Opinion
No. FST CV 10 5013413
March 17, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112.00)
FACTS
This is an action by self-represented plaintiff Chantal Peoples (the plaintiff) against John F. Carberry (the defendant). The plaintiff commenced this action on May 7, 2010 by filing a two-count complaint. After the defendant requested that the plaintiff revise her complaint, the plaintiff filed a revised complaint on October 15, 2010, which is the operative complaint for the purposes of this motion.
In her revised complaint, the plaintiff alleges that the defendant, an attorney, represented her pro bono in a bankruptcy proceeding and a suit against her former lawyer between 2005 and 2008. In count one, which appears to be a legal malpractice claim, the plaintiff alleges as follows. After a foreclosure action was commenced against her family's Norwalk residence in 1999, the plaintiff and her husband (the Peoples) hired attorney Larry F. Ginsburg (also identified in the complaint as Ginsberg) to represent them in the foreclosure case. The Peoples entered into a Chapter 13 bankruptcy plan, but problems with the mortgage company's cooperation with the plan along with the Peoples' dissatisfaction with Ginsburg's work resulted in Ginsburg being discharged as their attorney. Thereafter, the bankruptcy court issued an order to show cause why Ginsburg's fees should not be disgorged and sanctions should not be imposed against him due to his alleged failure to adequately represent the Peoples. In January 2005, the bankruptcy court appointed the defendant to represent the plaintiff on a pro bono basis. The plaintiff provided the defendant with various documents relating to Ginsburg's representation and her payments to the mortgage company. The plaintiff also provided the defendant with the contact information for a forensic accountant who would work pro bono on her Chapter 13 case.
On June 22, 2005, the bankruptcy court ordered the Peoples and the mortgage company to enter into negotiations. During the negotiations, the defendant provided the plaintiff with a copy of the mortgage company's forensic report, whereupon the plaintiff asked the defendant for her own forensic report. The defendant replied that "he had been given advice and instructions by the forensic accountant." The plaintiff alleges that "[i]n the absence of the forensic report, the defendant was neither prepared for the trial nor had any leverage to enter into a fair and unbiased negotiation."
The plaintiff alleges that during the negotiations, the defendant told her that the mortgage company would not settle for less than $290,000 but that the plaintiff would only owe $190,000 in principal due to the receipt of $75,000 from Ginsburg's insurance policy and the release of funds held by the bankruptcy trustee. The plaintiff alleges that she agreed to the settlement as long as several conditions were part of the settlement, namely "a bi-monthly payment option," waiver of the "Private Mortgage Insurance (PMI) premium" and a "reasonable" length of time for the deed to be held in escrow. The defendant informed the plaintiff that mortgage company representatives had already left for the day but that he "did not anticipate [the mortgage company] having any problems with the plaintiff's terms as part of the settlement." Afterwards, the terms of the settlement were read in the courtroom, but when the plaintiff's husband asked the defendant why the plaintiff's proposed conditions were not mentioned, the defendant responded "shush." The bankruptcy judge proceeded to ask the plaintiff "if she understood the settlement and was in agreement." The plaintiff proceeded to confer with the defendant, who "reiterated what he had stated in the conference room, `since the mortgage company had left, we could not enter as fact a term into agreement without their approval; what we have is a proposed agreement and it had to be signed to be finalized.'" After the defendant informed the plaintiff that "he would make sure all terms were included prior to signing the agreement," the plaintiff answered yes to the judge. The judge then asked the plaintiff's husband "if he understood and was in agreement with the terms." The "defendant advised nothing would be finalized until it was signed and he would make sure the plaintiff's terms were included; the defendant further stated if the terms the plaintiff set forth were not agreeable to the mortgage company, the plaintiff did not have to sign the agreement." The plaintiff's husband proceeded to answer yes to the judge.
According to the complaint, in late June 2005, the defendant told the husband not to make bi-monthly payments "until the paperwork is finalized." In mid-July 2005, the defendant sent the plaintiff an e-mail, attached to which was a document labeled "revised consent order." The attachment did not contain any of the plaintiff's proposed conditions, and the "defendant stated he will need some time to work with the Mortgage company's attorney and if the matter was unresolved he would notify the Court." In January 2006, during a hearing on the mortgage company's motion to compel compliance with settlement, the bankruptcy judge "stated once we said yes to his query as to the terms of the agreement, we had . . . a contract" and that "the transcript was the contract." In February 2006, the defendant filed an appeal on behalf of the plaintiff. On January 2, 2008, after failing to reach a settlement, the defendant filed a complaint in bankruptcy court against Ginsburg. In late January 2008, the defendant contacted the plaintiff regarding the possibility of settling with the mortgage company. The plaintiff told the defendant that without the report of a forensic accountant, it was not possible to make a fair settlement offer because the amount owed on the mortgage was unknown. The defendant told the plaintiff that he would contact the accountant, but he never got back to the plaintiff regarding the forensic report despite the plaintiff making several requests for the report.
The plaintiff further alleges that in late April 2008, the "defendant informed the plaintiff that he had appealed to the Court to obtain a settlement order in . . . favor of the plaintiff but he did not succeed and lost the appeal on the ground that the plaintiff had voluntarily agreed in open court to the terms of the settlement stated on the Stipulated Order." The defendant suggested appealing to the Second Circuit. The plaintiff asked the defendant if it would be prudent to inform the court that the mortgage company's attorneys led the defendant to believe that issues left unsettled on June 22, 2005 had to be confirmed with mortgage company representatives, and that as a result of this, the defendant advised the Peoples that this was merely a proposed settlement whose terms would be addressed later. The plaintiff told the defendant that she thought "the mortgage company's attorney . . . took advantage of the judge's query to put aside the plaintiff's terms." The defendant responded that "if we proceeded in that manner, he would have to remove himself as the plaintiff's attorney as that would put him in jeopardy of not properly advising them, and that would result as a possible financial loss to the plaintiff since he could no longer represent the plaintiff in the appeal and in the Ginsburg matter and the cost of depositions, transcripts and other related matter was very costly."
According to the complaint, the defendant then gave the plaintiff three options for moving forward: (a) find other counsel for both the bankruptcy case and the suit against Ginsburg because "it would be a conflict of interest for him to pursue if we wanted to state that he had not properly represented us"; (b) go forward with the settlement as approved by the court; or (c) appeal to the Second Circuit. Although the "defendant stated the plaintiff take a week or so and get back to him with a decision on how to proceed," within two days the "plaintiff was served with papers from the defendant to withdraw as an attorney" for both the bankruptcy case and the suit against Ginsburg. The plaintiff alleges that because she did not have her own forensic report, the "defendant was inadequately prepared for trial or negotiations, and the plaintiff felt pressured to participate in a biased one-sided negotiation." Furthermore, the plaintiff alleges that the defendant "was inadequately prepared to fully apprise her of the valuation of the proof of claim and her legal rights" and "[a]s a result of the inadequacy of the information available to the plaintiff, the defendant agreed to a proposed financial settlement which did not protect her interest or legal rights, and thereby sustained an actual financial loss." The plaintiff accuses the defendant of negligence and carelessness, namely that the "defendant owed the plaintiff a duty of care pursuant to their attorney client relationship and the defendant breached this duty by not using the skill required to protect his clients' rights; and breached the duty of care by not using his skills and the resources available to him to ensure a fair settlement."
In count two, which purports to be a breach of contract claim, the plaintiff incorporates most of the factual allegations of count one and alleges that "the defendant breached his agreement with the plaintiff to represent her interests diligently, responsibly and professionally." Furthermore, in paragraph forty, the plaintiff alleges that the "defendant verbally informed the plaintiff that he understood the issues and would be diligent in proceeding with her case" and that the "defendant and the plaintiff verbally agreed on how to proceed with the case." In the following paragraph forty-one, the plaintiff alleges that "[a]s a result of said breach of said proposed agreement, the plaintiff sustained substantial financial loss and damages."
On November 18, 2010, the defendant moved to strike count two on the ground that the plaintiff's claim for breach of contract sounds in negligence. The motion is accompanied by a memorandum of law. On December 2, 2010, the plaintiff filed her objection to the motion to strike.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "[I]n 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." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990, A.2d 206 (2010). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).
"In pleading an action for breach of contract, [the] plaintiff must plead: 1) the existence of a contract or agreement; 2) the defendant's breach of the contract or agreement; and 3) damages resulting from the breach." (Internal quotation marks omitted.) MGA, Inc. v. Goeliner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0154820 (December 16, 1997, Karazin, J.). "Not all claims against attorneys must necessarily be construed as tort claims . . . Connecticut law recognizes that one may bring against an attorney an action sounding in both negligence and contract . . . At the same time, 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." (Citations omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008). "Where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services." (Internal quotation marks omitted.) Id., 384-85. "[T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." (Internal quotation marks omitted.) Id., 383.
The Connecticut Appellate Court also put it in this way: "[W]e believe that a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach." Connecticut Education Association, Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 458, 938 A.2d 1249 (2008)
In Weiner, the plaintiffs filed a two-count complaint against their former attorney in which "[t]he only difference between the two counts [was] that the second allege[d] that the defendant's use of reasonable care, skill and diligence in providing legal services was an `express and/or implied' term of the contract between the parties." Id., 385. The Connecticut Appellate Court ruled this to be "a distinction without a difference" because "[t]he second count . . . contains no allegations that refer to specific actions required by the defendant," no "allegations of the defendant's refusal to take certain actions" and no "assert[ion] that a defendant who is a professional breached an agreement to obtain a specific result." (Internal quotation marks omitted.) Id. The Appellate Court thus ruled that the trial court was correct in "conclud[ing] that the plaintiffs' claim was one sounding in malpractice masked in contract garb." Id., 385-86.
The Appellate Court reached a different result in Connecticut Education Association, Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 459-60, 938 A.2d 1249 (2008), where allegations against a law firm "refer[red] to specific actions required by the plaintiff, that is, that the defendant maintain the pension plan in compliance with the Internal Revenue Service code and ERISA." In the opinion of the Court, "these allegations set forth a breach of contract claim, and are more than a malpractice claim couched in the language of promise and breach." Id., 459.
Similarly, in Hill v. Williams, 74 Conn.App. 654, 659, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), the plaintiff alleged that she and her former attorney entered into several specific "agreements," namely that the defendant "agreed `to represent the plaintiff in a civil action against her ex-husband,'" "agreed `to represent the plaintiff in her family case to appeal her divorce, obtain accurate support and obtain sole custody of the . . . children,'" and "agreed `to represent the plaintiff in her legal malpractice suit against her [former] divorce attorney.'" The plaintiff also alleged that the defendant "`refused to file [the] correct motion to obtain correct support' and `refused to schedule hearings . . . to obtain correct support,' actions which would appear to be required of him under the alleged . . . agreement." Id., 660. The Appellate Court ruled that these allegations constitute a claim for breach of contract. Id.
The plaintiff directs the court's attention to De Hertogh v. Boatman, Superior Court, judicial district of Hartford, Docket No. CV 09 5031098 (May 27, 2010, Peck, J.), a recent Superior Court decision that also involved a two-count complaint against attorneys for breach of contract and negligence in which the defendants sought to strike the claim for breach of contract. In denying the motion to strike, Judge Peck ruled as follows: "It does appear that the bulk of the allegations of the breach of contract claim address the standard of care and therefore would merit granting the motion to strike on the ground that they couch negligence claims in a breach of contract count. However . . . count one implies that the defendants failed to honor some obligation promised in their agreement. In particular, this paragraph alleges that the defendants `have failed to perform in accordance with the agreement of the parties and the purposes therefore.' Although the plaintiffs have not attached their purported agreement with the defendants to the revised complaint, the court is obliged to broadly analyze the express and implied allegations of the complaint to determine if these allegations support a cause of action. Because the plaintiffs allege . . . that the defendants failed to perform specific actions required under the agreement, they have alleged a legally sufficient breach of contract claim." Id. Substantially the same result was reached in Tracey v. Still, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 05 4001883 (June 8, 2005, Stevens, J.) ( 39 Conn. L. Rptr. 471, 473) (a claim for breach of contract survives a motion to strike where "[t]he complaint alleges that the parties agreed that the defendant would be retained to file an action against the appropriate parties regarding the property damage" and "[t]he defendant accepted a retainer for this purpose . . . but . . . failed to file the action as they had agreed").
The same issue arose in Steinmann v. Boyle, Superior Court, judicial district of New Haven, Docket No. CV 065007557 (January 6, 2009, Keegan, J.), another case discussed by the plaintiff in her opposition papers. Steinmann involved intended beneficiaries of a testator's will who sued a lawyer for, among other claims, breach of contract. Id. The defendant argued that the claim of breach of contract "is legally insufficient because it is nothing more than a negligence claim couched in the language of contract." Id. The court disagreed, noting that the count "sets forth more than a promise to work diligently or in accordance with professional standards." Id. In the opinion of the court, because "[t]he plaintiffs allege that the decedent retained the defendant as his attorney to prepare his will and made clear his desire to benefit his sister and her descendants as beneficiaries" and "that the defendant breached the contract, in essence, by drafting the will in such a way that the bequest lapsed on the death of the decedent's sister and, thus, the plaintiffs were deprived of their status as beneficiaries of the decedent's estate," "[t]he plaintiffs' allegations refer to a specific action required by the plaintiff, that is, that the defendant prepare a will under which the plaintiffs would become beneficiaries in the event that their grandmother predeceased the decedent." Id. This was enough to state a breach of contract claim. Id.
On the other hand, Connecticut courts have stricken breach of contract claims where there was no promise by the defendant to obtain a specific result. See, e.g., Pipkin v. Glenn, Superior Court, judicial district of New Haven, Docket No. CV 09 5025808 (September 25, 2009, Keegan, J.) (ruling that a breach of contract claim against attorneys is legally insufficient because "the plaintiff has failed to allege any promise by the defendants to achieve a specific result which, if breached, would be actionable in a breach-of-contract action"). In Lee v. Brenner, Saltzman and Wallman, Superior Court, judicial district of Ansonia-Milford at Derby (May 24, 2007, Esposito, J.) ( 43 Conn. L. Rptr. 462, 462), the plaintiff retained the defendant lawyers to revise his existing employment agreement, whereupon the defendants "promised that they would tailor [the agreement] to the plaintiff's `specific situation.'" The revised agreement, according to the Lee plaintiff, made some material alterations in the plaintiff's employment rights, which the defendants failed to disclose to the plaintiff. Id., 462-63. The plaintiff alleged that the defendants did not tailor the agreement "to his needs" because the revised agreement did not provide him with worker protections that were listed in the former agreement. Id. By the court's admission, "the plaintiff [did] allege that the defendants made a specific contractual promise, that they failed to perform according to that promise and that this caused damages to the plaintiff. Strictly read, these allegations, if proven, would give rise to a claim for breach of contract." Id., 465. The court went beyond the words of the complaint and determined that it sounded in tort because "the underlying factual allegations indicate that the plaintiff's claim [is] that he was injured as a result of the deficient nature of the legal services the defendants provided to him . . ." Id.
In the present case, the defendant argues that the plaintiff has recast her malpractice claim as a breach of contract action and that the claim should be stricken because "[t]he [p]laintiff does not allege any promise by the [d]efendant to obtain a specific result, which if breached, would be actionable as a breach of contract claim." The plaintiff replies that she and the defendant had an agreement on how to proceed in the bankruptcy hearing and that they agreed on what issues needed to be addressed and on the need for a forensic report. In ruling on whether the plaintiff has stated a cause of action for breach of contract, the court must delve into the specific allegations of the revised complaint.
Paragraphs 1 through 39 of the first count were incorporated into the second count alleging breach of contract. In paragraph three of the revised complaint, the plaintiff alleges that "[t]he defendant agreed to represent the plaintiff skillfully, reasonably and diligently pro bono in the plaintiff's Chapter 13 case, and a lawsuit against the plaintiffs former attorney." In paragraph forty of the second count, the plaintiff alleges that "the [d]efendant breached his agreement with the plaintiff to represent her interests diligently, responsibly and professionally." As discussed above, the Connecticut Appellate Court has determined that any action premised on such an agreement sounds in negligence and not in contract. Weiner v. Clinton, supra, 106 Conn.App. 384-85; Connecticut Education Association, Inc. v. Milliman USA, Inc., supra, 105 Conn. App. 458. In paragraphs thirteen through fifteen, the plaintiff alleges that "[t]he [d]efendant was responsible" for various tasks such as the accumulation of financial information and ensuring that a forensic report was prepared. There is no allegation that any of these alleged responsibilities arose out of a contract or an agreement. In paragraph sixteen, the plaintiff alleges that she "was assured by the defendant that he was in communication with the forensic accountant and had entered into negotiations with the legal representative of Attorney Ginsburg . . ." These alleged assurances also fail to constitute actionable contracts.
In paragraph twenty-five, the plaintiff alleges that during the bankruptcy hearing, the "defendant advised the plaintiff it was ok for now and he would make sure all terms were included prior to signing the agreement" and that "nothing would be finalized until it was signed and he would make sure the plaintiff's terms were included . . ." These alleged promises do not constitute a contract. At the end of paragraph forty and the beginning of paragraph forty-one, the plaintiff alleges that the "defendant and the plaintiff verbally agreed on how to proceed with the case" and that "[a]s a result of said breach of said proposed agreement, the plaintiff sustained substantial financial loss and damages." The rest of paragraph forty-one discusses the "proposed agreement" between the plaintiff and the mortgage company that never went into effect because of the acts and omissions of the defendant during and after the June 2005 bankruptcy hearing.
Thus, while paragraph forty alleges the existence an agreement on how to proceed with the plaintiff's case, paragraph forty-one alleges that a "proposed agreement" was breached, a paradoxical statement in its own right, with the attendant implication that this "proposed agreement" refers to the settlement agreement between the plaintiff and the mortgage company and not to any agreement between the plaintiff and the defendant. Accordingly, the revised complaint alleges the existence of an agreement between the plaintiff and the defendant on how to proceed with the plaintiff's bankruptcy case but does not allege that the defendant breached this agreement. The revised complaint does not relate the various other allegations against the defendant, such as the failure to obtain the forensic report, to the agreement that is alleged at the end of paragraph forty. The only agreement that the complaint alleges the defendant broke is the agreement to represent the plaintiff in a diligent matter, and such a breach is not actionable as a matter of law. As in Lee v. Brenner, Saltzman and Wallman, supra, 43 Conn. L. Rptr. 465, "the underlying factual allegations indicate that the plaintiffs claim [is] that [she] was injured as a result of the deficient nature of the legal services the defendants provided to [her]." Therefore, as to the substance of the motion, the court determines it should be granted.
At oral argument, the plaintiff also objected to the form of the motion to strike on the ground that the motion itself does not recite the grounds, citing Stuart v. Freiberg, 102 Conn.App. 857, 927 A.2d 343 (2007). Although the plaintiff did not raise this specific point in her brief, she also did not waive her right to object on these grounds. See, e.g., Grant v. James Street, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5027291 (July 2, 2009, Zoarski, J.T.R.) ( 48 Conn. L. Rptr. 192, 194). Hence, the court will consider the merits of the plaintiff's oral objection.
In Stuart v. Freiberg, supra, 102 Conn.App. 860, "[t]he defendant moved to strike all of the counts in the plaintiffs' complaint `on the grounds that they are legally insufficient and fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' without further specificity." In his memorandum of law in support of the motion, the Freiberg defendant gave several reasons for moving to strike. Id., 862. In the opinion of the Appellate Court, the nonspecific wording of the motion itself was a violation of Practice Book § 10-41, and the inclusion of the grounds within the memorandum did not prevent the motion from containing a fatal defect. Id.
Practice Book § 10-41 provides as follows: "Each motion to strike raising any of the claims of legal insufficiency . . . shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."
In the present case, the defendant's motion states the precise reason for moving to strike, namely that the plaintiff's contract claim actually sounds in negligence. Thus, the plaintiff's oral objection has no merit.
CONCLUSION
For the foregoing reasons the motion to strike the second count of the revised complaint is granted.