Opinion
FSTCV1616029768
05-17-2018
D&S Remodeling, LLC v. Robert Pinciaro et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Jacobs, Irene P., J.
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION TO STRIKE [#122]
Jacobs, J.
BACKGROUND
The plaintiff, D&S Remodeling, LLC, commenced this action on September 14, 2016 against the defendants Robert Pinciaro and Toro & Pinciaro, P.C. In addition to alleging legal malpractice in count one of its May 26, 2017 revised complaint [#107], the plaintiff alleges breach of contract [count two], breach of contractual duty of good faith and fair dealing [count three], and negligent misrepresentation [count four].
On December 5, 2017, the defendants filed the current motion to strike counts two and three of the complaint and the plaintiff’s prayer for relief requesting punitive damages, attorney fees, and costs. The defendants also filed a supporting memorandum of law [#123]. On January 18, 2018, the plaintiff filed an " opposition" to the motion to strike [#124] and a memorandum of law in opposition to the motion to strike [#125]. The matter was heard at short calendar on January 22, 2018.
In count one of the revised complaint, the plaintiff alleges the following facts. The defendants agreed to provide the plaintiff with legal representation on a number of cases, including Mark Mariani, Inc. v. D&S Remodeling, LLC (Mariani) ; D&S Remodeling, LLC v. ADC Development Corporation (ADC) ; and several debt collection matters. The defendants settled Mariani without the plaintiff’s informed consent, and the plaintiff neither consented to the payment of sums to the Mariani plaintiffs, nor waived its claims against the Mariani plaintiffs. The defendants also filed a withdrawal of action in ADC, which was granted by the court on the same day, without the plaintiff’s informed consent. As to the debt collection matters, the applicable statutes of limitations have expired, or the claims have otherwise become uncollectable, as a result of the defendants’ failure to pursue these matters. The defendants breached the applicable standard of care owed to the plaintiff in that they failed to abide by the plaintiff’s wishes and instructions and obtain the plaintiff’s informed consent regarding Mariani and ADC; failed to prepare and defend Mariani by failing to properly investigate the opposing party’s claims, interpose appropriate defenses, conduct reasonable discovery, obtain New York counsel as required, and provide the plaintiff with sufficient information to make informed decisions; and failed to pursue the debt collection matters entrusted to them. The defendants failed to enter into a written retainer agreement as required by Connecticut law and, thus, failed to fully inform the plaintiff as to the representation. As a result of the defendants’ conduct, the plaintiff has suffered the loss of business and assets; is unable to collect monies due on the Mariani contract; lost the amount of judgment the plaintiff is now obligated to pay in Mariani ; is unable to pursue its cause of action in ADC ; and is unable to recover any sums from the debt collection matters.
In count two of the revised complaint, the plaintiff incorporates the allegations set forth in count one, and alleges the following additional facts. The attorney-client relationship between the plaintiff and the defendants constituted a contract, pursuant to an oral agreement. The defendants represented that they would litigate Mariani and ADC, and handle the plaintiff’s debt collection matters. The defendants’ failure to litigate or pursue those matters and meet the applicable standards of care constituted a breach of contract. The plaintiff suffered damages as a result.
Count three incorporates the allegations set forth in counts one and two. In addition, the plaintiff alleges that the defendants breached the duty of good faith and fair dealing in that the defendants refused and neglected to perform the specified services reasonably requested and provided for pursuant to the oral agreement, and to completely investigate all matters entrusted to them. The plaintiff claims damages as a result of the defendants’ conduct.
In its prayer for relief, the plaintiff requests monetary damages, attorney fees, costs, and punitive damages.
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 (2003). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385 (2016). " If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465 (1991).
Breach of Contract
" With respect to the governing legal principles, it is well established that claims may be brought against attorneys sounding in contract or in tort, and that [s]ome complaints state a cause of action in both contract and tort ... [O]ne cannot bring an action [under both theories, however] merely by couching a claim that one has breached a standard of care in the language of contract ... [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims ... To ensure that plaintiffs do not attempt to convert negligence claims into breach of contract claims by talismanically invoking contract language in [the] complaint ... reviewing courts may pierce the pleading veil by looking beyond the language used in the complaint to determine the true basis of the claim." (Citations omitted; internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282 (2014); see also Alexandru v. Strong, 81 Conn.App. 68, cert. denied, 268 Conn. 906 (2004) (" [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 his services" [internal quotation marks omitted] ).
In Meyers, the plaintiff filed a complaint against the defendant law firm, alleging " that the defendant breached its contractual duties to the plaintiff when ‘(a) it pursued the interests of ... [another client] in derogation of the interests, wishes and instructions of the plaintiff in bringing about a settlement of the lawsuit; and/or, (b) it failed and/or refused to follow the express wishes and instructions of the plaintiff to reject the settlement offer in the lawsuit and to continue to prosecute the lawsuit.’ " Meyers, supra, 311 Conn. 296. " Although the issue of whether a claim of attorney misconduct sounds in breach of contract or in tort appears to be one of first impression for this court, we previously have concluded that a claim alleging that the defendant attorney violated the specific instructions of his client sounded in breach of contract ... Other Connecticut courts similarly have determined that an attorney’s failure to comply with the specific provisions of a contract sounded in breach of contract." (Citation omitted.) Id., 292. " Correspondingly, Connecticut courts have concluded that claims alleging that the defendant attorney had performed the required tasks but in a deficient manner sounded in tort rather than in contract." Id., 294.
The court in Meyers stated: " Whether [a] plaintiff’s cause of action is one for malpractice [or contract] depends upon the definition of [those terms] and the allegations of the complaint ... Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ... The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages ... In other words, [a]n action in contract is for the breach of a duty arising out of a contract ... [whereas] an action in tort is for a breach of duty imposed by law." (Citations omitted; internal quotation marks omitted.) Meyers, supra, 311 Conn. 291.
In deciding that the plaintiff’s complaint sounded in malpractice rather than breach of contract, the Meyers court noted that the plaintiff’s complaint failed to " [refer] to the violation of a specific contractual provision. The only substantive provision in the contract unrelated to compensation states: ‘I, [the plaintiff], do hereby retain the [defendant] law firm ... to represent me in connection with my claims against [the underlying defendants] in litigation in Connecticut Superior Court.’ The contract does not prohibit the defendant from representing any other person with similar claims against the same parties, does not refer to any details of the litigation over which the plaintiff wished to establish control, and contains no specific instructions as to how the plaintiff wanted the defendant to proceed in its representation of her." (Footnote omitted.) Meyers, supra, 311 Conn. 296-97; see also Dubinsky v. Meyers, Breiner & Kent, LLP, Superior Court, J.D. of Fairfield, Docket No. CV-15-6052685-S (March 29, 2016, Arnold, J.) (granting motion to strike breach of contract claim because, " [w]hile the plaintiff has alleged he entered into a retainer agreement with the defendants on July 24, 2012, and agreed to pay for their services in return for legal representation by the defendants, the plaintiff has not set forth any specific terms of an agreement. The plaintiff alleges only that the agreement obligated the defendants to represent him diligently and to meet the applicable standard of care for an attorney representing a client in a divorce action" ).
The Meyers court continued: " [t]o the extent the plaintiff suggests that her complaint alleges breach of contract simply because the defendant did not represent her interests and wishes, this claim has no legal support ... No Connecticut court has deemed an allegation of this general nature sufficient to constitute a breach of contract claim unless accompanied by specific allegations that the defendant attorney failed to take action normally expected of an attorney in furtherance of the agreed on purpose for which the attorney was hired, such as failing to prosecute, defend, or take an essential step in litigating a cause of action." (Citation omitted.) Meyers, supra, 311 Conn. 297.
An attorney’s failure to proceed with or defend the actions for which the attorney was hired sounds in breach of contract. See, Meyers, 292-93 (citing Hill v. Williams, 74 Conn.App. 654, cert. denied, 263 Conn. 918 [2003], and Mac’s Car City, Inc. v. DeNigris, 18 Conn.App. 525, cert. denied, 212 Conn. 807 [1989]); see also Kuehl v. Koskoff, Superior Court, J.D. of Stamford-Norwalk, Docket No. CV-99-0171076-S (June 18, 2015, Povodator, J.) (" Here, the contract claim is not simply that defendants failed to exercise reasonable care ... it was that they failed to do anything relating to workers’ compensation ... Although there was a dispute as to whether they had committed (implicitly if not explicitly) to assisting plaintiffs with respect to workers’ compensation ... [the] plaintiff’s position clearly was that defendants did nothing to protect, preserve or assert their workers’ compensation rights, despite a contractual obligation to do so. Poorly performing a professional contract obligation may be negligence but a failure to perform a material element of a professional contract obligation, at all, seemingly falls within the ambit of a breach of contract claim" [emphasis in original] ).
The plaintiff in the present case has alleged that the agreed-upon purposes for which the defendants were hired were to litigate Mariani and ADC and to pursue the debt collection matters, but that the defendants failed to prepare or defend Mariani, withdrew ADC without the plaintiff’s consent, and wholly failed to proceed in the debt collection cases. The plaintiff’s allegations that the defendants did not represent its interests and wishes are bolstered by specific allegations that the defendants failed to take numerous essential steps in litigating the plaintiff’s cases, including the failure to properly investigate, conduct reasonable discovery, and otherwise prepare and defend Mariani, and the failure to pursue, in any manner, the various debt collection cases.
This court’s prior holding in Gianetti v. Neigher, Superior Court, J.D. of Stamford-Norwalk, Docket No. CV-15-602-5326-S (October 23, 2017, Jacobs, J.), is distinguishable on this point. In Gianetti the defendant-attorney was in the midst of litigating the plaintiff’s underlying suit when the plaintiff requested that the defendant-attorney file a CUTPA claim. Id. The plaintiff’s subsequent breach of contract claim stemmed exclusively from the defendant-attorney’s failure to file the CUTPA claim within the statute of limitations. Id. Here, however, the complaint includes allegations that the defendants failed to proceed with the plaintiff’s cases in any manner.
In Caffery v. Stillman, 79 Conn.App. 192, 198, 829 A.2d 881 (2003), the Appellate Court stated that the plaintiff’s cause of action sounded in negligence rather than breach of contract because, " although the plaintiff alleged that the defendant had promised to bring a liability action against the city, the plaintiff does not claim that he sustained damages as a consequence of the defendant’s failure to bring such an action. Rather, he claims that the promise to bring such an action was premised on an incorrect understanding of the law and that he suffered damages as a result of the defendant’s failure to understand the limits of the legal remedy." The Caffery court distinguished its holding in Hill v. Williams, supra, 74 Conn.App. 659 on this point, noting that " [i]n Hill, we found that the plaintiff had alleged that the defendant had promised to take specific actions that he later refused to undertake and that the plaintiff suffered damages as a result."
The defendants in the current case assert that the plaintiff has pleaded only conclusory language about the existence of an oral agreement between the parties, and that there are no facts that disclose a breach of any contractual duty. The plaintiff argues that it has pleaded all of the elements of a breach of contract claim, including the formation of an oral agreement between the parties, the plaintiff’s performance by entrusting its legal matters to the defendants, the defendants’ breach by failing to properly defend or litigate those matters, and damages. The plaintiff argues that it has pleaded facts separate and distinct from the legal malpractice claim, because the defendants violated the plaintiff’s specific instructions pursuant to the oral contract.
This court agrees with the plaintiff. The plaintiff has alleged that it is unable to collect monies due on the Mariani contract, and is now obligated to pay a judgment instead. The plaintiff alleges that it is unable to pursue its cause of action in ADC or recover any money from its debt collection matters. Pl.’s Compl. 5, ¶14. These damages are not merely the result of " an incorrect understanding of the law" ; Caffery v. Stillman, supra, 79 Conn.App. 198; but are alleged to be the result of the defendants’ failure to take any action on the matters entrusted to them. See also Corley v. Watstein, Superior Court, J.D. of New Haven, Docket No. CV-10-6009242-S (April 3, 2012, Wilson, J.) (" [t]he present case is distinguishable from Caffery and [Weiner v. Clinton, 106 Conn.App. 379 (2008),] because count two contains allegations that the [plaintiff] suffered damages from the defendants’ refusal to take the specific acts required under the agreement, not from an improper understanding of the law" ).
Breach of the Contractual Duty of Good Faith and Fair Dealing
" [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." (Internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760 (2013). " As our case law makes clear, no claim of breach of the duty of good faith and fair dealing will lie for conduct that is outside of a contractual relationship." Carford v. Empire Fire & Marine Ins. Co., 94 Conn.App. 41 (2006).
" 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." Capstone Building Corp. v. American Motorists Ins. Co., supra, 308 Conn. 794-95. " Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient." Alexandru v. Strong, supra, 81 Conn.App. 81.
" [T]here is a split of authority among Superior Courts as to what factual allegations are sufficient to constitute the element of bad faith ... The first line of cases requires specific allegations establishing a dishonest purpose or malice. In alleging a breach of the covenant of good faith and fair dealing, courts have stressed that such a claim must be alleged in terms of wanton and malicious injury [and] evil motive ... The second line of cases generally holds parties to a less stringent standard requiring that a plaintiff need only allege sufficient facts or allegations from which a reasonable inference of sinister motive can be made ... Even where courts have used an inference analysis, however, they have looked to allegations that the conduct at issue was engaged in purposefully ... In other words, [i]n order to survive a motion to strike, a plaintiff’s claim of bad faith must be alleged in terms of ... acts done with a bad motive or with reckless indifference to the interest of others." (Citations omitted; internal quotation marks omitted.) Benedetto v. Utica First Ins. Co., Superior Court, J.D. of New Haven, Docket No. CV-17-6070957-S (February 8, 2018, Wilson, J.) .
In Mason v. Liberty Mutual Ins. Co., Superior Court, J.D. of Fairfield, Docket No. CV-16-6056972-S (July 18, 2017, Kamp, J.), the plaintiff filed a complaint against multiple defendants, including Liberty Mutual Insurance Company (Liberty) and the law offices and attorneys who were the alleged agents and employees of Liberty. The court struck the plaintiff’s claim for breach of the duty of good faith and fair dealing. Id. The court held that, " regardless of whether the court adopts the more stringent standard, requiring specific allegations establishing a dishonest purpose or malice, or the less stringent standard, requiring allegations from which a reasonable inference of sinister motive can be made, the plaintiff’s revised complaint is legally insufficient to state a claim for a breach of the covenant of good faith and fair dealing. Under the more stringent standard, the plaintiff fails to put forth any specific allegations establishing a dishonest purpose or malice. There are no allegations that the defendant, through itself or through its agents, the defendant law offices and the defendant attorneys, engaged in any of the alleged conduct with a wanton or evil motive." Id. The court then found that even " [u]nder the less stringent standard, the plaintiff similarly fails to allege sufficient facts to support a claim of bad faith." Id. The court listed the allegations set forth in the plaintiff’s complaint, including the defendants’ failure to accept in a timely manner an offer of compromise; failure to timely, reasonably and properly investigate the plaintiff’s claim; and refusal to reasonably settle the case. See id. Nevertheless, the court held that " [t]here are no allegations from which the court may properly infer that the defendant intentionally or purposefully engaged in the aforementioned conduct. The plaintiff’s revised complaint also fails under the less stringent standard because the allegations, even viewed in the light most favorable to sustaining their legal sufficiency, are insufficient to reasonably infer a sinister motive." Id. ; see also Benedetto v. Utica First Ins. Co., supra, Superior Court, Docket No. CV- 17-6070957-S (" [t]he bare legal conclusions that the defendant failed to defend and indemnify the insured, refused to provide a reason for the denial, and failed to conduct an investigation, without anything more, are insufficient to support a claim for breach of the covenant of good faith and fair dealing" ); Chapman v. Georgine Realty, Superior Court, J.D. of New Haven, Docket No. CV-05-5001346-S (August 29, 2008, Bellis, J.) (granting motion to strike under less stringent standard when plaintiff failed to allege " that the conduct at issue was engaged in knowingly or willfully ... That the behavior in question was engaged in knowingly or willfully is important because ... such behavior is unlikely to be attributable to an honest mistake or mere negligence" [citations omitted; internal quotation marks omitted] ); cf. Management Strategies, Inc. v. West Haven Housing Authority, Superior Court, J.D. of New Haven, Docket No. CV-12-6030581-S (February 3, 2014, Wilson, J.) (denying motion to strike where plaintiff sufficiently alleged " that the defendant ‘had no intention of paying [the plaintiff]’ and ‘knowingly and intentionally [sought] to evade its contractual obligation’ " ); Algiere v. Utica National Ins. Co., Superior Court, J.D. of New London, Docket No. CV-04-0569670-S (February 7, 2005, Jones, J.) (denying motion to strike where plaintiff sufficiently alleged " that the defendant has knowingly, willfully, deliberately and repeatedly ignored the workers’ compensation commission orders; such continued defiance is unlikely to be attributable to an honest mistake or mere negligence" ).
In the current case, the defendants assert that the plaintiff has failed to properly allege breach of the contractual duty of good faith and fair dealing because there are no allegations that the defendants were motivated by a dishonest or sinister purpose, or engaged in bad faith.
The plaintiff argues that the defendants’ failure to obtain the plaintiff’s consent before settling or withdrawing the plaintiff’s cases evinces an interested or sinister motive. The plaintiff argues that the defendants’ conduct denied the plaintiff a contractually mandated benefit. This court agrees with the defendants. The plaintiff’s complaint fails to set forth any allegations that the defendants’ conduct was knowing or purposeful, from which the court could reasonably infer that the defendants’ conduct was motivated by a sinister or dishonest purpose.
Prayer for Relief
" Practice Book ... § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296 (1998). " [I]t is well established that a demand for punitive damages is not a freestanding claim; rather, it is parasitic and possesses no viability absent its attachment to a substantive cause of action." (Internal quotation marks omitted.) Rendahl v. Peluso, 173 Conn.App. 66 (2017). " [I]n order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights ... If the evidence discloses that a defendant was recklessly indifferent to the rights of a plaintiff, an actual intention to do harm to the plaintiff is not necessary." (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786 (1992).
" Generally, attorneys fees may not be recovered, either as costs or damages, absent contractual or statutory authorization ... Attorneys fees may be awarded, however, as a component of punitive damages ... To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citation omitted; internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, cert. denied, 273 Conn. 930 (2005).
" Actions for legal malpractice ... do not entitle the plaintiff to an award of attorneys fees for the prosecution of the action ... There is no Connecticut statute that allows for recovery of attorneys fees in legal malpractice cases." (Citation omitted; internal quotation marks omitted.) Golek v. Ury & Moskow, LLC, Superior Court, J.D. of Waterbury, No. CV-13-5016457-S (August 20, 2014, Zemetis, J.). " Punitive damages are not ordinarily recoverable for breach of contract." L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn.App. 30 (1986). However, " [b]reach of contract founded on tortious conduct may allow the award of punitive damages. Such tortious conduct must be alleged in terms of wanton and malicious injury, evil motive and violence, for punitive damages may be awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others ... Thus, there must be an underlying tort or tortious conduct alleged and proved to allow punitive damages to be granted on a claim for breach of contract, express or implied. Elements of tort such as wanton or malicious injury or reckless indifference to the interests of others giving a tortious overtone to a breach of contract action justify an award of punitive or exemplary damages." (Citations omitted; internal quotation marks omitted.) Id., 48; see also Corley v. Watstein, supra, Superior Court, Docket No. CV-10-6009242-S (denying punitive damages and attorney fees where the complaint " [lacked] allegations that the defendants’ alleged conduct was intended to cause the harm to the plaintiff, either by their negligence or breach of their contract" ).
In the current case, the plaintiff’s complaint lacks any allegations regarding wanton, willful, or reckless misconduct that would support the award of punitive damages. The plaintiff has not alleged the existence of a contractual obligation or provided statutory authority that would permit the award of attorney fees.
CONCLUSION
For the foregoing reasons, the court denies the defendants’ motion to strike count two of the complaint and grants the defendants’ motion to strike count three of the complaint and the plaintiff’s prayer for relief.