Opinion
No. CV 05-4016440-S
June 24, 2009
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE DATED MAY 20, 2009
FACTS AND PROCEDURE:
This is an action brought by Charles S. Silver and Gail McCue, Executrix of the Estate of Walter T. McCue, Jr., against Elizabeth Birmingham, the Town Clerk of the Town of East Granby and Attorney Donald Holtman, the Town Attorney for the Town of East Granby. It is in regard to premises located at 6 Herman Drive, East Granby. There is a long history of this litigation in that a previous action was brought in which the claim was that the Town Clerk on the advice of the Town Attorney had refused to record a notice of sale and other documents and had in fact returned them after recording and then unrecording them. This Court decided that case in favor of the defendants because the documents in question did not name the grantee in the notice of sale etc., and were, therefore, in violation of C.G.S. §§ 47-12a and 7-24(c). This Court's decision was upheld by the Appellate Court. Now there is another suit brought against Elizabeth Birmingham and Attorney Donald Holtman (hereinafter also "Birmingham" and "Holtman") because of their refusal to record an Affidavit of Facts attached to the plaintiffs' complaint (attached hereto as Schedule "A.") Defendants claim that under the first count the affidavit should not be recorded because the trust of which Charles Silver and Walter T. McCue. Jr., were the trustees. Walter McCue having died leaving Charles Silver as the only trustee, the trust technically is not the record owner of the property. Further, the affidavit does not identify the grantee or the current owner of the property. Moreover, the affidavit is technically incorrect in its assertion that on December 7, the trust executed a deed because only the trustees have the power to execute a deed, and finally because the plaintiff Gail McCue Executrix of the Estate of Walter T. McCue, Jr., lacks standing because she is not a successor trustee. Additionally, the defendants claim that the plaintiff, Charles Silver, as a former trustee, lacks standing to bring the claim because the property held in trust was conveyed on December 7, 1998 and the trust terminated on the same date. The defendants further claim that the second count of the plaintiffs' complaint is legally insufficient for the same reasons.
Editor's Note: Schedule A has not been reproduced herein.
The third count alleges that Holtman's alleged advice to Birmingham to remove the affidavit was beyond the scope of his duties as Town Attorney and that it violated the plaintiffs' rights under the recording statute 7-24(c). The fourth count alleges that Holtman's conduct was a result of an ongoing "political animus" which defendant Holtman held against the late Walter T. McCue, Jr., with respect to the subject property. The defendants claim that the fifth count should be stricken because the affidavit and the actions and advice of the defendants are neither required nor authorized to be recorded because it likewise fails to state a legally recognizable cause of action. The sixth count is a mirror image of the fifth count with the added allegations that the conduct of the defendants was done willfully and maliciously. The motion to strike was heard at short calendar before this Court on May 20, 2009.
STANDARD OF REVIEW:
"The purpose of a Motion to Strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state upon which relief can be granted. In ruling on a Motion to Strike, the Court is limited to the facts alleged in the complaint. The Court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996).
ISSUES AND FINDINGS:
There are a few issues that the Court will address before reaching the heart of the issues. They are:
1. The Court notes that in the Memorandum in Opposition to the Motion to Strike dated June 3, 2009 received by defendants' counsel and the Court the morning of the short calendar hearing, the plaintiff claims on page two paragraph six: "much of what defendants rely on for their Motion to Strike are matters outside the pleadings, which the Court may not consider under Practice Book § 10-39 ("efficiency of the pleadings"). However, in paragraph four of the plaintiffs' memorandum under BACKGROUND the first paragraph states in pertinent part "on December 7, 1998 they (Charles S. Silver and Walter McCue) executed a deed, conveying the trust's real estate at 6 Herman Drive, East Granby, to Patrick McCue and Christina McCue, Walter's son and daughter-in-law." That is certainly not in the substitute complaint dated October 30, 2007 and is a matter outside of the pleadings.
2. It is clear from the decision of the Appellate Court in Silver v. Holtman, 114 Conn.App. 439 (2009) that Gail McCue has standing to bring a claim against defendants for damages on behalf of the Estate of her late husband Walter McCue. Therefore, standing is not an issue.
3. It is true that this Court found a notice of sale and other documents which did not include the name of the grantee in violation of C.G.S. §§ 7-24(c) and 47-12a. The Appellate Court upheld this Court's decision.
The heart of the issue is as follows:
SHOULD THE AFFIDAVIT OF FACTS DATED JULY 20, 2005 BE RECORDED IN THE TOWN CLERK'S OFFICE IN EAST GRANBY?
The short answer is no.
Unlike the documents mentioned in this Court's prior decision because the grantee was not named, here it is not necessary to identify the grantee because this is not a notice of sale. It is merely an affidavit of facts. The purpose of C.G.S. § 47-12a is for the Town Clerk to know who owns the property in question.
Said affidavit of facts, attached hereto as Schedule A, is basically not untrue as to the statements made. A review is as follows:
1. Charles S. Silver (hereinafter also "Silver") states that he has personal knowledge of the facts stated in the affidavit.
2. "I am one of the trustees of the P.A.T. Irrevocable Trust (hereinafter "the Trust") and have accepted the Trust." There is nothing wrong with that statement.
3. The other trustee, Walter McCue, died on August 30, 2004. There is no reason to question that.
4. "The Trust is the record owner of the real estate located at 6 Herman Drive, in the Town of East Granby, Connecticut, as more fully described in Schedule A attached to this affidavit." There is nothing wrong with this statement.
5. "A Notice of Trust with respect to the Trust was recorded in the East Granby Land Records, in Volume 106 at page 495." There is no reason to question this statement.
6. "On December 7, 1998 the Trust executed a deed conveying the aforesaid real estate, but to the undersigned's knowledge that deed has not been recorded." There is nothing wrong with that statement.
7. On that date the Trust was terminated. There is nothing wrong with that statement.
The only parts of this affidavit that are questionable are that the affiant states that the Trust is the record owner of the real estate and at the top of the affidavit he states that the record owners are Charles S. Silver and Walter McCue, Jr.
These are conflicting statements. One states that the two trustees are the record owners of the real estate and the affidavit states that the trust is the record owner of the real estate in paragraph four. This is clearly in conflict.
In researching the issue of whether a trust can own real estate, there is no appellate language directly on point. Traditionally, "[a] trust is not a legal entity. A trust is not an entity distinct from its trustees and capable of legal action on its own behalf, but merley a fiduciary relationship with respect to property. A trust is not a legal `person' which can own property or enter into contracts. rather, a trust is a relationship having `certain characteristics.'" 76 Am.Jur.2d Trusts § 3 (2004).
Nevertheless, "[i]ncreasingly modern common-law and statutory concepts and terminology tacitly recognize the trust as a legal entity, consisting of the trust estate and the associated fiduciary relation between the trustee and the beneficiaries. This is increasingly and appropriately reflected both in language (referring, for example, to the duties or liability of a trustee to `the trust') and in doctrine, especially in distinguishing between the trustee personally or as an individual and the trustee in a fiduciary or representative capacity." Restatement (Third), Trust, Definition of Trust § 2, comment (a) (2003).
In Connecticut, "[t]he requisite elements of a valid and enforceable trust are: (1) a trustee, who holds the trust property and is subject to duties to deal with it for the benefit of one or more of the others; (2) one or more beneficiaries, to whom and for whose benefit the trustee owes the duties with respect to the trust property; and (3) trust property, which is held by the trustee for the beneficiaries." (Internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 545, 927 A.2d 903 (2007). Nevertheless, in Magowan v. Magowan, 73 Conn.App. 733, 812 A.2d 30 (2002), the Appellate Court did not object to a trust owning property. The issue in Magowan was whether the trial court improperly denied a husband's motion to open because there was a mutual mistake of fact by both parties related to the ownership of the marital home. Id., 737. The crux of the parties' dispute was focused on which trust owned the property. Id., 738. In deciding this matter, the court did, indeed, hold that one of the trusts did own the property. Id., 741. The fact that the Appellate Court did not object to a trust holding title to property is insightful and strongly suggests that Connecticut is following the modern trend that a trust is a legal entity which can own property. (Emphasis added.) Furthermore, in Ferreira v. State, Superior Court, judicial district of Danbury, Docket No. CV 322619 (January 6, 1997, Moraghan, J.), a trust, as owner of property, was a defendant. (Emphasis added.)
CONCLUSION:
From these cases this Court concludes that a trust can own property and can convey property. Of course, the trust in conveying property would have to be done by the trustees. The problem with the affidavit is that parts of it are in conflict. For example, it states that the record owner of the premises is the two trustees, although now it would be one trustee because Walter McCue died. The owner then would be the last remaining trustee, Charles Silver assuming he was the owner of the property before the trust was formed and which trust has now been terminated. The affidavit is sufficiently ambiguous by naming the two trustees as record owner and by naming the trust as the record owner. It would appear that the record owner would be Charles Silver, but the conflict makes the affidavit at the very least ambiguous and results in the Town Clerk not knowing from the affidavit who is the record owner of the premises and down the line the tax assessor might not know to whom the assessment should be levied.
Because of this conflict and ambiguity the motion to strike is granted.