Opinion
X04HHDCV146050664S
12-19-2016
John Henry v. Margaret Henry et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#169)
David M. Sheridan, J.
Before the court is a May 6, 2016 motion brought by the defendants, Margaret Henry, Herbert Henry Jr., and Donald Henry, seeking summary judgment as to all counts against them. The motion was supported by documentary exhibits, responses to interrogatories, and excerpts from transcripts of depositions of the parties and fact witnesses. On July 1, 2016, the plaintiff filed his opposition memorandum, which was supported by an affidavit of Ruth Henry, documentary exhibits, responses to interrogatories, responses to requests for admissions, and excerpts from transcripts of depositions of the parties and fact witnesses. The parties appeared and were heard at argument on August 1, 2016 and have agreed to grant the court an extension of time within which to decide the motion.
Jury selection is scheduled to commence in this matter on February 1, 2017, with presentation of evidence to begin immediately thereafter. Familiarity with the facts, legal authority and arguments made by the parties is presumed and, in the interests of expediting this decision, will not be generally repeated.
I. STANDARD OF REVIEW
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013) .
II. ANALYSIS
A. Count One, Count Two Count Four and Count Six
As the defendants have noted, Count I (Quiet Title), Count II (Unjust Enrichment), Count IV (Recklessness) and Count VI (Tortious Interference with Expectancy) of the complaint all relate to the estate of the plaintiff's mother, Frances P. Meister, under the terms of the Frances P. Meister Living Trust. In essence, the plaintiff alleges that by various means, his sister, defendant Margaret Henry, exerted undue influence over Frances P. Meister which led to him being deprived of his rightful share of his mother's estate.
The crux of the defendants' motion with respect to Counts One, Two, Four and Six is their contention that " there is no set of facts upon which the Plaintiff could establish a claim of undue influence" that would invalidate the distribution of assets made pursuant to the terms of the Trust. (Defendant's May 6, 2016 Memorandum in Support of Motion for Summary Judgment #170, p. 7.)
" Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his [or her] free agency and constrain him [or her] to do something other than he [or she] would do under normal control . . . It is stated generally that there 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" Tyler v. Tyler, 151 Conn.App. 98, 105-06, 93 A.3d 1179 (2014); see also, Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006).
The defendants argue that the plaintiff's proof as to undue influence fails completely to satisfy the required element of an " opportunity to exert undue influence." The defendants suggest that the undisputed fact that Margaret Henry was " not involved" in the creation of the Trust and " was not there" when Frances Meister met with her attorneys to discuss the disposition of her estate somehow compels a conclusion that she had no " opportunity" to exert influence over the distribution of Frances' estate.
Our courts have long held that undue influence need not be proved by direct evidence, it may be inferred from all the circumstances. Dale's Appeal, 57 Conn. 127, 134, 147, 17 A. 757 (1888); Hobbes' Appeal, 73 Conn. 462, 467, 470, 47 A. 678 (1900); Salvatore v. Hayden, 144 Conn. 437, 440, 133 A.2d 622 (1957); Stanton v. Grigley, 177 Conn. 558, 565, 418 A.2d 923 (1979). " Circumstantial proof such as family relations, the testator's physical and mental condition and dependence upon others can be used." R. Folsom, Probate Litigation in Connecticut (2d Ed. 2015) § 1:15, pp. 1-31 through 1-33.
Undue influence may be shown by " all the facts and circumstances surrounding the testatrix, the family relations, the will, her condition of mind, and of body as affecting her mind, her condition of health, her independence upon and subjection to the control of the person influencing, and the opportunity of such person to wield such an influence. Such an undue influence may be inferred as a fact from all the facts and circumstances aforesaid, and others of like nature that are in evidence in the case, even if there be no direct and positive proof of the existence and exercise of such an influence." Achin v. Pianka, No. CV054003726, 2010 WL 2573695, (Conn.Super.Ct. May 20, 2010). Relevant factors include " age and physical and mental condition of the one alleged to have been influenced, whether he [or she] had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his [or her] predisposition to make the transfer in question, the extent of the transfer in relation to his [or her] whole worth . . . failure to provide for all of his [or her] children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties." (Internal quotation marks omitted.) Tyler v. Tyler, supra, 151 Conn.App. 105-06, 93 A.3d 1179.
Whether the elements of undue influence have been proven is typically a question for the jury to decide, based upon one or more of the above-listed facts and circumstances and whatever inferences flow logically and reasonably from those factual considerations. See, Salvatore v. Hayden, supra, 144 Conn. 440, 133 A.2d 622.
Therefore, the question before the court is whether the plaintiff has provided evidence, albeit indirect or circumstantial, sufficient to create a genuine issue of material fact as to the existence and exercise of undue influence in connection with the creation of the Trust. An " '[i]ssue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
This court has carefully reviewed the documentary exhibits and deposition testimony, identifying therein the evidentiary facts and the inferences and conclusions that can reasonably be drawn from them in the light most favorable to the plaintiff. Having considered the parties' evidence and memoranda of law, the court cannot conclude that the defendants have met their burden of showing the nonexistence of any issue of fact on the plaintiff's claim of undue influence underlying the causes of action for quiet title, unjust enrichment, recklessness, or tortious interference with expectancy.
The court notes that the plaintiff's recklessness cause of action in Count IV is based completely on previous allegations of conduct (including conduct of defendants other than Margaret Henry) that was tortious, even intentional, but not necessarily reckless or wanton. Merely using the term " recklessness" to describe conduct previously alleged as negligence is insufficient as a matter of law. Di Teresi v. Stamford Health Sys., Inc., 142 Conn.App. 72, 91, 63 A.3d 1011 (2013). Having reviewed the complaint and the documentary evidence, this court cannot characterize the conduct of Margaret Henry described therein as " an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). Even though it is clear on the face of the complaint that Count IV is legally insufficient, summary judgment cannot be granted because an opportunity to amend or re-plead could conceivably cure the defect. See Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Moreover, a trial court lacks authority to render summary judgment on grounds not raised or briefed by the parties that do not involve the court's subject matter jurisdiction. Greene v. Keating, 156 Conn.App. 854, 860, 115 A.3d 512 (2015).
The strength or weakness of the plaintiff's case, as well as corresponding strength or weakness of defendants' case is not a consideration for the court at this stage of the proceedings. " So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried . . . A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment." Mott v. Wal-Mart Stores E., LP, 139 Conn.App. 618, 631, 57 A.3d 391, 398 (2012).
The motion for summary judgment is denied as to counts One, Two, Four, and Six.
B. Count V (Breach of Fiduciary Duty Against Margaret Henry)
The plaintiff alleges that the defendant Margaret Henry owed him a fiduciary duty in connection with the handling of certain financial assets which named the plaintiff as a beneficiary. It is alleged that Margaret Henry failed to manage the assets properly and/or intentionally managed the assets for her own benefit and the benefit of the other defendants, and to the detriment of the plaintiff.
As to two of the assets, the Transamerica Variable Annuity Account and the Nationwide IRA, the court has reviewed the defendants' arguments regarding the existence of a duty and the documentation supplied by both parties related to the handling of those accounts. Put simply, the question of whether a duty existed and whether, under all the circumstances present, the duty was faithfully exercised requires a fact-intensive analysis. The ultimate issue is, at best, a mixed question of law and fact. A " mixed question of law and fact" has been defined as . . . the application of the controlling legal standard to the historical facts [as found by the trier of fact] . . ." State v. Mitchell, 296 Conn. 449, 459, 996 A.2d 251 (2010); or " the application of historical facts to questions of law . . ." Michael T. v. Commissioner of Correction, 122 Conn.App. 416, 426, 999 A.2d 818 (2010) (dissenting opinion of Judge Beach). " Summary judgment is not appropriate in cases involving mixed questions of law and fact." Gould v. Mellick and Sexton, 66 Conn.App. 542, 556, 785 A.2d 265 (2001), citing Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972).
However, putting those concerns aside, the court does agree with the defendants that the plaintiff's claims with regard to the handling of the Lincoln Financial Group Life Insurance Policy are barred by the three-year statute of limitations, General Statutes § 52-577. " When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." Valentine v. LaBow, 95 Conn.App. 436, 446-47, 897 A.2d 624, 632 (2006). The undisputed facts substantiate that any misconduct in connection with the handling of the Lincoln Financial Group Life Insurance Policy would have occurred, at the latest, in January of 2008. The claim for breach of fiduciary duty arising from these facts was first asserted in an Amended Complaint in December of 2015, well past the expiration of the statute of limitations.
For the reasons stated, the motion for summary judgment is granted as to the claims in Count V arising from the cancellation of the Lincoln Financial Group Life Insurance Policy and distribution of the policy proceeds (¶ ¶ 87-102), and denied in all other respects.
C. Count VII (Intentional Infliction of Emotional Distress Against Margaret Henry)
Liability for intentional infliction of emotional distress must involve conduct which exceeds all bounds usually tolerated by a decent society. Bombalicki v. Pastore, 71 Conn.App. 835, 839-40, 804 A.2d 856 (2002). The question is whether the plaintiff has offered proof of behavior which a reasonable fact finder could find to be extreme and outrageous--meaning atrocious and utterly intolerable in a civilized society. Conduct which is merely insulting, or displays bad manners, or results in hurt feelings, is insufficient to create liability based upon intentional infliction of emotional distress. Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court. Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999).
In summary form, the conduct of the defendant Margaret Henry which forms the basis for the claim of intentional infliction of emotional distress is in Count VII is 1) deliberately excluding the plaintiff from participation in any of the planning for his mother's funeral arrangements; 2) directing the funeral home handling the arrangements not to give information about the funeral to the plaintiff; and 3) not inviting the plaintiff and his family to a post-funeral " family reunion" gathering at Margaret Henry's house.
That conduct, even when examined in a light most favorable to the plaintiff, cannot be fairly characterized as extreme and outrageous as those concepts have been repeatedly described and explained in the relevant case law. Summary judgment is granted in favor of the defendant as to the Count VII.
III. CONCLUSION
The motion for summary judgment is granted as to the claims in Count V arising from the cancellation of the Lincoln Financial Group Life Insurance Policy and distribution of the policy proceeds (¶ ¶ 87-102), and denied as to the remaining claims in Count V.
The motion for summary judgment is granted as to Count VII.
The motion for summary judgment is denied as to Counts I, II, IV, and VI.