Kristine Noon v. III (2013)

MEMORANDUM OF DECISION OBJECTION TO SECOND REVISED COMPLAINT (149.00)

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff commenced this action by way of writ, summons and complaint on March 13, 2009.   On October 28, 2009, the plaintiff filed a revised complaint.   The revised complaint asserted ten counts against Attorney George Brencher, individually and against Patterson & Brencher, all relating to alleged misconduct allegedly committed by Attorney Brencher during his representation of the plaintiff in a real estate transaction.   On August 30, 2011, Attorney Brencher filed a moton to strike seven of the ten counts of the plaintiff's revised complaint.   The court, Young, J., granted the motion to strike in part, striking the plaintiff's claims sounding in breach of implied covenant of good faith and fair dealing, fraudulent misrepresentation and fraudulent nondisclosure, intentional infliction of emotional distress, negligent infliction of emotional distress and breach of fiduciary duty.

On March 26, 2013, the plaintiff filed a second revised complaint.   The complaint contains nine counts, which counts are essentially the same as alleged in the revised complaint with some additional allegations, except that the plaintiff does not re-plead the intentional infliction of emotional distress count which was stricken from the revised complaint by Judge Young.   The defendant has filed an objection to the plaintiff's second revised complaint on grounds that it is beyond the fifteen day time limit required for re-pleading after a motion to strike has been granted, and therefore untimely pursuant to Practice Book § 10–44 and not properly before the court.   The plaintiff argues that she should be allowed to re-plead after the fifteen day period.

This matter was scheduled on the court's June 18, 2013 nonarguable short calendar docket. (149.00.)

DISCUSSION

Practice Book § 10–44 provides that “[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading;  provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof.   Nothing in this section shall dispense with the requirements of Section 61–3 or 61–4 of the appellate rules.”

As numerous trial courts have noted, “[s]ection 10–44 does not provide for judgment to enter after 15 days, only that the court may, upon motion, enter judgment.   As with other pleading requirements, this language gives the court discretion to allow a pleading outside the prescribed time period ․” Shpak v. Beard, Superior Court, judicial district of New Haven, Docket No. CV 95 0369337 (November 20, 1998, Hartmere, J.) (23 Conn. L. Rptr. 412, 413).   The Shpak court went on to note that “[i]n addition, the legislature has enacted an exception to the pleading rules.   Under General Statutes § 52–121(a), ‘[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which [the action] is pending.’   “ (Citation omitted.)  Id. Here, the defendant has not filed a motion for judgment on the counts stricken by Judge Young.   Therefore, this court has discretion to allow the plaintiff to file an amended complaint, notwithstanding her purported failure to comply with the requirements of the practice book.   See, e.g. Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV98 0352686 (June 18, 2001, Moran, J.) (“[T]he filing of a late substitute pleading does not deprive the court of its discretionary power in allowing a pleading outside the prescribed time period”).

However, “Practice Book § 10–44 in context clearly limits the authority to file an amended complaint within fifteen days after the granting of a motion to strike to new allegations which ․ correct the defects in the original by setting forth claims which, if proved could afford a basis for recovery ․ The granting of a motion to strike ․ would allow the plaintiffs the opportunity to replead their complaint to satisfy the insufficiency of the allegations ․ Even though the pleading has been stricken, only the defective portion of the pleading is affected and, as provided by [Practice Book § ]10–44 ․ that part may be amended within fifteen days after the motion is granted.   (Citations omitted;  internal quotation marks omitted.)   East Greyrock LLC v. OBC Associates Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 04 4002173 (May 4, 2007, Jennings, J.) (43 Conn. L. Rptr. 396, 396);  See also:  State v. Ten Companies, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 07 5008921 (February 6, 2008, Langenback, J.) (45 Conn. L. Rptr. 40, 41).

“[A]fter a motion to strike, a party has an opportunity to plead over, and “[the] reformulated pleading must be assessed ab initio to determine whether it states a cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 352686 (June 18, 2001, Moran, J.).

In count three of the revised complaint which was the subject of the motion to strike before Judge Young, the plaintiff alleged a breach of implied covenant of good faith and fair dealing against the defendant, Attorney George Brencher.   The plaintiff alleged 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.”   Revised Complaint (120.00).   Judge Young granted the defendant's motion to strike this count because the plaintiff failed “to allege 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.”   Noon v. Brencher, Superior Court, judicial district of New Haven at New Haven, Docket No. 09 6003694 (June 12, 2012, Young, J.).

As to count three of the plaintiff's second revised complaint, she re-alleges a breach of the implied covenant of good faith and fair dealing against the defendant.   In addition to alleging that “by failing to abide by the covenants and representations in the contract, Defendant Brencher has breached his duty of good faith and fair dealing,” second revised complaint (148.00);  the plaintiff further alleges that “[t]he defendant Brencher, by drafting the quitclaim deed, charging the plaintiff for it, and charging the plaintiff for recording the deed, while knowingly refusing to actually do so, were acts intended to deceive the plaintiff.”  Id. The plaintiff further alleges in count three of the second revised complaint, that “[t]he defendant charged for legal services not provided, and put the interests of the plaintiff's sister ahead of those of the plaintiff, with the sinister motive of duping the plaintiff into believing she actually held ownership interest in the Property she was so heavily investing in.”  Id. Here, the plaintiff in her second revised complaint has “alleged facts, which, if taken as true, would sufficiently establish that Brencher acted with sinister motive ․ as is required to support a claim of breach of the covenant of good faith and fair dealing.”  Noon v. Brencher, supra.   The plaintiff has therefore added allegations to the second revised complaint which cure the deficiencies cited by Judge Young in his granting of the motion to strike this count.   The court will therefore allow the amendment with respect to count three.   The defendant's objection to the plaintiff's amendment of this count is therefore OVERRULED.

Count four of the revised complaint (120.00) alleged fraudulent misrepresentation and fraudulent nondisclosure against the defendant, Brencher.   The plaintiff alleged that the defendant failed to disclose important information and remained silent as to a conflict of interest.   Judge Young granted the defendant's motion to strike this count and noted that “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.”   In the plaintiff's second revised complaint (148.00), in addition to the allegations in the revised complaint, which relate to the fraudulent misrepresentation claim, the plaintiff further alleges that “the defendant, by providing a written bill to the plaintiff which represented that the quitclaim deed had been recorded, made actual statements of fact to induce the plaintiff to act to her detriment by falsely leading her to believe she held legal ownership of the Property, when she really did not.   The allegations in the fourth count of the second revised complaint differ only slightly from the allegations in the prior complaint in that the plaintiff now includes conclusory allegations.   Although the plaintiff has added allegations regarding the deficiencies cited by the court, namely that she failed to allege that the defendant made actual statements of fact to induce the plaintiff to act to her detriment;  the allegations are conclusory and are not adequately supported by the facts.   The plaintiff simply states that Brencher provided a bill to the plaintiff.   The plaintiff again fails to set forth what statements of fact were actually made by Brencher to induce the plaintiff to act to her detriment.   Thus, the plaintiff has failed to cure the deficiencies cited by Judge Young in his granting of the motion to strike this count as to the fraudulent misrepresentation claim.

With respect to the fraudulent nondisclosure claim alleged in count four of the revised complaint (120.00), the plaintiff alleged that Brencher failed to disclose known facts and had a duty to speak.   She further alleges that Brencher's “silence induced the plaintiff to continue with the transaction to purchase the property.”   Revised Complaint (120.00).   In striking the fraudulent nondisclosure count Judge Young concluded that these allegations “[do] 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;  or that the nondisclosure was made to induce the other party to act upon it.”  (Citations omitted;  internal quotation marks omitted.)  Noon v. Brencher, supra.   The plaintiff's allegations in count four of the second revised complaint (148.00) regarding the fraudulent nondisclosure are a repeat of the allegations set forth in the revised complaint (120.00).   Nowhere in the fourth count of the second amended complaint does the plaintiff allege that the defendant's silence involved deception.   Thus, the plaintiff has failed to cure the deficiencies cited by Judge Young in his granting of the motion to strike this count as to the fraudulent nondisclosure claim.   Accordingly, the defendant's objection to the plaintiff's amendment as to count four is SUSTAINED.

Count five and six were not the subject of the motion to strike and therefore the court will not address these counts.   Count seven in the revised complaint (120.00), which alleged intentional infliction of emotional distress against Brencher, was stricken by Judge Young and the plaintiff did not re-plead this count in the second revised complaint (148.00).

Count eight of the revised complaint alleged negligent infliction of emotional distress against Brencher.   In striking this count of the revised complaint, Judge Young noted that “[a]lthough 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 defendant ‘knew or should have realized that [their] conduct involved an unreasonable risk of causing emotional distress ․ [which] result in illness or bodily harm.’  “ (Citations omitted.).  Noon v. Brencher, supra.

The plaintiff's allegations in count seven of the second revised complaint, alleges negligent infliction of emotional distress against Brencher.   The plaintiff simply repeats the allegations set forth in count eight of the revised complaint, and fails to allege facts that would cure the deficiencies cited by Judge Young as a basis for striking this count.   The defendant's objection to the plaintiff's amendment of count seven of the second revised complaint (120.00) is SUSTAINED.

Count ten of the revised complaint (120.00) alleged breach of fiduciary duties against Brencher.   The plaintiff alleged in count ten of the revised complaint dishonest conduct on the part of Brencher, that he falsely represented to the plaintiff that he recorded a quitclaim deed and that he placed the interest of another person, the plaintiff's sister, Susan Warakomski, above those of the plaintiff.   Although Judge Young determined that the plaintiff had sufficiently alleged the existence of an attorney-client relationship, thereby imposing a fiduciary duty upon the defendant, he nonetheless concluded that the plaintiff failed to allege sufficient facts for a claim of breach of fiduciary duty.   Citing appellate and superior court authority, Judge Young concluded that “[w]hile the complaint may be construed to allege that Brencher placed the interest of the plaintiff's sister, Susan Warakomski, above those of the plaintiff, 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 ․ thereby negating the claim of preferential loyalty.”  Noon v. Brencher, supra.   He further concludes that “[c]ount 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 fiduciary duty.”  Id.

The plaintiff alleges in count nine of the second revised complaint (148.00) a breach of fiduciary duties of loyalty and honesty against Brencher.   The plaintiff's allegations in this count are almost identical to the allegations set forth in count ten of the revised complaint (120.00).   The plaintiff has failed to allege facts that would cure the deficiencies cited by Judge Young as a basis for striking this count.   The defendant's objection to plaintiff's amendment of this count is therefore SUSTAINED.

CONCLUSION

For the foregoing reasons, the defendant's objection to the plaintiff's amendment of count three is OVERRULED.   With respect to counts four, seven and nine of the second revised complaint (148.00), the defendant's objection to the plaintiff's amendment of those counts is SUSTAINED.

Wilson, J.

Wilson, Robin L., J.