Opinion
FBTCV145030189S
04-14-2016
Barry Y. Piels v. Wells Fargo Bank, N.A. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Richard E. Arnold, J.
The defendant, Bendett and McHugh, P.C. (" Bendett") has filed a motion to strike Counts Two through Six of the plaintiff's Second Amended Complaint dated November 9, 2015. Count One alleging a breach of the note and mortgage was brought against the defendant Wells Fargo Bank, N.A. The plaintiff filed a withdrawal of action against Wells Fargo on December 4, 2015.
Counts Two through Six brought against Bendett allege respectively, unjust enrichment, negligence, breach of the duty of good faith and fair dealing, a violation of the Connecticut Unfair Trade Practices Act (" CUTPA") and intentional infliction of emotional distress.
Bendett argues that it is protected from liability by the litigation privilege. As to Count Two, the defendant argues that the plaintiff has failed to allege facts that would allow the court to find the defendant was unjustly enriched. Regarding Count Three, Bendett argues that the plaintiff has failed to allege facts that it had any duty to the plaintiff, and if such duty exists, that the defendant breached that duty. As to Count Four Bendett argues that the breach of the implied duty of good faith and fair dealing does not apply to a foreclosure case, and even if it did the defendant had no contractual relationship with the plaintiff. The defendant further argues that the plaintiff has failed to allege facts that would allow the court to find a violation of CUTPA. Lastly, the defendant argues the plaintiff has failed to allege sufficient facts for the court to find the defendant, Bendett, liable for an intentional infliction of emotional distress.
The plaintiff's action was originally commenced in the small claims session of the Superior Court. The defendant, Bendett filed a motion dated June 17, 2014, requesting to transfer the matter to the regular civil docket at the Judicial District of Fairfield in accordance with Practice Book § 24-21. Thereafter, the matter was transferred by order of the court on June 19, 2014, and was assigned its present docket number. The plaintiff filed an amended complaint on March 16, 2015, and the subject Second Amended Complaint on November 9, 2015. The defendant Bendett filed the subject motion to strike and its memorandum of law on December 11, 2015. On December 4, 2015, as noted earlier herein, the plaintiff withdrew his action against the co-defendant, Wells Fargo Bank, N.A. The plaintiff on February 1, 2016, filed his objection to the motion to strike and his memorandum of law. The court heard oral argument on February 8, 2016.
The plaintiff's memorandum of law responds to the defendant's motion to strike only as to the following issues and or counts: (1) absolute immunity and litigation privilege; and (2) Count Five alleging a CUTPA violation. The plaintiff has not addressed the issues surrounding the motion to strike Count Two (unjust enrichment); Count Three (negligence); Count Four (breach of duty of good faith and fair dealing); and Count Six (intentional infliction of emotional distress). Nonetheless, the court will conduct a review of the counts not addressed by the plaintiff and will determine the merits of the motion to strike these counts.
The defendant, Bendett, on December 14, 2015 filed a motion for summary judgment. On February 1, 2016, the plaintiff filed his objection to this motion. The parties are awaiting the disposition of the subject motion to strike before the court will proceed further to determine the merits of the motion for summary judgment. Oral argument on the motion for summary judgment has not been scheduled.
The court, first, sets forth a general review of the action, as recited by the parties and contained in the allegations of the second amended complaint. This matter involves the institution of a foreclosure proceeding by the Wells Fargo Bank, N.A. (" Wells Fargo") against the plaintiff. The defendant law firm, Bendett and McHugh, P.C., provided legal representation to Wells Fargo. The plaintiff had signed a Mortgage Deed (" Mortgage") to secure the Note (" Note") for premises know as 208 South Benson Road, Fairfield, Connecticut. The Note and the Mortgage provided that the plaintiff was obligated to make monthly monetary payments on the Note.
The Note and Mortgage went into default when the plaintiff failed to make the monthly payments under the terms of the Note and Mortgage. On June 21, 2013, the defendant, Wells Fargo, by and through its legal counsel, the defendant, Bendett, sent the plaintiff a default notice letter to the plaintiff's subject premises. The default letter stated that in the event the default was not cured within thirty-two days of the date of the letter, the creditor would commence a foreclosure action.
On July 10, 2013, the plaintiff, through his legal counsel, faxed a letter to the defendant, Bendett's office informing Bendett that the plaintiff and Mary Piels (a co-borrower) had contracted to sell the subject property, and a sale was scheduled for August 30, 2013. A copy of the contract for the sale of the subject property was also faxed to Bendett. The letter informed Bendett that the outstanding mortgage payments, fees and costs due Wells Fargo would be paid by the plaintiff to Wells Fargo from the proceeds of the sale of the real estate, which was secured by the mortgage. The plaintiff, through his real estate legal counsel, requested that no foreclosure action be instituted by Wells Fargo acting through Bendett, its attorneys.
On or about July 15, 2013, Bendett's office sent a letter to plaintiff's legal counsel's paralegal employee advising that paralegal of a mortgage loan payoff amount and further advising that there would be additional anticipated legal fees in the amount of $2, 356.50. On or about July 26, 2013, plaintiff's real estate attorney advised Wells Fargo that all future communications on this matter be directed to him. He further confirmed with Wells Fargo that the sale of the plaintiff's property was still scheduled for August 30, 2013. Despite this communication between plaintiff's legal counsel and Wells Fargo, on August 6, 2013, Wells Fargo commenced a foreclosure action through its legal counsel, the defendant, Bendett, by way of a complaint dated July 30, 2013.
The plaintiff alleges the buyers of his property and their attorney were advised of the commencement of the foreclosure action and contemplated cancelling their purchase of the plaintiff's property. This, in turn, caused the plaintiff to suffer mental stress, anxiety and embarrassment, as it disclosed his poor financial condition. A cancellation of the sale of his real estate would also prevent the plaintiff from purchasing other real estate that he had contracted to buy, as well as, the potential loss of an approximate $30, 000.00 deposit he had placed on the real estate the plaintiff had contracted to purchase. The plaintiff claims that the commencement of the foreclosure action improperly interfered with the contractual relationship he had with the buyers of his property.
On August 6, 2013, despite the request that Wells Fargo, through its counsel Bendett, only contact the plaintiff's legal counsel, Bendett sent a letter to the plaintiff computing the payoff balance due and owing for the subject mortgage loan amount as of August 30, 2013. A similar letter again was sent directly to the plaintiff on August 15, 2013.
On August 30, 2013, the plaintiff sold the subject real property and subsequently cured the default by paying the remaining balance on the mortgage loan. Among the closing costs imposed by Wells Fargo at the time of the sale, was a charge in the amount of $2, 119.00. The plaintiff claims that the defendant, Bendett, benefitted from those charges, in that Bendett received those funds, or a portion thereof, for its legal services in connection with the commencement of the foreclosure action. On September 4, 2013, Wells Fargo sent a release of lis pendens to the Fairfield Land Records and withdrew the foreclosure action against the plaintiff.
The plaintiff alleges that the commencement of the foreclosure action by Wells Fargo and its attorneys, Bendett and McHugh, P.C. and the imposition of $2, 119.00, as costs and fees, were " unfair, uncalled for, improper and illegal" in light of the facts and circumstances of the " imminent impending sale and closing of the Property."
I
Legal Standard
Motion to Strike
" A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Santorso v. Bridgeport Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " [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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " 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.) Santorso v. Bridgeport Hospital, supra, 308 Conn 349. Although, " a motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Accordingly, " [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. Bridgeport Hospital, supra, 308 Conn. 349.
II
Absolute Immunity and Litigation Privilege
The defendant argues that it is entitled to absolute immunity. Absolute immunity, a subset of which is sometimes referred to as the litigation privilege; MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627, 79 A.3d 60 (2013); Simms v. Seaman, 308 Conn. 523, 535-36, 69 A.3d 880 (2013); consistently has been held to bar defamation claims that arise from statements made in the course of judicial or quasi-judicial proceedings. Rioux v. Barry, 283 Conn. 338, 344, 927 A.2d 304 (2007). The doctrine has been extended to a variety of other causes of action, including fraudulent misrepresentation (common-law fraud); Simms v. Seaman, supra, at 568-69; and intentional interference with contractual or beneficial relations. Rioux v. Barry, supra, at 343. The privilege is applied to bar suits arising from statements made which are pertinent to formal judicial proceedings, as well as administrative proceedings which are quasi-judicial in nature. Mercer v. Blanchette, 133 Conn.App. 84, 90, 33 A.3d 889 (2012).
" The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements . . . The rationale underlying the privilege is grounded upon the proper and efficient administration of justice . . . Participants in a judicial [or quasi-judicial] process must be able to testify or otherwise take part without being hampered by fear of [actions seeking damages for statements made by such participants in the course of the judicial or quasi-judicial proceeding] . . . Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial [or quasi-judicial] . . . proceedings. This objective would be thwarted if those persons whom the common law doctrine was intended to protect nevertheless faced the threat of suit." (Citation omitted; internal quotation marks omitted.) Gallo v. Barile, 284 Conn. 459, 466, 935 A.2d 103 (2007). " It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy . . ." (Internal quotation marks omitted.) Gallo v. Barile, supra, 284 Conn. 465-66. " Like other jurisdictions, Connecticut has long recognized the litigation privilege . . . [T]he privilege extends to judges, counsel and witnesses participating in judicial proceedings." (Citations omitted; internal quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 536-37, 69 A.3d 880 (2013).
The Appellate Court recently confirmed that the doctrine of absolute immunity concerns a court's subject matter jurisdiction. Perugini v. Giuliano, 148 Conn.App. 861, 873 (2014). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Citations omitted; internal quotation marks omitted.) Peters v. Dept of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
The court has before it a motion to strike and not a motion to dismiss. Therefore, the doctrine of absolute immunity concerning a court's subject matter jurisdiction will not be entertained sua sponte. The issue of absolute immunity would be more properly considered in a motion to dismiss.
" The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Citations omitted; internal quotation marks omitted.) Peters v. Dept. of Social Services, supra, 273 Conn. at 441.
III
Count Two
Unjust Enrichment
Next, the defendant argues that Count Two he is entitled to judgment as a matter of law on Count Two, unjust enrichment, because the plaintiff must establish there is an implied in law contract and there is none. According to the defendant, the plaintiffs can only succeed on an unjust enrichment claim when there is no remedy available under a contract between the parties.
" Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). Accordingly, a party need not demonstrate a legally enforceable contract in order to succeed on a claim for unjust enrichment. Indeed, a " lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment . . ." (Internal quotation marks omitted.) Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 472 n.4, 899 A.2d 523 (2006). The Connecticut Supreme Court has stated that " [t]he fact that the plaintiff could not recover under the contract does not bar its recovery under the theory of unjust enrichment . . ." Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 284, 649 A.2d 518 (1994). With such a statement, our Supreme Court did not hold that there must be a contract between the parties.
Furthermore, in Vertex, Inc. v. Waterbury, supra, 278 Conn. at 557, the Connecticut Supreme Court ruled that it was error for a trial judge to instruct the jury that the plaintiff had to demonstrate an implied in fact contract between the parties in order for the plaintiff to succeed on a claim for unjust enrichment. When explaining the difference between an implied in fact and an implied in law contract, the Supreme Court stated that " [a]n implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties . . . On the other hand, an implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made . . . An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party . . . Accordingly, an implied in law contract is another name for a claim for unjust enrichment." (Citations omitted; internal quotation marks omitted.) Id., at 573-74. This quotation makes clear that the plaintiff does not have to prove that there was an implied in fact contract between himself and the defendant. Rather, under the law of unjust enrichment, there only has to be an implied in law contract between the parties, which, in reality, is not a contract at all. Consequently, in order to plead sufficient facts to for the unjust enrichment count to withstand a motion to strike, the plaintiff only needs to plead the traditional three elements of this cause of action.
Count Two of the Second Amended Complaint incorporates twenty-nine paragraphs of introductory pleadings and an additional three paragraphs. These paragraphs incorporate the history of the dispute recited earlier herein. In sum, the plaintiff has pleaded the imposition of $2, 119.00 as costs and fees with respect to the foreclosure action were unnecessary and unreasonable in light of the imminent closing of the property by private sale. The plaintiff pleads that Bendett was unjustly enriched to the extent that it retained compensation from the former codefendant Wells Fargo with respect to the foreclosure action that was improper and illegal under the circumstances of the sale and closing of the plaintiff's property that was being foreclosed.
The defendant argues the plaintiff had been in breach of his payment obligations for nearly one year before the defendant commenced a foreclosure action in behalf of Wells Fargo. The fact that the plaintiff requested and received a letter outlining the payoff instructions for the loan did not create an obligation by the mortgagee to forbear from foreclosure proceedings. Paragraph 10 of the complaint reveals that the plaintiff requested that no foreclosure proceedings be instituted against the plaintiff. There is no pleading that Wells Fargo agreed to forbear its right to commence a foreclosure, but only that Wells Fargo sent several letters with payoff instructions notifying the plaintiff of the loan balance, costs and fees that would be due, including the disputed sum of $2, 119.00.
" The rules governing contract formation are well settled . . . [A]n offer imposes no obligation upon either party, until it is accepted by the offeree, according to the terms in which the offer was made." (Citation omitted; internal quotation marks omitted.) Noroton Properties, LLC v. Lawendy, 154 Conn.App. 367, 372, 107 A.3d 980 (2014); TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 331, 71 A.3d 541 (2013). " Likewise, [for a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense . . . Modification of a contract may be inferred from the attendant circumstances and conduct of the parties . . . A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do." (Internal quotation marks omitted.) Id.
Bendett argues that the plaintiff has not pleaded that he had offered any further consideration. Rather he simply offered to do that which he was already obligated to do, which was to pay the mortgage debt in full. Bendett states that the co-defendant Wells Fargo, acting through Bendett was under no obligation to forbear from the foreclosure action. The court agrees.
The court is mindful that in ruling on a motion to strike, it must examine the Second Amended Complaint and construe in favor of the plaintiff, to determine whether the plaintiff has stated a legally sufficient cause of action for unjust enrichment. Bearing in mind that a plaintiff seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment, the court is of the opinion that the plaintiff has not pleaded sufficient facts to state a cause of action for unjust enrichment. There is nothing in the pleadings for Count Two which leads the court to interpret the allegations as to plead that the defendant, to the detriment of the plaintiff, obtained something of value to which it was not entitled. Schirmer v. Souza, 126 Conn.App. 759, 763-64, 12 A.3d 1048 (2011). The motion to strike Count Two is granted.
IV
Count Three
Negligence
Count Three alleges negligence as to the defendant Bendett and McHugh, P.C. A prima facie case of negligence consists of four elements: duty, breach of that duty; causation and injury. (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). It is well settled that " [t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint . . ." (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004). As a result, " [i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009); Practice Book § 10-20 (complaint " shall contain a concise statement of the facts constituting the cause of action"). Yet " [w]e previously have recognized [that] . . . if the complaint puts the defendant on notice of the relevant claims, then a plaintiff's failure specifically to allege a particular fact or issue is not fatal to his claim unless it results in prejudice to the defendant." Machado v. Hartford, 292 Conn. 364, 370 n.7, 972 A.2d 724 (2009).
Count Three incorporates the initial thirty paragraphs contained in Count One alleging a breach of the Note and Mortgage by Wells Fargo and unjust enrichment as to Bendett. Count Three additionally alleges that Bendett owed a duty to the plaintiff to impose " only reasonable proper and fair legal costs and fees with respect to the foreclosure action, " and that Bendett breached this duty by imposing " unfair, uncalled for, improper and illegal costs and legal fees, " causing the plaintiff to suffer serious injuries. The defendant Bendett was legal counsel for the mortgagee, Wells Fargo, and represented its client in commencing a foreclosure action. In this role, it had no duty to the plaintiff, the debtor. Bendett's duty was to his client, Wells Fargo. This is not a claim for vexatious litigation, malicious prosecution, fraud, or abuse of process, which if well-pleaded might give a rise to a cause of action. It is a claim of negligence by an opposing counsel in a judicial-litigation proceeding, namely a foreclosure action. The actions by the defendant, as set forth in Count Three outlines the plaintiff's complaints as to how he feels he was treated by Bendett and Wells Fargo, but they do not sufficiently plead a cause of action for negligence by Bendett. Our Supreme Court in Mozzochi v. Beck, 204 Conn. 490, 540, 529 A.2d 171 (1987) sought to reconcile its responsibility to ensure unfettered access to the courts and to avoid a possible chilling effect on would-be litigants of justiciable issues by limiting liability to situations in which the plaintiff " can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney's primary duty of robust representation of the interests of his or her client." Id., at 497, 529 A.2d 171. The motion to strike Count Three is granted.
V
Count Four
Breach of Implied Duty of Good Faith and Fair Dealing
The defendant, Bendett, moves to strike Count Four which alleges a breach of the implied duty of good faith and fair dealing. Bendett argues that this is not a valid claim in a foreclosure action, and secondly, there is no contractual relationship between it and the plaintiff.
" The elements of a cause of action alleging a breach of the implied duty of good faith and fair dealing are as follows: (1) the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; (2) that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and (3) that whcn committing the acts by which it injured the plaintiff's right to receive benefits he reasonably expected to receive under the contract, the defendant was acting in bad faith." Jaziowiecki v. Nationwide Ins. Co. of America, Superior Court, judicial district of Hartford, No. HHDCV126036618S, (January 3, 2014, Huddleston, J.); see also, Austrian v. United Health Group, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV05-4010357-S (July 17, 2007, Stevens, J.) (43 Conn. L. Rptr. 852). The defendant, Bendett, argues that the plaintiff has failed to plead that a contract existed between it and the plaintiff. As such, the plaintiff cannot show the necessary elements to avoid a motion to strike.
A review of Count Four reveals that the plaintiff has incorporated the initial thirty-four paragraphs of the preceding counts and added an additional eight paragraphs. Count Four directs the court to consider a contractual relationship and terms between the plaintiff and the mortgage lender by virtue of the promissory note and the mortgage deed. However, there are no allegations that any contract existed between the plaintiff and Bendett, the defendant law firm. The plaintiff admits in his pleading at paragraph thirty-seven that he had his attorney request that no foreclosure action be instituted and that " the written request from plaintiff's attorney was sent in the nature of a request that no foreclosure action be instituted" and was " intended to serve as an invitation to [the] Defendants to confirm that the request would be honored." There is no allegation that Bendett considered this request and agreed to honor it. The motion to strike Count Four is granted.
VI
Count Five
CUTPA
The defendant, Bendett, argues that the plaintiff cannot sue Bendett, who was acting in the capacity of legally representing Wells Fargo, in essence stating that a " law firm's client's opponent cannot sue the law firm." Additionally, to prevail, the plaintiff must plead facts that would allow the court to find that the plaintiff sustained damages based on Bendett's conduct, which is an unfair or deceptive trade practice. A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). Accordingly, the plaintiff must show that a prohibited act by Bendett was the proximate cause of any harm suffered by the plaintiff. Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997).
Bendett argues that the only damages sustained by the plaintiff were suffered as a result of the plaintiff's admitted failure to make his monthly mortgage payments under the obligations contained in the note and mortgage. Requesting that Bendett, in its capacity as legal counsel for Wells Fargo, not commence a foreclosure action is not enough to make Bendett liable when the foreclosure action is started due to the plaintiff's own default. " [The Supreme Court] has set forth a three part test for satisfying the substantial injury criterion: [1] [the injury] must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided ." (Emphasis added.) (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999).
Additionally, Bendett was not the mortgagee and any additional amounts or fees that Wells Fargo imposed on the plaintiff in order to provide a release of mortgage to the plaintiff, was not in the control of Bendett.
" It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal citations and quotation marks omitted.) Updike, Kelly and Spellacy, P.C. v. Beckett, 269 Conn. 613, 655-56 850 A.2d 145.
In Count Five, the plaintiff re-alleges the forty-two paragraphs of the previous counts and alleges four additional paragraphs. He alleges and complains that Bendett ignored his attorney's instructions to Bendett that all communications were to be directed to the plaintiff's attorney and not to the plaintiff, himself. He complains that Wells Fargo and Bendett's " business practices" of commencing foreclosure actions on the eve of a pending and imminent sale of real property and imposing unfair costs and fee is offensive to public policy, as established by common law, statute and other established concepts of good faith and fair dealing." He alleges that the defendants' business practices are " immoral, unethical, oppressive and unscrupulous, " and can cause cost and injury to consumers. As a result, the plaintiff claims he has sustained an ascertainable loss in the amount of $2, 119.00 and other associated losses due to the defendants' unfair and deceptive practices. In support of his argument the plaintiff cites Heslin v. Connecticut Law Clinic of Trantolo and Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983) and Suffield Development Associates, Ltd. Partnership v. National Loan Investor, L.P, 260 Conn. 781, 802 A.2d 44 (2002) for the proposition that the conduct of attorneys is subject to CUTPA.
" [The Connecticut Supreme Court] has stated that, in general, CUTPA applies to the conduct of attorneys . . . The statute's regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law . . . Nevertheless, [the Connecticut Supreme Court has] declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law . . . [O]nly the entrepreneurial aspects of the practice of law are covered by CUTPA." (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 781. " The 'entrepreneurial' exception is . . . a specific exception from CUTPA immunity for a well-defined set of activities-advertising and bill collection, for example." Id., 782. " Accordingly . . . professional negligence-that is, malpractice-does not fall under CUTPA." (Internal quotation marks omitted.) Id., 781.
" Our 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." Id.
" We previously have concluded that CUTPA does not provide a private cause of action against an attorney by his client's opponent because such a cause of action would infringe unduly on the attorney-client relationship. Updike, Kelly and Spellacy, P.C v. Beckett, 269 Conn. 613, 655-56, 850 A.2d 145. See also, Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 495-96. Thus, as the plaintiff cannot maintain a private cause of action against Bendett, who represented Wells Fargo in the foreclosure action against the plaintiff, he cannot successfully plead such a cause of action. The motion to strike Count Five is granted.
VII
Count Six
Intentional Infliction of Emotional Distress
The defendant, Bendett, moves to strike Count Six arguing that the plaintiff has not set forth sufficient facts to successfully allege a cause of action for intentional infliction of emotional distress. " In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
" Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Id., at 210-11. " [P]laintiffs [alleging intentional infliction of emotional distress] must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." (Internal quotation marks omitted.) Cassotto v. Aeschliman, 130 Conn.App. 230, 236, 22 A.3d 697 (2011).
A review of Count Six reveals that the plaintiff has not sufficiently pleaded an action for intentional infliction of emotional distress in that the allegations are: (1) the defendants did not honor the plaintiff's request to forbear commencing a foreclosure action based on the plaintiff's admitted failure to make the required monthly mortgage payments, as the plaintiff was in the process of selling the mortgaged property; and (2) because the co-defendant mortgage lender and/or the defendant, Bendett's employees sent the payoff instructions directly to the plaintiff instead of the plaintiff's lawyer. The plaintiff has failed to adequately set forth facts that the defendant, Bendett allegedly engaged in extreme and outrageous conduct. Appleton v. Board of Education, 254 Conn. supra, 210, 757 A.2d 1059 (2000). The motion to strike Count Six is granted.
Summary of Orders
The defendant, Bendett and McHugh's motion to strike Counts Two, Three, Four Five and Six of the plaintiff's Second Amended Complaint is granted, as they apply to Bendett and McHugh.
While Count Two applies only to Bendett and McHugh, Counts Three, Four, Five and Six appear to be brought against defendants Wells Fargo Bank, N.A. and Bendett and McHugh. The plaintiff previously withdrew the action against Wells Fargo Bank, N.A. Accordingly, the court has reviewed Counts Three, Four, Five and Six, as they may apply to behavior alleged against Bendett and McHugh, bearing in mind that they were acting in the capacity of legal counsel for the co-defendant, Wells Fargo Bank, N.A.