Susan Smith v. LLC (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE SECOND COUNT

This is a two-count malpractice action against a Law Office arising out of defendant's alleged failure to obtain and record certain mortgages on behalf of plaintiff and to otherwise protect her interests in a partnership agreement.

On January 19, 2010 defendant moved to strike the second count alleging “fraudulent concealment pursuant to General Statutes § 52-595” on the ground that it fails to plead sufficient facts for this cause of action.

The second count, in addition to incorporating the allegations of the first count, alleges the following facts.   At all times relevant, Shaw was a principal of Law Office, and provided legal counsel and representation to the plaintiff in all matters herein.   Between August 2006 to October 2006, Shaw concealed from the plaintiff that he had committed professional negligence in failing to properly advise the plaintiff in connection with the purchase of the lots, fraudulently represented to the plaintiff that nothing could be done to salvage her failed investment, and knew that if he had protected the plaintiff in accordance with the proper standard of care, she would not have suffered the loss of a great portion of her investment.   Between August 2006 and October 2006, and in 2007 it is alleged that Shaw concealed from the plaintiff that he was professionally negligent and that a cause of action could be maintained against him and Law Office to recoup the plaintiff's losses.

-I-

There is a difference of opinion in case law as to whether a fraudulent concealment action even exists in Connecticut but this argument has not been made by defendant, and the existence of such an action is presumed.

-II-

In Bartone v. Robert L. Day Co., 232 Conn. 533, our Supreme Court stated:  “Under our case law, to prove fraudulent concealment, the [plaintiff] [is] required to show:  (1) a defendant's actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff's] cause of action;  (2) that defendant's intentional concealment of these facts from the [plaintiff];  and (3) that defendant's concealment of the facts for the purpose of obtaining delay on the [plaintiff's] part in filing a complaint on their cause of action.”

-III-

To establish the second element of a claim for fraudulent concealment, the plaintiff in the present case must allege Shaw's intentional concealment of the facts necessary to establish legal malpractice by Law Office.   See Bartone v. Robert L. Day Co., supra, 232 Conn. 533.   It is true that a failure to act may be sufficient to meet the second element where the party that allegedly concealed facts from another owed the latter party a fiduciary duty to disclose material information.  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 107-10.   Thus the plaintiff can satisfy the second element by alleging that Shaw owed the plaintiff a fiduciary duty to disclose the facts necessary to establish legal malpractice by Law Office, and that Shaw failed to disclose those facts necessary to establish legal malpractice by Law Office, and that Shaw failed to disclose those facts.   However, plaintiff has failed to make these allegations.   Alternatively, there is no allegation that Shaw intentionally concealed any facts.   While paragraphs twenty-six and twenty-nine each of the first count allege that Shaw “concealed from the plaintiff” certain facts, they do not allege that such concealment was intentional.   Merely alleging that the defendants “concealed” a fact does not allege that they intentionally concealed that fact.

Second in the absence of an allegation of intentional concealment, and assuming that Shaw owed the plaintiff a fiduciary duty to disclose that the plaintiff may have a legal malpractice claim against Law Office, the plaintiff does not allege that Shaw failed to disclose any facts to the plaintiff.   It is not necessary to decide whether an attorney owes a client the duty to disclose that the client may prevail on a legal malpractice claim against the attorney, despite the plaintiff's unsupported assertion that such a duty exists.   The allegations in paragraphs twenty-six, twenty-seven and twenty-nine of the complaint that the defendant failed to disclose information use only the word “concealed”, which can mean either an affirmative act of concealment, or a failure to disclose, and are insufficient.

-IV-

The third element in this cause of action requires the plaintiff to show that Shaw's concealment of the facts was for the purpose of obtaining delay on the plaintiff's part in filing its legal malpractice claim against Law Office.   See Bartone v. Robert L. Day Co., supra, 232 Conn. 533.   Although, the plaintiff fails to make any such allegation in her complaint, she contends that the court should find that she has met her pleading burden as to the third element based on the “cumulative effect” of her allegations.

The plaintiff makes no mention of delay, the statute of limitations, or tolling in her allegations.   It cannot be necessarily implied from the plaintiff's allegations that Shaw concealed facts from the plaintiff to delay the plaintiff's filing of her legal malpractice claim against Law Office so as to cause the action to be time barred by the statute of limitations.   The actions of the defendant must be “directed to the very point of obtaining the delay of which he afterward seek's to take advantage by pleading the statute [of limitations].”  Connell v. Colwell, 214 Conn. 242, 251 (1990).

It is concluded that the plaintiff has failed to plead sufficient facts to establish the second and third elements of a claim for fraudulent concealment.

Defendant's motion to strike the second count is granted.

Wagner, J., JTR

Wagner, Jerry, J.T.R.