Opinion
No. CV 08 5004975S
May 18, 2009
MEMORANDUM OF DECISION
ISSUES
The plaintiff in its Motion To Strike has raised certain issues: (1) Whether the first special defense of contributory negligence should be stricken on the ground that negligence cannot be pleaded as a defense to causes of action alleging intentional conduct? (2) Whether the second special defense of setoff should be stricken on the ground that it fails to allege the existence of an independent transaction or a valid debt sufficient to support the defense of setoff? (3) Whether the first counterclaim of constructive trust should be stricken on the ground that Connecticut does not recognize an independent cause of action for constructive trust. The court grants the plaintiff's motion to strike the defendants' first special defense of contributory negligence and their second special defense of setoff. Further, the court grants the plaintiff's motion to strike the defendants' first counterclaim of constructive trust.
FACTS
This is an action brought in thirteen counts by the plaintiff, David Heimbrock, against Paul Heimbrock, Denise Heimbrock, Edmond M. Diorio, Timothy P. Kennedy and the Town of Roxbury, based on allegations of fraud, forgery, conversion and statutory theft. Counts one through six are made solely against Paul Heimbrock and Denise Heimbrock, who are the defendants for purposes of this memorandum as it is their special defenses and counterclaim alone that the plaintiff challenges in his motion to strike.
The plaintiff alleges the following. In count one, he brings a quiet title action against both defendants. He was and is the absolute owner of land located at 24 Carriage Lane in the town of Roxbury, acquiring the property by warranty deed from Derek and Barbara Hook on May 22, 1998. Thereafter, between November 12, 2002, and February 19, 2007, defendant Paul Heimbrock, who has occupied the property with defendant Denise Heimbrock since May 1998, fraudulently signed the plaintiff's name to a series of mortgage deeds and promissory notes, purportedly conveying an interest in the property, and encumbering the property with mortgages totaling more than $400,000. The plaintiff also alleges that defendant Paul Heimbrock fraudulently signed the plaintiff's name to two quitclaim deeds, purportedly transferring the entire interest in the real property from the plaintiff to defendant Denise Heimbrock.
Count two is a claim against defendant Paul Heimbrock for common-law fraud. Count three is a claim against defendant Denise Heimbrock for common-law fraud. Counts four, five and six are, respectively, claims against both defendants for statutory forgery under General Statutes § 52-565, conversion, and civil theft under General Statutes § 52-564.
The remaining claims are made against other defendants whose pleadings are not the subject of the plaintiff's motion to strike.
On January 16, 2009, the defendants individually answered the plaintiff's complaint, pleading the same special defenses of contributory negligence and setoff, and counterclaims for constructive trust, resulting trust, unjust enrichment, and quantum meruit. On February 17, 2009, the plaintiff filed his motion to strike the defendants' special defenses and first counterclaim of constructive trust, with a supporting memorandum of law. As to the defendants' first special defense of contributory negligence, the plaintiff claims that "contributory negligence cannot be pleaded as a special defense to causes of action alleging intentional conduct." As to the defendants' second special defense of setoff, the plaintiff claims that the "special defense fails to allege the existence of an independent transaction or a valid debt sufficient to support the defense of setoff." As to the defendants' first counterclaim for constructive trust, the plaintiff asserts that "Connecticut does not recognize an independent cause of action for constructive trust." On March 4, 2009, the defendants filed their joint objection to the plaintiff's motion to strike. On March 6, 2009, the plaintiff filed his reply. Oral arguments were heard on the short calendar on March 9, 2009.
DISCUSSION
"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] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "A motion to strike . . . may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985). In ruling upon a motion to strike, the court must construe the facts and the pleadings in a manner most favorable to the nonmoving party and, if the facts provable under the pleadings would support a defense or a cause of action, the motion to strike must fail. Rowe v. Godow, 209 Conn. 273, 278, 550 A.2d 1073 (1988); Mingachos v. CBS, Inc., 96 Conn. 91, 109 (1985). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A First Special Defense: Contributory Negligence
In their first special defense, the defendants allege contributory negligence, claiming that the plaintiff paid off the existing mortgage obligations, even though the defendants continued to make monthly mortgage payments and were not in default, thereby causing his own damages. The plaintiff moves to strike this special defense, arguing that "contributory negligence is a legally insufficient defense to a cause of action alleging intentional conduct." The defendants counter that they are "simply putting into issue the compensability of alleged damages caused directly by plaintiff's payoffs where such payoffs were not required," and that the special defense of contributory negligence frames the issues that the defendants intend to introduce at trial.
"The defense of contributory negligence does not apply where an injury is a result of wilful or wanton conduct." Bordonaro v. Senk, 109 Conn. 428, 431, [ 147 A. 136]. Cheneski v. Barber, Superior Court, judicial district of Danbury, Docket No. 307083 (February 7, 1992, Fuller, J.). "A special defense based on contributory negligence is not appropriate where the plaintiff alleges in the complaint that the defendant intentionally caused the plaintiff's injuries." Langer v. Hoffman Fuel Co. of Stamford, Superior Court, judicial district of Stamford, Docket No. CV 97 0157960 (March 4, 1998, Karazin, J.) (21 Conn. L. Rptr. 477, 477). See also Perez v. Earthgro, Inc., Superior Court, judicial district of New London, Docket No. 549691 (July 13, 2000, Martin, J.) (granting the plaintiff's motion to strike because he premised his complaint on the defendant's intentional conduct); Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942).
In the present case, all claims against the defendants are based on allegations of their intentional conduct. In count one to quiet title, the plaintiff alleges that the signatures on the mortgage deeds, promissory notes and quitclaim deeds that appear to be David Heimbrock's are forgeries, and he did not sign or authorize the signing of any one of them. In count two for common-law fraud, the plaintiff alleges that Paul Heimbrock "knowingly, intentionally and fraudulently signed the name of David Heimbrock" to the deeds and promissory notes. In count three for common-law fraud, the plaintiff alleges that Denise Heimbrock knew the plaintiff did not sign his name to the deeds, and by accepting proceeds from the mortgage loans and the conveyances, "knowingly aided, abetted and conspired with defendant Paul Heimbrock" to obtain the loans and deprive the plaintiff of his interest in the property. In count four for statutory forgery pursuant to § 52-565, the plaintiff incorporates by reference all allegations in previous counts, thereby including allegations of the defendants' intentional conduct. Similarly, in counts five and six, he incorporates by reference allegations of the defendants' intentional conduct from previous counts.
As all of the plaintiff's claims against the defendants rest upon allegations of the defendants' intentional conduct, it is submitted that the defendants' special defense of contributory negligence is improper, and therefore, that the plaintiff's motion to strike the defendants' first special defense should be granted.
B Second Special Defense: Setoff
In his memorandum of law, the plaintiff argues that the special defense of a setoff is legally insufficient because it fails to meet the requirements of General Statutes § 52-139 and Practice Book § 10-54, as follows. The alleged prior agreement between the plaintiff and defendants — which set out that the plaintiff would act as a straw-man purchaser of the premises on behalf of and in trust for the defendants — does not constitute an independent transaction, the claim is not presently due and owing, and is not in a liquidated amount. The defendants counter that the agreement is separate and distinct from the transactions in the complaint, is enough to constitute an independent transaction for purposes of a setoff, and that the trier of fact should consider their contributions to the premises during their years of occupation. They argue that the court has discretion to enforce natural equity. In his reply, the plaintiff cites additional case law to demonstrate that in failing to allege a debt whose amount has been determined by agreement of the parties or by operation of law, the defendants have only alleged an unliquidated claim.
The law of setoff is controlled by General Statutes § 52-139, which provides "(a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be setoff against the other. (b) No debt claimed by assignment may be setoff unless the plaintiff had notice, at the commencement of the action, that the debt was due the defendant." General Statutes § 52-139. "The right of set-off, whether legal or equitable, has always been confined to rights of action arising from contract." Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 713, 125 A.2d 488 (1956). A setoff is a debt independent of the transaction alleged in the complaint. Savings Bank of New London v. Santaniello, 130 Conn. 206, 210, 33 A.2d 126 (1943). "A condition precedent to the application of the setoff statute . . . is that the defendant's claim arises from a debt due from the plaintiff." Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 22, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). "Where there are no equitable considerations involved, a defendant . . . can set off debts only where they are presently due to him." Bridgeport City-Trust Co. v. Niles-Bement-Pond Co., 128 Conn. 4, 10, 20 A.2d 91 (1941). "[T]he debt must be a mutual one." General Consolidated, Ltd. v. Rudnick Sons, Inc., 4 Conn. Cir.Ct. 581, 586 (1967). "Mutual debts are cross debts in the same capacity and right and of the same kind and quality; they must exist between the parties in their own right and they must be clearly ascertained and liquidated." Armatino v. Romano, Superior Court, judicial district of New Haven, Docket No. 283687 (November 18, 1989, Cretella, J.) (1 Conn. L. Rptr. 60, 61). "It is the defendant's burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings." Petti v. Balance Rock Associates, 12 Conn.App. 353, 362, 530 A.2d 1083 (1987).
Practice Book § 10-54 provides that "[i]n any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiff's demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly; and the same shall be pleaded and replied to according to the rules governing complaints and answers."
1. Legal Setoff: Debt Due and Owing Liquidated
The defendants have not affirmatively alleged a debt that is presently due and owing by the plaintiff. "A debt is defined as an 'unconditional and legally enforceable obligation for the payment of money.' Ballentine's Law Dictionary (3d Ed.)." Petti v. Balance Rock Associates, supra, 12 Conn.App. 362.
In People's Bank v. Guttman, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0306692 (February 28, 1995, Hauser, J.), the court struck a claim for setoff based on the defendant's allegation that he "is entitled to recover damages from plaintiff for loss of the use of his property and for loss of the use of the income from his property." The court found that the defendant failed to allege the plaintiff presently owed a debt to the defendant. However, in Aitkin v. Pianka, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 4015879 (October 31, 2006, Rodriguez, J.), the court denied the plaintiff's motion to strike the defendant's claim for setoff arising from an alleged agreement between the parties to share equally in the company's liabilities and profits. In that case, the defendant alleged in one count that he paid $22,238 on the company's credit card and was entitled to half of that pursuant to the parties' agreement. Id. The court's reasoning appears to rest on the explicit terms of the business agreement, and the specific amounts alleged by the plaintiff.
Although the defendant claimed a setoff under General Statutes § 52-142, the court's analysis of a debt "presently due and owing" is relevant.
In the present case, the defendants do, in fact, allege an agreement whereby the plaintiff agreed to be a straw man who purchased the property "on behalf of and in trust for the defendants," that they paid all costs associated with the premises purchase, as well as "all of the mortgage payments and all other costs associated with owning, maintaining, improving and enhancing the [p]remises," and that the plaintiff "failed to pay the reasonable value of their services, materials and monies provided for, on behalf of or in connection with the [p]remises." However, they fail to allege that, at the time this action was brought, the plaintiff had a legal obligation to pay any money to the defendants, for mortgage payments or for "services, materials and monies provided for, on behalf of, or in connection with the premises." They have only requested money damages for such value. They have not alleged the existence of an agreement, for example, that unconditionally guarantees payment of all obligations owed. See, e.g., Allied Grocers Coop., Inc. v. Caplan, Superior Court, judicial district of New Britain, Docket No. CV 90 441266 (April 20, 1992, O'Neill, J.).
Several superior court cases address the liquidated aspect of the debt. In Troj v. Lane, Superior Court, judicial district of Fairfield, Docket No. CV 97 344737 (April 3, 1998, Thim, J.) (21 Conn. L. Rptr 652, 653), the court granted the plaintiff's motion to strike based on the unliquidated nature of the defendant's setoff claim. The defendants in that case alleged that "the plaintiff agreed to extend a water main to serve the mortgaged property, that he failed to perform the agreement, and that the defendants estimate the cost of extending the water main to be $7,900.00." Id. In The Frederick Corp. v. Scheckter, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084350 (April 26, 2001, Cremins, J.), the defendant alleged he was "entitled to a setoff as to any amounts the plaintiff claims owing by virtue of 'services, improvements and repairs not done by the plaintiff.'" (Emphasis added.) The court held that the defendant merely alleged an unliquidated claim, not a liquidated debt. Like Troj, the defendants in the present case have alleged only that the plaintiff agreed to act as a straw man, that he is essentially failing to live up to the terms of the agreement, and if he is awarded damages, then they are entitled to a reasonable amount for monies they expended in connection with the premises. If the plaintiff does not succeed on his claims, then there is no sum of money owed to the defendants.
In Pellegrino v. Wirth, Superior Court, judicial district of New Haven, Docket No. 306807 (March 5, 1992, Hadden, J.), the court granted the plaintiff's motion to strike because defendant's allegation that his "damages were an amount in excess of $55,000.00, exclusive of interest and costs, plus emotional distress" did "not set forth a certain or ascertainable sum." In addition, in Newman v. Seymour, Superior Court, judicial district of Litchfield, Docket No. CV 02 0088133, (February 11, 2003, Pickard, J.) (34 Conn. L. Rptr 98, 99), the court granted the plaintiffs' motion to strike, holding that the defendant's claim was not a setoff in that it was not a liquidated debt, "even though the defendant has spelled out his losses down to the penny." Based on the legal definition of liquidated debt as "one whose amount has been determined by the agreement of the parties or by operation of law," the defendant's claim for setoff was only an unliquidated claim for damages. Id. In that case, the defendant claimed that the plaintiff hired loggers who trespassed on the defendant's property and cut timber valued in excess of $6,000. Id.
Like Newman, the defendants in the present case allege that the plaintiff agreed to act pursuant to an agreement, and if the plaintiff wins the action, then he should reimburse the defendants for the mortgage and upkeep payments made by the defendants over a span of years. The court in Newman said this was not enough to constitute a liquidated amount because it was not alleged by agreement of the parties or by operation of law. Like Pellegrino, the defendants here do not allege a specific dollar amount for mortgage payments and the cost of improvements made to the premises over the period of time they occupied the premises. Even if they did allege a sum certain, according to Newman, the debt would not be liquidated because such an amount was not alleged by agreement of the parties or by operation of law.
2. Equitable Setoff
In their joint objection to the plaintiff's motion to strike, the defendants also claim they are entitled to an equitable setoff "An equitable set-off is the recognition at equity of the effect of multiple obligations between the parties, to prevent circuitry of actions." Savings Bank of New London v. Santaniello, 130 Conn. 206, 210-11 (1943). Mohsen v. Peters, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 90 033154 (June 20, 1991, Hodgson, J.) (6 C.S.C.R. 673) [4 Conn. L. Rptr. 239].
"In Connecticut, a setoff may be legal or equitable in nature . . . When the statutes governing legal setoff do not apply, a party may be entitled to equitable setoff, nonetheless, only to enforce the simple but clear natural equity in a given case." (Citations omitted; internal quotation marks omitted.) OCI Mortgage Corp. v. Marchese, 255 Conn. 448, 463-64, 774 A.2d 940 (2001). Equitable setoff "applies to cases where, because of the nature of the claim or the situation of the parties, justice cannot be obtained by a separate action." (Internal quotation marks omitted.) Peter Cascio Nursery, Inc. v. Green Acres, Inc., 3 Conn. Cir.Ct. 424, 428, 216 A.2d 856 (1965).
The defendants have not alleged that their setoff claim falls within the limits of equitable principles, namely, that there exists a debt owed, and that justice could not be obtained by a separate action. See Shoreline Bank Trust v. Leninski, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 92 335561 (March 19, 1993, Celotto, J.) [8 Conn. L. Rptr. 522] (granting a motion to strike the setoff because mortgagors did not plead the plaintiff was in debt to them or that justice could not be obtained by a separate action).
The defendants have neither alleged a legal setoff within the meaning of General Statutes § 52-139, nor an equitable setoff pursuant to case law. Therefore, it is submitted that the court should grant the plaintiff's motion to strike the defendants' second special defense of setoff.
C First Counterclaim: Constructive Trust
The plaintiff moves to strike the defendants' first counterclaim on the ground that a constructive trust is not an independent cause of action upon which a complaint may be predicated. He cites a footnote in Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 804 A.2d 180 (2002), on remand, 277 Conn. 617, 894 A.2d 240 (2006), as support for his argument that a constructive trust is, instead, an equitable remedy to prevent unjust enrichment. The defendants counter that the Macomber footnote does not translate into a holding that a cause of action for imposition of a constructive trust cannot constitute a separate cause of action, and that such a cause of action is, in fact, recognized in Connecticut. The plaintiff then brings forth several Superior Court cases that use Macomber as a basis for granting a party's motion to strike.
"In Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 (1919), Judge Cardozo wrote: A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee." Wynne v. Mariano, Superior Court, judicial district of New Haven, Docket No. CV 05 4013785 (May 30, 2008, Hadden, Jr., J.T.R.). To prevail, [the defendant] must establish that the [plaintiff] "holds title to property [and] is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." Filosi v. Hawkins, 1 Conn.App. 634, 638-39, 474 A.2d 1261 (1984).
"Our general standards governing the imposition of a constructive trust are well established. [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 or good conscience, hold or enjoy." (Internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996). "In order for a constructive trust to be imposed, the plaintiff must allege fraud, misrepresentation, imposition, circumvention, artifice or concealment, or abuse of confidential relations." Wing v. White, 14 Conn.App. 642, 642, 542 A.2d 748 (1988). "The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment. Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." (Internal quotation marks omitted.) Wing v. White, supra, 644. "The issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched." Stornawaye Properties, Inc. v. O'Brien, 94 Conn.App. 170, 176, 891 A.2d 123 (2006). "The decision to award a constructive trust involves 'the equitable discretion of the trial court.'" Wendell Corp. Trustee v. Thurston, supra, 120.
The plaintiff relies on a footnote in Macomber v. Travelers Property Casualty Corp., supra, 261 Conn 623, n. 3. The Macomber footnote states that "[t]he plaintiffs also requested that the trial court order an accounting of all moneys that allegedly were wrongfully obtained by the defendants in purchasing the structured settlements on the plaintiffs' behalf, and impose a constructive trust over such moneys. Although the plaintiff framed these requests as counts eleven and twelve of their complaint, these are issues to be addressed by the trial court upon remand because, rather than being substantive causes of action upon which the complaint is predicated, these counts request remedies, the appropriateness of which would be left to the discretion of the trial court if the plaintiffs, or either of them, were to prevail at trial." (Emphasis added.).
The plaintiff cites numerous Superior Court cases that interpret the Macomber footnote to mean that no independent claim for constructive trust is recognized in Connecticut. In Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 07 4014607 (Oct. 9, 2008, Gilligan, J.), the court stated that "since a constructive trust is a remedy in equity and not an independent cause of action, the defendant's motion to strike . . . is granted." In Consiglio v. Consiglio, Superior Court, judicial district of New Haven, Docket No. CV 05 4010111 (November 7, 2006, Zoarski, JT.R.), the plaintiff brought claims for imposition of a constructive trust, and for unjust enrichment. The defendant argued that a constructive trust is not a claim recognized in Connecticut and that such relief should be addressed in the unjust enrichment claim. Id. The court granted the motion to strike on the basis of Macomber. See also Priceline.com, Inc. v. Mayes, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0196820 (March 16, 2005, Adams, J.) (39 Conn. L. Rptr 9, 12) (citing Macomber that a constructive trust is a remedy usually associated with an equitable cause of action and is not a specific or separate cause of action, striking the count, "with the proviso that they may be sought in prayers for relief associated with appropriate causes of action"); Pelloni v. Donovan, Superior Court, judicial district of New Haven, Docket No. CV 05 4008922 (November 7, 2006, Zoarski, J.T.R.); Cadle Company v. Zubretsky, Superior Court, judicial district of Hartford, Docket No. CV 04 0832777 (February 23, 2006, Hennessey, J.T.R.); Gandolfo v. Barker, Superior Court, judicial district of Hartford, Docket No. 06 5003862 (March 11, 2008, Dubay, J.).
The defendants argue that the Macomber footnote is not settled law and that the Superior Court cases relying on it are misguided. They cite Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 680 A.2d 1314 (1996), wherein the Supreme Court specifically addressed the merits of a separate count for constructive trust, and in its reasoning, analyzed the elements for its imposition. The court noted the "similarities between the equitable doctrine of unjust enrichment and the equitable remedy of constructive trust." Id., 14. The court in Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993), stated that "[w]e need not determine whether the complaint was sufficient to allege a cause of action for a constructive trust because the defendant waived such a claim," essentially establishing that such a claim does exist independently. It also discussed the elements of a constructive trust, which includes the element of unjust enrichment. Granted, these cases pre-date Macomber.
However, in Cooke v. Cooke, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001276 (April 23, 2007, Matasavage, J.), cited by the defendants as support for the existence of an independent cause of action for constructive trust, the court found allegations that the defendant had committed fraud in his insider transactions with the property and that the defendant "now holds and enjoys said interest in the property and is unjustly enriched" fulfilled the elements of fraudulent conveyance and unjust enrichment, which are both necessary to a claim for constructive trust. Id. The plaintiff states in his reply that the court refused to strike the constructive trust claim on the basis that there were sufficient allegations to support a claim of unjust enrichment, the court citing Macomber in a footnote that constructive trust is not a cause of action but merely a remedy requested from the court. This is true, but it has been established that claims for unjust enrichment and constructive trust are similar and that an allegation that a party has been unjustly enriched is required in a claim for constructive trust. Therefore, despite the fact that the court cited Macomber, the result is that the count for constructive trust stayed. Simply because the defendants bring a separate count in unjust enrichment does not mean that the claim for constructive trust should fold into the claim for unjust enrichment.
In other post- Macomber cases, courts have considered the merits of constructive trust claims, lending support to the idea that an independent claim for constructive trust is indeed a substantive cause of action in Connecticut. In Stancil v. Kuhlor, Superior Court, judicial district of Bridgeport, Docket No. CV 05 4004890 (January 2, 2007, Maiocco, J.) [40 Conn. L. Rptr. 199], the court rejected a claim of constructive trust brought in a separate count. In rejecting the claim, the court based its reasoning on the plaintiff's failure to meet his burden of proof on the elements of constructive trust, specifically, "that any duty was owed to him by the defendant . . . or that a fiduciary relationship existed between them, or that the plaintiff was the victim of any fraud or unconscionable conduct on the part of the defendant, or . . . that the defendant was unjustly enriched to the detriment of the plaintiff." Id. The court did not state that such a claim did not exist. See also Colodonato v. Hanson, Superior Court, judicial district of Hartford, Docket No. CV 04 4004755 (August 11, 2006, Miller, J.) (stating that to prevail in its separate count for constructive trust, "the plaintiffs would have to prove the defendants committed actual or constructive fraud, or that the defendants have been unjustly enriched").
There exists no appellate authority clarifying the Macomber footnote. As discussed, Connecticut courts, both before and after Macomber, have recognized claims for constructive trust by considering the merits of such claims. However, even if such a substantive cause of action exists, the defendants have failed to allege facts to state that claim. While they allege that the agreement between them and the plaintiff arose from a confidential relationship, and that the plaintiff "wrongfully and unconscionably demanded the defendants vacate the [p]remises and renounce their interest in and to the premises," they have not alleged actual or constructive fraud, or unjust enrichment in their count for constructive trust.
For the foregoing reasons, while an independent cause of action for constructive trust may be valid in Connecticut, the plaintiff has not properly alleged sufficient facts to sustain such a claim in the face of a motion to strike. Therefore, the plaintiff's motion to strike the defendants' first counterclaim is granted.
CONCLUSION
In conclusion, the plaintiff's motion to strike the defendants' first and second special defenses is granted. The court further concludes that the plaintiff's motion to strike the defendants' first counterclaim for constructive trust is granted.