Town of Branford v. David S. Doyle, Esq. et al. (2010)

MOTION TO STRIKE # 128

FACTS

On August 12, 2008, the plaintiff, the town of Branford, filed a three-count complaint against the defendants, the Marcus Law Firm and its employee David S. Doyle, Esq.¹ Counts one and two are in negligence and count three is a claim for breach of fiduciary duty.   In the complaint, the plaintiff alleges the following facts.

The defendants represented the plaintiff in two lawsuits:  the first, an eminent domain assessment appeal and, the second, a claim for damages arising from the bad faith use of eminent domain.   In the assessment appeal, the court ordered the plaintiff to disclose trial experts by May 7, 2007.   The defendants did not notify the plaintiff of the deadline;  consult with experts;  or disclose experts to the court by the deadline.   As a result of the defendants' actions, the plaintiff incurred losses including payment of additional attorneys fees for both trial and appellate services.

In the bad faith use of eminent domain lawsuit, the court ordered the plaintiff to disclose all expert witnesses by May 30, 2007.   The defendants did not notify the plaintiff of the deadline or consult with experts.   When the plaintiff replaced the defendants as counsel, they failed to notify the plaintiff's new counsel of the deadline.   The plaintiff missed the deadline and was not allowed to submit its experts' testimony.   The court in that case entered judgment against the plaintiff in the amount of $12,435,914.78.   As a result, the plaintiff alleges that the defendant's actions caused the plaintiff to incur damages, including the loss of the lawsuit and payment of additional fees.

The plaintiff further alleges that the defendants acted as the plaintiffs fiduciaries.   As fiduciaries, the defendants had “a superior knowledge and skill in the management of the litigation ․ and owed to [the plaintiff] a high degree of good faith and undivided loyalty.”   The plaintiff relied upon the defendants for advice and counsel.   It alleges that the defendants breached their fiduciary duty.

On December 8, 2009, the defendants filed a motion to strike count three of the plaintiff's amended complaint on the ground that the plaintiff has alleged insufficient facts to establish a claim for breach of fiduciary duty.   The defendant has submitted a memorandum of law in support of the motion.   On January 5, 2010, the plaintiff filed an objection and memorandum in opposition to the motion.   On October 18, 2010, the matter was heard at short calendar.

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).  “[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).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra.

In their memorandum of law in support of the motion to strike, the defendants argue that the facts alleged in count three are the same as those alleged in the two counts of negligence, a breach of the standard of care, and therefore, are insufficient to establish a breach of fiduciary duty.   Specifically, they argue that claims for a breach of fiduciary duty involve fraud, self-dealing or conflict of interest, which have not been alleged by the plaintiff.   In opposition, the plaintiff counters that its allegations of “[t]he defendants' thorough neglect of their duties in various aspects of litigation for such a long period of time implies more than negligence.”   The plaintiff argues that this thorough abuse of its trust “necessitates that [the defendants] were disloyal and dishonest to [the plaintiff as its] client.”

“[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.”  (Citation omitted;  internal quotation marks omitted.)  Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006).  “[A]lthough [our Supreme Court] [has] not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which [our Supreme Court] [has] invoked them have involved such deviations.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 196.

“Professional negligence alone ․ does not give rise automatically to a claim for breach of fiduciary duty.   Although an attorney-client relationship imposes a fiduciary duty on the attorney ․ not every instance of professional negligence results in a breach of that fiduciary duty ․ Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty.”  (Citations omitted.)  Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56-57, 717 A.2d 724 (1998).

“In several recent Superior Court cases, [the court has required] plaintiffs asserting claims for breach of fiduciary duty to allege that the defendants engaged in some form of fraudulent or immoral behavior beyond simple negligence or legal malpractice.   See Memoli v. Galpin, Superior Court, judicial district of Litchfield, Docket No. CV 04 4001269 (June 30, 2006, Pickard, J.) (41 Conn. L. Rptr. 564) (granting motion to strike where allegations did not assert ‘dishonesty, disloyalty, or immorality’);  J.S.T. Development Corp. v. Vitrano, Superior Court, judicial district of New Britain, Docket No. CV 03 0521186 (June 22, 2004, McWeeny, J.) (37 Conn. L. Rptr. 590) (granting motion to strike where ‘[n]othing in the allegation implicates the defendant's loyalty, honesty, or morality’);  Nosik v. Bowman, Superior Court, judicial district of Fairfield, Docket No. CV 00 0379089 (July 12, 2002, Doherty, J.) (‘to survive a motion to strike framed as a breach of fiduciary duty, a pleader must allege facts which implicate the morality of counsel's conduct’).”   Lee v. Brenner, Saltzman & Wallman, Superior Court, judicial district of Ansonia-Milford at Derby, No. CV 06 5000728 (May 24, 2007, Esposito, J.) (43 Conn. L. Rptr. 462, 463-64).

In J.S.T. Development Corp. v. Vitrano, supra, the plaintiff alleged that the defendant, its lawyer, failed to inform it of a tax foreclosure action on the plaintiff's property, which resulted in the city of Bristol taking the property.   In that case, the court granted the defendant's motion to strike because the plaintiff alleged only that the defendant “failed to exercise appropriate skilled care and competence as a registered agent and as an attorney ․ The plaintiff [asserted] that it engaged the defendant Vitrano's services because it trusted and had confidence that he would use superior knowledge, skill and expertise;  there, however, [remained] no allegations, which [asserted] dishonesty, disloyalty, or immorality.”  J.S.T. Development Corp., supra, 37 Conn. L. Rptr. 592.

Similarly, in the present case, the plaintiff has only pleaded facts that implicate the defendants' competence as attorneys.   The plaintiff alleges that the defendants:  (1) failed to consult with experts;  (2) failed to disclose experts pursuant to court orders;  (3) failed to notify the plaintiff or the plaintiff's replacement trial attorneys of the court ordered deadlines regarding disclosure of experts;  (4) failed to timely obtain expert reports;  and (5) failed to address legal issues and organize factual issues necessary to represent the plaintiff.   These alleged facts only implicate the duty of care the defendants owed the plaintiff.   Construing the alleged facts in favor of the plaintiff, the complaint does not allege facts that implicate the defendants' duty of loyalty and honesty.   For example, the plaintiff has not alleged that the defendants benefitted from failing to inform the plaintiff of important court ordered deadlines and failing to prepare for trial, which would implicate loyalty.   Additionally, the plaintiff has not alleged that the defendants lied to or misled it in any way, which would implicate honesty.

Therefore, count three of the amended complaint is legally insufficient to support a cause of action for breach of fiduciary duty.   For the foregoing reasons, the court grants the defendants' motion to strike.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. The operative complaint is the amended complaint filed on April 9, 2009..  FN1. The operative complaint is the amended complaint filed on April 9, 2009.

Burke, Richard E., J.