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Zilkha v. Pattis

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 20, 2015

David Zilkha
v.
Norm Pattis et al

MEMORANDUM OF DECISION MOTION TO STRIKE (#131)

Robin L. Wilson, J.

FACTS

On December 6, 2012, the plaintiff; David Zilkha, commenced the present action against the defendants, Attorney Norman Pattis and the Pattis Law Firm, LLC. The operative complaint alleges the following facts.

The plaintiff retained the defendants to represent him in three separate actions that form the basis for counts four, six, and seven of the complaint. Count four stems from a lawsuit against Nick Sarno, which was related to a child custody case between the plaintiff and his ex-wife.[1] The scope of this representation included defending against Sarno's claim for fees, which the defendants failed to accomplish by " not participating in a hearing without a valid reason, " Count six stems from an action against Pequot Capital Management, which included, inter alia, an agreement to arbitrate a breach of contract claim. The defendants, however, neglected to commence arbitration. Count seven stems from an action against Conus Partners, Inc. The agreement for representation involved filing a lawsuit against Conus for various damages, which the defendants failed to accomplish by never filing suit.

On March 3, 2015, [2] the defendants filed a motion to strike counts four, six, and seven on the grounds that (1) count four is barred by the statute of limitations; and (2) counts six and seven are legally insufficient in that they fail to allege that the defendants breached an agreement to obtain a specific result. The motion is accompanied by a memorandum of law. The plaintiff filed an objection and accompanying memorandum of law on May 12, 2015, to which the defendants filed a reply brief on May 19, 2015. This matter was heard at short calendar on May 26, 2015.

DISCUSSION

" [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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover . . . [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); because the " pleadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, " [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion"; Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980); and " [e]ach motion to strike must be accompanied by a memorandum of law citing the legal authorities upon which the motion relies." Practice Book § 10-39(c).

I

COUNT FOUR: LEGAL MALPRACTICE

The defendants argue that count four is barred by General Statutes § 52-577, which establishes that " [n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." In particular, the defendants argue that the plaintiff alleges Pattis represented him " during 2008, " but did not file suit until 2012, which is more than three years since Pattis represented the plaintiff. The plaintiff counters that a motion to strike is the improper vehicle to raise a statute of limitations special defense. The plaintiff further counters that the case against Sarno was closely intertwined with the ongoing child custody case, therefore, the statute of limitations did not begin to run until a later date pursuant to the continuing representation doctrine.

" [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006). " [T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted." Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). " The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993). The second exception " exists . . . when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right--it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 345 n.12.

In the present case, the general rule that a statute of limitations special defense cannot be raised by a motion to strike applies. The parties disagree about when the statute of limitations began to run and the dates are not set forth explicitly in the complaint. Furthermore, this count alleges a cause of action for legal malpractice--i.e., negligence--hence, it does not involve a statute that bestows a right of action not existing at common law. Here, neither exception to the general rule applies, and therefore, the defendants' motion to strike count four is denied. In light of the court's procedural ruling, the court need not address whether the statute of limitations has expired.

II

COUNTS SIX AND SEVEN: BREACH OF ...


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