Opinion
No. CV08-5004025 S
January 8, 2009
MEMORANDUM OF DECISION
FACTUAL BACKGROUND
The defendant, Lawrence M. Lapine, Esq., has moved for summary judgment as to the plaintiffs' Revised Complaint ("Complaint") dated April 20, 2008. The Complaint consists of a single-count for breach of a written contract. The defendant asserts, however, that the claim "is nothing more than a legal malpractice action couched in contractual language." Memo, at 1. Because a three-year statute of limitations applies to a legal malpractice claim, he states the statute of limitations has run because the alleged misconduct occurred on April 11, 2003, and suit was instituted on January 16, 2008. The plaintiffs' (the defendant's former client and a corporation of which the plaintiff is an officer and owner) position is that there is in their complaint "nothing that even smells like malpractice . . ." Opp. Memo, at 5. Argument was heard on December 22, 2008.
APPLICABLE LAW
P. B. § 17-49 provides summary judgment shall be rendered if the "pleadings affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact but rather to determine whether such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1998).
APPLICATION OF LAW TO FACT
The Complaint consists of six (6) numbered paragraphs. Paragraphs 1 and 2 identify the parties to the action. Paragraph 3 pleads the existence of a "written contract" between the parties with regard to a prior real estate transaction between the plaintiffs and other named persons (not parties to the instant suit). Paragraph 4 references the same "written contract" and a provision therein that provided for withdrawal of the defendant as counsel under certain circumstances. Paragraph 5 asserts the defendant, on April 11, 2003, "breached the aforesaid written contract by unilaterally withdrawing from any further representation of plaintiffs and instructing the plaintiffs to obtain other counsel, (sic) although none of the conditions of the contract permitting him to do so had occurred." The final paragraph of the Complaint identifies the damages and losses allegedly sustained by such breach.
The defendant claims the gravamen of the Complaint is the inadequate representation of the plaintiffs which, he asserts, is essentially one of tort. Memo, at 10. He urges the court to "pierce" the "pleading veil" and to view the allegations as legal malpractice assertions for which the applicable limitations period had run at the time of the Complaint. Memo, at 12. It is so that, when deciding whether an action lies in contract or tort, courts may look beyond the language of the Complaint to determine what the real character of the action is. See e.g., Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 599 (2006). It is also so that a professional can be sued in tort for the negligent breach of a duty even though the duty arises from a contract. See Neiditz v. Morton S. Fine Associates, Inc., 199 Conn. 683, 688 (1986). "Connecticut law recognizes that one may bring an action against an attorney sounding in both negligence and contract . . . At the same time, 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." (Citations omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 383 (2008). "[T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." Pelletier v. Galske, 105 Conn.App. 77, 81 (2007). "Whether the plaintiff's claim is one for malpractice depends on the allegations of the complaint." Weiner, supra, at 384. "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 . . ." (Internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735 (1984). In Weiner, supra, two counts were asserted — one in negligence and one in contract. The Court determined the language of both counts "largely are identical." 106 Conn.App. 379, 384 (2008). It went on to say that both counts alleged the defendant failed to use reasonable care, skill and diligence in providing legal services to the plaintiffs." Id. The facts are therefore clearly distinguishable from the instant case. Our Supreme Court has clearly stated that "[a]n action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law." Gazo v. Stamford, 255 Conn. 245, 263 (2001). In Alexandru v. Strong, 81 Conn.App. 68, 78, cert. denied, 268 Conn. 906 (2004), the Appellate Court held that the plaintiffs breach of contract claim was legally insufficient (The procedural posture was that of a motion to strike.) because it "essentially mirror[ed] those outlined in the malpractice claim . . ." Id. Similarly, in Winter v. D'Andrea, superior court, judicial district of Litchfield, Docket No. CV 06 5001360 (Jan. 28, 2008, Sheldon, J.), the court noted that an important factor in its determination that the breach of contract claim was legally insufficient was that the complaint sought the same tort remedies for legal malpractice and breach of contract.
The defendant urges the court's acceptance of its conclusion that what was here pled is a tort claim with a shorter statute of limitations than one founded on a written contract on the plaintiffs' remedies asserted in Paragraph 6 of the Complaint — specifically, "economic losses, consisting of the fees and expenses they were required to pay to new counsel . . . and . . . physical illness and emotional distress." His argument is that the personal injuries such as "physical illness and emotional distress" more appropriately reflect negligent conduct. He cites to Pinette v. McLaughlin, 96 Conn.App. 769, 774 (2006), Lind-Larsen v. Fleet Nat'l Bank of Connecticut, 84 Conn.App. 1, 16 (2004), and to Gazo, 255 Conn., at 265-66. In Pinette, two counts were asserted — one in contract (based on a rental lease) and one in tort (A CUTPA claim was pled.). The claim arose out of a fall on ice. The Court found the claim was essentially one of tort and that the plaintiff could not convert tort liability into one sounding in contract "merely by talismanically invoking contract language in his complaint . . ." Id. at 773. In Lind-Larsen, supra, while it essentially involved the refinancing of a residence, the plaintiff alleged multiple counts — two counts asserting CUTPA violations, a negligence count (for the alleged failure to release a mortgage), a count asserting a "breach of contract or for tortious conduct arising out of a duty imposed by contract" ( 84 Conn.App., at 15), a count alleging a constructive trust claim, a count asserting a civil conspiracy claim, and a final count seeking to consolidate her action with another action brought to foreclose on her mortgage. With regard only to the breach of contract count, the Court found persuasive that she did not seek economic damages (as the plaintiffs before this court have sought) but solely damages for "pain and suffering." Id. at 16. In Gazo, supra, the plaintiff sought compensation for injuries suffered from a fall on snow and ice "purportedly because of . . . negligence." Id. at 264. The Court went on to say that the plaintiff was not seeking damages for the breach of a contract between the abutting property owner and that abutting owner's tenant but rather for "negligence in the performance of the contract" Id. at 264. Of interest is the Court's finding the plaintiff could not assert a contract claim because he could not properly be considered a third party beneficiary of the contract between others. Id., at 261-62.
The moving party on a summary judgment motion has the burden of showing the absence of any genuine issue of material fact which entitles him to judgment as a matter of law. At argument, the defendant acknowledged the existence of a contract. There is nowhere in this succinct pleading any allegation of negligence by the defendant nor is there any claim the defendant's representation of the plaintiffs was deficient or less than skillful. The bare allegation is that the defendant withdrew from representing them — after advising the plaintiffs of the need to obtain other counsel — contrary to the circumstances specified in the written contract. For this court to conclude the plaintiffs' Complaint alleged a malpractice claim is both contrary to the pleading and a usurpation of the plaintiffs' right to assert their contractual claim.
Under these circumstances, the court declines — as the defendant urges — to exercise her discretion. The interpretation of a pleading is a question of law. The defendant having failed to carry his burden, the motion for summary judgment is denied.