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Dubinsky v. Riccio

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

February 1, 2017

DAVID DUBINSKY
v.
JOYCE RICCIO

          MEMORANDUM OF DECISION

          KRUMEICH, Judge

         Defendant 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.

         The 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).

         The Second Count Sounds in Legal Malpractice Rather than Breach of Contract.

         In the 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.' ... " [0]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.' ....

         In 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).

         Although 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.

         Here, 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). [1], Plaintiff alleged in ¶ 24: " [t]he contract was for a specific result.

         namely, 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 against, Defendant.

         Plaintiffs 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 (citation omitted).

         An 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). [2] 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). [3] Accord, Pelletier v.Ga ...


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