Susanne Winchell et al. v. DVM (2013)

MEMORANDUM OF DECISION

This case began as a small claims action brought by the plaintiffs Susanne and Douglas Winchell alleging one count of negligence against their former veterinarian Steven Lesham.   The plaintiffs have represented themselves throughout this proceeding and the defendant has been represented by counsel.   The defendant had the case transferred from small claims to Superior Court and thereafter the plaintiffs filed an amended complaint alleging negligence in Count One, Breach of Oral Contract in Count Two and Breach of Fiduciary Duty in Count Three.   The defendant filed a motion to strike all three counts, but at oral argument withdrew the motion to strike Count One. The matter was heard by the court at short calendar on June 10, 2013.

DISCUSSION

“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).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).   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).  “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 defendant alleges that as to Count Two, the plaintiffs have not alleged sufficient facts to sustain their breach of contract count, arguing that it sounds instead in negligence.   This court disagrees.   While under the allegation, the plaintiffs may have a difficult task to prove to their case at trial, that does not lead striking of the count.   See e.g., Grant v. Burger King Corp., Superior Court, judicial district of New London, Docket No. CV 08 5007237 (November 23, 2010, Cosgrove, J.), where the court noted that while it might be difficult for the plaintiffs to prove their case, that was a decision to be left for the trier of fact.   Here the plaintiffs have alleged sufficient facts to prove a breach of contract.   See Christensen v. Bic Corporation, 18 Conn.App. 451 (1989).   Accordingly, the motion to strike count two is denied.

As to count three, this court agrees that the plaintiffs have not alleged sufficient facts to support a claim of breach of fiduciary duty.   See Pagan v. Travelers Home & Marine Insurance, Superior Court, judicial district of Stamford–Norwalk, Docket No. 126015277 (April 17, 2013, Genario, J.).

Accordingly, the third count is stricken.

BY THE COURT

Jack W. Fischer, Judge

Fischer, Jack W., J.