Opinion
No. CV 04 4001126
August 2, 2005
MEMORANDUM OF DECISION RE #103 MOTION TO STRIKE
FACTS
On December 16, 2004, the plaintiff, Donald E. Wilcox, filed a four-count complaint against the defendant, Robert H. Schmidt. This cause of action arises out of injuries and losses allegedly sustained as a result of the plaintiff transferring, as a capital contribution, $75,000 to Concepts Manufacturing, LLC (Concepts). The plaintiff alleges that in exchange for a capital contribution, he became a minority member in Concepts. The plaintiff further alleges that the defendant is a majority holder in Concepts and that he and the defendant are the only two members of the company. In count three of his complaint, the plaintiff alleges that the defendant took possession of and personally used benefit funds and assets of Concepts. Moreover, the plaintiff alleges that the defendant's conversion of the company funds and assets damaged the plaintiff's minority interest in Concepts.
Count one alleges breach of a fiduciary duty; count two alleges misappropriation of corporate opportunity; count three alleges conversion; and count four alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA).
On March 17, 2005, the defendant filed a motion to strike count three of the plaintiff's complaint, accompanied by a memorandum in support, arguing that the plaintiff has not alleged the necessary facts to support a claim for conversion. On March 30, 2005, the plaintiff filed memorandum in opposition.
DISCUSSION
It is well-settled that "[t]he proper method to challenge the legal sufficiency of a complaint is to CT Page 11769-e make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). "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 . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Courts have held that "[i]t 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." (Internal quotation marks omitted.) McCart v. Shelton, 81 Conn App. 58, 60, 837 A.2d 872 (2004). Moreover, "if facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
The defendant moves to strike count three of the plaintiff's complaint on the grounds that the claim is insufficient as a matter of law because the property the defendant allegedly converted belongs to Concepts, not the plaintiff. In support of his motion, the defendant also argues that as the majority owner and member of Concepts, his use of its assets could not be unauthorized. The plaintiff, however, argues that the facts alleged in count three of his complaint are sufficient to establish a prima facie case for conversion. The plaintiff maintains that he has an ownership interest in the allegedly converted property as a member of a limited liability company and that the defendant's use of said property was unauthorized.
In Connecticut, conversion has been defined as "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." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 329, 852 A.2d 703 (2004). CT Page 11769-f
"To make out a prima facie case in conversion, a plaintiff must allege that 1) the property at issue rightfully belongs to him, 2) the defendant deprived him of the use of this property for a period of time, 3) . . . the defendant's conduct was unauthorized, and 4) . . . the defendant's conduct harmed him." Heath v. Micropatent, Superior Court, judicial district of New Haven, Docket No. CV 970401481 (December 10, 1997, Fracasse, J.) ( 21 Conn. L. Rptr. 145, 148), citing Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993).
Moreover, where an owner of 50 percent of a professional corporation brought claims against the owner of the other 50 percent of the corporation, the Connecticut Supreme Court held that the defendant could be "individually liable for conversion, unjust enrichment, tortious interference with the corporation's reasonable business expectancies and breach of his fiduciary duty as a director of the corporation." Fink v. Golenbock, 238 Conn. 183, 210, 680 A.2d 1243 (1996). The Appellate Court has also highlighted that "[i]n attaching the assets of the individual defendant, the [Supreme] [C]ourt noted that `an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits . . . a tort, whether or not he acts on behalf of his . . . corporation, he is liable to third persons injured thereby,' . . . [T]he same rule applies to a limited liability company in this state." (Citation omitted.) Morris v. Cee Dee, LLC, 90 Conn.App. 403, 410 (2005).
As applied to the present case, the plaintiff has alleged a legally sufficient cause of action for conversion. Based on previous case law, the plaintiff can bring a conversion action against the defendant in spite of his status as a majority owner and member of Concepts. Whether the plaintiff can establish through evidence a cause of action for conversion is another matter entirely, and not the issue before this court. A motion to strike merely requires the court to consider the sufficiency of the allegations. Accordingly, the CT Page 11769-g motion to strike is denied as to count three.
Riley, J.