Carey & Associates, P.C. v. Jackel

• Decision Date: 30 January 2020
• Docket Number: FBTCV196085715S
• Court: Connecticut Superior Court
• Parties: Carey & Associates, P.C. v. Eric Jackel

Carey & Associates, P.C. v. Eric Jackel

No. FBTCV196085715S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

January 30, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Jacobs, Irene P., J.

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIMS (#103.00)

Jacobs, J.

BACKGROUND

On June 5, 2019, the plaintiff commenced this action against the defendant, alleging breach of contract in failing to pay an outstanding balance for legal services rendered (count one) breach of covenant of good faith and fair dealing (count two), and defamation (count three). On June 10, 2019, the defendant filed a counterclaim, alleging violation of the Connecticut Unfair Trade Practices Act (count one) and breach of contract (count two). On July 9, 2019, the plaintiff filed a motion to strike both counts of the defendant’s counterclaim. On August 1, 2019, the defendant filed an objection to the motion to strike (#106.00). The plaintiff filed a reply brief on August 7, 2019 (#107.00). The motion and objection thereto were heard at short calendar on November 25, 2019.

DISCUSSION

"A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) Cadle Co. v. D’Addario, 131 Conn.App. 223, 235, 26 A.3d 682 (2011). "The role of the trial court in ruling on a motion to strike is to examine the [pleading], construed in favor of the [pleading party], to determine whether the [pleading party] has stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640, 643 2011). "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); Melfi v. Danbury, 70 Conn.App. 679, 686, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).

Connecticut Unfair Trade Practices Act (CUTPA)

General Statutes § 42-110b(a) states that "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." "A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." Anderson v. Schoenhorn, 89 Conn.App. 666, 667, 874 A.2d 798, 800 (2005).

Only the commercial or entrepreneurial aspects of professional practice can form the basis of a CUTPA claim. Haynes v. Yale New Haven Hospital, 243 Conn. 17, 32-33, 699 A.2d 964 (1997); See also Suffield Development Associates Limited Partnership v. National Loan Investors Limited Partnership, 260 Conn. 766, 781, 802 A.2d 44, 52 (2002). "Entrepreneurial" is defined as "aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the defendant." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36.

There is Superior Court case law which holds that the collection of fees is a matter of billing which involves the entrepreneurial aspect of the practice of law and is therefore within the reach of CUTPA. See Chong Bok Park v. Kramer, Superior Court, judicial district of New Haven, Docket No. CV-03-0475833-S (Jan. 27, 2004, Licari, J.) . However, "[A]n attorney is not forbidden from presenting the client with a bill for services and his doing so does not trigger a CUTPA violation." Kegeles v. Bergman, Horowitz & Reynolds, P.C., Docket No. 391439, 1999 Conn.Super. LEXIS 3200 (Nov. 24, 1999, Levin, J.) . The court’s analysis in Proskauer Rose, LLP v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV075005353, May 19, 2008, Tobin, J. , is instructive. In Proskauer, the court sets forth factors which may lead to the conclusion that certain allegations in claims based on fee collection do not fall under CUTPA. "The defendant’s counterclaim fails to allege any wrongdoing on the plaintiff’s part other than over-billing. There are no claims that the plaintiff’s bill, for example, included time incurred in working for other clients, included time for work actually performed by associates or paralegals but billed at partner rates, or marked up or inflated billing for disbursements. Without such allegations claims of over-billing necessarily involve only the professional judgment of the plaintiff as to how to staff the defendant’s case, what pleadings to file, which experts to retain, and how to develop and implement an effective strategy to pursue the defendant’s claims. While such matters may be the basis of a claim of professional malpractice, they bear no relationship to the entrepreneurial aspects of professional practice and accordingly, cannot furnish a basis for a CUTPA claim." See also, Collins v. Rogers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV166028664, October 9, 2019, Sommer, J.

In the present action, the plaintiff alleges the following facts. On January 31, 2019, the defendant called the plaintiff seeking immediate legal services related to a demotion which was set to take place on February 8, 2019. On February 6, 2019, the plaintiff issued a retainer agreement which was signed and returned by the defendant on the same day. The plaintiff provided legal services to the defendant on the basis of an hourly retainer agreement.

On February 8, 2019, the plaintiff issued the defendant an invoice via e-mail and U.S. postal mail in the amount of $3, 210. On February 15, 2019, the plaintiff issued the defendant an invoice via e-mail and U.S. postal mail in the amount of $892.50. On February 22, 2019 and March 1, 2019, the plaintiff issued two invoices, respectively, via e-mail and U.S. postal mail for legal services previously billed in the amount of $4, 102.50. The defendant never paid the invoices. On March 5, 2019, the plaintiff issued a letter to the defendant terminating the hourly retainer agreement and requesting payment for services rendered. Between March 15, 2019 and May 3, 2019, the plaintiff sent the defendant eight additional invoices via e-mail and U.S. postal mail for legal services previously rendered. On May 3, 2019 and May 6, 2019, plaintiff alleges that the defendant filed false and defamatory reviews on the internet.^[1] On May 6, 2019, the plaintiff sent a cease and desist e-mail to the defendant regarding the defamatory review. The defendant replied on the same day with an offer to pay one-half of the amount owed. The plaintiff replied that the defendant owed the full amount due.

In the first count of his counterclaim, the defendant alleges that the plaintiff breached its duty under CUTPA by "charging unreasonable and excessive fees and engaging in immoral and unscrupulous conduct relating to...