James Brady et al. v. LLC (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 110)

FACTS

On December 16, 2011, James Brady and Sherri Brady filed a five-count complaint alleging legal malpractice, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, fraudulent misrepresentation and breach of contract against John Asselin–Connolly and Asselin & Connolly Attorneys, LLC. The complaint alleges the following facts.   The plaintiffs retained Asselin & Connolly Attorneys, LLC, including its attorneys Asselin–Connolly and Richard Joaquin,¹ to commence and prosecute an action against Bonnie and Kenneth Bickford.   On or about June 6, 2008, an application for a pre-judgment remedy (PJR) and proposed writ, summons and complaint, signed by Attorney Joaquin, was filed with the court.   On July 1, 2008, a return of service that referenced the original application for a PJR as well as the unsigned writ, summons and complaint were filed with the court.   The defendants billed the Bradys for over $5000 during June and July of 2008 for drafting documents and preparing for a hearing on the PJR application that never occurred.   From July 14, 2008 through August 2009, the defendants did not prosecute the matter but sent eleven bills or reminder notices.

On or about August 25, 2009, a motion for default for failure to plead, signed by Attorney Joaquin, was filed.   The motion was initially granted, but was later vacated because the underlying case had never been served.   Between August 2009 and August 2010, the defendants took no action on the case but sent ten bills or reminder notices.   On or about June 19, 2009, Attorney Joaquin met with James Brady and informed him that the lawsuit would have to be refiled.   James Brady repeatedly emailed the defendants and Joaquin regarding the status of the case and case law he found relevant.   On March 9, 2010, Joaquin emailed James Brady and told him that the problem was that the marshal's return of service was inaccurate and he was moving for default again, which he did on August 12, 2010.   In that motion he alleged the prior ruling a year earlier was incorrect and filed a “corrected return,” which was exactly the same as the original except it showed a grey dot over the “un” in “unsigned” for the service of Kenneth Bickford.   After the motion was denied, the defendants, in September 2010, returned the file to James Brady and required him to execute a pro se appearance.   Sherri Brady never filed a pro se appearance.   The case was dismissed at a hearing on October 14, 2011, which the defendants did not attend.²

On April 9, 2012, the defendants filed a motion to strike count three of plaintiffs' complaint, which alleges a breach of the covenant of good faith and fair dealing, on the ground that the plaintiffs have failed to allege bad faith on the part of the defendants, and count five of plaintiffs' complaint, which alleges a breach of contract, on the ground that the count sounds in negligence rather than contract.   The defendants filed a memorandum of law in support of the motion.   On April 16, 2012, the plaintiffs filed an objection to the defendants' motion to strike.   On April 27, 2012, the defendants filed a reply memorandum.

DISCUSSION

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).   This court takes “the facts to be those alleged in the [complaint] ․ and ․ construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “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.)   Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

The defendants first argue that the court should strike the third count of the plaintiffs' complaint because the allegations fail to allege that the defendants acted in bad faith.   The defendants assert that the third count at most alleges that the defendants' conduct was negligent in that they failed to follow proper procedure and provided inaccurate characterizations regarding the status of the case.   Further, as the defendants were being paid on both hourly and on a contingency basis, there was a financial incentive to move the case along rather than to work to the plaintiffs' detriment.   The plaintiffs counter that bad faith is alleged because the defendants continually billed the plaintiffs although the case never proceeded, failed to correct the service mistake after the court found the action had not commenced and made false assurances that case was moving forward.

“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term ․ To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.”  (Citations omitted;  internal quotation marks omitted.).  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432–33, 849 A.2d 382 (2004).

“Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Internal quotation marks omitted.)  19 Perry Street, LLC v. Unionville Water Company, 294 Conn. 611, 637, 987 A.2d 1009 (2010).   Nevertheless, “[n]eglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive.”  Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993).

In the present case, the plaintiffs allege in count three of their complaint that the defendants acted in bad faith by continually billing the plaintiffs without moving the case along, knowing that proper service was never attempted and thereafter failing to correct the service mistake after the court found the action had not commenced and making false assurances to the plaintiffs that their case was moving forward.   While these allegations do not directly assert an interested or sinister motive, reading the pleadings broadly a bad faith purpose may be inferred from the conduct of the defendants.   Accordingly, the motion to strike count three of the plaintiffs' complaint is denied.

The defendants next argue that the court should grant the motion to strike count five of plaintiffs' complaint alleging a breach of contract on the ground that the count sounds in negligence rather than contract.   The defendants argue that count five is a negligence count cloaked in contractual language because the counts alleging malpractice and breach of contract are nearly identical, with both alleging the defendants failed to perform in accordance with the standards of the profession.   Additionally, although the plaintiffs allege that the defendants failed to pursue their assignment and refused to complete their assignment, the factual details alleged showed that the defendants prosecuted the claim but in an improper manner.   Finally, the defendants argue in their reply memorandum that, pursuant to the recent Appellate Court decision in Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134 Conn.App. 785, (2012), the plaintiff's fail to allege that the defendants breached a promise to obtain a specific result or perform a specific task.   The plaintiffs counter that they have pled the elements for a breach of contract claim and are allowed to allege both a contract claim and a tort claim.

“Connecticut law recognizes that one may bring against an attorney an action sounding in both negligence and contract ․ At the same time, one cannot bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of cohtract ․ [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims ․ Thus ․ we look beyond the language used in the complaint to determine the true basis of the claim ․ Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint ․ Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Citation omitted;  internal quotation marks omitted.)  Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134 Conn.App. 790.  “[A]n allegation that the attorney failed or refused to do [a] specific task [set forth in the agreement] may constitute a contract claim.”   Id., 791 n.5. In Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134 Conn.App. 785, the case relied on by the defendants, the court found the complaint failed to state a breach of contract claim, noting “[t]he only task the retainer agreement required the defendant to do was to represent the plaintiff [and][t]he plaintiff does not claim that the defendant failed to represent her at all.”  Id.

In the present case, the plaintiffs allege in count five of their complaint that in return for compensation the defendants' “assignment” was to prosecute their claim and that the defendants breached the agreement by failing and/or refusing to complete or pursue the assignment.   Read in favor of the plaintiffs, the allegations sufficiently allege a breach of contract claim.   The plaintiffs allege that the defendants were hired to prosecute their claim and that the agreement was breached because the defendants refused to prosecute the claim.   Additionally, the complaint alleges that the defendants never commenced the action that they were hired to prosecute.   Unlike in Meyers, therefore, count five goes beyond alleging the defendants failed to exercise that degree of skill and learning required of an attorney and includes allegations that the defendants refused to do a specific task set forth in the agreement.   As a result, the motion to strike count five of the plaintiffs' complaint is denied.

CONCLUSION

The defendants' motion to strike counts three and five of the plaintiffs' complaint is denied.

Cosgrove, J.

FOOTNOTES

FN1. Although the complaint refers to the conduct of Richard Joaquin, he has not been made a party to the action.   Asselin–Connolly and Asselin & Connolly Attorneys, LLC will hereinafter be referred to collectively as the defendants..  FN1. Although the complaint refers to the conduct of Richard Joaquin, he has not been made a party to the action.   Asselin–Connolly and Asselin & Connolly Attorneys, LLC will hereinafter be referred to collectively as the defendants.

FN2. James and Sherri Brady will hereinafter be referred to collectively as the plaintiffs..  FN2. James and Sherri Brady will hereinafter be referred to collectively as the plaintiffs.

Cosgrove, Emmet L., J.