Summary
In Mauro, the court granted the defendant attorney's motion to strike the plaintiff's claim for breach of the duty of good faith and fair dealing on the ground that allegations reflecting professional negligence were legally insufficient to show the requisite element of bad faith.
Summary of this case from Gonzalez v. BattagliaOpinion
No. CV 09 6006862 S
December 14, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#119)
FACTS
The plaintiff, Jeffrey Mauro, commenced this action by service of process on the defendants, William H. Cashman and William H. Cashman and Associates, on December 4, 2009. In his second revised complaint, dated August 9, 2010, the plaintiff alleges the following facts. On March 10, 2006, the plaintiff met with the defendant, William H. Cashman, in order to seek legal representation in a criminal case. On December 7, 2006, the defendant represented the plaintiff in a criminal trial. Prior to trial, without consulting the plaintiff, the defendant waived the plaintiff's right to a jury trial, representing to the court that the defendant had canvassed the plaintiff, and tried the case to a judge. The plaintiff was subsequently convicted.
Count one of the plaintiff's second revised complaint alleges legal malpractice, count two alleges breach of contract, count three alleges a breach of the contractual duty of good faith and fair dealing, and count four alleges negligent misrepresentation. Specifically, count three of the plaintiff's second revised complaint alleges that the defendant refused and neglected to perform legal services reasonably requested and failed to seek the plaintiff's consent before waiving his right to a jury trial.
On September 30, 2010, both defendants filed a motion to strike count three and the request for attorneys fees from the plaintiff's second revised complaint. The defendants also filed a memorandum of law on that date. The plaintiff did not file a memorandum in opposition to the motion. The court took the papers on this matter on October 18, 2010.
DISCUSSION CT Page 1258
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof . . ." Practice Book § 10-39. "We take the facts to be those alleged in the complaint that has been stricken and we construe 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." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).
In support of its motion to strike the third count and the plaintiff's request for attorneys fees from the second revised complaint, the defendants argue that the plaintiff fails to state a claim upon which relief can be granted. Specifically, the defendants assert that the plaintiff has not alleged any facts demonstrating bad faith, which is an essential element of a claim for breach of the contractual duty of good faith and fair dealing. The defendants further argue that the plaintiff's request for attorneys fees should be stricken from his prayer for relief because the plaintiff has not provided a contractual or statutory basis for his request.
"[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Emphasis added; internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, CT Page 1259 281 Conn. 227, 240, 915 A.2d 290 (2007).
"[B]ad faith . . . generally [implies] a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . . [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . it contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987). "Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 382 (2004). "[T]here is a split of authority among Superior Courts as to what factual allegations are sufficient to constitute a finding of bad faith." (Internal quotation marks omitted.) Dino Corp. v. Nanni, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007086 (February 19, 2010, Roche, J.). Courts have required, however, that "allegations establishing a dishonest purpose or malice [must] be specifically [pleaded]." Id.
In Crespan v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 05 4002121 (January 13, 2006, Pickard, J.), the plaintiff sued his automobile insurance company, in part, for an alleged breach of the covenant of good faith and fair dealing. In that case, the court explained that the plaintiff alleged that the insurer "[r]epeatedly and unreasonably denied payment of the plaintiff's medical bills; refused to pay [p]laintiff's claim without conducting a reasonable investigation; ignored the unanimous opinions of the [p]laintiff's physicians who concluded [his] injuries were caused by the accident; [and] failed to investigate [p]laintiff's claim in a reasonable time period . . ." (Internal quotation marks omitted.) Id. Despite these allegations, the court held that the plaintiff could not sustain a bad faith claim because he did not allege that the defendant had any intent to deceive or defraud. "Though the plaintiff has made allegations which, if proven, may show that the defendant did not fulfill its insurance contract with the plaintiff, the allegations that the plaintiff has made . . . would not, if proven, show any dishonest purpose or sinister motive on the part of the defendant." Id.
In Steinmann v. Boyle, Superior Court, judicial district of New Haven, Docket No. CV 06 5007557 (January 6, 2009, Keegan, J.), the plaintiff's alleged that their great uncle, who had recently passed away, previously retained the defendant, a Connecticut attorney, to prepare his will and testament. Id. The decedent had informed the defendant that he wanted to benefit his sister, who was the plaintiffs' grandmother, and her descendants. He also informed the defendant that he permanently resided in Arkansas and that his will would likely be probated there. Id. According to the plaintiffs, the decedent intended to bequeath 20 percent of his estate to his sister and intended that this interest should not lapse if his sister should predecease him. The decedent's sister died before him, however, and the interest lapsed pursuant to Arkansas law. The plaintiffs subsequently compromised their claim against the decedent's estate and received 10 percent interest. Id. They then sued the defendant attorney, in part, for legal malpractice and breach of the contractual duty of good faith and fair dealing, alleging that the defendant "concealed from the plaintiffs the true status of their interest in the decedent's estate, misrepresented the effectiveness of the will he had drafted, and acted with a conflict of interest with regard to his dual role as the attorney drafting the will and as executor." Id.
In that case, the court granted the defendant's motion to strike the plaintiffs' cause of action for breach of the contractual duty of good faith and fair dealing, holding that the plaintiffs failed to allege that the defendant acted with dishonest intent. Instead, the court emphasized that "the facts alleged indicate that the defendant negligently failed to draft the will in accordance with the standard of reasonable care and with the terms of his agreement with the decedent. Without additional allegations indicating some dishonest purpose or improper motive, the [plaintiffs have] not stated a claim of bad faith." Id. The court concluded that the plaintiffs' cause of action for breach of the duty of good faith and fair dealing was legally insufficient. Id.
In the present case, the plaintiff's complaint similarly does not contain any allegations that the defendant acted with intent to deceive. Rather, the plaintiff alleges only that the defendant "refused and neglected to perform legal services reasonably requested in preventing the jury trial specifically requested" and "failed to seek the consent of his client in waiving a jury trial." These allegations, however, do not rise to the level of bad faith. Although the plaintiff has alleged facts indicating the defendant may have been negligent in his legal representation of the plaintiff, these allegations, if proven, would not show that the defendant acted with malicious intent or sinister motive. Therefore, the plaintiff's cause of action for breach of the duty of good faith and fair dealing is legally insufficient.
The plaintiff also seeks attorneys fees in his prayer for relief under the fourth and fifth counts of his second revised complaint. The defendant moves to strike the request for attorneys fees in the prayer for relief on the ground that the facts alleged do not support the recovery of such an award. First, the plaintiff's second revised complaint does not contain a fifth cause of action. Second, the plaintiff cannot request attorneys fees on the basis of his fourth cause of action, negligent misrepresentation, because his complaint does not allege a contractual or statutory basis for such an award. Under the common-law rule in Connecticut, also known as the American rule, "attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004). Here, the plaintiff has provided neither a contractual nor a statutory basis to support his claim for attorneys fees. Therefore, the plaintiff's request for attorneys fees must also be stricken from the prayer for relief.
CONCLUSION
Accordingly, for the foregoing reasons, the defendants' motion to strike count three and the plaintiff's request for attorneys fees from the complaint is granted.