Opinion
No. FST CV10-6007722S
September 6, 2011
Memorandum of Decision on Defendant Roberts' Motion to Strike the Seventh Count (No. 132)
Procedural/Factual Background
On December 13, 2010, the plaintiff, Western Surety Company, filed a writ, summons and complaint against the ten defendants in this action. The motion that is presently before the court is a motion to strike count seven of the complaint, which is a claim of legal malpractice directed against the defendant Attorney Elinor Paterson Roberts. In order to resolve Attorney Roberts' motion to strike it is necessary to review the following factual background. On May 20, 2004, Chester Zlotnicki died intestate and Walter Krasniewicz was subsequently appointed as the administrator of Zlotnicki's estate by the Stamford Probate Court. The plaintiff then issued a probate surety bond in connection with Walter Krasniewicz's appointment as the administrator of the Zlotnicki estate in the amount of $100,000 on June 15, 2004. By October 14, 2004, this surety bond was increased to $300,000. In his application to the Stamford Probate Court, Walter Krasniewicz named himself and the defendants Jean Peitrzkiewicz, Sophie Rossi-Wood and Fran Bobinski as the heirs of Zlotnicki's estate. Each of these individuals were the children of Zlotnicki's grandfather's sister. On December 1, 2004, Walter Krasniewicz made $80,000 distributions to each of these supposed heirs, including himself. Walter Krasniewicz then submitted a final accounting to the Stamford Probate Court on April 7, 2005, but this accounting was never approved by the probate court . . . On June 8, 2010, the Stamford Probate Court issued a decree finding that different individuals were actually Zlotnicki's heirs at law (Zlotnicki heirs). The Stamford Probate Court further ordered that Walter Krasniewicz submit a final accounting that contained a proposed schedule of distribution to those Zlotnicki heirs. The defendants Peitrzkiewicz, Rossi-Wood and Bobinski have filed an appeal of the Stamford Probate Court's decision and this case is currently pending in this court under the name Peitrzkiewicz v. Greene, Docket No. CV 10 6005706 (the "Probate Appeal").
The defendants in the present case are as follows: Jean Peitrzkiewicz, Sophie Rossi-Wood, Fran Bobinski, Kathryn H. Greene, Timothy Krasniewicz, Thomas Krasniewicz, Patrick Krasniewicz, Mary Krasniewicz, Elizabeth Buckley and Attorney Elinor Paterson Roberts.
The plaintiff alleges that the Stamford Probate Court found that the following individuals were Zlotnicki's heirs at law: Ioann "Ivan" Fedorovic, Tadeush Adamov, Sofia Adamovic Romanovskaya, Maria Adamovic Gudkov, Kazimir Palovich Zlotnitsky, Vladislav Frantishek a/k/a Valadimir-Frants Pavlovish Zlotnitsky and Yuzef a/k/a Josif Adamovic. As stated in plaintiff's memorandum these Zlotnicki heirs were found by the probate court to be first cousins of the decedent, whereas the defendants who were originally designated as heirs by Administrator Walter Krasniewicz (including himself) were second cousins of the decedent.
In the present lawsuit, the plaintiff's claim of liability against each of the defendants as to counts one through six is that "[i]f [the plaintiff] is obligated to pay any sum pursuant to the Bond, then it will be subrogated to any claims the Zlotnicki Estate has against" each of the defendants. Counts eight through ten allege that in consideration for the probate bond issued by the plaintiff on June 15, 2004, Walter Krasniewicz signed a contractual indemnification agreement in which he agreed "[t]o completely INDEMNIFY [the plaintiff] against all liability, loss, cost, attorneys fees and expenses whatsoever in which [the plaintiff] shall at any time sustain as surety or by reason of having been surety on this bond or any other bond issue for applicant, or for the enforcement of this agreement . . ." According to the complaint, Walter Krasniewicz died on November 27, 2005. Consequently, the defendants Kathryn H. Greene, Timothy Krasniewicz, Thomas Krasniewicz, Patrick Krasniewicz, Mary Krasniewicz and Elizabeth Buckley are defendants in this case because they are the alleged beneficiaries of Walter Krasniewicz's estate. The Zlotnicki heirs have also brought a lawsuit against the plaintiff alleging that Walter Krasniewicz wrongfully made the December 1, 2004 distributions to Peitrzkiewicz, Rossi-Wood and Bobinski without obtaining the approval of the Stamford Probate Court or determining that they were Zlotnicki's true heirs. This case is currently pending in this court under the name Tyupa v. Western Surety Co., Docket No. CV 10 6006088 (the "Bond Claim Lawsuit"). In the Bond Claim Lawsuit, the Zlotnicki heirs allege that they have sustained damages as a result of Walter Krasniewicz's wrongful distribution, and, as a result, the Zlotnicki heirs seek recovery from the plaintiff pursuant to the probate bond. The Probate appeal and the Bond Claim Lawsuit were consolidated with this by order of the court, Mintz, J., on April 18, 2011.
In count seven, the plaintiff alleges that Attorney Roberts was retained to represent Walter Krasniewicz in his role as the administrator of the Zlotnicki estate. Attorney Roberts allegedly advised Walter Krasniewicz to make the $80,000 distributions to himself, Peitrkiewicz, Rossi-Wood and Bobinski without conducting a genealogical study to confirm that these individuals were Zlotnicki's closest living relatives. Following Walter Krasniewicz's death on November 27, 2005, the defendant Greene was appointed as the successor administratrix of the Zlotnicki estate. Attorney Roberts continued as the attorney to the estate until February 1, 2008. During her representation of the estate, Attorney Roberts was made aware that the Zlotnicki heirs had claimed that Peitrzkiewicz, Rossi-Wood, Bobinski and Walter Krasniewicz were not Zlotnicki's heirs at law, but Attorney Roberts did not attempt to obtain the money that had been distributed to these individuals on December 1, 2004. Accordingly, in count seven, the plaintiff alleges a cause of action for attorney malpractice against Attorney Roberts. The remaining causes of action alleged in the plaintiff's complaint are as follows: count one — conversion, count two — unjust enrichment, count three — constructive trust, count four — conversion, count five — unjust enrichment, count six — constructive trust, count eight — contractual indemnification, count nine — common law reimbursement, count ten — exoneration. Counts one through three allege claims against the defendants Peitrzkiewicz, Rossi-Wood and Bobinski, and counts four, five, six, eight, nine and ten allege claims against the defendants Greene, Timothy Krasniewicz, Thomas Krasniewicz, Patrick Krasniewicz, Mary Krasniewicz and Buckley, respectively.
On March 24, 2011, Attorney Roberts filed a motion to strike count seven of the plaintiff's complaint, along with a supporting memorandum of law. The plaintiff filed a memorandum of law in opposition to Attorney Roberts' motion on May 3, 2011. The court heard argument in this matter at short calendar on May 9, 2011.
Discussion
"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). In 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). Therefore, "[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-Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Nevertheless, "[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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. When deciding a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
Attorney Roberts is moving to strike count seven on three different grounds. As the first two grounds are determinative, only these two grounds will be fully addressed in the body of this memorandum. (See footnote 4 for a discussion of the third ground.)
The first argument raised by Attorney Roberts is that there was no attorney-client relationship between herself and the plaintiff, and, as a result, Attorney Roberts had no duty to the plaintiff. It is well established that "[a]s a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 517, 849 A.2d 791 (2004). Accordingly, "to prove any legal malpractice claim, a plaintiff must establish the four necessary elements: (1) an attorney-client relationship; (2) a wrongful act or omission by the attorney; (3) proximate cause; and (4) legal damages . . . Put another way, a plaintiff must prove that there existed an attorney-client relationship and that the client sustained legal injury or damage that proximately was caused by the attorney's wrongful act or omission." (Citation omitted.) Lee v. Harlow, Adams Friedman, P.C., 116 Conn.App. 289, 302, 975 A.2d 715 (2009).
It is clear that the plaintiff does not allege that there was an attorney-client relationship between itself and Attorney Roberts. Consequently, in order to survive this motion to strike, the plaintiff must demonstrate that the present case falls within an exception to the general rule. Connecticut courts have recognized some narrow exceptions to the rule requiring privity between an attorney and the plaintiff in a legal malpractice case. For instance, our Supreme Court has allowed an intended beneficiary of an estate to sue the attorney who negligently drafted his mother's will. Stowe v. Smith, 184 Conn. 194, 198-99, 441 A.2d 81 (1981). Nevertheless, Connecticut courts have been extremely cautious in allowing legal malpractice cases to proceed when there is no privity between the parties. As stated by the Supreme Court, "[d]etermining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy . . . In addressing this issue, courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party . . . Additional factors considered have included the foreseeability of harm, the proximity of the injury to the conduct complained of, the policy of preventing future harm and the burden on the legal profession that would result from the imposition of liability . . . Courts have refrained from imposing liability when such liability had the potential of interfering with the ethical obligations owed by an attorney to his or her client." (Citations omitted.) Krawczyk v. Stingle, 208 Conn. 239, 245-46, 543 A.2d 733 (1988) (holding that an attorney could not be sued for legal malpractice by intended beneficiaries when the attorney delayed in having the decedent sign estate planning documents). The Connecticut exception for intended beneficiaries of legal services has been characterized by the U.S. District Court for the District of Connecticut as ". . . a narrow exception — essentially limited to wills only — to the rule that an attorney has no duty to a third party." Continental Casualty Company v. Pullman, Comley, Bradley and Reeves, 709 F.Sup. 44, 47 n. 4 (D.Conn. 1989), affirmed 929 F.2d 103 (2d Cir., 1991). See, also, Blonstein, Trustee v. Rubenstein, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FST CV10-6004573S (July, 26, 2011, Jennings, J.), where this court declined to extend the exception to an action for damages brought by trust beneficiaries against the attorney who had drafted and established the trust and had served as the trustee.
At least one Superior Court judge has examined this issue in a case that is very similar to the present matter. In Colonial Surety Co. v. Lenard Engineering, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 03 0184353 (November 10, 2004, Sheedy, J.), the plaintiff surety company acted as the surety for a construction organization. The plaintiff surety company then brought a legal malpractice claim against the construction company's attorneys. When granting the defendant's motion to strike, Judge Sheedy stated that the surety company "makes no allegation — nor could it accurately be stated — there was an attorney-client relationship between the surety and these defendants. To extend the long-held general rule of non-liability to non-clients under the circumstances here presented would eviscerate the fundamental principle that the attorney's duty of devotion is to the interest of the client. Courts have consistently demonstrated an unwillingness to weaken the privity rule and this state has so held . . . The relationship between an attorney and client is personal and it is for that reason that, as a general rule, the rights and duties resulting from that relationship may not be assigned or delegated without the consent of all parties." (Citation omitted.) Id. Judge Sheedy further opined that "it is unlikely the plaintiff, a business entity, was without its own legal counsel to advise it in the conduct of its business and it is therefore unlikely the plaintiff had any reasonable expectation these defendants owed it a legal duty nor is there any assertion these defendants knew the identity of the surety for the [subject construction] project. Second, the public policy served by the attorney-client relationship is, inter alia, the promotion of the trust, confidence, and confidentiality which characterizes that relationship and extending lawyers' obligations to non-clients seriously threatens the underpinnings of the attorney-client privilege. Third, avoiding increased litigation militates against recognition of a duty of care under the circumstances of this case as this suit demonstrates." Accordingly, Judge Sheedy determined that the plaintiff surety company could not bring a legal malpractice claim under the facts presented in the Colonial Surety Co. case.
A federal district court judge applying Missouri law has also reached the same decision in a case that is strikingly similar to the matter that is presently before the court. In Merchants Bonding Co. v. Noland, United States District Court, Docket No. 2:10-CV-04095-NKL (W.D. Mo. September 7, 2010), the plaintiff surety company issued a surety bond in order to guaranty that the conservator of an estate would faithfully execute his duties. When the conservator failed to account properly for all of the money in the estate, the plaintiff surety company was forced to pay under the suretyship agreement. The plaintiff surety company then brought an action alleging, inter alia, malpractice against the attorneys who represented the estate and the conservator. When dismissing the legal malpractice cause of action for failure to state a claim upon which relief can be granted, the district court judge stated that "[i]t is undisputed . . . that [the plaintiff] was not the Defendants' client. Thus [the plaintiff] can recover for legal malpractice from Defendants only if it avers and proves that [the conservator] or the Estate retained Defendants with the specific intent to benefit [the plaintiffs]." Id. The plaintiff "has not pled such an intent and it is not plausible given the facts alleged by [the plaintiff] that the legal advice sought by the Estate or [the conservator] was intended to benefit [the plaintiff]. At best, the Defendants' legal advice had an incidental impact, causing the conditions of the surety bond to be triggered." Id.
This Missouri case is persuasive authority in the present matter because Missouri courts have used the same test as Connecticut when deciding whether it is appropriate to allow a non-client to sue an attorney for legal malpractice. According to the Supreme Court of Missouri, under the law of that state, "the first element of a legal malpractice action may be satisfied by establishing as a matter of fact either that an attorney-client relationship exists between the plaintiff and defendant or an attorney-client relationship existed in which the attorney-defendant performed services specifically intended by the client to benefit plaintiffs." Donahue v. Shughart, Thompson Kilroy, 900 S.W. 2d. 624, 628-29 (Mo. 1995).
In the present case, the plaintiff has brought a legal malpractice claim against the attorney who represented Walter Krasniewicz and the Zlotnicki estate. There is no allegation that the plaintiff relief on Attorney Roberts' legal advice when it decided to issue the subject surety bond or to increase the amount of the bond. Any alleged malpractice on the part of Attorney Roberts would only potentially effect the plaintiff in that it might find itself obligated to pay under the surety bond. The court holds that plaintiff has not shown that this case fits into the narrow exception to the requirement of an attorney-client relationship which permits a non-client to sue the attorney for malpractice when that person is the intended beneficiary of those services. But plaintiff puts a further factor into the argument by claiming that it can sue under the doctrine of equitable subrogation as the representative of the administrators of the Zlotnicki Estate which did have an attorney-client relationship with Atty. Roberts. Aside from arguments that plaintiff has not yet actually made any payment under the bond and is therefore not yet actually a subrogee (to be discussed, infra) there is federal appellate authority applying Connecticut substantive law that, although the doctrine of equitable subrogation generally does allow a subrogee to stand in the shoes of the subrogor and assert the rights of the subrogor against a party liable to the subrogor for the bonded loss, that right for policy reasons does not extend to bringing a legal malpractice action against the subrogor's attorney:
To hold otherwise would in our judgment . . . be tantamount to saying that insurance defense attorneys do not owe their duty of loyalty and zealous representation to the insured client alone. Such a holding would contradict the personal nature of the attorney-client relationship, which permits a legal malpractice action to accrue only to the attorney's client.
Continental Casualty Co. v. Pullman Comley, et al., supra, 929 F.2d 103 (2nd Cir. 1991), citing American Employers Insurance Co. v. Medical Protective Co., 165 Mich.App. 657, 419 N.W.2d 447, appeal denied, 431 Mich. 856 (1988).
This court concurs with the reasoning of the Second Circuit and holds that plaintiff cannot sue Atty. Roberts for malpractice under the doctrine of equitable subrogation in the absence of any allegation of an attorney-client relationship between the plaintiff and Atty Roberts. Although this determination would be sufficient to grant this motion to strike, Attorney Roberts also offers additional reasons as to why count seven is legally insufficient. The second ground is that count seven should be stricken because the plaintiff fails to allege that it or the Zlotnicki estate has suffered any damages. As stated previously, "to prove any legal malpractice claim, a plaintiff must establish . . . legal damages . . . Put another way, a plaintiff must prove that there existed an attorney-client relationship and that the client sustained legal injury or damage that proximately was caused by the attorney's wrongful act or omission." (Citation omitted; emphasis added.) Lee v. Harlow, Adams Friedman, P.C., supra, 116 Conn.App. 302. The "measure of damages in [a] legal malpractice action is [the] actual amount that [the] client would have recovered in [the] underlying action if malpractice had not occurred . . ." Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn. 748, 760, 882 A.2d 44 (2005). Attorney Roberts is correct that the plaintiff does not allege anywhere in count seven that it has suffered specific damages as a result of Attorney Roberts' alleged malpractice. Indeed, the plaintiff implicitly admits that it has yet to suffer any actual damages in paragraphs seventeen of counts one and four of the complaint, which allege that " [i]f [the plaintiff] is obligated to pay any sum pursuant to the Bond . . ." (Emphasis added.) "[T]he general purpose of a suretyship contract is to guard against loss in the event of the principal debtor's default . . . [T]he obligation of a surety is an additional assurance to the one entitled to the performance of an act that the act will be performed . . . [T]he liability of sureties is to be determined by the specified conditions of the bond . . ." (Internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 530, 839 A.2d 1250 (2004). In the present case, the plaintiff's losses, if any, would occur only if it were obligated to pay money pursuant to the probate bond that it issued. Accordingly, it is apparent that at the present time, any damages suffered on the part of the plaintiff are purely speculative which provides an additional basis for the court striking count seven.
The final ground raised by Attorney Roberts is that count seven should be stricken because the plaintiff "has not yet subrogated to the rights of the Zlotnicki estate." In her memorandum of law, Attorney Roberts argues that because the plaintiff fails to allege that it is the subrogee of the Zlotnicki estate pursuant to a contract, then it must be attempting to assert a right of equitable subrogation. Attorney Roberts further argues that the plaintiff's "claim that it is the subrogee of the Zlotnicki estate is premature. Nowhere in Count Seven does [the plaintiff] allege that it has made any payments pursuant to the bond that it issued in connection with the administration of the Zlotnicki estate. In the absence of any payment on the bond, [the plaintiff] has not subrogated to the rights of the Zlotnicki estate." Although Attorney Roberts does not use this legal terminology, it sounds as though she is arguing that this legal malpractice claim is not yet ripe and/or the plaintiff lacks standing because the plaintiff has yet to be subrogated to the rights and claims of the Zlotnicki estate.
The law is clear that the doctrine of ripeness raises questions of justiciability. Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010) (stating that "justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter"). As ripeness is a subject matter jurisdiction related doctrine, it is more appropriately raised in a motion to dismiss as opposed to a motion to strike. Although there is certainly case law indicating that the court should sua sponte address issues of subject matter jurisdiction when they come to the court's attention, the court should not do so here for the following reasons. First, the motion that is presently before the court is a motion to strike and such a motion can only be decided on the facts alleged in the complaint. In the plaintiff's complaint, the plaintiff both alleges that "it will be subrogated to any claims [of] the Zlotnicki Estate" and that "[t]he [p]laintiff asserts a claim of legal malpractice against [Attorney Roberts] as subrogee of the Estate." Accordingly, the complaint itself is inconsistent as to the plaintiff's current subrogation status. In order to resolve properly this dispute, the court would likely need to examine information outside of the pleadings, which it cannot do on a motion to strike. Secondly, the court has already ruled that this motion to strike is granted pursuant to the first two grounds raised by Attorney Roberts. Therefore, it is not necessary to resolve the standing dispute at this point in time. In the event that the plaintiff repleads count seven, Attorney Roberts can always raise this ripeness/standing issue at a later time by a motion to dismiss because questions of subject matter jurisdiction cannot be waived. Practice Book § 10-33.
In its memorandum of law in opposition, the plaintiff does not actually dispute any of the legal positions offered by Attorney Roberts. The plaintiff is not arguing that it had an attorney-client relationship with Attorney Roberts or that it has suffered any actual damages as the result of her alleged malpractice. Rather, the plaintiff instructs on the law of suretyship, subrogation, and third party pleading and argues that the malpractice claim could have been brought as a third party complaint to the bond claim lawsuit under Practice Book § 10-11 which permits a defendant to implead a non-party . . . who is or may be liable to such defendant for all or part of such plaintiff's claim . . ." (emphasis added). According to the plaintiff, the allegations made against Attorney Roberts in this present action are "identical to classic third party pleadings" in that the plaintiff has alleged that if it is found to be liable to the Zlotnicki heirs in the claim lawsuit, then Attorney Roberts would be liable to the plaintiff for those losses. As the present case and the bond claim lawsuit have been consolidated for the purposes of trial, Attorney Roberts contends that "litigating these claims together will conserve judicial resources and obviate the risk of duplicative trials and inconsistent result. The pleadings in the [present case] and the procedures applied to those consolidated suits will be identical to those utilized in an impleader action." Consequently, the plaintiff argues that the court has discretion to allow the plaintiff's legal malpractice claim to continue, and has cited two Superior Court cases where trial judges in the name of judicial efficiency have permitted insurance subrogation claims to be tried on a consolidated basis with the underlying case against the insurance company even though the insurance company had not yet been found liable or made any payment of the underlying claim against it.
The cases are: Skoog v. Progressive Northwestern Insurance Company, Superior Court, Judicial District of Tolland, Docket No TTD CV05-40001518S (September 6, 2006, Klaczak, J.), 2006 WL 2730423 (Conn. Super.); and Godwin v. Nationwide Mutual Fire Insurance Company, Superior Court, Docket No. CV09-70397259S (January 2, 2001, Devlin, J.), 2001 WL 84033 (Conn.Super.) [ 28 Conn. L. Rptr. 695].
The three related lawsuits involved in this dispute (the probate appeal, the bond claim lawsuit, and this subrogation action) have been consolidated for purposes of discovery and trial. But that order of consolidation (No. 114.87) does not insulate any of the parties from challenges as to the legal sufficiency of their pleaded positions. None of the plaintiffs is entitled to go to trial if the adversary can successfully demonstrate a legal insufficiency of the complaint. The consolidation order does not create a new exception to the general rule that an attorney owes no professional duty to a non-client, or to a person who has sustained no loss caused by the attorney's advice or conduct. Judicial efficiency is a laudable goal, but it is entirely discretionary and may take several forms. Prevention of multiple trials by consolidation is one form. But the striking of a legally insufficient complaint which, unless successfully replead, can also eliminate the need for any trial of that claim, is another form. It has been said that "[t]he motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279 (1989). The very same can be said of a motion to strike a legally insufficient complaint, particularly in a case such as this where the non-moving party admits in argument that the missing element — an attorney client relationship between the plaintiff and the defendant attorney — did not exist. The plaintiff's judicial efficiency argument under the particular circumstances of this case is unavailing.
CONCLUSION
For all of the reasons stated above, the motion of defendant Roberts to strike the seventh count of the complaint is granted.