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

MEMORANDUM OF DECISION

The plaintiffs brought this action to collect legal fees they claim are owed them by the defendant.   The defendant counterclaimed, alleging in the first count of his counterclaim that the plaintiffs were negligent in their representation of him in a divorce action;  alleging in the second count that the plaintiffs' conduct violated General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA);  and alleging in the third count that the plaintiffs negligently inflicted emotional distress on him.

The plaintiffs moved to strike the second count on the ground that it did not allege plaintiffs' conduct occurred within the entrepreneurial aspect of the law, as required for attorney liability under CUTPA.   See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997).   The court, Dooley, J., agreed, stating that, with respect to the second count, “the allegations all stem from [the plaintiffs'] conduct during the course of their representation of [the defendant] 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, the court granted the motion to strike the second count and the related claims for punitive damages and attorneys fees in the defendant's prayer for relief.

The plaintiffs also moved to strike the third count because it failed to allege the four elements of the cause of action known as negligent infliction of emotional distress.   The court again agreed and granted the motion to strike the third count of the counterclaim.

The defendant has filed a revised counterclaim reasserting a second count alleging a CUTPA violation and a third count alleging negligent infliction of emotional distress.   The plaintiffs have moved to strike the second and third counts and the defendant's claims for punitive damages or attorneys fees, and have moved for judgment on the second and third counts, “based on the law of the case doctrine following the ruling and Memorandum of Decision by the Court, Dooley, J.”

“A motion to strike challenges the legal sufficiency of a pleading ․ We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked ․ In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ․ New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause ․ Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․

“A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge ․ Judge shopping is not to be encouraged and a decent respect for the views of his brethren on the bench is commendable in a judge.   Nevertheless, if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment ․ The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle ․ From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling ․” (Internal quotation marks omitted.)  Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982).

It is not so much the law of the case that is implicated by the pleadings but an ancillary rule.  “After a trial court has sustained a motion to strike a complaint or a portion of the complaint, the plaintiff has two options.   He may amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the [motion to strike] ․ The choices are mutually exclusive.”  (Internal quotation marks omitted.)  Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 777, 887 A.2d 420 (2006).   If the plaintiff chooses to file an amended pleading and that pleading is not “materially different” than the pleading that was stricken by the court, the party who filed the motion to strike may file a second motion to strike;  P & L Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 50-51, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994);  and obtain judgment on the amended pleading.  Royce v. Westport, 183 Conn. 177, 181-82, 439 A.2d 298 (1981).

In the second count of his prior counterclaim, the defendant incorporated the first eleven paragraphs of his first count in which he related how he came to meet the plaintiffs, enter into a retainer agreement with them that violated Rule 1.5 of the Rules of Professional Conduct, and how they committed malpractice during his divorce trial.   He then alleged:  “12.   On or about September 4, 2007 [the plaintiffs], having just received the second $10,000.00 installment payment, notified [the defendant] in writing that they would not continue to represent him at trial the following day unless he immediately paid them the amount of $40,000.00.   Said demand letter consisted of nothing more than an attempt to extort money, as under no terms of the retainer agreement were [the plaintiffs] entitled to any such payment.   When [the defendant] refused to pay this amount, using an excuse of conflict, [the plaintiffs] proceeded the following day to request to withdraw from the case.   The malicious and unprofessional conduct was extremely disruptive and certainly could not be considered as being in the best interests of their client, as the Court had to halt the dissolution trial, clear the courtroom and bring in another Judge for a separate hearing on this matter.   At the hearing the presiding Judge, after listening to all testimony and considering all [the] evidence, refused to allow [the plaintiffs] to withdraw their appearance from the case.”   As a result the defendant alleged, the plaintiffs violated CUTPA.

In the second count of his revised counterclaim, the defendant again relates how he came to meet the plaintiffs and enter into a retainer agreement with them that violated the Rules of Professional Conduct.   The defendant realleges the aforementioned conduct, again noting that the plaintiffs, after accepting an initial payment of $10,000, notified him that they would not represent him at trial unless he paid them an additional $40,000.   Additionally, the defendant alleges that when he refused to pay this amount the plaintiffs attempted to withdraw from the case.   The defendant alleges that the plaintiffs' conduct “was undertaken with the sole purpose of an unfair method of bill collection and this conduct had nothing to do with the practice of law, as it could in no way be construed as acting in the best interests of their client.”Furthermore, the defendant alleges that the retainer agreement required him to pay a contingency fee of $10,000 in the event the plaintiffs “obtained a result in payments of $500.000.00 or less to [the defendant's] wife ․ These unfair unscrupulous and strictly entrepreneurial acts on the part of [the plaintiffs], in demanding from [the defendant] the amount of $40,000.00, which was in complete contradiction with the payment terms of the retainer agreement, executed in good faith on August 3, 2007, or withdrawing their representation on the second day of a four day trial, as well as the illegal $10,000.00 contingency fee condition, constitute a violation of [CUTPA] from which [the defendant] has sustained an ascertainable loss of credibility, money, standing and the opportunity to obtain a fair and equitable award in his dissolution action.”

A subsequent pleading is “materially different” from a superseded pleading if it “addresses the specific defect” that resulted in the court striking the prior pleading.  Parsons v. United Technologies Corp., 243 Conn. 66, 74-75, 700 A.2d 655 (1997).   Judge Dooley granted the motion to strike the second count of the prior pleading because it did not allege entrepreneurial aspects of the practice of law so as to bring it within CUTPA.   The revised counterclaim adds nothing to remedy this deficiency.   The changes made by the plaintiff in the second count of the revised counterclaim are, at best, as to form and superficial.  Amorosa v. Ernst & Young LLP, 672 F.Sup.2d 493, 506 (S.D.N.Y.2009).   Therefore, the second count is not materially different from the previous second count of the defendant's counterclaim.   For this reason, the motion to strike the second count of the defendant's counterclaim is granted, together with the related claims for relief for punitive damages and attorneys fees, and the plaintiffs' motion for judgment as to the second count is granted.

Judge Dooley granted the motion to strike the third count of the defendant's counterclaim, purporting to sound in negligent infliction of emotional distress, because:  “It fails to allege that the plaintiff's 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;  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.”   The defendant has cured these deficiencies in his revised counterclaim.

The plaintiffs also argue in their brief that the third count “fails to make any additional factual allegations as to the underlying conduct by the counterclaim defendants.”   This argument is contained in three sentences in one paragraph of the plaintiffs' brief and cites no case law.   The court denies the motion to strike the third count.

Accordingly, the court grants the motion to strike the second count of the counterclaim and grants the plaintiffs' judgment as to that count.   The court consequently grants the motion to strike the defendant's claims for attorneys fees and punitive damages.   The court denies the motion to strike the third count of the counterclaim.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

Levin, Bruce L., J.