Opinion
No. LLI CV 06-5001360
January 28, 2008
MEMORANDUM OF DECISION ON MOTION TO STRIKE SECOND REVISED COMPLAINT
In this case, plaintiff Michael Winter has sued his former criminal defense lawyer, defendant Robert D'Andrea, to recover money damages in connection with the defendant's representation of him in a criminal prosecution in Waterbury starting in January 2003. In his Second Revised Complaint dated July 26, 2007 ("Complaint"), the plaintiff claims, more particularly, that the defendant is liable to him under four distinct and different theories of legal liability, to wit: legal malpractice, as pleaded in Count One; breach of contract, as pleaded in his Count Two; violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes § 42-110a et seq., as pleaded in Count Three; and intentional infliction of emotional distress, as pleaded in Count Four of his Complaint.
On August 10, 2007, the defendant filed a timely motion to strike ("Motion") the second, third and fourth Counts of the Complaint on the common ground that they all failed, for different reasons, to state claims upon which relief can be granted. He contends, more specifically, that: the plaintiff's breach-of-contract claim must be stricken because it is simply a claim of legal malpractice couched in contract language; that the plaintiff's CUTPA claim must be stricken because it too is based upon allegations of legal malpractice, which are not actionable under CUTPA under settled Connecticut case law; and finally, that the plaintiff's claim of intentional infliction of emotional distress must be stricken because the alleged conduct upon which it is based cannot be found to have been "extreme and outrageous" as a matter of law. The defendant supported his Motion with an accompanying memorandum of law.
On October 10, 2007, the plaintiff filed his Objection to the defendant's Motion together with an opposing memorandum of law in which he responded, point by point, to each of the defendant's claims of legal insufficiency. The defendant filed his Reply to the plaintiff's Objection on October 25, 2007, and thereafter the Motion was argued before the Court on October 29, 2007. The case is now before the Court for decision on the Motion.
I. STANDARD OF REVIEW
"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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
"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] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] 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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006).
II COUNT TWO: BREACH OF CONTRACT
The defendant initially argues that the plaintiff's breach-of-contract claim is legally insufficient because it merely states a claim of legal malpractice couched in contract language. The plaintiff disagrees, countering that he has sufficiently alleged facts demonstrating that the defendant breached his contractual obligations to him.
"[A]lthough one may bring against an attorney an action sounding in both negligence and contract . . . one [cannot] bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract." (Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 79, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). As the Appellate Court explained in Alexandru, "[n]otwithstanding that embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach, [w]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged [the attorney's] services." (Internal quotation marks omitted.) Id., 79-80. "[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." Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003). Such a claim "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." Id.
In his second count, the plaintiff has pleaded that, although he obtained the legal services of the defendant to provide him skilled and competent legal representation, the defendant failed to provide him such representation in numerous ways. While the plaintiff lists and describes in great detail the many specific ways in which the defendant was allegedly negligent in representing him, each such allegation clearly relates to and finds fault with the manner in which the defendant rendered professional services to him in the underlying criminal case. Importantly, the plaintiff does not allege that the parties reached an agreement for a specific result. Instead, he claims only that "the defendant assured him that he would diligently and faithfully represent him in this sensitive matter, . . . that he had the skill and time to do so[,] . . . and that the matter would be over quickly[.];" Complaint, Count II, ¶ 36(a)-(b). These are not promises to achieve specific results which, if breached, are actionable in a breach-of-contract action.
One subparagraph of the Complaint indirectly alleges that, at some point in the course of the parties' attorney-client relationship the defendant "agree[d]" with the plaintiff to "seek a mental health care professional to evaluate the plaintiff or provide the plaintiff with the name of any such professional." Complaint, Count II, ¶ 36(e). It does so, more particularly, by alleging that, "[d]espite his agreement to do so, the defendant failed, refused or neglected to seek" such a mental health care professional to evaluate the plaintiff, or provide the plaintiff with the name of any such professional. Id. This, however, does not transform the plaintiff's malpractice claim into a claim for breach of contract for failure to achieve a specific agreed-upon result, for the agreement in question went only to means by which the defendant would attempt to achieve a favorable result in the pending case and the balance of the Complaint makes it clear that such means were in fact used by the defendant, albeit in what the plaintiff claims to have been a negligent manner. Any claim based upon alleged negligence in the use of particular means to represent the plaintiff sounds only in legal malpractice, not in breach of contract.
The case relied upon by the plaintiff in his opposing memorandum, Emmes Realty v. Weisman Law Offices, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001877 (April 16, 2007, Upson, J.), is inapplicable to this case. There, the plaintiff's breach-of-contract claim was held to be legally sufficient because it alleged, inter alia, that the plaintiff's contract for services with the defendant law firm was based upon the latter's specific assurance, both verbally and in writing, that such services would include the achievement of a particular result, to wit: the setting aside of a particular contract and the resulting restoration of title to a particular property to the plaintiff. Id. Here, by contrast, as previously noted, there is no allegation that the defendant contracted with the plaintiff to achieve a specific result in the plaintiff's pending criminal case.
This case is therefore substantially similar to Alexandru v. Strong, supra, 81 Conn.App. 78, discussed above, where the allegations of the plaintiff's challenged breach-of-contract claim were held to be legally insufficient because they "essentially mirror[ed] those outlined in [her] malpractice claim . . ." While the present plaintiff, like the plaintiff in Alexandru, has incorporated contract language into his breach-of-contract count, it is clear that that count is merely a restatement of his first count pleading legal malpractice.
Of additional significance here is that at the end of his second count, not in a separate ad damnum clause as required by law; see Practice Book § 10-20; the plaintiff expressly seeks the same tort remedies — compensatory damages and costs of the action — as he has sought in his first count for legal malpractice. Plainly, then, even as the plaintiff sees it, the wrong allegedly done to him was tortious, not contractual. See, e.g., Lee v. Brenner, Saltzman and Wallman, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 5000728 (May 24, 2007, Esposito, J.) (43 Conn. L. Rptr. 462) (breach of contract claim against attorneys stricken where plaintiff sought traditional tort damages, as opposed to contract damages such as the value of the contract).
C.P.B. § 1-20, entitled "Contents of Complaint," provides as follows:
The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52-91.
Based upon the true nature both of the claim presented in the plaintiff's second count and of the non-contractual remedies he seeks thereunder, the Court concludes that that claim is not actionable as a breach-of-contract claim, and thus that the defendant's Motion to strike that count must be GRANTED.
III. COUNT THREE: CUTPA
The defendant next argues that the plaintiff's CUTPA claim, as pleaded in Count Three of his Complaint, is legally insufficient because it, like the plaintiff's breach-of-contract claim, is based upon allegations of legal malpractice, which are not actionable under CUTPA under controlling Connecticut case law. The plaintiff, although acknowledging that CUTPA does not apply to legal malpractice claims, counters that at least part of the claim herein challenged does not sound in legal malpractice, but instead is actionable under CUTPA's so-called "entrepreneurial exception." On this score, the plaintiff relies, in particular, upon his allegation in Count Three that, in the course of the defendant's representation of him, at a time when the defendant had custody of and control over his credit card, the defendant billed charges to his credit card without the plaintiff's authorization.
CUTPA, codified at General Statutes § 42-110b et seq., provides 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." General Statutes § 42-110b(a). "It is well settled that in determining whether a practice violates CUTPA [the court] [has] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission 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, is it 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 businesspersons] . . . 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 quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 450 n. 16, 892 A.2d 938 (2006). CUTPA "is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005). "CUTPA was designed to provide protection to businesses as well as to consumers." Id.
"[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 . . . [The Connecticut Supreme Court] [has] stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA . . . Accordingly . . . professional negligence — that is, malpractice — does not fall under CUTPA. (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). "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.
"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. See also Anderson v. Schoenhorn, 89 Conn.App. 666, 674, 874 A.2d 798 (2005) (stating that a law firm's "billing practices . . . arguably fall under the entrepreneurial aspect of practicing law"). "How the defendant determined the price of his legal services and how he collected his charges relates to the entrepreneurial aspects of the legal practice and is also subject to CUTPA." Pavone v. McHugh, Superior Court, judicial district of Fairfield, Docket No. CV 89 0255882 (November 1, 1995, Thim, J.). In analyzing CUTPA claims related to the practice of 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 . . . malpractice claim recast as a CUTPA claim." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
Haynes, the seminal case on the entrepreneurial exception, was a medical malpractice case. The entrepreneurial exception has been extended to claims for legal malpractice. See Updike, Kelly Spellacy v. Beckett, 269 Conn. 613, 656, 850 A.2d 145 (2004).
In Count Three, the plaintiff essentially restates the allegations giving rise to the legal malpractice count. Importantly, however, one of the allegations is that the defendant charged fees to the plaintiff's credit card without the plaintiff's authorization during a time in which the plaintiff had been arrested. (Complaint, Count III, ¶ 37(q)-r.) While Count Three is certainly based upon many of the same allegations pleaded in the legal malpractice claim, this Court cannot ignore the allegation concerning unauthorized billing as it relates to the entrepreneurial aspects of the practice of law. The court notes that substantially similar claims have withstood motions to strike where the plaintiff restated allegations concerning malpractice, but also alleged billing violations. See, e.g., Clifford v. Becker, Superior Court, judicial district of Waterbury, Docket No. CV 00 0162656 (September 10, 2001, Doherty, J.) (in support of CUTPA claim, plaintiff restated the allegations concerning fraud and negligence claims, but also stated that defendant engaged in improper billing practices). Accordingly, since the plaintiff, in Count Three, has sufficiently alleged an act falling within the entrepreneurial exception to CUTPA, that portion of the defendant's Motion which requests that that Count be stricken must be DENIED.
IV. COUNT FOUR: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendant finally claims that Count Four of the plaintiff's Complaint must be stricken because none of the alleged conduct upon which it is based can be found to have been "extreme and outrageous," as required to establish liability for intentional infliction of emotional distress. For the reasons that follow, the plaintiff disagrees, and so does this Court.
The elements necessary to state a claim for intentional infliction of emotional distress are well established. In particular, "[i]t 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 . . . 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.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 706, 927 A.2d 312, cert. denied, 284 Conn. 927 (2007).
In Count Four, the plaintiff alleges, inter alia, that sometime in March of 2004, after the defendant had negligently sent certain damaging psychiatric and psychological reports about him to the court in Waterbury, he and the defendant had a heated discussion about the damage thereby done to his defense. This discussion allegedly began when the defendant confronted the plaintiff in a hostile and threatening manner and ended when the defendant responded to the plaintiff's concerns by saying that "That's too fucking bad." Thereafter, he claims, the defendant falsely and maliciously reported to the state's attorney in Waterbury that the plaintiff had threatened him. As a result of that false report, the plaintiff claims that he was taken into custody, placed in the lockup, subjected to an enormous increase in his bond, and later arrested on new charges. (Complaint, Count IV, ¶¶ 31-33.) Subsequently, claims the plaintiff, the defendant made two other false and malicious reports about him to the state's attorney in Waterbury. First, he alleges that in or about August 2004, the defendant falsely and maliciously reported to the state's attorney that the plaintiff had stalked and threatened him. Second, he alleges that in or about April of 2005, the defendant falsely and maliciously reported to the state's attorney that the plaintiff had threatened to kill him. (Complaint, Count IV, ¶ 35.) The plaintiff specifically contends that the foregoing actions were extreme and outrageous, intentional, and caused him severe emotional distress. (Complaint, Count IV, ¶¶ 36-39.)
It can hardly be doubted that the making of false and malicious claims of serious criminal conduct against anyone, in any context, is extreme and outrageous conduct of the sort that well supports a claim of intentional infliction of emotional distress. Whenever it happens, such conduct predictably exposes the wrongly accused person to a wide range of adverse consequences, ranging from severe emotional strain to great financial loss, and even loss of liberty, as he struggles to clear his name and uncloud his future in the face of pending or impending criminal charges. Conduct of that sort is utterly intolerable in a civilized society. See, e.g., Jezierny v. Brown, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 084755 (August 24, 2005, Moran, J.T.R.) (motion to strike intentional infliction of emotional distress claim denied where defendant made false complaints to the police and requested that police officers arrest the plaintiff in an effort to bring the weight of a criminal prosecution on the plaintiff and achieve a vindictive goal).
Here, moreover, the alleged facts that the defendant made his false and malicious allegations of serious criminal conduct against the plaintiff were made to the state's attorney who was then prosecuting the plaintiff in another serious criminal case where the defendant was counsel obviously makes the defendant's conduct, if indeed it occurred, especially egregious and intolerable. As a lawyer, the defendant surely knew the probable effects of his own allegedly false report. As the plaintiff's criminal defense lawyer, moreover, the defendant doubtless knew that his false report would not only lead to the defendant's arrest on new charges but would compromise his interests in the pending criminal case. Burdened with a duty of loyalty to the plaintiff, the defendant knew that the making of such allegations to the state's attorney who was then prosecuting the plaintiff would be taken most seriously and acted on at once, to the plaintiff's great detriment, if for no other reason than the great reluctance with which most lawyers would be expected to turn in their own clients. The motion to strike Count Four must therefore be DENIED.
CONCLUSION
For the foregoing reasons, the defendant's Motion is hereby GRANTED with respect to Count Two but DENIED with respect to Counts Three and Four of the plaintiff's pending Complaint.
IT IS SO ORDERED this 28th day of January 2008.