Opinion
CV106002321.
12-24-2012
Nicholas EUELL v. Barry WARD.
UNPUBLISHED OPINION
MARTIN, J.
FACTS
On December 18, 2009, the plaintiff, Nicholas Euell, commenced the present action for legal malpractice and breach of contract by service of process upon the defendant, Barry Ward. In his two-count complaint, the plaintiff alleges that the defendant failed to file timely an action with the claims commissioner on his behalf regarding a sexual assault that the plaintiff suffered while incarcerated. Therefore, the plaintiff alleges he was barred from seeking recovery from the department of correction for his injuries. On October 7, 2011, the defendant filed a request for leave to amend his answer and special defenses. As to both counts of the complaint, the defendant asserts the following special defenses: comparative negligence, failure to exhaust administrative remedies and failure to mitigate damages. With respect to the second count, which alleges breach of contract, the defendant asserts that it is barred pursuant to Connecticut law.
On November 18, 2011, the plaintiff filed a motion to strike the amended special defenses and a memorandum of law in support. On December 7, 2011, the defendant filed a memorandum of law in opposition to the motion to strike, and a motion to dismiss the complaint for lack of subject matter jurisdiction, which the court, Martin, J., denied. The defendant filed a supplemental memorandum of law in opposition to the plaintiff's motion to strike on July 20, 2012. The court heard argument on the motion at short calendar on August 27, 2012.
DISCUSSION
" Whenever any party wishes to contest ... the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a)(5). " A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
" [I]t is fundamental that in determining the sufficiency of a complaint challenged by a ... motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).
The defendant argues that the plaintiff's motion to strike is a disguised request to revise seeking a more definite statement rather than testing the legal sufficiency of the special defenses. Nonetheless, this court will address the grounds that allegedly contest the legal sufficiency of the special defenses because a motion to strike is the proper vehicle to address legal sufficiency. See Practice Book § 10-39(a)(5).
In his first special defense, the defendant asserts that " [i]f the plaintiff sustained any injuries and/or damages as alleged in the complaint arising from the allegations that the defendant's actions prevented the opportunity to sue for damages relative to the assault described in the complaint, then those injuries and damages were proximately caused by the plaintiff's own negligence, or the negligence of his successor attorney, in failing to bring a civil action in either the United States District Court for the District of Connecticut or in the [s]tate of Connecticut Superior Court within the limitation of actions applicable to those causes of action; in that the plaintiff and/or his successor counsel failed to appeal the [c]laims [c]ommissioner's decision, seek a special act pursuant to the [c]laims [c]ommission statutes for matters which the plaintiff alleges were/are of significant public interest and importance, or, take other available steps afforded under said statute[s] ..." The defendant further alleges that " the plaintiff and/or his successor counsel negligently failed to file an action and/or complaint, thus preserving an action concerning the events of which the plaintiff complains; and, the plaintiff failed to take reasonable care for his own safety and wellbeing under the circumstances then and there existing."
The plaintiff argues that the defendant has failed to allege material and specific facts to support a civil rights claim, to support a claim that the department of correction and its agents acted with deliberate indifference, to support a claim that seeking a special act from the legislature would be allowed and to support a claim that the plaintiff failed to take reasonable care for his own safety. The plaintiff further argues that his successor counsel, Neil Johnson, is a necessary party, but the defendant has failed to implead Johnson. The defendant argues that his special defense of comparative negligence is legally sufficient because he specifies the available legal remedies that the plaintiff failed to pursue after terminating the defendant. The defendant argues that Johnson's conduct as successor counsel may be imputed to the plaintiff. The defendant further argues that with the court's permission he could implead Johnson any time before trial, but that he cannot be compelled to do so.
Practice Book § 10-53 provides: " If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies." " In situations where the claim of malpractice sounds in negligence ... the defense of comparative negligence should be made available." (Citation omitted.) Somma v. Gracey, 15 Conn.App. 371, 378, 544 A.2d 668 (1988).
As the plaintiff notes: " In the absence of impleading a third party based on a claim of negligence, the defendant cannot attempt to prove that another nonnegligent party is responsible [I]t is axiomatic that where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both ... The plaintiff had the right to choose either or both of two defendants to sue. If the defendant believed that a nonparty was responsible for some or all of the plaintiff's injuries, it was his responsibility to implead that nonparty." (Citation omitted; internal quotation marks omitted.) Amsden v. Fischer, 62 Conn.App. 323, 327, 771 A.2d 233 (2001). Nevertheless, as the defendant references in his memorandum of law in opposition: " The general rule is that the acts of an attorney are imputed to a client when they are performed in the furtherance of the business for which the attorney has been retained." (Internal quotation marks omitted .) Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 703, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).
" Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be ... inconsistent with equity and good conscience ... Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action] ... Necessary parties, in contrast, are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it ... [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 705-06 (2012).
In the present case, the defendant alleges in his first special defense that if the plaintiff suffered injuries, he was comparatively negligent in failing to pursue available legal remedies after terminating the defendant's representation. The negligent conduct alleged in the special defense relates to the failure to pursue alleged legal remedies that the plaintiff or Johnson could have pursued. Accordingly, the defendant has alleged facts sufficient to support his claim of comparative negligence. Any alleged negligent conduct attributable to Johnson may be imputed to the plaintiff. Johnson cannot be described as a necessary and indispensable party because the court can proceed to a complete and final judgment without him. The plaintiff's motion to strike special defense one is denied.
In his second special defense, the defendant asserts that " [t]he [s]econd [c]ount of the complaint is barred by Connecticut law pursuant to the decisions in Alexandru v. Strong, 81 Conn.App. 68 [837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004) ], and Caffery v. Stillman, 79 Conn.App. 192 [829 A.2d 881 (2003) ]." The plaintiff argues that the defendant " fails to allege specific facts to support the claim that the complaint is barred by Connecticut law." In his supplemental memorandum of law in opposition, the defendant counters that pursuant to the referenced case law a " breach of contract claim cannot be maintained against an attorney when that claim mirrors a legal malpractice claim for the same conduct."
In Alexandru v. Strong, supra, 81 Conn.App. at 69-70, the plaintiff sued the defendant attorney for, inter alia, legal malpractice and breach of contract related to the defendant attorney's representation of the plaintiff in a federal action regarding alleged sexual discrimination and retaliation. The Appellate Court agreed with the trial court's interpretation that the plaintiff's breach of contract claim was a restatement of her legal malpractice claim. Id., at 78. The Appellate Court, relying on its recent decision in Caffery v. Stillman, supra, 79 Conn.App. at 197, reasoned that " although one may bring against an attorney an action sounding in both negligence and contract ... one [cannot] 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." (Internal quotation marks omitted.) Alexandru v. Strong, supra, 81 Conn.App. at 79.
In the present case, the plaintiff has brought suit for legal malpractice in count one and breach of contract in count two. The plaintiff incorporates most of the allegations from the legal malpractice claim into the breach of contract claim. Consistent with the facts alleged in the complaint, it may be implied from the defendant's second special defense that he is asserting the plaintiff does not have a claim for breach of contract because count two is a negligence claim couched in contract terms. See Coe v. Board of Education, supra, 301 Conn. at 117 (" [F]acts necessarily implied from the allegations are taken as admitted." [Internal quotation marks omitted.]). Reading the facts alleged in the complaint and the implied facts from the special defense broadly and realistically, the defendant has asserted a legally sufficient special defense. Accordingly, the plaintiff's motion to strike the second special defense is denied.
In the third special defense, the defendant asserts that " [t]he plaintiff failed to exhaust his administrative remedies and his complaint is therefore barred." In his fourth special defense, the defendant asserts that " [t]he plaintiff has failed to mitigate his alleged damages." The plaintiff argues that the defendant's third and fourth special defenses fail to contain statements of material facts upon which the defendant relies to support the alleged claims. The defendant counters that both special defenses are legally sufficient.
" No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50. " Several Superior Court cases have held that a defendant's failure to specially allege facts in support of a special defense is a ground for that defense to be stricken ... In Senise v. Merritt Seven Venture, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 02 0397413 (February 17, 2006, Rodriguez, J.) (40 Conn. L. Rptr. 770, 771), the defendant asserted a special defense that simply stated: ‘ The claims set forth in the third party's complaint are barred by the doctrine of laches.’ The court granted the plaintiff's motion to strike that special defense because no facts were pleaded to support the elements of the defense. Id. The court stated that ‘ [e]xplicit in [Practice Book § 10-50] is that a party pleading a special defense must plead facts, consistent with the special defense that they are alleging.’ " (Citations omitted.) People's United Bank v. Wetherill Associates, Superior Court, judicial district of Hartford, Docket No. CV 09 6005763 (January 4, 2011, Robaina, J.) (51 Conn. L. Rptr. 377, 384). In People's United Bank v. Wetherill Associates, supra, 51 Conn. L. Rptr. at 384, the court reasoned that " [b]ased the requirements of Practice Book §§ 10-1 and 10-50, it may be inferred that a party must always plead facts when it asserts a special defense and that it may not merely state that such facts are scattered throughout another pleading ..."
" A deficiency in a pleading cannot be cured by reference to another." Id. In the present case, the third and fourth special defenses are legal conclusions, unsupported by any recitation of alleged facts. See Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011) (" 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.]). The defendant cannot rely on his arguments in prior memoranda of law to support his special defenses; the defendant must specially allege facts to support his claims that the plaintiff failed to exhaust his administrative remedies and failed to mitigate his damages. Accordingly, the defendant's third and fourth special defenses are legally insufficient and must be stricken.
CONCLUSION
Based on the foregoing reasons, the plaintiff's motion to strike is denied as to the first and special second defenses. The plaintiff's motion to strike is granted as to the third and fourth special defenses.