Opinion
No. FST CV 095010083 S
February 19, 2010
MEMORANDUM OF DECISION MOTION TO STRIKE #115
PROCEDURAL BACKGROUND
On January 15, 2009, the plaintiff, Greenwich Interiors, LLC, commenced this action by service of process against the defendant, Statham Woodwork, Inc. In its complaint, the plaintiff alleges the following facts. The plaintiff, which was formerly known as Nancy O'Rourke Interiors, is in the business of providing interior design and decorating services. In December 2006, the plaintiff was retained by a client to oversee the renovation and redesign of a residence on Forest Street in Stamford. As part of this project, the plaintiff was required to obtain and install cabinetry and closets. Accordingly, the plaintiff solicited the defendant to provide these materials and services. The defendant submitted a proposal with its estimate of the costs to complete this project.
The plaintiff accepted the defendant's proposal and provided the defendant with a $20,000 deposit on December 6, 2006. In its complaint, the plaintiff alleges that the defendant never furnished the cabinetry and closets for the project and that it provided "only minimal and preliminary design development." Subsequently, the plaintiff's client determined that the defendant's services were no longer needed. As a result, on October 29, 2008, the plaintiff requested that the defendant return the $20,000 deposit. Despite numerous demands, the defendant has not returned this deposit. Accordingly, the plaintiff alleges the following causes of action against the defendant: (1) breach of contract; (2) breach of implied contract; (3) breach of the implied duty of good faith and fair dealing; (4) unjust enrichment; (5) conversion and (6) statutory theft pursuant to General Statutes § 52-564.
On December 31, 2009, the defendant filed a motion to strike counts five and six, as well as a memorandum of law in support. Additionally, the defendant's motion indicates that the "[p]laintiff has not alleged sufficient facts to warrant the imposition of common law punitive damages for conversion or treble damages pursuant to [General Statutes] § 52-564." In response, the plaintiff filed a memorandum of law in opposition on January 20, 2010. The court heard this matter at short calendar on February 1, 2010.
The defendant's motion only specifically mentions that it is moving "to strike the Sixth Count of the Plaintiff's complaint." Nevertheless, the text of the defendant's motion indicates that it is moving to strike the plaintiff's claim for conversion, which is count five. The "order" page of the motion also specifically requests that the court strike count five. Moreover, the defendant's memorandum of law indicates that it is moving to strike count five. In footnote one of its memorandum of law in opposition, the plaintiff notes that while the defendant's "[m]otion ostensibly only seeks to strike the Sixth Count . . . the Defendant addresses both the Fifth and the Sixth Counts elsewhere in the Motion and its memorandum of law . . ." Accordingly, the plaintiff clearly contemplated that the defendant was moving to strike count five and the plaintiff fully briefed the issue. As the plaintiff fails to offer a full objection to the defendant's omission of "count five" from its motion, the court will treat the present motion as one seeking to strike both counts five and six.
Once again, the defendant has failed to specifically, state that it seeks this relief, however, the court will interpret this as a motion to strike paragraphs two and three of the plaintiff's prayer for relief.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The defendant first moves to strike count five for conversion on the ground that the plaintiff fails to allege sufficient facts to maintain this cause of action. Specifically, the defendant argues that this count is legally insufficient because the plaintiff does not allege that the property at issue belonged to the plaintiff. In response, that plaintiff contends that it alleges that the defendant asserted dominion and control over property to which it retained title, and, therefore, the plaintiff sufficiently alleges all of the elements of a claim 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 this property permanently or for 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 . . . The term owner is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof." (Citation omitted, internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770-71, 905 A.2d 623 (2006). Under Connecticut law, "[m]oney can clearly be subject to conversion . . . The plaintiffs must establish however, legal ownership or right to possession of specifically identifiable moneys." (Citation omitted, internal quotation marks omitted.) Id., 771-72.
"[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 . . . Thus, [t]he requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally . . . A mere obligation to pay money may not be enforced by a conversion action . . . and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied . . . Consistent with this rule, in our case law sustaining a cause of action wherein money was the subject of the conversion or theft, the plaintiffs in those cases at one time had possession of, or legal title to, the money." (Citations omitted; internal quotation marks omitted.) Id., 772.
In paragraph nine of count five, the plaintiff alleges that the defendant "has misappropriated $20,000 of [the plaintiff's] cash, namely the Deposit." The use of the possessive suggests that the plaintiff has ownership of the subject deposit. Furthermore, paragraph ten explicitly alleges that "[a]t all relevant times title to the Deposit was retained by [the plaintiff." Read together, these allegations indicate that the plaintiff is alleging that the defendant wrongfully took money that belonged to the plaintiff. While the defendant's memorandum of law argues that the facts alleged suggest that "the payment by Plaintiff was a prepayment that inured to the benefit of Defendant upon acceptance of the contract," these are not the facts alleged in the complaint. When ruling on a motion to strike, the court must accept all the complaint's allegations as true. In the present case, the plaintiff clearly alleges that it maintained ownership of the deposit. As the plaintiff also alleges that the defendant "has exercised dominion and control over [the plaintiff's] property" and failed to return it to date, it is submitted that the plaintiff sufficiently alleges all of the elements of the cause of action for conversions. Accordingly, the motion to strike count five is denied.
The defendant moves to strike count six, statutory theft pursuant to General Statutes § 52-564 on the ground that the plaintiff fails to allege that (1) the subject property belonged to the plaintiff; (2) the defendant stole the property that belonged to the plaintiff and (3) the defendant had the intent to steal the property. In its memorandum of law, the defendant contends that under Connecticut law, a plaintiff must allege facts that demonstrate specific intent to commit larceny in order to state a claim for statutory theft. The defendant contends that the plaintiff fails to allege such facts, and, as a result count six is legally insufficient. In response, the plaintiff argues that it clearly alleges that the defendant intentionally stole, received and concealed the deposit. As such, the plaintiff contends that it has met the requirements of alleging specific intent to steal, and, therefore, count six should not be stricken.
General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." "Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 732, 916 A.2d 834 (2007). "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . A person commits larceny pursuant to § 53a-119 `when with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.'" (Citation omitted; internal quotation marks omitted.) Tuccio Development v. Neumann, 114 Conn.App. 123, 127, 968 A.2d 956 (2009). Under Connecticut criminal law, "[b]ecause larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing . . . Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act . . . and without the knowing consent of the owner . . . The requisite intent for retention is permanency." (Internal quotation marks omitted.) State v. Saez, 115 Conn.App. 295, 302, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009).
In paragraphs nine and ten of count six, the plaintiff alleges that the defendant "stole [the plaintiff's] property, specifically, the Deposit . . . [The defendant] knowingly received and concealed property stolen from[the plaintiff], specifically, the Deposit." The use of the possessive in paragraph nine as well as the explicit allegation that the property came "from the plaintiff" indicates that the plaintiff is alleging that the deposit belonged to the plaintiff. Furthermore, the plaintiff directly alleges that the defendant stole the plaintiff's property and that the defendant received and concealed property stolen from the plaintiff. As such, the plaintiff sufficiently alleges that it had an ownership interest in the deposit and that the defendant stole it.
The more difficult question is whether the plaintiff adequately alleges that the defendant had intent to steal the deposit. In count six, the plaintiff fails to allege explicitly that the defendant acted with any specific intent to steal. Paragraph ten, however, does allege that the defendant "knowingly received and concealed property stolen from" the plaintiff. As stated by the Appellate Court in Saez, supra, 115 Conn.App. 302, the specific intent element is satisfied by demonstrating that the defendant acted with the "subjective desire or knowledge that his actions constituted stealing." As count six alleges that the defendant stole the deposit from the plaintiff and that the defendant knowingly received and concealed this stolen property, the plaintiff has sufficiently alleged that the defendant acted with the intent to steal. Therefore, the motion to strike count six is denied.
The defendant also argues that the plaintiff "has not alleged sufficient facts to warrant the imposition of common law punitive damages for conversion or treble damages pursuant to [General Statutes § 152-564." While it is not explicitly stated in the defendant's motion, it seems logical to construe this statement as a motion to strike paragraphs two and three of the plaintiff's prayer for relief, which is where the plaintiff specifically requests punitive and treble damages. Although the first page of the defendant's memorandum of law briefly mentions that the plaintiff "has failed to allege sufficient facts to warrant the imposition of treble damages as provided by statute," there is no actual legal analysis that substantiates the defendant's position. Indeed, the defendant fails to cite any case law or statute supporting the proposition that the plaintiff cannot legally obtain punitive or treble damages in the present case.
"Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief could not be legally awarded." Pamela B. v. Ment, 224 Conn. 296, 325, 709 A.2d 1089 (1998). As such, it would be inappropriate for this court to strike a prayer for relief unless the moving party has demonstrated that the relief sought could not be awarded as a matter of law. Furthermore, Connecticut's appellate courts have repeatedly stated that trial courts "are not required to review issues that have been improperly presented . . . through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Rissolo v. Betts Island Oyster Farms, LLC, 117 Conn.App. 344, 3 59-60, 979 A.2d 534 (2009).
When ruling on a motion to strike a special defense, this court previously observed that, "[i]t is not the province of this court to formulate arguments for the parties. As the plaintiff has failed to provide any case law or analysis in support of its motion to strike . . . the court denies the plaintiff's motion to strike." Norwalk Preservation Trust, Inc. v. Norwalk Inn Conference Center, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4010609 (August 17, 2009, Brazzel-Massaro, J.). As the defendant in the present case has similarly inadequately briefed the legal issues regarding the plaintiff's request for common-law punitive damages for conversion and treble damages pursuant to § 52-564, the motion to strike this portion of the complaint is denied.
CONCLUSION
For all of the reasons stated above, the court denies the motion to strike count five, count six, and the prayer of relief as to common-law punitive damages for conversion or treble damages pursuant to General Statutes § 52-564.