Opinion
No. FST CV 08 5005945 S
March 26, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE, #101
Background
The plaintiff, Donald Gustafson, administrator of the estate of Johnson Lee, sued the defendants, Harlow, Adams Friedman, P.C. and Stephen Wright, in a two-count complaint dated, December 4, 2007.
The plaintiff sued Harlow Adams alleging that they failed to protect adequately Lee's option rights in a multimillion dollar condominium complex in Greenwich.
The plaintiff alleges malpractice in the First Count and breach of contract in the Second Count.
Harlow Adams moves to strike the Second Count — breach of contract, claiming that Lee has merely repled his negligence allegations with a blanket legal conclusion that such conduct amounted to a breach of contract, and that under applicable law, the court claiming breach of contract is legally insufficient.
Both sides have briefed the issue.
Law
An action sounding in both negligence and contract may be maintained against an attorney. See Stowe v. Smith, 184 Conn. 194, 199 (1981); Hill v. Williams, 74 Conn.App. 654, 662 (2003); Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 529-30 (1989). However, a plaintiff 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 a contract." (Emphasis added.) Caffery v. Stillman, 79 Conn.App. 192, 197 (2003). "A claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach." Id. Rather, a true contract claim against an attorney must allege that the plaintiff and attorney reached an agreement for a specific result, or allege that the attorney made a specific promise to the plaintiff. See Caffery v. Stillman, supra, 79 Conn.App. 198 (Appellate Court affirmed trial court's decision granting motion for summary judgment on breach of contract claim against attorney arising out of an incorrect understanding of law, not breach of promise to take specific action); Papazahariou v. Malik, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005806 (August 21, 2007, Gilardi, J.) (defendant attorney's motion to strike granted as plaintiff failed to allege that attorney and plaintiff "reached an agreement for a specific result, nor that such agreement was breached"); Memoli v. Galpin, Superior Court, judicial district of Litchfield, Docket No. CV 04 4001269 (June 30, 2006, Pickard, J.) [41 Conn. L. Rptr. 564] (Court denied defendant's motion to strike as plaintiff alleged that defendant attorney "failed to perform specific promises").
Connecticut courts have long recognized that a tort claim cloaked in contractual language does not constitute a sufficient breach of contract claim. Alexandru v. Strong, 81 Conn.App. 68, cert. denied 268 Conn. 906 (2004) (concluding that, where plaintiff brought a breach of contract claim against an attorney for failure to file suit in timely fashion, claim sounded in negligence, notwithstanding that "embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach"); Shuster v. Buckley, 5 Conn.App. 473, 478 (1985) (concluding that, where plaintiff alleges that defendant negligently performed legal services and failed to use due diligence, complaint sounds in negligence even though plaintiff also alleges that he retained defendant or engaged his services). The Supreme Court in Gazo v. Stamford, addressed the issue of malpractice claims purporting to sound in breach of contract: "[j]ust as putting a constitutional tag on a nonconstitutional 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." (Citation omitted.) 255 Conn. 245, 263 (2001).
In Pelletier v. Galske, 105 Conn.App. 77 (2007), cert. denied, 285 Conn. 921 (2008), the Appellate Court recently revisited the issue. The court said "a fair reading of the complaint reveals that the gravamen of the action was the alleged failure by the defendant to exercise the requisite standard of care . . . Nothing in the plaintiff's complaint removes her claim from the ambit of malpractice. Notwithstanding that embedded in the language of the plaintiff's claim are the contractual rudiments of promise and breach . . ." Id., 82.
CT Page 4916
Discussion
Count Two, breach of contract, while incorporating paragraphs 1 though 21 of the negligence count, states in paragraph 24: "The defendants failed to use reasonable care and skill and breached their agreement with Johnson Lee."In the court's opinion, the Second Count is merely a rewording of a malpractice claim. Therefore, the Motion to Strike Count Two is granted.
So ordered.