Opinion
MMXCV156014026S
04-05-2016
Roger Traversa v. Diane A. Nielson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #116
Edward S. Domnarski, J.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Roger Traversa (Mr. Traversa), brought this action on August 5, 2015, against the defendant, Diane Nielsen, which sounds in constructive trust, conversion and undue influence. The plaintiff alleges the following facts. The plaintiff and defendant are brother and sister, and are natural children of Laura Traversa (Ms. Traversa). In June of 2006, Ms. Traversa revised her estate plans, accepting the defendant as the executrix of Ms. Traversa's last will and testament. At the time the will was signed, Ms. Traversa's estate included a retirement fund created under § 403(b) of the Internal Revenue Code and a state employee retirement fund. The plaintiff asserts that the intended beneficiaries of the 403(b) plan and the state employee retirement fund were for Ms. Traversa's five children.
The complaint originally had five counts. Counts four and five have been voluntarily stricken by the plaintiff.
In August of 2013, Ms. Traversa became ill and was diagnosed with emphysema and small cell lung cancer. The plaintiff asserts that the defendant endeavored to strip assets from the estate prior to Ms. Traversa's death by promising to hold certain assets for the benefit of all of Ms. Traversa's children. The plaintiff alleges that the defendant lied to Ms. Traversa by stating that stripping the estate of certain assets while Ms. Traversa was still alive would minimize the size of the estate and the taxes payable on the estate. The plaintiff also alleges that while Ms. Traversa was in a diminished condition, the defendant: had Ms. Traversa sign over her car to the defendant; change the beneficiaries on the funds remaining in her 403(b) plan to remove the names of her siblings, leaving only the defendant as a beneficiary; change the beneficiaries on the funds remaining in her state retirement plan by removing the names of her siblings, leaving the defendant as the only beneficiary; and instructed Ms. Traversa to sign a document removing the defendant's siblings as the beneficiary of her life insurance policy. The plaintiff further alleges that the defendant led Ms. Traversa to believe that defendant would distribute those assets upon Ms. Traversa's death in like manner to the instructions in her will; that is, per stirpes among her five children.
Ms. Traversa passed away on March 5, 2014. The plaintiff alleges that the defendant was the trustee of a constructive trust whereby she was to have held the above assets for the benefit of all five children. The complaint asserts that the defendant converted the proceeds which rightly would have been paid to all five of Ms. Traversa's children to her own personal use. As a result, Mr. Traversa was denied and deprived of the benefit of the constructive trust formed by Ms. Traversa for the benefit of her five children.
DISCUSSION
" A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). It tests whether the complaint states a claim on which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002); Practice Book § 10-39. The trial court's role is to examine the complaint and construe it in favor of the pleader. Suffield Development Associates Ltd Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772, 802 A.2d 44 (2002). The motion is properly granted if the complaint alleges mere conclusions of law unsupported by the facts alleged. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
I. Constructive Trust
The defendant argues that count one of the plaintiff's complaint, which sounds in constructive trust, is not a substantive cause of action, but is a request for a remedy, and therefore must be stricken. A fair reading of the complaint shows that count one alleges fraud as a cause of action and seeks a constructive trust as a remedy.
The four essential elements of fraud are (1) that a false representation of fact was made, (2) that the party making the representation knew it to be false, (3) that the representation was made to induce action by the other party, and (4) that the other party did so act to her detriment. See Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004).
The plaintiff has alleged in his complaint that " defendant Nielsen told Ms. Traversa that [removing the names of the other children on the life insurance policies and the state retirement plan] was necessary in order to protect the proceeds . . . from being taxed, " that the defendant in fact caused Ms. Traversa sign over her car, change the beneficiaries on the funds remaining in her 403(b) plan, change the beneficiaries remaining on her state retirement plan, and change the beneficiaries on her life insurance policy, that " defendant Nielsen led Mr. Traversa and Ms. Traversa's other children to believe that these assets . . . would be divided per stirpes in accordance with Ms. Traversa's wishes, " and that, ultimately, " defendant Nielsen converted those proceeds which rightly would have been paid to all five of Ms. Traversa's children to her own personal use by trickery and deceit against her own dying mother." The court finds that all necessary elements to allege a cause of action sounding in fraud have been alleged by the plaintiff. The motion to strike count one is denied.
II. Conversion
The defendant argues that the count alleging conversion must be stricken because a person cannot hold legal title over proceeds that are merely promised.
" 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 Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
Although " [m]oney can clearly be subject to conversion; " Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979); and " money can be the subject of statutory theft; " Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. at 771; a plaintiff must actually " establish legal ownership or right to possession in . . . the specifically identifiable moneys that the defendant is alleged to have converted." Macomber v. Travelers Property and Casualty Corp., supra, 261 Conn. 650. " [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." Deming v. Nationwide Mutual Ins. Co., supra, at 772. " Thus, the 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." Id.
The complaint alleges that the various policies were changed to omit the names of the other children before Ms. Traversa's death. Therefore, at the time of the alleged change of names, the plaintiff merely had an expectancy of receiving property. " Expectancy is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist. The moment of the decedent's death determines the right of inheritance or testamentary succession." (Citations omitted.) Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). Since the plaintiff had no legal right to the monies at the time of Ms. Traversa's death, the second count alleging conversion must be stricken.
III. Undue Influence Based on Confidential Relationship
The defendant argues that the third count, alleging undue influence based on a confidential relationship, is not a legally sufficient cause of action.
" [T]here are four elements of undue influence: (1) a person who is subject to influence, (2) an opportunity to exert undue influence, (3) a disposition to exert undue influence; and (4) a result indicating undue influence." Dinan v. Marchand, 91 Conn.App. 492, 493 n.1, 881 A.2d 503 (2005), aff'd, 279 Conn. 558, 903 A.2d 201 (2006). While the existence of a confidential relationship is not a direct element of the cause of action, consideration of its existence is important: " [b]efore a trial court finds that a constructive trust exists and should be imposed, the court must find that a confidential relationship existed between the transferor and the transferee at the time of the transfer of the property." Gulack v. Gulack, 30 Conn.App. 305, 310, 620 A.2d 181 (1993); see also, Starzec v. Kida, 183 Conn. 41, 44-45, 438 A.2d 1157 (1981); Filosi v. Hawkins, 1 Conn.App. 634, 639, 474 A.2d 1261 (1984); Downey v. Downey, 1 Conn.App. 489, 472 A.2d 1296 (1984).
If a confidential relationship is proved, then the burden of proving fair dealing or the burden of showing the absence of undue influence shifts to the defendant or the fiduciary, and that burden must be sustained by clear and convincing evidence. Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982); Hieble v. Hieble, 164 Conn. 56, 61, 316 A.2d 777 (1972).
The burden shifting obligation of the defendant is altered if the defendant is a child of the grantor/donor parent. " However, when, as here, a child is the beneficiary, the burden of proving the absence of undue influence does not shift to the child, even though it appears that a confidential relationship existed . . . It is the child's privilege to anticipate some share of the parent's estate. He may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty. From such a relationship alone, the law will never presume confidence has been abused and undue influence exercised." (Citation omitted.) Berkowitz v. Berkowitz, 147 Conn. 474, 477-78, 162 A.2d 709 (1960).
As previously stated, the defendant is the child of the grantor. However, the plaintiff has not only claimed that the defendant is Ms. Traversa's daughter, but also that she previously worked as a licensed insurance agent, including selling life insurance policies and that the defendant is currently working as an office manager or administrator of her husband's optometry practice. See Gager v. Mathewson, 93 Conn. 539, 544, 107 A. 1 (1919) (business advisers occupy fiduciary relation to person being advised); Jarvis v. Lieder, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5001737-S, (October 6, 2008, Levin, J.) (educated and sophisticated financial adviser as well as beloved grandniece clearly had confidential relationship with plaintiff). The complaint also alleges that Ms. Traversa was aware of the defendant's prior and current employment, and that based on that knowledge, Ms. Traversa did not question the defendant's motive, advice and counsel in connection with the disputed property. Viewed in the most favorable light, the plaintiff has successfully pleaded the elements of undue influence as well as the existence of a confidential relationship.
CONCLUSION
For the foregoing reasons, the motion to strike is denied as to counts one and three, but granted as to count two.