly note that the motion to strike relies upon an analysis premised on a case discussing accord and satisfaction, which is a different concept. The plaintiff does assert that the settlement between the plaintiff and her ex-husband did not contain a release and cannot constitute a release--but that is a factual matter that is inconsistent with the allegation of this special defense. However implausible it might be, the court cannot assume facts such as the absence of language supporting a release in the settlement agreement. (Whether that might have ethical implications is another matter as well.)
Yet again, the defendants have recited the now-near-oppressive refrain that the plaintiff agreed to the terms of the settlement agreement. However, there is a somewhat open-ended quality to that assertion as part of a release--it is introduced by " including but not limited to." Since it is at least theoretically possible that the plaintiff said something during canvass by the court or that there was something in the settlement agreement, possibly capable of characterization as a release of claims against the defendants, the court must give the defendants the benefit of such a possibility. On a technical level, the motion to strike must be denied as to this special defense.
Finally, the sixth special offense alleges a failure of the plaintiff to mitigate her damages. The court agrees that Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991), and its progeny provide authority for the proposition that a defendant is not required to plead such a defense--but that does not make such a defense legally insufficient or otherwise prohibited. Analogous to a required special defense of comparative negligence, this defense tends to reduce the amount of damages that might otherwise be available. The burden is on the defendant to prove the defense, consistent with its kindred nature to a true special defense.
Appellate cases have recognized that a party may choose to allege affirmatively facts and claims that it is not required to allege, thereby potentially assuming the burden of proof on such a fact or claim; Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237-38, 520 A.2d 1008 (1987); Janow v. Ansonia, 11 Conn.App. 1, 8, 525 A.2d 966 (1987); and here, the burden already is on the defendant. Therefore, the motion is denied as to this defense.
Conclusion
The issue before the court is not whether the defendants have gone overboard in repeatedly saying the same thing--the plaintiff agreed to the settlement. The court is required to consider the legal sufficiency of each defense, and except for one, the plaintiff has not identified a valid basis for striking the defense. (That, of course, does not mean that each defense is legally distinct and valid.)
The court must note its concern as to the good faith nature of the assertion that the settlement agreement between the plaintiff and her ex-husband, as eventually adopted by the court in entering judgment, somehow constituted a release of part or all of a claim of malpractice against the defendants. The court suspects that the defendants sought to re-allege the defense already repeatedly alleged with different labels, but sought yet another formulation/label. The court recognizes the mantra that the plaintiff agreed to the terms of the settlement agreement--but a release is something else. " It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts . . ." Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 42, 929 A.2d 729 (2007). In other words, there must be something more than just the abandonment-type quality of a waiver--there must be something akin to an actual agreement or instrument. The defendants have alleged a release, and therefore the court is bound to assume a good faith basis for such an assertion.
For all of these reasons, the motion to strike is granted with respect to the claim of superseding/intervening cause; the motion is denied as to the remaining (largely duplicative) defenses.