Rosario Lappostato v. Glenn Terk
CV106009815S
????Decided: January 18, 2012
The defendant moves to dismiss the plaintiff’s complaint in its entirety on the ground that the plaintiff lacks standing to assert his claims because he does not allege an attorney-client relationship with the defendant. ? The motion to dismiss count one, alleging negligent misrepresentation, is denied. ? The motion to dismiss count two, alleging legal malpractice, is granted.
FACTS
On April 9, 2010, the plaintiff, Rosario Lappostato, filed a two-count complaint against the defendant, Glenn Terk, alleging negligent misrepresentation and legal malpractice. ? The complaint alleges the following relevant facts. ? The defendant is an attorney licensed to practice law in Connecticut. ? In September 2007, the plaintiff was approached by Anthony Quintiliani, who asked the plaintiff to loan him money to help pay for the acquisition of millions of dollars held overseas (?scam?). ? Quintiliani promised the plaintiff a share in the money if he provided the loan. ? To reassure the plaintiff of the legitimacy of the scam, Quintiliani introduced the plaintiff to the defendant. ? The plaintiff and the defendant thereafter met on numerous occasions in 2007 and 2008. ? According to the plaintiff, during and subsequent to these meetings, the defendant made numerous misrepresentations of fact to the plaintiff, verbal and written, including that the defendant had investigated the scam and that it was legitimate, that he had received documentation which proved the legitimacy of the scam, that he had received information from independent sources which proved the legitimacy of the scam, that he had confirmed that proceeds from the scam would be wired into his bank account within a matter of days, and that he had verified that an international bank was holding millions of dollars in an account in Quintiliani’s name.
On June 21, 2010, the defendant filed an answer and special defense, asserting that any damages suffered by the plaintiff were by his own negligence. ? On June 22, 2010, the plaintiff filed an answer, denying the allegations in the special defense. ? Thereafter, on September 12, 2011, the defendant filed the present motion to dismiss for lack of subject matter jurisdiction. ? On September 30, 2011, the plaintiff filed a memorandum of law in opposition to the motion to dismiss. ? The defendant filed a reply memorandum on October 19, 2011. ? Thereafter, on January 4, 2012, the defendant filed a supplemental brief in support of his motion to dismiss, supplementing his filing with a recent superior court decision.
DISCUSSION
Motion to Dismiss Standard
?A motion to dismiss ? properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.? ?(Internal quotation marks omitted.) ?Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). ??A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.? ? (Internal quotation marks omitted.) ?Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). ??The grounds which may be asserted in [a motion to dismiss] are: ?(1) lack of jurisdiction over the subject matter; ?(2) lack of jurisdiction over the person; ?(3) improper venue; ?(4) insufficiency of process; ?and (5) insufficiency of service of process.? ?Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book ??143, which is now ??10?31. ??The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ?Practice Book ??10?31(a).? ?(Internal quotation marks omitted.) ? Wilcox v. Webster, supra, 294 Conn. 213.
?[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.? ?(Internal quotation marks omitted.) ?Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). ??[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ? clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.? ?(Internal quotation marks omitted.) ?Wilcox v. Webster Ins. Co., supra, 294 Conn. 213?14. ??It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.? ?(Internal quotation marks omitted.) ?Id., 214.
Parties’ Arguments
The defendant moves to dismiss the plaintiff’s complaint on the ground that the plaintiff lacks standing to assert negligent misrepresentation and legal malpractice claims because the plaintiff never had an attorney-client relationship with the defendant.
In opposition, the plaintiff argues that he does have standing to assert his claims because he was the intended and foreseeable beneficiary of the defendant’s services, as alleged in his complaint.1??According to the plaintiff, Connecticut courts have repeatedly held that non-clients may, in certain circumstances, bring claims against lawyers who have conveyed misinformation to them. ? In support of his argument, the plaintiff submits, as exhibits to his memorandum of law, letters from the defendant to the plaintiff, excerpts from the defendant’s deposition and excerpts from the deposition of Giulio Cessario.2
In reply, the defendant argues that the plaintiff does not contest that he had no attorney-client relationship with the defendant, and under Connecticut law, attorneys are not liable to persons other than their clients for negligent rendering of services. ? The defendant also argues that the court cannot take the plaintiff’s exhibits into account on the motion to dismiss because supplemental evidence is improper under the rules of practice.
The Plaintiff’s Exhibits
?When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ? In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.? ?(Internal quotation marks omitted.) ? Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). ??In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ? other types of undisputed evidence ? and/or public records of which judicial notice may be taken ? the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ? Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ? If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ? or other evidence, the trial court may dismiss the action without further proceedings ? If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ? or only evidence that fails to call those allegations into question ? the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.? ?(Citations omitted; ?emphasis in original; ?internal quotation marks omitted.) ?Id., 651?52. ? To the extent necessary, the court will consider the evidence submitted by the plaintiff.
Count One: ?Negligent Misrepresentation
The defendant contends that the plaintiff lacks standing to assert a claim for negligent misrepresentation because the plaintiff did not have an attorney-client relationship with the defendant and, therefore, the defendant owed no duty to the plaintiff. ??The existence of a duty of care is an essential element of negligence ? A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.? ?(Internal quotation marks omitted.) ?Ward v. Greene, 267 Conn. 539, 547, 839 A.2d 1259 (2004).
In Cambridge Factors v. Sturges & Mathes, Superior Court, judicial district of Waterbury, Docket No. 107418 (July 15, 1992, McDonald, J.) (7 Conn. L. Rptr. 110), the plaintiff brought a negligent misrepresentation claim against a law firm for false information contained in an opinion letter. ? On a motion to strike, the court rejected the defendant’s argument that it could not be held liable because there was no attorney-client relationship between the plaintiff and the defendant, and therefore the defendant owed no duty to the plaintiff. ? Id. In finding that the plaintiff had sufficiently alleged a cause of action for negligent misrepresentation, the court relied on Terramar, Inc. v. Ginsburg & Ginsburg, Superior Court, judicial district of New Haven, Docket No. 294321 (April 5, 1991, Dorsey, J.) (3 Conn. L. Rptr. 820). ? In Terramar, ?the court held that an attorney or law firm could be liable to a third party for negligent misrepresentation in drafting erroneous opinion letters. ? The court noted that opinion letters ? do not constitute advice for clients, but rather are written for use by such third parties, and thus the duty of loyalty to the client is not compromised by allowing liability.? ? Cambridge Factors v. Sturges & Mathes, supra, 7 Conn. L. Rptr. 110.
In the present case, the complaint alleges that the defendant, through letters and verbal statements, represented that he had investigated the scam and that it was legitimate, had received documentation which proved the legitimacy of the scam, had received information from independent sources which proved the legitimacy of the scam, had confirmed that proceeds from the scam would be wired into his bank account within a matter of days, and had verified that an international bank was holding millions of dollars in an account in Quintiliani’s name.
The plaintiff also submitted five letters written by the defendant and directed to the plaintiff. ? In these letters, the defendant stated that he represented Quintiliani; ?that he verified the existence of the account with the Canadian Imperial Bank of Commerce in Quintiliani’s name; ?that the account holds $9,006,000; ?that he received confirmation that the funds would be wired into his trustee account within three to four days; ?that the plaintiff would be receiving a check from the defendant immediately upon receipt of the funds; ?that the bank was conducting a due diligence investigation and when completed, the funds would be released into Quintiliani’s funds account; ?and finally that the funds had arrived and Quintiliani needed ?a yellow ticket? and the plaintiff would be repaid for his loans.
Additionally, the plaintiff submitted excerpts from the defendant’s deposition where the defendant testified that he wrote these letters at Quintiliani’s direction. ? The defendant also testified that he wrote the letters with the belief that the plaintiff would rely on the information contained in the letters.
Although there is no requirement that the plaintiff have been in privity with the defendant in order to have standing to assert a negligent misrepresentation claim, the court must, nonetheless, be mindful of any impact on public policy in permitting the plaintiff to hold the defendant liable for negligent misrepresentation. ? By subjecting the defendant in the present case to liability, there is no possibility of encroaching upon either the attorney-client privilege or the defendant’s ethical obligation to advocate zealously on behalf of his client. ? Such public policy concerns are tempered by the fact that the letters were written by the defendant at Quintiliani’s express instruction, for use by the plaintiff, and for Quintiliani’s own business purposes. ? The letters did not constitute advice to Quintiliani. ? Accordingly, the court finds that the plaintiff has standing to assert the negligent misrepresentation claim against the defendant. ? The motion to dismiss count one is denied.
Count Two: ?Legal Malpractice
The defendant moves to dismiss count two on the ground that the plaintiff lacks standing to assert a legal malpractice claim because the plaintiff never had an attorney-client relationship with the defendant.
?As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services.? ?Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). ??[A]n exception to this general rule [exists] when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney’s services.? ?Id. ?Determining 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 ? A central dimension of the attorney-client relationship is the attorney’s duty of [e]ntire devotion to the interest of the client.? ?(Citations omitted; ?internal quotation marks omitted.) ?Id., 245?46; ?see Mozzochi v. Beck, 204 Conn. 490, 501, 529 A.2d 171 (1987) (noting the chilling affect of allowing a third party to intrude into an attorney’s primary duty of loyalty to the client).
In Krawczyk v. Stingle, supra, 208 Conn. 240, the issue before our Supreme Court was ?whether an attorney’s negligent failure to arrange for timely execution of estate planning documents permits the intended beneficiaries of the estate to pursue a cause of action for legal malpractice.? ? Our Supreme Court held that the trial court erred in denying the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict based on the argument that the defendant did not have a duty to the plaintiffs. ?Id., 243?44. ? The Supreme Court explained that, under the circumstances, an attorney’s obligation of devotion to his client ?would be undermined were an attorney to be held liable to third parties if, due to the attorney’s delay, the testator did not have an opportunity to execute estate planning documents prior to death. ? Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. ? Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen.? ?Id., 246?47.
In the present case, it is undisputed that the defendant was hired by Quintiliani to render legal services to Quintiliani, not the plaintiff. ? The issue before this court is whether, under the facts as alleged by the plaintiff and supported by the plaintiff’s supplemental evidence, the plaintiff was the intended or foreseeable beneficiary of the legal services rendered by the defendant to Quintiliani.
The complaint alleges that the plaintiff ?was the intended and/or foreseeable beneficiary of one or more of the statements made by [the defendant].? ? The allegations of the complaint indicate that the plaintiff was to benefit financially from the scam, i.e., the plaintiff would share in the millions of dollars acquired from the overseas bank. ? The plaintiff alleges that the defendant was negligent in that he ?failed to reasonably investigate facts before representing them to [the plaintiff] as true; ?[h]e failed to inform [the plaintiff] that his sole source of information was Anthony Quintiliani; ?[h]e failed to take any steps to determine whether the [s]cam was legitimate; ?[and][h]e failed to warn [the plaintiff] that he, [the defendant], had not verified or investigated any of the matters about which he was communicating with [the plaintiff].?
The plaintiff submitted five letters written by the defendant and directed to the plaintiff. ? In two of the letters, the defendant stated that he represented Quintiliani. ? In general, the letters describe the progress of a purported transfer of funds from a Canadian bank to Quintiliani’s control.
In determining whether the defendant owed a duty to the plaintiff, Krawczyk directs the court to look principally to whether the primary or direct purpose of the transaction between the defendant and Quintiliani was to benefit the plaintiff, as well as ?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.? ?Krawczyk v. Stingle, supra, 208 Conn. 245?46.
There is no indication in the complaint or supplemental evidence that the primary or direct purpose of any legal transactions between the defendant and Quintiliani was to benefit the plaintiff. ? Rather, the primary purpose of any transaction between the defendant and Quintiliani was to obtain, for Quintiliani, the alleged millions of dollars in the foreign account. ? Thus, the defendant’s legal services were retained and provided primarily to benefit Quintiliani, not the plaintiff, regardless of the fact that, had the scam been legitimate, the plaintiff would have incidentally benefitted. ? The plaintiff was, in essence, an investor or lender. ? The plaintiff agreed to lend money to Quintiliani, and in return, the plaintiff was promised a return on this investment in the form of repayment of his loan as well as a share in the millions of dollars in the overseas bank account. ? The defendant was hired by Quintiliani, the borrower, to further Quintiliani’s interests in obtaining the overseas money, not those of the plaintiff, the lender, in obtaining a return on his investment.
The circumstances of the present case indicate that the defendant was retained to further the interests of Quintiliani, not the plaintiff. ? Thus, ?[t]he imposition of a concomitant duty to protect the [plaintiff’s] interests would interfere with the defendant’s duty of undivided loyalty to [his] client.? ? Gould v. Mellick & Sexton, 263 Conn. 140, 155, 819 A.2d 216 (2003).
Under these circumstances, the defendant did not owe a duty of care to the plaintiff. ? Accordingly, the court finds that the plaintiff does not have standing as an intended third-party beneficiary to assert a claim for legal malpractice against the defendant. ? The motion to dismiss count two is granted.
Domnarski, J.
FOOTNOTES
FN1.?The plaintiff also argues that the defendant’s motion goes to the legal sufficiency of the plaintiff’s complaint and is inappropriate for a motion to dismiss. ? According to the plaintiff, the defendant’s motion should be treated as a motion to strike, which was untimely filed, and should be denied on those grounds. ? Alternatively, the plaintiff argues that the defendant’s motion is a motion for summary judgment. ? The plaintiff contends that genuine issues of material fact exist and the motion should be denied. ??The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ? Practice Book ??10?31(a).? ?(Internal quotation marks omitted.) ? Wilcox v. Webster, supra, 294 Conn. 213. ? Thus, the defendant’s motion to dismiss is proper and timely filed..??FN1.?The plaintiff also argues that the defendant’s motion goes to the legal sufficiency of the plaintiff’s complaint and is inappropriate for a motion to dismiss. ? According to the plaintiff, the defendant’s motion should be treated as a motion to strike, which was untimely filed, and should be denied on those grounds. ? Alternatively, the plaintiff argues that the defendant’s motion is a motion for summary judgment. ? The plaintiff contends that genuine issues of material fact exist and the motion should be denied. ??The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ? Practice Book ??10?31(a).? ?(Internal quotation marks omitted.) ? Wilcox v. Webster, supra, 294 Conn. 213. ? Thus, the defendant’s motion to dismiss is proper and timely filed.
FN2.?The deposition excerpts failed to identify Giulio Cessario or his role in relation to the present case. ? The plaintiff’s memorandum of law notes the deposition testimony as support for the proposition that the defendant knew of the illegitimacy of the scam..??FN2.?The deposition excerpts failed to identify Giulio Cessario or his role in relation to the present case. ? The plaintiff’s memorandum of law notes the deposition testimony as support for the proposition that the defendant knew of the illegitimacy of the scam.
Domnarski, Edward S., J.