Jan Van Eck v. West Haven Funeral Home (2010)

RULING ON MOTION TO STRIKE (# 109)

Jan Van Eck (Van Eck), representing himself, brought this action against the West Haven Funeral Home (funeral home).   He filed an amended and revised complaint (amended complaint) containing five counts on November 12, 2009.   On December 16, 2009, the funeral home moved to strike the second and fifth counts of the amended complaint (# 109).   Van Eck did not respond to the motion to strike nor did he appear for oral argument on January 4, 2010 when the matter was marked ready.

“[A] motion to strike challenges the legal sufficiency of a pleading ․” (Internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000);  see also Practice Book § 10-39.  “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.”  (Citation omitted.)  Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d. 1202 (2003).   The court is required to read the allegations of the complaint broadly.  Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002).   The court must deny the motion to strike if the facts fairly provable under the allegations of the complaint support a cause of action, but must grant it if they do not.   See Doe v. Yale University, supra, 252 Conn. 667;  Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

The amended complaint alleges the following relevant facts that are common to both the second and fifth counts:  Van Eck is the son of Gertrude Van Eck, M.D., Ph.D., who died at Middlesex Hospital on or about July 15, 2006 (¶¶ 1, 3).   Some time between July 15, 2006 and August 20, 2006, the funeral home removed his deceased mother from the hospital, “transported her to their facility, and burned her” without Van Eck's “knowledge or consent.” (¶¶ 3, 4.) The funeral home did not “make reasonable inquiry to determine the wishes of either the deceased mother or the Plaintiff son,” and “failed, refused and/or neglected to invite the Plaintiff to attend at their premises at the time they conducted” the cremation. (¶¶ 8, 9.)

In the second count, Van Eck alleges a breach of contract (¶ 15) based on factual allegations that the funeral home “issued an invoice, statement or like document” for which it was paid “by means of a funds instrument.”   He alleges the legal conclusions that these documents either constitute “a contract, intended by Defendant to be between and bind the Defendant and plaintiff's family members” or “are evidence of a contract document.” (¶¶ 12, 13.)   These conclusions are not supported by the facts alleged.

A cause of action for breach of contract, whether express or implied,¹ must allege the following elements:  “the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780, 887 A.2d 420 (2005).   The facts alleged in the amended complaint do not directly state, and are not sufficient to support an inference, that an agreement was formed between Van Eck and the funeral home, that Van Eck performed pursuant to that agreement and that he suffered damages.   To the contrary, Van Eck alleges that the funeral home transported and cremated his deceased mother without his knowledge or consent.

The court has also examined the alleged facts to determine whether they are sufficient to support a claim that Van Eck was a third-party beneficiary to a contract between the funeral home and others.  “[A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party.”   Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).  “[T]he intent of both parties to a contract determines whether a third party has contract rights as a third party beneficiary.”  Grigerik v. Sharpe, 247 Conn. 293, 310, 721 A.2d 526 (1998).  “Although ․ it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary ․ the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended ․” Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003).   To meet this test, the allegations of a complaint must be sufficient for the court to conclude that both parties to the contract intended “to confer enforceable rights in a third party.”  Grigerik v. Sharpe, supra, 247 Conn. 312.   There are no facts alleged from which the court, directly or inferentially, can conclude that the funeral home entered into any agreement in which it expressed its intent to become obliged to Van Eck as a third-party beneficiary.

In the fifth count, Van Eck alleges that the funeral home filed an appearance in the East Haven Probate Court, which is handling the estate of his deceased mother, to seek an order “to compel the Trustee of the Estate to produce certain documents, and for other purposes,” even though the funeral home is not a creditor of the estate and does not have a claim against the estate. (¶ 15.)   He further alleges that in so doing, the funeral home “tortiously interposed itself” into the probate proceedings, without standing, in a manner that will require the expenditure of funds by the trustee and diminish the value of his inheritance. (¶¶ 15, 16.)

In moving to strike the fifth count, the funeral home makes a number of factual assertions about the nature of the order filed with the probate court, the reasons why it needed to seek the order and the outcome of its request.²  These factual assertions require the court to assume facts that are not alleged in the complaint in order to reach the funeral home's legal claim that it was required to present its request for the documents to the probate court and cannot be held liable for exercising a legal right.   When the legal grounds for a motion to strike depend upon facts outside the pleading, the motion become a “speaking motion” and must be denied.  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 347-48, 576 A.2d 149 (1990).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.   Speaking motions have long been forbidden by our practice and were formerly known as speaking demurrers.”  (Citations omitted.)  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).

The court concludes that the complaint is devoid of factual allegations that expressly or inferentially support a cause of action for breach of contract and grants the motion to strike the second count of the amended complaint.   The court concludes that the defendant's motion to strike the fifth count of the amended complaint is an improper speaking motion and denies the motion to strike the fifth count.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. “An implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006)..  FN1. “An implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006).

FN2. In its motion to strike, the funeral home asserts that, as a result of this lawsuit, it had to seek the decedent's medical records related to the disposition of her remains, that the fiduciary provided it with a medical authorization to obtain the records and thus no hearing was required in the probate court.   In its memorandum, it states that the executor complied with the request and produced the records..  FN2. In its motion to strike, the funeral home asserts that, as a result of this lawsuit, it had to seek the decedent's medical records related to the disposition of her remains, that the fiduciary provided it with a medical authorization to obtain the records and thus no hearing was required in the probate court.   In its memorandum, it states that the executor complied with the request and produced the records.

Lager, Linda K., J.