Frank J. Costello v. Alfred T. Waterfall et al. (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 107)

This matter is before the court concerning the defendants' motion to strike counts four and five of the plaintiff's revised complaint (# 105) (complaint).   The court heard oral argument concerning the motion on November 25, 2013.   After consideration, for the reasons stated below, the motion is granted.

I

Background

The court summarizes below the pertinent allegations set forth in the challenged counts.

The plaintiff Frank J. Costello, alleges that in December 2004, his 1979 Chevrolet Corvette was involved in a collision with a vehicle owned by A and A Janitorial and operated by William R. Farm (collectively “Farm”), as a result of which the Corvette sustained extensive damage.   See complaint, counts four and five, ¶¶ 5–6.

The plaintiff also alleges that he entered into a written fee agreement for legal representation with defendant Alfred T. Waterfall, an attorney, and his law firm, defendant Smith, Keefe, Moraghan & Waterfall (SKM & W) (“fee agreement”).   See counts four and five, ¶ 8.   The purpose of the representation was to recover the cost of repairing the Corvette and fees for storage.   See counts four and five, ¶ 7.

In January 2007, Waterfall filed suit against Farm in the Superior Court for the judicial district of Middlesex.   In May 2008, after the plaintiff did not comply with Farm's standard discovery request and Waterfall and SKM & W took no action, a judgment of nonsuit was granted in that action.   See counts four and five, ¶¶ 10–14.

More than two years later, in September 2010, Waterfall informed the plaintiff that the judgment of nonsuit had entered against him.   See counts four and five, ¶ 16.

As discussed below, the plaintiff claims that Waterfall and SKM & W breached the fee agreement.   He claims that the defendants' breaches bar and prevent him from recovering his losses.

Additional references to the complaint's allegations are set forth below.

II

Standard of Review

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the ․ court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

“It is well established that a motion to strike must be considered within the confines of the pleadings ․ We are limited ․ to a consideration of the facts alleged in the complaint.   A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).

III

Discussion

The movants argue that counts four and five should be stricken as legally insufficient, since, although these counts purport to allege breach of contract, they are, in reality, negligence claims cloaked in contract language.   In response, the plaintiff asserts that he has alleged sufficient facts for a cause of action in contract, by alleging the existence of a representation agreement for a specific purpose, breach of the agreement, and damages.

“It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services ․ A claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result states a true contract claim.  Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003).”  (Citation omitted.)  Rosenfield v. I. David Marder & Associates, LLC, 110 Conn.App. 679, 685 n.4, 956 A.2d 581 (2008).

“Notwithstanding that embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach, [w]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services.”  (Internal quotation marks omitted.)  Alexandru v. Strong, 81 Conn.App. 68, 79–80, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).

Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989), cited by the plaintiff, was discussed in Caffery v. Stillman, supra, 79 Conn.App. 197, wherein the Appellate Court clarified that “Mac's Car City, Inc., does not stand for the proposition ․ 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 ․ [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.   Additionally, that case is distinguishable from a true contract claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result.”

Here, all that is alleged by way of agreement is set forth in paragraph 8, which states only that the fee agreement provided that the defendants “would provide Plaintiff with competent legal representation, including the initiation of an action against Farm for his negligent operation of a motor vehicle, seeking property damage, lost use, and storage fees on Plaintiff's Corvette, and Plaintiff would pay Defendants a fee for the legal services provided in the action against Farm.” Other than initiation of suit, which the plaintiff alleges occurred in 2007, no allegation of an agreement to obtain a specific result is set forth.

The plaintiff's allegations of breach also do not assert breach of an agreement to obtain a specific result.   Instead, the plaintiff alleges only that Waterfall and SKM & W breached the fee agreement by “allowing a Judgment of Nonsuit to enter against Plaintiff absent objection;  b. taking no action to open or set aside the Judgment of Nonsuit once it was entered by the court;  c. failing to bring a new action against Farm within one (1) year of the entry of the Judgment of Nonsuit, under Connecticut General Statutes § 52–592, and, d. failing to notify the Plaintiff of the entry of the Judgment of nonsuit until more than two (2) years after the entrance of the Judgment on May 21, 2008.”   See counts four and five, ¶ 17.   In essence, these allegations of breach amount to claims that the defendants negligently performed and failed to use due diligence, which have been found to sound in negligence, even though there are allegations that the defendants were retained.   See Alexandru v. Strong, supra, 81 Conn.App. 79–80.

In contrast, the agreement at issue in Hill v. Williams, 74 Conn.App. 654, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), also cited by the plaintiff, contained allegations of breach of an agreement to obtain specific results, in that the defendant agreed to “obtain accurate support and obtain sole custody of the Hill children.”  (Internal quotation marks omitted.)  Id., 659.   Similarly, an agreement to provide a specific result was alleged in Noon v. Brencher, Superior Court, judicial district of New Haven, Docket No. NNH CV 09 6003694 (June 12, 2012, Young, J.), also relied on by the plaintiff here.   In Noon, the plaintiff alleged that the defendant agreed to “draft and record a quitclaim deed.”  Id.

Likewise, in Imbrogno v. Donahue, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. FST CV 04 4002355 (March 9, 2006, Lewis, J.T.R.), cited by the plaintiff, there was an allegation of a breach of a contract term which required the defendant to “ascertain the permitted occupancy of the premises.”

Accordingly, in the absence of allegations of breach of an agreement to obtain a specific result, the court concludes that counts four and five do not allege legally sufficient claims for breach of contract.

CONCLUSION

For the reasons stated above, the motion to strike counts four and five is granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.