Opinion
HHDCV166068019S
02-21-2017
Robley T. Leth v. Halloran & Sage, LLP et al
UNPUBLISHED OPINION
CORRECTED MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE #113
Cesar A. Noble, J.
This action arises out of a dispute between the plaintiff, Robley T. Leth, and the defendants, Halloran & Sage, LLP and Lawrence Weisman, regarding the defendants' legal representation of the plaintiff in connection with certain real estate transactions and the formation of certain corporate entities. Presently before the court is a motion jointly filed by the defendants, which seeks to strike various counts of the plaintiff's complaint and also seeks to strike certain portions of her prayers for relief. For the reasons set forth herein, the defendants' motion is granted in its entirety.
This memorandum will refer to Halloran & Sage, LLP and Lawrence Weisman collectively as the " defendants." Additionally, the defendants will be individually referred to as Halloran & Sage, LLP and Weisman.
I
FACTS AND PROCEDURAL HISTORY
For purposes of the present motion, the following facts as alleged in the plaintiff's complaint are accepted as true. In late 2004 and early 2005, the defendants represented the plaintiff in connection with her purchase of certain real estate located at 42 and 44 Compo Mill Cove in Westport (Cove properties); the plaintiff alleges that Weisman still is or was an attorney practicing law at Halloran & Sage, LLP during all relevant time periods. At the time that this real estate transaction took place, the plaintiff was married to Peter Romano, who happened to have a " personal friendship and business relationship" with Weisman.
On or about January 31, 2005, Weisman took title to the Cove properties as trustee for the plaintiff. Thereafter, on or about April 26, 2005, Weisman sent Romano a letter together with a quitclaim deed, which transferred the Cove properties from himself, as trustee, to Romano and the plaintiff as joint tenants with rights of survivorship; the plaintiff alleges that this was an unauthorized transfer and that she was essentially unaware of its occurrence. Indeed, she alleges that " Weisman never disclosed the unauthorized deed to [her], despite several occasions when he should have done so." Moreover, the letter that Weisman sent to Romano indicated that " I think this is the best way to address the problem you are trying to solve" and that Romano should " put the deed in a safe place for future reference . . . [and] when you are ready to make the property transfer, all you had to do is record the deed."
At some point in January of 2007, the defendants again represented the plaintiff in connection with the formation of Compo Cove, LLC, which was formed to take title to the Cove properties. During the formation of this limited liability company, Weisman failed to disclose the existence of the April 26, 2005 deed. The plaintiff claims that, had she known about the April 26, 2005 deed in January of 2007, she would not have had Weisman transfer the Cove properties to Compo Cove, LLC, which was an entity in which Romano would have a financial and membership interest. Subsequently, on or about March 29, 2007, Weisman, acting as trustee, executed a quit claim deed that conveyed the Cove properties to Compo Cove, LLC.
While forming the Compo Cove, LLC and handling the real estate transfer associated with that corporate entity, the plaintiff and Romano, in February of 2007, purchased commercial real estate located at 19 Ketchum Street in Westport (Ketchum property). In May of 2007, the defendants again represented the plaintiff in connection with the formation of another limited liability company, 19 Ketchum Street, LLC. Similar to Compo Cove, LLC, the 19 Ketchum Street, LLC was formed for the purpose of taking title to the Ketchum property. Again, the plaintiff alleges that, had she known of the April 26, 2005 deed, " which was still being intentionally or negligently concealed from her, " she would not have formed 19 Ketchum Street, LLC with Romano. Indeed, had she known about the April 26, 2005 deed, she would not have had any Halloran & Sage, LLP attorney perform any legal work in connection with the 19 Ketchum Street, LLC entity.
At some point after the formation of 19 Ketchum Street, LLC, the plaintiff and Romano began to have disagreements over the management of the Ketchum property, related financial issues, and whether the Ketchum property should be sold. The difficulties associated with 19 Ketchum Street, LLC ultimately caused the plaintiff to accumulate losses of over $500,000 and, in order to resolve her disagreements with Romano, she commenced an action to dissolve 19 Ketchum Street, LLC. Thereafter, in September of 2013, Romano commenced a dissolution action against the plaintiff. In connection with this dissolution action, the plaintiff's attorneys requested that Weisman provide them with a copy of Halloran & Sage, LLP's file on Compo Cove, LLC. The plaintiff claims that the file provided to them failed to contain the April 26, 2005 deed or the letter that Weisman sent to Romano in connection with that deed. The existence of the April 26, 2005 deed was finally brought to the plaintiff's attention in October of 2013, when the attorney representing Romano provided her with a copy.
As alleged by the plaintiff's present complaint, under the terms of the prenuptial agreement between her and Romano, jointly owned property was to be divided equally in the event of a divorce. In connection with the dissolution action, the attorney representing Romano claimed that the Cove properties, which had seemingly been conveyed to the plaintiff and Romano as joint tenants with rights of survivorship by operation of the April 26, 2005 deed, were jointly owned properties. Romano's attorney asserted that his client was entitled to one-half of the value of the Cove properties. The plaintiff's position during the dissolution action was that the Cove properties were actually owned by Compo Cove, LLC and, under the terms of the prenuptial agreement, Romano was only entitled to 4.78 percent of Cove properties' value. Ultimately, Romano and the plaintiff settled the dissolution action without a trial, but the plaintiff was required to pay " Romano far more than he was entitled to for the Cove properties under the terms of the prenuptial agreement . . . all as a result of the existence of the unauthorized deed."
Based on the foregoing, the plaintiff commenced this action against the defendants by service of process on March 30, 2016, alleging: legal malpractice against Weisman in count one; legal malpractice against Halloran & Sage, LLP in count two; breach of fiduciary duty as counsel against Weisman in count three; breach of fiduciary duty as counsel against Halloran & Sage, LLP in count four; breach of fiduciary duty as trustee against Weisman in count five; breach of fiduciary duty against Halloran & Sage, LLP regarding agent-Weisman's actions as trustee in count six; fraudulent nondisclosure against Weisman in count seven; fraudulent nondisclosure against Halloran & Sage, LLP in count eight; violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., by Weisman in count nine; violations of CUTPA by Halloran & Sage, LLP in count ten; negligent infliction of emotional distress by Weisman in count eleven; and negligent infliction of emotional distress by Halloran & Sage, LLP in count twelve. The plaintiff requests the following in her prayer for relief: (i) actual and compensatory damages; (ii) punitive damages as to the third, fourth, fifth, sixth, seventh, and eighth counts; (iii) punitive damages, pursuant to General Statutes § 42-110g(a), as to the ninth and tenth counts; (iv) attorneys fees and costs, pursuant to General Statutes § 42-110g(d), as to the ninth and tenth counts; (v) statutory interest; and (vi) any other relief in which law or equity may appertain.
On August 31, 2016, the defendants jointly filed a motion (#113), along with an accompanying memorandum of law (#114), seeking to strike counts seven through twelve of the plaintiff's complaint and paragraphs 3 through 5 of the plaintiff's prayer for relief. The plaintiff, on September 23, 2016, timely filed her objection to the defendants' motion (##118 and 119), to which the defendants replied on October 14, 2016 (#126). The matter was argued before this court during the October 24, 2016 short calendar. Additional factual allegations will be included as necessary.
II
DISCUSSION
A
Standard of Review
The principles of law governing this court's review of the defendants' motion to strike are well established. " 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); see also Practice Book § 10-39(a)(1). " [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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " 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, 63 A.3d 940 (2013). Additionally, " Practice Book [§ 10-39] . . . allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998); see also Practice Book § 10-39(a)(2).
B
Counts Seven & Eight--Fraudulent Nondisclosure
The defendants claim that the fraudulent nondisclosure counts contained in counts seven and eight are insufficient as a matter of law based on the ground that those counts fail to allege that Weisman intended to induce the plaintiff to act to her detriment. Specifically, the defendants argue that the complaint is devoid of any allegations that Weisman intended to cause the plaintiff to act to her detriment by allegedly concealing the April 26, 2005 deed from her. Moreover, the defendants argue that the plaintiff's conclusory allegations that Weisman acted " intentionally" and " deliberately" fail to satisfy the heightened pleading standard for claims alleging fraud. In response, the plaintiff argues that the complaint expressly alleges conduct sufficient to satisfy the requisite level of intent and, even if not expressly alleged, such could be inferred from the pleadings.
Fraudulent nondisclosure is a species of fraud. Duart v. Department of Correction, 303 Conn. 479, 498 n.17 34 A.3d 343 (2012). " Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action . . . The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment . . . Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak . . . A lack of full and fair disclosure of such facts must be accompanied by an intent or expectation that the other party will make or will continue in a mistake, in order to induce that other party to act to her detriment ." (Citations omitted; emphasis added.) Gelinas v. Gelinas, 10 Conn.App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987), overruled on other grounds by Billington v. Billington, 220 Conn. 212, 222, 595 A.2d 1377 (1991); accord Saggese v. Beazley Co. Realtors, 155 Conn.App. 734, 752-53, 109 A.3d 1043 (2015).
As consistently recognized, " [i]t is . . . true that, under certain circumstances, there may be as much fraud in a person's silence as in a false statement . . . Mere nondisclosure, however, does not ordinarily amount to fraud . . . It will arise from such a source only under exceptional circumstances . . . To constitute fraud on that ground, there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . To be actionable for fraud, the nondisclosure must be by a person intending or expecting thereby to cause a mistake by another to exist or to continue, in order to induce the latter into or refrain from entering into a transaction ." (Citations omitted; emphasis added.) Egan v. Hudson Nut Products, Inc., 142 Conn. 344, 347-48, 114 A.2d 213 (1955); accord DiMichele v. Perrella, 158 Conn.App. 726, 731, 120 A.3d 551, cert. denied, 319 Conn. 927, 125 A.3d 203 (2015).
" A duty to disclose will arise if the parties share a special relationship." (Internal quotation marks omitted.) DiMichele v. Perrella, supra, 158 Conn.App. 732. Indeed, " an attorney-client relationship imposes a fiduciary duty on the attorney . . ." Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d 724 (1998). The existence of a duty to speak, however, does not fully address the issue presented by the parties' memoranda of law. Notably, the defendants argue that the plaintiff's complaint is legally insufficient because it is devoid of any allegations that Weisman intended to cause the plaintiff to act to her detriment by allegedly concealing the April 26, 2005 deed. Because appellate authority has consistently required that nondisclosure be accompanied by an intent to deceive for the purpose of inducing detrimental reliance; see, e.g., Egan v. Hudson Nut Products, Inc., supra, 142 Conn. 347-48 (nondisclosure must be by person intending or expecting to cause mistake or continue mistake in order to induce other to act); Saggese v. Beazley Co. Realtors, supra, 155 Conn.App. 752-53 (same); DiMichele v. Perrella, supra, 158 Conn.App. 731 (same); Gelinas v. Gelinas, 10 Conn.App. at 173 (same); to state legally sufficient claims against the defendants, the plaintiff must sufficiently allege an intent to deceive.
Moreover, the plaintiff does not oppose the defendants' motion to strike on the ground that different standards would apply based on the fact that her claim is one premised on fraudulent nondisclosure. Indeed, she relies on the same elements for fraud in arguing that she sufficiently pleaded viable causes of action for fraudulent nondisclosure. See plaintiff's memorandum of law, p. 5.
The plaintiff has failed to sufficiently allege that the defendants acted with the requisite deceptive intent in order to induce the plaintiff to act to her detriment. The substance of paragraphs 40 through 47 of count seven generally allege that Weisman had a duty to disclose the existence of the April 26, 2005 deed, but that he " intentionally and deliberately" failed to disclose its existence. Although these paragraphs allege that Weisman acted intentionally or deliberately, they fail to allege that his intent or expectation was to cause the plaintiff to rely on his conduct, thereby inducing her to act to her detriment. See, e.g., Egan v. Hudson Nut Products, Inc., supra, 142 Conn. 347-48; Gelinas v. Gelinas, supra, 10 Conn.App. at 173. Moreover, such a deceptive intent is not necessarily implied or inferred from the plaintiff's allegations that Weisman had a " personal and business relationship" with Romano, or from Weisman's alleged correspondence with Romano regarding the April 26, 2005 deed.
Count seven also incorporates by reference the general allegations contained in paragraphs 1 through 39. These paragraphs also fail to allege the requisite deceptive intent to state a cognizable claim for fraudulent nondisclosure. Similarly, paragraphs 40 through 47 of count eight, directed at Halloran & Sage, LLP, make the same substantive allegations of count seven, with the only difference being that Weisman acted as Halloran & Sage, LLP's agent. Moreover, the parties advance the same arguments with respect to count eight.
Accordingly, the plaintiff's allegations in counts seven and eight are legally insufficient and, therefore, the defendants' motion to strike must be granted.
As previously noted, count eight alleges the same substantive conduct for purposes of the present motion, and the parties advance the same arguments regarding count eight.
C
Counts Nine & Ten--CUTPA
In moving to strike the alleged CUTPA violations contained in counts nine and ten, the defendants argue that such claims are legally insufficient because the claims fail to relate to the " entrepreneurial aspects" of the practice of law. Specifically, they argue that the allegation that Weisman failed to disclose the existence of the April 26, 2005 deed relates to his representation of the plaintiff. Moreover, the defendants argue that the plaintiff's allegations do not allege that the defendants failed to disclose the existence of the deed with the intent or motive to retain her as a client. Although the plaintiff agrees that only the entrepreneurial aspects of the practice of law are covered by CUTPA, she relies on decisions from the Superior Court to argue that the defendants' conduct was employed to retain her as a client. Specifically, she posits that the " fraudulent nondisclosure" of the April 26, 2005 deed was taken for the purpose of retaining her as a client in subsequent real estate and corporate transactions and to prevent her from bringing an action against the defendants.
General Statutes § 42-110b(a) provides that " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Although our Supreme Court has held that the profession of law is not totally shielded from CUTPA's application; Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520-21, 461 A.2d 938 (1983); the act's coverage extends only to the " entrepreneurial aspects" of the practice of law. See, e.g., Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 79. As noted by our Supreme Court, " [o]ur CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). " The 'entrepreneurial' exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities--advertising and bill collection, for example . . . It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability. Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature." (Citation omitted.) Id., 782.
" 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." (Citation omitted; emphasis added; internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 674, 874 A.2d 798 (2005), citing Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 656, 850 A.2d 145 (2004). When determining whether the plaintiff's allegations fit within the " entrepreneurial exception, " a court " must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a [legal] malpractice claim recast as a CUTPA claim." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
Moreover, in the wake of Haynes and its progeny, some judges of the Superior Court have attempted to more clearly define the " entrepreneurial aspects" of the practice of law, stating that " [t]he entrepreneurial aspects of legal practice are those related to: how the price of legal services is determined, billed and collected and the way a law firm obtains, retains, and dismisses clients." (Emphasis added; internal quotation marks omitted.) Hurowitz v. Garbinski, Superior Court, judicial district of New Haven, Docket No. CV-14-6048288-S (October 1, 2015, Nazzaro, J.) (61 Conn.L.Rptr. 56, 57, ); see also Kegeles v. Bergman, Horowitz & Reynolds, P.C., Superior Court, judicial district of New Haven, Docket No. CV-96-0391439-S (November 24, 1999, Levin, J.) (26 Conn.L.Rptr. 22, 24, ).
Although our appellate courts have held that conduct designed to obtain a client is entrepreneurial; see, e.g., Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 656, 850 A.2d 145 (2004); Anderson v. Schoenhorn, 89 Conn.App. 666, 674, 874 A.2d 798 (2005); this court is unaware of governing appellate authority expressly holding that conduct designed to retain a client is entrepreneurial in nature. Notably, unlike conduct designed to obtain a client, it is difficult to parse conduct designed to retain a client from conduct connected to an attorney's duty of robust representation. See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35, 699 A.2d 964 (1997) (" We have held that it is important not to interfere with the attorney's primary duty of robust representation of the interests of his or her client . . . This public policy consideration requires us to hold that CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering--that is, the representation of the client in a legal capacity--should be excluded for public policy reasons." [Citation omitted; internal quotation marks omitted.]) Judge Nazzaro's decision in Hurowitz v. Garbinski, Superior Court, judicial district of New Haven, Docket No. CV-14-6048288-S (October 1, 2015, Nazzaro, J.) (61 Conn.L.Rptr. 56, ), like many other cases attempting to more clearly define such " entrepreneurial aspects, " cites to Judge Levin's decision in Kegeles v. Bergman, Horowitz & Reynolds, P.C., Superior Court, judicial district of New Haven, Docket No. CV-96-0391439-S (November 24, 1999, Levin, J.) (26 Conn.L.Rptr. 22, ), for this characterization of " entrepreneurial aspects." Judge Levin's decision, in turn, provided the " entrepreneurial aspects" characterization in a parenthetical to a citation to the Washington Supreme Court's decision in Eriks v. Denver, 118 Wash.2d 451, 464, 824 P.2d 1207 (1992), which was favorably cited by our Supreme Court in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 36, 699 A.2d 964 (1997).
This court agrees with the defendants that the underlying nature of the plaintiff's allegations relate to the defendants, ' specifically Weisman's, representation of the plaintiff, not the entrepreneurial aspects of the practice of law. Notably, paragraph 52 of count nine alleges that " Weisman, in furtherance of and to maintain [his] personal and business relationship with Romano, did one or more of the following, each of which constitutes an immoral, oppressive, or unscrupulous business practice . . ." That paragraph sets forth various subparagraphs detailing how Weisman either failed to disclose certain actions or acted in ways that were arguably contrary to the plaintiff's interests, which ultimately placed his and Romano's financial interests above the plaintiff's. Each of these allegations relate to how Weisman represented the interests of the plaintiff, or did not represent them, during the relevant real estate and corporate transactions. Thus, the essence of the plaintiff's allegations are that, based on either negligent or intentional conduct, " [Weisman] and [Halloran & Sage, LLP] might have deviated from the standards of their profession" while representing the plaintiff. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 782.
Paragraph 52 of count ten, directed against Halloran & Sage, LLP, similarly provides that " Weisman, as the agent of [Halloran & Sage, LLP], in furtherance of and to maintain [his] personal and business relationship with Romano, which benefitted Weisman and [Halloran & Sage, LLP] did one or more of the following, each of which constitutes an immoral, oppressive, or unscrupulous business practice . . ."
Subparagraphs (a) through (m) of paragraph 52 for count nine provide the following:
(a) He failed to inform the plaintiff of the substance of his actions and communications regarding Compo Cove; (b) He transmitted a deed to the Cove properties to Romano without the knowledge or consent of the plaintiff; (c) He concealed from the plaintiff that he transmitted a deed to the Cove properties without the plaintiff's knowledge or consent; (d) He failed to inform the plaintiff that he had transmitted the unauthorized deed to Romano; (e) He executed and recorded the deed from himself, as trustee, to the Cove LLC, after having already executed and transmitted the unauthorized deed to Romano; (f) He, or one of the [Halloran & Sage, LLP] attorneys at his direction, organized the Cove LLC for the purpose of taking title to the Cove properties, without disclosing to the plaintiff that the unauthorized deed had already been executed and transmitted to Romano for the Cove properties; (g) Once a dispute arose in the divorce action concerning the membership interests of the plaintiff and Romano in the Cove LLC, he still failed to disclose to the plaintiff the unauthorized deed and his execution and transmission thereof to Romano; (h) He never disclosed to the plaintiff his August 26, 2005 letter advising Romano that he should " put the deed in a safe place for future reference. Then when you are ready to make the property transfer, all you have to do is record the deed"; (i) He failed to timely disclose to the plaintiff that he had a conflict of interest in representing the plaintiff in connection with the Cove LLC; (j) He continued to fraudulently conceal from the plaintiff the unauthorized deed, as well as multiple causes of action that would stem from the making and nondisclosure of the unauthorized deed and transmission of the unauthorized deed to Romano; (k) When the plaintiff, through divorce counsel, requested the full Compo Cove file in October of 2013, Weisman failed to produce the full file, omitting the unauthorized deed and accompanying correspondence to Romano, and failed to tell the plaintiff about the unauthorized deed at that time as well; (l) He engaged in actions that put his financial and commercial interests above those of the plaintiff; and (m) He engaged in actions that put the financial and commercial interests of Romano above those of the plaintiff, for reasons that would ultimately lead to his own gain. The relevant portions of count ten restate the same substantive allegations, with the only differences being that the plaintiff alleges that Weisman, as Halloran & Sage, LLP's agent, engaged in the abovementioned conduct or that Halloran & Sage, LLP placed its interests or Romano's interests above the plaintiff's.
Moreover, the plaintiff specifically directs this court's attention to paragraph 22 of the complaint, which provides in relevant part that " [h]ad the plaintiff known of the unauthorized deed, which was still being intentionally or negligently concealed from her, she would not have entered into the formation of [the Ketchum Street LLC] company with Romano; nor would she have had any attorney at [Halloran & Sage, LLP] perform legal work in connection with Ketchum LLC ." (Emphasis added.) Although such allegations, along with those contained in counts seven and nine, might suggest a deviation from professional obligations, they fail to allege that the defendants, specifically Weisman, acted in such a way as a means to retain the plaintiff as a client. See Hurowitz v. Garbinski, supra, 61 Conn.L.Rptr. 57, (entrepreneurial aspects of legal practice are those related to, inter alia, " the way a law firm . . . retains " clients); Kegeles v. Bergman, Horowitz & Reynolds, P.C., supra, 26 Conn.L.Rptr. 24, (same). Assuming that a CUTPA violation could be premised on an attorney's conduct that was designed to retain a client; see footnote 5 of this memorandum; the most that the complaint alleges is that the plaintiff would not have had the defendants assist her with the formation of Ketchum Street, LLC had she known about the April 26, 2005 deed. Indeed, decisions of the Superior Court have required that a complaint premised on similar conduct make such an allegation. See, e.g., Hurowitz v. Garbinski, supra, 61 Conn.L.Rptr. 58, (plaintiff alleged that " defendants made false representations to secure his business"); Tracey v. Still, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-4001883 (March 23, 2006, Stevens, J.) (41 Conn.L.Rptr. 101, 104, ) (revised count alleged " solicitation" of client based on misrepresentations pertaining to his preparation to provide legal services " in order to secure deceptively the client's business"); Stevenson v. McMillan, Superior Court, judicial district of Fairfield, Docket No. CV-04-409731-S (February 24, 2005, Skolnick, J.) (38 Conn.L.Rptr. 788, 788, ) (defendant was alleged to have misrepresented expertise and competence in certain areas of law so as to induce plaintiff into retaining him as counsel). The plaintiff's complaint neither alleges this essential motive, nor is such a motive necessarily implied from the plaintiff's allegations.
Count nine incorporates by reference the fraudulent nondisclosure allegations of count seven, which, in turn, incorporate paragraphs 1 through 39 of the general allegations.
As alleged, the Ketchum Street, LLC was formed in May of 2007, which is after the " unauthorized" April 26, 2005 deed.
For the foregoing reasons, the defendants' motion to strike count nine is granted. Because the parties advance the same arguments as to both defendants, and Weisman's conduct serves the principal basis for the plaintiff's CUTPA claim against Halloran & Sage, LLP in count ten, the defendants' motion to strike count ten is granted for the same abovementioned reasons.
To the extent that the plaintiff argues that the defendants' conduct was designed " to prevent her from bringing an action against them" and, therefore, violated CUTPA, the plaintiff fails to provide any legal authority for that proposition. Regardless, such conduct, even if true, fails to relate to the " entrepreneurial aspects" of the profession of law.
D
Counts Eleven & Twelve--Negligent Infliction of Emotional Distress
The defendants principally argue that the negligent infliction of emotional distress claims contained in counts eleven and twelve should be stricken because the plaintiff fails to allege that Weisman should have foreseen that his behavior would likely cause the plaintiff to suffer emotional distress likely to lead to illness or bodily harm. In other words, the plaintiff fails to sufficiently allege the " foreseeability element" of such a claim. The defendants also argue that, absent an allegation that Weisman knew about the terms of the plaintiff's prenuptial agreement with Romano, there can be no claim that he foresaw emotional distress arising from his conduct connected with the April 26, 2005 deed, which was used as leverage in the 2013 divorce proceedings. Additionally, the defendants argue that, as pleaded, the plaintiff's negligent infliction of emotional distress claims are predicated on economic loss, which cannot serve as the basis for her emotional distress. The plaintiff, in opposing the defendants' motion, argues that she has sufficiently pleaded claims of negligent infliction of emotional distress, that the defendants' argument would impose a higher burden on the plaintiff than required by our rules of practice, and that she alleges noneconomic injuries flowing from the defendants' conduct.
" In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978), [our Supreme Court] held that, in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff 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.' Id., 345 . . ." (Internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001). As further clarified by our appellate courts, " to prevail on such a claim, a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm ." (Citations omitted; emphasis added.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748 (2005), cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005); accord Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010). " In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found . . ." (Emphasis added; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).
The court begins by addressing the defendants' third argument, which is that the gravamen of the plaintiff's emotional distress is economic loss flowing from the defendants' conduct. As a general matter, the court agrees with the defendants that Connecticut courts have not recognized claims for negligent infliction of emotional distress premised on economic loss or damage to property. See, e.g., Costello v. Yale-New Haven Health Services Corp., 161 Conn.App. 600, 604, 128 A.3d 607 (2015) (affirming decision to strike negligent infliction of emotional distress claim predicated on loss of decedent's rings); Myers v. Hartford, 84 Conn.App. 395, 402-03, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004) (common law has never recognized right to sue individual for negligent infliction of emotional distress resulting from injury to property such as pet); Grimaldi v. Paggioli, Superior Court, judicial district of Tolland, Docket No. CV-10-6002028-S (January 20, 2012, Sferrazza, J.) (2012 WL 447637, at *3) (" [T]he court cannot award damages for economic losses which caused the emotional distress, but only for such economic expenses which resulted from the emotional harm." [Emphasis in original.]); Gorcenski v. Home Selling Team, LLC, Superior Court, judicial district of Tolland, Docket No. CV-07-5001872-S (December 20, 2007, Sferrazza, J.) (44 Conn.L.Rptr. 655, 655, ) (" Economic damage, standing alone, generates no compensable claim for negligent infliction of emotional distress").
Nonetheless, courts have also drawn a distinction between emotional distress flowing from damage to property or economic loss, and emotional distress arising from separate and independent bases. See, e.g., Duffy v. Wallingford, 49 Conn.Supp. 109, 121-22, 862 A.2d 890 (2004) (plaintiffs' allegations were " not only that their property was damaged, but also that they suffered physical discomfort and annoyance as a result of the presence of the sewage in their house"). Moreover, some courts have even suggested that a negligent infliction of emotional distress claim may be predicated on legal malpractice that causes emotional distress. For example, in Giovanelli v. Cantor, Gross, Kelly & Sacamore, Superior Court, judicial district of New Haven, Docket No. CV-07-5010641-S (January 30, 2008, Robinson, J.) (44 Conn.L.Rptr. 802, 803, ), the defendants were alleged to have provided negligent legal representation that resulted in the loss of the plaintiffs' home. The court held that " [t]hough this action arises from the legal representation provided by the defendants to the plaintiffs, this court cannot conclude, as a matter of law, that the negligent infliction of emotional distress claim is insufficient." Id. In denying the defendants' motion to strike, the court simply focused on whether the plaintiffs' allegations met the required elements for generally pleading a viable cause of action. Id., 804, . Thus, although our appellate courts have not yet weighed in on the issue, decisions from the Superior Court support the viability of a negligent infliction of emotional distress claim predicated on alleged legal malpractice that ultimately causes economic or property loss. See also Burns v. Grudberg, judicial district of New Haven, Docket No. CV-15-6051882-S (August 20, 2015, Wilson, J.) (2015 WL 5626361, at *12-13).
Notwithstanding the defendants' arguments to the contrary, the plaintiff's causes of action in counts eleven and twelve do not stem solely from an alleged economic loss. Notably, the plaintiff incorporates by reference the third (breach of fiduciary duty as counsel), fifth (breach of fiduciary duty as trustee), and seventh counts (fraudulent nondisclosure) into count eleven. Count twelve similarly incorporates by reference the allegations contained in the fourth (breach of fiduciary duty as counsel), sixth (vicarious liability for breach of fiduciary duty), and eighth counts (fraudulent nondisclosure). Paragraph 60 of count eleven and paragraph 59 of count twelve allege that the defendants' conduct was the cause of the plaintiff's emotional distress. In other words, when read broadly and favorably to the plaintiff, the complaint alleges that the defendants' conduct, that is, the alleged breach of their fiduciary obligations and/or fraudulent nondisclosure, caused her emotional distress, not simply that she was required to pay more money due to the defendants' conduct. Indeed, this is the exact argument advanced by the plaintiff. Although the plaintiff fails to provide the court with any legal authority supporting this proposition, her argument is similar to the negligent infliction of emotional distress claims predicated on legal malpractice that were addressed by the court in Giovanelli and Burns . Thus, the plaintiff's claims are not solely predicated on an economic loss, as argued by the defendants. The defendants' motion to strike, based on their claim that the plaintiff's emotional distress is predicated on economic loss, must therefore be denied.
It should be noted that the plaintiff's legal malpractice claims are not incorporated by reference into counts eleven and twelve.
See plaintiff's memorandum of law in support of her objection, p. 14.
The defendants' argument is limited to the fact that the plaintiff's negligent infliction of emotional distress claims are based solely on economic loss. Thus, they do not argue that a claim of negligent infliction of emotional distress could not, as a matter of law, be based on claims of breach of fiduciary duty and/or fraudulent nondisclosure, as argued by the plaintiff.
Denying the defendants' motion on these narrow grounds, however, does not end the court's inquiry. As argued by the defendants, a plaintiff bringing a claim for negligent infliction of emotional distress must plead that the defendant(s) should have foreseen harm of a specific nature. Perodeau v. Hartford, supra, 259 Conn. 754; Stancuna v. Schaffer, supra, 122 Conn.App. 490; Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 5. The plaintiff's complaint fails to adhere to this more specific pleading requirement imposed by our appellate courts for claims of negligent infliction of emotional distress. Specifically, paragraph 58 of count eleven simply provides that " the plaintiff's distress was foreseeable, " and paragraph 59 provides that the emotional distress was severe enough that it could have resulted in illness. Thus, counts eleven and twelve are legally insufficient. See, e.g., Noon v. Brencher, Superior Court, judicial district of New Haven, Docket No. CV-09-6003694-S (June 12, 2012, Young, J.) (2012 WL 2855799, at *9) (negligent infliction emotional distress claim insufficiently pleaded because claim failed to specifically allege that defendant-lawyer and firm " knew or should have realized that [their] conduct involved an unreasonable risk of causing emotional distress . . . [which] might result in illness or bodily harm"); Tabacco v. Vitrano, Preleski & Wynne, LLC, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-08-5026131-S (February 15, 2011, Shapiro, J.) (2011 WL 925432, at *9) (" The plaintiff does not allege the foreseeability of the precise nature of the harm which was known or should have been anticipated by [the defendant]." [Emphasis added.]) Accordingly, the defendants' motion to strike counts eleven and twelve is granted.
This court is unpersuaded by the defendants' second argument that the complaint is legally insufficient because it fails to allege that Weisman knew about the terms of the plaintiff's prenuptial agreement with Romano and, absent such an allegation, there can be no claim that he could have foreseen the emotional distress resulting from his conduct. The plaintiff correctly notes that, in this procedural setting, the relevant inquiry for the court is whether her allegations support a cause of action; the court is neither concerned with factual findings, nor determining how the plaintiff will prove her claim. See, e.g., Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398. Thus, the defendants' second argument is misplaced in this procedural setting.
Additionally, count eleven incorporates by reference the general allegations of the complaint, along with the allegations contained in the third (breach of fiduciary duty as counsel), fifth (breach of fiduciary duty as trustee), and seventh counts (fraudulent nondisclosure). Count twelve similarly incorporates by reference the general allegations of the complaint, along with the allegations contained in the fourth (breach of fiduciary duty as counsel), sixth (vicarious liability for breach of fiduciary duty), and eighth counts (fraudulent nondisclosure). None of the allegations contained in these counts satisfies the pleading requirements imposed by Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748 (2005), cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005), and Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010), for claims of negligent infliction of emotional distress. Count twelve, directed against Halloran & Sage, LLP, contains the same substantive allegations presented by count eleven, with the only distinction being that the plaintiff alleges that Halloran & Sage, LLP's agent, Weisman, engaged in conduct that created an unreasonable risk of causing the plaintiff's emotional distress, which was foreseeable, and that the distress was severe enough to cause illness.
As noted in footnote 15 of this memorandum, count twelve makes the same substantive allegations contained in count eleven.
E
Paragraphs Three & Four of the Prayer for Relief--Punitive Damages & Attorneys Fees under CUTPA
The defendants argue that, because counts nine and ten are insufficiently pleaded, the plaintiff's prayers for punitive damages and attorneys fees in connection with these alleged CUTPA violations must also be stricken. The plaintiff asserts that her CUTPA violations are sufficiently pleaded and, therefore, her related prayers for relief should remain. Because the court has granted the defendants' motion to strike counts nine and ten, the defendant's motion to strike the prayers for punitive damages and attorneys fees in connection with those claims must also be granted. See, e.g., Peck v. Perugini, Superior Court, judicial district of Fairfield, Docket No. CV-07-5012606-S (September 21, 2010, Dooley, J.) (2010 WL 4226771, at *3) (prayer for punitive damages and attorneys fees stricken when CUTPA claim insufficiently pleaded).
F
Paragraph Five of the Prayer for Relief--Prejudgment Interest
At oral argument before this court, counsel for the plaintiff indicated that she was no longer pursuing prejudgment interest in connection with this case. Indeed, counsel for the plaintiff conceded that this portion of the defendants' motion to strike could be granted by agreement. Accordingly, the defendants' motion to strike paragraph five of the prayer for relief, which seeks prejudgment interest, is hereby granted.
The plaintiff also did not brief this particular issue in her memorandum of law in opposition to the defendants' motion to strike.
III
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted as to counts seven, eight, nine, ten, eleven, and twelve. The plaintiff's prayers for punitive damages and attorneys fees in connection with her alleged CUTPA violations are stricken, as is paragraph 5, which seeks prejudgment interest.