De Hertogh v. Boatman et al. (2010)

MEMORANDUM OF DECISION

The plaintiffs, Peter De Hertogh, Anne De Hertogh, and John O'Neill, Jr., trustee of the bankruptcy estate of the De Hertogh's, commenced this legal malpractice action by service of writ, summons and complaint on the defendants, Boatman, Boscarino, Grasso & Twachtman, Law Offices of Patrick W. Boatman, LLC, and Patrick W. Boatman, individually, on June 10, 2009.¹

The plaintiff's two count amended complaint, filed on October 22, 2009, sounds in breach of contract (count one) and negligence (count two) and alleges the following facts.   In March 2004, the plaintiff's entered into an agreement with the defendants.   Under this agreement, which is not attached to the complaint, the defendants agreed to represent the plaintiff's as their attorney in a bankruptcy proceeding.   The defendants performed various services under the agreement, including investigation, evaluation and preparation for the bankruptcy filing, as well as correspondence and negotiations relating to the plaintiffs' debts and creditors.   Subsequently, the defendants filed for Chapter 7 bankruptcy on the plaintiffs' behalf, and one or more of the defendants continued to represent the plaintiff's until June 11, 2007.

In count one, breach of contract, the plaintiffs allege that they performed all of their obligations under the agreement, but the defendants breached this agreement by:  (a) Failing to provide the plaintiff's “any value in exchange for payment received” under the agreement;  (b) Failing “to properly analyze issues in accordance with their contractual obligation to do so”;  (c) Failing “to fully advise” the plaintiffs as to all of their options;  (d) Failing “to perform in accordance with the agreement of the parties and the purposes therefore”;  And, (e) failing “to file in a manner which would have resulted in the maximum benefits available” to the plaintiffs.  (Complaint, count one, ¶ 10.)   The defendants' alleged breach resulted in damages to the plaintiff's that include, inter alia, loss of assets and value that they could have retained through the bankruptcy filing.

Count two, negligence, repeats the facts alleged in count one.   It further alleges that the defendants breached their duty of care, injured and caused damage to the plaintiffs by:  (a) Failing to investigate the plaintiffs' financial circumstances;  (b) Failing to realize and/or advise the plaintiff's to the potential issues and risks involved;  (c) Failing to file for bankruptcy in the most effective manner for the plaintiffs;  (d) Failing to properly search and review title issues;  (e) Failing to transfer assets for the most advantageous bankruptcy filing on the plaintiffs' behalf, And, (f) Failing to provide “conscientious, competent and diligent services” to the plaintiffs.   (Complaint, count two, ¶ 9.)

The plaintiffs seek the same damages for both counts:  money damages, interest, costs of the action and other relief as provided by the court.   Pending before the court is the defendants' motion to strike to which the plaintiffs have objected.

“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).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff 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).  “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, 580, 693 A.2d 293 (1997).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

The defendants argue that the court should strike count one, breach of contract, because it does not sufficiently allege breach of contract as a distinct cause of action and, in essence, couches a negligence claim in contract terms.   The plaintiffs object on the ground that they have sufficiently alleged a separate count for breach of contract and both contract and tort claims may be offered in a single action.

“Not all claims against attorneys must necessarily be construed as tort claims ․ Connecticut law recognizes that one may bring against an attorney an action 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 ․ [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims.”  (Citations omitted;  internal quotation marks omitted.)  Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).

Recently, in Weiner v. Clinton, supra, 106 Conn.App. 384, the Appellate Court addressed a legal malpractice claim brought on both negligence and breach of contract theories.   It upheld the trial court's granting of summary judgment on the breach of contract claim on the ground that the breach of contract and negligence claims were essentially identical:  both counts alleged that “the defendant failed to use reasonable care, skill and diligence in providing legal services to the plaintiffs.”  Id., 384.   Furthermore, the breach of contract count did not satisfy any of the exceptions to the presumption against bringing a breach of contract claim when it repeats the allegations of a negligence claim.  Id., 385.   The count “contain[ed] no allegations that refer to specific actions required by the defendant ․ nor [did] it contain allegations of the defendant's refusal to take certain actions ․ [or] assert that a defendant who is a professional breached an agreement to obtain a specific result.”  (Citations omitted;  internal quotation marks omitted.)  Id.

It does appear that the bulk of the allegations of the breach of contract claim address the standard of care and therefore would merit granting the motion to strike on the ground that they couch negligence claims in a breach of contract count.   However, paragraph 9(d) of count one implies that the defendants failed to honor some obligation promised in their agreement.   In particular, this paragraph alleges that the defendants “have failed to perform in accordance with the agreement of the parties and the purposes therefore.”   Although the plaintiffs have not attached their purported agreement with the defendants to the amended complaint, the court is obliged to broadly analyze the express and implied allegations of the complaint to determine if these allegations support a cause of action.   Because the plaintiffs allege in paragraph 9(d) that the defendants failed to perform specific actions required under the agreement, they have alleged a legally sufficient breach of contract claim.   See Weiner v. Clinton, supra, 106 Conn.App. 385.

CONCLUSION

Accordingly, the motion to strike is hereby denied as the plaintiff's have alleged the existence of contractual obligations that the defendants failed to perform sufficiently distinct from the negligence claims set forth in count two.

Peck, J.

FOOTNOTES

FN1. A withdrawal was filed as to the plaintiff, John O'Neil, Jr., trustee, and the defendant Boatman, Boscarino, Grasso & Twachtman on October 22, 2009..  FN1. A withdrawal was filed as to the plaintiff, John O'Neil, Jr., trustee, and the defendant Boatman, Boscarino, Grasso & Twachtman on October 22, 2009.

Peck, A. Susan, J.