Opinion
No. X04 HHD CV-08-5026131 S
February 15, 2011
MEMORANDUM OF DECISION
The court heard oral argument on January 11, 2011 concerning the defendants David Preleski and Vitrano, Preleski and Wynne, LLC's motions to dismiss (#148) and to strike (#151), which are addressed to the plaintiff's third revised complaint (#146) (complaint). After consideration, for the reasons stated below, the motion to dismiss is granted in part and denied in part, and the motion to strike is granted.
At oral argument, plaintiff's counsel stated that the first, fifth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-ninth, and thirtieth counts of the complaint may be stricken. Accordingly, these counts are stricken and not discussed further in this decision. Similarly, since the twenty-sixth count was amended in the plaintiff's fourth amended complaint (#178), the court need not address the allegations made in the twenty-sixth count of the third revised complaint.
I
Standard Of Review
A
Motion To Dismiss
"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
B
Motion To Strike
The standard of review on a motion to strike is well established. "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). Legal conclusions in a complaint are not deemed to be admitted. See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
II
Discussion
A
Motion To Dismiss
1. Second and Sixth Counts
The second and sixth counts, which are pleaded against Preleski, are styled as claims for legal malpractice. The defendants argue that since the plaintiff lacks standing, the court lacks subject matter jurisdiction as to these claims. They contend that the claims asserted are not hers, but are claims which belong to non-parties, KC Development, LLC and DDB Developers, LLC. In addition, they assert that the plaintiff has not alleged that Preleski represented the plaintiff concerning these entities.
Each of the counts discussed below is addressed to Preleski, not to Vitrano, Preleski and Wynne, LLC. However, the motions were filed by both defendants. The court's rulings also apply to Vitrano, Preleski and Wynne, LLC.
"[S]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . and a judgment rendered without subject matter jurisdiction is void . . . Indeed, [o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) In re DeLeon J., 290 Conn. 371, 376, 963 A.2d 53 (2009).
"Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book] § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citations omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009). Here, the motion to dismiss is addressed to the allegations in the complaint.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action." Gold v. Rowland, supra, 296 Conn. 207. The burden of demonstrating that a party has standing to bring an action is on the plaintiff. See Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).
The court summarizes below the allegations in the second and sixth counts. In the second count, the plaintiff alleges that, at all times relevant to the complaint, she held a 50% interest in KC Development, LLC (KC). Her then-husband, Robert J. Tabacco, owned the other 50% interest in KC. She also alleges that, in November 2004, KC was represented by Preleski, as its attorney.
At the same time, she alleges that she "was personally represented by, and had an attorney-client relationship with," Preleski. See complaint, second count, ¶ 6. In addition, in paragraph 15, she alleges that Preleski previously had represented her in "several matters, and was thus her attorney who had a continuing duty of loyalty to her."
Prior to November 2004, Preleski and Robert J. Tabacco formed DDB Developers, LLC (DDB). In November 2004, Preleski and Robert J. Tabacco agreed to encumber property owned by KC. "Preleski, acting on behalf of [DDB] obtained a loan in the amount of $250,000.00." See complaint, second count, ¶ 9. To secure the loan, Preleski entered into a financial arrangement resulting in a mortgage against property owned by KC, "without the knowledge or consent of the Plaintiff[.]" See complaint, second count, ¶ 10. KC gave DDB a line of credit that enabled DDB to obtain the mortgage. "The $250,000.00 loan to [DDB] did not benefit [KC], or the Plaintiff, Lori T. Tabacco, personally." See complaint, second count, ¶ 12.
Preleski failed to make payments on the loan, and allowed it to enter into default, "resulting in the mortgage against the property owned by [KC] being a liability of that company." See complaint, second count, ¶ 13. Preleski used money from DDB to plaintiff's detriment, when he did not pay back the loan secured by KC's property.
Plaintiff claims that Preleski violated his duties of care and loyalty to her and to KC by encumbering KC's property without her knowledge or consent. She claims that, as a result of Preleski's breach of duty, she has suffered harm in the amount of $125,000.00, her portion of the debt incurred by Preleski's malpractice.
In the sixth count, the plaintiff alleges that, between February 2003 and April 2004, she advanced personal funds to DDB, with the expectation of repayment. Preleski sold DDB assets for less than fair market value, for his own personal use, and to the plaintiff's detriment. The money advanced by the plaintiff to DDB was never repaid.
She also alleges, in paragraph 12, that Preleski previously had represented her in "several matters, and was thus her attorney who had a continuing duty of loyalty to her." She again alleges that Preleski violated his duties of care and loyalty as her attorney to her and to KC by encumbering KC's property without her knowledge or consent. In addition, she alleges that Preleski violated these duties to her by selling DDB's assets for less than fair value, and using money from DDB for his personal use, as a result of which she suffered monetary damage.
The second and sixth counts thus both claim harm to the plaintiff as a result of Preleski's placing of the encumbrance on KC's property. Pursuant to General Statutes § 34-167(a), "[p]roperty transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually. A member has no interest in specific limited liability company property."
"[M]embers of a limited liability company do not have standing to bring claims solely belonging to the limited liability company." Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 220 n. 18, 982 A.2d 1053 (2009). "Because individual members of a limited liability company have no standing to sue, [a] suit must be brought in the name of the limited company and not in the name of individual members . . . In the present case, the limited liability company is the proper party to bring suit since it suffered the alleged harm." (Citation omitted; internal quotation marks omitted.) Zipp v. Florian, Superior Court, judicial district of New Britain, Housing Session at New Britain, Docket No. CVN-0310-1980 (November 13, 2006, Bentivegna, J.).
In addition, the court is unpersuaded by the plaintiff's contention that the scope of her attorney-client relationship with Preleski presents a question of fact. As noted above, the burden is on the plaintiff to demonstrate, through the factual allegations pleaded, that she has standing. As to the transactions at issue, the second and sixth counts do not allege "the existence of a relationship . . . by virtue of which [s]he would be the foreseeable beneficiary of the legal services rendered by the defendant[.]" Mozzochi v. Beck, 204 Conn. 490, 500, 529 A.2d 171 (1987).
Rather, the plaintiff alleges that Preleski was her attorney and that he engaged in conduct related to two separate and distinct entities, KC and DDB. She does not allege that Preleski's representation of her related to these entities. "It is axiomatic . . . that the duty of the attorney to act does not extend to the business of the client in general . . . The obligation of the attorney is to provide the service for which he was hired." (Citation omitted.) Somma v. Gracey, 15 Conn.App. 371, 379, 544 A.2d 668 (1988).
The cases cited by the plaintiff illustrate this point. In Dunham v. Dunham, 204 Conn. 303, 308, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n. 8, 682 A.2d 106 (1996), the plaintiff's legal malpractice claim "alleged that the defendant, while acting as the plaintiff's attorney, had engaged in various acts of professional misconduct, thereby causing harm to the plaintiff." Here, in contrast, as explained above, the plaintiff does not allege that the alleged misconduct occurred while Preleski was acting as the plaintiff's attorney. For example, as noted, she alleges that Preleski was acting on behalf of DDB when he obtained the $250,000.00 loan which resulted in the encumbrance on KC's property. See complaint, second count, ¶ 9.
Also, Dunham v. Dunham, supra, 204 Conn. 320, stated that "[w]hether an attorney-client relationship exists is an issue for the trier of fact . . ." in the context of a challenge to the court's instructions to the jury, not in connection with a motion to dismiss for lack of standing. While, as stated above, on a motion to dismiss, the court is required to take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader, the court may not add allegations which are not present. The plaintiff does not allege that Preleski was acting as her attorney concerning KC or DDB.
Similarly, in Solomon v. Aberman, 196 Conn. 359, 384, 493 A.2d 193 (1985), also cited by the plaintiff, the legal malpractice claim included allegations that "the defendant `counseled the plaintiff personally,' and in so doing he `in fact developed an attorney-client relationship with the plaintiff relating to [the Hall-Brooke] foundation matters.'" (Emphasis added.) Here, as discussed, although the plaintiff alleges that she had an attorney-client relationship with Preleski, she does not allege as to what it pertained.
Since the plaintiff has not established that she has standing, the motion to dismiss the second and sixth counts is granted.
2. Third, Fourth, Seventh and Eighth Counts
The third and fourth counts, for negligent infliction of emotional distress and intentional infliction of emotional distress, are premised on the factual allegations contained in the second count. Likewise, the seventh and eighth counts, for negligent infliction of emotion distress and intentional infliction of emotional distress, are premised on the factual allegations contained in the sixth count. The defendants contend that, for the reasons applicable to the second and sixth counts, the plaintiff lacks standing to pursue emotional distress claims based on the alleged malpractice.
The court discusses below, in connection with the motion to strike, the elements of negligent and intentional infliction of emotional distress claims. Clearly, such claims differ from claims for attorney malpractice.
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this 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.) Wilcox v. Webster Insurance, Inc., supra, 294 Conn. 214-15.
A plaintiff who alleges that she suffered from negligently or intentionally inflicted emotional distress is classically aggrieved. Whether she has alleged a legally sufficient claim is another matter, as discussed below concerning the motion to strike. The motion to dismiss the third, fourth, seventh, and eighth counts is denied.
3. Ninth and Tenth Counts
In the ninth count, the plaintiff incorporates by reference the same basic allegations as are alleged in the second count, which is discussed above. She adds, in paragraph 15, that by encumbering KC's property, Preleski breached his fiduciary duty to the plaintiff. In paragraph 16, she re-alleges that, as a result, she "suffered harm in the amount of $125,000.00, representing her portion of the debt incurred by [Preleski's] malpractice."
Similarly, the tenth count incorporates allegations from the sixth count, discussed above. Once again, in paragraph 12, the plaintiff alleges that Preleski previously had represented her in several matters and adds that he "had a continuing fiduciary duty to her." She alleges that Preleski breached his fiduciary duty to her by selling DDB's assets at less than fair market value and using money from DDB for his own personal use to the detriment of his client, the plaintiff.
"It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them. [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006).
In these counts, as in those based on attorney malpractice, the claims are based on the alleged attorney-client relationship. Again, these counts do not allege actual representation of the plaintiff by Preleski concerning KC or DDB. As discussed, the attorney-client relationship creates duties in the context of actual representation, not a general duty to represent the client's interests in all matters. Also, as discussed above in connection with the second count, the harm alleged in the ninth count was harm to KC, not to the plaintiff individually. In the tenth count, the selling of DDB's assets related to an entity, DDB. The plaintiff has not alleged facts showing a fiduciary duty owed to the plaintiff relating to DDB.
Accordingly, the plaintiff lacks standing to assert the claims made in the ninth and tenth counts.
B
Motion to Strike
1. Intentional Infliction Of Emotional Distress
The court discusses below six counts which claim intentional infliction of emotional distress. While the plaintiff asks the court to consider them all together, instead of individually, no authority is cited in support of the argument. The court must consider each count separately.
The four required elements of a claim for the intentional infliction of emotional distress are: "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965) [Restatement]. Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Thus, the legal sufficiency of a count which alleges the intentional infliction of emotional distress may be so tested by a motion to strike. See Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).
Accordingly, as discussed below, the court has performed its gatekeeper function concerning six intentional infliction of emotional distress counts, in the order in which they are presented in the complaint. In the fourth count, the plaintiff incorporates by reference the allegations from the second count, discussed above. As explained, she alleges that Preleski violated his duties of care and loyalty to her and to KC by encumbering KC's property without her knowledge or consent. Similarly, in the eighth count, she incorporates allegations from the sixth count. As discussed above, in the sixth count, the plaintiff alleges that Preleski violated duties to her by selling DDB's assets for less than fair value, and using money from DDB for his personal use.
These allegations of professional impropriety made against Preleski do not rise to the standard of extreme and outrageous conduct which is required. See Bradley v. Comley, Superior Court, judicial district of New London at New London, Docket No. CV 07 5005136 (December 2, 2009, Cosgrove, J.) (applying Rhode Island law with same standard, also based on § 46 of the Restatement; attorney's participation in efforts to undo sale of interest in property "not the sort of behavior that is actionable in a suit for intentional infliction of emotional distress").
In the thirteenth count, the plaintiff alleges intentional infliction of emotional distress as the result of Preleski's refusal to return legal files to her. This allegation of professional impropriety also does not rise to the level of extreme and outrageous conduct.
Similarly, in the sixteenth count, the plaintiff alleges that, in a filing with Connecticut's Secretary of State, Preleski had her name removed as a corporate officer, without following proper corporate procedure, which limited her ability to conduct business. In the nineteenth count, she alleges that Preleski failed to record a mortgage on property owned by her son, but later recorded a mortgage thereon when her son was incapacitated, listing KC as the mortgagee, for an amount greater than that which she loaned to her son. The plaintiff's son is not a party in this action. Accordingly, the court need not determine whether, as to him, such conduct would amount to actionable, extreme and outrageous conduct. The conduct alleged in these counts is not actionable by the plaintiff as the intentional infliction of emotional distress, since it does not rise to the atrocious level.
In the twenty-fifth count, the plaintiff alleges fraudulent conduct by Preleski related to a divorce action, in connection with real estate transactions, to benefit her former husband, Robert J. Tabacco, and to conceal marital assets in order to induce her to accept a lower sum than that to which she was entitled. While wrongful, such conduct also does not reach the atrocious level.
2. Negligent Infliction Of Emotional Distress
The court addresses below five counts in which the plaintiff alleges negligent infliction of emotional distress. The elements of a cause of action for the negligent infliction of emotional distress are: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Insurance Co., supra, 262 Conn. 444.
In contrast to intentional infliction of emotional distress, the conduct which is the subject of a negligent infliction of emotional distress claim need not be extreme and outrageous. See Davis v. Davis, 112 Conn.App. 56, 67-69, 962 A.2d 140 (2009).
"[R]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact . . . [R]ather, . . . in such cases, the defendant would not be liable unless the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Footnote omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 749, 792 A.2d 752 (2002). See Parsons v. United Technologies Corp., CT Page 4992 243 Conn. 66, 88, 700 A.2d 655 (1997) (plaintiff has the burden of pleading this element).
"In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found." (Internal quotation marks omitted.) Perodeau v. Hartford, supra, 259 Conn. 754.
In the third count, the plaintiff incorporates by reference the allegations of the second count, which is discussed above. In paragraph 17, she alleges that Preleski "knew or should have known that his conduct, as specified in paragraphs 1 through 16 of this count, involved an unreasonable risk of emotional distress, which could result in bodily harm or illness to the Plaintiff." In paragraph 18, she alleges that, as a result of Preleski's conduct, she "suffered emotional harm, distress, pain and suffering."
While, as stated above, Carrol v. Allstate Insurance Co., supra, 262 Conn. 444, sets forth the elements of the cause of action, it does not address pleading requirements. There, the court determined whether there was sufficient evidence at trial to support the jury's finding of liability. See id., 435.
The plaintiff does not allege the forseeability of the precise nature of the harm which was known or should have been anticipated by Preleski. Instead, all that she has alleged are general conclusions, not facts, to support this necessary element. As a result, the third count is legally insufficient to state a cause of action for negligent infliction of emotional distress.
The seventh, twelfth, fifteenth, and eighteenth counts also contain similar allegations, which likewise do not allege the forseeability of the precise nature of the harm which was known or should have been anticipated by Preleski. For the same reason these counts are stricken.
3. Conversion
The plaintiff alleges in two counts, the fourteenth and the twenty-eighth, that Preleski is liable for conversion. "The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm . . ." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 770-71, 905 A.2d 623 (2006). "The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believed that the item is one's own." Plikus v. Plikus, 26 Conn.App. 174, 180, 599 A.2d 392 (1991).
In the fourteenth count, the plaintiff alleges that, prior to divorce proceedings, she was an officer of Tabacco and Son Builders, Inc., a corporation which she and her then-husband formed. She alleges that, in January 2006, Preleski "filed an interim report with the Secretary of State limiting the ability of the Plaintiff . . . to conduct business, and also removing her as an officer of Tabacco and Son Builders, Inc." See complaint, fourteenth count, ¶ 3. Further, she alleges that "[t]he removal of the Plaintiff as an officer . . . was done without following proper corporate procedure." See complaint, fourteenth count, ¶ 4. She alleges that, in so doing, Preleski intended to and did in fact assume and exercise a right of ownership over the plaintiff's rights and property, without authorization, and to the exclusion of her rights. See complaint, fourteenth count, ¶ 5.
The common-law tort of conversion is not limited to actions involving goods or chattels. See ATC Partnership v. Windham, 268 Conn. 463, 466 n. 4, 845 A.2d 389 (2004). Nevertheless, the fourteenth count merely alleges that Preleski filed a report which removed the plaintiff as a corporate officer. It does not allege by whom the report was made. The allegations in the fourteenth count are insufficient to allege that Preleski assumed and exercised ownership powers over the plaintiff's property.
In the twenty-eighth count, the plaintiff alleges that, in January 2006, Preleski represented the plaintiff in the sale of Lot 6, Old Cider Mill Road, Bristol, Connecticut. She alleges that Preleski "used funds from closing to purchase a vehicle on behalf of Robert J. Tabacco," with a check drawn directly from his firm's client's fund account, without the plaintiff's knowledge, and to her detriment. See complaint, twenty-eighth count, ¶ 4.
"Under our case law, [m]oney can clearly be subject to conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Co., supra, 279 Conn. 771. "[A]n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money . . . It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use." (Emphasis added; internal quotation marks omitted.) Id., 772.
Here, the plaintiff alleges in the twenty-eighth count that Preleski used the money for the benefit of Robert J. Tabacco, not that he converted it to his own use. Accordingly, the twenty-eighth count is stricken.
Since the court has discussed each of the counts which require adjudication, the court need not address the defendants' additional arguments.
CONCLUSION
For the reasons stated above, the defendants' motion to dismiss is granted in part and denied in part. The second, sixth, ninth and tenth counts are dismissed.
The defendants' motion to strike is granted. In addition to those counts stricken by agreement, see footnote 1 above, the third, fourth, seventh, eighth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, twenty-fifth, and twenty-eighth counts are stricken. It is so ordered.