Lucas B. Stone et al. v. Norman A. Pattis et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 119

FACTS

On May 11, 2009, the plaintiffs, Lucas B. Stone and Joan L. Zygmunt, filed a fifteen-count complaint against the defendants Norman A. Pattis, the Law Offices of Norman A. Pattis LLC (Pattis, LLC), John Radshaw III, Thomas R. Gerarde, and Howd & Ludorf, LLC (Howd & Ludorf).   The plaintiffs allege breach of contract as to Pattis, and Pattis, LLC in count one, breach of fiduciary duty as to Pattis and Pattis, LLC in count two, fraud as to Pattis and Pattis, LLC in count three, conspiracy as to all defendants in count four, CUTPA as to Pattis and Pattis, LLC in count five, CUTPA as to Pattis and Pattis, LLC in count six, negligent infliction of emotional distress as to Pattis and Pattis, LLC in count seven, malpractice as to Pattis and Pattis, LLC in count eight, tortious interference with a fiduciary relationship as to Radshaw, Gerarde, and Howd & Ludorf in count nine, abuse of due process as to Radshaw, Gerarde, and Howd & Ludorf in count ten, fraud as to Radshaw, Gerarde, and Howd & Ludorf in count eleven, breach of fiduciary duty as to Radshaw, Gerade, and Howd & Ludorf in count twelve, CUTPA as to Radshaw, Gerarde, and Howd & Ludorf in count thirteen, CUTPA as to Radshaw, Gerarde, Howd & Ludorf in count fourteen, and negligent infliction of emotional distress as to Radshaw, Gerarde, and Howd & Ludorf in count fifteen.

The underlying facts of this action are as follows.   On or about December 28, 2003, the plaintiffs retained Pattis of Pattis, LLC to represent them in a federal civil law suit against the town of Westport and four of its police officers.   The defendants in that case were represented by Radshaw and Gerarde, of Howd & Ludorf.   While this matter was pending, Howd & Ludorf hired Attorney Christy H. Doyle, who had been an attorney at Pattis, LLC. Upon becoming dissatisfied with their representation, the plaintiffs filed a grievance against Pattis with the Federal Grievance Committee.   Subsequently, Pattis withdrew from the action, and the plaintiffs proceeded pro se, until withdrawing the action.   The plaintiffs have now proceeded to commence the present action.

On November 13, 2009, the defendants Pattis and Pattis, LLC, filed a motion to strike counts one, three, four, five, six, and seven of the plaintiffs amended complaint filed October 19, 2009.¹  The plaintiff's filed a memorandum of law in opposition on January 25, 2010.   The matter was heard at short calendar on February 1, 2010.

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, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).   The role of the 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.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 118 (2006).   “A motion to strike ․ does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1977).

SPEAKING MOTION

Before addressing the individual counts of the motion to strike, the court must resolve the preliminary procedural issue as to the plaintiffs' argument that the defendants have filed an impermissible speaking motion.  “A speaking motion to strike is one improperly importing facts from outside the pleadings ․ Speaking motions have long been forbidden by our practice and were formerly known as speaking demurrers.”  (Citations omitted.)  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).   The motion to strike in the present case is not a speaking motion, as a mere paraphrasing of the allegations in the plaintiffs' complaint for purposes of the defendants' own argument does not constitute “importing facts from outside the pleadings.”   Id.

FIRST COUNT-BREACH OF CONTRACT

The defendants argue that the plaintiff's breach of contract claim, count one, is legally insufficient.   The plaintiffs respond that count one is not legally insufficient in that it does set forth multiple causes of action of breach of contract.  “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.)  Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

“It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services ․ In a claim such as this, the client [usually] has the option to sue for either breach of an implied contract, negligence or both.”  (Citation omitted.)   Celentano v. Grudberg, 76 Conn.App. 119, 124-25, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003).  “[A] breach of contract against an attorney, on the basis of an implied contract is, essentially, governed by the same principles as a negligence action, and both are predicated on the standard of care applicable to the attorney ․ [A]n attorney does not, however, by agreeing to represent or to provide professional services to a client, impliedly contract to see the client's claim through to conclusion.   To read an attorney-client relationship to contain an implied promise to pursue a claim to conclusion would leap to bizarre and untenable results.   There are conceivably many valid reasons why an attorney might decide, after taking a case, to not pursue it to conclusion.”

“By agreeing to take on the representation of a client, the attorney promises to exercise ordinary skill and care in the representation of the client ․ Thus, an attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake ․ These principles are equally applicable whether the plaintiffs' claim is based on tort or breach of contract ․ In the absence of an express promise to see a claim through to conclusion, an attorney will breach the contract only if his performance fails to comply with the applicable standard of care.”  (Citations omitted;  internal quotation marks omitted.)  Id., 124-25.

In the present case, the plaintiffs allege that they retained the defendants to represent them in their federal civil rights case.   The plaintiffs further allege that the defendants were in breach of the standard of care, which can give rise to a breach of contract action.   Specifically, the plaintiffs allege that Pattis never intended to represent them and prosecute their case in their interests.   Accordingly, the breach of contract count appears to be sufficient and should not be stricken.

THIRD COUNT-FRAUD

The defendants argue that the plaintiffs fail to plead the requisite elements of fraud, count three.   The plaintiffs respond that the third count does not fail because they have pleaded facts sufficient to satisfy the requisite elements of fraud.  “Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed ․ The elements of a fraud action are:  (1) a false representation was made as a statement of fact;  (2) the statement was untrue and known to be so by its maker;  (3) the statement was made with the intent of inducing reliance thereon;  (4) the other party relied on the statement to his detriment.”  (Internal quotation marks omitted.)  Weinstein v. Weinstein, 275 Conn. 671, 882 A.2d 53 (2005).   Additionally, “[b]ecause specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient.”  (Internal quotation marks omitted.)  Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007).   Finally, in Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 683, 825 A.2d 210 (2003), the court noted that “[to] prevail ․ the plaintiff must ․ [allege] sufficient facts to demonstrate his reliance on the statement made by [the defendant].”

In the present case, although the plaintiffs make various allegations against the defendants, they fail to allege how the defendants' conduct induced them to act to their detriment.   The plaintiffs allege that the defendants knew their representations and fabrications to be false at the time they were presented, and that as a result they were damaged in the amount of money they were hoping to get from the federal law suit.   The implication appears to be that the actions of the defendants were intended to cause the plaintiffs to withdraw from the case.   As fraud, however, must be pleaded with specificity, the plaintiffs' vague allegations and conclusory statements are insufficient.   Accordingly, the court grants the motion as to count three.

FOURTH COUNT-CONSPIRACY

The defendants argue that Connecticut does not recognize a cause of action for civil conspiracy, as alleged in count four.   The plaintiffs respond that the fourth count is not legally insufficient because Connecticut does recognize civil conspiracy as a cause of action.  “Pursuant to Connecticut's jurisprudent, there is precisely speaking, no independent claim for civil conspiracy.   Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself ․ [T]he purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing.”  (Citations omitted;  internal quotation marks omitted.)   Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 100-10, 952 A.2d 1 (2008).²

In the present case, the plaintiffs allege conspiracy as an individual count.   Although the plaintiffs may replead to include their conspiracy allegations in another count, a claim of conspiracy cannot stand on its own.   Accordingly, the motion to strike count four of the plaintiffs' complaint relating to the present defendants is granted.

FIFTH COUNT-CUTPA

The defendants argue that the plaintiffs' CUTPA claim against counsel, as alleged in count five, is improper as it does not relate to the entrepreneurial aspects of the defendants' law practice.   The plaintiffs respond that the fifth count, alleging CUTPA, is not legally insufficient, because they have pleaded facts to show that the defendants' unfair and deceitful acts concerned the entrepreneurial aspects of his law practice.  “CUTPA [General Statutes § 42-110b(a) ] 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 ․ To enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited method, act or practice ․”

“The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce ․ In determining whether certain acts constitute a violation of CUTPA, our Supreme Court has adopted the criteria set out in the Federal Trade Commission's cigarette rule:  (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, 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 [competitors or other businessmen] ․

“To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce ․ Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce.”  (Citations omitted;  internal quotation marks omitted.)  Sovereign Bank v. Licata, 116 Conn.App. 483, 493-94, 977 A.2d 228, cert. granted, 293 Conn. 935, 981 A.2d 1080 (2009).   Specifically, addressing the practice of law, “only the entrepreneurial aspects of the practice of law are covered by CUTPA.”  Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997).  “[T]he most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law.”  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002).  “The ‘entrepreneurial’ exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities-advertising and bill collection, for example.”  Id., 782;  see Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 34-38.

Finally, the Connecticut Supreme Court has “conclude[d] that in a situation where a party to a lawsuit sues the adversary's lawyer, CUTPA does not provide a private cause of action.”  Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 726 n.15, 627 A.2d 374 (1993);  see also Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 496, 656 A.2d 1009 (1995).

In the present case, the plaintiffs allege that the defendants are in violation of CUTPA, in that the defendants requested a retainer of $7,500 and deposited it in a non-escrow account some twenty days before delivering the written contingency agreement.   The plaintiffs further allege that upon the defendants' withdrawal as counsel, the plaintiffs requested the return of their retainer, and the defendant refused.   The plaintiffs argue that these are allegations of comingling, as the defendants used that money for their own purposes.   This, however, is not clearly alleged in the complaint.   The plaintiffs fail to explain in their complaint, how these actions by the defendants were a violation of CUTPA.   Moreover, though the implication is that the defendants wrongfully withheld the funds, the plaintiffs do not allege a wrongful withholding, but merely allege that they asked for the return of the funds, and the defendants refused.   The plaintiffs' other allegations, all relate to the defendants' practice of law and do not affect the entrepreneurial aspects, such as billing.   Therefore, the court grants the motion to strike count five.

SIXTH COUNT-CUTPA

The defendants argue that count six, CUTPA, is also insufficient, as there is no factual basis for plaintiffs' CUTPA claim for punitive damages.   The plaintiffs respond that for the purpose of the sixth count the defendants' conduct was done with bad motive and a reckless indifference to the plaintiffs' interest.  “Awarding punitive damages and attorneys fees under CUTPA is discretionary ․ and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done ․ In 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 ․ In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.”  (Citation omitted;  internal quotation marks omitted.)  Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987).

In the present case, the plaintiffs do not have a valid CUTPA claim, and accordingly the claim for punitive damages under CUTPA cannot stand.   Alternatively, the plaintiffs fail to allege wanton and malicious injury, evil motive or violence.   Accordingly, the motion to strike count six is granted.

SEVENTH COUNT-NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The defendants argue that the plaintiffs do not meet the pleading requirements for their negligent infliction of emotional distress claim, as alleged in count seven.   The plaintiffs respond that the seventh count, negligent infliction of emotional distress, does not fail because the plaintiffs have pleaded facts sufficient to satisfy the requisite elements for the claim.  “To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress ․ Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009).  “This ․ test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants.   If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they therefore, properly would be held liable.   Conversely, if the [distress] were reasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and therefore, they would not be liable.”   (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).

In the present case, the plaintiffs allege that the defendants' “repeated conduct of deception, unfairness and negligence against [the plaintiffs]” caused them harm.   The damages alleged are “loss of income, depletion of personal savings, injury to [the plaintiffs'] personal reputations, mental anguish, emotional distress, humiliation and embarrassment.”   Although monetary loss is not a valid harm, the remaining allegations are sufficient.   Accordingly, the plaintiffs sufficiently allege that there was a physical manifestation of the stress allegedly caused by the defendants' actions.   The motion to strike count fifteen is denied.

CONCLUSION

Because the plaintiffs sufficiently allege a breach of duty of care, and the negligent infliction of emotional distress, the court denies the motion to strike counts one and seven.   Further, because the plaintiffs fail to plead fraud with specificity, an independent action for conspiracy does not exist in Connecticut, and the plaintiffs fail to sufficiently allege a violation of CUTPA addressing the entrepreneurial aspects of the practice of law, the court grants the motion to strike as to counts three, four, five and six.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. As Norman A. Pattis and Law Offices of Norman A. Pattis, LLC are the moving defendants, this memorandum will refer to them as the “defendants.”.  FN1. As Norman A. Pattis and Law Offices of Norman A. Pattis, LLC are the moving defendants, this memorandum will refer to them as the “defendants.”

FN2. See also Biro v. Hirsch, 62 Conn.App. 11, 17, 771 A.2d 129 (“all conspirators are civilly liable for the damage resulting from any overt act committed by one of them pursuant to the combination” [internal quotation marks omitted] ), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001);  1S. Speiser, C. Krause & A. G Ans, American Law of Torts (2003) § 3:4, p. 405 (“[o]nce a conspiracy is proven, each co-conspirator is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination” [internal quotation marks omitted] )..  FN2. See also Biro v. Hirsch, 62 Conn.App. 11, 17, 771 A.2d 129 (“all conspirators are civilly liable for the damage resulting from any overt act committed by one of them pursuant to the combination” [internal quotation marks omitted] ), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001);  1S. Speiser, C. Krause & A. G Ans, American Law of Torts (2003) § 3:4, p. 405 (“[o]nce a conspiracy is proven, each co-conspirator is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination” [internal quotation marks omitted] ).

Brazzel-Massaro, Barbara, J.