Pellegrino Law Firm v. Fresher

Full title: THE PELLEGRINO LAW FIRM, P.C. v. CHARLES M. FRESHER, LLC ET AL

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Jan 4, 2006

2006 Ct. Sup. 107 (Conn. Super. Ct. 2006)

Opinion

No. CV 05-4007376

January 4, 2006

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (#111) AND PLAINTIFF'S OBJECTION ( # 114)

JOSEPH A. LICARI, JUDGE.

Upon reading the complaint in the light most favorable to sustaining it the court rules as follows:

Count One

Exhibits A and B are part of the complaint for purposes of this motion. Whether or not the text thereof constitutes a contract is an evidential question concerning the parties' intent beyond the scope of this motion.

Facts provable under the language of these exhibits may establish the existence of a contract whereby the defendant would protect the plaintiff's fee.

Count Two

This court in addressing the facial adequacy of count one has concluded that the plaintiff has sufficiently pled a breach of contract. If such contract can be proven whether or not it created an escrow agreement with a resulting fiduciary duty owed by the defendant to the plaintiff is also a question of evidence and intent beyond the scope of this motion.

Moreover, as a general rule, no less applicable here, the existence of a fiduciary duty is a question of fact.

Count Three

Having found counts one and two facially sufficient of necessity the defendant's claim of a lack of contract must fail.

Counts Four and Five CT Page 108

The outcome of this motion as to these counts is informed by their origin. They are here at the insistence of the defendant and by order of the court with which the plaintiff has complied. If these defendants have an interest they can plead it. When you consider that the purpose of adding these defendants was to protect any interest they may have and not to assert a claim against them the defendant's argument becomes circular and without merit.

Motion denied as to all counts.