Constatine Axiotis v. Marina Michalovits et al. (2014)

MEMORANDUM OF DECISION

The court issued an order on November 5, 2013 wherein, among other things, the court took the papers on the defendants' motion to dismiss the third and tenth counts of the plaintiff's complaint.   In the third count, the plaintiff claims that the defendants, his brother, Ares, and his brother's wife, Marina, tortiously interfered with his expected inheritance from his father, Anthony.   In the tenth count, the plaintiff claims that the defendants are liable to him for common-law fraud.

The issues before the court are whether Connecticut recognizes a cause of action for tortious interference with an expected inheritance, and whether the plaintiff has alleged sufficiently detailed facts in support of his fraud count.   The court will first address the interference with inheritance claim.

As has been noted in other cases, there exists no appellate authority in this state recognizing a cause of action for intentional interference with an expected inheritance.   Only a few trial courts have addressed the issue.

The Connecticut Supreme Court referred to such an action in Hall v. Hall, 91 Conn. 514, 100 A. 441 (1917), but did not recognize such an action.   Therein, the defendants moved to strike a count in which the plaintiff claimed that he was deprived of his inheritance by the defendants “fraudulently procuring the execution of a pretended will, and fraudulently preventing him and his conservator from opposing the probate of the will, and appealing from the decree admitting it to probate.”  Id., 518.   The trial court struck the count.   The plaintiff failed to replead, and appealed from the judgment rendered thereon.  Id.

The Court commented that the plaintiff's claim for interference with his inheritance expectancy “might have stated a good cause of action against the defendants,” but that it had “no occasion to determine that point.”  Id., 520.   The reason the court did not determine the legal sufficiency of the count was because the will was found to be valid by the probate court, and that decree could not “be attacked collaterally except for fraud, or set aside save by appeal.” ¹  Id. The Court went on to consider the issue of whether the probate court decree was the product of fraud.  Id.

The cause of action was recognized by the trial court in Bocian v. Bank of America, N.A., Superior Court, judicial district of Hartford at Hartford, Docket No. CV–06–4019877 (December 8, 2006, Rittenband, J.T.R.) [42 Conn. L. Rptr. 483].   The defendant filed a motion to strike a count claiming interference with an expected inheritance claiming that there is no such action in Connecticut.   The court found “that there is a cause of action in Connecticut for tortious interference with an expected inheritance” reasoning that the action “is very similar if not identical to a recognized cause of action” in this state for interference with business relations.

Without reference to the Bocian case, the trial court in DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV–10–6007472–S (August 27, 2010, Peck, J.) (50 Conn. L. Rptr. 605, 607) denied a motion to strike a claim for interference with an expectancy of inheritance finding such an action to be valid.   In reaching its conclusion, the court interpreted the decision in Hall v. Hall, supra, 91 Conn. 514, to endorse such a cause of action,² found support in the Restatement (Second) of Torts,³ and that such an action is similar to other action recognized under the law of Connecticut, including tortious interference with a contractual relationship.   See also Vechiola v. Fasanella, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–10–5029378–S (February 7, 2013, Radcliffe, J.) [55 Conn. L. Rptr. 523] (finding that an action for interference with an expected inheritance is valid, and citing to the DePasquale decision and the Restatement (Second) of Torts);  Van Eck v. West Haven Funeral Home, Superior Court, judicial district of New Haven at New Haven, Docket No. CV–09–5031256–S (August 4, 2010, Zoarski, J.);   but see Moore v. Brower, Superior Court, judicial district of Waterbury, Docket No. CV–05–4010227 (June 14, 2006, Munro, J.) [41 Conn. L. Rptr. 681] (court granted motion to strike count alleging intentional interference with expectancy of inheritance concluding that Connecticut does not recognize such a cause of action).

The issue was presented to a federal trial court in this state in the context of a motion to dismiss in DiMaria v. Silvester, United States District Court, Docket No. 3:97CV1498 (AVC) (D.Conn. July 2, 1999).   In dismissing the third count of the complaint for failure to state a cause of action, “the court conclude[d] that Connecticut does not recognize a cause of action for the intentional interference with an inheritance.”  Id.

In the present action, the court is strongly persuaded by the Superior Court decisions in which the judges concluded that Connecticut would recognize a cause of action for intentional interference with an expected inheritance.   See, e.g., Clohessy v. Bachelor, 237 Conn. 31, 38–39, 46, 675 A.2d 852 (1996) (citing Restatement (Second) of Torts in recognizing action for bystander emotional distress);  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 125–28, 438 A.2d 1317 (1982) (citing Restatement (Second) of Torts in recognizing action for invasion of privacy);  Rossignol v. Danbury School of Aeronautics, 154 Conn. 549, 558–59, 227 A.2d 418 (1967) (citing Restatement (Second) of Torts in determining “the minimum essential allegations of a cause of action based on the theory of strict tort liability of a manufacturer or a seller of a product to an ultimate user or consumer”).   The court's view is further bolstered by the recognition of the action in the Restatement (Second) of Torts.

The court concludes, therefore, that the courts of this state would recognize a cause of action for intentional interference with an inheritance.   In view of the foregoing, the defendants' motion to strike the third count is denied.

The court will next address the defendants' claim that the plaintiff lacks standing to maintain the action set forth in the tenth count for common law fraud.   The defendants' assertion is grounded on their claim that only the plaintiff's father, Anthony, may legally assert a fraud claim.   The plaintiff claims in opposition that the allegations of the count clearly give him standing to make a common law fraud claim.

“The essential elements of an action in common law fraud ․ are that:  (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 ․ [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).

By way of incorporation, the plaintiff alleges in the tenth count that Ares made various representations that, among other things, caused the plaintiff to move into, and pay the maintenance costs of, their father's Fairfield, Connecticut residence;  Ares, in concert with the other two defendants, conducted themselves fraudulently causing the plaintiff injury.   In construing the complaint broadly and not narrowly as advocated by the defendants, the court concludes that the plaintiff has standing to bring a claim for common law fraud.   Therefore, the defendants' motion to dismiss the tenth count is denied.

TYMA, J.

FOOTNOTES

FN1. The court further noted that “[r]egarded as an attempt to state a cause of action for damages for depriving the plaintiff of his inheritance, the complaint is insufficient because it attempts to retry in a collateral proceeding the question of the validity of the will in the face of the outstanding decree of probate, which, as between the parties, affirms its validity;  and because it attempts to go to the jury on the question of damages for the deprivation of the inheritance by a short cut, without first asking the court as a court of equity to treat the decree as inoperative between the parties for the purposes of this action, or to prevent the defendants from setting it up as an estoppel of record.”   Id., 523–24..  FN1. The court further noted that “[r]egarded as an attempt to state a cause of action for damages for depriving the plaintiff of his inheritance, the complaint is insufficient because it attempts to retry in a collateral proceeding the question of the validity of the will in the face of the outstanding decree of probate, which, as between the parties, affirms its validity;  and because it attempts to go to the jury on the question of damages for the deprivation of the inheritance by a short cut, without first asking the court as a court of equity to treat the decree as inoperative between the parties for the purposes of this action, or to prevent the defendants from setting it up as an estoppel of record.”   Id., 523–24.

FN2. Although the court, as discussed later in this decision, agrees with the court's conclusion that the action is legally sufficient, the court disagrees with the following interpretation by that court of the Hall decision.  “In dicta, the Supreme Court stated that, but for the fact that the challenged will had been previously determined to be valid by the probate court, in a proceeding to which the plaintiff was a party, the plaintiff therein would have stated ‘a good cause of action.’   See Hall v. Hall, supra, 91 Conn. 519–20.”   As previously discussed, the Hall court stated only that the plaintiff may have stated a valid cause of action if the procedural circumstances were different..  FN2. Although the court, as discussed later in this decision, agrees with the court's conclusion that the action is legally sufficient, the court disagrees with the following interpretation by that court of the Hall decision.  “In dicta, the Supreme Court stated that, but for the fact that the challenged will had been previously determined to be valid by the probate court, in a proceeding to which the plaintiff was a party, the plaintiff therein would have stated ‘a good cause of action.’   See Hall v. Hall, supra, 91 Conn. 519–20.”   As previously discussed, the Hall court stated only that the plaintiff may have stated a valid cause of action if the procedural circumstances were different.

FN3. Several jurisdictions follow the Restatement (Second) of Torts definition of Intentional Interference with an Inheritance or Gift:  “One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”   4 Restatement (Second), Torts § 774B, p. 58 (1988).   Comment (d) to that section states that “[a]n important limitation upon the rule stated in this Section is that there can be recovery only for an inheritance or gift that the other would have received but for the tortious interference of the actor.   This means that, as in other cases involving recovery for loss of expectancies (see § 912 and Comments), there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.”  Id., comment (d), 59.   American Jurisprudence does not discuss the tort directly, but states that “[f]or the purpose of an action in tort, “property” may include ․ the expectancy of an inheritance, although there is contrary authority including authority holding that a claim for tortious interference with an anticipated inheritance may be unavailable when an adequate probate remedy exists.   (Footnotes omitted.)   74 Am.Jur.2d 695, Torts § 40 (2012).   Prosser Keeton on Torts describes the gradual evolution of the tort of “interference with an expected gift or a legacy under the will,” stating that early courts did not allow it on the theory that the testator could have later changed the gift or bequest even absent the fraudulent conduct, but that later courts permitted the tort with sufficient evidence of “a high degree of probability that the testator would have made or changed a bequest.”   W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed.1984) § 130 p. 1006–1007.   It goes on to note that “[l]ogically the damages recovered should be the value of the chance of benefit rather than the full value of the legacy.”  (Emphasis in original.)  Id., p. 1007 n.25..  FN3. Several jurisdictions follow the Restatement (Second) of Torts definition of Intentional Interference with an Inheritance or Gift:  “One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”   4 Restatement (Second), Torts § 774B, p. 58 (1988).   Comment (d) to that section states that “[a]n important limitation upon the rule stated in this Section is that there can be recovery only for an inheritance or gift that the other would have received but for the tortious interference of the actor.   This means that, as in other cases involving recovery for loss of expectancies (see § 912 and Comments), there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.”  Id., comment (d), 59.   American Jurisprudence does not discuss the tort directly, but states that “[f]or the purpose of an action in tort, “property” may include ․ the expectancy of an inheritance, although there is contrary authority including authority holding that a claim for tortious interference with an anticipated inheritance may be unavailable when an adequate probate remedy exists.   (Footnotes omitted.)   74 Am.Jur.2d 695, Torts § 40 (2012).   Prosser Keeton on Torts describes the gradual evolution of the tort of “interference with an expected gift or a legacy under the will,” stating that early courts did not allow it on the theory that the testator could have later changed the gift or bequest even absent the fraudulent conduct, but that later courts permitted the tort with sufficient evidence of “a high degree of probability that the testator would have made or changed a bequest.”   W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed.1984) § 130 p. 1006–1007.   It goes on to note that “[l]ogically the damages recovered should be the value of the chance of benefit rather than the full value of the legacy.”  (Emphasis in original.)  Id., p. 1007 n.25.

Tyma, Theodore R., J.