Opinion
No. NNH CV 065007557 S
January 6, 2009
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#124)
The plaintiffs, Linda Steinman and Melody Munson, filed a second amended complaint against the defendant, Kevin Boyle, on September 18, 2007. The complaint consists of six counts, in which the plaintiffs allege respectively that the defendant's conduct constitutes legal malpractice, breach of contract, breach of the contractual duty of good faith and fair dealing, reckless misrepresentation, negligent misrepresentation and breach of fiduciary duty. Specifically, the plaintiffs allege the following facts in all six counts of the complaint. On or about July 17, 2002 the plaintiffs' great-uncle, Andrew G. Katrinak (decedent), retained the defendant, a Connecticut attorney, to prepare his will and testament. Upon information and belief, the decedent made clear his desire to benefit his sister, who was the plaintiffs' grandmother, and her descendants. The decedent also informed the defendant that he permanently resided in Arkansas and that his will would likely be probated there. The will prepared by the defendant provided that 20 percent of the decedent's estate would pass to the decedent's sister. It was the decedent's intent that the interest not lapse in the event that his sister's death occurred prior to his own. The decedent's sister did in fact predecease the decedent. The decedent died in Arkansas where he was domiciled. His will was admitted for probate in Arkansas. Under Arkansas law, the 20 percent interest to the decedent's sister lapsed upon her death. The plaintiffs compromised their claim against the decedent's estate and received 10 percent of the estate.
On February 25, 2008, the defendant filed a motion to strike all six counts of the complaint on the ground that "each of the Plaintiffs' six counts is insufficiently pled and fails to state a claim upon which relief may be granted as a matter of law." The defendant filed a memorandum of law in support of his motion on the same day. On May 2, 2008, the plaintiffs filed a memorandum in opposition to the motion. On September 25 2008, the defendant filed a reply memorandum. Additional facts will be set forth as necessary.
"Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency `shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.'" Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Id.
"[I]f that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made. In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as grounds." (Internal quotation marks omitted.) Id., 862 n. 2.
In the present case, the defendant's motion does not specify each claim of insufficiency as required by § 10-41. The plaintiffs, however, have not objected to the form of the motion. Accordingly, the court deems the defect waived and will look to the defendant's memorandum of law to attempt to ascertain the defendant's specific grounds.
CT Page 857
DISCUSSION
"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). "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 in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).Count One: Legal Malpractice
Count one of the plaintiffs' second amended complaint sounds in legal malpractice. The plaintiffs allege, inter alia, that the defendant negligently failed to draft the decedent's will in such a way that the decedent's bequest to his sister — the plaintiffs' grandmother — did not lapse as a result of his sister predeceasing the decedent. The plaintiffs further allege that they sustained a loss of a 20 percent interest in the decedent's estate, incurred unnecessary attorney fees, and were forced to hire counsel in Arkansas to contest the lapse of their bequest. The defendant argues that count one is legally insufficient because (1.) as a matter of law, the defendant did not owe the plaintiffs a duty, (2) the plaintiffs have failed to set forth facts showing that both the decedent and the defendant intended to benefit the plaintiffs, (3) the plaintiffs have failed to set forth facts indicating that the primary or direct purpose of the contract between the decedent and the defendant was to benefit the plaintiffs, and (4) the plaintiffs are seeking noncompensable damages.
The defendant argues that count one is legally insufficient because as a matter of law, the defendant did not owe a duty to the plaintiffs, who were not his clients. The plaintiffs respond by arguing that, as intended beneficiaries of the decedent's will, they were owed a duty by the defendant.
The defendant also argues that the complaint is legally insufficient because the plaintiffs have not expressly alleged that the defendant owed the plaintiffs a duty. As the defendant himself acknowledges, however, a statement that a duty exists is a legal conclusion. Because our rules of practice require only fact pleading; see Practice Book § 10-1; the failure to expressly allege the legal conclusion that a duty exists does not render a complaint legally insufficient. See LaPerle v. Woodstock Academy, Superior Court, judicial district of Windham at Willimantic, Docket No. CV 06 5000370 (June 5, 2007, Martin, J.) (43 Conn. L. Rptr. 531, 531-32), and authorities cited therein.
"As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. A number of jurisdictions have recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney's services . . . An attorney alleged to have erred in the preparation of a will may be held liable to the intended beneficiary of the will under either a tort or a contract theory of liability. Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81 (1981). Accordingly, courts have held that the intended beneficiary has a cause of action against an attorney who failed to draft a will in conformity with a testator's wishes . . . failed to supervise the proper execution of a will . . . or failed to advise a client of the consequences of not revising a will . . ." (Citations omitted; emphasis added.) Krawczyk v. Stingle, 208 Conn. 239, 244-45, 543 A.2d 733 (1988).
The Appellate Court's opinion in Leavenworth v. Mathes, 38 Conn.App. 476, 661 A.2d 632 (1995), clarifies the circumstances in which an attorney owes a nonclient a duty to exercise due care in preparing a will. In Leavenworth, the plaintiffs were beneficiaries under a will, who brought suit against an attorney for failing to take steps to ensure that the will was adequately funded. Id., 477-78. The Appellate Court, after reviewing the law set forth in Krawczyk v. Stingle, supra, 208 Conn. 244-45, proceeded to contrast the case before it with those in which the Krawczyk court had stated liability would exist: "The claims of malpractice alleged in these cases [recognizing attorneys' liability to nonclients] focus on errors in the drafting and execution of the wills. Here, the plaintiffs make no claim that a particular bequest was not included as directed, or that the will was improperly drafted or executed. There is no claim that the defendant failed to draft the will in accordance with his client's wishes, or that the testatrix was incompetent at the time of making the will. It is an attorney's obligation to use the care, skill, diligence and knowledge that a reasonable, prudent lawyer would exercise in order to draft the will according to the wishes of the testatrix. The plaintiffs can point to no authority to support the proposition that an attorney owes a duty to the beneficiaries to ensure the existence of testamentary assets when drafting the instrument." Leavenworth v. Mathes, supra, 480.
Moreover, the courts of this state are mindful that "[a] central dimension of the attorney-client relationship is the attorney's duty of [e]ntire devotion to the interest of the client." (Internal quotation marks omitted.) Krawczyk v. Stingle, supra, 208 Coun. 246. Accordingly, "[c]ourts have refrained from imposing liability when such liability had the potential of interfering with the ethical obligations owed by an attorney to his or her client." Id. For example, the Supreme Court has concluded that "the imposition of liability to third parties for negligent delay in the execution of estate planning documents would not comport with a lawyer's duty of undivided loyalty to the client" because it would "create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily." (Emphasis added.) Id.
In the present case, the plaintiffs allege that when the decedent retained the defendant to prepare his will, the decedent designated his sister and her descendents as beneficiaries. The plaintiffs further allege that the decedent maintained an attorney-client relationship with the defendant for many years, and that the decedent made clear his desire to benefit his sister and her descendants. They also allege that the defendant knew that the decedent intended for his sister's heirs to benefit from the will. Construing the complaint in the light most favorable to the plaintiff, the plaintiff has made sufficient allegations that they were intended beneficiaries of the will the defendant drafted. The focus of the plaintiffs' claim is on the defendant's alleged errors in drafting the will, and this is therefore the type of case where courts have permitted an action by intended beneficiaries. Furthermore, imposing a duty to nonclients under the circumstances presented in this case would not conflict with the attorney's duty of loyalty to the client. Rather, imposing liability where an attorney has drafted a will inconsistent with the client's wishes supports and reinforces the attorney's duty of loyalty to the client.
The defendant nevertheless asks the court to engage in the foreseeability and public policy inquiry set forth in Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 479-80, 823 A.2d 1202 (2003), to determine whether a duty exists in the present case. The court will not do so. Because the appellate courts of this state, as indicated above, have already determined that an intended beneficiary of a will may maintain an action where a bequest fails because of the attorney's negligence in drafting the will, the court will not conduct anew such an policy inquiry.
The defendant further argues that count one is legally insufficient because the plaintiffs have failed to set forth facts showing that both the decedent and the defendant intended to benefit the plaintiffs. In support of this argument, the defendant has cited cases stating that "the intent of both parties, rather than just one of the parties to a contract, determines whether a third party is to be afforded third party beneficiary status under a contract." Grigerik v. Sharpe, 247 Conn. 293, 317, 721 A.2d 526 (1998); see also Plotkin v. Barot, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0346547 (June 15, 1999, Skolnick, J.). Those cases, however, state that rule in the context of claims for breach of contract, not claims of legal malpractice such as the one set forth in count one in the present case. The defendant has failed to provide any authority that such a requirement exists in the context of a legal malpractice claim.
Nevertheless, even if the defendant is correct that both parties to the contract for legal services must have intended to benefit a third party in order for the third party to maintain an action under a theory of legal malpractice, here the plaintiffs have sufficiently alleged that both the defendant and the decedent intended to benefit the plaintiffs in the present case. The plaintiffs allege that the decedent's intent was that the plaintiffs' grandmother, who was the decedent's sister, and her descendants should benefit under his will and that the decedent made this intent clear to the defendant. The plaintiffs further allege that the defendant negligently drafted the will in such a way that the bequest to the plaintiffs' grandmother lapsed as a result of their grandmother predeceasing the decedent, that the bequest would not have lapsed had the will been admitted to probate in Connecticut rather than Arkansas, and that the defendant negligently failed to take into account the fact that the decedent was domiciled in Arkansas and that under Arkansas law the bequest would lapse under those circumstances. Although there is no specific allegation that the defendant intended for the plaintiffs to benefit from the will, for purposes of a motion to strike, "[t]he allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail What is necessarily implied need not be expressly alleged." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996). The clear implication of the plaintiffs' allegations is that the defendant intended to draft the will in such a way that the plaintiffs would become the beneficiaries of the bequest to their grandmother in the event that their grandmother predeceased the decedent, but negligently failed to so draft the will. The plaintiffs have set forth facts showing that both the decedent and the defendant intended to benefit the plaintiffs.
The defendant also argues that count one of the complaint is legally insufficient because the plaintiffs have failed to set forth facts indicating that the primary or direct purpose of the contract between the decedent and the defendant was to benefit the plaintiffs. The defendant bases this argument on the case of Krawczyk v. Stingle, supra, 208 Conn. 239, in which our Supreme Court stated: "Determining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy . . . In addressing this issue, courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party. See, e.g., Needham v. Hamilton, [ 459 A.2d 1060, 1062-63 (D.C. 1983)]; Pelham v. Griesheimer, 92 Ill.2d 13, 21, 440 N.E.2d 96 (1982). Additional factors considered have included the foreseeability of harm, the proximity of the injury to the conduct complained of, the policy of preventing future harm and the burden on the legal profession that would result from the imposition of liability." Krawczyk v. Stingle, supra, 208 Conn. 245-46.
As the language of the Krawczyk opinion makes clear, "whether the primary or direct purpose of the transaction was to benefit the third party" is the principal factor to be examined by a court in determining, as a question of public policy, when attorneys should be held liable to parties with whom they are not in privity. As previously indicated, however, the appellate courts of this state have already determined that, as a matter of public policy, an intended beneficiary of a will may bring an action against the attorney whose negligent drafting of the will has caused the bequest to fail. See id., 244-45; Leavenworth v. Mathes, supra, 38 Conn.App. 480. As the District of Columbia Court of Appeals stated in Needham v. Hamilton, supra, 459 A.2d 1060, one of the cases on which our Supreme Court relied in Krawczyk, "it is obvious that the main purpose of a contract for the drafting of a will is to accomplish the future transfer of the estate of the testator to the beneficiaries named in the will . . ." Needham v. Hamilton, supra, 459 A.2d 1063. In other words, the primary or direct purpose of a contract for the drafting of a will is to benefit the intended beneficiaries. As stated previously, the plaintiffs in the present case have sufficiently alleged that they were intended beneficiaries of the decedent's will. The court does not agree with the defendant that the plaintiffs have failed to set forth facts indicating that the primary or direct purpose of the contract between the decedent and the defendant was to benefit the plaintiffs.
Finally, the defendant argues that count one is legally insufficient because the plaintiffs are seeking noncompensable damages. Specifically, he argues that the plaintiffs may not claim damages for any amounts to which they would have been entitled under a properly drafted will, because they have already received a full and final settlement of their claims from the decedent's estate. The defendant also argues that the plaintiffs have failed to plead any factual basis for an award of attorneys fees.
The only allegation in count one of the complaint regarding a settlement is set forth in ¶ 21 which states in full: "On or about November 1, 2006, the Plaintiffs compromised their claim against the estate of Andrew C. Katrinak, resulting in the Plaintiffs receiving only one half the distribution to which they were entitled based upon the testator's intent. This case is now ripe for adjudication." (Emphasis added.) There are no other allegations regarding the alleged claim by the plaintiffs against the decedent's estate, and, accordingly, the court has no basis to determine the nature of that claim or its relationship to the plaintiffs' present claim against the defendant for malpractice in the drafting of the will. In light of the standard for a motion to strike, which requires the court to view the complaint in the light most favorable to the plaintiffs, it would be inappropriate for this court to assume that the plaintiffs' present malpractice claim against the defendant in his capacity as the drafter of the will is barred by a prior settlement with the decedent's estate.
The defendant also argues that count one is legally insufficient because the plaintiffs seek attorneys fees, which the defendant argues are noncompensable. A motion to strike an entire count may not be granted merely because one element of damages is improper, where the count sets forth sufficient facts to state a cause of action. Robinson v. McWeeney, Superior Court, judicial district of New Haven, Docket No. CV 95 0379968 (April 23, 1996, Corradino, J.) [16 Conn. L. Rptr. 514]; Interstate Aviation, Inc. v. Meriden, Superior Court, judicial district of New Haven at Meriden (April 27, 1994, Stanley, J.); see also Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952) (demurrer inappropriate where it challenged compensability of certain elements of damage rather than attacking complaint as one setting forth defective cause of action).
For the foregoing reasons, the court denies the motion to strike count one of the complaint.
Count Two: Breach of Contract
In the second count, in addition to the facts previously set forth, the plaintiffs allege that they are third-party beneficiaries of the contract entered into between the defendant and the decedent and that they have been damaged by the defendant's breach of that contract. The defendant argues that the second count is legally insufficient as a breach of contract claim because (1) it is nothing more than a negligence claim couched in the language of contract and (2) the plaintiffs have failed to allege that the primary or direct purpose of the agreement between the defendant and the decedent was to benefit the plaintiffs. In response, the plaintiffs argue that a plaintiff may bring claims sounding in both tort and contract against an attorney, and that count two, when read in the light most favorable to the plaintiffs, states a valid claim for breach of contract.
The defendant first argues that count two is legally insufficient because it is nothing more than a negligence claim couched in the language of contract. Specifically, he argues that the plaintiffs have failed to allege that the defendant and decedent bargained for a specific result that the defendant failed to deliver.
Some cases have suggested that an allegation that the parties bargained for a specific result is a requirement for bringing a breach of contract claim against an attorney. For example, in Connecticut Education Ass'n., Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 457-58, 938 A.2d 1249 (2008), the Appellate Court stated. "It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services . . . In a claim such as this, the client [usually] has the option to sue for either breach of an implied contract . . . negligence or both . . . That is not to say however, that a party may 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. Thus, we 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. Additionally, that case is distinguishable from a true contract claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result." (Citations omitted; internal quotation marks omitted.) Id., 457-58.
Other cases, however, make it clear that a claim of breach of contract against a professional may also be based on an allegation that the professional breached an agreement requiring him or her to take specific action. In Rosato v. Mascardo, the defendant argued that "courts in Connecticut have generally disallowed contract claims in medical malpractice actions when they do not contain a claim for breach of a promise to achieve a particular result." Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). The Appellate Court rejected this reading of the case law, stating: "We read the cases relied on by the defendant for that proposition differently. In those cases, the courts restricted the contract claims not because the plaintiffs did not plead a failure to achieve a particular result, but because their claims sounded in malpractice and failed to disclose any breach of a contractual duty owed to them by the defendants. See Barnes v. Schlein, [ 192 Conn. 732, 735, 473 A.2d 1221 (1984)] (complaint sounded in negligence because `gravamen of the suit was the alleged failure by the defendant to exercise the requisite standard of care'); Rumbin v. Baez, 52 Conn.App. 487, 491-92, 727 A.2d 744 (1999) (claim `essentially a medical malpractice claim clothed in the language of contract' because there was `no allegation of a breach of a contractual duty') . . ." Rosato v. Mascardo, supra, 82 Conn.App. 411-12. The court concluded that when the plaintiff "alleged that she had bargained for a breast lift and instead received a breast lift and silicon implants"; id., 411; "[t]he plaintiff alleged the breach of an agreement as to a medical procedure." Id., 412.
Additionally, in Connecticut Education Ass'n., Inc. v. Milliman USA, Inc., supra, 105 Conn.App. 446, "[t]he plaintiff alleged that the defendant agreed to maintain [a] pension plan in compliance pursuant to the Internal Revenue Service code and ERISA and agreed, as part of said contract to perform said services with due diligence and reasonable care. It further alleged that the defendant breached the contract, inter alia, by failing to provide competent and professional legal services necessary and appropriate to maintain the [pension plan] in good standing as a qualified defined benefit pension plan, and to perform said services with due diligence and reasonable [care]." (Internal quotation marks omitted.) Id., 459. The court concluded that "these allegations set forth a breach of contract claim, and are more than a malpractice claim couched in the language of promise and breach. The plaintiff's allegations refer to specific actions required by the plaintiff, that is, that the defendant maintain the pension plan in compliance with the Internal Revenue Services code and ERISA. The operative complaint further sets forth a claim that the defendant had agreed to undertake those specific actions with due diligence and reasonable care." (Emphasis added.) Id., 459-60. The court accordingly concluded that the claim sounded in contract. Id., 460.
Finally, in Weiner v. Clinton, the Appellate Court held that "[t]he second count of the complaint contains no allegations that refer to specific actions required by the defendant . . . nor does it contain allegations of the defendant's refusal to take certain actions . . . The second count does not assert that a defendant who is a professional breached an agreement to obtain a specific result. Rather, it simply repeats the allegation that the defendant breached the standard of care applicable to legal professionals. Accordingly, the court properly pierced the pleading veil and concluded that the plaintiffs' claim was one sounding in malpractice masked in contract garb." (Emphasis added.) Weiner v. Clinton, 106 Conn.App. 379, 385-86, 942 A.2d 469 (2008). It is clear from these cases that a plaintiff may state a cause of action sounding in contract against an attorney if the plaintiff alleges facts indicating that the attorney breached an agreement to obtain a specific result or to undertake a specific action.
In the present case, construing the plaintiffs' complaint in the light most favorable to sustaining the complaint, the plaintiffs have sufficiently pleaded a cause of action in contract. The second count sets forth more than a promise to work diligently or in accordance with professional standards. The 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. The plaintiffs further allege 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. The 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. These allegations are more than a malpractice claim couched in the language of promise and breach and they set forth a breach of contract claim.
The defendant next argues that count two is legally insufficient because the plaintiffs have failed to allege that the primary or direct purpose of the agreement between the defendant and the decedent was to benefit the plaintiffs. This argument is foreclosed by the court's decision in count one. As stated in that section, the requirement that the plaintiffs allege that the primary or direct purpose of the attorney-client agreement was to benefit that plaintiffs is satisfied in the present case because the plaintiffs have alleged facts sufficient to establish that they were intended beneficiaries of the decedent's agreement with the defendant.
The court denies the motion to strike as to count two.
Count Three: Breach of Duty of Good Faith and Fair Dealing
In count three, the plaintiffs repeat the allegations of the previous counts and further allege that the defendant breached the duty of good faith and fair dealing implicit in the agreement between the defendant and the decedent. They allege that the defendant breached that duty in that he 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. The defendant argues that count three is legally insufficient because (1) it suffers from the same purported deficiencies the defendant raised with regard to count two, (2) the alleged acts of bad faith were not carried out in the defendant's capacity as the decedent's attorney, (3) the plaintiffs have failed to allege facts demonstrating that the defendant acted with an dishonest purpose, and (4) the facts alleged do not demonstrate the nature of the plaintiff's injury. As with count two, the plaintiffs argue in response that a plaintiff may bring claims sounding in both tort and contract against an attorney, and that this count, when read in the light most favorable to the plaintiffs, states a valid contract claim.
The defendant first argues that count three suffers from the same purported deficiencies he raised with regard to count two. For the same reasons discussed above with regard to count two, this ground for the motion to strike fails.
The defendant next argues that count three is legally insufficient because the alleged acts of bad faith were not carried out in the defendant's capacity as the decedent's attorney. The defendant has failed to offer any authority in support of this argument, and the court has found no authority for the proposition that an attorney who otherwise would be liable for acts committed in bad faith may be shielded from liability by asserting that he or she was acting in some capacity other than as attorney. Accordingly, this ground to strike fails.
Next, the defendant argues that count three is legally insufficient because the plaintiffs have failed to allege facts demonstrating that the defendant acted with a dishonest purpose. "[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 . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or 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, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted; internal quotation marks omitted.). De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004).
When read in the light most favorable to the plaintiffs, their complaint does not contain any allegations indicating that the defendant acted with a dishonest purpose. On the contrary, 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 plaintiff has not stated a claim of bad faith. Accordingly, the third count fails to set forth a legally sufficient cause of action for breach of the duty of good faith and fair dealing. The defendant's motion to strike on this ground is granted.
Although the foregoing presents a sufficient basis for the granting of the motion to strike on this count, the defendant's final argument will be addressed for the sake of completeness. The defendant argues that count three is legally insufficient because the facts alleged do not demonstrate the nature of the plaintiff's injury. Specifically, the defendant argues that although the plaintiffs allege that they "lost the value of their interest in the estate of the decedent," they have failed to allege any facts to support that conclusion. The defendant states that "[w]hat was lost and how it was lost is impermissibly left entirely to speculation and conjecture."
Contrary to the defendant's assertions, the plaintiffs have alleged the nature of their loss. Specifically, they allege that, had the defendant not breached his agreement with the decedent, they would have received 20 percent of the decedent's estate, and that, as a result of the breach, they obtained only 10 percent of the estate by way of a settlement with the estate.
Nevertheless, because the plaintiffs have failed to allege any facts demonstrating that the defendant acted with a dishonest purpose, the motion to strike as to count three is granted.
Count Four: Reckless Misrepresentation
The fourth count of the plaintiffs' complaint sounds in reckless misrepresentation. In addition to the facts alleged in the previous counts, the plaintiffs further allege that the defendant made various statements after the decedent's death, which were untrue, and that the plaintiffs reasonably relied on those statements to their detriment. In particular, the plaintiffs allege that the defendant told them that they were beneficiaries entitled to 20 percent of the estate and that Connecticut law applied to the estate. The defendant argues that count four is legally insufficient because the plaintiffs have failed to allege (1) how the alleged statements were untrue, (2) facts demonstrating reliance on the allegedly false representations and (3) what action the defendant intended to induce by making the alleged representations. The plaintiffs respond by arguing that they have specifically alleged the nature of the representations the defendant made.
As a preliminary matter, it is noted that claims of negligent misrepresentation and reckless misrepresentation are closely related. "Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts [1977]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929 (2005).
"A claim of reckless or intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation `to induce the other party to act upon it.' Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Reckless misrepresentation requires `[t]he intent to defraud.' DeLuca v. C.W. Blakeslee Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978)." Studio Zee, LLC v. The Edge Tattoo Co., Superior Court, judicial district of New Haven, Docket No. CV 01 0449758 (March 25, 2002, Zoarski, J.T.R.) (31 Conn. L. Rptr. 701, 702-03). "[A] fraudulent representatton . . . is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it . . . [A]t common law, fraudulent misrepresentation and intentional misrepresentation are the same tort." (Citation omitted; emphasis added; internal quotation marks omitted.). Kramer v. Petisi, 985 Conn. 674, 684 n. 9, 940 A.2d 800 (2008).
The defendant first argues that count four is legally insufficient because the plaintiffs have failed to allege how the alleged statements were untrue. Contrary to the defendant's assertion, the fourth count, when read in favor of the plaintiffs, does set forth facts indicating why the defendant's alleged statements were false. Specifically, the plaintiffs have alleged that they were not beneficiaries of the 20 percent bequest to their grandmother because the bequest lapsed upon their grandmother's death. They have also alleged that Connecticut law did not apply to the will because the decedent resided in Arkansas at the time of his death. Accordingly, the defendant's first argument to strike fails.
The defendant further argues that count four is legally insufficient because the plaintiffs have failed to allege facts demonstrating reliance on the allegedly false representations and what the defendant intended to induce by making the alleged representations. An examination of the complaint confirms that the plaintiffs allege no facts that would show that the plaintiffs acted in reliance on the defendant's statements or that the plaintiffs sustained pecuniary loss as a result of the reliance. The fourth count contains mere legal conclusions that "[t]he Plaintiffs reasonably relied upon the statements and representations of the defendant to their detriment" and that "[a]s a result . . . the Plaintiffs were damaged." The plaintiffs do not allege what the plaintiffs did or did not do in reliance on the defendant's statements and how they were damaged as a consequence. Conclusory allegations and general assertions made without alleging specific facts to support the cause of action are not sufficient to withstand a motion to strike. "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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Moreover, the plaintiffs do not allege that the defendant made the misrepresentations to induce the defendant to act upon them. Accordingly, this count of the plaintiffs' complaint fails to set forth all the requirements for a tort of reckless misrepresentation and the motion to strike as to the fourth count is granted.
Count Five: Negligent Misrepresentation
The fifth count sounds in negligent misrepresentation. In addition to the facts previously alleged, the plaintiffs allege that the defendant negligently breached his duty to make truthful representations to the plaintiffs by making statements that he knew or reasonably should have known were false. The defendant argues that count five is legally insufficient because (1) "the plaintiffs have not sufficiently alleged the falsity of the [defendant's] statements" and (2) the plaintiffs have failed to allege how they relied on the defendant's statements. The plaintiffs respond by arguing that the defendant's statements were false when made.
The Connecticut Supreme Court has stated: "This court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., supra, 274 Conn. 72-73. "[A]n action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have know was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 626.
The defendant's first argument, that the plaintiffs have failed to sufficiently plead the falsity of the defendant's statements, is fully addressed in the previous section of this memorandum, dealing with the plaintiffs' reckless misrepresentation claim. For the same reasons stated in that section, the motion to strike is not granted on count five on that basis.
As for the defendant's remaining argument, it is submitted that the fifth count fails to meet the requirement that "a plaintiff allege that a defendant provided false information which was relied on by the plaintiff and caused the plaintiff to suffer damages." Grabarek v. J's Construction Masonry, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 00 0092444 (July 8, 2002, Shapiro, J.). The fifth count contains no factual allegations of how the plaintiffs acted or changed their positions in reliance on the defendant's statements, and how the plaintiffs were harmed as a result of such reliance. Accordingly, the defendant's motion to strike is granted as to the fifth count.
Count Six: Breach of Fiduciary Duty
In count six, the plaintiffs repeat the allegations of the previous counts and further allege that, as executor of the decedent's estate, the defendant "owe[d] a fiduciary duty to the estate and each beneficiary." They further allege that the defendant breached the fiduciary duty "he owed to the plaintiffs in that his conduct was contrary to their best interest as he has deprived them of their lawful inheritance." The defendant argues the count six is legally insufficient because the plaintiffs have failed to allege facts demonstrating that they were beneficiaries of the estate, and therefore no fiduciary duty was owed to them. In response, the plaintiffs argue that "this action is not an attempt to relitigate probate issues, but a separate claim for malpractice."
The defendant also argues that count six is controlled by Arkansas law, and sets forth a choice-of-law analysis in his memorandum of law. He has failed, however, to offer any analysis as to what Arkansas law provides with regard to a claim of breach of fiduciary duty, beyond a statement, without citation, that "Arkansas has determined that once an estate's final accounting has been approved, its executors are no longer subject to suit claiming they breached their duties as executor."
Even if the defendant had fully briefed this issue, it would not support the granting of the motion to strike because it relies on a fact not alleged in the complaint, namely, the defendant's assertion that the estate's final accounting has been approved. "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
As a preliminary matter, it is not entirely clear which "conduct" of the defendant the plaintiff's claim violated the defendant's fiduciary duties. The conduct of the defendant alleged in this count, however, consists of his alleged negligence and breach of contract in drafting the decedent's will, and his alleged misrepresentation of facts to the plaintiffs following the decedent's death. By its own allegations, however, count six relates to the fiduciary duties the defendant possessed "as executor . . ." Accordingly, the plaintiffs' claim of breach of fiduciary duty does arise from the defendant's conduct in his capacity as the drafter of the will, and must be related instead to the alleged misrepresentations the defendant made to the plaintiffs following the decedent's death.
"[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). "An executrix has a fiduciary responsibility to maintain an undivided loyalty to the estate . . . and must diligently represent the rights of the heirs and distributees and also those of creditors." (Citation omitted; emphasis added; internal quotation marks omitted.) Cadle Co. v D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004). "[A]n executrix must remain loyal to the estate that she is administering and must not act out of self-interest or for the interests of parties other than the heirs, distributees, and creditors of the estate." Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996). "[A]ny one acting in a fiduciary relation shall not be permitted to make use of that relation to benefit his own personal interest. This rule is strict in its requirements and in its operation. It extends to all transactions where the individual's personal interests may be brought into conflict with his acts in the fiduciary capacity, and it works independently of the question whether there was fraud or whether there was good intention . . . The rule applies alike to agents, partners, guardians, executors and administrators." (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 402, 721 A.2d 1181 (1998).
The plaintiffs do not allege that they are the heirs, distributees, or creditors of the estate. On the contrary, the gravamen of their complaint in that, as a result of the defendant's conduct, they were prevented from being beneficiaries under the will. Therefore, the plaintiffs' own allegations do not support their legal conclusion that the defendant owed the plaintiffs a fiduciary duty as an executor of the decedent's estate. Accordingly, the motion to strike count six is granted.
CONCLUSION
For the reasons stated above, the court denies the defendant's motion to strike as to counts one and two and grants the motion as to counts three through six.
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