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John v. Popple

Superior Court of Connecticut, Judicial District of Tolland, Rockville

September 24, 2015

Kerry A. John
v.
Charles J. Popple

MEMORANDUM OF DECISION RE MOTION TO STRIKE (#102)

Susan Quinn Cobb, J.

This is a legal malpractice action brought by the plaintiff, Kerry A. John, against her former attorney, defendant, Charles J. Popple, in connection with the defendant's representation of the plaintiff in a federal bankruptcy proceeding. The complaint asserts two counts, legal malpractice and a violation the Connecticut Unfair Trade Practices Act (CUTPA). The defendant has moved to strike count two of the complaint, the CUTPA claim, on the ground that it fails to allege sufficient facts to assert a claim against the defendant under CUTPA. In particular, the defendant claims that the complaint merely asserts a claim for professional negligence which is insufficient to support a claim under CUTPA. The court agrees that count two as alleged is insufficient to support a CUTPA claim, and therefore, grants the defendant's motion to strike count two of the complaint.

According to the complaint, as the result of financial problems, the plaintiff decided to seek legal advice. Finding the defendant in the Yellow Pages, the plaintiff contacted the defendant's office and asked if the defendant practiced bankruptcy law. After being told that he did, the plaintiff met with the defendant to discuss her situation and her questions regarding filing for personal bankruptcy. The plaintiff informed the defendant about her personal finances including the fact that she was the beneficiary of a trust, which provided her with monthly distributions.

The defendant told the plaintiff that filing a chapter 7 bankruptcy petition was a " good option" for her. At no time did the defendant tell the plaintiff that her interest in the trust would be considered an asset of her bankruptcy estate if she filed the bankruptcy petition.

After filing the bankruptcy petition, the plaintiff and the defendant met with the bankruptcy trustee, at which time the plaintiff told the trustee about her interest in the trust. The defendant later told the plaintiff that the bankruptcy trustee considered the plaintiff's interest in the trust and her monthly distributions to be an asset of the plaintiff's bankruptcy estate. As a result, the plaintiff would be required to assign her interest in the trust to the bankruptcy trustee or pay the bankruptcy trustee sufficient funds to pay in full of the debts she owed to her creditors. The plaintiff then instructed the defendant to withdraw her bankruptcy petition to protect her interest in the trust. The defendant failed or refused to withdraw the petition prior to the date her claim was discharged on March 27, 2013.

The bankruptcy trustee then initiated an adversarial proceeding against the plaintiff to assert the bankruptcy estate's claim in the trust, which resulted in a settlement involving payments of the trust distributions for a number of years.

The plaintiff claims that the defendant failed to properly advise her that her interest in the trust would be deemed an asset in her bankruptcy estate prior to filing for bankruptcy and that misadvise constituted legal malpractice. She also claims that the defendant's failure to withdraw the petition prior to the discharge also constituted malpractice.

As to count two asserting a violation of CUTPA, the plaintiff claims that the defendant was in the business of practicing law and that he " held himself out as having knowledge and understanding of bankruptcy laws and procedures" even though he did not have such knowledge and understanding. The plaintiff asserts that the defendant's lack of knowledge and understanding is demonstrated by his actions in this case in failing to properly advise the plaintiff that her interest in the trust would be considered an asset, which she claims constitutes an unfair trade practice under C.G.S. § 42-110(a). The plaintiff alleges further that the defendant's " holding himself out as having knowledge of bankruptcy laws and procedures when he, in fact lacked such knowledge and competence was deceptive and/or an unfair business conduct in an ongoing manner . . ."

The defendant claims that these allegations are insufficient to assert a CUTPA claim, but merely assert a claim for professional malpractice. The plaintiff counters that the allegations of her complaint are sufficient to assert a claim under CUTPA.

It is well established that " a party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). " 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); Vertex v. Waterbury, supra, 278 Conn. 564. " [F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, " [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007); Hollister v. Thomas, 110 Conn.App. 692, 698, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). " 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." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). Although 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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

CUTPA provides that: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce." General Statutes § 42-110b(a). " A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." (Internal quotation marks omitted.) Kronberg Bros, Inc. v. Steele, 72 Conn.App. 53, 60-61, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002).

The Supreme Court has adopted the following criteria for determining if an act or practice is unfair: " Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory or other established concept of unfairness; (2) whether it's immoral, unethical oppressive or unscrupulous; (3) whether it causes substantial injury to consumers." (Internal quotations omitted.) Ulbrich v. Groth, 310 Conn. 375, 409, 78 A.3d 76 (2013).[1] " All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . Furthermore, a party need not prove intent to deceive to prevail under CUTPA." (Internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 156, 645 A.2d 505 (1994).

As to legal malpractice cases, the Supreme Court has stated that although CUTPA applies to attorney conduct, it does not apply to every aspect of the practice of law. Heslin v. Connecticut Law Clinic of Trantolo v. Trantolo, 190 Conn. 510, 461 A.2d 938 (1983). " Professional negligence--that is malpractice--does not fall within CUTPA." Beverly Hills Concepts Inc. v. Schatz Schatz Ribicoff and Kotkin, 247 Conn. 48, 717 A.2d 724 (1998). CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. Id. " Our CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). The Supreme Court has explained: " The " entrepreneurial" exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities advertising and bill collection, for example. See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34-38, 699 A.2d 964 (1997) (reasoning that practice of law and medicine may give rise to CUTPA claims only for entrepreneurial aspects, such as solicitation of business and billing, and not for claims involving issues of competence and strategy). It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability. Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 782.

Applying these standards to this case, the court concludes that count two of the plaintiff's complaint is insufficient to assert a claim under CUTPA against the defendant attorney under the " entrepreneurial exception" applying CUTPA to attorneys. It contains no facts to support a claim that defendant's conduct involved his advertising, solicitation or billing practices, nor does ...


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