Opinion
No. CV02-0347140S
December 17, 2004
MEMORANDUM OF DECISION
The case comes before this court by way of a lawsuit by the plaintiff herein claiming legal fees for services rendered to the defendants herein in connection with another matter. The defendants, in turn, have filed a counterclaim with two counts, speaking in both breach of fiduciary duty and a CUTPA claim. The defendants filed an Amended Counterclaim (#131.05) dated March 30, 2004, which added claims of professional negligence (First and Second Counts) as well as a breach of agreement (Third Count). The First and Second Counts of the original Counterclaim became the Fourth and Fifth Counts of the Amended Counterclaim. The plaintiff has filed a Motion to Strike (#158) dated October 12, 2004, seeking to strike the Third, Fourth, and Fifth Counts of the Amended Counterclaim, as well as certain prayers for relief thereon.
In brief, the basis of plaintiff's argument is that the Third Count of the Amended Counterclaim must fail because it is in reality a negligence claim denominated as a claim of breach of contract. As to the Fourth Count, he asserts the argument that a claim of breach of fiduciary duty based upon negligence and/or violation of the Rules of Professional Conduct is improper. Finally, as to the Fifth Count, he argues that the facts of the case do not give rise to a CUTPA claim.
The parties have each filed memoranda of law in support of their respective positions. The court heard argument of counsel and took the papers.
DISCUSSION
"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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "For the purpose of . . . [a] motion to strike [the moving party] admits all facts well pleaded." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996). "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 Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003).
While it is clear that a plaintiff may assert a claim for negligence and breach of contract in the same complaint, the alleged breach of contract must not arise from the negligent acts of the defendant, but rather, it must arise out of a breach of the terms of the contract itself. In other words, the breach of contract claim must not, in essence, be a negligence claim cloaked in contract language. Caffery v. Stillman, 79 Conn.App. 192, 197 (2003); Alexandru v. Strong, 81 Conn.App. 68, 79-80, cert. denied, 268 Conn. 906 (2004). The Third Count in the defendant's Amended Counterclaim mirrors precisely the claims of legal malpractice in the First and Second Counts. Likewise, the allegations of breaches of the Rules of Professional Conduct fail to support the claim for breach of contract.
In the Fourth Count, the defendants assert a breach of fiduciary duty based upon breaches of the Rules of Professional Conduct. That issue was settled by the Appellate Court in Standish v. Sotavento Corp., 58 Conn.App. 789, 796-97 (2000). In that case, the court granted summary judgment, holding that: "Violation of a Rule [of the Rules of Professional Conduct] should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability."
The provisions of the Connecticut Unfair Trade Practices Act, more familiarly referred to as "CUTPA," are set forth in General Statutes § 42-110a et seq. Unfair trade practices are defined as, "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). The Connecticut Supreme Court has held that CUTPA applies to the practice of law. Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 79 (1998).
Connecticut courts have adopted the so called "cigarette rule" in order to determine whether or not a certain practice is unfair. Willow Springs Condominium Assn., Inc. v. Seventh BRT Dev. Corp., 245 Conn. 1 (1998). Briefly stated, the rule provides that: "(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, 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, [competitors or other business persons] . . . 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.) Id., 43. In reviewing the allegations contained in the Fifth Count of the Amended Counterclaim, the court finds that the defendants' pleading contains sufficient claims implicating the entrepreneurial aspects of the practice of law to meet the test of the "cigarette rule," in particular, the allegations regarding the retainer and the billing for legal services.
In addition, for the sake of clarity of pleading, the court believes that it is appropriate to strike certain paragraphs, and/or portions thereof, pursuant to Practice Book § 10-45. The court aligns itself with a minority of Superior Court decisions in a broader interpretation of that Rule. Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) ( 17 Conn. L. Rptr. 296). That section should be read as a whole when attempting to interpret it. The majority would equate the words "any portion" with the word "paragraph." This court believes that is too narrow. The rule uses that phrase twice, and, in addition, the word "portion" once. A portion is, quite simply, anything less than a whole. The whole in question is either a "pleading" or a "count." This makes sense when read in the context of the effect of the motion to strike. Where the paragraph is removed from a pleading or count, and it "states or constitutes a part of another cause of action or defense," it is removed from the case, except to the extent that the matter "is applicable to any other cause or action or defense." It is not logically consistent to hold that a paragraph can be stricken if, and only if, it states an entire cause of action or defense, when the rule itself recognizes that, for purposes of preserving that cause of action in another count, the stricken paragraph may constitute only a part of the cause of action or defense.
The court is aware of the fact that it is to a certain extent, "hoist on its own petard," since it had earlier sustained the objections to plaintiff's Request to Revise (#140) which addressed some of the same issues.
Moreover, the court believes that some of the decisions interpreting Practice Book § 10-45 rest upon a misreading of the landmark case of Rossignol v. Danbury School of Aeronautics, 154 Conn. 549 (1967). In that case, for the first time, the Connecticut Supreme Court set forth the minimum essential allegations of a cause of action based on the tort of strict liability. However, that point was very nearly lost in what the court referred to as, "a gordian knot of procedural difficulties owing to a failure of the parties to observe elemental rules of pleading and practice." Id., 552. The decision was rendered prior to the 1978 Practice Book change and during the heyday of the now dead demurrer. Citing Veits v. Hartford, 134 Conn. 428 (1948), the court acknowledged that while the joinder of multiple causes of action in one count was permitted, the practice was "a hazardous and complicating one" especially in a case where there were multiple defendants. Rossignol v. Danbury School of Aeronautics, supra, 154 Conn. 552. Since the plaintiffs had failed to aver an essential element in their claim of strict tort liability, the court did, in fact, sustain the demurrer to a portion of two counts of the complaint, striking material therefrom, "only so far as those counts purport to allege a cause or causes of action based on liability other than on grounds of negligence." Id., 563. In the view of this court, the proper reading of Rossignol is found in the case of Akridge v. Nastri, Superior Court, judicial district of New Haven, Docket No. LPL-CV-01-0451972S (September 5, 2003, Lager, J.). There the court found: "When some of the allegations contained in a count are sufficient to set forth the cause of action, the court is not permitted to strike the entire count." See also, Doyle v. AP Realty Corporation, 36 Conn.Sup. 126, 127 (1980).
In so doing, the court, by implication, held that the stricken portions of both counts did not state or constitute an entire cause of action (i.e., strict tort liability).
Therefore, the court strikes certain paragraphs and portions of paragraphs of the Fifth Count for two reasons: (1) For the foregoing reasons, this court sees no logical reason why the rule only applies where the stricken paragraph contains an entire cause of action when, in most instances, most complaints set forth a cause of action in multiple paragraphs. The stricken paragraphs can and should be read as a unified whole, and dealt with as such; and (2) because the court struck the Fourth Count in its entirety, and the portions stricken from the Fifth Count are, for the most part, a reiteration of those contained in the Fourth Count.
ORDERS
For the foregoing reasons the Motion to Strike is HEREBY GRANTED as to the Third and Fourth Counts of the Amended Counterclaim, and it is HEREBY GRANTED IN PART AND DENIED IN PART as to the Fifth Count thereof. Specifically, so much of Paragraph 8 of the Fifth Count that refers to a violation of the Rules of Professional Conduct together with Paragraphs 13 through 17 thereof, as well as so much of Paragraph 18 which refers to a breach of fiduciary duty, are HEREBY STRICKEN. The remaining paragraphs, or portions thereof, of the Fifth Count shall remain part of the Amended Counterclaim. The Motion to Strike portions of the Claims for Relief is HEREBY DENIED.
THE COURT
SHAY, J.