Cynthia Debus et al. v. Roy Comp (2011)

RULING ON MOTION TO STRIKE # 112

I.

PROCEDURAL HISTORY

On September 13, 2010, the plaintiffs, Cynthia Debus, Joy Kusinski, Dawn Kusinski and Leigh Kusinski, filed a six-count amended complaint against the defendant, Roy Comp. The plaintiffs allege the following facts.   The plaintiffs are the niece and grandnieces of Alice P. Comp, who died on August 13, 2009.   Prior to her death, Alice held accounts at Sovereign Bank and Putnam Investments.   At some point in 2009, Alice changed the beneficiary on the Sovereign Bank account from Cynthia Debus to the defendant.   In counts one, two and three, which relate to the Sovereign Bank account, the plaintiffs allege that the change in beneficiary is improper due to lack of capacity, undue influence and tortious interference with a beneficial relationship, respectively.   The plaintiffs further allege that, sometime in 2009, Alice changed the beneficiary on the Putnam Investments account from Cynthia Debus, Dawn Kusinski, Leigh Kusinsi and Joy Kusinski to the defendant.   In counts four, five and six, which relate to the Putman Investments account, the plaintiffs allege that this change was also improper due to lack of capacity, undue influence and tortious interference with a beneficial relationship, respectively.   The plaintiffs' prayer for relief includes a demand for the creation of constructive trusts.

On November 10, 2010, the defendant filed a motion to strike all six counts of the plaintiffs' amended complaint on the ground that the plaintiffs have not alleged facts which would support causes of action for lack of capacity, undue influence and tortious interference with a beneficial relationship.   In addition, the defendant moved to strike paragraphs two and three from the demand for relief on the ground that the plaintiffs have not alleged facts legally sufficient to permit the imposition of constructive trusts.   The defendant also noted that paragraph two of the demand for relief should be stricken as to any constructive trust in favor of Dawn Kusinski, Leigh Kusinski and Joy Kusinski, since they are not alleged to be parties to the counts dealing with the Sovereign Bank account.   The defendant has submitted a memorandum of law in support of the motion.   The plaintiffs filed a memorandum of law in opposition on December 15, 2010, in which they represented that the motion to strike as to paragraph two of the demand for relief, insofar as it names Dawn, Leigh and Joy Kusinski, could be stricken by agreement.   The matter was heard at the short calendar on January 24, 2011.

II.

DISCUSSION

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof ․” Practice Book § 10–39.   In ruling on the motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

In its consideration, “the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120.  “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.)   Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

A. COUNTS ONE AND FOUR

Lack of Capacity

The defendant argues that counts one and four of the plaintiffs' amended complaint fail to state a claim for lack of capacity because there are insufficient allegations regarding Alice Comp's understanding of the disputed transactions.   Specifically, the defendant argues that the plaintiffs' allegations that Alice Comp was ninety-three years old and had significant physical and mental limitations are not legally sufficient to support a claim that she lacked mental capacity.   The plaintiffs contend that their allegations, stating that at the time the changes in beneficiary were made the decedent had significant limitations and as a result she did not know and comprehend her actions, are legally sufficient.   The plaintiffs also note that many of the cases cited by the defendant are distinguishable in that they involve trials on the merits, not rulings on motions to strike.

“In order to make a gift, the donor must possess sufficient mental capacity.   The test of the donor's mental capacity is whether, at the time of the transaction, the donor had the ability to understand the nature and effect of his or her act.”   38 Am.Jur.2d, Gifts, § 11.   Old age and the impairments of the mind that normally accompany advanced years do not necessarily indicate that a donor is mentally incapacitated.   See id.   See also Mullen v. McAteer, Superior Court, judicial district of Litchfield, Docket No. CV 06 5001046 (August 17, 2009, Gallagher, J.).   Furthermore, a general allegation of insufficient mental ability, without more, is not legally sufficient to substantiate a claim for lack of capacity and survive a motion to strike.   See Consiglio v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV 05 4010111 (November 7, 2006, Zoarski, J.).

The court, in Consiglio, did not base its decision to grant the defendant's motion to strike on the plaintiff's failure to allege that the donor had mental limitation at the time of the transaction.   In fact, the court suggests that such an allegation was present.   In striking the counts for lack of capacity, the court stated:  “[The plaintiff] alleged that the decedent had a brain tumor, which caused his death, and that, as a result, when he signed the deeds, he ‘did not have sufficient mental ability to execute such [deeds], and [they] should be declared invalid.’   The plaintiff, however, has failed to allege facts that establish that, at the time the deeds were executed, the decedent did not posses understanding sufficient to comprehend the nature, extent and consequences of the executions.   She alleged merely a legal conclusion and does not support it with factual allegations regarding the decedent's understanding of the transactions.”  (Emphasis added.)  Id.

In ruling on a motion to strike a claim for lack of capacity the court must, therefore, look to the complaint for specific factual allegations which, if proven, would show that the donor, at that very moment, did not understand the nature of the transaction before her.   See id.   In the present case, the plaintiffs have alleged only that when Alice changed the beneficiary on her accounts she was ninety-three years old and had “significant physical and mental limitations, as a result of which she was not of sound mind and memory” to comprehend the transaction.   Given that the plaintiffs have failed to allege specific facts which would demonstrate mental incapacity at the moment of the transfer, their allegation that the aforementioned “limitations” rendered her incapable of understanding the nature and effect of changing her beneficiary is a legal conclusion upon which the counts cannot be sustained.   See Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) (“A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings”) (emphasis in original;  internal quotation marks omitted).   Therefore the court grants the defendant's motion to strike counts one and four.

B. COUNTS TWO AND FIVE

Undue Influence

The defendant argues that counts two and five fail to state a claim for undue influence because the plaintiffs merely state legal conclusions and have not alleged facts sufficient to satisfy the elements of undue influence.   The plaintiffs respond by arguing that the factual allegations of the amended complaint are legally sufficient to satisfy the elements of undue influence and point out that, again, the defendant relies on case law that involves trials rather than motions to strike.   The plaintiffs contend that failure to meet the burden of proof at trial has nothing to do with whether the allegations contained in the complaint are legally sufficient.

“Undue influence is the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised.   It is always a good ground for setting aside a conveyance procured thereby, when exercised to such an extent as to control the will of the grantor ․ Because direct evidence of intent is difficult to obtain, undue influence may be proved circumstantially ․ Relevant circumstances include the grantor's health and its effect upon his mental and physical functions, his dependence upon the person alleged to have influenced him, and the opportunity to exert influence available to that person.”  (Citations omitted;  internal quotation marks omitted.)  Reynolds v. Molitor, 184 Conn. 526, 528–29, 440 A.2d 192 (1981).  “It is stated generally that there are four elements of undue influence:  (1) a person who is subject to influence;  (2) an opportunity to exert undue influence;  (3) a disposition to exert undue influence;  and (4) a result indicating undue influence.”  (Internal quotation marks omitted.)   Pickman v. Pickman, 6 Conn.App. 271, 275, 505 A.2d 4 (1986).

In the present case, the plaintiffs allege that Alice's age and mental and physical limitations rendered her subject to influence.   They further allege that the defendant forced himself into Alice's life, made sure she was wholly dependent upon him to the exclusion of all others and, therefore, the defendant had the opportunity to exercise influence over Alice.   The plaintiffs also allege that, having been informed of the existence of the accounts for which he was not yet named as beneficiary, he had the disposition to exert undue influence and did so by utilizing his role as Alice's primary care giver.   The plaintiffs fail to allege, however, facts which would satisfy the element requiring a result that indicates undue influence.   In other words, the plaintiff must allege facts which, if proven, would show that Alice would not have changed the beneficiary to the defendant but for his exercise of undue influence.  Reynolds v. Moliter, supra, 184 Conn. 528.   The fact that Alice was wholly dependent upon the defendant and that she chose to name him as beneficiary over her nieces and grandnieces does not constitute such a constraint of her free will as to amount to undue influence.   See Shepard v. Connecticut Teachers' Retirement Board, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. 701791 (January 16, 1992, Satter, J.T.R.).   Therefore the court grants the defendant's motion to strike counts two and five.

C. COUNTS THREE AND SIX

Tortious Interference

The defendant argues that counts three and six of the amended complaint are legally insufficient to state a claim for tortious interference with a beneficial relationship because such a claim requires the plaintiffs to allege that the defendant interfered with a business relationship.   The defendant contends that, here, the plaintiffs allege only that they were family members of Alice.   The defendant also notes that Connecticut has never recognized intentional interference with an inheritance to fall within the purview of this cause of action, and further argues that the court should not recognize this cause of action as a matter of public policy.   The plaintiffs argue that at least one Superior Court case has recognized a cause of action for tortious interference with an expected inheritance.   The plaintiffs further note that just because the appellate courts have not yet rendered a decision on whether such a cause of action exists, it does not mean that they would not recognize this cause of action.   The defendant argues, in the alternative, that the plaintiffs have merely recited the elements of tortious interference with a beneficial relationship without alleging facts which would support that legal conclusion.

“A motion to strike is the proper procedural vehicle ․ to test whether Connecticut is ready to recognize some newly emerging ground of liability.”   (Internal quotation marks omitted.)   Golden v. Hamer, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5008396 (August 25, 2009, Pavia, J.).   While it is true that the appellate courts have not specifically established a cause of action for tortious interference with an expectancy of inheritance, at least two Superior Court decisions have recognized such a cause of action, finding that there are compelling reasons to believe that this cause of action would be adopted by the higher courts.   See DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV 10 6007472 (August 27, 2010, Peck, J.) [50 Conn. L. Rptr. 605];  Bocian v. Bank of America, Superior Court, judicial district of Hartford, Docket No. CV 06 4019877 (December 8, 2006, Rittenband, J.T.R.) [42 Conn. L. Rptr. 483].   But see Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV 07 4006664 (December 22, 2008, Pickard, J.) [46 Conn. L. Rptr. 817].

If the court decides to follow the line of Superior Court authority that has chosen to recognize a cause of action for tortious interference with an inheritance expectancy, it must then inquire as to whether such a cause of action has been sufficiently pled in the present case.  “[G]iven the established elements of a cause of action for tortious interference with contractual or beneficial relationships, the anticipated elements of a claim for tortious interference with an expectancy of inheritance are as follows:  1) the existence of an expected inheritance;  2) the defendant's knowledge of the expectancy;  3) tortious conduct by the defendant, such as fraud or undue influence;  and 4) actual damages to the plaintiff resulting from the defendant's tortious conduct.”  DePasquale v. Hennessey, supra, Superior Court, Docket No. CV 10 6007472.

Here, the plaintiffs have sufficiently alleged the first, second, and fourth elements of a claim for tortious interference with a beneficial relationship.   They do not, however, allege facts supporting their legal conclusion that “the defendant intended to interfere with said beneficial relationship and ․ intentionally caused the decedent to change the beneficiary ․ to himself.”   Again, “[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, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   Therefore the court grants the defendant's motion to strike the third and sixth counts of the complaint.   The court does not decide the issue of whether Connecticut has recognized the existence of the cause of action.

Having stricken the entirety of the complaint, the issue of whether the plaintiffs are entitled to a specific remedy is moot.   The court, therefore, need not address the defendant's motion to strike paragraphs two and three from the plaintiffs' demand for relief.

III.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike all six counts of the plaintiffs' amended complaint.   As a result, the court need not address the motion to strike paragraphs two and three from the plaintiffs' demand for relief.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.