Opinion
No. CV 04 0489837
February 9, 2005
MEMORANDUM OF DECISION
Motion to Strike
On May 14, 2004 the plaintiff/counterclaim defendant, Western Surety Co. (Western), filed an eight-count complaint against five defendants, Robert Huff, Owen Chace, Carolyn S. Stewart, Paul Huff and the Jewish Home for the Aged, Inc. (Jewish Home). This action arises out of Western's issuance of a surety probate bond in the amount of $50,000 to Robert Huff on June 13, 2001. Western issued the bond to guarantee Robert Huff's faithful performance, as an appointed conservator of the person of Paul Huff.
Pursuant to General Statutes § 45a-139(a), a surety probate bond is "a bond with security given to secure the faithful performance by an appointed fiduciary of the duties of the fiduciary's trust and the administration of and accounting for all moneys and other property coming into the fiduciary's hands, as fiduciary, according to law."
Western alleges the following facts in its complaint. Shortly after Western issued the bond, Paul Huff became a resident of the Jewish Home. On January 6, 2003, the Probate Court removed Robert Huff as Paul Huff's conservator, ordered him to file a final accounting and replaced him with Chace. In the final accounting, Robert Huff stated, inter alia, that he paid the following expenses from the funds of the estate: over $30,000 to himself as conservator's fees, and over $17,000 to Stewart as attorneys fees. Chace objected to portions of the final accounting, and the Probate Court disallowed portions of both fees. Chace then made a demand upon the surety bond to Western for an amount equal to the total of the disallowed fees. In March 2004, the Jewish Home made a demand to Western on the surety bond for $50,000 premised on Robert Huff's alleged failure to timely apply for Medicaid benefits on behalf of Paul Huff.
Western disputes its liability to either Chace or the Jewish Home. To the extent that it is liable, Western disputes that it is liable for the entire amount of either claim and asserts that Robert Huff and Stewart are obligated to indemnify and reimburse it for the amounts it may be required to pay thereon.
In count one of the complaint, Western is seeking a declaratory judgment against all of the defendants to determine the extent, if any, of its liability under this probate surety bond. On July 12, 2004, the Jewish Home filed its answer to the complaint which contained a counterclaim against Western for breach of its obligation under the bond. On July 19, 2004, Chace filed his answer which also contained a similar counterclaim against Western.
Western also asserts claims against Robert Huff for indemnification, unjust enrichment and constructive trust in counts two, three and four respectively and claims against Stewart for indemnification, unjust enrichment, constructive trust, and negligence in counts five through eight, respectively.
Pursuant to General Statutes § 45a-144(a) "[a]ny person claiming to be aggrieved by the breach of a probate bond . . . may bring an action in the Superior Court . . . to recover for the breach . . ."
Western filed separate answers to both counterclaims on July 28, 2004, in which it denies the allegations thereof and alleges three special defenses. In the first special defense to both counterclaims, Western alleges that "some or all of the damages allegedly caused by the defendant Robert Huff were in fact caused by the defendant Carolyn Smith Stewart," and thus, Western is not liable for those damages.
On August 31, 2004, and September 2, 2004, Chace and the Jewish Home, respectively, filed motions to strike Western's first special defense to their counterclaims. In support of their motions, Chace and the Jewish Home submitted memoranda of law. On November 2, 2004, Western filed a separate but essentially identical memoranda of law in opposition to the motions. On November 15, 2004, the Jewish Home filed a supplemental memorandum of law in support of its motion to strike. Western filed a reply on November 18, 2004.
The court heard argument on the November 22, 2004 short calendar list.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of [pleading] . . . 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). "[I]f 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, supra, 173. "Whenever any party wishes to contest . . . any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof . . ." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 325, n. 21, 709 A.2d 1089 (1998).
"For the purpose of ruling upon a motion to strike, the facts alleged in a [pleading], though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [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 . . ." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "In . . . ruling on the . . . motion to strike [special defenses], the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
Chace and the Jewish Home move to strike Western's first special defense to their counterclaims on the ground that the defense is not legally sufficient to defeat their counterclaims against Western for breach of the probate bond. They argue that as to the conduct at issue, Stewart was acting as Robert Huff's attorney, in that she represented him in connection with the estate, and, thus, was his agent. They further argue that under Connecticut agency law, Stewart's actions as Robert Huff's agent are attributable to him and, therefore, Western, as a surety for the bond guaranteeing Robert Huff's faithful performance, is required to pay on the bond. They also argue that it is fair to require Western to pay on the bond because Western has the option to seek reimbursement from Stewart, which it is, in fact, exercising in this case.
As noted before, in the complaint Western alleges claims against Stewart for unjust enrichment, constructive trust, negligence and indemnification.
Western counters that the motion to strike is procedurally improper because nothing in the pleadings alleges that Stewart was acting, at all times, within the scope of her authority as an attorney for Robert Huff. Western further argues that a conservator has the right to retain and rely upon the advice of an attorney and cannot be held liable for the attorneys misconduct and improper actions merely because he sought legal advice.
"[T]he attorney-client relationship is one of agency." See Kubeck v. Foremost Foods, Co, 190 Conn. 667, 673 n. 6, 461 A.2d 1380 (1983). "[T]he acts of an attorney are imputed to a client when they are performed in the furtherance of the business for which the attorney has been retained . . . This general rule may yield, however, to the special circumstances of a case . . . When an attorney acts in bad faith or intentionally neglects the client's business, the general rule does not apply . . . Furthermore, a client is not charged with the attorneys knowledge when circumstances render it certain or probable that the attorney will disregard the duty to communicate the material facts to his client." (Citations omitted.) Allen v. Nissley, 184 Conn. 539, 542-43, 440 A.2d 231 (1981). It is also a rule that "the principal in a principal/agent relationship is only bound by, and liable for, the acts which his agent does with or within the actual or apparent authority from the principal, and within the scope of the agent's employment . . . The nature and extent of an agent's authority is a question of fact for the trier." (Internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn.App. 474, 488, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003).
"Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences causes or allows third persons to believe his agent possesses . . . Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent . . . furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertences of the principal." (Internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn.App. 474, 489, 823 A.2d 1249, cert. denied, 265 Conn. 907, 831 A.2d 251 (2003).
In its original complaint Western alleges that "[ a] t various times during his tenure as Conservator, the Defendant Robert Huff was represented by the Defendant Attorney Carolyn Smith Stewart, as his attorney." (Emphasis added.) Neither Western's first special defense nor any of its other pleadings in this case allege that Stewart represented Robert Huff on all of the matters pertaining to the estate. Moreover, in its first special defense, Western does not allege that the damages allegedly caused by Stewart were caused by her while acting as Robert Huff's attorney.
In the context of this motion, the court's obligation is limited to considering the factual allegations of the special defense and construing them in the manner most favorable to sustaining their sufficiency. See Connecticut National Bank v. Douglas, supra, 221 Conn. 536. An inquiry into Stewart's actions and the nature and extent of her authority as Robert Huff's agent is a question of fact for the trier and thus cannot be decided on a motion to strike. "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.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
The Court, therefore, denies the defendants,' (Chase and Jewish Home) motions to strike Western's first special defense.
Lopez, J.