Opinion
No. CV 05-4010111 S
November 7, 2006
MEMORANDUM OF DECISION
On June 19, 2006, the plaintiff, Jocelyn Consiglio, filed a sixteen-count second amended complaint, which contains sixteen counts against Lynn Consiglio, the defendant and the wife of the plaintiff's deceased father. The complaint arises out of a transfer of two properties owned by the decedent from the decedent to the defendant, and alleges eight claims regarding each property for damages and equitable remedies. The first eight count allege a claim for: (1) a resulting trust, (2) fraudulent representation, (3) lack of capacity, (4) a constructive trust, (5) damages for fraud, (6) damages for unjust enrichment, (7) damages under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., and (8) a declaratory judgment as to the ownership of the first property. The last eight counts mirror the first eight counts, but are in regards to the second property. On July 31, 2006, the defendant filed a motion to strike the first, third, fourth, fifth, seventh, eighth, ninth, eleventh, twelfth, thirteenth, fifteenth, and sixteenth counts of the second amended complaint. As to the first and ninth counts, the defendant argues that the plaintiff failed to allege that she contributed money to the purchase price of the properties. As to the third, fourth, eleventh, and twelfth counts, the defendant contends that the remedies requested are more appropriately dealt with in the counts claiming unjust enrichment. As to the fifth and thirteenth counts, the defendant maintains that the plaintiff failed to allege that the defendant made a false representation on which the plaintiff relied to her detriment. As to the seventh and fifteenth counts, the defendant argues that the plaintiff failed to allege a business relationship, which is a requirement under CUTPA. As to the eighth and sixteenth counts, the defendant claims that the plaintiff did not fulfill the notice requirements for declaratory judgment actions. On August 14, 2006, the plaintiff filed a memorandum in opposition to the defendant's motion.
"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 be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 347. "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, supra, 262 Conn. 498.
I
As to the first and ninth counts, the defendant argues that the plaintiff failed to allege that she contributed any money towards the purchase price of the properties in issue at the time of the conveyance to the defendant, which would be required to impose a resulting trust upon the properties. In response, the plaintiff counters that a resulting trust can also be imposed when the property at issue was conveyed without consideration and for a specific purpose and that purpose is either fulfilled or frustrated. She argues that the defendant convinced her father to sign a quitclaim deed for each property, which transferred those properties to the defendant, who was to hold the properties for herself and for the plaintiff. The plaintiff further claims that the defendant provided no consideration for either transaction, and that the court should reconvey the properties back to the plaintiff by way of resulting trust.
"When the purchase money for property is paid by one and the legal title is taken in the name of another, a resulting trust ordinarily arises at once, by operation of law, in favor of the one paying the money." (Internal quotation marks omitted.). CT Page 20597 Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). In order to impose a resulting trust, then, a plaintiff must show that he or she paid the purchase price and that title was taken in the name of another. See Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982). "A resulting trust exists where the acts or expressions of the parties indicate an intent that a trust relation result from their transaction." Cadle Company v. Zubretsky, Superior Court, judicial district of Hartford, Docket No. CV 04 0832777 (February 23, 2006, Hennessey, J.T.R.). "Where one person has acquired obstensibly absolute title to property when he was not intended to, under circumstances which indicate that he should not be permitted to retain absolute title, equity may impose a resulting trust . . . Where, for example, the property is conveyed without consideration for a particular purpose and that purpose is either fulfilled or frustrated, a court may find a resulting trust." Rebillard v. Hagedorn, 6 Conn.App. 355, 358, 505 A.2d 731 (1986).
In this case, the plaintiff has alleged that the defendant has acquired absolute title to her father's properties, and that the decedent's intent was that the defendant was supposed to have held the property for both the plaintiff and the defendant. If proven, these facts can give rise to the equitable remedy of a resulting trust. Thus, the defendant's motion to strike as to the first and ninth counts of the complaint is denied.
II
As to the third and eleventh counts, the defendant contends that the plaintiff's claim that the deeds be set aside by reason of incompetence is best addressed in the sixth and fourteenth counts, which concern unjust enrichment. She also argues that the plaintiff is seeking declaratory relief, and that the requirements for such relief have not been met. Specifically, the defendant argues that the plaintiff has failed to allege that there is an actual bona fide and substantial question or issue in dispute. The plaintiff asserts that she is not asking for a declaratory judgment, but rather, that she wants the deeds set aside because the decedent was incompetent when he signed those deeds, as a result of a brain tumor.
The "conveyances of persons non compos mentis, when not under guardianship, are voidable, and not void." (Emphasis omitted, internal quotation marks omitted.) Walsh v. Feustel, 93 Conn. 366, 370, 105 A. 696 (1919); Ervin v. Hosanna Ministry, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 94 048157 (November 8, 1995, Skolnick, J.). "The test of mental capacity to make a . . . deed is whether at the time of execution of the instrument the maker possessed understanding sufficient to comprehend the nature, extent and consequences of the transaction." (Internal quotation marks omitted.) Nichols v. Nichols, 79 Conn. 644, 657, 66 A. 161 (1907); Twichell v. Guite, 53 Conn.App. 42, 50, 728 A.2d 1121 (1999). "As an heir at law . . . the plaintiff possesses sufficient standing to have the deed to the defendant set aside." Reynolds v. Owen, 34 Conn.Sup. 107, 112, 380 A.2d 543 (1977).
In the present case, the plaintiff has alleged that she is the decedent's heir, as well as the beneficiary under all of his wills. She also alleged that the decedent had a brain tumor, which caused his death, and that, as a result, when he signed the deeds, he "did not have sufficient mental ability to execute such [deeds], and [they] should be declared invalid." The plaintiff, however, has failed to allege facts that establish that, at the time the deeds were executed, the decedent did not posses understanding sufficient to comprehend the nature, extent and consequences of the executions. She alleged merely a legal conclusion and does not support it with factual allegations regarding the decedent's understanding of the transactions. As to the third and eleventh counts of the plaintiff's complaint, the defendant's motion to strike is granted.
III
The fourth and twelfth counts of the plaintiff's complaint allege a claim for a constructive trust to be placed on the properties. In the defendant's motion to strike and memorandum of law, the defendant argues that a request for a constructive trust claim is not a recognized cause of action in Connecticut, and that such equitable relief would be more appropriately addressed in the claims for unjust enrichment. The plaintiff counters that a constructive trust can be imposed by the trial court and that such relief differs from a claim of unjust enrichment.
"[A] constructive trust arises contrary to intention and in invitum, against one who, by 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, in equity and good conscience, hold and enjoy." (Internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996). "A constructive trust is an equitable remedy imposed to prevent unjust enrichment." Gulack v. Gulack, 30 Conn.App. 305, 311, 620 A.2d 181 (1993). The decision to award a constructive trust involves the "equitable discretion of the trial court." Wendell Corp. Trustee v. Thurston, supra, 239 Conn. 120. A count requesting the imposition of a constructive trust is a request for an equitable remedy, and not a "substantive [cause] of action upon which the complaint is predicated . . ." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 623 n. 3, 804 A.2d 180 (2002), on remand, 277 Conn. 617, 894 A.2d 240 (2006).
In the present case, the plaintiff's complaint contains separate counts for constructive trusts and claiming unjust enrichment as to each property. As a constructive trust is a remedy in equity and not an independent cause of action, the defendant's motion to strike as to the fourth and twelfth counts is granted.
IV
In the fifth and thirteenth counts of the complaint, the plaintiff is seeking damages for fraud. The defendant argues that the plaintiff has failed to allege that the defendant falsely represented a statement of fact to the plaintiff that the plaintiff relied on to her detriment. In opposition, the plaintiff contends that she is suing in a representative capacity for her deceased father.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is established by showing that the party claiming it is . . . classically aggrieved." (Citations omitted, internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) West Farms Mall, LLC, v. West Hartford, 279 Conn. 1, 25, 901 A.2d 649 (2006).
In this case, the plaintiff claims that she is bringing this cause of action on behalf of her deceased father in a representative capacity. She alleges that she is her father's heir and beneficiary, and that the properties transferred to the defendant were supposed to have been transferred at least partially for her benefit. These allegations are sufficient to allow her to proceed with her claim, in a representative capacity, that the defendant may have defrauded the decedent.
"The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 709, 905 A.2d 1236 (2006). Specific acts must be pleaded, therefore "the mere allegation that a fraud has been perpetrated is insufficient." Id.
In the present case, the plaintiff has alleged that the defendant made false representations of fact to the decedent, upon which he relied. Specifically, she alleges that the defendant told the decedent that signing the deeds would protect his estate from creditors and probate. The plaintiff has alleged that the defendant knew that those representations were untrue and that the decedent believed the defendant and relied on those representations when he signed the deeds. The plaintiff has not alleged, however, that signing the deeds worked to the decedent's detriment. She has claimed that no consideration was given, and that the properties had been the decedent's assets for many years, but she has not made any specific factual allegations as to an injury to the decedent. She alleges only a detriment to herself as a result of the defendant's and decedent's actions. Therefore, the defendant's motion to strike the fifth and thirteenth counts of the complaint is granted.
V
The defendant next moves to strike that the seventh and fifteenth counts of the complaint should be stricken on the grounds that the plaintiff has failed to allege that she had a consumer, competitor, or business relationship with the defendant, as required under CUTPA. The plaintiff again asserts that she is bringing this cause of action as her father's representative and that her father had the required business relationship with the defendant as a result of the transfer of the properties.
"CUTPA imposes no requirement of a consumer relationship . . . [and is] not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury." (Citations omitted, internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 126 S.Ct. 1913, 164 L.Ed.2d 664(2006). "[A] plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Emphasis in original.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269 (2006). "[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002).
While CUTPA applies to a broad scope of commercial transactions, it is unclear whether a one-time transfer of private real estate by a person who was not in the business of selling real estate is a transaction for which a claim under CUTPA can be brought. There is a split among the Superior Court judges in Connecticut as to this issue. Some judges have held that "[s]imply, CUTPA applies to transactions involving trade or commerce." O'Shea v. Walker, Superior Court, judicial district of Tolland, Docket No. CV 05 4003814 (January 5, 2006, Klaczak, J.) ( 40 Conn. L. Rptr. 547); see also Lovick v. Nigro, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 542473 (February 24, 1997, Lager, J.). Nonetheless, the majority of judges have decided that "[a]lthough a single transaction may be the proper subject of a CUTPA count, the essence of the Act, despite its broad definition of `trade' and `commerce,' is its effort to provide a remedy for the unfair practices purpose of an existing or continuing enterprise, not misconduct that might occur in the course of a one-time transaction by a private individual." Wardak v. Wierzbicki, Superior Court, judicial district of Hartford, Docket No. CV 04 4002711 (April 17, 2006, Keller, J.); Kaplan v. Nuzzo, Superior Court, judicial district of New Haven, Docket No. CV 05 4013335 (November 9, 2005, Silbert, J.) ( 40 Conn. L. Rptr. 246); McCormick v. McCormick, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 03 0196643 (January 19, 2005, Wilson, J.). Additionally, the attorney general of Connecticut has taken the position that CUTPA does not apply to isolated nonbusiness transactions.
In Corna v. Polivka, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 332361 (July 29, 1988, O'Connor, J.), the Office of the Attorney General for Connecticut filed an amicus brief supporting the proposition that a private one-time sale of a residence should not support a claim under CUTPA.
Previously, this court has sided with the majority, stating that "[c]omplaints alleging a single instance or even isolated instances of unfair practices will not support an action under CUTPA" Renz v. Milano Development, Superior Court, judicial district of New Haven, Docket No. CV 94 0361546 (October 20, 1994, Zoarski, J.) ( 12 Conn. L. Rptr. 528); see also Sachs v. J. Henry Brett Insurance Agency, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0347995 (October 7, 1993, Zoarski, J.) ( 8 C.S.C.R. 1133). The defendant's motion to strike the seventh and fifteenth counts of the plaintiff's complaint is granted.
VI
Finally, the defendant argues that the eighth and sixteenth counts of the plaintiff's complaint should be stricken because the plaintiff did not comply with the requirements for a declaratory judgment as set forth in § 17-56(b) of the Practice Book. Specifically, the defendant contends that the plaintiff did not provide notice to those individuals who have an interest in the properties, namely, the plaintiff's siblings, who are the decedent's other heirs at law. The plaintiff argues that as the sole owner of the properties, only the defendant needed to be given notice of the request for declaratory judgment. She also appears to claim that she does not have siblings.
Practice Book § 17-56(b) states, in relevant part, that "[a]ll persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof . . .
"The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice."
The plaintiff's memorandum in opposition to the motion to strike states that the defendant "challenges the certificate, factually, as not having siblings. Factually, the plaintiff has none."
Practice Book § 10-39(b) states that "[a] motion to strike on the ground of noncompliance with Section 17-56(b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action."
The defendant has failed to comply with Practice Book § 10-39(b). Specifically, the defendant's motion to strike did not state the name and residence of the parties to whom she alleges the plaintiff did not give notice. The defendant does state that the missing parties are the plaintiff's siblings, but this is insufficient to fulfill the requirements of § 10-39(b), particularly in light of the fact that the plaintiff appears to be claiming that she does not have siblings. The defendant's motion to strike, as a result, is procedurally defective. Therefore, the motion to strike the eighth and sixteenth counts of the plaintiff's complaint is denied.
CONCLUSION
For the aforementioned reasons, the motion to strike as to counts one, eight, nine, and sixteen is denied and the defendant's motion to strike as to counts three, four, five, seven, eleven, twelve, thirteen, and fifteen is granted.