United States Court of Appeals Fifth Circuit 

## FILED April 17, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________ 

### m 05-20219

_______________



### M ARK 

### N EWBY 

### , ET 

### AL 

### .,

Plaintiffs,
VERSUS 

### ENRON 

### C ORPORATION 

### , ET 

### AL 

### ., Defendants.

* * * * * * * * * * * * * * *



### C ONNECTICUT 

### RESOURCES 

### RECOVERY 

### A UT HORITY 

### , Plaintiff-Appellee,
VERSUS


### M URTHA 

### C ULLINA 

### LLP, ET 

### AL 

### ., Defendants,
H AWKINS 

### , D ELAFIELD 

### & W OOD 

### , Defendant-Appellant.2 _________________________ Appeal from the United States District Court fo r the Southern District of Texas

______________________________

Before J OLLY , S MITH , and G ARZA , Circuit Judges.
JERRY E. S MITH , Circuit Judge:
The law firm of Hawkins, Delafield & Wo od (“Hawkins”) appeals an order of remand to state court. Fi nding no error, we affirm.
I. In lat e 2000, th e Connecticut Resources Recovery Authority (“CRRA”) agreed to pay Enron Corporation (“Enron”) $220 million in exchange fo r Enron’s prom ise to make a series of p ayments to CRRA for power to be produced by CRRA over the next eleven years. Hawkins represented CRRA in the negotiations. Enron stopped making payments when it entered ban

kruptcy in December 2001, at which ti me CRRA was still owed approximat ely $200 millio n. In 2002, CRRA filed two lawsuits in Connecticut state court seeki ng recovery of that sum. One suit named a litany of Enron-related defendants; th e oth er alleged legal malpractice against th e attorneys who had represented CRRA, including Hawkins. According to CRRA, Hawkins issued a legal opi nio n stati ng that CRRA had th e statutory authori ty to enter int o th e deal, that th e deal did not threaten CRRA’s tax exempt status, and that CRRA’s b ondholders did not need to consent to th e deal. All of this, alleges CRRA, was false. While both suits were pending in state court, Hawkins used a Connecticut procedural device known as an “apportionment complaint ” to bring some of th e Enron-related defendants (“the apportionment defendants”) into th e lawsuit against Hawkins. An apportionment com plaint impleads new defendants and allo ws th e court to divide th e plaintiff’s damages among mult iple defendants based on the extent to which each defendant’s negligence caused th e damages. Aft er being made parties to th e malpractice suit, th e apportionment defendants removed th e case to federal court as a mat ter related to th e Enron bankruptcy. Because of th e connection to Enron-related mat

ters, th e case was transferred from th e District of Co nnecticut to the Southern Di strict of Texas.
The district court acc epted j uri sdiction of th e malpractice suit in its post-apportionment fo rm
. The court found, and we agree, that the inclusio n of th e apportionment defe ndants i n th e malpractice suit is th e sole source of federal jurisdiction over the malpractice suit. CRRA mo ved to stri

ke Hawkins’s apportionment com plaint fo r failure to state a claim under Connecticut law, and the district court granted the motion, thereby removing the apportionment defendants from th e malpractice suit.
Because removal of th e apportionment defendants destroyed th e basi s fo r federal jurisdiction, th e district court remande d th e mal-3

practice suit to state court. Hawki ns argues on appeal that t he court erred i n striking the apportionment com

plaint and that the case should be allo wed to conti nue in federal court wit h t he apportionment defendants in tow.

II. The rema nd order relies on th e district court’s int erpretation of th e Connecticut law on apport io nment

. We review a district court ’s interpretation of state law d e novo
. See Hart v. Bayer Corp. , 199 F.3d 23 9, 243 (5th Cir. 2000). In Connecticut, a motion to strike a co mplaint admit s well-pleaded facts and implications th erefrom as true but does not admit legal conclusions or th e truth or accuracy of opinions stated in the pleadings. Emerick v
. Kuhn , 737 A.2d 456, 461 (Conn. App. 1999). The court should grant a mo tion to stri ke only if it asserts concl

usions of law that the facts alleged do not support. M ora v. Aetna Life & Cas. Ins. Co. , 535 A.2d 390, 392 (Conn. App. 1988).
CRRA argues that th e apportionment complaint is legally insufficient b ecause, on i ts face, it does not meet th e requ ir ements of Connecticut law. Apportionment complaints are specifically authorized by Connecticut General Statutes §§ 52-102b and 52-572h.
Section 52-572h esta

blishes a system of com parati ve negligence whereby defendants are entitled to have damages app ortioned amo ng all parti es whose negligence contributed to th e plaint iff’s injury. The statute limit s this com parati ve negligence r egime to negligence actions invo lving “personal injury, wrongful death or damage to property .” C ONN

. G EN

. S TAT

. § 52-572h(b). Section 52- 572h th us creates a right of apportionment in certai n cases. Section 52-102b outlines the procedures used to file an apportionment complaint

. See Lostritto v. Cmty. Action Agency , 848 A.2d 418, 427 (Conn. 2004).
The parti es agree on appeal that Hawkins’s apportionment com

plaint is not proper under §§ 52-572h and 52-102b. Because the underlying leg al malpractice suit does not involve personal injury, wrongful death, or damage to property, th e statutory right to apportionment is inapplicable. Hawkins argues, however, that Connecticut common law establishes an ext ra-statutory right to file an apportionment cla im in negligence cases that do not involve personal injury, wrongful death, or damage to property

. The district court held that th e com mo n law of Connecticut does not create such a right. The court also struck th e apportionment complaint on two other grounds. First, th e underlying suit alleges legal malpractice, and § 52-572h fo rbids apportionment in breach of fiduciary duty claims. Second, by bringing Enron defe ndants i nt o th e case, the apportionment com

plaint resulted in a mixture of negligence and int entional tort claims, which is fo rbidden under Connecticut apportionment law. Each of th ese grounds is sufficient to def

eat the apportionment complaint, so Hawkins must overcome all of th em to prevail on appeal. If the apportionment complaint fails, it fo llo ws that the remand order is proper, because inclusio n of th e apportionment defendants is th e sole basis of federal jurisdiction. III. Hawkins contends that, as a mat ter of Connecticut law, a com

mo n law right to file an apportionment com

plaint in negligence cases not4

invo lving personal injury, wrongful death, or property damage was recognized in Williams Ford, Inc. v. Hartford Courant Co. , 657 A.2d 212 (Conn. 1995). Williams Ford eliminat ed th e contri butory negligence def

ense in negligence cases not already covered by § 52-572h, replacing it wit h a com parati ve neg ligence scheme that assigns fault between plaint iff and defendant. The stated objective in so holding was to “assure that th e body of th e law



### SS both com mo n and statutory



### SS remains coherent and consistent.” Williams Ford, 657 A.2d at 225 (i nt ernal quotations omitted).
Williams Ford nowhere ment io ns apportionment or any similar concept. Hawkins argues, however, that because Willi ams Ford extended th e com

parati ve negligence regime t o all negligence cases, it fo llo ws that th e related right of apportionment was likewise extended, via th e com

mo n law, t o negligence cases not covered by § 52-572h.
The Co nnecticut courts si nce W illiams Ford have not read th e case to stand f or that proposi tion. Only o ne unpublished trial court opi nio n supports Hawkins’s th eory
. S ee Vona v. Lerner , 1998 WL 437337, at *2 (Conn. Super. 1998). The majority of Connecticut decisio ns, including mo re pe rsuasi ve appellate authori ty, have not recognized any link between Williams Ford and apportionment. Connecticut courts ty

picall y refuse to allow apportionment claims in legal malpractice actions such as the one here, because legal malpractice claims do not meet th e § 52-572h requirement that personal injury, wrongful death, or property damage be alleged. 1 Thus fo r the majority of Connecticut courts, th e fact th at legal malpractice actions plainly fall o utside the bounds of § 52-572h has been th e dispositive factor in rejecting apportionment claims in such cases. Hawkins’s th eory of th e co mmo n law apportionment claim is unsupported by th e bulk of state law authori ty

. We agree with the district court that th ere is no right to f ile a common law apportionment claim in Connecticut. 2

IV. The district court struck th e apportionment c om plaint also because § 52-572h states that

1 See, e.g. , Carpenter v. Law Offices ofDressler & Assocs., LLC , 858 A.2d 820, 823-24 (Conn. App.) (ho lding that in a legal malpractice case, (continued...) 1 (...continued)

“the court lacked subject matter jurisdiction over the apportionment action because § 52-102b(a) limits apportionment to

. . . ‘causes of action based on negligence

. . . to re cover dam age s resulting from personal injury, wrongful death or damage to property’”), cert. denied, 863 A.2d 700 (Conn. 2 004). S ee also Gauthier v. Kearns , 2000 WL 727185, at *4-*5 (Conn. Super. 2000) (holding that the availability of an apportionment claim in a legal ma lpractice action depends on whether such a claim alleges personal injury, wrongful death, or property damage); S

h evlin v. Shafran , 2001 WL 1468629, at *3 (Conn. Super. 2001) (reasoning that “the plaintiff claims only e conomic loss and not physical damage to or loss of use of property,” apportionment was unavailable in a legal ma lpractice case); Anderson v. Bitondo , 1998 WL 279810, at *1 (Conn. Super. 1998) (explaining that “[s]ince the claims for which apportionment is sought are not within the scope of the apportionment statute, the motion to strike all counts of the apportionment complaint is granted”).

2 Hawkins’ apportionment complaint was explicitly filed under §§ 52-572 h and 52-102b, not under a common law theory. Hawkins apparently urged the common law basis for its claim only after discovering that the statutes bar apportionment in legal malpractice cases.5

“[t ] his section shall not apply to breaches of trust or of oth er fiduciary obligation.” C O NN

. G EN

. S TAT

. § 52-572h(k). Connecticut caselaw ind i cates that legal malpractice claims qualify a s breach of fiduciary duty claims for purposes of th e statute. See Andrew s v. Gorby , 675 A.2d 449, 453 (Conn. 1996) (citi ng Matza v. Matza , 627 A.2d 414, 423-24 (Conn. 1993). 3 Hawkins makes no meaningful objection to th e notion that it s apportionment claim runs afoul of § 52-572h(k). Because the underlying legal malpr a ctice claim is properl y characterized as a claim fo r breach of fiduciary obligation, the district court correctly determined t hat apportionment is not appropriate.

V. The district court’s final justification is that th e inco rporation of th e apportionment com

plaint int o th e case resulted in th e co-m ingling of negligence and non-negligence claims, which is prohibited by statute. Section 52-572h(o) states that “there shall be no apportionment of liabilit y o r damages between parti es liable fo r negligence and parties liable on any basis other than negligence.”
CRRA alleged both negligence and nonnegligence claims against th e apportionment defendants, but Hawkins argues that it s apportionment com

plaint inco rporates only th e negligence claims. A plain reading of the apportionment com

plaint , however, does not support thi s contention. Nowhere does th e apportionment com plaint state that Hawkins disavows th e int entional tort claims agai

nst the apportionment defendants or th at it is inco rporati ng only th e negligence cla ims. The complaint mentions CRRA’s Enron-related lawsuit a n umber of ti mes, and it is never evident th at Hawkins wished to inco rporate only some of th e claims from th at suit. The apportionment com plaint is vague as to exactly what it alleges, and th e district court was correct to rej ect Hawkins’s contention th at it s com

plaint inco rporated only negligence claims.
Moreove r, th e apportionment complaint s pecifically inco rporates allegations of aid ing and abetti ng against th e apportionment defendants. As the district court noted, aiding and abetti ng liabilit y arises from an active awareness of th e tortious conduct of th e pri ncipal a ctor and does not sound in negligenc e. 4 Thus, by th e com

plaint ’s own terms, the apportionment defendants ar e “parti es liable on any basis other than negligence.”
Hawkins of

fers no response to this poi nt on appeal . Accordingly, § 52-572h(o) forbids Hawkins’s attem

pt to bring th e apportionment defendants into the legal malpractice suit. 5

3 See also Whitaker v. Erdos & Maddox , 2000 WL 1862127, at *4 (Conn Super. 2000) (holding that apportionment was unavailable for a legal ma lpractice claim because by definition the claim involved a breach of fiduciary obligations); Shevlin v. Shafran , 2 001 WL 1468629, at * 3 (Conn. Super. 2001). 4 The district court also noted that CRRA’s original complaint against Hawkins alleges breach of contract as well as negligence. Hawkins is therefore potenti ally 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 ma kes no response to this point on appeal.

5 Hawkins contends that even if its apportionment complaint is improper because it ma kes non-negligence allegations, the remedy is no t to strike the entire complaint b ut to strike only the (continued...)6

For th e fo regoi

ng reasons, th e district court did not err in stri

king Hawkins’s apportionment com

plaint, and the remand order was proper. The j udgment 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.