United States Court of Appeals
Fifth Circuit
F I L E D
In the April 17, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-20219
_______________
MARK NEWBY, ET AL.,
Plaintiffs,
VERSUS
ENRON CORPORATION, ET AL.,
Defendants.
***************
CONNECTICUT RESOURCES RECOVERY AUTHORITY,
Plaintiff-Appellee,
VERSUS
MURTHA CULLINA LLP, ET AL.,
Defendants,
HAWKINS, DELAFIELD & WOOD,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________
Before JOLLY, SMITH, and GARZA, While both suits were pending in state
Circuit Judges. court, Hawkins used a Connecticut procedural
device known as an “apportionment com-
JERRY E. SMITH, Circuit Judge: plaint” to bring some of the Enron-related de-
fendants (“the apportionment defendants”) in-
The law firm of Hawkins, Delafield & to the lawsuit against Hawkins. An apportion-
Wood (“Hawkins”) appeals an order of re- ment complaint impleads new defendants and
mand to state court. Finding no error, we allows the court to divide the plaintiff’s dam-
affirm. ages among multiple defendants based on the
extent to which each defendant’s negligence
I. caused the damages. After being made parties
In late 2000, the Connecticut Resources to the malpractice suit, the apportionment de-
Recovery Authority (“CRRA”) agreed to pay fendants removed the case to federal court as
Enron Corporation (“Enron”) $220 million in a matter related to the Enron bankruptcy. Be-
exchange for Enron’s promise to make a series cause of the connection to Enron-related mat-
of payments to CRRA for power to be pro- ters, the case was transferred from the District
duced by CRRA over the next eleven years. of Connecticut to the Southern District of
Hawkins represented CRRA in the negotia- Texas.
tions. Enron stopped making payments when
it entered bankruptcy in December 2001, at The district court accepted jurisdiction of
which time CRRA was still owed approxi- the malpractice suit in its post-apportionment
mately $200 million. form. The court found, and we agree, that the
inclusion of the apportionment defendants in
In 2002, CRRA filed two lawsuits in Con- the malpractice suit is the sole source of feder-
necticut state court seeking recovery of that al jurisdiction over the malpractice suit.
sum. One suit named a litany of Enron-related CRRA moved to strike Hawkins’s apportion-
defendants; the other alleged legal malpractice ment complaint for failure to state a claim un-
against the attorneys who had represented der Connecticut law, and the district court
CRRA, including Hawkins. According to granted the motion, thereby removing the ap-
CRRA, Hawkins issued a legal opinion stating portionment defendants from the malpractice
that CRRA had the statutory authority to enter suit.
into the deal, that the deal did not threaten
CRRA’s tax exempt status, and that CRRA’s Because removal of the apportionment de-
bondholders did not need to consent to the fendants destroyed the basis for federal juris-
deal. All of this, alleges CRRA, was false. diction, the district court remanded the mal-
2
practice suit to state court. Hawkins argues certain cases. Section 52-102b outlines the
on appeal that the court erred in striking the procedures used to file an apportionment com-
apportionment complaint and that the case plaint. See Lostritto v. Cmty. Action Agency,
should be allowed to continue in federal court 848 A.2d 418, 427 (Conn. 2004).
with the apportionment defendants in tow.
The parties agree on appeal that Hawkins’s
II. apportionment complaint is not proper under
The remand order relies on the district §§ 52-572h and 52-102b. Because the under-
court’s interpretation of the Connecticut law lying legal malpractice suit does not involve
on apportionment. We review a district personal injury, wrongful death, or damage to
court’s interpretation of state law de novo. property, the statutory right to apportionment
See Hart v. Bayer Corp., 199 F.3d 239, 243 is inapplicable. Hawkins argues, however, that
(5th Cir. 2000). Connecticut common law establishes an ex-
tra-statutory right to file an apportionment
In Connecticut, a motion to strike a com- claim in negligence cases that do not involve
plaint admits well-pleaded facts and implica- personal injury, wrongful death, or damage to
tions therefrom as true but does not admit le- property.
gal conclusions or the truth or accuracy of
opinions stated in the pleadings. Emerick v. The district court held that the common law
Kuhn, 737 A.2d 456, 461 (Conn. App. 1999). of Connecticut does not create such a right.
The court should grant a motion to strike only The court also struck the apportionment com-
if it asserts conclusions of law that the facts plaint on two other grounds.
alleged do not support. Mora v. Aetna Life &
Cas. Ins. Co., 535 A.2d 390, 392 (Conn. App. First, the underlying suit alleges legal mal-
1988). practice, and § 52-572h forbids apportionment
in breach of fiduciary duty claims. Second, by
CRRA argues that the apportionment com- bringing Enron defendants into the case, the
plaint is legally insufficient because, on its apportionment complaint resulted in a mixture
face, it does not meet the requirements of of negligence and intentional tort claims,
Connecticut law. Apportionment complaints which is forbidden under Connecticut appor-
are specifically authorized by Connecticut tionment law. Each of these grounds is suffi-
General Statutes §§ 52-102b and 52-572h. cient to defeat the apportionment complaint,
so Hawkins must overcome all of them to pre-
Section 52-572h establishes a system of vail on appeal. If the apportionment complaint
comparative negligence whereby defendants fails, it follows that the remand order is prop-
are entitled to have damages apportioned er, because inclusion of the apportionment
among all parties whose negligence contrib- defendants is the sole basis of federal jurisdic-
uted to the plaintiff’s injury. The statute limits tion.
this comparative negligence regime to negli-
gence actions involving “personal injury, III.
wrongful death or damage to property.” Hawkins contends that, as a matter of Con-
CONN. GEN. STAT. § 52-572h(b). Section 52- necticut law, a common law right to file an ap-
572h thus creates a right of apportionment in portionment complaint in negligence cases not
3
involving personal injury, wrongful death, or Thus for the majority of Connecticut
property damage was recognized in Williams courts, the fact that legal malpractice actions
Ford, Inc. v. Hartford Courant Co., 657 A.2d plainly fall outside the bounds of § 52-572h
212 (Conn. 1995). Williams Ford eliminated has been the dispositive factor in rejecting ap-
the contributory negligence defense in negli- portionment claims in such cases. Hawkins’s
gence cases not already covered by § 52-572h, theory of the common law apportionment
replacing it with a comparative negligence claim is unsupported by the bulk of state law
scheme that assigns fault between plaintiff and authority. We agree with the district court
defendant. The stated objective in so holding that there is no right to file a common law
was to “assure that the body of the lawSSboth apportionment claim in Connecticut.2
common and statutorySSremains coherent and
consistent.” Williams Ford, 657 A.2d at 225 IV.
(internal quotations omitted). The district court struck the apportionment
complaint also because § 52-572h states that
Williams Ford nowhere mentions appor-
tionment or any similar concept. Hawkins ar-
gues, however, that because Williams Ford 1
(...continued)
extended the comparative negligence regime to “the court lacked subject matter jurisdiction over
all negligence cases, it follows that the related the apportionment action because § 52-102b(a)
right of apportionment was likewise extended, limits apportionment to . . . ‘causes of action based
via the common law, to negligence cases not on negligence . . . to recover damages resulting
covered by § 52-572h. from personal injury, wrongful death or damage to
property’”), cert. denied, 863 A.2d 700 (Conn.
2004). See also Gauthier v. Kearns, 2000 WL
The Connecticut courts since Williams
727185, at *4-*5 (Conn. Super. 2000) (holding
Ford have not read the case to stand for that
that the availability of an apportionment claim in a
proposition. Only one unpublished trial court legal malpractice action depends on whether such
opinion supports Hawkins’s theory. See Vona a claim alleges personal injury, wrongful death, or
v. Lerner, 1998 WL 437337, at *2 (Conn. Su- property damage); Shevlin v. Shafran, 2001 WL
per. 1998). The majority of Connecticut de- 1468629, at *3 (Conn. Super. 2001) (reasoning
cisions, including more persuasive appellate that “the plaintiff claims only economic loss and
authority, have not recognized any link be- not physical damage to or loss of use of property,”
tween Williams Ford and apportionment. apportionment was unavailable in a legal malprac-
Connecticut courts typically refuse to allow tice case); Anderson v. Bitondo, 1998 WL
apportionment claims in legal malpractice ac- 279810, at *1 (Conn. Super. 1998) (explaining that
tions such as the one here, because legal mal- “[s]ince the claims for which apportionment is
practice claims do not meet the § 52-572h re- sought are not within the scope of the apportion-
quirement that personal injury, wrongful death, ment statute, the motion to strike all counts of the
apportionment complaint is granted”).
or property damage be alleged.1
2
Hawkins’ apportionment complaint was ex-
plicitly filed under §§ 52-572h and 52-102b, not
1
See, e.g., Carpenter v. Law Offices of Dress- under a common law theory. Hawkins apparently
ler & Assocs., LLC, 858 A.2d 820, 823-24 (Conn. urged the common law basis for its claim only after
App.) (holding that in a legal malpractice case, discovering that the statutes bar apportionment in
(continued...) legal malpractice cases.
4
“[t]his section shall not apply to breaches of Nowhere does the apportionment complaint
trust or of other fiduciary obligation.” CONN. state that Hawkins disavows the intentional
GEN. STAT. § 52-572h(k). Connecticut case- tort claims against the apportionment defen-
law indicates that legal malpractice claims dants or that it is incorporating only the negli-
qualify as breach of fiduciary duty claims for gence claims. The complaint mentions
purposes of the statute. See Andrews v. Gor- CRRA’s Enron-related lawsuit a number of
by, 675 A.2d 449, 453 (Conn. 1996) (citing times, and it is never evident that Hawkins
Matza v. Matza, 627 A.2d 414, 423-24 (Conn. wished to incorporate only some of the claims
1993).3 Hawkins makes no meaningful objec- from that suit. The apportionment complaint
tion to the notion that its apportionment claim is vague as to exactly what it alleges, and the
runs afoul of § 52-572h(k). Because the un- district court was correct to reject Hawkins’s
derlying legal malpractice claim is properly contention that its complaint incorporated only
characterized as a claim for breach of fiduciary negligence claims.
obligation, the district court correctly deter-
mined that apportionment is not appropriate. Moreover, the apportionment complaint
specifically incorporates allegations of aiding
V. and abetting against the apportionment defen-
The district court’s final justification is that dants. As the district court noted, aiding and
the incorporation of the apportionment com- abetting liability arises from an active aware-
plaint into the case resulted in the co-mingling ness of the tortious conduct of the principal
of negligence and non-negligence claims, actor and does not sound in negligence.4
which is prohibited by statute. Section Thus, by the complaint’s own terms, the ap-
52-572h(o) states that “there shall be no ap- portionment defendants are “parties liable on
portionment of liability or damages between any basis other than negligence.”
parties liable for negligence and parties liable
on any basis other than negligence.” Hawkins offers no response to this point on
appeal. Accordingly, § 52-572h(o) forbids
CRRA alleged both negligence and non- Hawkins’s attempt to bring the apportionment
negligence claims against the apportionment defendants into the legal malpractice suit.5
defendants, but Hawkins argues that its appor-
tionment complaint incorporates only the neg-
4
ligence claims. A plain reading of the appor- The district court also noted that CRRA’s
tionment complaint, however, does not sup- original complaint against Hawkins alleges breach
port this contention. of contract as well as negligence. Hawkins is
therefore potentially liable for both negligent and
non-negligent activity. Because Hawkins is “liable
on any basis other than negligence,” apportionment
is not appropriate under § 52-572h(o). Hawkins
3
See also Whitaker v. Erdos & Maddox, 2000 makes no response to this point on appeal.
WL 1862127, at *4 (Conn Super. 2000) (holding
5
that apportionment was unavailable for a legal Hawkins contends that even if its apportion-
malpractice claim because by definition the claim ment complaint is improper because it makes
involved a breach of fiduciary obligations); Shevlin non-negligence allegations, the remedy is not to
v. Shafran, 2001 WL 1468629, at *3 (Conn. strike the entire complaint but to strike only the
Super. 2001). (continued...)
5
For the foregoing reasons, the district court
did not err in striking Hawkins’s apportion-
ment complaint, and the remand order was
proper. The judgment is AFFIRMED.
5
(...continued)
improper portions of it. Even assuming that this
were possible given the nature of the allegations,
Hawkins cites no authority indicating that such a
remedy is appropriate. In any event, Hawkins did
not suggest such a remedy to the district court.
6