Marshall Caro v. John Meerbergen et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 147

On November 20, 2008, the plaintiff, Marshall Caro, commenced this action by service of process against the defendants, Attorney John Meerbergen,¹ Eric Weintraub and David Weintraub (the Weintraubs).   In the operative pleading, which is the substituted amended complaint dated July 20, 2009, the plaintiff alleges the following facts relevant to the disposition of the motion that is presently before the court.   On January 7, 2002, title to property located at 47 Angelus Drive in Greenwich was conveyed by warranty deed to Elizabeth Weintraub, which was a partnership created by an express oral agreement between the plaintiff and his wife, Elizabeth Caro, for the purpose of holding title to this property.   The agreement between the plaintiff and Elizabeth Caro provided that the plaintiff would contribute $200,000 to the purchase price of said real property.   On February 6, 2008, Elizabeth Caro died intestate.   Because of his alleged contribution to the purchase of the 47 Angelus Drive property, the plaintiff claims an equity interest in the premises.   The Weintraubs, who are Elizabeth Caro's biological children from her first marriage, also claim an interest in the property pursuant to the laws of intestate succession.   As a result of this dispute regarding the true extent of his ownership interest in the 47 Angelus Drive property, the plaintiff brings a claim for quiet title in count one.

Count two alleges that prior to her death and marriage to the plaintiff, Elizabeth Caro and the plaintiff maintained a checking account at the Glenville branch of Wachovia Bank, N.A. Both the plaintiff and Elizabeth Caro deposited and withdrew money from this bank account.   Specifically, the plaintiff and Elizabeth Caro deposited the refunds from their jointly filed 2003, 2004 and 2005 federal and state income tax returns into this account.   The plaintiff and Elizabeth Caro orally agreed that the funds located in this bank account were partnership assets.   At some time after these tax refunds were deposited into the subject bank account, Elizabeth Caro withdrew $180,000 and deposited the money into another bank account in her name.   The plaintiff claims an interest in this $180,000 to the extent of his share of the joint tax refunds.   Both Attorney Meerbergen, who is the administrator of Elizabeth Caro's estate, and the Weintraubs claim an interest in this bank account that is adverse to the plaintiff.

On June 7, 2010, the Weintraubs filed an amended answer.   In their answer, the Weintraubs bring three counterclaims for:  (1) tortious interference with inheritance;  (2) common law conversion and (3) statutory theft.   All of the Weintraubs' counterclaims arise out of the following alleged facts.   In the days preceding her death, Elizabeth Caro was residing at her home under the care of hospice workers.   On the day before her death, February 5, 2008, Elizabeth Caro was gravely ill and virtually incapacitated.   That afternoon, she fell into a coma from which she never recovered.   Despite this fact, on February 5, 2008, $25,000 was transferred from Elizabeth Caro's personal account to the Wachovia Bank account that she held jointly with the plaintiff.   The Weintraubs allege that the Wachovia Bank account that received this $25,000 was a joint bank account with the right of survivorship.   In their counterclaims, the Weintraubs allege that the plaintiff transferred these funds without Elizabeth Caro's knowledge or consent and with the purpose of decreasing their rightful share of Elizabeth Caro's intestate estate.

On August 31, 2010, the plaintiff filed a motion to strike the Weintraubs' counterclaims and a supporting memorandum of law.   The plaintiff moves to strike the Weintraubs' counterclaims on the ground that they do not arise out of the same transaction as the facts alleged in the plaintiff's operative complaint.

“[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ․ A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.”  (Citations omitted;  internal quotation marks omitted.)  Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, (1985).   In a motion to strike, “the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, (1994).   Therefore, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, (2007).   Nevertheless, “[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 (2003).   When deciding a motion to strike, the court must “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 (2006).

Initially, the court must address the Weintraubs' procedural argument that the plaintiff's motion to strike should be denied because it is not timely filed.   As authority for this position, the Weintraubs cite to Practice Book § 10–8 ² for the rule that pleadings should advance one step every fifteen days.   According to the courthouse records, the Weintraubs filed a request for leave to file an amended answer on June 7, 2010, which was deemed granted by operation of law on June 22, 2010.³  The plaintiff did not file a responsive pleading to the Weintraubs' answer until August 31, 2010.   An examination of the courthouse records reveals that the plaintiff did not file a motion for extension of time in order to respond to the Weintraubs' answer.   Accordingly, the plaintiff is clearly in violation of the timing sequence provided in Practice Book § 10–8.

Nevertheless, “Superior Courts in Connecticut have, on a number of occasions, considered and decided motions on their merits even though such motions were not timely filed.   It is well established that the court has discretion as to whether it will consider the merits of an untimely motion.  [A]lthough a motion to strike may appear untimely on its face, the court has discretion to permit a late pleading where the parties have both submitted arguments on the merits ․ Connecticut trial courts have utilized this discretion to consider untimely motions to strike where a judgment of default had not been entered against the moving party, the motion was filed within a reasonable time, and the tardy filing did not work undue prejudice or injustice ․ It should be noted, however, that where the lapse of time between the last pleading and the motion to strike is extreme, courts have denied the motion to strike as untimely.”   (Citations omitted;  internal quotation marks omitted.)   Girouard v. R.I. Pools, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 07 5004474 (January 6, 2009, Adams, J.).   As the Weintraubs' answer only became operative on June 22, 2010, and the plaintiff filed this motion to strike on August 31, 2010, there has not been an excessively long delay in this case.   Moreover, there was no default entered against the plaintiff nor a Motion for Default for failure to plead filed by the Weintraubs and the parties both had ample opportunity to brief the legal issues raised in this motion.   Accordingly, the court determines that the Weintraubs have not been prejudiced by the late filing of the plaintiff's motion to strike, and, as a result, the court will exercise its discretion and address the merits of the motion.

The plaintiff moves to strike the Weintraubs' counterclaims on the ground that they violate the transaction test found in Practice Book § 10–10.   Specifically, the plaintiff argues that the causes of action alleged in the operative complaint and the Weintraubs' counterclaims do not arise from the same transaction.   According to the plaintiff, “[t]he facts and the law involved in any adjudication of these two sets of issues are so disparate, that their determination in the same proceeding would unquestionably thwart the goal of judicial economy.”   The plaintiff also notes that the parties are proceeding under different legal theories in that the plaintiff is seeking to quiet title to real property whereas the Weintraubs' counterclaims sound in tort and conversion.   In response, the Weintraubs argue that the transaction test is not violated because their counterclaims directly relate to the subject matter of the plaintiff's complaint, which is Elizabeth Caro's Wachovia bank accounts.   As both of the parties are seeking a determination of the proper amount of assets held by Elizabeth Caro's estate, the Weintraubs argue that the transaction test is satisfied in the present case.   Moreover, the Weintraubs argue that judicial economy will suffer if their counterclaims are stricken and they are forced to bring a separate action to determine the composition of Elizabeth Caro's estate.

Practice Book § 10–10 provides in relevant part:  “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff ․ provided that each such counterclaim ․ arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ․” “This section is a commonsense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy ․ The transaction test is one of practicality, and the trial court's determination as to whether that test has been met ought not be disturbed except for an abuse of discretion.”  (Internal quotation marks omitted.)  South Windsor Cemetery Ass'n., Inc. v. Lindquist, 114 Conn.App. 540, 546, cert. denied, 293 Conn. 932 (2009).  “Our Supreme Court has instructed that the [r]elevant considerations in determining whether the transaction test has been met include whether the same issues of fact and law are presented by the complaint and the [counter] claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts.”  (Internal quotation marks omitted.)  Id., 547.

Accordingly, it can be seen that the transaction test is largely a facts and circumstances test that involves a comparison of the facts and legal theories alleged in the plaintiff's complaint and the counterclaim.   In the present case, the plaintiff is seeking to quiet title to real property and asking the court to impose a resulting trust for his benefit regarding the plaintiff's interest in the $180,000 that Elizabeth Caro allegedly transferred from their joint account to her personal account.   Specifically, in paragraph twelve of count two, the plaintiff alleges that he “claims an interest in said bank account, in the amount of $180,000.00, to the extent of the joint income tax refunds in the amount of $180,000.00 which were deposited in said account.”   According to the operative complaint, the subject income tax refunds came from the plaintiff and Elizabeth Caro's 2003, 2004 and 2005 tax returns.   In contrast, the Weintraubs' counterclaims allege that the plaintiff wrongfully misappropriated funds from Elizabeth Caro's personal account on February 5, 2008.   All of the factual allegations found in the Weintraubs' counterclaims stem from events on that date.   Although count two of the operative complaint and the Weintraubs' counterclaims do involve Elizabeth Caro's financial accounts, the underlying facts involved in the competing claims are from completely different time periods.   The court finds that this is an insufficient nexus to satisfy the transaction test.   Accordingly, it is clear that the Weintraubs' counterclaims have nothing to do with either quieting title to real property or the validity of the plaintiff's claim to funds that allegedly came from tax returns filed in 2003, 2004 and 2005.   Therefore, the Weintraubs' counterclaims violate the transaction test found in Practice Book § 10–10, and, as a result, the court orders them stricken.

BY THE COURT

MINTZ, J.

FOOTNOTES

FN1. Following her death, Attorney Meerbergen was appointed the administrator of Elizabeth Caro's estate by the Greenwich Probate Court..  FN1. Following her death, Attorney Meerbergen was appointed the administrator of Elizabeth Caro's estate by the Greenwich Probate Court.

FN2. Practice Book § 10–8 provides in relevant part:  “motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority ․”.  FN2. Practice Book § 10–8 provides in relevant part:  “motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority ․”

FN3. Practice Book § 10–60 provides in relevant part:  “a party may amend his or her pleadings ․ (3) By filing a request for leave to file such amendment ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”.  FN3. Practice Book § 10–60 provides in relevant part:  “a party may amend his or her pleadings ․ (3) By filing a request for leave to file such amendment ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”

Mintz, Douglas C., J.