CHAPTER 8 - 8-4 BREACH OF CONTRACT

• Jurisdiction: United States

8-4 Breach of Contract

Often, a negligence or breach of fiduciary claim is accompanied by a breach of contract claim predicated on the fact that the parties entered into an agreement at the outset of the case. Courts, however, have limited breach of contract claims against attorneys to particular circumstances.

The key elements of a breach of contract action are: (1) the formation of an agreement; (2) performance by one party; (3) breach of the agreement by the other party; and (4) damages.¹¹³ The Supreme Court has recognized an action in contract against an attorney.¹¹⁴ "The Supreme Court has not [however] . . . limited the right to claim in contract to situations in which the contract is a guarantee of a particular result."¹¹⁵

In Westport Bank & Trust Co. v. Corcoran, Mallin and Aresco, the Supreme Court decided the merits of the case, which contained counts separately alleging breach of contract and legal malpractice.¹¹⁶ The Court found that the plaintiff "clearly alleged, in count one, a breach of direct attorney-client contract, and in count three, the tort of legal malpractice by an attorney with respect to his client."¹¹⁷ Likewise, in Mac's Car City, Inc. v. DeNigris,¹¹⁸ the Appellate Court did not require an allegation that a specific or express promise was breached when it held that "[a]lthough the complaint does not expressly use the word 'contract,' a fair and reasonable construction of the phrase 'the defendants breached their representation agreement' clearly states a claim in contract."

Nonetheless, the Supreme Court has held that "[p]utting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out a contract; an action in tort is for breach of duty imposed by law."¹¹⁹

Regarding claims involving the failure of performance of legal services, the Appellate Court has held that "[w]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services."¹²⁰ In Shuster v. Buckley, the plaintiff alleged a breach of contract claim against the defendant attorney on the grounds that, inter alia, the defendant attorney had failed to file certain motions and had failed to perform the duties for which he had been retained.¹²¹ The Appellate Court upheld the trial court's decision to grant summary judgment where it had applied the...