WILSON J. TROMBLEY, Judge.
I. Nature of the Proceedings
This case involves, inter alia, a claim by the plaintiff that the defendant, who while acting as the attorney for the plaintiff's brother, allegedly committed malpractice relative to her and/or violated his fiduciary duties which the defendant attorney allegedly owed the plaintiff. More particularly, the plaintiff alleges in her complaint that she and her brother are two of the eight children of Jeanne Lachance, who died on February 21, 2007, resulting in her brother, Clement, the defendant's client, and her sister, Giselle, being appointed co-executors of the mother's estate by the Bristol probate court. The court apparently probated the mother's will that left her entire estate equally to the eight children.
The plaintiff further alleges that in April 2004, her mother, with the assistance of Clement and the defendant, but over the plaintiff's objection, obtained a reverse mortgage on the family home in Bristol. The plaintiff claims that the defendant, who was the attorney of record for the estate, represented Clement and his spouse in the purchase of a condominium unit. The purchase price was allegedly paid for from the balance remaining, at the time of the mother's death, on the reverse mortgage. The plaintiff alleges that in his preparation of the HUD-1 form on behalf of Clement and his spouse, the defendant identified five of the siblings, including the plaintiff, as "borrowers" relative to the condominium purchase, and that the defendant did so without the plaintiff's knowledge or permission. Apparently, on the instruction of Clement, the plaintiff and the other siblings were named as grantees on the deed to the condominium unit, also without the knowledge or CT Page 11141 permission of the plaintiff.
Notably, however, at the argument at short calendar on March 30, 2009, both parties explained their particular version of the facts which were markedly different. The motion to strike addresses three of the four counts of the plaintiff's complaint, which consists of theories based on forgery, legal malpractice, a breach of a fiduciary relationship and the alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA). Additionally, the defendant moves to strike the plaintiff's claims for prejudgment interest, punitive damages and attorneys fees from the plaintiff's prayers for relief.
Although, as hereinafter acknowledged, this court, in addressing a motion to strike, must interpret the plaintiff's allegations broadly and in a light most favorable to the plaintiff, on the record, the defendant's attorney related an entirely different scenario than that offered and pled by plaintiff's attorney, which, if true, could ultimately once discovery is completed, provide the defendant with a legitimate challenge via a motion for summary judgment. The defendant claims that the mother, prior to her death, established a bank account for the reverse mortgage funds solely in Clement's name. The defendant thus claims that the funds were not part of the probate estate and were his at the moment of his mother's death. Apparently, at the closing, which was not financed by a mortgage from a federally insured bank, thus negating the need to ever use the HUD-1 form, the plaintiff simply instructed his attorney, the defendant, to add the names of the other siblings, including that of the plaintiff. Clement's motivation for doing so was not disclosed, but it was the defendant's position that he "gifted" an interest in his newly purchased residence to the other siblings. Moreover, this scenario was not contradicted by the plaintiff's attorney.
This court has reviewed the short calendar transcript, which was received on June 4, 2009, in addition to plaintiff's complaint, the defendant's motion and accompanying memorandum and the plaintiff's opposing memorandum. The court finds that neither count one (forgery) nor count four (CUTPA) are legally sufficient, therefore, said counts ought to be and are stricken. In light of that action, the court will strike the claims for prejudgment interest, punitive damages and attorneys fees from the plaintiff's prayers for relief. The motion to strike count three (breach of fiduciary duty), however, is denied.
II. Motion To Strike
In deciding a motion to strike the court must interpret the facts and make reasonable inferences from the facts broadly in a light most favorable to the plaintiff.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.)
Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771,
802 A.2d 44 (2002). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.)
Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378,
698 A.2d 859 (1997). It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted.
Doe v. Board of CT Page 11142 Education, 76 Conn.App. 296, 299-300 (2003).
A. Count One — Forgery
Count one consists of allegations that the defendant attorney, without any permission from the plaintiff, without any notification to the plaintiff, in preparing the HUD-1 form (Real Estate Settlement And Procedures Act of 1974, 12 U.S.C. Section 2601, et seq. ("RESPA")), represented on the form that the plaintiff was a "borrower" in connection with the purchase of the condominium, a transaction for which the plaintiff was hired by the defendant's brother. The plaintiff claims that the defendant, by so executing the HUD-1 form, committed forgery, thus entitling the plaintiff to punitive double damages pursuant to General Statutes Section 52-565. The court agrees with the plaintiff that the penal statutes are an appropriate guide to determine whether a civil forgery count can withstand the challenge of a motion to strike. Lauder v. Peck, 11 Conn.App. 161, 166 (1987). In reviewing Sec. 53a-139, however, which requires a "written instrument" and Sec 53a-137(1), which defines the term, this court finds that the HUD-1 was not a "written instrument" under the statute, which requires that the document be "used to the advantage or disadvantage of some person." The court agrees with the defendant that the purpose of the document is to disclose the required information to the parties. The instrument in and of itself is not and cannot be used for the advantage or disadvantage of anyone. Moreover, the allegations do not fit the definition of " falsely makes" in Sec. 53a-137(4), as there is no "ostensible maker." The defendant attorney was the maker. For an excellent discussion of the cause of action based on alleged civil forgery see Bethea v. Olmstead, CV-02-169072, Superior Court, Judicial District of Waterbury, Pittman, J. (September 27, 2002) [33 Conn. L. Rptr. 129].
52-565 provides: Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby.
53a-139(a) provides, in pertinent part:
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A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he
falsely makes, completes or alters a written instrument or issues or possesses any
written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed, will, codicil, contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise
affect a legal right, interest obligation or status.
53a-137(1) defines " written instrument" as:
[A]ny instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.
Sub-paragraph (4) provides:
A person
"falsely makes" a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the
ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof. Emphasis added.
B. Count Four — CUTPA
As to count four, a broad reading of this count clearly compels this court to agree with the defendant that the CUTPA count is derivative of count one. Therefore, based on the court's ruling in count one, count four ought to be and is stricken. Moreover, this court does not find that a simple real estate closing transaction implicates the entrepreneurial aspects of the practice of law, as defined by our Supreme Court. If it did, the members of our profession, who conduct real estate closings would be at risk for CUTPA claims on a daily basis. "Our CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is a part of the entrepreneurial aspect of practicing law." Suffield CT Page 11143 Development Ass'n. v. National Loan Investors, 260 Conn. 766, 781 (2002).
C. Count Three — Breach of Fiduciary Duty
As to count three, the defendant correctly points out that the plaintiff is alleging that there was no attorney-client relationship between the parties to this action, yet, at the same time bases the theory of a breach of fiduciary duty on the existence of some fiduciary relationship, which certainly is a characteristic of an attorney-client relationship. The plaintiff, however, as antithetical as these alternative causes of action may appear, is entitled under Connecticut law to plead in this manner. "Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Read v. Plymouth, 110 Conn.App. 657, 661-62, cert. denied, 289 Conn. 955 (2008). The court will, therefore, allow the third count to stand.
D. The Prayers for Relief
The defendant moves to strike the plaintiff's claims, set forth in her prayers for relief, which seek an award of prejudgment interest, punitive damages and attorneys fees in addition to the usual request for money damages. In light of the court's action in striking the first and fourth counts, there is no statutory basis upon which the plaintiff can recover prejudgment interest. There is no allegation, pursuant to General Statutes Section 37-3a, that the defendant retained any funds allegedly owed by the defendant to the plaintiff. The plaintiff alleges in paragraph #18 of the complaint, which is incorporated into counts two and three, that the reverse mortgage funds were paid to the defendant's law firm as trustee and were then paid over to Clement and his spouse to enable the couple to purchase the condominium unit. There is no allegation that either the defendant or his firm retained any of those funds, with the possible exception of a reasonable attorneys fee for conducting the closing. If successful in recovering damages under counts two and/or three, the plaintiff would not be entitled to the statutory prejudgment interest.
37-3a provides, in pertinent part:
Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the
detention of money after it becomes payable.
Emphasis added.
The plaintiff's claim for punitive damages was made pursuant to section 52-565, upon which the forgery count, now stricken, was based. There is no allegation in the plaintiff's complaint that suggests that the defendant's alleged conduct was reckless, malicious, outrageous, wanton or motivated by the evil or malicious purposes. Berry v. Loiseau, 223 Conn. 786, 811 (1992); L.F. Pace and Sons, Inc. v. Travelers Indemnity Co., 9 Conn.App. 30, 48, cert. denied, 201 Conn. 811 CT Page 11144 (1986). As to the claim for attorneys fees, given the court's action in striking the two statutory counts and given the absence of any allegations by the plaintiff of any contract between the plaintiff and the defendant, there is no basis upon which attorneys fees could be awarded even in the event that the plaintiff was successful on the remaining counts. In Connecticut, attorneys fees, as an element of punitive damages, may be recovered by the successful party in a civil action against the unsuccessful party by statutory provision or by contract. Id. at page 48. None of those conditions apply to this case, once counts one and four have been stricken by the court.
III. Conclusion
For the above reasons, the defendant's motion to strike counts one and four in addition to the claims for pre-judgment interest, punitive damages and attorneys fees is granted. The motion to strike count three is denied.
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