Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#104)
Robin L. Wilson, J.
This action arises out of an underlying case involving an automobile accident on May 30, 2010, in which the plaintiff, Sharon Burns, sustained serious injuries and incurred medical expenses. Following the accident, she entered into a " legal services agreement" with the defendant, Attorney Ira Grudberg, " to represent her interests." The defendant filed a complaint in that matter, Burns v. Cruz, Superior Court, judicial district of New Haven, Docket No. CV-12-6026603-S on January 27, 2012. As a result of the defendant failing to file responses to discovery requests, to respond to a motion to compel, and to comply with the court's order dated February 4, 2013, the court granted a motion for judgment against her on April 15, 2013. The case was then withdrawn.
On December 29, 2014, the plaintiff filed a four-count complaint in the case presently before the court. In count one, sounding in legal malpractice, the plaintiff alleges that the defendant was negligent in the underlying case in failing to respond to the discovery requests that resulted in a motion for judgment against her; in failing to exercise due care to meet the minimum standard of care for the practice of law in a personal injury action; in undertaking to represent the plaintiff when he knew or in the exercise of due care should have known that he lacked the ability, skill, and time to diligently and faithfully represent her; and that he knew or should have known that he lacked the resources in time and/or energy to prepare the case in an adequate and timely manner. Due to the defendant's failures, omissions and/or neglect, the plaintiff suffered severe and irreparable harm, including financial losses, emotional and mental distress, and permanent and lasting effects on her physical and mental health.
The plaintiff incorporated all of count one into count two, breach of contract, and further alleges the additional facts. She entered into a contract with the defendant in which he agreed to provide her with skilled and competent representation on a contingency basis; the defendant promised to diligently and faithfully represent her and that he had the skill and time to do so; he promised to appear in court on scheduled court dates; he promised he would adequately, properly, and timely research, draft, and file all necessary pleadings, and he would protect her legal, constitutional, and any other interests she may have. The defendant failed to take these specific actions and, as a result of his breach of the contract, she has suffered damages.
In count three, sounding in a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., the plaintiff incorporated paragraphs one through twenty-four of count two,  and further alleges the following facts. The defendant is an attorney engaged in trade and commerce within the meaning of CUTPA, he committed unfair and deceptive acts in trade and commerce, and these acts caused her to suffer an ascertainable economic loss. In count four, in which the plaintiff alleges a claim for negligent infliction of emotional distress, the plaintiff again incorporates paragraphs one through twenty-four of the second count and alleges the following additional facts. The defendant knew or should have known that his conduct involved an unreasonable risk of causing the plaintiff emotional distress, and she suffered emotional distress, which included mental, physical, and emotional harm, substantial loss of sleep, and severe anxiety.
On April 2, 2015, the defendant filed a motion to strike counts two, three, and four of the plaintiff's complaint on the ground that the plaintiff failed to allege sufficient facts to state any claims upon which relief can be granted and further, as to count three, to strike the corresponding prayer for relief. The defendant submitted a memorandum of law in support of the motion. In response, the plaintiff on May 20, 2015, filed an objection and memorandum of law in opposition. At oral argument on June 29, 2015, the plaintiff, for the first time, relied on Peck v. Perugini, Superior Court, judicial district of Fairfield, Docket No. CV-07-5012606-S (September 21, 2010, Dooley, J.), in support of her negligent infliction of emotional distress claim. The court permitted supplemental briefing addressing this case. On June 2, 2015, the defendant filed a reply brief in further support of his motion to strike counts two and three, and on July 1, 2015, he filed a supplemental memorandum of law in further support of his motion to strike count four. On July 6, 2014, the plaintiff submitted a supplemental memorandum of law in opposition to the motion to strike count four to discuss the public policy argument in Peck .
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint . . . or (2) the legal sufficiency of any prayer for relief in any such complaint . . ." Practice Book § 10-39(a). " 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). " The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). " 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." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " [T]he court is limited [however] 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). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Id., 588. " 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).
Count Two--Breach of Contract
With respect to the second count sounding in breach of contract, the defendant argues that the plaintiff incorporates wholesale the allegations of negligence asserted in the first count, a claim of legal malpractice, and recasts her tort claim as one for breach of contract without alleging any specific actions or undertakings, or any failure to undertake certain actions by the defendant beyond a general duty of care imposed upon an attorney. What the plaintiff is alleging, the defendant maintains, is that every task an attorney performs for a client in furtherance of the retainer agreement is a contractual commitment to undertake a specific task and that an attorney's failure to accomplish the task or to achieve the intended goal constitutes both professional negligence and an actionable breach of contract. The defendant contends that this, however, would provide every plaintiff with two causes of action, one for professional negligence, and one for breach of contract for every legal malpractice claim, which is inconsistent with the law that a claim for legal malpractice does not give rise to a separate cause of action for breach of contract, when the latter is merely a tort claim cloaked as a breach of contract claim by using contract language of promise and breach.
In response, the plaintiff counters that, pursuant to Connecticut law, she may bring a claim against an attorney in an action sounding in both negligence and breach of contract. She argues that she has alleged a breach of the standard of care of a contract by setting forth specific acts that the defendant promised, including, to adequately, properly, and timely research, draft, and file all necessary pleadings, that he failed to respond in a timely manner to interrogatories and requests for production, all of which resulted in the court entering a motion for judgment against her. Moreover, even if the facts do not support a cause of action for both legal malpractice and breach of contract, the plaintiff asserts that, pursuant to the rules of practice, she is permitted to plead in the alternative and bring a cause of action in both until she obtains the information needed during discovery.
" [A]lthough one may bring against an attorney an action sounding in both negligence and contract . . . one [cannot] 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." (Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 79, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). " To ensure that plaintiffs do not attempt to convert negligence claims into breach of contract claims by 'talismanically invoking contract language in [the] complaint'; Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001); reviewing courts may 'pierce the pleading veil' by looking beyond the language used in the complaint to determine the true basis of the claim. Id., 262-63." Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291, 87 A.3d 534 (2014).
" Whether [a] plaintiff's cause of action is one for malpractice [or contract] depends upon the definition of [those terms] and the allegations of the complaint . . . Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damages to the recipient of those services . . . The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages . . . In other words, '[a]n action in contract is for the breach of duty arising out of a contract . . . [whereas] an action in tort is for a breach of duty imposed by law." (Citations omitted; internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn. 291; see also Law Office of Norman Voog, LLC v. Stevens, Superior Court, judicial district of Danbury, Docket No. CV-02-0347140-S (December 17, 2004, Shay, J.) (38 Conn. L. Rptr. 433), 2004 Conn. Super. ...