Opinion
No. CV 05 400 1883
June 8, 2005
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO STRIKE
STATEMENT OF THE CASE
This is an action instituted by the plaintiffs, Robert Tracey and Claudette Tracey, against the defendant Gerald Still arising from the defendant's legal representation of the plaintiffs. The plaintiffs' revised complaint is in four counts. Pending before the court is the defendant's motion to strike counts one, three and four of this complaint that alleges breach of contract, loss of business opportunity, and a violation of the Connecticut Unfair Trade Practices Act General Statutes § 42-110b et seq. (CUTPA). The defendant's motion also seeks to strike the claims of the plaintiffs' prayer for relief seeking punitive damages, attorneys fees, and treble damages. The second count of the revised complaint, asserting a claim for legal malpractice, is not being contested by the motion to strike.
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). "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.) Broadnax v. New Haven, 270 Conn 133, 173, 851 A.2d 1113 (2004). "For the purpose of ruling on 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, 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.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 79 A.2d 1048 (2002).
I First Count
The first count of the complaint alleges that the plaintiff's owned a condominium unit that suffered fire damage and that the condominium association failed to repair the unit as required by the condominium association's declaration. The defendant is an attorney licensed to practice law in this state, and the plaintiffs retained him to pursue their legal claim against the association and others who the plaintiffs believed were responsible for failing to repair the damaged condominium unit. In 1999, the defendant received a retainer from the plaintiffs and agreed to represent them. The plaintiff, Robert Tracey, periodically called the defendant about the status of the case, and the defendant assured him that the claim was being prosecuted. However, in 2002, after not hearing from the defendant, the plaintiffs retained another firm to pursue their claim. The plaintiffs subsequently learned that the defendant had done nothing regarding the claim, and as a result, the plaintiffs allege that they suffered damages because the defendant breached his contractual obligation to them.
The first count of the revised complaint alleges that the defendant breached his contractual obligations to the plaintiffs 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.
In support of the motion to strike count one of the revised complaint, the defendant claims that the plaintiffs' contract allegations are identical to the negligence claims asserted in count two of the complaint. The defendant maintains that count one fails to state a distinct cause of action because this count does not assert the existence of a contract promising any specific result, and consequently, this claim "is nothing more than a negligence claim dressed up as a claim for breach of contract." In response, the plaintiffs contend that the defendant was retained to pursue a specific legal claim on behalf of the plaintiffs, including the institution of legal proceedings. The defendant accepted this undertaking, received a $1,400 retainer, but failed to perform. The facts of the complaint also state that the defendant attempted to conceal this failure by falsely representing that the work was being pursued and by refusing to relinquish the file when requested by the plaintiffs. According to the plaintiffs, this is not a claim involving a negligent performance of services, but one involving a failure to perform the services agreed upon. To the extent articulated below, the court agrees with the plaintiffs.
The question of whether a claim against a professional sounds in tort or contract is one which has frequently been addressed by our courts. As a general rule, a negligence claim and a contract claim can arise from the same facts, and an action sounding in both negligence and contract may be maintained against an attorney. See Stowe v. Smith, 184 Conn. 194, 198-99, 441 A.2d 81 (1981); Hill v. Williams, 74 Conn.App. 654, 658-62, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003); Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529-30, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). However, the case law also indicates that 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." Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003). The issue primarily turns on the specific allegations of the complaint.
"Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word 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 action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Citation omitted; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 410-11, 844 A.2d 893 (2004).
The plaintiff's revised complaint sufficiently asserts the elements of a breach of contract to survive a motion to strike. The complaint alleges that the parties agreed that the defendant would be retained to file an action against the appropriate parties regarding the property damage. The defendant accepted a retainer for this purpose, but he failed to file the action as they had agreed. The appellate courts have found that similar allegations against professionals assert contract, rather than tort claims. See Stowe v. Smith, supra, 184 Conn 198-200; CT Page 9842 Rosato v. Mascardo, supra, 82 Conn.App. 396; Hill v. Williams, supra, 74 Conn.App. 654; Mac's Car City, Inc. v. DeNigris, supra, 18 Conn.App. 525.
The plaintiffs' contract claim has been inartfully drafted to include allegations that essentially sound in tort, but this fact is not determinative of the motion to strike. The allegations are sufficient to withstand the motion to strike because "[a]lthough not artfully pleaded, parts of [the] complaint sound in breach of contract." Hill v. Williams, supra, 74 Conn.App. 659.
The defendant also contends that in order to be separate from a malpractice claim, a contact claim must allege that the defendant assured a specific result and breached the agreement to obtain this result. There is language in some Appellate Court cases suggesting support for this position. For example, in Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881, the court reasoned that a plaintiff's contract claim against an attorney was "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." In Rumbin v. Baez, 52 Conn.App. 487, 491, 727 A.2d 744 (1999), the court stated that "[t]he plaintiff's substitute complaint contains no allegation of a breach of a contractual duty owed to him. There is no allegation that the parties contacted for a specific result." This language, in turn, has led some courts to view a "promise to achieve a specific result" as a necessary allegation for a contract claim against a professional. See Rapco, Inc. v. Louis, Superior Court, judicial district of Hartford, Docket No. CV 00 803569 (March 27, 2002, Wagner, J.T.R.) ( 31 Conn. L. Rptr. 559).
The Appellate Court in Rosato v. Mascardo, supra, 82 Conn.App. 410-12, rejected this narrow construction of the case law in this area as advanced by the defendant. The Appellate Court found that the cases allegedly supporting the defendant's position rejected "the contract claims not because the plaintiffs did not plead a failure to achieve a particular result, but because their claims sounded in malpractice and failed to disclose any breach of a contractual duty owed to them by the defendants." Id. 411.
Thus, the elements necessary to assert a contractual cause of action do not change for claims against professionals. "The elements of a breach of contract action are "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Rosato v. Mascardo, supra, 82 Conn.App. 411. The issue is not so much whether there exists a promise to achieve a specific result, although such a promise may be indicative of a contractual obligation. The primary consideration is whether a professional has bound himself to perform a particular service or duty emanating from the parties' contractual understandings, and is being charged with breaching this contractual obligation. Such a consideration differs from whether a professional has breached a more general duty to exercise the requisite degree of skill and due care. Thus, in Rosato v. Mascardo, supra, 82 Conn.App. 396, a breach of contract was found based on a claim that a physician, retained solely to perform a breast lift, performed a breast lift and inserted breast implants. In contrast, in Caffery v. Stillman, supra, 79 Conn.App. 192, a breach of contract was not found based on a claim that the attorney defendant promised to institute a civil action against a municipality when no such claim was legally possible. "[A]lthough 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 defendants failure to understand the limits of the legal remedy." Id., 198.
Therefore, in summary, the defendant's motion to strike the first count of the complaint should be denied.
II Third Count
In count three of the revised complaint, using the same facts that are alleged in the first count, the plaintiffs assert a claim for "loss of business opportunity." More specifically, the plaintiffs allege that they have suffered economic injury because the defendant's wrongful actions have rendered their condominium valueless as a rental property.
Although loss of business opportunity has been recognized as an element of damages; see, e.g., OG/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 523 A.2d 1271 (1987); the court has not located and the plaintiffs have not cited any Connecticut Appellate authority recognizing "loss of business opportunity" as a separate cause of action or identifying the elements that would constitute such a claim. A cause of action exists for tortious interference with a business expectancy, but the plaintiffs have not asserted the elements of this cause of action and they do not contend that they are making a claim for tortious interference with a contract or business expectancy. See generally, Rumbin v. Baez, supra, 52 Conn.App. 492 ("The essential elements of such a claim [for tortious interference with contract rights or other business relations] include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss").
As the plaintiffs have neither cited any controlling authority to support a cause of action for "loss of business opportunity," nor provided any persuasive reason why this court should recognize any such tort in the absence of such authority, the court agrees with the defendant that the third count should be stricken.
III Fourth Count
The fourth count asserts a CUTPA claim. After incorporating the specific allegations of fault asserted in the first count, the plaintiffs further allege in the fourth count that the defendant "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." This conduct, according to plaintiffs, was done by the defendant in the conduct of a trade or commerce, and establishes that his business was operated in a deceptive, immoral, unethical, oppressive and unscrupulous manner.
The defendant maintains that the plaintiffs' fourth count should be stricken because the CUTPA claim does not arise out of the entrepreneurial or commercial aspects of the defendant's business, relying on the Supreme Court's decision in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997). The plaintiffs disagree, arguing that the defendant's pattern of deception and misrepresentations concerning his work on the file and his later refusal to turn over the file implicate the entrepreneurial aspects of practicing law. The court agrees with the defendant.
CUTPA 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). In Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 17, and Beverly Hills Concepts, Inc. v. Schatz and Schatz, 247 Conn. 48, 717 A.2d 724 (1998), the Supreme Court concluded that trade or commerce within the meaning of CUTPA does not include the patient or client services provided by a professional, but involve the entrepreneurial or business aspects of a professional's practice. The court reasoned that to hold otherwise would transform every malpractice claim into a CUTPA claim. "CUTPA 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 — should be excluded for public policy reasons. The entrepreneurial aspects of a professional practice include "the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the defendant." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36, quoting Ikuno v. Yep, 912 F.2d 306, 312 (9th Cir. 1990) (applying Washington law).
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' clam is nothing more than a professional malpractice claim, or as found by the court, a breach of contract claim, recast as a CUTPA claim.
IV Prayer For Relief
In their prayer for relief, the plaintiffs seek "punitive damages at common law." Punitive damages are only available under common law for certain claims involving reckless, malicious or intentional conduct. Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). "[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." Id. "Breach 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." (Internal quotation marks omitted.) L.F. Pace Sons, Inc. v. Travelers Indemnity Co., 9 Conn.App. 30, 48, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). Nothing in the revised complaint alleges that the defendant's conduct was outrageous or wanton, or motivated by evil or malicious purposes. Their request for punitive damages, therefore, must fail.
Similarly, the plaintiffs' claim for attorney fees must fail. Under Connecticut law, attorney fees may be recovered as an element of punitive damages; see L.F. Pace Sons, Inc. v. Travelers Indemnity Co., supra, 9 Conn.App. 48; or pursuant to the provisions of a contract or a statute. "It is a settled principle of our common law That parties are required to bear their own litigation expenses, except as otherwise provided by statute." M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 715, 674 A.2d 845 (1996). Except for the CUTPA claim, the revised complaint contains no allegations to allow the recovery of attorney fees, and the court has indicated that the CUTPA claim should be stricken.
The plaintiffs also make a claim for treble damages under General Statutes § 52-564. This statute provides that "[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." The plaintiffs allege that the defendant committed professional malpractice or breached his retainer agreement with the plaintiffs, but nowhere do they make any claims of theft sufficient to warrant treble damages under General Statutes § 52-564.
Finally, any relief sought by the plaintiffs under CUTPA, including actual damages, punitive damages, or attorney fees, is unavailable because the court has found that the plaintiffs have failed to state a bona fide claim under CUTPA.
CONCLUSION
Therefore, for all the foregoing reasons the defendant's motion to strike is denied as to count one of the revised complaint. The defendant's motion to strike is granted as to count three and count four of the revised complaint. The motion to strike is also granted as to paragraphs two, three, four and six of the prayer for relief of the revised complaint claiming punitive damages, treble damages, counsel fees, and CUTPA relief.
So ordered.
STEVENS, J.