Lori T. Tabacco v. LLC (2010)

MEMORANDUM OF DECISION ON DEFENDANT THOMAS J. TABACCO'S MOTION TO STRIKE THE TWENTY-SIXTH COUNT OF THE THIRD REVISED COMPLAINT (# 161)

The court heard oral argument concerning the defendant Thomas J. Tabacco's motion to strike on November 10, 2010.   After consideration, for the reasons stated below, the motion is granted.

The standard of review on a motion to strike is well established.  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).   Legal conclusions in a complaint are not deemed to be admitted.   See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).

The motion seeks to strike the plaintiff's twenty-sixth count, which is premised on conspiracy.  “[T]o state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.”  (Internal quotation marks omitted.)  Macomber v. Travelers Property & Casaulty Corp., 277 Conn. 617, 636, 894 A.2d 240 (2006).   Here, the plaintiff attempts to join her civil conspiracy claim with allegations of fraud.

“The essential elements of an action in common law fraud, as we have repeatedly held, are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).  “Furthermore, when a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient;  the specific acts relied upon must be set forth in the complaint.”  (Internal quotation marks omitted.)  Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 628, 910 A.2d 209 (2006).

In paragraph 8 of the twenty-sixth count, plaintiff does not set forth the specific acts upon which she relies.   Instead, she states, in conclusory fashion, “Defendant, David J. Preleski, made false statements in 2006 regarding the purpose of transferring said lots.”   No specific facts are alleged.   For example, it is not alleged to whom the alleged false statements were made.   The court is unpersuaded that the required particulars are filled in here by implication.

The allegations of the twenty-sixth count are legally insufficient to plead a cause of action for fraud.   As a result, this count for civil conspiracy is not joined with an allegation of a substantive tort.   Under these circumstances, the court need not consider the plaintiff's other argument, that the allegations are insufficient to allege that defendants Thomas J. Tabacco and David J. Preleski acted together.

CONCLUSION

Accordingly, the motion to strike the twenty-sixth count is granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.