Michael Ruben Peck et al. v. Michael C. Perugini (2010)

MEMORANDUM OF DECISION RE COUNTERCLAIM DEFENDANTS' MOTION TO STRIKE COUNTERCLAIM, # 155

This action was commenced by the plaintiffs/counterclaim defendants as a collection action for legal fees.   The defendant/counterclaimant (“Perugini”) filed an amended counterclaim alleging in count one, legal malpractice, in count two, CUTPA violations and in count three, negligent infliction of emotional distress.

The plaintiff/counterclaim defendant Geraldine Ficarra moved to strike the counterclaim in its entirety.   Co-plaintiff/counterclaim defendant Michael Peck joined in that motion.¹  For the reasons set forth below, that motion is GRANTED in part and DENIED, in part.

Standard of Review

“[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action” Morgan Chase Bank v. Rodrigues, 1099 Conn.App. 125, 131, 952 A.2d 56 (2008).   Under our rules of practice, a motion to strike may be filed to test the legal sufficiency of a counterclaim.  Id.;  Practice Book § 10-39.   The role of the trial court in ruling on a motion to strike is test the legal sufficiency of the pleading at issue.  RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [counterclaim] construed in favor of the [claimant] 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 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc., supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

AS TO THE ENTIRE COUNTERCLAIM

Additional procedural facts are necessary in order to resolve this issue.   Previously, Perugini filed counterclaims which were the subject of a request to revise, filed pursuant to Practice Book § 10-35.   Perugini did not object to the requested revisions, rendering them, by rule of practice “granted.”   See, Practice Book § 10-37.   In November 2009, Perugini filed a request for leave to amend the counterclaim, which request was granted over objection (Arnold, J.).   The amended counterclaim, the pleading at issue in this motion, includes two of the allegations which had previously been the subject of the requests to revise.

The plaintiffs now seek to strike the counterclaim in its entirety because it incorporates the allegations previously deleted by operation of the rules of practice.   At issue, is Perugini's use of the word “malicious,” in various forms, in connection with several alleged acts of negligence identified in Count One of the counterclaim.   See, Amended Counterclaim, dated November 20, 2009, Count One, ¶¶ 6, 7 and 8.² The use of the word malicious in Count One, while perhaps gratuitous to a negligence claim, does not render confusing the nature of this claim.   It is quite clearly, a legal malpractice/negligence action.   It contains a lengthy recitation of the alleged transgressions.   The infrequent and sporadic use of the word “malicious” is inconsequential.   Further, Perugini is a self-represented person for whom some leeway is appropriate.   The motion to strike based upon the inclusion of the word “malicious” is DENIED.

However, Perugini, insofar as he avers a negligence action and insofar as malice or maliciousness is not an element of any such claim, is ordered to delete the word “malicious” in whatever form it appears, from paragraphs 6, 7 and 8 of Count One of the counterclaim.³

COUNT TWO:  CUTPA

The plaintiffs next seek to strike Count Two of the counterclaim which alleges a violation of the Connecticut Unfair Trade Practices Act, (“CUTPA”).   The allegations contained in Count Two incorporate the allegations of Count One, the negligence count.   It further includes an allegation that the plaintiffs told him that they would no longer represent him if he did not pay them an additional fee of $40,000, conduct which he refers to as “an attempt to extort” money from him.   He alleges that they then attempted to withdraw their appearance during the course of his dissolution proceedings, which request was denied by the court.   The pleading alleges further:  “This malicious and unprofessional conduct was extremely disruptive and certainly could not be considered as being in the best interests of their client.”

The question posed by this motion to strike is whether the attorneys' conduct falls within a narrowly defined exception to the rule that while CUTPA applies to attorneys, it does not generally apply to the practice of law.

The Connecticut Supreme Court has stated that, “in general, CUTPA applies to the conduct of attorneys.  Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983).”  Suffield Development Associates LP v. National Loan Investors, LP, 260 Conn. 766, 781 (2002).   However, the Court has “declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law.”  Id. (Citations omitted.)   Indeed, it is clear that “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).”  Id. In reviewing its own jurisprudence, the Supreme Court stated that “the 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.”  Id. This requires a review and analysis of the factual allegations contained in the pleading and will necessarily be determined on a case by case basis.

In reviewing the allegations, the court is mindful that:

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.   See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34-38, 699 A.2d 964 (1997) (reasoning that practice of law and medicine may give rise to CUTPA claims only for entrepreneurial aspects, such as solicitation of business and billing, and not for claims involving issues of competence and strategy.)   It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability.   Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature.

260 Conn. at 782.   Nor do allegations of intentional misconduct, or misconduct motivated by profit considerations, transform the conduct from protected to “entrepreneurial.”  Id. at 782-284.   Thus, even if this plaintiff's allegations in paragraph 12 are interpreted as stating intentional misconduct, this alone does not create CUTPA liability.

Here, a review of the allegations made in support of the CUTPA claim reveal a litany of ways in which the lawyers allegedly deviated, through either negligence or even intentional misconduct, from their professional duties to Perugini.   However, the allegations all stem from their conduct during the course of their representation of him before and at the trial of the dissolution matter, including the allegations of paragraph 12 of the CUTPA count which refers to the circumstances during trial, under which the lawyers attempted to withdraw from their representation of him.   In sum, the allegations do not relate to any entrepreneurial aspects of the practice of law.   Accordingly, Count Two of the counterclaim is stricken.   Insofar as Count Two is stricken, so is the claim for punitive damages and attorneys fees in the prayer for relief.   Our law does not permit the award of punitive damages nor attorneys fees in negligence actions.⁴

COUNT THREE-Negligent Infliction of Emotional Distress

The plaintiffs also move to strike Count Three, which alleges negligent infliction of emotional distress.   In Count Three, Perugini first incorporates the allegations of legal malpractice included in Count One.⁵ Thereafter, he alleges:  “By the very nature of their work, as divorce attorneys, and through the exploitation of the mental state of “Perugini” in the dissolution action, “Peck” and “Ficarra” were well aware of the emotional stress that their outrageous actions and conduct has placed and continues to place upon “Perugini.” ⁶

In order for a party to prevail on a claim of negligent infliction of emotional distress, a plaintiff must plead and prove the following elements:  “(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.”  Carrol v. Allstate Ins. Co., supra, 262 Conn. 444.   As to the first and second elements, they “essentially [require] 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 unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause distress and, therefore, they would not be liable.”   Larobina v. McDonald, 274 Conn. 394, 410, 875 A.2d 522 (2005).   Recovery for negligently caused emotional distress does not require actual physical injury or a risk of harm from physical impact.  Montanieri v. Southern New England Telephone Co., 175 Conn. 337 (1978).   However, “the protection that the law accords to the interest in one's peace of mind ․ must be limited so as not to open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law.”  Id.

The plaintiffs advance several arguments in favor of the motion to strike.   They challenge the sufficiency of the pleading;  they aver that the claim arises out of a claim of property damage only and cannot therefore be the basis of a claim of negligent infliction of emotional distress under Connecticut law;  they advance a policy argument that legal malpractice claims should not be permitted as a factual basis for negligent infliction of emotional distress claims.

It is fairly well established that to date, Connecticut has not recognized claims for negligent infliction of emotional distress arising out of situations resulting in property damage alone.⁷  Connecticut courts have not, however, precluded such a cause of action merely because it arises in the context of a legal malpractice claim.   Indeed, such a cause of action has been recognized on more than one occasion.  Giovanelli v. Cantor, Floman, Gross, Kelly and Sacramone, 44 Conn. L. Rptr. 802 (January 30, 2008, Robinson, J.);   McHenry v. Lubell, Superior Court, Judicial District of Fairfield, Dkt. No. CV 0346842 (August 3, 2001, Skolnick, J.).   The court in Giovanelli relied, at least in part, on DiStefano v. Millardo, 276 Conn. 416 (2005), a case which was tried to a jury and which involved allegations of legal malpractice as well as negligent infliction of emotional distress.   This court is not persuaded that well pled claims of negligent infliction of emotional distress arising within the context of legal malpractice claims should be precluded on policy grounds.

The next issue then is whether the claim is adequately pled and if so does it arise out of a claim for property damage only.   As indicated, Count Three first incorporates the allegations of legal malpractice contained in Count One of the counterclaim.   The only additional allegation, contained in paragraph 12, is as follows:  “By the very nature of their work as divorce attorneys, and the exploitation of the mental state of Perugini in the dissolution action, Peck and Ficarra were well aware of the emotional stress that their outrageous actions and conduct has placed, and continues to place upon Perugini.”

Count Three of the counterclaim fails to plead a cause of action for negligent infliction of emotional distress.   It fails to allege that the plaintiffs' conduct created an unreasonable risk of emotional distress;  it fails to allege that the plaintiffs knew or should have known that their conduct was likely to cause emotional distress; ⁸  it fails to allege that the risk of emotional distress that the plaintiffs knew or should have known about was likely to cause illness or bodily harm.   Therefore, as pled, Count Three is legally insufficient, See, Parsons v. United Technologies Corp., 243 Conn. 66, 88 (1997), and the motion to strike Count Three of the counterclaim is GRANTED.⁹

SO ORDERED

K. DOOLEY, J.

FOOTNOTES

FN1. Peck and Ficarra will herein be referred to as the plaintiffs..  FN1. Peck and Ficarra will herein be referred to as the plaintiffs.

FN2. Insofar as the Court is granting the Motion to Strike Counts Two and Three of the Counterclaim, the only pertinent allegation remaining is that the defendants acted with “malicious carelessness,” that they were “maliciously unprofessional” that they “maliciously and carelessly rebuffed his pleads (sic)” as averred in several paragraphs of Count One, the legal malpractice claim..  FN2. Insofar as the Court is granting the Motion to Strike Counts Two and Three of the Counterclaim, the only pertinent allegation remaining is that the defendants acted with “malicious carelessness,” that they were “maliciously unprofessional” that they “maliciously and carelessly rebuffed his pleads (sic)” as averred in several paragraphs of Count One, the legal malpractice claim.

FN3. These deletions are appropriate as well in light of the prior requests to revise.   A litigant should not be able to thwart application of the rules of practice by repleading the identical allegations previously deleted thereby..  FN3. These deletions are appropriate as well in light of the prior requests to revise.   A litigant should not be able to thwart application of the rules of practice by repleading the identical allegations previously deleted thereby.

FN4. In his opposition to the Motion to Strike, Perugini relies upon his allegations of “malicious” misconduct contained in Count One. However, as previously noted, Count One sounds in negligence.   The counterclaim does not contain a “reckless conduct” count.   Nor does it contain any counts averring an intentional tort..  FN4. In his opposition to the Motion to Strike, Perugini relies upon his allegations of “malicious” misconduct contained in Count One. However, as previously noted, Count One sounds in negligence.   The counterclaim does not contain a “reckless conduct” count.   Nor does it contain any counts averring an intentional tort.

FN5. He does not incorporate paragraph 12 from the CUTPA count involving the demand for additional fees and the subsequent attempt to withdraw from the case mid-trial..  FN5. He does not incorporate paragraph 12 from the CUTPA count involving the demand for additional fees and the subsequent attempt to withdraw from the case mid-trial.

FN6. Perugini attaches documents to his memorandum in opposition to the Motion to Strike.   He relies upon these documents and their content to make additional allegations beyond those contained in his Counterclaim.   The court cannot consider these exhibits, the additional factual matters contained therein or the argument premised thereon.   See, Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn 845 (1996)..  FN6. Perugini attaches documents to his memorandum in opposition to the Motion to Strike.   He relies upon these documents and their content to make additional allegations beyond those contained in his Counterclaim.   The court cannot consider these exhibits, the additional factual matters contained therein or the argument premised thereon.   See, Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn 845 (1996).

FN7. See, Bernadt v. Leopold, Superior Court, Judicial District of Stamford/Norwalk, Dkt. No. CV 09-5010520 (December 29, 2009, Jennings, J.);   Burke v. Boatworks, Inc., Superior Court, Judicial District of Stamford/Norwalk, Dkt. No. CV 04 4001838 (July 26, 2005, Jennings, J.);   Picard v. O'Rourke, Superior Court, Judicial District of New Haven, Dkt. No. CV 01 0381204 (August 13, 2001, Skolnick, J.).   The rationale for this conclusion is that emotional distress is not reasonably foreseeable to a defendant whose conduct causes injury to property only.  Duffy v. Wallingford, 49 Conn.Sup. 109, 122 (2004)..  FN7. See, Bernadt v. Leopold, Superior Court, Judicial District of Stamford/Norwalk, Dkt. No. CV 09-5010520 (December 29, 2009, Jennings, J.);   Burke v. Boatworks, Inc., Superior Court, Judicial District of Stamford/Norwalk, Dkt. No. CV 04 4001838 (July 26, 2005, Jennings, J.);   Picard v. O'Rourke, Superior Court, Judicial District of New Haven, Dkt. No. CV 01 0381204 (August 13, 2001, Skolnick, J.).   The rationale for this conclusion is that emotional distress is not reasonably foreseeable to a defendant whose conduct causes injury to property only.  Duffy v. Wallingford, 49 Conn.Sup. 109, 122 (2004).

FN8. Perugini's use of the past tense for the plaintiffs' alleged knowledge and the present tense for his alleged stress makes the pleading ambiguous on the issue of whether foreseeability is adequately pled..  FN8. Perugini's use of the past tense for the plaintiffs' alleged knowledge and the present tense for his alleged stress makes the pleading ambiguous on the issue of whether foreseeability is adequately pled.

FN9. The ambiguity and inadequacy of the pleading makes it impossible to determine whether the claim is one that arises out of property damage alone.   The Court does not reach that issue..  FN9. The ambiguity and inadequacy of the pleading makes it impossible to determine whether the claim is one that arises out of property damage alone.   The Court does not reach that issue.

Dooley, Kari A., J.