Opinion
No. X04 HHD CV-08-5026131 S
February 18, 2011
MEMORANDUM OF DECISION
The court heard oral argument on February 9, 2011 concerning the defendant Thomas J. Tabacco's (movant) motion to strike (#180), which is addressed to the twenty-sixth count of the plaintiff's fourth amended complaint (#178) (complaint). After consideration, for the reasons stated below, the motion to strike is denied.
I. Background
The court summarizes below the allegations in the twenty-sixth count. The plaintiff alleges that she and her ex-husband, non-party Robert J. Tabacco, commenced dissolution proceedings in January 2006. She also alleges that, at or about that time, Robert J. Tabacco; his brother, defendant Thomas J. Tabacco; and defendant David J. Preleski, an attorney, entered into an agreement to conceal certain of Robert J. Tabacco's financial assets from disclosure to her in the dissolution proceedings, to induce her to accept a lower monetary award than that which she was entitled to receive. See complaint, twenty-sixth count, ¶ 3.
She also alleges that Thomas J. Tabacco, with Preleski's assistance, formed Blackstone Development, LLC (Blackstone). In March 2006, while the dissolution proceedings were pending, DDB Developers, LLC (DDB), a company owned solely by Robert J. Tabacco and Preleski, transferred five real property lots to Blackstone. Subsequently, DDB transferred two additional lots to Blackstone.
The plaintiff also alleges that, in furtherance of the scheme, on June 16, 2006, in the dissolution proceedings, Robert J. Tabacco filed a financial affidavit in the Superior Court, in which he made certain representations concerning his financial assets. In paragraph 9, the plaintiff alleges that these representations were false, and known to be false at the time they were made, "in that he failed to list the Lots as assets in the Financial Affidavit, even though he was aware that the Lots were transferred after the commencement of the Dissolution Proceedings with the intention of concealing the Lots from the Plaintiff."
The plaintiff alleges that the false representations were made to induce her to accept a lower monetary award in the dissolution proceedings than she would have accepted had the lots been properly disclosed, and that she relied on the representations to her detriment by doing so. See complaint, twenty-sixth count, ¶¶ 10-11.
In the motion to strike, the movant asserts that the twenty-sixth count is legally insufficient, since it fails to plead the necessary elements of a claim for civil conspiracy to commit fraud. He argues that the count fails to state a legally sufficient substantive tort. He also requests the court to enter an order of sanctions against the plaintiff.
In neither the motion nor the accompanying memorandum of law is a basis for sanctions set forth. Accordingly, the court treats this request as abandoned. See Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 823-24, 9 A.3d 322 (2010) (analysis, rather than mere assertion, is required in order to avoid abandoning an issue by failure to brief it).
II. Standard of Review
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).
III. Discussion
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff . . . [T]here is no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d 522 (2005).
Here, the plaintiff's civil conspiracy claim is joined with allegations of fraud. "The essential elements of an action in common law fraud . . . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010). "Furthermore, when a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 628, 910 A.2d 209 (2006).
The movant asserts that the plaintiff fails to allege facts to demonstrate that the alleged co-conspirators acted together to perform any criminal or unlawful act, or that one or more of them acted pursuant to a scheme and in furtherance of the object. However, as discussed, in paragraph 3, the plaintiff alleges that the co-conspirators made an agreement to conceal Robert J. Tabacco's assets from disclosure in the dissolution proceedings. The alleged fraud is based on a claimed material omission from his financial affidavit.
Acts pursuant to the alleged scheme and in furtherance thereof are also alleged. In paragraphs 5 and 6, the plaintiff alleges that the lots were transferred from DDB to Blackstone.
The movant's reliance on Jeudy v. Jeudy, 106 Conn.App. 372, 377-78, 942 A.2d 476 (2008), is unpersuasive. In contrast to the situation here, the defendant there sought to open the judgment dissolving his marriage and alleged that the judgment had been procured by fraud and perjury on the part of the plaintiff. See Id., 106 Conn.App. 372. In that context, the court stated, "[t]here are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different." (Internal quotation marks omitted.) Id., 106 Conn.App. 377-78.
Thus in Jeudy, the court addressed laches in connection with a motion to open a judgment of dissolution. The matter before this court does not involve a motion to open a judgment or a dissolution; rather it is an action for money damages in which tortious conduct is alleged.
Also, laches is a special defense. See Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 519, 271 A.2d 69 (1970); Gladu v. BAC Home Loans Servicing, LP, Superior Court, judicial district of Tolland at Rockville, Docket No. HHD CV 10 60114923 (November 8, 2010, Sferrazza, J.). This case does not involve a motion to open the dissolution judgment rendered concerning the plaintiff's divorce. The plaintiff is not required to plead the additional elements discussed in Jeudy v. Jeudy, supra, 106 Conn.App. 377-78.
The movant contends that since the plaintiff alleges that the lots were owned by DDB, a limited liability company, not owned by Robert J. Tabacco, the twenty-sixth count is legally insufficient, since, as a matter of law, Robert J. Tabacco was not required to list them on his financial affidavit. Thus, the movant asserts that, as a matter of law, no misrepresentation occurred. General Statutes § 34-167(a) provides that "[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."
The contents of the financial affidavit are not part of the twenty-sixth count and are therefore not now before the court for review. "[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . . Nonetheless, `[a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party . . . `Practice Book § 10-29(a). A complaint includes all exhibits attached thereto." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). Here, the plaintiff has not annexed the financial affidavit to the complaint or referred to it as an exhibit.
Since the financial affidavit is not part of the complaint, its contents may not be considered in adjudicating the motion to strike. Accordingly, at this juncture, the court may not decide, as a matter of law, whether Robert J. Tabacco was required to disclose the lots in the financial affidavit.
The movant also claims that the plaintiff has not identified any legally sufficient allegations of what the false representations of fact were. The movant also argues that there are no specific factual allegations that any particular statements were made as statements of fact or were untrue and known to be untrue. He also contends that factual allegations are also lacking in that no particular statements are identified which were intended to induce reliance or that the plaintiff relied on any particular statement to her detriment. Finally, he asserts that the plaintiff has not alleged what harm she suffered.
"[A] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose . . . [F]or nondisclosure to amount to fraud, there must be [a] failure to disclose known facts and circumstances that impose [a] duty to speak[.]" (Citations omitted; internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 180, 757 A.2d 14 (2000). As noted above, the court is required to construe the complaint in the manner most favorable to sustaining its legal sufficiency and, for the purposes of the motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.
In paragraphs 9 and 10, it is implied that Robert J. Tabacco was required to list the lots as assets in his financial affidavit. The plaintiff specifically alleges that Robert J. Tabacco knew that his representations were false when he made them, in that "he failed to list the Lots as assets in the Financial Affidavit, even though he was aware that the Lots were transferred after the commencement of the Dissolution Proceedings with the intention of concealing the Lots from the Plaintiff." See complaint, twenty-sixth count, ¶ 9. In paragraph 10, the plaintiff alleges that the false representations were made to induce her to accept a lower amount than she would have if the lots had been properly disclosed. These allegations of failure to disclose are sufficiently particular to withstand a motion to strike.
The plaintiff also pleads that she relied on the false representations to her detriment by accepting a lower amount than she would have if the lots had been disclosed. See complaint, twenty-sixth count, ¶ 11. The allegations in the twenty-sixth count of the specific acts relied upon are sufficient. Likewise, the plaintiff sufficiently alleges that she suffered harm.
CONCLUSION
For the reasons stated above, the defendant Thomas J. Tabacco's motion to strike is denied. It is so ordered.