Faith Denton v. Willard Denton, Jr. et ux (2011)

MEMORANDUM OF DECISION RE AUGUST 10, 2011 MOTION TO STRIKE COUNTERCLAIM

The plaintiff, Faith Denton (“plaintiff”), filed a motion to strike the April 26, 2011 counterclaim of the defendants, Willard Kirk Patrick Denton, Jr. and Mary Anne Denton (“defendants”).   The counterclaim was revised on August 8, 2011 in response to plaintiff's request to revise, however the parties jointly request that the court apply the instant motion to strike to the revised counterclaim.

The revised counterclaim has four counts:  breach of oral agreement creating an express trust, constructive trust, resulting trust and misrepresentation.

The defendants agree to withdraw count three, the resulting trust cause of action, from their counterclaim and indicated that the court need not address that count.

STANDARD OF REVIEW

“ ‘A motion to strike challenges the legal sufficiency of a pleading ․’ Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000).   In deciding on a motion to strike, the court must ‘read the allegations of the complaint generously to sustain its viability ․’ Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000).   The court ‘must take as true the facts alleged in the plaintiff's complaint [or necessarily implied from the allegations] and must construe the complaint in the manner most favorable to sustaining its legal sufficiency,’ Bhinder v. Sun Co., 246 Conn. 223, 226, 717 A.2d 202 (1998).  ‘The court must construe the facts in the complaint most favorably to the plaintiff.’  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  ‘If facts provable in the complaint would support a cause of action, the motion to strike must be denied.’  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000) ․ Moreover, [w]hat is necessarily implied [in an allegation] need not be expressly alleged.  Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).”   Dickinson v. Volicella, J.D. New Britain, Docket No. CV 02 0516604 S, (January 13, 2004, Robinson, R., J.), 2004 WL 204867.

DISCUSSION

The first count of the counterclaim alleges that:

․ the parties expressly agreed as a result of oral conversations they would have use of Plaintiff's property until she died in exchange for their willingness to be on call to minister to her multiple needs(.)” paragraph 4.

(T)he parties orally agreed that, upon the Plaintiff's death, 484 Old Woodbury Road Southbury, Connecticut (owned by the plaintiff, see paragraph 1 of Complaint and April 19, 2011 Answer admitting the truth thereof) would be inhabited by the defendants(.)” paragraph 5.

The oral agreement of the parties constitutes an express trust that the adjoining properties would remain as the living area for the use and benefit of the Defendants until the Plaintiff's death when the properties would merge.”   Paragraph 8.

Sec. 52–550.  Statute of frauds;  written agreement or memorandum. (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:  (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property;  (2) against any person upon any special promise to answer for the debt, default or miscarriage of another;  (3) upon any agreement made upon consideration of marriage;  (4) upon any agreement for the sale of real property or any interest in or concerning real property;  (5) upon any agreement that is not to be performed within one year from the making thereof;  or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.

(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.

Clearly, paragraphs 4, 5 and 8 of the First Count of the Counterclaim claim an oral “agreement for the sale of real property or any interest in or concerning real property;  ․” C.G.S. 52–550(a)(4) by claiming both a possessory interest during the plaintiff's life and a transfer of further interests upon the plaintiff's death.   The plaintiff claims these claims would be unenforceable pursuant to the statute of frauds, C.G.S. 52–550.

The defendants assert that the alleged oral agreements between the parties and the defendants claimed expression of a willingness to care for the plaintiff, paragraph 7 of the counterclaim, are sufficient to allege a cause of action for an express trust.

The defendants rely upon Hieble v. Hieble, 164 Conn. 56, 59 (1972).   However, Hieble v. Hieble, supra, involved a constructive trust, not an express trust, that was created by operation of law in a fact pattern crucially dissimilar to the instant matter.   However, an express trust, as defined in Black's Law Dictionary, 5th Edition, requires “a trust created or declared in express terms, and usually in writing, as distinguished from one inferred by the law from the conduct or dealings of the parties.”   There is no allegation that the plaintiff created or declared in express terms a trust for the benefit of the defendants.

The allegations of count one are legally insufficient to state a cause of action for a claim of an express trust.   The motion to strike the First Count is granted.

The Second Count incorporates paragraphs 1–7 inclusive of the First Count and adds an eighth paragraph alleging that “(T)he agreement of the parties and the Defendants' resultant move to Southbury constitutes a constructive trust providing that the adjoining properties would remain as one living area for the use and benefit of the Defendants until the Plaintiff's death when the properties would merge through inheritance, without the present existence of any property transfer.”

The elements of a cause of action for a constructive trust are described in Cadle Co. v. Gabel, 69 Conn.App 279 (2002).   The plaintiff moves to strike the Second Count of the Counterclaim because the defendants have failed to allege “fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not ․” Cadle Co., supra, p. 288.

The defendants allege that they, in reliance upon promises of the plaintiff, moved their residence, purchased real property adjoining the plaintiff's property and expressed their willingness to care for the elderly and ailing plaintiff.¹  In essence, they claim part performance in reliance upon the promises they allege the plaintiff made to them.  “If the defendant knowingly permits the plaintiff to do acts in part performance of the verbal agreement, acts done in reliance on the agreement, which change the relations of the parties and present a restoration to their former condition, it would be a virtual fraud for the defendant to interpose the statute (of frauds) as a defense, and thus secure for himself the benefit of the acts of part performance, while the plaintiff would be left not only without adequate remedy at law, but also liable for damages as a trespasser.”   5 Pomeroy, Equitable Jurisprudence (4th Ed.) 2239, p. 5004;  Santoro v. Mack, 108 Conn. 683, 690 (1928–29);  145 A. 273, Hanney v. Clark, 124 Conn. 140, 148 (1938).   The allegations contained in the Second Count of the Counterclaim, which the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency,” Bhinder v. Sun Co., supra, are legally sufficient to state a cause of action for a constructive trust.

Third Count:  The defendants agreed to withdraw this count.

The Fourth Count of the Counterclaim purports to state a cause of action for misrepresentation.   The defendants incorporate paragraphs 1–7 inclusive from the First Count and add paragraph 8–12.

The elements of the cause of action of misrepresentation are succinctly stated as:  “(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(.)”  Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 296 (2003).   Party asserting cause of action for fraud must prove that false representation was made as a statement of fact, that false representation was untrue and known to be untrue by the party making it, and that false representation was made to induce the other party to act upon it by a standard higher than the usual fair preponderance of the evidence;  standard is described as clear and satisfactory or clear, precise, and unequivocal.  Duplissie v. Devino, 96 Conn App. 673, 681 (2006).

“A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation.   Citations omitted.   Accordingly, such a promise may constitute actionable fraud if it is blended with a misrepresentation of a material fact and the evasion of the very promise, after the promise has performed.”  Duplisse v. Devino, supra, 681.

In paragraph 8 the defendants allege representations by the plaintiff.   In paragraph 9 the defendants allege reliance on those representations.   In paragraph 10 the defendants allege conduct induced by the plaintiff's alleged representations.   In paragraph 12 the defendants allege that “paragraph's (sic, the reader assumed that this was a typographical error that should read:  plaintiff's) present eviction action establishes that she (the plaintiff) was not being truthful when she told the defendants that they would have the use of the above said property so long as they were willing to care for her multiple needs.”

The defendants have alleged that the plaintiff made misrepresentations of fact or representations of fact that she knew were false when she made them, paragraph 12 of the Fourth Count, and that the defendants have performed in reliance upon such representations and suffered damage as a result.   The defendants have stated a cause of action for fraud.   The motion to strike the Fourth Count of the Counterclaim is denied.

HOLDINGS

The motion to strike is granted as to the First Count.

The motion to strike is denied as to the Second and Fourth Counts.

The court does not address the Third Count as the defendants' counsel represented that the Third Count will be withdrawn.

Zemetis, J.

FOOTNOTES

FN1. Paragraphs 1, 2 & 7 of Second Count of Counterclaim.  FN1. Paragraphs 1, 2 & 7 of Second Count of Counterclaim

Zemetis, Terence A., J.