Joy M. Rendahl, Admr'x et al. v. Frank Peluso et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (pleading # 122.00)

NATURE OF THE PROCEEDING

This is an action brought by plaintiff in her personal capacity and as representative of the estate of her mother.   Defendant Frank Peluso was the executor of the estate of plaintiff's decedent, and he is the principal in the defendant law firm that represented the estate.   Defendants are being sued under a number of theories arising from the manner in which the estate was handled and the manner in which fees were charged and collected/retained.¹

Defendants have moved to strike a number of the claims directed against them, as asserted in a second amended complaint dated November 15, 2012.   Plaintiff has filed an objection.   The court heard argument on May 6, 2013.

SCOPE OF REVIEW

“A motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder ․” Kumah v. Brown, 307 Conn. 620, 626 (2013) (internal quotation marks, omitted;  ellipses as in cited case).

“In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commissioner, 182 Conn. 138, 140, 438 A.2d 27 (1980).

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  (Internal quotation marks omitted.)

DISCUSSION

Recklessness

Plaintiff's Third Count asserts that defendants acted recklessly in causing injury to plaintiff.   The Third Count incorporates the same 15 specifications of misconduct as alleged in the prior two counts (respectively asserting a breach of fiduciary duty and malpractice/negligence), with the statement that such conduct was done recklessly and with wanton indifference to plaintiff's rights.   Defendants claim that plaintiff has simply recharacterized her allegations of negligence as recklessness, which according to cases such as Angiolillo v. Buckmiller, 102 Conn.App. 697, 705 (2007), is inadequate to allege a proper cause of action sounding in recklessness.   Plaintiff, on the other hand, points out that it is possible for the same allegations of misconduct to support both claims of negligence and recklessness.   To an extent, both sides are correct.

It certainly would not be hard to imagine an allegation of negligence that simultaneously could describe a reckless conduct scenario, without change.   For example, allegations that a motorist was operating at an unreasonable rate of speed, and failed to yield to pedestrians in a crosswalk, seemingly would be sufficient to allege negligence and recklessness simultaneously if it were alleged that the conduct occurred in front of a school at dismissal time.   On the other hand, the failure to signal a turn, due to a burned-out light bulb, would seem to be a situation difficult to characterize as anything beyond negligence without additional information/allegations, e.g. a claim of long-standing knowledge of the condition coupled with a known hazardous traffic pattern.

Almost all of plaintiff's specifications of negligence and recklessness—identical lists—are claims of errors and omissions that do not seem to be readily susceptible of characterization as anything beyond negligence.   However, there is one specification that seems to fit in the category of allegations that simultaneously can be negligent and reckless, without the need for strained or torturous construction.

Specification (n) states that defendants “invaded plaintiff Joy M. Rendahl's bank account to cover defendant Peluso's estate account overdraft and misrepresenting that plaintiff Joy M. Rendahl had authorized it ․” Claims that a party invaded another's bank account, in order to cover an overdraft, and further misrepresented that the action had been authorized, facially can support a claim of something far more aggravated than simple negligence.   (Indeed, if there were any claim that this allegation of misconduct cannot both reflect negligence and recklessness, the focus more properly might be on the attempt to characterize it as negligence, but that is beyond the scope of this motion.)

The court is required to treat the count as a single cause of action for purposes of a motion to strike.   The court cannot strike individual specifications but must treat the count as a whole.   The issue is whether the allegations, if proven, would support the claimed cause of action.   Having concluded that specification (n) sufficiently alleges reckless conduct, the court need not address the sufficiency of each or all of the other allegations—the count is legally sufficient in alleging reckless conduct.   As to the Third Count, then, the motion to strike must be denied.

Contract Claims

Defendants claim that the Fourth Count of the complaint does not adequately allege the existence of a contract to support a breach of contract claim.   Additionally, defendants rely on a line of cases indicating that a party cannot simply take a negligence claim, directed to a professional, and recast it as a breach of contract claim.   In this latter respect, the cases seem to require something more—a promised result or promised performance of a specified task, for example.   Plaintiff's response is that there clearly was an agreement sufficient to support a contract claim.

The court does not credit (for purposes of this motion) defendants' initial argument.   Even without knowledge of the existence of a separate lawsuit brought by defendants, in which movant here affirmatively asserts the existence of a contract,² the facts alleged imply the existence of a contract—¶ 17 alleges that decedent's will directed that defendant Peluso be “hired” as attorney for the estate and ¶ 11 alleges that he agreed to act in that capacity.   And, of course, he (or his firm) rendered services and billed for such services.   The court does not consider the threshold issue of existence of a contract to be an issue for purposes of this motion.

Unfortunately, while plaintiff does address the issue of whether a contract exists, plaintiff fails to address in any substantial manner the more significant issue of whether her claims properly can be characterized as contractual in nature.   As noted earlier, defendants identify a line of cases that indicates the proper approach to this type of problem, e.g. Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., 134 Conn.App. 785 (2012), cert. granted, 395 Conn. 920 (2012);  see, also, Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 870 (2002).   All of the specifications of misconduct go to the manner in which defendants allegedly acted rather than identifying a specific task or goal that was identified in the contract and not attained.   Negligent and/or other inappropriate conduct in the course of performance by a professional, however, is the hallmark of a malpractice or negligence cause of action, not a breach of contract claim.  (Nor does plaintiff attempt to come within the broader scope of a contract claim as envisaged by the dissent in Meyers, 134 Conn.App. 794.)

It is the court's obligation to assess what actually is being alleged, rather than relying on the label given by a party.   In this case, the Fourth Count does not articulate a cognizable breach of contract claim.   Plaintiff's Fourth Count, then, fails to allege a legally sufficient cause of action and therefore it is ordered stricken.

Conversion/Civil Theft

Both parties have treated the counts sounding in conversion and civil theft (Fifth and Sixth Counts) as worthy of a single discussion and analysis.   Both parties cite and discuss, at least briefly, a number of trial court decisions, including Pelizari v. Pisciotta, 2009 Ct. Sup. 7948 (J.D. Tolland, CV08 5002792 S;  May 8, 2009).   The court finds Pelizari to be an appropriate starting point.

Statutory theft for civil damages is synonymous with larceny as defined by G.S. § 53a–119 of our criminal laws.  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 44 (2000);  Suarez–Negrete v. Trotta, 47 Conn.App. 517, 520–21 (1998).   In general, § 53a–119 states that [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.

Under § 53a–119, the alleged wrongdoer must not only intentionally take, obtain, or withhold the property in question but must do so with the aim of wrongfully depriving another of its use or appropriating the property to himself, that is, the property must be acquired or held with the knowledge that the person has no right to it.  (Internal quotation marks, omitted.)

This court departs from the analysis in Pelizari to consider certain language in Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 773 (2006).   In that case, the court affirmed a rejection of claims of conversion and civil theft because the plaintiffs' claims were contingent upon a legal determination of entitlement to receive the funds in question.   In this case, the parties are in agreement that there was a probate determination limiting the funds defendants were entitled to receive/retain, thereby seemingly determining that plaintiff was entitled to the return of the balance/excess.   However, there seems to be no dispute concerning the existence of an appeal from that decision (see, footnote 1).   The question, then, is whether the probate determination and/or appeal from the probate decision require(s) a different outcome here.

The court believes that while not as clearcut a situation as in Deming, the result is (should be) the same.   Plaintiff's right to the disputed money—and the correlative claim that defendants' retention of the money is tortious—is contingent on the outcome of that probate appeal.   Defendants' refusal to honor a demand for return of money that is subject to a dispute pending in court, is not a sufficient basis to claim wrongfulness consistent with claims of conversion and statutory/civil theft.

This conclusion is reinforced by the status of the pending appeal.   Neither party has addressed the issue of whether the probate order under appeal has been stayed and the possible significance of that status to this issue.   The court must recognize the statutory provision that there is no automatic stay associated with an appeal to Superior Court from a probate court decision (General Statutes § 45a–186(f)).  In theory, the absence of a stay might seem to deprive defendants of any present claim to a right to retain the disputed funds.   Conversely, if a stay were in effect, then the Deming analysis seemingly would be indisputably applicable.   The court has taken judicial notice ³ of the file relating to the identified appeal from probate (CV10–5013414), and further notes that a motion for stay (pleading # 101.00) was granted (pleading # 101.86).

The stay constitutes a judicial recognition of defendants' current, if perhaps temporary and conditional, right to continued possession of the funds.   This reinforces applicability of Deming —plaintiff's claim is contingent upon the future judicial determination of rights.   As in Deming, then, plaintiff does not have a current basis for alleging civil theft and or conversion, given the absence of a present right to possession or ownership on the part of plaintiff—and the corresponding lack of an appropriate level of wrongful intent on the part of defendants in retaining the money.   Accordingly, the Fifth ⁴ and Sixth ⁵ Counts are ordered stricken.

SUMMARY OF RULINGS

The Fourth, Fifth and Sixth Counts are ordered stricken (as is the associated statutory claim for treble damages);  the motion is denied as to the Third Count.

POVODATOR, J.

FOOTNOTES

FN1. This is not the only litigation pending between the parties.   The complaint (¶ 17) refers to a probate appeal relating to fees charged by defendants (FSTCV105013414S).  Another probate appeal is pending concerning removal of defendants from their respective positions (FSTCV116011567S).  There is yet a third additional matter (FSTCV115013762S) pending, in which defendants in this case are suing plaintiff Rendahl under a number of tort theories..  FN1. This is not the only litigation pending between the parties.   The complaint (¶ 17) refers to a probate appeal relating to fees charged by defendants (FSTCV105013414S).  Another probate appeal is pending concerning removal of defendants from their respective positions (FSTCV116011567S).  There is yet a third additional matter (FSTCV115013762S) pending, in which defendants in this case are suing plaintiff Rendahl under a number of tort theories.

FN2. Defendants, in their reply, have objected to the plaintiff's reference to other matters as being outside the record for purposes of this motion—but see footnote 1..  FN2. Defendants, in their reply, have objected to the plaintiff's reference to other matters as being outside the record for purposes of this motion—but see footnote 1.

FN3. The court does not believe that this is, or should be treated as, a factual issue, beyond the scope of a motion to strike.   Judicial notice of court files can be taken by appellate courts notwithstanding the black letter principle that appellate courts cannot find facts.   The status of the probate appeal file is essential to a proper understanding of the posture of this case.  Worth v. Commissioner of Transportation, 135 Conn.App. 506, 509 n.3 (2012).   In any event, the court has used judicial notice to confirm, not determine, applicability of Deming..  FN3. The court does not believe that this is, or should be treated as, a factual issue, beyond the scope of a motion to strike.   Judicial notice of court files can be taken by appellate courts notwithstanding the black letter principle that appellate courts cannot find facts.   The status of the probate appeal file is essential to a proper understanding of the posture of this case.  Worth v. Commissioner of Transportation, 135 Conn.App. 506, 509 n.3 (2012).   In any event, the court has used judicial notice to confirm, not determine, applicability of Deming.

FN4. In Pelizari, the Court also addressed the element of “chattel” as required for conversion, and the manner in which that element can be satisfied in the case of money.   This court does not reach that issue..  FN4. In Pelizari, the Court also addressed the element of “chattel” as required for conversion, and the manner in which that element can be satisfied in the case of money.   This court does not reach that issue.

FN5. In light of the statutory civil theft count being stricken, so must the associated claim for treble damages..  FN5. In light of the statutory civil theft count being stricken, so must the associated claim for treble damages.

Povodator, Kenneth B., J.