Superior Court of Connecticut.

Ernest Abate, Administrator of the Estate of Joseph Boccanfusco v. Ralph S. Loew et al.

CV106012889S

????Decided: January 18, 2012

MEMORANDUM OF DECISION

FACTS

The Plaintiff, in his capacity as Temporary Administrator of the Estate of Joseph Boccanfuso, brings this action against Attorney Ralph S. Loew, and Milwe & Loew, LLP.

His revised complaint of January 19, 2011, consists of five counts. ? Count One involves allegations of professional negligence, while Count Two alleges a breach of contract claim. ? Counts Three and Four concern claimed violations of the Connecticut Unfair Trade Practices Act (CUTPA). ? Count Five claims that the defendants breached the fiduciary duty they owed to the Plaintiff’s predecessors as co-executors.

The Defendants have moved to strike Counts Two, Three, Four and Five, in a pleading dated June 10, 2011.

In his complaint, the Plaintiff alleges that prior to his death on May 26, 2006, the decedent, Joseph Boccanfuso, was a resident of Westport, and was the owner and operator of an auto body business. ? It is claimed that his estate was valued in excess of two (2) million dollars.

The Defendant, Attorney Ralph S. Loew, a principal in the firm of Milwe & Loew, LLP, represented Criscienzo Boccanfuso, in her capacity as co-executor of the Estate of Joseph Boccanfuso. ? The will of the decedent was admitted to probate in the Probate Court for the District of Westport.

It is alleged that Attorney Loew, in the course of representing the co-executor, met with accountants, located assets of the decedent’s estate, hired professionals to prepare tax returns, and performed other tasks in representing the fiduciary.

It is claimed that in the course of representing the fiduciary, the Defendants failed to file federal or Connecticut Estate Tax returns, or to pay taxes as they became due, thus causing the estate of Joseph Boccanfuso to incur penalties as a result. ? It is claimed that the assets of the estate were depleted, and that the estate sustained damages.

Count One claims that the Defendants were negligent in the handling of the Estate, in that:

a)?? they failed to file or cause the Estate to file federal and state tax returns as required by law;

b)?in that they failed to pay or cause the Estate to pay federal and state taxes within the time required by law;

c)?in that they unreasonably delayed the assembly of necessary information, and the preparation and filing of the necessary tax returns;

d)?in that they failed and refused to cause the Estate to take reasonable steps to mitigate taxes ?

In Count Two, the Plaintiff claims that the Defendants breached their contract to represent the co-executor ?with reasonable competence and in conformity with the applicable standard of care.? ? Paragraph 33 of the second count re-alleges the claims of negligence pled in Count One of the complaint.

In Counts Three and Four, those involving claimed violations of CUTPA, various acts of negligence and reckless conduct are made against the Defendants. ? The CUTPA counts also allege that the Defendants paid themselves fees without proper approval, charged excessive attorneys fees, and made an improper payment of thirty thousand dollars ($30,000.) to themselves, or an ante mortem claim.

In Count Five, it is claimed that the Defendants breached the fiduciary duty which they owed to the co-executor, and that the Estate sustained damage as a result.

The motion to strike applies to every count, except Count One.

STANDARD OF REVIEW-?MOTION TO STRIKE

A motion to strike, filed pursuant to S. 10?39 of the Connecticut Practice Book is designed to test the legal sufficiency of a pleading. ?Ferryman v. Groton, 212 Conn. 138, 142 (1989); ?Blake v. Levy, 191 Conn. 257, 258 (1983). ? The motion admits all well pleaded facts, and the court must construe all facts in the manner most favorable to the non-moving party. ?Waters v. Autuori, 236 Conn. 820, 825?26 (1996). ? If facts deemed provable as contained in a complaint would support a cause of action, then the motion to strike must be denied. ?Vacco v. Microsoft Corp., 260 Conn. 59, 64?65 (2002).

Although all facts contained in the complaint are deemed proven, conclusions of law are not admitted. ?Maloney v. Conroy, 208 Conn. 392, 394 (1998). ? A motion to strike is properly granted if conclusions of law are unsupported by the facts alleged. ?Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).

COUNT TWO DOES NOT STATE A CLAIM FOR BREACH OF CONTRACT

As a general rule, claims involving professional negligence and breach of contract can arise from the same facts, and may be maintained in the same action. ?Stowe v. Smith, 194 Conn. 94, 198?99 (1981). ? However, a contract claim will not be permitted, where it merely makes a negligence claim, cloaked in contract language. ?Caffey v. Stillman, 99 Conn.App. 192, 197 (2003). ? Placing a contract tag on a tort claim does not change its character. ? Pelletier v. Galske, 105 Conn.App. 77, 82 (2007).

Count Two alleges that the Defendants breached their contract of representation with the co-executor, because they failed to represent the Estate ?with reasonable competence.? ? The facts, as pled on paragraph 33 of Count Two, are not sufficient to create a valid breach of contract claim. ? The fact that the language alleges that the Defendants ?failed and refused? to take steps necessary to represent the Estate, is merely a restatement of Count One.

The claims, as pled, are mere allegations of misfeasance and nonfeasance, which are properly alleged as negligent conduct.

Where a medical provider, or an attorney, promises to achieve a specific result, apart from the duty to adhere to the applicable standard of care, and the result promised is not achieved, a breach of contract claim may be asserted. ?Hill v. Williams, 74 Conn.App. 654, 659 (2003); ?DiMaggio v. Makover, 13 Conn.App. 321, 323?24 (1980). ? No such promise to achieve a specific result is pled in Count Two.

In its present form, Count Two fails to state a valid claim for breach of contract, and must be stricken.

CUTPA CLAIMS ARE PROPERLY ALLEGED

It is well settled, that in order to allege a legally sufficient claim against an attorney for a violation of the Connecticut Unfair Trade Practice Act (CUTPA), the allegations must relate to the entrepreneurial aspects of the practice of law. ?Suffield Development Associates Limited Partnership v. National Loan Investors, LP, 260 Conn. 766, 781 (2002). ? In cases involving claims of legal and medical malpractice, CUTPA does not provide a remedy for mere professional negligence. ?Haynes v. Yale?New Haven Hospital, 2443 Conn. 17, 38 (1997); ?Beverly Hills Concepts, Inc. v. Schatz, Schatz, Ribicoff & Kotkin, 247 Conn. 28, 79 (1998).

Counts Three and Four both contain claims involving an alleged failure to comply with the applicable standard of care. ? These claims do not form the basis of a CUTPA violation.

However, both counts allege claims which could be construed as entrepreneurial in nature. ? It is alleged that the Defendants paid themselves legal fees without proper authorization, and that the legal fees charged were excessive. ? It is also alleged that thirty thousand dollars ($30,000.) was paid to the Defendants, without proper approval from the Probate Court.

Construing these allegations in the light most favorable to the Plaintiff, the motion to strike Counts Three and Four must be denied.

BREACH OF FIDUCIARY DUTY PROPERLY RAISED

Count Five claims that the Defendants breached a fiduciary duty which they owed to the co-executor.

A fiduciary or other confidential relationship is characterized by a unique degree of confidence between the parties, one of whom has superior knowledge, skill or experience and is under a duty to represent the other. ?Konover Development Corp. v. Zeller, 227 Conn. 206, 219 (1994). ? Breach of a fiduciary duty does not involve the failure to adhere to an applicable standard of care, but instead implicates a duty of loyalty and honesty. ?Beverly Hills Concepts, Inc. v. Schatz, Schatz, Ribicoff & Kotkin, supra, 52.

Any attempt to expand a claim of professional negligence into one involving claims of breach of a fiduciary duty must be scrutinized carefully. ? However, rather than defining hard and fast rules concerning what constitutes a fiduciary duty, courts have chosen to leave the bar down for situations in which there is a justifiable trust and confidence on one side, and a resulting superiority and influence on the other. ?Elm City Cheese Co. v. Federico, 251 Conn. 59, 99 (1999) (Berdon, J. concurring); ?Alaino v. Royer, 188 Conn. 26, 41 (1982).

While an attorney-client relationship is usually sufficient to establish a fiduciary obligation, a fiduciary relationship may be established even in the absence of an attorney-client status. ? The determination concerning whether a fiduciary relationship exists, is a question of fact. ?Dunham v. Dunham, 204 Conn. 303, 320?22 (1987).

While the Connecticut Supreme Court has not expressly limited the application of claims of breach of fiduciary duty to cases involving fraud, self-dealing or conflict of interest, cases which have reached the court have invariably involved egregious deviations from proper ethical conduct. ?Murphy v. Wakelee, 247 Conn. 396, 400?01 (1998).

Here, it is claimed that the Defendants paid monies to themselves, at the expense of the Estate. ? Excessive billing is alleged, along with a failure to perform certain duties and obligations.

Whether this conduct is sufficiently egregious to support a finding of breach of a fiduciary duty cannot be determined via a motion to strike.

The motion to strike Count Five must be denied.

CONCLUSION

The Motion to Strike Count Two of the Plaintiff’s complaint is GRANTED. ? The Motion to Strike Counts Three, Four and Five is DENIED.

By the Court,

RADCLIFFE, J.

Radcliffe, Dale W., J.