Summary
stating movant must show "clearly and without doubt that the matter sought to be stricken has no bearing on the . . . litigation"
Summary of this case from Norman v. All About Women, P.A.Opinion
Civil Action No. 19255-NC
Date Submitted: April 11, 2002
July 11, 2002
Michael S. Weidinger, Esquire, Alisa Erenshteyn, Esquire, Morris, James, Hitchens Williams LLP, 222 Delaware Ave., PO Box 2306, Wilmington, DE 19899.
David J. Ferry, Esquire, Rick S. Miller, Esquire, Ferry, Joseph Pearce, P.A., 824 Market St., Suite 904, PO Box 1351, Wilmington, DE 19899.
Dear Counsel:
Alice M. Cornelius (the "petitioner" or "Alice"), in her capacity as Executrix of her mother's Estate, has brought this action against her brother, Herbert W. Cornelius, Jr. ("Herbert"). Alice claims that Herbert used coercion, intimidation, and undue influence to gain title to certain assets formerly owned by the parties' mother, Dorothy W. Cornelius (the "decedent"); and that Herbert has wrongfully refused to turn over those assets to his mother's Estate. The petitioner requests, among other things, that the Court impose a constructive trust on those assets for the Estate's benefit.
Herbert has moved to dismiss the petition, or alternatively, has moved to strike certain of its allegations, and to order the petitioner to plead a more definite statement. For the reasons set forth below, the respondent's motions will be granted in part and denied in part.
I. FACTS
The facts recited herein are derived from the well-pled allegations of the petition. Weinberger v. UOP, Inc., 409 A.2d 1262, 1263-64 (Del. Ch. 1979).
At stake are two items of personal property, namely, $105,000 in funds from a bank account, and an automobile (collectively, the "Property"). The decedent owned the Property, and during her lifetime she either conveyed the Property to Herbert or titled it jointly in his name.
The decedent died on March 31, 1999, and was survived by her two children, Alice and Herbert. Alice, as petitioner, claims that Herbert, who lived with their mother until shortly before her death, was emotionally and verbally abusive to her. She further alleges that in 1995, their mother filed a petition for "protection from abuse" with the Family Court. That petition was accompanied by the decedent's affidavit, which stated that the respondent was "verbally abusive" and had acquired "several guns." The decedent eventually dismissed the petition, however, and continued living with Herbert until shortly before she died.
Petition ¶ 11 (quoting affidavit).
During her lifetime, the decedent owned a Capital Growth Account at CoreStates Bank, which was titled jointly in the names of herself and Alice. As of June 1998, that account was valued at approximately $120,000. The petition alleges that the decedent intended for the funds in that account to pass through the residuary clause of her will in equal parts to her two children. In June 1998, however, the decedent withdrew $105,000 from that account and placed it in a new account at MBNA, which she titled in the joint names of herself and Herbert. The petitioner claims that even though the decedent placed those funds in Herbert's name (as a joint owner), she nonetheless intended for the $105,000 to be divided equally between her two children after her death.
In July 1997, the decedent purchased a new automobile for approximately $19,000. Although the car was originally titled jointly in her name and Herbert's, while the decedent was hospitalized she transferred the car outright to Herbert as a gift in 1998. The petitioner claims that in fact the car was gifted to Herbert "for convenience only" and that her mother intended for the car to pass through her Estate (and thus become the property of both children) after her death.
Petition ¶ 16. The petitioner also claims that Herbert obtained cash from the decedent during the last years of her life "through undue influence, coercion and intimidation." Id. ¶ 17.
Because Herbert has refused to turn any of the Property over to the Estate, the petitioner asks this Court to impose a constructive trust on the Property for the Estate's benefit.
* * *
Herbert moves to dismiss the petition on the ground that it is time-barred because it was not filed within the three-year period of limitations. Alternatively, Herbert moves to dismiss Count IV of the petition (which alleges that the titling of the Property in Herbert's name as a joint owner was a mistake), on the ground that the petition fails to plead mistake with sufficient particularity. Herbert also moves for a more definite statement as to paragraph 17, which alleges that Herbert "obtained cash" from the decedent. Finally, Herbert moves to have all references to the Family Court proceeding (including the decedent's affidavit filed therein) stricken from the petition.
II. ANALYSIS
A. The Contention That This Action Is Barred By the Statute Of Limitations
Herbert first contends that this action must be dismissed because the petition was filed after the expiration of the three-year period of limitations. The petitioner responds that because the relief sought is equitable (specifically, the imposition of a constructive trust), the applicable time-bar principle is the equitable defense of laches, rather than the statute of limitations.
Both sides agree that if the statute of limitations governs this case, the applicable statute is 10 Del. C. § 8106, which provides pertinently that:
No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action. . . .
The parties dispute whether the nature of the relief being sought here is legal or equitable. If the claims are legal, the statute of limitations would be applied without any reference to laches; if the claims are equitable, then laches would be the appropriate defense. I find it unnecessary to decide this issue, because assuming without deciding that the statute of limitations governs, the petition was filed within the limitations period, i.e., within three years from the time the cause of action accrued.
Generally, "where the relief sought in equity in a so-called complaint for an accounting is actually the mere recovery of money," the case is analogous to an action for monetary damages, and the statute of limitations will be applied. Artesian Water, Co. v. Lynch, 283 A.2d 690, 692 (Del.Ch. 1971); see also Fike v. Ruger, 754 A.2d 254, 260 (Del.Ch. 1999), aff'd, 752 A.2d 112 (Del. 2000) (quoting Artesian Water).
The issue is when the petitioner's cause of action accrued. As a general matter, "[a] cause of action accrues at the moment of the wrongful act, even if the plaintiff is ignorant of the wrong." The parties dispute at what point the alleged "wrongful act" took place. Herbert argues that if there were any wrongful acts, they took place at the times he received joint ownership of the bank account and the car from his mother. Both events (Herbert argues) occurred more than three years before this lawsuit was filed. The petitioner contends, on the other hand, that the wrongful act did not occur until after the decedent died, at which time Herbert refused petitioner's demand to turn over the bank account and the car to the Estate. If that latter conduct constitutes the wrongful act, then it would have occurred within the three-year limitations period.
Fike, 754 A.2d at 260 (citing In re Dean Witter P'ship Litig., 1998 WL 442465, *4 (Del.Ch.)).
From the petition it can be inferred that the petitioner commenced this action within the three-year limitations period. According to the petition, the intimidation and coercion exerted by the respondent continued until the decedent's death. The petitioner alleges that Herbert, who arguably was in a relationship of trust and confidence with his aged mother, engaged in an ongoing campaign of intimidation and fraud that prevented her from removing him as a bank account signatory and also from taking steps to assure that the Property passed equally to both her children. As thus viewed, the petition adequately pleads that the allegedly wrongful conduct continued until the decedent died in March 1999 — i.e., within three years of the filing of this action.
Petition ¶¶ 15, 16 (stating that the survivorship right and the car were obtained by Herbert "through undue influence, coercion and intimidation of the Decedent, which acts of intimidation continued though the time of her death").
The petition was timely filed for a separate reason. It alleges that Herbert committed a wrongful act by refusing to turn over the bank account and the car to the Estate, in violation of his mother's wishes. The petitioner claims that her mother's creation of the joint bank account with a right of survivorship, as well as her transfer of the car to Herbert, were for "convenience only," and that the decedent never intended for that Property to "pass with the right of survivorship to [Herbert]." Based on those pled facts, the petitioner has adequately alleged that Herbert breached an implied agreement with his mother to surrender the property to her Estate upon her death — an act of wrongdoing that could not occur until after her death, i.e., within the limitations period.
Id.
Likewise, for the conversion claim, the cause of action did not accrue until Herbert refused to turn the property over to the Estate.
B. The Motion For A More Definite Statement
Paragraph 17 of the petition claims that Herbert "obtained cash from the Decedent during the final years of her life to be used for his own purposes and not for the benefit of the Decedent." The cash and proceeds were allegedly "obtained through undue influence, coercion and intimidation of the Decedent." Herbert has moved for a more definite statement regarding that allegation, urging that "there is no basis from which Herbert can determine the nature of the claim asserted against him," and because "the averment is simply too vague and indefinite to support a response." I agree.
Petition ¶ 17.
Def. Op. Br. at 10.
Court of Chancery Rule 12(e) provides that if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement. To withstand a Rule 12(e) motion, the complaint must be sufficiently intelligible for the Court to discern one or more potentially viable legal theories on which the claimant might proceed. I find that the claim that Herbert "obtained cash for his own purposes" through "undue influence, coercion and intimidation" is too vague to enable the respondent to frame a response, because the petition alleges no specific transaction or transactions in which cash was wrongfully obtained. Accordingly, Herbert's motion for a more definite statement will be granted.
5A Wright Miller, Federal Practice Proc.: Civil 2d § 1376, at 577-78 (2d ed. 1990).
C. The Contention That The Petitioner Has Not Alleged Mistake With Particularity
In paragraph 28 of the petition (Count IV), the petitioner claims that her mother titled the Property in Herbert's name by mistake. Herbert contends that Count IV fails to meet the Court of Chancery Rule 9(b) standard, which is that "all averments of fraud or mistake shall be stated with particularity."
Again, I agree. Although the petition alleges that the decedent did not intend for the Property to pass to Herbert by right of survivorship, it fails to plead nonconclusory facts that would support a claim that the decedent's acts were the product of a mistake. It is not alleged, for example, that the decedent gave Herbert a right of survivorship to the Property without understanding the import of her act, or that she and Herbert otherwise misapprehended the nature of the legal title she created. Nor is it clear whether the petitioner is alleging a mutual or unilateral mistake. That distinction is important because a different standard would govern, depending on what type of mistake is involved. On that basis, Count IV will be dismissed with leave to amend.
See, e.g., Colvocoresses v. W.S. Wasseerman Co., 28 A.2d 588, 589-90 (Del.Ch. 1942) (discussing unilateral mistake and mutual mistake standards).
Gracelawm Mem'l Park, Inc. v. Eastern Mem'l Consult., Inc., 291 A.2d 276 (Del. 1972) (per curiam).
D. Motion To Strike
Under Court of Chancery Rule 12(f), the Court may order any immaterial, impertinent, or scandalous matter to be stricken from any pleading. Herbert contends that the decedent's affidavit, filed in the Family Court proceeding that the decedent brought against Herbert in 1995, is scandalous and bears little relevance to this action. Herbert also argues that the affidavit should be stricken from the petition, because it constitutes inadmissible hearsay.
I deny the motion for two reasons. First, there is no merit to the argument that the references to the Family Court proceeding are "immaterial, impertinent, or scandalous." Motions to strike are "not favored." To succeed on a motion to strike, the respondent must "show clearly and without doubt that the matter sought to be stricken has no bearing on the subject matter of the litigation." If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied. The respondent has not met that burden.
Topps Chewing Gum, Inc. v. Fleer Corp., 1986 WL 538 (Del.Ch.), aff'd, 539 A.2d 1060 (Del. 1988).
Id.
Id.
Second, it is too early in this proceeding to determine whether the affidavit filed with the Family Court should be stricken as inadmissible hearsay. The Court need not make an evidentiary ruling at this stage, because it may be the case that the petitioner intends to use the affidavit for a purpose that would not violate any rules of evidence.
III. CONCLUSION
For the reasons set forth above, the respondent's motion to dismiss the petition on limitations grounds is denied. The respondent's motion to strike references to the affidavit and to the Family Court proceeding is also denied. The respondent's motion for a more definite statement in paragraph 17 of the petition, and his motion to dismiss Count IV of the petition, are granted with leave to amend. IT IS SO ORDERED.