Opinion
No. CV00 0271184-S
March 25, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE #116
This action arises out of a claim for injuries by the plaintiffs, David Martorelli and Sage Martorelli, David Martorelli's minor child, which occurred on October 2, 1998, at the home of the named defendant, James W. Huntley, now deceased. In the first and second counts, David Martorelli alleges injuries and losses occasioned by the negligence of the named defendant when David Martorelli and Sage Martorelli were visiting the home of James W. Huntley for purposes of inspecting a vehicle that James W. Huntley had advertised for sale. David Martorelli sustained injuries when the brake of the Huntley vehicle became disengaged causing the vehicle to roll backward crushing the leg and foot of David Martorelli. In the third and fourth counts, Sage Martorelli claims damages for emotional distress occasioned by being a witness to her father's injuries.
On January 9, 2004, the administrator of the estate of James W. Huntley was substituted as a defendant in place of James W. Huntley.
The fifth count of the plaintiffs' revised complaint alleges a fraudulent conveyance of property owned by the decedent James W. Huntley in an effort to remove the property as an available asset subject to attachment in this action for damages. It is alleged that James W. Huntley transferred his property to defendants, Jane Burlingame, Gary M. Huntley, David J. Huntley, Paul Huntley and Donald Huntley. The defendants now move to strike the fifth count of plaintiffs' revised complaint on the following grounds: (1) the fifth count alleging fraudulent conveyance is improperly joined with the other four counts alleging negligence; and (2) the fifth count fails to state a claim upon which relief can be granted.
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted, or . . . (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. In deciding a motion to strike, the court takes the facts to be those alleged in the complaint and construes the complaint in the manner most favorable to sustaining its legal sufficiency. Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002).
As to the first ground of the motion to strike, Practice Book § 10-21 provides in relevant part that "[i]n any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action . . . but, if several causes of action are united in the same complaint, they shall all be brought to recover . . . (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action." It has been long established that a plaintiff may "incorporate in a single complaint a claim for damages in tort and a petition that a fraudulent conveyance made to defeat her claim be set aside." Murphy v. Dantowitz, 142 Conn. 320, 325, 114 A.2d 194 (1955), overruled on other grounds, Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54 n. 6, 459 A.2d 503 (1983); see also Carey v. Forlivio, 32 Conn. Sup. 7, 336 A.2d 587 (1974).
The motion to strike on the ground of misjoinder is denied.
As to the second ground of the defendants' motion to strike, it is argued that the plaintiffs have failed to state a claim for relief under General Statutes § 52-552e, for the reason that the plaintiffs do not qualify as creditors because "at best, they are `possible creditors' or `contingent creditors,' because their claim has not been finally determined." It is true that prior to the passage of the Uniform Fraudulent Transfer Act (UFTA), General Statutes §§ 52-552a through 52-552l, and the repeal of its predecessor, General Statutes § 52-552, there was no statutory right of action to set aside a conveyance made to defeat a tort claim that was not reduced to judgment when the conveyance was made because a tort claimant was not a creditor within the contemplation of [the then] statute against fraudulent conveyances. Only parties who had reduced their claims to judgment were creditors under statute. See Murphy v. Dantowitz, supra, 142 Conn. 324. Upon common-law principles, however, a tort claimant could avoid a fraudulent transfer made to defeat his claim and need not await judgment on the claim before proceeding. See White v. Amenta, 110 Conn. 314, 318, 148 A. 345 (1930); Fowler v. Frisbie, 3 Conn. 320, 324 (1820).
General Statutes § 52-552 was repealed by No. 91-297, § 13, of the 1991 Public Acts, and the courts have adopted the Uniform Fraudulent Transfer Act, General Statutes § 52-552a.
Today, under the UFTA, "creditor" means "a person who has a claim"; Section 52-552b(4); and "claim" means "a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured." Section 52-552b(3). The plaintiffs herein are creditors within the meaning of the UFTA and have stated a cause of action for fraudulent conveyance both under that statute and under the common law.
The defendants' motion to strike for failure to state a claim under § 52-552e is denied.
BY THE COURT
Tanzer, Judge