Opinion
No. HHD X04 CV-09-5032917 S
March 31, 2010
MEMORANDUM OF DECISION
The court heard argument on February 2, 2010 concerning the defendants' motion to strike (#111) the plaintiff's first amended complaint (complaint). After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted in part and denied in part.
I BACKGROUND
In the complaint, the plaintiff, Belveron Partners Fund I, LP (Belveron), a limited partnership, seeks declaratory relief, specific performance, damages, an accounting, and other relief, against defendants Augustus Manor Associates Limited Partnership (Augustus Manor), Errol Rhoden, and The Related Companies, Inc. (Related). Rhoden and Related are alleged to be general partners of Augustus Manor. Belveron claims that the defendants, without justification, have refused to acknowledge Belveron as an assignee limited partner and refused to pay distributions of partnership profits and surplus to Belveron, as an assignee of a limited partner of Augustus Manor, as required by the applicable partnership agreement and governing law.
Belveron alleges that, in November 2008, it purchased approximately 47% of the outstanding units of limited partnership interests of Augustus Manor from non-party SHP Acquisitions II, LLC (SHP), and acquired the right to all distributions made by Augustus Manor with respect thereto. See complaint, ¶ 19. Belveron further alleges that Augustus Manor has indicated that distributions will be sent only to the original limited partners. See complaint, ¶ 20.
In Count I of the complaint, Belveron seeks a declaratory judgment and claims that, in refusing to provide distributions to Belveron, the defendants have violated General Statutes § 34-27, which provides, in relevant part, "(a) Except as provided in the partnership agreement, a partnership interest is assignable in whole or in part." In Count II, Belveron claims that the defendants' refusal is in breach of the Second Amended and Restated Certificate and Agreement of Limited Partnership, dated March 1, 1983 (Agreement), a copy of which is annexed to the complaint.
Based on claimed tortious interference with contractual relations and business expectancy, Belveron alleges in Count III that the defendants have knowingly and intentionally interfered with its contractual relations with SHP by refusing to acknowledge Belveron as an assignee limited partner, by refusing to allocate profits with respect to the units which Belveron purchased from SHP, and by refusing to pay distributions to Belveron. Further, in Count IV, Belveron claims that the defendants' acts and omissions violate the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b, et seq. (CUTPA). In Count V, Belveron alleges that the amount of distributions that may be due and owing is not readily ascertainable and seeks an order requiring an accounting.
The defendants move to strike all counts. As to Count I, they contend that whatever requirements imposed by General Statutes § 34-27 are expressly subject to the provisions of the Agreement, which gives the defendant general partners exclusive discretion to withhold consent to the assignment at issue. For the same reason, and because they contend that the Agreement precludes any claim that the parties to the Agreement intended to confer any benefit on Belveron as a third-party beneficiary, they seek to strike Count II.
At oral argument, the defendants stated that they were withdrawing their contention that Count I should be stricken due to lack of notice to interested parties of Belveron's claim for a declaratory judgment.
As to Count III, they argue it should be stricken because Belveron has not alleged that they interfered with SHP's performance of its contract with Belveron, because Belveron's claim is speculative, and because Belveron fails to allege any tortious or similar wrongful conduct by the defendants. Concerning Count IV, they assert that Belveron has not alleged any unfair or deceptive conduct within CUTPA's purview. They contend that Count V should be stricken since Belveron has failed to allege that they owe it a duty to account or any other equitable justification for an accounting.
The motion to strike is not addressed to the complaint's prayer for relief.
II STANDARD OF REVIEW
The standard of review on a motion to strike is well established. "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 . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009). "[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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). 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).
A motion to strike may be utilized to "trigger the trial court's determination of a dispositive question of law." Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). Whether the plaintiff properly has alleged the elements of a claim is a question of law that should be resolved by a motion to strike. See Marr v. WMX Technologies, Inc., 244 Conn. 676, 681, 711 A.2d 700 (1998).
III DISCUSSION A Count I
General Statutes § 34-27 is part of the Uniform Limited Partnership Act, General Statutes §§ 34-9 through 34-38q (ULPA). See Madison Hills Limited Partnership, II v. Madison Hills, Inc., 35 Conn.App. 81, 84, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). Section 34-9(16) defines a "partnership interest" to mean "a partner's share of the profits and losses of a limited partnership and the right to receive distributions of partnership assets."
The defendants contend that the language of the Agreement is controlling here, since General Statutes § 34-27 expressly provides that its provisions are subject to the language of an applicable partnership agreement, by stating that " [e]xcept as provided in the partnership agreement, a partnership interest is assignable in whole or in part." (Emphasis added.) They argue, that according to the plain meaning of the statutory language, the ULPA defers to the partnership agreement with respect to a partner's ability to assign a partnership interest, and contemplates that a partnership agreement may impose restrictions on transfers beyond those in the statutes. In particular, they rely on Section 11.1 of the Agreement, page 41, which states that "except as may be otherwise required by the Partnership Law with respect to a Limited Partner's right to assign his share in the profits and surplus of the Partnership, no Limited Partner shall have the right to assign or transfer all or any part of his Interest in the Partnership except with the consent of the General Partners, the giving or withholding of which is exclusively within their discretion . . ." In their brief, the defendants state that there is no Connecticut case law which prohibits such consent requirements. See defendants' memorandum of law (#112), p. 8.
Citing General Statutes § 34-27, the Appellate Court has twice stated that a partner may assign his or her right to the distribution of profits from a partnership without the consent of the other partners. In Bricklin v. Stengol Corp., 1 Conn.App. 656, 667, 476 A.2d 584, cert. denied, 194 Conn. 803, 482 A.2d 709 (1984), the court stated, "While it is true that a new partner cannot be admitted to a partnership without the consent of the other partners unless the partnership agreement provides otherwise; . . . a partner may assign his right to the distribution of profits from the partnership without the consent of the other partners. General Statutes 34-27 (ULPA)[.]" (Footnote omitted; citations omitted.)
Although the court in Bricklin v. Stengol Corp., supra, 1 Conn.App. 668, did not set forth the terms of the applicable partnership agreement concerning assignment of partnership interests, the court's discussion of § 34-27 was not dicta. "[A] court's discussion of matters necessary to its holding is not mere dictum . . . Dictum includes those discussions that are merely passing commentary . . . those that go beyond the facts at issue . . . and those that are unnecessary to the holding in the case . . . [I]t is not dictum [however] when a court . . . intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of the controversy . . . Rather, such action constitutes an act of the court [that] it will thereafter recognize as a binding decision." (Internal quotation marks omitted.) Cruz v. Montanez, 294 Conn. 357, 376-77, 984 A.2d 705 (2009). In Bricklin, the court's interpretation of § 34-27 was integral to its finding that the trial court's construction of a Florida judgment was in error. See Bricklin v. Stengol Corp., supra, 1 Conn.App. 667-68.
More recently, in discussing charging creditors, the court reiterated its interpretation and stated that "[a]lthough § 34-30 provides that the charging creditor has the rights of an assignee; General Statutes § 34-30; and assignees have a right to the partner's distributions; General Statutes § 34-27; neither § 34-30 nor § 34-27 provides a method for the assignee to enforce that right." Madison Hills Limited Partnership, II v. Madison Hills, Inc., supra, 35 Conn.App. 88.
General Statutes § 34-30, concerning the rights of a judgment creditor to charge partnership interest provides, "[o]n application to a court of competent jurisdiction by any judgment creditor of a partner, the court may charge the partnership interest of the partner with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the partnership interest. Nothing in this chapter shall be held to deprive a partner of the benefit of any exemption laws applicable to his partnership interest."
Decisions of the Appellate Court on statutory interpretation are binding on this court. See State v. Fernando, 294 Conn. 1, 20 n. 15, 981 A.2d 427 (2009) (citing the decisional hierarchy in the court system). While the Appellate Court's decisions, cited above, do not explain how its interpretation of § 34-27(a) takes into account the first phrase of the statute, "[e]xcept as provided in the partnership agreement," that does not mean that this court may employ a different interpretation.
In Justice Palmer's dissent, to which the majority's footnote alludes, he stated, id., 97, n. 21, "the statutory interpretation adopted by the Appellate Court . . . is binding statewide unless and until this court overrules the Appellate Court's interpretation or the legislature amends the statute."
In view of the appellate decisional law in this state, the court need not consider decisions, cited by Belveron, from other jurisdictions.
An explanation for the Appellate Court's view of § 34-27 may be found in the public policy which disfavors restrictions on the alienation of property. See Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 296, 828 A.2d 52 (2003) (noting "strong public policy against restraints on the alienation of property"). In construing uniform partnership acts, the Supreme Court has looked to the official commentary. See Brennan v. Brennan Associates, 293 Conn. 60, 84, 977 A.2d 107 (2009) (concerning Revised Uniform Partnership Act of 1997). Section 702 of the Revised Uniform Limited Partnership Act (1976), contains the same language as § 34-27(a), quoted above. The official commentary thereto states, in relevant part, "[w]hile the first sentence of Section 702 recognizes that the power to assign may be restricted in the partnership agreement, there was no intention to affect in any way the usual rules regarding restraints on alienation of personal property."
A "partner's transferable interest is deemed to be personal property, regardless of the nature of the underlying partnership assets." (Internal quotation marks omitted.) Gorelick v. Montanaro, 119 Conn.App. 785, 804 (2010) (citing commentary to Uniform Partnership Act). See Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 282, 492 A.2d 180 (1985) (transfer of a partner's interest "from one individual to another does not convert it from personal to real property"); General Statutes § 34-347.
The Agreement, as stated above, provides, in Section 11.1, that, except as may be otherwise required by partnership law, the right to assign or transfer all or any part of a limited partner's interest in the partnership requires the consent of the general partners. In so providing, it may be read as consistent with General Statutes § 34-27, as interpreted by the Appellate Court, in exempting assignment of the rights to distributions from the consent requirement.
Similarly, Section 11.6 of the Agreement, page 44, provides, "[a]ny Person who becomes an assignee of a Limited Partner pursuant to a valid assignment satisfying the conditions of this Article XI and who does not become a Substitute Limited Partner, in accordance with Section 11.4, shall have the right to receive the same share of profits, losses and distributions of the Partnership to which the assigning Limited Partner would have been entitled if no such assignment had been made by such Limited Partner." This section acknowledges the distinction between becoming a limited partner and being an assignee having the right to receive distributions.
Accordingly, since Count I states a legally sufficient claim for a declaratory judgment, premised on an alleged violation of § 34-27, the motion to strike is denied as to that count.
B Count II
Since, according to Bricklin v. Stengol Corp., supra, 1 Conn.App. 667, "a partner may assign his right to the distribution of profits from the partnership without the consent of the other partners," Belveron's claim, as an assignee, for breach of the Agreement, as set forth in its second count, is legally sufficient. As discussed above, under the Agreement, Sections 11.1 and 11.6, an assignee has the right to receive the same share of distributions to which an assigning limited partner would have been entitled in the absence of such an assignment.
In view of this determination, the court need not discuss the defendants' third-party beneficiary argument, which is addressed only to part of Count II. See Baker v. Cheshire, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 07 5013602 (April 24, 2008, A. Robinson, J.) ( 45 Conn. L. Rptr. 452) (court may not strike portion of a count); Ahmad v. Yale-New Haven Hospital, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X02 CV 04 0183725 (September 29, 2004, Schuman, J.) ( 38 Conn. L. Rptr. 238) (same).
C Count III
Concerning tortious interference, the Supreme Court has stated that "not every act that disturbs a contract or business expectancy is actionable . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious." (Citations omitted; internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 806, 734 A.2d 112 (1999). "It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000). Similarly, "[a] claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).
The Supreme Court "has long recognized a cause of action for tortious interference with contract rights or other business relations." Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). "[F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." (Citations omitted; internal quotation marks omitted.) Id., 261.
"Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
In paragraph 38 of Count III, Belveron alleges that "[t]he defendants have knowingly and intentionally interfered with [Belveron's contractual relationship with SHP] by refusing without justification to fulfill their contractual obligation to acknowledge Belveron as an assignee limited partner by Augustus Manor, to allocate profits with respect to the . . . [u]nits acquired by Belveron from SHP . . . and to pay distributions . . . to Belveron[.]" Without a factual underpinning of alleged tortious conduct, allegations of a breach of contract do not amount to a legally sufficient tortious interference claim. Belveron's allegations, including that the defendants' conduct is part of a self-dealing strategy, to limit the number of prospective buyers of units from Augustus Manor's limited partners, thereby allowing the defendants to purchases units without competition, see complaint, paragraph 25, does not make the alleged conduct tortious in nature.
Belveron has not cited a section of the Agreement which uses the term "assignee limited partner." The Agreement discusses the terms "Substituted Limited Partner" (Section 11.4), and "Assignees" (Section 11.6), those who do not become substitute limited partners, but shall have the right to share in profits, losses, and distributions.
Belveron's quotation of part of a jury instruction approved in Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 30 n. 8, is unavailing. Belveron ignores the earlier part of the instruction, which states that the tortious interference claimant had to prove a third element "that the interference was tortious, that is that [the] plaintiff was guilty of fraud, misrepresentation, intimidation or molestation or acted maliciously. What's malice? The intentional doing of a wrongful act without just cause or excuse with an intent to inflict an injury or implied evil intent." Id., 29-30 n. 8.
The quoted portion states, "The law also forbids unjustifiable interference with any man's right to pursue his lawful business or occupation and to secure to himself the earnings of his industry."
Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998), also cited by Belveron, is unavailing as well. The court's statement, that "[i]t has long been considered tortious either to induce a breach of contract or to interfere with financial expectancies," id., 168, was made in the context of explaining that "it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties." (Emphasis omitted.) Id. These comments followed the Appellate Court's statement that a plaintiff "must prove that the defendant's conduct was in fact tortious." Id., 166.
Since Belveron has not alleged a necessary element of a tortious interference claim, the motion to strike Count III is granted. In view of this determination, the court need not consider the defendants' other arguments as to this count.
D Count IV
"[General Statutes § ]42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net Of The Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).
"[A]bsent substantial aggravating circumstances, [a] simple breach of contract is insufficient to establish [a] claim under CUTPA." Lydall v. Ruschmeyer, 282 Conn. 209, 248, 919 A.2d 421 (2007). The Appellate Court has stated that "[t]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation . . ." Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). However, every contract breach does not amount to a CUTPA violation, nor does every misrepresentation rise to such a level. See Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 570-71, 845 A.2d 417 (2004).
When the superior courts have permitted a CUTPA cause of action based on a breach of contract, there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances. See CNF Constructors, Inc. v. Culligan Water Conditioning Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 92 0242302 (September 9, 1993, Blue, J.) ( 8 CSCR 1057, 1058) (permitting the plaintiff to pursue a CUTPA cause of action based on breach of contract because the misrepresentations "induced the contract"). "The question therefore becomes whether the plaintiff has alleged in its complaint the `substantial aggravating circumstances' attending the breach of contract necessary to establish a CUTPA violation." Tork v. Best Restaurant Equipment Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99 0430310 (October 21, 1999, Alander, J.).
"A simple breach of contract, even if intentional, does not amount to a violation of the Act; a [claimant] must show substantial aggravating circumstances attending the breach to recover under [CUTPA]." (Internal quotation marks omitted.) Harold Cohn Co., Inc. v. Harco International, LLC, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0089169 (May 2, 2001, Gilardi, J.), affirmed on other grounds, 72 Conn.App. 43, 804 A.2d 218, cert. denied, CT Page 7901 262 Conn. 903, 810 A.2d 269 (2002). Where the allegations are "unsupported by sufficient aggravating circumstances necessary to assert a valid CUTPA claim[,]" a motion to strike is appropriately granted. Ranger v. Gianmarco, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 08 5004260 (October 7, 2008, Holzberg, J.).
Belveron argues that the defendants violated CUTPA by refusing to recognize Belveron as an assignee limited partner, in contravention of General Statutes § 34-27 and the Agreement, as part of a self-dealing strategy to repurchase limited partnership units in Augustus Manor without competition and for artificially low prices. See Belveron's objection (#115), pp. 27-8. Belveron also contends that the defendants' conduct is injurious to commerce by causing substantial injury to Belveron as an investor and potential reseller of such units, and by depriving other investors of the opportunity to purchase a marketable commodity from Belveron. See Belveron's objection, p. 28. The defendants assert that Belveron has not alleged any unfair or deceptive conduct by the defendants within the meaning of CUTPA.
As noted above, Belveron cites no provision of the Agreement which discusses the concept of an "assignee limited partner." Belveron also provides no statutory or decisional authority for the concept. Belveron's allegations of "a self-dealing strategy adopted by the [d]efendants to limit the number of prospective buyers" of Augustus Manor units, is also linked to this concept, since Belveron alleges that the refusal to acknowledge it as an "assignee limited partner" is part of the strategy. See complaint, paragraph 25. The alleged failure by the defendants to recognize Belveron as such may not form the basis of a CUTPA violation.
Without more in terms of factual allegations, the alleged violation of General Statutes § 34-27 amounts to no more than a technical violation in the context of a breach of contract claim, without aggravating circumstances. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 524, 646 A.2d 1289 (1994). Apart from the "assignee limited partner" concept, on which Belveron premises much of its CUTPA claim, the balance of the allegations appear to involve the parties' differing interpretations of statutory and contractual language. That this has resulted in alleged injury to Belveron as an investor and potential reseller of such units, and in depriving other investors of the opportunity to purchase a marketable commodity from Belveron, does not amount to an unfair trade practice. Accordingly, the motion to strike Count IV is granted.
E
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Count V
"The remedy of an accounting, whether in a legal or equitable form, has been traditionally recognized in this jurisdiction . . . General Statutes 52-401 through 52-405 represents the present form of the statutory codification of this remedy." (Citations omitted.) Zuch v. Connecticut Bank Trust Co., Inc., 5 Conn.App. 457, 460-61, 500 A.2d 565 (1985)."An `accounting' is defined as an adjustment of the accounts of the parties and a rendering of a judgment for the balance ascertained to be due. An action for an accounting usually invokes the equity powers of the court, and the remedy that is most frequently resorted to . . . is by way of a suit in equity . . . An accounting is not available in an action where the amount due is readily ascertainable. Equity will ordinarily take jurisdiction to settle the account if the facts create a reasonable doubt whether adequate relief may be obtained at law . . . To support an action of accounting, one of several conditions must exist. There must be a fiduciary relationship, or the existence of a mutual and/or complicated accounts, or a need of discovery, or some other special ground of equitable jurisdiction such as fraud . . . Courts of equity have original jurisdiction to state and settle accounts, or to compel an accounting, where a fiduciary relationship exists between the parties and the defendant has a duty to render an account. The right to compel an account in equity exists not only in the case of those relationships which are traditionally regarded as those of trust and confidence, but also in those informal relations which exist whenever one person trusts in, and relies upon, another. The relationship between . . . parties to a business agreement . . . [has] . . . been deemed to involve such confidence and trust so as to entitle one of the parties to an accounting in equity." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460-61, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004).
Belveron alleges in Count V that no distributions have been made to Belveron and the defendants have denied any obligation to notify Belveron of such distributions or to pay such distributions to Belveron as they become due. See complaint, paragraph 45. As a result, Belveron alleges an accounting is required since the total amount of distributions that may be due and owing is not readily ascertainable and that it has no means to determine the amount or existence of any distributions which may become due and owing. The defendants contend that they have no fiduciary duty to Belveron and that there is no equitable basis for judicial intervention.
"`A fiduciary relation, such as that of a trustee with a duty to account, always gives equity jurisdiction in an action for an accounting against the trustee.' McDonald v. Hartford Trust Co., 104 Conn. 169, 188, 132 A. 902 (1926)." Mangiante v. Niemic, 98 Conn.App. 567, 573, 910 A.2d 235 (2006). "The fiduciary relationship is in and of itself sufficient to form the basis for the relief requested." Zuch v. Connecticut Bank Trust Co., Inc., supra, 5 Conn.App. 460.
As discussed above, the court has found that Belveron has stated a legally sufficient claim for breach of contract, based on claimed rights as an assignee to receive the same share of distributions to which an assigning limited partner would have been entitled in the absence of such an assignment. Accordingly, the court may not strike the claim for an accounting based on the defendants' arguments. See Mankert v. Elmatco Products, Inc., supra, 84 Conn.App. 460-61.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is denied as to Counts I, II, and V, and is granted as to Counts III and IV. It is so ordered.
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