Opinion
No. CV 05 4001883
March 23, 2006
STATEMENT OF THE CASE
The plaintiffs, Robert Tracey and Claudette Tracey, filed a substitute count four of the revised complaint on February 25, 2005, against the defendant, Gerald M. Still. This complaint alleges the following. The plaintiffs owned a condominium unit located in Hamden, Connecticut, which was damaged in a fire on January 10, 1998. The condominium association failed to properly repair their unit, as required by the condominium association's declaration. The defendant is an attorney licensed to practice in Connecticut, and the plaintiffs retained him in April 1999, to take legal action against the association and others who the plaintiffs believed were responsible for failing to repair and restore their unit to its pre-fire condition. The plaintiffs paid the defendant a retainer. The plaintiffs periodically called the defendant about the status of the case and he assured them that their claim was being processed. In January 2002, after not hearing from the defendant, the plaintiffs retained another law firm to pursue their claim. They subsequently learned that the defendant had not prosecuted their claim and had no excuse for his inaction.
In the initial complaint, the plaintiffs alleged breach of contract, legal malpractice, loss of business opportunity and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The complaint was subsequently revised, and in a memorandum of decision dated June 8, 2005, this court granted the defendant's motion to strike counts three and four of the revised complaint alleging loss of business opportunity and violation of CUTPA, respectively. Tracey v. Still, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 05 4001883 (June 8, 2005, Stevens, J.) ( 39 Conn. L. Rptr. 471, 475). In response to the ruling on the motion to strike, the plaintiffs filed a substitute count four and prayer for relief reasserting the CUTPA claim. In the substitute prayer for relief, the plaintiffs again seek damages permitted under CUTPA. Pending before the court is the defendant's motion to strike this substitute count four and the corresponding prayer for relief. The parties filed memoranda and the court heard oral argument on this motion. For the following reasons, the motion to strike is denied.
DISCUSSION
The law is established that "[t]he 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). "Practice Book § 10-39(a) provides in relevant part: `Whenever any party wishes to contest . . . the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof.'" Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 204 n. 3, 878 A.2d 347 (2005).
"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.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, supra, 154.
The defendant's ground for striking the CUTPA claim is that the plaintiffs' realleged CUTPA claim "remains legally insufficient, and fails to state a claim upon which relief can be granted." The defendant argues that the plaintiffs' allegations are conclusory, merely restate their malpractice and breach of contract claims and do not set forth sufficient facts or substantial aggravating factors to establish a violation of CUTPA.
In response, the plaintiffs argue that they have pleaded sufficient facts to establish a CUTPA violation. They maintain that they have alleged that the defendant's conduct was deceptive; unfair and immoral; and offensive to public policy. They particularly rely on their allegations that the defendant solicited legal business when he knew that he was not prepared to provide these services, failed to account to his clients, the plaintiffs, and hid his lack of performance from them. They contend that this conduct was within the scope of the entrepreneurial aspects of the defendant's law practice, and therefore, governed by CUTPA.
"The operative provision of [CUTPA] . . . § 42-110b(a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. General Statutes § 42-110a(4)." (Internal quotation marks omitted.) Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998).
CUTPA "provides a remedy for a person who has sustained an ascertainable loss as a result of conduct that is immoral, unethical, oppressive or unscrupulous." Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 343, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002). "The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy." (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005). "CUTPA, by its own terms, applies to a broad spectrum of commercial activity." (Internal quotation marks omitted.) Id. "The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 310, 869 A.2d 1198 (2005).
Applying CUTPA to the practice of law, the Connecticut Supreme Court has held that "CUTPA's regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law." (Internal quotation marks omitted.) Heslin v. Connecticut Law Clinic of Trantolo Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983). "CUTPA [however] covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering — that is, the representation of the client in a legal capacity — [is] excluded for public policy reasons." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35, 699 A.2d 964 (1997). While the Supreme Court brought the field of law within the scope of CUTPA, it also explicitly held that "professional negligence — that is, malpractice — does not fall under CUTPA." (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998).
"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." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). "The `entrepreneurial' exception is . . . a specific exception from CUTPA immunity for a well-defined set of activities — advertising and bill collection, for example . . . It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability. Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature." (Citation omitted.) Id., 782. "Many decisions made by attorneys eventually involve personal profit as a factor, but are not considered part of the entrepreneurial aspect of practicing law . . . The attorney's financial considerations do not place all of these actions [referring to attorneys' decisions that may eventually involve personal financial considerations] into the category of entrepreneurial aspects of practicing law. Using an attorney's financial considerations as a screening mechanism for separating professional actions from entrepreneurial ones would dissolve the distinction between the two, subjecting attorneys to CUTPA claims for any decision in which profit conceivably could have been a factor . . . [The Supreme Court] reject[s] such an interpretation." Id., 783.
Thus, the dispositive issue for this court to consider is whether the allegations of the complaint implicate the entrepreneurial or representational aspects of the defendant's legal practice. A review of the case law sheds some light on this consideration. The cases indicate that where the complaint concerns issues involving the heart of representation such as competence, strategy or duty, the conduct is not within the scope of CUTPA. For example in Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, supra, 247 Conn. 48, the conduct involved a failure to act in the course of providing legal services, which included the failure to file necessary papers for a commercial client to legally operate its business in Connecticut. In Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 766, the court determined that an allegation that the opposing attorneys obtained an execution on a judgment on behalf of their client in excess of what was owed was not within the scope of CUTPA.
Numerous Superior Court cases have also addressed this issue. In DePrimo v. Chiarelli, Superior Court, judicial district of New Haven, Docket No. CV 01 0454691 (February 9, 2004, Zoarski, J.T.R.), the court concluded that allegations that the conduct of a lawyer and his firm in fraudulently inducing their client to sign an appearance form; filing an appearance form against his express wishes and explicit instructions; refusing to represent him in a custody case without an additional fee; terminating their representation of him without his permission or consent; and filing two unethical, oppressive or unscrupulous lawsuits against him fell within the scope of the representational aspects of the practice of law. In another trial court case, Salzano v. Goulet, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 040287567 (April 18, 2005, Wiese, J.) ( 39 Conn. L. Rptr. 166), the court decided that an attorney and his law office's alleged conduct were not within the scope of the entrepreneurial aspect of the practice of law when their alleged conduct stemmed from either their failure to inquire into the zoning status of a parcel of land or any conclusions drawn by them after any such inquiry. In the present case, as previously noted, this court relied on the Haynes decision to find that a misrepresentation, even if intentionally made by an attorney about the work performed on a client's file, does not by itself implicate any entrepreneurial aspects of the lawyer's practice. Tracey v. Still, supra, 39 Conn. L. Rptr. 474.
The relevant allegations in the prior count stricken by the court included the following: "[The defendant] gave his clients, the [plaintiffs] no affirmative indication that his representation was not continuous and ongoing until May 4, 2004; [the defendant] not only failed to provide proper legal representation in that he (a) Accepted a retainer to file an action against the condominium association or other appropriate parties and did not file that action; (b) Did not act with reasonable diligence and promptness in representing his clients; (c) Did not zealously represent his clients' interests as they pertained to their damaged condominium and restoring that condominium to its original condition; (d) Did not abide by his clients' decisions concerning goals and objectives of representation, particularly with regard to achieving restoration of their damaged condominium; (e) Did represent to the plaintiffs that he was `taking care of it' and that the legal action had been filed and was being actively pursued knowing these representations to be untrue; (f) Failed to keep his clients reasonably informed about their claim; (g) Failed to communicate with his clients regarding the status of his claim and his failure to file an action; and (h) Failed to provide succeeding attorneys with the file and ignored repeated written entreaties from those attorneys, causing further delay in any attorney bringing the [plaintiffs'] claim. [B]ut also furthermore he attempted to conceal his breach of contract and/or the standard of care by periodically stating that he was handling the matter and subsequently, pointedly, failing to respond to repeated requests for the file for the claim."
In concluding that these allegations did not fall within the purview of the entrepreneurial aspect of the practice of law, this court stated: "A misrepresentation, even an intentional one, made by an attorney about his work on a client's file does not by itself implicate any entrepreneurial aspects of a lawyer's practice as contemplated by the Haynes decision: Again, this is another issue controlled by the allegations of the complaint, and in the present case, the plaintiffs have only alleged that the defendant acted wrongfully in regard to his legal representation of them, and then deceptively denied or concealed his wrongful actions upon inquiry. The court agrees with the defendant that the underlying nature of the plaintiffs' claim is nothing more than a professional malpractice claim . . . recast as a CUTPA claim." Tracey v. Still, supra, 39 Conn. L. Rptr. 474.
On the other hand, in cases involving the hiring of the attorney or the collection of the attorneys fee, the Superior Court has determined that these activities do pertain to the entrepreneurial aspects of the practice of law. A Superior Court case that supports the plaintiffs' position is Roemmele v. Law Offices of John Haymond, Superior Court, judicial district of New London, Docket No. CV 98 0547182 (May 4, 1999, Hurley, J.T.R.) ( 24 Conn. L. Rptr. 441, 442), where the court found that the defendant's alleged conduct in agreeing to file suit on behalf of its client and then reneging on that promise pertained to the entrepreneurial aspects of the practice of law. In both Nosik v. Bowman, Superior Court, judicial district of Fairfield, Docket No. CV 00 0379089 (July 12, 2002, Doherty, J.), and Stevenson v. McMillan, Superior Court, judicial district of Fairfield, Docket No. CV 040409731 (February 24, 2005, Skolnick, J.) ( 38 Conn. L. Rptr. 788, 789), the courts noted that where an attorney misrepresents to a client the size of his firm and his areas of expertise and these misrepresentations affected the client's decision to hire the attorney, the conduct is more akin to the commercial aspects of the practice of law.
In Nosik v. Bowman, supra, Superior Court, Docket No. CV 00 0379089, the court found that the attorney's alleged conduct did not pertain to his legal representation of the client, but granted the defendant attorney's motion to strike the CUTPA count on the ground that the allegations did not satisfy the three-prong "cigarette rule" for CUTPA.
Similarly, in Kegeles v. Bergman, Horowitz Reynolds, P.C., Superior Court, judicial district of New Haven, Docket No. CV 96 0391439 (November 24, 1999, Levin, J.), the court determined that how the price of legal services was determined, how legal services were billed and how fees were collected, and the way a law firm obtained, retained and dismissed their clients related to the entrepreneurial aspects of legal practice. See also Park v. Kramer, Superior Court, judicial district of New Haven, Docket No. CV 03 0475833 (January 27, 2004, Licari, J.) ( 36 Conn. L. Rptr. 410) (stating that whether proven conduct involving the post-representation billing or collection procedures of an attorney violated CUTPA was a mixed question of law and fact for the trier.).
To determine in the present case if the allegations set out in the substitute fourth count of the plaintiffs' revised complaint involve the entrepreneurial aspect of practicing law, the court "must review the plaintiff[s'] allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a [legal] malpractice claim recast as a CUTPA claim." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 38. In other words, the court must ascertain whether the allegations merely state a claim of simple professional negligence rather than an unfair trade practice in the entrepreneurial aspects of the defendant's business.
In their substitute CUTPA count, the plaintiffs repeat the allegations in paragraphs one through thirteen of count one, alleging a breach of contract, and count two, alleging professional negligence. In addition to those allegations, the plaintiffs allege the following: "[The defendant] solicited the [plaintiffs'] business and knew or should have known, he was not prepared to provide legal services to the [plaintiffs]; [w]ith the intention of deceiving the [plaintiffs,] [the defendant] gave his clients, [the plaintiffs] no affirmative indication that his representation was not continuous and ongoing until May 4, 2004; [the defendant] as part of the entrepreneurial, commercial, or business aspect of providing legal services, and apart from his professional duties of providing legal interpretation, advice, or counsel: (a) Accepted a retainer to pursue a claim, and if necessary, file an action against the . . . [c]ondominium [a]ssociation or other appropriate parties, a business commitment which he knew or should have known, from a business resources standpoint, he was unable to honor; (b) Failed to perform the routine business function of accounting to his clients with respect to services performed, after objectives had been established and money had changed; (c) Represented to the plaintiffs that he was `taking care of it' and that the legal action had been filed and was being actively pursued knowing these representations to be untrue and giving the [plaintiffs] false assurance; (d) Failed to provide succeeding attorneys with the file, a simple clerical act, and ignored repeated written entreaties from those attorneys causing further delay in any attorney bringing the [plaintiffs'] claim; (e) Actively sought to conceal his failure to perform legal services as part of a program of deception in the hope that his misconduct would have no adverse economic consequence for him personally; [the defendant's] misconduct, in soliciting legal business that he was not disposed or physically able to honor, in failing to account to his clients with respect to the prosecution of the undertaking, and in hiding his lack of performance from his clients and additional legal counsel retained by his clients by draping a veil of silence, were transgressions inherent to the entrepreneurial or business aspect of the provision of legal services; [and the defendant] in the conduct of a trade or commerce, operated his business in an unfair and deceptive manner which was immoral, unethical, oppressive, and unscrupulous and clearly offensive to public policy, in violation of [CUTPA]."
As stated earlier, the court has previously ruled that the CUTPA allegations of the revised complaint that preceded the substitute count at issue failed to establish a viable CUTPA claim. The crucial difference between that earlier CUTPA count and the substitute count is the allegation of solicitation. In the court's view, the solicitation of a client is more apt to involve the entrepreneurial, as opposed to the representational, aspects of a legal practice because such an activity more often involves conduct occurring before the creation of the attorney-client relationship. Reading the substitute count in a light most favorable to the plaintiffs, their allegations include the claim that the defendant solicited their business when he knew that he was not prepared to provide legal services to them, and after acquiring their case, he made representations to them indicating that the case was being pursued when he knew that these representations were false. This claim that the defendant deceptively solicited their business does not involve the defendant's professional competence, legal strategy or ethical behavior in the actual representation of the plaintiffs. Keeping in mind that CUTPA is remedial in nature and is to be liberally construed, the court concludes that a claim involving the entrepreneurial aspects of the legal practice is asserted under CUTPA when a plaintiff alleges that an attorney made knowingly false representations about his intentions to represent the plaintiff in order to secure deceptively the client's business.
CONCLUSION
Therefore, for all the foregoing reasons, the defendant's motion to strike the plaintiffs' substitute count four of the revised complaint alleging violations of CUTPA is denied.
So ordered.