James Peplau v. William A. Roberto (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (NO. 132)

The present motion to strike arises in the context of a suit brought by the plaintiff, James Peplau, against his former attorney, the defendant, William A. Roberto.   The plaintiff retained the defendant to, inter alia, represent him in various criminal matters and form a trust for the purpose of securing certain assets.   The parties entered into a number of fee agreements governing the defendant's representation of the plaintiff.   The plaintiff subsequently was billed and paid the defendant approximately $343,000 in legal fees.

On December 23, 2010, the plaintiff filed a third revised complaint alleging claims of statutory theft (count three), unjust enrichment (count four) and conversion (count five) against the defendant.¹  The plaintiff alleges, inter alia, that the defendant used the plaintiff's funds inappropriately, diverted assets and overcharged/overbilled the plaintiff for legal work.   On January 21, 2011, the defendant filed a motion to strike counts three, four and five of the revised complaint and the corresponding prayers for relief (No. 132).   On March 2, 2011, the plaintiff filed an objection (No. 135).   Both parties then filed reply briefs (Nos.138, 142).   The court heard argument on this matter at short calendar on July 5, 2011.   Both parties submitted post-argument memoranda (Nos.142, 143).

LAW

“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).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   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).

I.

STATUTORY THEFT & CONVERSION

The defendant argues that counts three and five are legally insufficient because they fail to allege that the plaintiff had legal ownership or right to possession of any specifically identifiable assets or that the defendant converted such assets for his own use.   The plaintiff argues that he was overcharged by the defendant because the amount billed was “unreasonable and in violation of [the defendant]'s fiduciary duties as an attorney.”   He maintains that the words “overcharging” and “over billing,” as used in the complaint, are sufficient to place the defendant on notice of the plaintiff's intent to prove that the fees charged were unreasonable.

“Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights.”  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418, 934 A.2d 227 (2007).  “Statutory theft ․ requires an element over and above what is necessary to prove conversion, namely, that the defendant intentionally deprived the complaining party of his or her property ․ Nevertheless, to prevail on either claim, the party alleging conversion or statutory theft must prove a sufficient property interest in the items in question.”  Id., 418–19.

“[M]oney can clearly be subject to conversion ․ Similarly, money can be the subject of statutory theft ․ The [plaintiff] must establish however, legal ownership or right to possession of specifically identifiable moneys ․ It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and the defendant converted it to his own use.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771–72, 905 A.2d 623 (2006).   See also Macomber v. Travelers Property and Casualty Corp., 261 Conn. 620, 650, 804 A.2d 180 (2002) (“[a] plaintiff must establish legal ownership or right to possession in the particular thing, the specifically identifiable moneys, that the defendant is alleged to have converted”).

In the present case, the plaintiff alleges that the defendant “engaged in a continuing course of misappropriation wherein he intentionally, maliciously and wilfully took for himself the [p]laintiff's assets, including but not limited to, overcharging and over billing him for legal work.” ²  The complaint admits that the plaintiff retained the defendant to represent him in, inter alia, numerous criminal matters and that the plaintiff signed a series of fee agreements with respect to that representation.   The defendant was therefore authorized to collect certain fees from the plaintiff.   The complaint identifies the total fees paid to the defendant, “in excess of $343,000,” however, it fails to allege that the plaintiff was overcharged by a particular amount, that the plaintiff is due certain moneys or that the work performed by the defendant was inconsistent with the amount charged, and is devoid of any factual allegations in support of the plaintiff's claim that he was overcharged.

The complaint does not allege specifically identifiable moneys to which the plaintiff has a legal right, and so does not sufficiently state a claim for statutory theft or conversion.   The court grants the defendant's motion to strike counts three and five.

II

UNJUST ENRICHMENT

The defendant argues that count four fails to state a claim for unjust enrichment because it fails to allege sufficient facts;  specifically, that the defendant misappropriated a particular asset or specifically identifiable moneys.   The plaintiff argues in response that overcharging for the provision of services is a form of unjust enrichment and that the necessary facts are implied.

Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.  Breen v. Judge, 124 Conn.App. 147, 158–59, 4 A.3d 326 (2010).

In the present case, count four incorporates the same allegation from the plaintiff's breach of fiduciary duty claim, that the defendant overcharged and overbilled the plaintiff for legal work.   The plaintiff further alleges:  “As a result of the foregoing, [the defendant] unjustly received a benefit, for which he did not pay [the plaintiff], as a result of which the [p]laintiff has suffered ․” The second element of unjust enrichment requires that the plaintiff allege, minimally, that the defendant unjustly received payment for work he did not perform.   The plaintiff has not done so, and to imply this from the existing allegations would be too great a stretch.   As noted above, the plaintiff has not alleged that he was overcharged by a particular amount and has not identified any moneys to which he claims he has a legal right.

The facts pleaded do not support recovery based upon a theory of unjust enrichment.   The court grants the defendant's motion to strike count four.

CONCLUSION

The defendant's motion to strike counts three, four and five of the third revised complaint is granted.³

Domnarski, J.

FOOTNOTES

FN1. The six-count revised complaint also alleges claims of breach of fiduciary duty as attorney (count one), breach of fiduciary duty as trustee (count two) and negligence (count six)..  FN1. The six-count revised complaint also alleges claims of breach of fiduciary duty as attorney (count one), breach of fiduciary duty as trustee (count two) and negligence (count six).

FN2. This allegation is incorporated into counts three and five from the claim for breach of fiduciary duty as attorney (count one)..  FN2. This allegation is incorporated into counts three and five from the claim for breach of fiduciary duty as attorney (count one).

FN3. As the court orders these counts stricken in their entirety, it need not consider the parties' arguments with respect to the corresponding prayers for relief..  FN3. As the court orders these counts stricken in their entirety, it need not consider the parties' arguments with respect to the corresponding prayers for relief.

Domnarski, Edward S., J.