Kristine Noon v. III (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

PROCEDURAL HISTORY

The plaintiff Kristine Noon has brought an action in ten counts against her attorney, George Brencher III and his law firm, Patterson and Brencher, concerning Brencher's representation of Noon in a real estate transaction.   The defendants seek to strike seven counts of the revised complaint (120.00).   The plaintiff opposes the motion.   The parties presented oral argument on May 7, 2012.

LEGAL STANDARD

‘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).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court ․ We ․ construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009);  see also Practice Book § 10–39 (addressing motion to strike).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992).

In addition, it is well settled that “[t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint ․” (Internal quotation marks omitted.)  Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).   As a result, “[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009);  Practice Book § 10–20 (complaint “shall contain a concise statement of the facts constituting the cause of action”).   Yet “ ․ if the complaint puts the defendant on notice of the relevant claims, then a plaintiff's failure specifically to allege a particular fact or issue is not fatal to his claim unless it results in prejudice to the defendant.”  Machado v. Hartford, 292 Conn. 364, 370 n.7, 972 A.2d 724 (2009).

Sturm v. Harb Development, LLC, 298 Conn. 124, 130–31, 2 A.3 859 (2010).

“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).

ANALYSIS

I. Count One:  Breach of express contract, Count Two:  Breach of implied contract

In Count One of the plaintiff's revised complaint, she alleges that Brencher agreed to represent the plaintiff and to draft and record a quitclaim deed.   She further alleges that she believes Brencher drafted the quitclaim deed but breached his contract with the plaintiff when he failed to record it. 120.00, revised complaint, Count One, ¶¶ 75, 76.¹

In Count Two of the plaintiff's revised complaint, she asserts the same factual allegations and claims that the failure to record the quitclaim deed “was in breach of the implied contract that Defendant Brencher would provide the requested service, which was a condition of the agreement between the Plaintiff and Defendant Brencher that he would represent her throughout the transaction to purchase the property.” ²

“Whether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent.”  (Internal quotation marks omitted.)  Janusauskas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003).   As the claimed deficiency of these counts is the same, they are considered together.

“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.”  (Internal quotation marks and citation omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055 (2009).

The defendants claim these counts are legally insufficient because they are “merely negligence claims cloaked in contract language.”   The plaintiff asserts a claim of legal malpractice against Brencher in Count Six of the revised complaint.

The plaintiff responds that she may plead alternative theories in both negligence and contract in a legal malpractice action.   See Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529–30, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989).  “Mac's Car City, Inc., does not stand for the proposition, however, that one may 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 contract.”  Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003);  see also Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).   Where “liability to the plaintiff, if any, is based on principles of tort law ․ the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint.”  Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001).

Caffery was a two-count action against an attorney alleging legal malpractice and breach of contract.  “[A] claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach.”  Caffery v. Stillman, supra, 197.  Weiner was a case where the counts alleging negligence and breach of contract were largely identical, both alleging that the defendant failed to use reasonable care, skill and diligence in providing legal services to the plaintiffs.   In Weiner, the Appellate Court found that the count alleging breach of contract “simply repeats the allegation that the defendant breached the standard of care applicable to legal professionals.”  Weiner v. Clinton, supra, 384–86.

In Hill v. Williams, 74 Conn.App. 654, 659, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), the court found a claim for breach of contract against a former attorney to be viable, as the allegations contained in the complaint went beyond merely being couched in contract language.   Specifically, the court found it significant that the complaint described the matters for which the defendant was hired and the dates on which the parties created the agreements, that the plaintiff described her complaint as a breach of contract lawsuit and that the plaintiff alleged not only that the defendant failed to proceed in several actions but also that the defendant refused to take certain actions in furtherance of the matters for which the defendant was hired.  Id., 659.  “Use of the word ‘refuse’ imports an intentional act rather than some inadvertence or negligent act or omission on the part of the defendant in breach of the agreements between the parties.”  Id., 660 (illustrating that, through language incorporated from a previous count, the count at issue alleged that the defendant refused to file a motion, which was an action required under the parties' agreement).³

Our case is more similar to Hill than Caffery and Weiner.   As in Hill, the plaintiff claims she sustained damages as a consequence of the attorney's refusal or failure to perform an action pursuant to the contract, whereas in Caffery and Weiner, the plaintiff's allegations are more in the nature of breach of the standard of care.   Thus, the plaintiff's allegations in Count One and Count Two are sufficiently pleaded as causes of action of breach of contract.   The defendants' motion to strike Counts One and Two is denied.

II. Count Three:  Breach of covenant of good faith and fair dealing

In Count Three of the revised complaint, the plaintiff alleges that, by “failing to abide by the covenants and representations in the contract, Defendant Brencher has breached his covenant of good faith and fair dealing.” 120.00, revised complaint, Count Three, ¶ 73.

The defendants reiterate their argument that this is a negligence claim cloaked in the guise of a contract.   For the reasons set forth above, this argument is unpersuasive.   The defendants also argue that the allegations of this cause of action are insufficiently pleaded.   The plaintiff asserts that her allegations are sufficient to sustain this cause of action.

“[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.”  (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 (2003).

“[W]hen one party performs the contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, there is a breach of the covenant of good faith and fair dealing, and hence, a breach of contract, for which damages may be recovered ․” (Internal quotation marks omitted.)  Landry v. Spitz, 102 Conn.App. 34, 44–45, 935 A.2d 334 (2007), quoting 23 S. Williston, Contracts (4th Ed. Lord 2002) § 63:22, p. 514.

“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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., supra, 269 Conn. 433.  “Whether a party has acted in bad faith is a question of fact ․ (Internal quotation marks omitted.)  Renaissance Management Co., Inc. v. Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).

In Count Three, the plaintiff has failed to allege that Brencher acted with intent to deceive.   Additionally, the plaintiff has not alleged facts, which, if taken as true, would sufficiently establish that he acted with malicious intent or sinister motive, as is required to support a claim of breach of the covenant of good faith and fair dealing.   The defendants' motion to strike Count Three is granted.

III. Count Four:  Fraudulent misrepresentation/Fraudulent nondisclosure.

In Count Four, the plaintiff alleges Brencher failed to disclose important information and remained silent as to a conflict of interest.   The defendants argue that Count Four should be stricken because the plaintiff has failed to allege facts sufficient to establish that the defendant made alleged misrepresentations for the purpose of inducing the plaintiff to act to her detriment.   The plaintiff counters that she has repeatedly alleged that the defendant made false statements for the purpose of inducing the plaintiff to go through with the purchase of the property.

“The essential elements of a cause of action in [fraudulent misrepresentation] are:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon the false representation to his injury.”  (Internal quotation marks omitted.)   Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 522, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).   “Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ․ Because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient.”  (Citation omitted;  internal quotation marks omitted.)   Chiulli v. Zola, 97 Conn.App. 699, 709, 905 A.2d 1236 (2006).

“Fraud by nondisclosure expands on the first three of [the] four elements [of fraud and] involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak ․ To constitute [fraud by nondisclosure], there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak ․ The duty to disclose known facts is imposed on a party insofar as he voluntarily makes disclosure.   A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak.”  (Citations omitted;  internal quotation marks omitted.)   Statewide Grievance Committee v. Egbarin, 61 Conn.App. 445, 454–55, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).

Here, although there are allegations that defendant made statements regarding the preparation and execution of the quitclaim deed, the plaintiff has failed to allege that Brencher made actual statements of fact to induce the plaintiff to act to her detriment.   Therefore, the cause of action of fraudulent misrepresentation is insufficiently pleaded.

As to a cause of action of fraudulent nondisclosure, the plaintiff alleges Brencher failed to disclose known facts and had a duty to speak.   The allegation that Brencher's “silence induced the plaintiff to continue with the transaction to purchase the property,” 120.00, revised complaint, Count Four, ¶ 77, does not set forth the required intent for fraudulent nondisclosure;  namely, that the defendant's silence involved “deception practiced in order to induce another to act to her detriment;” see Chiulli v. Zola, supra, 97 Conn.App. 709;  or that the nondisclosure “was made to induce the other party to act upon it.”   See Centimark Corp. v. Village Manor Associates Ltd. Partnership, supra, 113 Conn.App. 522.   Therefore, the cause of action of fraudulent nondisclosure is insufficiently pleaded and the defendant's motion to strike Count Four is granted.

IV. Count Seven:  Intentional Infliction of Emotional Distress

In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.  Stancuna v. Schaffer, 122 Conn.App. 484, 491–92, 998 A.2d 1221 (2010).

As to the Seventh Count, sounding in intentional infliction of emotional distress, the defendants assert that the plaintiff has failed to allege facts to establish that Brencher's conduct was “extreme and outrageous.”   The plaintiff counters that her allegations are legally sufficient.

“Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.   It is the intent to cause injury that is the gravamen of the tort.   In assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.”  (Internal citations and punctuation omitted.)  Stancuna v. Schaffer, supra, 122 Conn.App. Id. at 492.

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!   Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks and citations omitted.)  Id. at 492–93.

In Count Seven, the plaintiff alleges that Brencher's conduct in failing to disclose to the plaintiff facts that would substantially impair her rights and interests, failing to fail to draft and file a quitclaim deed and failing to provide the plaintiff with requested legal representation, was “outrageous.” 120.00, revised complaint, Count Seven, ¶¶ 73–77.

As of the date of this memorandum of decision, Perez–Dickson v. Bridgeport, 304 Conn. 483 A.3d (2012), is the latest Connecticut Supreme Court opinion concerning the court's role as gatekeeper as to the level of egregious behavior necessary to sustain a claim of intentional infliction of emotional distress.   In Perez–Dickson, the plaintiff, a teacher, claimed intentional infliction of emotional distress when, after filing two claims of suspected child abuse, she was told her career was in jeopardy and was transferred to a smaller school.   The Supreme Court reiterated the standard above and noted that it is a “high threshold.”  Id. at 527.

In Stancuna, supra, the trial court granted a motion to strike, inter alia, a count sounding in intentional infliction of emotional distress, wherein the plaintiff claimed that the defendant's attorney had an ex parte conversation with a judge who subsequently recused himself from further proceedings.   The appellate court held that such allegations did not reach the articulated standard of extreme and outrageous behavior.  Id. at 493.

As to intentional infliction of emotional distress claims, there are numerous opinions in which the trial courts have employed their gate-keeping function concerning behaviors of defendants in a wide variety of factual situations.   Because of the vast range of circumstances under which such claims can be made, and the necessarily individual assessment required to be conducted by the trial court depending on the presented circumstance, the instructional value of these opinions to each other is limited.   Therefore, the court has focused on those most similar to the plaintiff's allegations.

Where an intentional infliction of emotional distress claim is based on allegations that sound in professional negligence, like those in the present case, the superior courts have focused on whether the alleged actions meet the level of extreme and outrageous conduct required to maintain the cause of action.   The majority of these decisions hold that the allegations that give rise to a cause of action for legal malpractice are not extreme and outrageous.   See, Pipkin v. Glenn, Superior Court, judicial district of New Haven, Docket No. CV 09 5025808 (September 25, 2009, Keegan, J.) (granting the defendant's motion to strike a cause of action for intentional infliction of emotional distress against legal counsel because “the type of behavior contemplated by this tort has been much more personal in nature, and often involves the victim's peculiar susceptibility to emotional distress by reason of some physical or mental condition, or actions by the defendant likely to cause the victim to experience shock or fright of enormous proportions.”   [Internal quotation marks omitted.] ), Torniero v. Allingtown Fire District, Superior Court, judicial district of New Haven, Docket No. CV 06 5006174 (March 17, 2008, Robinson, J.) (45 Conn. L. Rptr. 298) (granting the defendants' motion to strike a cause of action for intentional infliction of emotional distress because the defendants' alleged failure to notify plaintiffs of a pendency of action did not arise to “extreme and outrageous” conduct, nor did plaintiffs allege facts to demonstrate severe distress);  Fiamengo v. Burgdorf, Superior Court, judicial district of New Haven, Docket No. CV 06 5002388 (December 19, 2007, Cosgrove, J.) (granting the defendant's motion to strike the plaintiff's cause of action for intentional infliction of emotional distress where allegations of fraud did not amount to extreme and outrageous conduct);  Nosik v. Bowman, supra, Superior Court, Docket No. CV 00 0379089 (granting the defendant attorney's motion to strike cause of action for intentional infliction of emotional distress for failure to allege extreme and outrageous conduct where “the plaintiff incorporates the first eighteen paragraphs of the complaint which generally contain allegations of negligence and further alleges that the defendant knew or should have known that his intentional actions caused her to undergo severe emotional distress;  and that the defendant's conduct was extreme and outrageous”);  see also Smulewicz–Zucker v. Zucker, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 02 0076353 (June 28, 2005, Stevens, J.) (granting the defendant's motion for summary judgment on a cause of action for intentional infliction of emotional distress because, in part, the defendant attorney's coercion and pressure of the plaintiff into accepting custody agreements did not meet the standard of extreme and outrageous conduct), aff'd, 98 Conn.App. 419, 909 A.2d 76 (2006), cert. denied, 281 Conn. 905, 916 A.2d 45 (2007).

In the present case, Count Seven does not include allegations that the defendant “intended to inflict emotional distress;” see Petyan v. Ellis, supra, 200 Conn. 243.   The allegation that the plaintiff's distress was foreseeable, without more, is a legal conclusion as it does not include factual allegations in support that the defendant “knew or should have known that emotional distress was a likely result of ․ [his] conduct.”   See id.   Additionally, the allegations in Count Seven sound in legal malpractice and breach of contract, and, therefore, do not meet the standard for extreme and outrageous conduct.

This court agrees with the majority of Superior Court decisions which have held that allegations sounding in legal malpractice do not give rise to a claim for intentional infliction of emotional distress.   Because contracts are often breached and contract law provides for compensation therefor, a mere breach of contract is not the kind of conduct that would make a reasonable person exclaim “outrageous!” nor is it the sort that goes “beyond all possible bounds of decency ․ [and is] regarded as atrocious, and utterly intolerable in a civilized community.”   See Carrol v. Allstate Ins. Co., supra, 262 Conn. 433.

The allegations of the plaintiff in Count Seven do not meet the high threshold of extreme and outrageous conduct.   The defendants' motion to strike Count Seven is granted.

V. Count Eight:  Negligent Infliction of Emotional Distress

The defendants argue that count eight should be stricken because the plaintiff has failed to allege facts sufficient to establish that the defendant's alleged misconduct created an unreasonable risk of causing the plaintiff emotional distress or that she suffered the requisite harm.   In opposition, the plaintiff argues that whether it was reasonably foreseeable to the defendant that the plaintiff would suffer from emotional distress is a subjective standard and that the plaintiff has sufficiently alleged facts that would support a claim for negligent infliction of emotional distress.

To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (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.   Thus, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.

The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm.   In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.

(Internal citations omitted;  internal punctuation and quotation marks omitted.)  Stancuna v. Schaffer, supra, 122 Conn.App. 490.

The Connecticut Supreme Court has expressly limited emotional distress claims to those claims in which the “conduct [of the defendant(s) ] involved an unreasonable risk of causing emotional distress and that distress, if it were caused might result in bodily harm.”  Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997).

“[T]he plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm ․ The requirement of foreseeability in negligent infliction of emotional distress claims is different from that required in general negligence actions ․ [T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress ․ [which] might result in illness or bodily harm.”   (Citations omitted;  internal quotation marks omitted.)   Giovanelli v. Cantor, Floman, Gross, Kelly & Sacramone, Superior Court, judicial district of New Haven, Docket No. 07 5010641 (January 30, 2008, Robinson, J.) (44 Conn. L. Rptr. 802).

Although the plaintiff in the present case has minimally pleaded most of the elements of negligent infliction of emotional distress, the plaintiff's conclusory allegation that the plaintiff's distress was foreseeable, without more, is insufficient to satisfy the foreseeability element of a negligent infliction of emotional distress.   Specifically, Count Eight contains no allegation that the defendants “knew or should have realized that [their] conduct involved an unreasonable risk of causing emotional distress ․ [which] might result in illness or bodily harm.”  (Internal quotation marks omitted.)   See id.

The plaintiff has insufficiently pleaded a cause of action of negligent infliction of emotional distress in Count Eight.   The defendants' motion to strike that count is granted.

VI. Count Ten:  Breach of fiduciary duty

The defendants argue that Count Ten should be stricken because the plaintiff has failed to allege that Brencher engaged in self-dealing or dishonest conduct.   The plaintiff counters that she has alleged dishonest conduct on the part of Brencher, that he falsely represented to the plaintiff that he has recorded a quitclaim deed and that he placed the interest of another person, the plaintiff's sister, Susan Warakomski, above those of the plaintiff.   Resolution of this issue requires a two-part inquiry.

The first issue is whether the plaintiff has sufficiently alleged that a fiduciary relationship existed between the parties, imposing a duty upon the defendant.  “It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them.”  (Internal quotation marks omitted.)  Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006).

“An attorney-client relationship imposes a fiduciary duty on the attorney.”   (Internal quotation marks omitted.)  Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 648 n.28, 850 A.2d 145 (2004).  “[T]he predicate of the attorney's fiduciary obligations is the existence of an attorney-client relationship.   The status must exist at the time of the alleged transaction or wrong and must be alleged.”   Nacholi v. Paul, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No. X05 CV 06 5004726 (December 21, 2007, Adams, J.) [44 Conn. L. Rptr. 687].  “An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession ․” DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005).   Here, the plaintiff has sufficiently alleged the existence of an attorney-client relationship, imposing a fiduciary duty upon the defendant;  120.00, revised complaint, prefatory ¶¶ 20, 22, 23 (allegations that the plaintiff requested and agreed to pay for the defendant's representation in relation to the purchase of the property and the defendant agreed thereto.

The second issue for the court's determination is whether the plaintiff has alleged sufficient facts for a claim of breach of fiduciary duty.  “[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.  [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 ․ Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty.”  (Citations omitted, internal quotation marks omitted.)  Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56–57, 717 A.2d 724 (1998).   “[T]o 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.”   (Internal quotation marks omitted.)  Nosik v. Bowman, Superior Court, Docket No. CV00 0379089, judicial district of Fairfield (July 12, 2002, Doherty, J.).

Analysis of similar Superior Court cases is instructive.   In Nosik, the trial court found that while the plaintiff adequately alleged the existence of a fiduciary relationship, she did not allege conduct by Brencher that implicates his honesty, loyalty or morality.  Id. Similarly, in Gurski v. Rosenblum & Filan, LLC, Superior Court, judicial district of Stamford, Docket No. CV 000179063S (February 23, 2001, D'Andrea, J.) [28 Conn. L. Rptr. 717], the trial court granted the defendant's motion to strike, reasoning that the plaintiff's allegations did not support a claim for a breach of fiduciary duty where the plaintiff did not allege any instances of fraud, self-dealing or conflict of interest which traditionally are associated with that cause of action.

The defendants also argue that the alleged conflict of interest in representing the plaintiff and her sister is not the kind that gives rise to a cause of action for breach of fiduciary duty.  “[I]n those cases analyzing breach of fiduciary duty generally, an actionable breach is based on a conflict of interest the fiduciary himself has with the purpose of his duties on behalf of his client.”  (Emphasis added, emphasis in original.)   Lavitt v. Meisler, Superior Court, complex litigation docket at New London, Docket No. X04 CV 0127150 (July 15, 2003, Quinn, J.) (35 Conn. L. Rptr. 133);  see also Grazioli v. Nichols, Superior Court, judicial district of New Haven, Docket No. CV 06 5001604 (Jun. 19, 2007, Cosgrove, J.) (denying a motion to strike denied because “the court [found] that the plaintiffs have specifically alleged the facts necessary to establish a breach based on a conflict of interest between the defendant's own interests and his duties on behalf of his clients.   Specific facts are alleged to establish that the defendant was a fiduciary, and that the requisite conflict of interest existed between the parties.”   [Emphasis added.] ).

Taking the reasoning of all of these decisions into consideration, the plaintiff's cause of action for breach of fiduciary duty is legally insufficient.   While the complaint may be construed to allege that Brencher placed the interest of the plaintiff's sister, Susan Warakomski, above those of the plaintiff,⁴ the plaintiff does not allege a fiduciary relationship between the defendants and Mrs. Warakomski and also alleges that Brencher told the plaintiff that the quitclaim deed had not been filed;  120.00, revised complaint, prefatory ¶ 66;  thereby negating the claim of preferential loyalty.   Count Ten contains no allegations which implicate the defendants' honesty, loyalty, morality or instances of fraud, self-dealing.   As to conflict of interest, there is no allegation of self interest.   The plaintiff's contention that Brencher falsely represented to the plaintiff that he had recorded the quitclaim deed is not a sufficient factual allegation of dishonest conduct to support a claim of breach of financial duty.   The motion to strike Count Ten is granted.

ORDER

The defendants' motion to strike Counts One and Two is denied.   The defendants' motion to strike Counts Three, Four, Seven, Eight and Ten is granted.

Robert E. Young, Judge

FOOTNOTES

FN1. The defendant has not contested the allegation of ¶ 81 of the revised complaint, Count One or the concomitant claims for relief, either in its request to revise, 126.00, or this motion to strike.   Therefore, the court has not addressed such claims..  FN1. The defendant has not contested the allegation of ¶ 81 of the revised complaint, Count One or the concomitant claims for relief, either in its request to revise, 126.00, or this motion to strike.   Therefore, the court has not addressed such claims.

FN2. The plaintiff also appears to assert an additional cause of action of breach of the implied covenant of good faith and fair dealing.   See 120.00, revised complaint, Count Two, ¶ 81.   However, this cause of action is not contained in the heading of the count;  it is separately pleaded in Count Three;  and it is violation of Practice Book § 10–26.   Therefore, the court does not consider such a cause of action to be asserted in Count Two..  FN2. The plaintiff also appears to assert an additional cause of action of breach of the implied covenant of good faith and fair dealing.   See 120.00, revised complaint, Count Two, ¶ 81.   However, this cause of action is not contained in the heading of the count;  it is separately pleaded in Count Three;  and it is violation of Practice Book § 10–26.   Therefore, the court does not consider such a cause of action to be asserted in Count Two.

FN3. In addition, our trial courts have held that a legally sufficient claim for breach of contract exists when the complaint includes allegations that the defendants failed to perform specific actions required under the agreement.   See De Hertogh v. Boatman, Superior Court, judicial district of Hartford, Docket No. CV 095031098 (May 27, 2010, Peck, J.) (denying a motion to strike because the clients alleged that the lawyers failed to perform specific actions promised in their agreement);  Tracey v. Still, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 054001883 (June 8, 2005, Stevens, J.) (39 Conn. L. Rptr. 471) (denying a motion to strike a count for breach of contract because “[t]he complaint alleges that the parties agreed that the defendant would be retained to file an action against the appropriate parties ․” and “[t]he defendant accepted a retainer for this purpose ․ but ․ failed to file the action as they had agreed.”).   It is noted that, in this action, the plaintiff alleges that there was no written agreement. 120.00, revised complaint, prefatory ¶ 34.   Rather, the plaintiff alleges an oral contract, the scope and terms of which are unclear other than the deficiencies set forth in the complaint..  FN3. In addition, our trial courts have held that a legally sufficient claim for breach of contract exists when the complaint includes allegations that the defendants failed to perform specific actions required under the agreement.   See De Hertogh v. Boatman, Superior Court, judicial district of Hartford, Docket No. CV 095031098 (May 27, 2010, Peck, J.) (denying a motion to strike because the clients alleged that the lawyers failed to perform specific actions promised in their agreement);  Tracey v. Still, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 054001883 (June 8, 2005, Stevens, J.) (39 Conn. L. Rptr. 471) (denying a motion to strike a count for breach of contract because “[t]he complaint alleges that the parties agreed that the defendant would be retained to file an action against the appropriate parties ․” and “[t]he defendant accepted a retainer for this purpose ․ but ․ failed to file the action as they had agreed.”).   It is noted that, in this action, the plaintiff alleges that there was no written agreement. 120.00, revised complaint, prefatory ¶ 34.   Rather, the plaintiff alleges an oral contract, the scope and terms of which are unclear other than the deficiencies set forth in the complaint.

FN4. 120.00, revised complaint, prefatory ¶ 65 states, “In addition, Defendant Brencher explained that the quitclaim deed had been prepared and executed at the time of the closing in order to protect Mrs. Warakomski.”.  FN4. 120.00, revised complaint, prefatory ¶ 65 states, “In addition, Defendant Brencher explained that the quitclaim deed had been prepared and executed at the time of the closing in order to protect Mrs. Warakomski.”

Young, Robert E., J.