Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport
MEMORANDUM OF DECISION
Joyce Riccio has moved to strike the Second Count of the
Complaint dated August 8, 2016, for failure to state a claim
for breach of contract., Defendant argues that the
allegations by, Plaintiff David Dubinsky, her former divorce
client, merely restate the claim of legal malpractice alleged
against her in the First Count., Defendant also moved to
strike the punitive damages request in the prayer for relief.
For the reasons stated below, the motion to strike the Second
Count and the punitive damages request is granted.
Standards for Deciding a Motion to Strike
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).
" [A] motion to strike challenges the legal sufficiency
of a pleading and, consequently, requires no factual findings
by the trial court ... [The court] construe[s] 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, [the court notes] that [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. v. Hoffman Enterprises Ltd. Partnership,
309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts
provable under the express and implied allegations in the,
Plaintiffs 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). On the other hand, " [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).
Second Count Sounds in Legal Malpractice Rather than Breach
leading case, Meyers v. Livingston, Adler, Pulda,
Meikeljohn and Kelly, P.C., 311 Conn. 282, 290-92
(2014), the Connecticut Supreme Court instructed courts when
examining breach of contract claims against attorneys to
" 'pierce the pleading veil' by looking beyond
the language used in the complaint to determine the true
basis of the claim." Id. quoting Gazo v.
Stamford, 255 Conn.245,262-63 (2001).
With respect to the governing legal principles, it is well
established that claims may be brought against attorneys
sounding in contract or in tort, and that '[s]ome
complaints state a cause of action in both contract and
tort.' ... " ne cannot bring an action [under
both theories, however] merely by couching a claim that one
has breached a standard of care in the language of
contract.... [T]ort claims cloaked in contractual language
àre, as a matter of law, not breach of contract
claims.' ... To ensure that, Plaintiffs do not attempt to
convert negligence claims into breach of contract claims
" by talismanically invoking contract language in [the]
complaint" ; ... reviewing courts may " pierce the
pleading veil" by looking beyond the language used in
the complaint to determine the true basis of the claim....
'Whether [a], Plaintiffs 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 damage 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 a duty arising out of a contract... [whereas] an action in
tort is for a breach of duty imposed by law.' ....
determining whether a claim sounds in breach of contract or
in tort, we are mindful of the well established principle
that an independent claim of tortious conduct may arise in
the context of a contractual relationship. ... (" [i]t
is true, of course, that out of a contractual relationship a
tort liability, as in negligence, may arise" ...); ...
(" a, Defendant may be liable in negligence for the
breach of duty which arises out of a contractual
relationship" ); ... (" [e]ven though there may not
be a breach of contract, liability may arise because of
injury resulting from negligence occurring in the course of
performance of the contract" ); ... (" [wJhere
there is a precedent relationship, all that is necessary to
furnish a basis for an action of negligence is that there be
present the elements necessary to establish such a cause of
action, and if that is so, that that relationship is one of
contract is no sound reason why the action should not
lie" ). Accordingly, the fact that the contract in the
present case required the, Defendant to provide the,
Plaintiff with legal representation and that the, Plaintiff
was dissatisfied with the, Defendant's performance does
not necessarily mean that her claim of improper
representation sounds in breach of contract." 255 Conn.
at 262-63 (citations omitted).
the Meyers case was decided on a motion for summary
judgment, 311 Conn. at 290, and this is a motion to strike,
the same analysis should apply. See Gazo, 255 Conn.
at 262-63. " Although ... in reviewing a motion to
strike, the court must take the, Plaintiffs allegations at
face value, that rule is not absolute. We have, on occasion,
looked beyond the specific language of a pleading to discern
its real underlying basis .... In ... an appropriate case
[the court may] pierce the pleading veil. Just as [p]utting a
constitutional tag on an unconstitutional claim will no more
change its essential character than calling a bull a cow will
change its gender ... putting a contract tag on a tort claim
will not change its essential character." Id.
it is not necessary to go beyond the facts plead to ascertain
the essential character of the Second Count, which is a legal
malpractice claim dressed up as if it were a contract claim.
All the allegations in the First Count for legal malpractice
are incorporated into the Second Count., Plaintiff paid lip
service to the cases that have upheld a breach of contract
claim where the attorney had promised a specific result or
the gravamen of the claim is violation of a specific
undertaking in the contract. See Meyers, 311 Conn.
at 292-93; and Stowe v. Smith, 184 Conn. 194, 195,
198-99 (1981). , Plaintiff alleged in ¶ 24:
" [t]he contract was for a specific result.
the representation of, Plaintiff's interests during the
divorce proceedings.", Plaintiff characterized the
breach of contract in ¶ 26 as violation of " the
specific promise and agreement to represent the, Plaintiffs
interest in his divorce suit against his wife." This is
the exact same conduct alleged to violate the standard of
care in the legal malpractice claim fl(¶ 18 c.) and
underlies all the specific acts of misconduct alleged
allegations of deficient conduct by, Defendant in ¶ 18
sound in tort, not in contract. Compare Meyers, 311
Conn. at 294-95 (" Connecticut courts have concluded
that claims alleging that the, Defendant attorney had
performed the required tasks but in a deficient manner
sounded in tort rather than in contract" )., Plaintiffs
allegations, Defendant failed to represent his interests
(¶ 26) is similar to allegations held to sound in tort,
not contract, in Meyers :
To the extent the, Plaintiff suggests that her complaint
alleges breach of contract simply because the, Defendant
did not represent her interests and wishes, this claim has
no legal support. Although we recognize that " [t]he
modem trend, which is followed in Connecticut, is to
construe pleadings broadly and realistically, rather than
narrowly and technically" ; ... no Connecticut court
has deemed an allegation of this general nature sufficient
to constitute a breach of contract claim unless accompanied
by specific allegations that the, Defendant attorney failed
to take action normally expected of an attorney in
furtherance of the agreed
provisions of a contract sounded in breach of contract. See
Connecticut Education Assn., Inc. v. Millimcm USA,
Inc., 105 Conn.App. 446, 459-60, 938 A.2d 1249 (2008)
(allegations that, Defendant agreed to maintain,
Plaintiffs' pension plan in compliance with Intemal
Revenue Code and Employment Retirement Income Security Act
but failed to provide competent and professional services
necessary to maintain pension plan in good standing as
qualified, defined benefit pension plan sounded in breach
of contract because allegations referred to,
Defendant's failure to satisfy contractual obligation
to ensure compliance with federal law); Hill v.
Williams, 74 Conn.App. 654, 659-60, 813 A.2d 130
(allegations that, Defendant agreed to represent, Plaintiff
in civil action against former husband, in appeal relating
to divorce, in proceedings to obtain support and sole
custody of children, and in legal malpractice action
against her former divorce attorney, but that he failed to
proceed in several of those actions and refused to take
critical steps in others, sounded in breach of contract, in
part because, Defendant's refusal to perform actions
for which he was retained suggested intentional rather than
negligent conduct), cert, denied, 263 Conn. 918, 822 A.2d
242 (2003); Mac's Car City, Inc. v. DeNigris,
18 Conn.App. 525, 527, 529, 559 A.2d 712 (allegations that,
Defendant agreed to represent, Plaintiff in lawsuit and
entered appearance, but failed to defend lawsuit and failed
to take action to open defaultjudgment following failure to
plead or to have judgment set aside, sounded in breach of
contract), cert, denied, 212 Conn. 807, 563 A.2d 1356
(1989). The decisions in these cases are consistent with
the general principle that '[a]n action in contract is
for the breach of a duty arising out of a contract';
Gazo v. Stamford, supra, 255 Conn. at 263, 765
A.2d 505; because the attorney in each case failed to
perform the tasks that were required under the contract.
See 1 R. Mallen & J. Smith, Legal Malpractice (5th Ed.
2000) § 8.6, p. 818 ('[t]he prevailing rule is
that there is no cause of action for breach of an express
contract unless the wrong sued for is breach of a specific
promise')." Meyers, 311 Conn. at 292-93.
On purpose for which the attorney was hired, such as
failing to prosecute, defend, or take an essential step in
litigating a cause of action." 311 Conn. at 297
agreement to represent a client's best interests is so
vague and general as to be tantamount to an agreement not to
commit legal malpractice. Compare, Caffery v.
Stillman, 79 Conn.App. 192, 197 (2003).  The
underlying claim is based on breach of a standard of care,
and lack of diligent representation; thus the Second Count is
" no more than a negligence claim cloaked in contractual
language." Alexandru v. Strong, 81
Conn.App. 68, 79 (2004).  Accord, Pelletier v.Ga ...