Summary
granting motion to strike CUTPA claim based on vague allegation attorney charged excessive and unreasonable fees without references to specific incidents where defendant engaged in improper billing
Summary of this case from Sechler-Hoar v. Tr. U/W of Gladys G. HoartOpinion
CV1560253226S
10-23-2017
Charles D. Gianetti, M.D. v. Alan Neigher, Esq
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE [#127]
Irene P. Jacobs, J.
FACTS
The plaintiff, Charles D. Gianetti, commenced this action against his former attorney, the defendant, Alan Neigher, by service of a summons and complaint filed on May 14, 2015. On February 27, 2017, the plaintiff filed a five-count revised complaint [#123], alleging professional negligence (counts one and two), violation of CUTPA, General Statutes § 42-110a et seq. (count three), breach of fiduciary duty (count four), and breach of contract (count five).
On April 10, 2017, the defendant filed the instant motion to strike the plaintiff's revised complaint in its entirety, with a supporting memorandum of law [#128]. On May 30, 2017, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike [#131]. The defendant filed a reply memorandum on June 13, 2017 [#133]. The plaintiff filed a surreply on June 23, 2017 [#134]. The matter was heard at short calendar on June 26, 2017.
In his revised complaint, the plaintiff alleges the following facts. In 1983, the plaintiff hired the defendant, a licensed attorney in the state of Connecticut, to represent him in a claim against his former employer, Norwalk Hospital. The defendant filed a civil suit on behalf of the plaintiff against Norwalk Hospital for breach of contract and violation of the Connecticut Antitrust Act. During the course of the litigation, the plaintiff requested that the defendant also file a claim against Norwalk Hospital for a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The defendant did not timely file the CUTPA claim, and the plaintiff's CUTPA claim was barred by the three-year statute of limitations. The plaintiff recovered $258,610 from Norwalk Hospital, but also incurred nearly $800,000 in legal fees.
DISCUSSION
" Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " [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." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 142 A.3d 227 (2016). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997). " 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.) Id., 588. " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 438 A.2d 27 (1980).
Counts One and Two: Professional Negligence
The defendant argues that the plaintiff has alleged facts that are barred by the relevant statute of limitations, General Statutes § 52-577, because the conduct alleged occurred over three years before this action was commenced. " [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike. Forbes v. Ballaro, 31 Conn.App. 235, 624 A.2d 389 (1993); see Practice Book § 10-50. This is because a motion to strike challenges only the legal sufficiency of the complaint and might . . . deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 890 A.2d 1269 (2006). " In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer . . . The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right-it is a limitation of the liability itself as created, and not of the remedy alone." (Citation omitted, internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993).
General Statutes § 52-577 states: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
In the present case, neither exception to the general proposition that the statute of limitations must be pleaded as a special defense applies. First, the court cannot determine from the revised complaint that the parties agree that all the facts necessary to resolve the statute of limitations issue have been pleaded. The revised complaint contains no references to the relevant statute of limitations, nor does the plaintiff plead any facts in avoidance of the statute of limitations. As a general matter, the plaintiff " [is] not required to plead facts in anticipation of the defense of the statute of limitations." Id., 240 n.9. Granting the defendant's motion to strike on counts one and two would deny the plaintiff the opportunity to affirmatively plead avoidance of the statute of limitations. See Id., 239-40. The second exception also does not apply to counts one and two, as professional negligence is an action in common law, not created by statute. Thus, the defendant's use of the statute of limitations as a basis for its motion to strike counts one and two of the revised complaint fails.
Count Three: Violation of CUTPA
" CUTPA provides in relevant part 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). Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen) . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . [O]ur Supreme Court has stated that [a]ll 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.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 41 A.3d 1077 (2012).
" In general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice . . . Professional negligence, or malpractice, does not fall under CUTPA." (Citation omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 874 A.2d 798 (2005); see also Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997). The Supreme Court has considered solicitation of business and billing practices to be entrepreneurial aspects of the legal profession. See Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36. In addition, the defendant submits the case Proskauer Rose, LLC v. Lindholm, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5005353-S (May 19, 2008, Tobin, J.) [45 Conn. L. Rptr. 503, ], as authority supporting the contention that a general allegation of excessive fees cannot be the basis of a successful CUTPA claim. Specifically, the defendant in Lindholm had " no claims that the plaintiff's bill, for example, included time incurred in working for other clients, included time for work actually performed by associates or paralegals but billed at partner rates, or marked up or inflated billing for disbursements." Id. The court subsequently granted the plaintiff's motion to strike.
In Haynes, the Supreme Court considered the holdings in other jurisdictions when applying CUTPA to the medical profession. The Supreme Court looked favorably upon the Ninth Circuit's interpretation of consumer protection claims. " Washington has recognized that both the practice of law and medicine may give rise to [consumer protection act] claims . . . These may arise, however, only when the actions at issue are chiefly concerned with 'entrepreneurial' aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the 'competence of and strategy' employed by the . . . [defendant]." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35-36, 699 A.2d 964 (1997) (citing Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990)). " [The Supreme Court] find[s] these decisions persuasive, and concludes that their reasoning is equally applicable to CUTPA claims." Id., 37.
In the present case, the defendant asserts that the plaintiff has failed to allege facts that support a CUTPA violation because the revised complaint contains no facts establishing that the plaintiff is suing the defendant for the entrepreneurial aspects of his legal practice. The plaintiff argues that he adequately alleged a CUTPA violation against the defendant because he has alleged violations of the " entrepreneurial aspects" of the legal profession.
The plaintiff alleges in the revised complaint that " the work billed by [the defendant] and paid by [the plaintiff] was either not necessary or in excess of what an average prudent reputable member of the legal profession would provide to a client . . . The excessive and unreasonable legal fees . . . are offensive to public policy and violate CUPTA." (Revised Complaint p. 6.) The language used by the plaintiff is vague, and it is unclear whether the plaintiff is referring to specific incidents where the defendant engaged in improper billing practices or that the defendant's negligence resulted in higher fees. The use of the language " average prudent reputable member of the legal profession" in the revised complaint appears to implicate the defendant's obligations under the standard of care in a professional negligence action. Further, the plaintiff has titled count three " Professional Negligence, Violation of C.G.S. § 42-110a et seq." (Revised Complaint p. 5.) Finally, the plaintiff has not alleged any facts describing a certain billing practice engaged in by the defendant that would be considered unfair or deceptive under any one, let alone all three, of the considerations laid out in Ulster Savings Bank v. 28 Brynwood Lane, Ltd., supra, 134 Conn.App. 714-15. Thus, the plaintiff has not alleged sufficient facts that indicate he is suing the defendant in his entrepreneurial capacity, but instead for professional negligence, which is not considered a prohibited trade practice sufficient to allege a CUTPA violation.
Count Four: Breach of Fiduciary Duty
" [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." Falls Church Group, Ltd. v. Tyler, Cooper, & Alcorn, LLP, 281 Conn. 84, 912 A.2d 1019 (2007). " Professional negligence alone . . . does not give rise automatically to a claim for breach of fiduciary duty. Although an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of that fiduciary duty . . . Professional negligence implicates a duty of care, while breach of fiduciary duty implicates a duty of loyalty and honesty." (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 717 A.2d 724 (1998). " Although [the Supreme Court has] not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have involved such deviations." (Emphasis in original.) Murphy v. Wakelee, 247 Conn. 396, 721 A.2d 1181 (1998).
The court has found several Superior Court cases that follow the holding in Murphy . In Noon v. Brencher, Superior Court, judicial district of New Haven, Docket No. CV-09-6003694-S, (June 12, 2012, Young, J.), the defendant attorney falsely represented to the plaintiff that he had recorded a quitclaim deed. The court found that these allegations were insufficient to establish dishonest conduct in order to support a claim for breach of fiduciary duty. In Branford v. Doyle, Superior Court, judicial district of New Haven, Docket No. CV-08-5022420-S, (December 7, 2010, Burke, J.), the defendant attorney was alleged to have failed to disclose experts in accordance with the court's scheduling deadline, but the court found that the plaintiff had only pleaded facts that implicated the defendant's competence as an attorney. These facts were insufficient to implicate duties of loyalty or honesty necessary to sustain a claim for breach of fiduciary duty. In Lee v. Brenner, Saltzman & Wallman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5000728-S (May 24, 2007, Esposito, J.) [43 Conn. L. Rptr. 462, ], the plaintiff did not allege facts that establish that the attorneys were dishonest or disloyal, so the claim for breach of fiduciary duty failed. In Flexo Converters U.S.A., Inc. v. Adelman, Superior Court, judicial district of Tolland, Docket No. X07-CV-99-0072553-S, (November 30, 2000, Bishop, J.), the defendant attorney's failure to disclose a right to appeal and misrepresenting the possibility of settlement did not rise to the level of immoral behavior to properly plead a breach of fiduciary duty. In Bozelko v. D'Amato, Superior Court, judicial district of New London, Docket No. CV-11-5014231, (September 23, 2014, Hendel, J.T.R.), the court found that the plaintiff failed to allege fraud, self-dealing or a conflict of interest, or any facts implicating the defendants' loyalty, honesty or morality in order to substantiate her claim for breach of fiduciary duty. The court held that the facts may support negligence and indicate incompetence as an attorney, but do not rise to the level to sustain a breach of fiduciary duty.
In the present case, the defendant asserts that the plaintiff has not alleged factual allegations that implicate fraud, self-dealing, or conflict of interest. The plaintiff argues that he has adequately pleaded breach of fiduciary duty because he alleged the defendant breached his duty of loyalty and honesty. The plaintiff alleges in the revised complaint: " [The defendant] owed [the plaintiff] a degree of loyalty and honesty in representing [the plaintiff] in his claims . . . [The plaintiff] relied . . . on [the defendant's] unique degree of skill and expertise to represent him . . . [The defendant] owed [the plaintiff] a fiduciary duty to represent his interests in his claim . . . and failed to do so . . . As a result of [the defendant's] breach of fiduciary duty, [the plaintiff] suffered injury, loss and damage . . ." (Revised Complaint p. 6.)
The plaintiff has not alleged any facts indicating how the defendant breached his fiduciary duty; instead he asserts only that the duty exists, the defendant allegedly breached it, and the defendant caused him harm. The revised complaint does not contain factual allegations regarding how the defendant was disloyal or dishonest with the plaintiff. Further, there are no factual allegations consistent with fraud, self-dealing, or conflict of interest necessary to establish a breach of fiduciary duty.
Count Five: Breach of Contract
" [O]ne may bring against an attorney an action sounding in both negligence and contract. See Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). Mac's Car City, Inc., does not stand for the proposition, however, that one 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 . . . [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, 829 A.2d 881 (2003).
The defendant asserts that the revised complaint does not sufficiently allege facts to support a breach of contract claim because the plaintiff did not allege a specific promise that the defendant breached, but instead merely restates his negligence claim as a contract claim. The plaintiff argues that he adequately alleged a breach of contract against the defendant because the professional negligence and contract claims are parallel, with the breach of contract occurring when the defendant failed to timely file the CUTPA claim.
The revised complaint in the instant case bases the breach of contract claim solely on the defendant's alleged failures to meet the standard of care agreed to when the two entered into an attorney-client relationship. As indicated by Caffery, this is insufficient to allege a breach of contract claim in conjunction with a professional negligence claim.
CONCLUSION
For the aforementioned reasons, the court denies the defendant's motion to strike counts one and two and grants the defendant's motion to strike counts three, four and five.