Ann C. Bello v. Elizabeth Bello Franchina et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (103.00)

I. FACTS

On April 25, 2013, the plaintiff, Ann C. Bello, commenced this lawsuit against Elizabeth Bello Franchina by service of process at Bello Franchina's Lantana, Florida residence.   On May 2, 2013, an appearance was filed for Bello Franchina and John Franchina.¹  Bello Franchina is the plaintiff's daughter and John Franchina is the plaintiff's son-in-law.   They will be referred to collectively as the defendants.

The complaint alleges four counts against the defendants.   In count one, the plaintiff alleges the following facts in twenty-eight paragraphs.   The plaintiff is an eighty-eight-year-old woman.   After undergoing heart surgery, the plaintiff moved to Florida to live with the defendants at the defendants' urging.   The plaintiff sold her home in Stamford, Connecticut on or about October 19, 2012, for $760,000.   The plaintiff authorized her attorney to transfer the net proceeds of the sale to the defendants' Florida attorney to be held in trust for the benefit of the plaintiff.   The transfer occurred on or about October 19, 2012.   The plaintiff believes that the defendants instructed their Florida attorney to transfer the proceeds to them and that the defendants subsequently misappropriated the entire proceeds without the permission of the plaintiff.   The plaintiff has demanded that the defendants return the funds but the defendants have failed to do so.

In January 2012, because she was sick and incapacitated, the plaintiff added Bello Franchina on two Wells Fargo bank accounts owned by the plaintiff.   The sole purpose for adding Bello Franchina on the accounts was to facilitate payment of the plaintiff's bills.   In January 2013, the plaintiff decided to move back to Connecticut with her son because the defendants subjected her to disrespectful and abusive treatment.²  The defendants were outraged by this and Bello Franchina subsequently withdrew $35,400 from one bank account and $79,600 from another.   The plaintiff was not aware of the withdrawals at the time they occurred and did not approve of them.   The plaintiff has demanded a return of the funds but the defendants have failed to do so.

The defendants have refused to let the plaintiff access two safety deposit boxes the plaintiff owns, one in Connecticut and one in Florida.   Bello Franchina has the only set of keys and refuses to provide them to the plaintiff.   The defendants also stole $5,000 hidden in a coat in the plaintiff's Stamford, Connecticut home prior to its sale in 2012.   In addition, the defendants have refused to cooperate with the plaintiff in shipping the plaintiff's Mercedes Benz, which is in Florida at the defendants' residence.

Finally, the plaintiff holds accounts with Janey Montgomery Scott.   Bello Franchina is on the accounts as a joint tenant with right of survivorship, but Bello Franchina is on the accounts for the plaintiff's convenience and the accounts are owned solely by the plaintiff.   In or about February 2013, Janey Montgomery Scott began withholding dividends from the plaintiff.   The plaintiff believes Bello Franchina ordered these withholdings and as a result the dividends have been frozen.   The plaintiff alleges that the defendants “occupied a special position of trust and confidence with the plaintiff with regard to the plaintiff's financial affairs, her accounts, and the management of her assets, including the proceeds from [the Stamford, Connecticut home].”   Compl., ¶ 28.   Because the defendants misappropriated the plaintiff's funds, the plaintiff claims in her first count that they have breached their fiduciary duties to her.

In counts two, three, and four, the plaintiff re-alleges all of the paragraphs in count one “as though fully set forth here,” with the exception of the paragraph alleging a special position of trust and confidence with the defendants and the paragraph alleging breach of fiduciary duty.   In count two, the plaintiff alleges the defendants have committed the tort of conversion by misappropriating the plaintiff's funds.   In count three, the plaintiff alleges the defendants have violated General Statutes § 52–564—the civil theft statute—by misappropriating the plaintiff's funds.   In count four, the plaintiff alleges that the defendants' misappropriation of the plaintiff's funds entitles her to impose a constructive trust on the defendants.   Finally, in her prayer for relief, the plaintiff seeks the following:  compensatory damages;  common-law punitive damages in the form of attorneys fees;  statutory treble damages pursuant to § 52–564;  costs;  the imposition of a constructive and/or resulting trust on all funds misappropriated or wrongfully withheld, together with proceeds of said funds;  and such other costs and relief as may be provided by law.

On May 7, 2013, the defendants filed a motion to strike “Counts One, Two, and Four” of the plaintiff's complaint on the ground that these causes of action are legally insufficient and fail to state a claim upon which relief can be granted.   Dkt. Entry No. 103.00.   The defendants also seek to strike the prayer for punitive damages under the common law on the ground that this type of relief is legally insufficient.   The defendants submitted a memorandum of law in support of their motion.   On June 18, 2013, the plaintiff filed her objection to the defendants' motion to strike and memorandum of law.   The matter was heard at short calendar on June 24, 2013.

II. DISCUSSION

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ 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 ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can by granted.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).

“[I]n 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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)   Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).  “[Courts] take the facts to be those alleged in the complaint ․ and ․ construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).  “[W]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).

As a preliminary matter, it is noted that the plaintiff has conceded that the motion to strike should be granted in part.   In their memorandum of law in support of their motion to strike, the defendants argue that count four seeking a constructive trust is legally insufficient because a constructive trust is a remedy, not an independent cause of action.   In her memorandum in opposition, the plaintiff concedes this point and stipulates that the defendants' motion to strike count four may be granted.   The plaintiff does reserve her right to seek a constructive trust as a remedy per her prayer for relief.   Therefore, the court grants the defendants' motion to strike count four of the plaintiff's complaint.

Next, the plaintiff raises a threshold procedural question that must be addressed.   The defendants state on the face of their motion that Counts One, Two, and Four and the prayer for attorneys fees “are legally insufficient and fail to state a claim upon which relief may be granted.”   Defs.' Mot. to Strike 1. In her memorandum in opposition to the defendants' motion, the plaintiff raises two procedural objections to the defendants' motion to strike.   First, the plaintiff argues that the defendants have not complied with Practice Book § 10–41 because the defendants have failed to properly articulate the basis of their motion on the face of the motion.   Second, the plaintiff argues that the defendants have failed to adequately brief their challenge to count two and, accordingly, have waived their right to challenge this count.   Each issue is addressed in turn.

“Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”  Practice Book § 10–41.  “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Practice Book § [10–42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10–41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).  “Simply stating that all of the counts are legally insufficient and that they fail to allege any facts ․ cannot be considered in compliance with Practice Book § 10–41.”  (Internal quotation marks omitted.)  Id., 862 “[T]he fact that [the reasons for a challenge are] provided in the accompanying memorandum of law does not save the motion from being considered fatally defective.”  (Internal quotation marks omitted.)  Id.

The defendants' motion to strike is fatally defective because the defendants have failed to enumerate the grounds for their motion on the face of the motion.   As set forth above, the motion simply states that the challenged counts and the challenged prayer for relief “are legally insufficient and fail to state a claim upon which relief may be granted.”   This statement is not a distinct specification of the reasons for deficiency, as required by § 10–41, but is merely a legal conclusion.   Further, the fact that the defendants state that their “arguments are set forth in the attached Memorandum of Law in Support of Motion to Strike”;  Defs.' Mot. to Strike 1;  does not save the motion from its fatal defect.   The motion to strike counts one and two is subject to being stricken for failure to comply with Practice Book § 10–41.

The face of the defendants' motion to strike states that the plaintiff's count two for conversion is legally insufficient.   That said, the defendants' memorandum in support of their motion to strike does not brief count two.   Instead, the memorandum briefs the § 52–564 civil theft issue, which appears in the complaint as count three.   Count three is not one of the counts that is challenged on the face of the defendants' motion.   Because the defendants failed to brief their objection to count two's conversion claim, it is waived.   Likewise, because the motion to strike is not directed at count three there is no basis to strike that claim.

However, because count one was mentioned in the motion (although inadequately) and was briefed, the court will examine the merits of defendants' attack on count one.   The defendants argue that the plaintiff's breach of fiduciary duty claim in count one is legally insufficient.   They argue that the plaintiff has merely alleged the existence of a mother-daughter relationship between the plaintiff and Bello Franchina and a mother-in-law/son-in-law relationship between the plaintiff and John Franchina.   The defendants posit that a fiduciary relationship requires something more than simply a family relationship, such as an underlying professional relationship, or possession of unique educational or professional training by the party charged with the fiduciary duty.   Because no underlying professional relationship between the parties has been alleged, and because the plaintiff has not alleged that the defendants possess any unique educational or professional training in the management of the plaintiff's affairs, the defendants argue that the breach of fiduciary duty claim is legally insufficient.   The plaintiff argues that determination of a fiduciary relationship is a question of fact.   Because the court makes no factual findings in a motion to strike, the plaintiff argues that the motion to strike is an improper procedural vehicle to resolve this issue.   The plaintiff also argues that she has pleaded sufficient facts to sustain a breach of fiduciary duty cause of action.   Specifically, the plaintiff notes that she alleged in the complaint that she was ill and incapacitated, that she entrusted considerable property to the defendants to manage her affairs while she was ill and incapacitated, and that the defendants misappropriated said assets in breach of their obligation.   The court agrees with the plaintiff.

“[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.”  (Internal quotation marks omitted.)  Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994).  “Whether such a confidential relationship exists is a factual question for the trial court.”   Albuquerque v. Albuquerque, 42 Conn.App. 284, 287, 679 A.2d 962 (1996).   “Rather than attempt to define a fiduciary relationship in precise detail and in such a manner to exclude new situations, we have instead chosen to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other.”  Dunham v. Dunham, 204 Conn. 303, 320, 528 A.2d 1123 (1987), overruled on other grounds by Santopietro v. New Haven, 239 Conn. 207, 682 A.2d 106 (1996) (holding motion to set aside verdict not a prerequisite to full appellate review).   “While the relationship between parent and child is not per se a fiduciary one, it does generate a natural inclination to repose great confidence and trust.”   (Internal quotation marks omitted.)  Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980).

In the present case, count one for breach of fiduciary duty is legally sufficient.   The present case is analogous to Jarvis v. Lieder, 117 Conn.App. 129, 978 A.2d 106 (2009).   In Jarvis, the Appellate Court affirmed the trial court's determination that a fiduciary relationship between the plaintiff and two of the defendants, the plaintiff's nieces.   The court held that “[t]he evidence demonstrates that the plaintiff was elderly and disabled, and that the defendants had significant control and influence over her financial and personal affairs ․ Thus, the [trial] court's conclusion that a confidential, fiduciary relationship existed was not clearly erroneous ․” (Citation omitted.)  Id., 146.   In another case, it was likewise held that the “advanced age, physical and mental condition” of a party are considered to establish the existence of a fiduciary position.  Berty v. Gorelick, 59 Conn.App. 62, 68–69, 756 A.2d 856 (2000).   In the present case, the plaintiff has alleged she is an elderly woman and was disabled by her medical conditions.   The plaintiff has alleged that her incapacitation and illness following heart surgery led her to both move in with the defendants for purposes of care and to entrust the defendants with control over considerable property.   The plaintiff also alleged that the defendants had significant control over her financial affairs, such as access to two significant bank accounts and a Janey Montgomery Scott account.   The plaintiff alleged that she placed a great deal of trust and confidence in the defendants at a time when she was unable to conduct her own affairs and that the defendants breached that trust by, inter alia, misappropriating her funds, obstructing access to her safety deposit boxes, and failing to cooperate in the return of her vehicle.

The defendants' argument that the absence of allegations of an underlying professional relationship between the parties, or allegations of unique skills possessed by the defendants, renders count one insufficient is unsupported by the case law.   In Jarvis v. Lieder, supra, 117 Conn.App. 146, a fiduciary relationship was found between two of the defendants, neither of whom had an underlying professional relationship with the plaintiff, but who by their conduct established a fiduciary relationship with the plaintiff and therefore owed fiduciary duties.   In Emond v. Brousseau, Superior Court, judicial district of Windham, Docket No. CV–09–6000455–S (December 2, 2009, Riley, J.) (48 Conn. L. Rptr. 870), the court determined that a confidential relationship existed between prior nonmarital partners, even though neither of them had an underlying professional affiliation with the other or unique skills.   Likewise, the plaintiff's allegations in the present case, read in the light most favorable to the plaintiff, properly pleaded that the defendants, by their conduct, have established a fiduciary relationship with the plaintiff notwithstanding the absence of allegations of an underlying professional relationship and/or unique skills of the defendants.

Taking the well-pleaded facts and implications thereof as admitted and read in the light most favorable to the plaintiff, count one is legally sufficient and properly pleaded.   Because “[i]t is axiomatic that a party cannot breach a fiduciary duty to another unless a fiduciary relationship exists between them”;  Altmann v. Halpert, Superior Court, judicial district of Waterbury, Docket Nos. CV–08–4018098–S, CV–08–5011200–S (May 22, 2012, Sheedy, J.);   because a preexisting professional affiliation is not necessary to establish a confidential relationship, because the establishment of a fiduciary relationship is ultimately a factual inquiry, and because the plaintiff has pleaded sufficient facts alleging a fiduciary relationship, the court denies the defendants' motion to strike count one of the plaintiff's complaint on the merits.

Finally, the defendants seek to strike the plaintiff's prayer for common-law punitive damages in the form of attorneys fees.   The defendants argue that, in the context of the conversion claim, the plaintiff has not set forth a legally sufficient claim to support such relief.   Specifically, they argue that allegations of fraud, reckless indifference to the rights of others, or intentional and wanton violation of the rights of others is required to support a claim of attorneys fees as punitive damages, and because the plaintiff has not made such allegations, this claim in the prayer is legally insufficient.   The plaintiff points out that in her complaint, she alleges that the defendants misappropriated hundreds of thousands of dollars and stole $5,000.   The plaintiff argues that these allegations and the reasonable inferences drawn from them, read in the light most favorably to her, could lead a trier of fact to conclude that the defendants' conduct constituted reckless indifference to the rights of the plaintiff.

It is well established in Connecticut that “common law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiff's litigation expenses less taxable costs.”  Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).  “[C]ommon law punitive damages ․ in Connecticut are limited to the plaintiff's attorneys fees and nontaxable costs, and thus serve a function that is both compensatory and punitive.”  Bodner v. United Services Automobile Ass'n, 222 Conn. 480, 492, 610 A.2d 1212 (1992).  “Punitive damages may be awarded upon a showing of fraud.”  (Emphasis added.)  O'Leary v. Industrial Park Corporation, 211 Conn. 648, 651, 560 A.2d 968 (1989).  “[I]n order to award punitive damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  (Internal quotation marks omitted.)  Franc v. Bethel Holding Co., 73 Conn.App. 114, 137, 807 A.2d 519, cert. granted 262 Conn. 923, 812 A.2d 864 (2002).  “Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”   (Internal quotation marks omitted.)  Id., 138.  “A wilful or malicious injury is one caused by design ․ [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.”  (Internal quotation marks omitted.)  Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).   There is Superior Court precedent awarding common-law punitive damages to plaintiffs alleging civil theft and conversion.   See Tunick v. Tunick, Superior Court, judicial district of Stamford, Docket No. CV–044001931–S (February 5, 2008, Robinson, J.);   Schwartz v. Schwartz, Superior Court, judicial district of Fairfield, Docket No. CV–04–0412199–S (December 7, 2007, Melville, J.T.R.).

In the present case, the plaintiff pleaded sufficient facts to support a claim for common-law punitive damages in the form of attorneys fees.   The plaintiff has alleged that the funds from the sale of her Stamford, Connecticut residence were intended to be held in trust for the benefit of her, but were misappropriated by the defendants.   She has alleged that the defendants stole $5,000.   She has alleged that Bello Franchina caused dividends, which the plaintiff is entitled to, to be frozen so that the plaintiff cannot enjoy them.   She has alleged that the defendants have obstructed her from retrieving her car and accessing her safety deposit accounts.   Finally, she has alleged that Bello Franchina, who had access to her bank accounts during a time when the plaintiff was vulnerable, misappropriated thousands of dollars from said accounts.   Misappropriation of the bank funds was motivated, the plaintiff alleges, by an animus created when the plaintiff chose to move out of the defendants' home.   In other words, the plaintiff alleges that the defendants misappropriated the bank account funds in retaliation for the plaintiff's departure from the defendants' home.   While the plaintiff does not in so many words state that these actions were “fraudulent,” or “in reckless disregard of the plaintiff's rights,” a reasonable reading of these allegations leads to the conclusion that the defendants' actions constituted reckless disregard for the rights of the plaintiff, or even an intentional and wanton violation of the plaintiff's rights.

Because pleadings are construed broadly and realistically rather than narrowly and technically, and because what is necessarily implied need not be expressly alleged, the court denies the defendants' motion to strike the plaintiff's prayer for common-law punitive damages in the form of attorneys fees.

III. CONCLUSION

For the foregoing reasons, the court denies the defendants' motion to strike in part and grants it in part.   Specifically, the plaintiff concedes that the court should grant the motion with respect to count four of the plaintiff's complaint claiming a constructive trust, the court strikes count four.   The court denies the motion in all other respects for a number of reasons spelled out above.   The court denies the remainder of the motion because the motion fails to conform to the mandates of Practice Book § 10–41.   The court denies the motion with respect to count two for conversion because the defendants failed to brief their objection.   The court denies the motion with respect to count three for civil theft because the objection to this claim was not enumerated in the motion.   The court denies the motion with respect to count one for breach of fiduciary duty and the prayer for relief, because both are legally sufficient.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. It is unclear from the marshal's return of service whether process was served on John Franchina.   The return of service indicates that process was to be served on Bello Franchina, but does not mention John Franchina.   In any event, John Franchina filed an appearance and did not file a motion to dismiss within the thirty-day period required by law, and thus jurisdiction over him is proper..  FN1. It is unclear from the marshal's return of service whether process was served on John Franchina.   The return of service indicates that process was to be served on Bello Franchina, but does not mention John Franchina.   In any event, John Franchina filed an appearance and did not file a motion to dismiss within the thirty-day period required by law, and thus jurisdiction over him is proper.

FN2. The plaintiff alleges that her home healthcare nurse was concerned that the plaintiff was being subjected to elder abuse, and warned John Franchina that she would report the defendants if their treatment of the plaintiff did not improve..  FN2. The plaintiff alleges that her home healthcare nurse was concerned that the plaintiff was being subjected to elder abuse, and warned John Franchina that she would report the defendants if their treatment of the plaintiff did not improve.

Adams, Taggart D., J.T.R.