Brandon Lacoff v. Galen Kelly et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 102

FACTUAL AND PROCEDURAL BACKGROUND

By complaint dated April 5, 2010 and filed on April 19, 2010, the plaintiff, Brandon Lacoff, brought this action naming as defendants, Galen Kelly and James Dwy (herinafter “Dwy”).  The complaint is in five counts.   The first count alleges that the plaintiff Brandon Lacoff entered into a contract with the defendant Galen Kelly for the purchase of property at 114 R Candlewood Shore Road, Litchfield, Connecticut which was subsequently breached by the defendant Galen Kelly.   The second count alleges fraud.   Count three alleges unjust enrichment and count four is breach of duty of good faith and fair dealing as it pertains to the contract.   The fifth count claims an arms length transaction.

The defendant, James Dwy, has filed this motion to strike the complaint and the prayer for relief with supporting memorandum as to him.   The defendant contends that the plaintiff failed to serve the co-defendant, Galen Kelly who is a necessary party to the present action.   The defendant also contends that the complaint does not properly allege a cause of action as to him.

The co-defendant has not appeared.   The plaintiff has failed to submit a memorandum of law in response to the motion to strike.   The motion appeared on the short calendar and the court denied the motion on July 26, 2010 because of improper notice to all parties.   The defendant submitted a motion for reconsideration of the motion to strike on July 30, 2010.   On August 6, 2010, the court granted the motion to reconsider and rescheduled the argument with the condition that the defendant Kelly was to be given notice of the motion to strike.   An affidavit of notice served upon Kelly was submitted to the court on September 22, 2010.   On October 4, 2010, the court heard argument regarding the motion to strike.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․, to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.   A “failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint.”  (Internal quotation marks omitted.)   Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 615 (2004).   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

The defendant requests that the court strike the complaint as to him because the plaintiff did not include a necessary party to action, that is, Galen Kelly.   The plaintiff has named Galen Kelly but did not serve Mr. Kelly as noted in the return of service to the court.   The defendant Dwy also argues that the motion to strike should be granted as to each count in the complaint because the plaintiff has failed to properly allege a cause of action as to him.

The court has reviewed each of the five counts and the allegations set forth as to the defendant Dwy. The first count which is a breach of contract contains absolutely no allegations as to the defendant Dwy. The claim in count one is that the non-appearing defendant Galen Kelly and the plaintiff entered into a contract to purchase the property for which the plaintiff made a deposit of $14,500.00.   The plaintiff contends although the contract was breached, he did not have a return of his deposit.   There are no allegations at all in relation to the defendant Dwy in count one.   Likewise, counts three and four relate directly to the contractual agreement between the plaintiff and the non-appearing defendant.   There are no allegations within these counts that create a cause of action as to the defendant Dwy. Therefore, the defendants' motion to strike as to these counts is granted.

The second and fifth counts do include facts allegations that refer to the defendant Dwy. Each of the two remaining counts provides only cursory allegations as to Dwy. The second count is defined with the heading “Fraud.”   Paragraph 16 of the Second Count contains the only mention of Dwy in that the plaintiff states:  “Further, the Seller fraudulently conveyed the above-mentioned property to Buyer 2, James Dwy. The Seller sold the aforementioned property well below the fair market value, as indicated in the Warrant (sic) Deed, however, Buyer 2 admitted to the plaintiff that he paid additional sums of money for the property undisclosed in the Contract, 1099, and Conveyance Tax Forms.”   In reviewing this paragraph, the claim is that the seller, Galen Delly, engaged in a fraudulent conveyance.   There is nothing within this paragraph that can be interpreted to be a claim of fraudulent actions on the part of the defendant Dwy. However, even if the court is to interpret this count as applying to the defendant Dwy, the sole paragraph fails to provide factual allegations that would satisfy the criteria for a cause of action in fraud.  “Fraud involves deception practiced in order to induce another to act to her detriment and which causes detrimental action ․” Carr v. Fleet Bank, 73 Conn.App. 593, 595, 812 A.2d 14 (2002) The elements of a cause of action for fraud are:  1) that a false representation was made;  2) that the party making the representation knew it to be false;  3) that the representation was made to induce action by the other party;  and 4) that the other party did so act to his or her detriment.  Sturm v. Harb Development, LLC, 298 Conn. 124, 2 A.3d 859 (2010);  Chiulli v. Zolla, 97 Conn.App. 699, 905 A.2d 1236 (2006).   The plaintiff must allege specific acts.   The mere pleading that a fraud was committed is not sufficient.  Chase Manhattan Bank v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004).   The plaintiff has not included any facts to support an allegation of fraud in this count as to the defendant Dwy. Therefore, the motion to strike count two as to the defendant Dwy is granted.

The last count contains the heading “Failure to have an arms length transaction.”   In this count the plaintiff repeats the allegations of prior counts as well as additional fact.   The count as interpreted by the court is a claim of a fraudulent conveyance by the parties Galen Kelly and James Dwy. The allegations of this count are more specific than count two as noted above.   In particular, the plaintiff alleges that:  “25.   The Buyer further alleges that the subsequent transaction between the Seller and the subsequent Buyer 2 has not been conducted as an arms length transaction.   The Seller and Buyer 2 did not act independently and it is further alleged that the parties do share a relationship with each other. 26.   The Seller has sold the above mentioned premises well below the fair market value of the property as a result of the Seller and Buyer's relationship. 27.   Further, the Seller fraudulently conveyed the above-mentioned property Buyer 2, James Dwy. The Seller sold the aforementioned property well below the fair market value, as indicated in the Warrant (sic) Deed, however, the Defendant admitted to the Plaintiff that he paid additional sums of money for the property undisclosed in the Contract, 1099, and Conveyance Tax Forms ․ 29.   Further, as a result of the Seller's false representations, fraud and engagement in illegal activity, Plaintiff sustained monetary damages.”

Although the plaintiff has included some facts as to the purchase of the property by James Dwy, the factual allegations do not support a claim for fraudulent conveyance which requires:  1) that the conveyance was made with substantial consideration, and rendered the transferor unable to meet his obligations and 2) that the conveyance was made with a fraudulent intent in which the grantee participated.  (Internal quotation marks omitted.)   Certain Underwriters at Lloyd's London v. Cooperman, 289 Conn. 383, 394, 957 A.2d 836 (2008).   The claims in count five have failed to allege either of the two essential elements of this claim

CONCLUSION

There are no facts provable in the complaint that would support a cause of action against the defendant James Dwy. Therefore, the motion to strike the complaint in its entirety as to the defendant James Dwy is granted.¹

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. Because the court has determined the motion based upon the insufficiency of the pleadings it does not address the claim of the defendant as to the failure to include a necessary party..  FN1. Because the court has determined the motion based upon the insufficiency of the pleadings it does not address the claim of the defendant as to the failure to include a necessary party.

Brazzel-Massaro, Barbara, J.