Opinion
No. X10 UWY-CV-05-4010227S (CLD)
June 14, 2006
MEMORANDUM OF DECISION
Before the court is the defendants' Motion to Strike the first, second, third, sixth, seventh, eighth, and ninth count of the plaintiff's complaint. With regard to first three counts, the intervening plaintiff, Francis Moore, has joined in the defendants' motion and submitted a memorandum in support thereof.
This case is an action challenging the last will and testament of Frank H. Moore (the "decedent") and asserting certain other causes of action relating thereto. The following facts may be gleaned from the pleadings. In 2004 the decedent executed a "Last Will and Testament" (the "will") providing that "the entire tangible contents of my home, all of my personal effects, and any automobiles I may own, I direct be divided, at the discretion of my Executor, among my family and friends who survive me." The "rest, residue, and remainder" of the decedent's property, apparently including real property, was devised and bequeathed to the Trustee of the Frank H. Moore revocable Trust Indenture (the "Trust"). The defendant Shirley Brower is the trustee of the Trust. The will revoked an earlier will, executed in 1994, that devised the bulk of the decedent's property to his "family and friends."
The decedent, Frank H. Moore, died on or about February 18, 2004, and the will was thereafter admitted to probate. The plaintiff subsequently initiated this action. The first three counts, which have been challenged by the defendants and the intervening plaintiff, allege, respectively, that the defendants, who were the decedent's neighbors, unduly influenced the decedent to execute a will that dispersed "virtually all of his assets" to the defendants; that the decedent, who was infirm as a result of illness and age, lacked testamentary capacity to execute a will; and, in count three, that the decedent, for similar reasons, lacked the capacity to create a trust. The defendants alone also challenge the sixth, seventh, eighth and ninth counts, which allege conversion, statutory theft, intentional interference with an inheritance, and unjust enrichment, respectively.
The law governing the court's consideration of 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." (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). Specifically, the court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder" and "read the allegations broadly, rather than narrowly." Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The motion is to be tested by the allegations of the pleading, which allegations cannot be enlarged by the assumption of any facts not therein alleged. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549-50, 427 A.2d 822 (1980). 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); Donar v. King Associates, Inc., 67 Conn.App. 346, 349, 786 A.2d 1256 (2001). "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).
The defendants and the intervening plaintiff argue that counts one, two and three are legally infirm because they fail to include parties necessary to this action. Specifically, they argue that the heirs of the decedent are all necessary parties to these causes of action, such that the court cannot render judgment in their absence.
The court begins by noting that there has been a fair amount of confusion in the lexicon of this procedural thicket. Practice Book § 10-39(5) provides that a motion to strike may be granted for the failure to join a "necessary party." The definition of a necessary party, however, continues to be opaque. See generally Horton Knox, Connecticut Superior Court Civil Rules, Authors' Comments to §§ 9-18 and 9-19 (Noting inconsistent uses of the term "necessary" and proposing that it be purged from legal terminology to eliminate hopeless confusion.).
Nevertheless, the courts and commentators have distinguished substantively between parties that must be present, as a matter of constitutional due process, for the court to render judgment (sometimes styled "indispensable parties," which is the term utilized by the Federal Rules of Civil Procedure, see Fed.R.Civ.P. 19), and those parties that, while interested in the action, are not indispensable because their absence will not prejudice their rights. This latter category, perhaps unfortunately, is sometimes referred to as "necessary." The court will utilize these definitions of the terms "indispensable" and "necessary" in analyzing the issue before it.
Our Supreme Court has defined "indispensable parties" as follows:
Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience. Joinder of indispensable parties is mandated because due process principles make it essential that [such parties be given notice and an opportunity to protect [their] interests by making [them a party to the [action].
(Internal citations and quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 722-23, 661 A.2d 973 (1995). In contrast, "necessary" parties have been described as "[p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." Sturman v. Socha, 191 Conn. 1, 6-7, 462 A.2d 527 (1981). Prejudice to the rights of non-parties is a key factor in determining whether a party is indispensable or merely necessary. See Torringford Farms Assn., Inc. v. Torrington, 2000 WL 1474600 (Conn.Super. Sept. 22, 2000) (Frazzini, J.); Horton Knox, supra, Author's Comments to § 9-18.
The focus of the plaintiff's claims is on the relationship between the defendants and the decedent. To the extent that the plaintiff prevails, it appears that the property devised by the challenged will would pass by the rules of intestacy, and thus be distributed to the decedent's heirs, of which the plaintiff is one. Although the plaintiff, in his prayer for relief, seeks to impose a constructive trust in his favor on the "real and personal property" of the decedent, the plaintiff has acknowledged that, if he is successful, the decedent's property would vest in his heirs generally, and only in part in the plaintiff. See Plaintiff's Objection to Defendants' Motion to Strike, at 7. Therefore, it is apparent that the plaintiff is not seeking to obtain the decedent's property to the exclusion of the other heirs.
The court concludes that the heirs, while certainly interested in the outcome of this litigation, are not "indispensable" because the court can enter a final decree without prejudicing their rights. If the plaintiff prevails, the property that has been devised under the challenged will would pass to each of the heirs. If the plaintiff does not prevail, then the status quo (with the property passing by the will) is maintained. Under these circumstances, due process does not require that the heirs be joined, and their interests are "separable" such that the court can enter judgment in their absence without prejudicing their rights.
The court finds the decision of the court in Lukaskis v. Banknorth, National Association, 2005 WL 1219755 (Conn.Super. April 26, 2005) (Burke, J.) to be instructive in this regard. In that case, the plaintiff, an account holder with the defendant bank, brought claims of breach of contract and breach of fiduciary duty against the bank arising out of the bank's management of the plaintiff's funds. The defendant moved to strike the complaint on the grounds that the plaintiff failed to join her husband, who was a joint account holder with the plaintiff, in the action. After reviewing the distinction between "indispensable" and "necessary" parties, the court held that the husband, while a "necessary party" and interested in the controversy, was not indispensable to the plaintiff's maintenance of the action:
The plaintiff's husband does have an interest in the controversy and ought to be made a party to this action. In this case, however, the court can move forward without his presence and complete and final justice, because joint owners of a bank account share equal rights to the funds in the account" and any part or all of the balance of such account . . . may be paid to any of such persons . . ." (Emphasis in original; internal quotations marks omitted.) Fleet Bank Connecticut, N.A. v. Carrillo, 240 Conn. 343, 349-50, 691 A.2d 1068 (1997). The court denies the defendant's motion to strike the entire complaint for failure to include a necessary party because, although the plaintiff's husband is a necessary party that ought to be joined, he is not an indispensable party.
Id., *3.
Similarly, in the present case, should the plaintiff prevail, the heirs, including the plaintiff, apparently will share in the distribution of the property at issue in accordance with the rules of intestacy. The outstanding heirs, while interested in the litigation, do not need to be parties for the court to render judgment. The motion to strike the first, second, and third counts is denied.
The court now turns the defendants' motion to strike the sixth count of the plaintiff's complaint, which alleges that the defendant has converted the plaintiff's personal assets by refusing to distribute the plaintiff's share to him. The defendants contend that this count must be stricken because the plaintiff lacks a sufficient ownership interest in the decedent's personal assets to support a claim for conversion. In support of this contention, the defendants point to the language of Article I of the decedent's will, which provides in relevant part:
The entire tangible contents of my home, all my personal effects, and any automobiles I may own, I direct be divided, at the discretion of my Executor, among my family and friends who survive me.
(Emphasis added.)
According to the defendants, this provision cloaks the defendant Shirley Brower, as Executor of the decedent's estate, with unfettered discretion in determining the recipients of the decedent's personal property, such that she was and is under no obligation to distribute any of the decedent's property to the plaintiff. In other words, the defendants contend that Shirley Brower is within her rights under this section to distribute no property whatsoever to the plaintiff, such that the plaintiff does not have a cognizable property interest in the subject property.
The elements of the tort of conversion are well-established. "We have defined conversion as [a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It 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." Macomber v. Travelers Property Surety Corp., 261 Conn. 620, 649, 804 A.2d 180 (2002). It is also well-established that an action in conversion may lie in favor of a will beneficiary against the fiduciary of an estate. See 34 C.J.S. Executors and Administrators §§ 267, 269; 31 Am.Jur.2d, Executors and Administrators §§ 399-400.
As previously stated, it is the element of ownership that the defendants attack. It does appear from the above-quoted language of the decedent's will (which was annexed to the complaint) that the defendant Shirley Brower has discretion in distributing the decedent's personal property. The nature and extent of that discretion, however, is unclear to the court based solely upon the language of the will. In the present procedural posture, the court must view the complaint (and also the will, as it is appended to the complaint) in the light most favorable to the plaintiff. The plaintiff has clearly alleged that he is entitled to his proportionate share of the distribution of the decedent's personal assets pursuant to Article I of the decedent's will. While the defendants' proffered construction of the will may (or may not) ultimately prevail, for the purposes of a motion to strike the court concludes that the plaintiff has sufficiently alleged an ownership interest in the property bequeathed pursuant to Article I of the will. A factual and/or legal inquiry into the intent of the decedent in drafting the language of Article I of the will would be inappropriate at this procedural juncture.
The court further notes (assuming for present purposes that the plaintiff is entitled to some portion of the property, i.e., that the defendant does not have discretion to completely eliminate the plaintiff from distribution under Article I of the will) that the plaintiff holds more than a mere expectancy in the subject property. Specifically, because the alleged acts of conversion occurred after the decedent passed away, the plaintiff's expectancy of an inheritance ripened into a vested property right for the purpose of his conversion claim. See Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978) (Noting that "[t]he moment of the decedent's death determines the right of inheritance or testamentary succession.").
The defendants further argue that the sixth count should be stricken because the plaintiff cannot point to any specific property of the decedent to which he is entitled. The court rejects this argument. The defendants have cited, and the court is aware, of no authority requiring a beneficiary under a will to identify specific pieces of property to which the beneficiary is entitled in order to maintain a conversion action. The defendant's argument would effectively limit actions for conversion to the beneficiaries of specific bequeaths, or to situations where there is a single beneficiary of a general bequeath. In cases where there are multiple beneficiaries under catch-all "residue" clauses, these beneficiaries would effectively be precluded from maintaining a conversion action. The defendant has proffered no authority for such an artificial distinction between classes of beneficiaries. The motion to strike the sixth count is denied.
The present situation should he distinguished from a case where a conversion claimant can point to no specifically identifiable funds in an action for conversion of money. See, e.g., Macomber v. Travelers Property Surety Corp., supra, 261 Conn. 650-51. The result in that case is a manifestation of the general common-law rule that money constitutes intangible personal property. See 18 Am.Jur.2d, Conversion § 7.
The defendants make identical arguments in their motion to strike the seventh count, which sounds in statutory theft pursuant to General Statutes § 52-564. The court denies this motion for the reasons set forth in its discussion of the sixth count, above.
The defendants' motion to strike the eighth count of the plaintiff's complaint requires the court to decide whether Connecticut has recognized the tort of intentional interference with an inheritance. The defendants argue that Connecticut has not recognized this cause of action; the plaintiff makes the opposite contention. The court agrees with the defendants that Connecticut does not recognize such a cause of action.
In support of his argument that Connecticut has recognized this tort, the plaintiff relies primarily upon the decision of the United States Court of Appeals for the Second Circuit in Devlin v. United States, 352 F.3d 525 (2d Cir. 2003). In that case, the plaintiff brought a claim under the Federal Tort Claims Act ("FTCA") against certain personnel employees of the United States Postal Service for negligence in the processing of a life insurance policy held by the plaintiff's brother. The plaintiff therein alleged that, as a result of the postal employee's failure to lodge a change of beneficiary form in the correct location, the plaintiff was deprived of her status as a beneficiary under her brother's life insurance policy.
In the course of analyzing the validity of the plaintiff's claim under the FTCA, the court deemed it necessary to determine whether the plaintiff's status as a beneficiary under the subject life insurance policy was a property interest that was protected by the law of the place of the tort, namely, Connecticut. In answering that question in the affirmative, the court stated:
The question thus becomes whether a person's interest as a named beneficiary or potential heir is a property interest that is protected by the tort law of Connecticut. We conclude that it is because Connecticut follows the majority of jurisdictions . . . in recognizing the tort of interference with an inheritance, see Benedict v. Smith, 34 Conn.Supp. 63, 376 A.2d 774 (Conn.Super.Ct. 1977) . . .
Id., 542.
For two reasons, the court finds the analysis and conclusion of the Devlin court unpersuasive in the present context. First, the authority upon which the Devlin court primarily relies, CT Page 12680 Benedict v. Smith, 34 Conn.Sup. 63, 376 A.2d 774 (1977), simply did not recognize, or even consider, the tort of intentional interference with an inheritance as it is posited by the plaintiff in the matter at bar. Instead, the court in that case had before it negligence claims brought by beneficiaries under a will against an attorney arising out of the alleged loss of the decedent's will. The court did note that other jurisdictions have recognized a cause of action for the destruction, spoliation, or suppression of a will. This tort, however, relates to the will document itself, and thus is distinct from the crux of the allegations made by the plaintiff in the eighth count, which focus instead upon the relationship between the defendants and the decedent. See generally 22 A.L.R. 4th 1229, § 2 (Noting distinction between torts involving interference with will document itself, on the one hand, and interference with an expected inheritance arising out undue influence, on the other.). Moreover, as discussed above, the plaintiff's claims in Benedict were founded upon negligence, rather than an intentional tort. Finally, the court in Benedict stopped short of recognizing any cause of action relating to the plaintiffs' claims (because the court held that the plaintiffs lacked standing to maintain the action due to their failure to attempt to have the lost will probated). For these reasons, the court concludes that the Devlin court's reliance on Benedict v. Smith was misplaced.
In a footnote, the Devlin court cites "for support" (Cf.) of its conclusion that Connecticut recognizes this tort the decision of the United States District Court for the District of Connecticut in DiMaria v. Silvester, 89 F.Sup.2d 195 (D.Conn. 1999). This citation is curious in two regards. First, although the court cites DiMaria in support of its conclusion that Connecticut recognizes the tort of intentional interference with an inheritance, the court went on to note in parenthetical that DiMaria stated "without citation or explanation, that Connecticut does not recognize this tort." In addition to its confusing use of the cf. signal, the Devlin court apparently ignored a companion decision issued by Judge Covello in DiMaria wherein the court engaged in a fairly thorough analysis of Connecticut law before concluding that Connecticut has not recognized the tort of intentional interference with an inheritance. This decision is discussed more fully below.
It is also noted that in Devlin the issue of whether Connecticut recognizes the tort of intentional interference with an inheritance was not presented squarely to the court. The plaintiff in Devlin did not bring a claim of intentional interference with an inheritance or any other cause of action resembling that tort. Instead, the Devlin court's dicta regarding this issue was written in the context of a discussion as to whether, for the purposes of an entirely unrelated negligence cause of action under the FTCA, a beneficiary under a life insurance policy holds a property interest that is protected under Connecticut law, resulting in the plaintiff's claim falling within the meaning of "injury or loss of property" under the FTCA, 28 U.S.C. § 1346(b)(1). The issue of whether Connecticut recognizes this tort was, at best, tangential to the primary issue being addressed in Devlin. Likely for this reason (and due to its reliance upon Benedict v. Smith, supra) the court did not engage in the kind of rigorous logical and public policy analysis that has been undertaken by our Supreme Court in determining whether to recognize a new tort. See, e.g., Mendillo v. Board of Education of Town of East Haddam, 246 Conn. 456, 477, 717 A.2d 1177 (1998) (Declining to recognize tort of loss of parental consortium.).
The other authorities relied upon by the plaintiff are no more persuasive. Bria v. Saumell, 1990 Conn.Super. LEXIS 411 (June 5, 1990) (Thim, J.), to which the plaintiff also cites, does no more than state in passing that "[t]here is authority for the proposition that the plaintiffs have the right to maintain a cause of action for damages," followed by a citation to an A.L.R. article on the subject of liability for interference with an inheritance. Standing was the only issue before the court in Bria and the court never discussed the nature or the legal sufficiency of the plaintiff's claims in its one-page decision. The court concluded that "whether the plaintiff will be successful on a Motion to Strike or on the merits of the claim is immaterial to the issue of standing." Id.
Indeed, the only court that has analyzed this issue at any length came to the conclusion that Connecticut does not recognize this tort. See DiMaria v. Silvester, 1999 U.S. Dist. LEXIS 21765 (D.Conn. July 21, 1999) (Covello, J.). In that case, the United States District Court for the District of Connecticut, after reviewing several Connecticut cases (including Benedict v. Smith and Bria v. Saumell) granted the defendant's motion to dismiss the plaintiff's claim for intentional interference with an inheritance. See id., *7-11 and n. 3 (Noting that "it is more accurate to state that Connecticut has never recognized such a cause of action, and the plaintiff's have offered no cases to the contrary."). The motion to strike the eighth count is granted.
Another decision cited in DiMaria, Hall v. Hall, 91 Conn. 514, 100 A. 441 (1917), discussed but stopped short of recognizing a cause of action for intentional interference with an inheritance. The court in that case stated: "As to the cause of action for damages for depriving the plaintiff of his inheritance by the defendants' fraudulently procuring the execution of the pretended will in their own favor, the complaint stands on a different ground for it alleges that at the time when the so-called will was executed the testator was mentally incapable of making a will. In view of this allegation it cannot be said that the testator had a right to dispose of his property by will as he saw fit. He no longer possessed that right, after he became, as alleged, incapable of understanding the effect of a will. It is possible that if the complaint had stopped at this point of the narrative, it might have stated a good cause of action against the defendants for fraudulently procuring their incapable father to execute a pretended will in their favor, when coupled with the allegation that they had in fact obtained the benefit of it." Id., 519-20. The court went on to hold, however, that it need not decide whether to recognize the tort because the plaintiff's cause of action constituted an improper collateral attack on a previous judgment rendered by the probate court. Id., 521.
The foregoing discussion, of course, begs the question of whether Connecticut ought to recognize the tort of intentional interference with an inheritance. The plaintiff, however, has not briefed this related but distinct issue, and in light of the rigorous requirements established by our Supreme Court for the recognition of new torts, the court will not engage in such an analysis without the benefit of full briefing by the parties.
Finally, the defendants have moved to strike the ninth count of the plaintiff's complaint, which sounds in unjust enrichment. The defendants argue that this claim is legally insufficient because the plaintiff has failed to allege any facts establishing a failure to pay benefits to the plaintiff. The court agrees with the defendants that the ninth count should be stricken, albeit for somewhat different reasons.
The doctrine of unjust enrichment exists generally to avoid an inequitable result when a party has conferred a benefit upon another, but an action on contract cannot be maintained. See Hartford Whalers Hockey Club v. The Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518. "Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract." Id., quoting 5 S. Williston, Contracts (Rev.Ed.) § 1479.
Unjust enrichment, then, is a species of quasi-contract. The doctrinal difficulties attendant to applying this cause of action to the present facts — where there is no relationship between the parties under which it can be said that the plaintiff somehow conferred a benefit upon the defendants — are acute. This is not an action where, notwithstanding a failure in the elements of contract formation or an excuse in performance, it would be inequitable for the defendants to retain some benefit conferred by the plaintiff. This is, at core, an action to contest a will. The court recognizes that unjust enrichment is a flexible, equitable doctrine, see id. at 282-83; and that a contract, whether express or implied, is not a prerequisite to the maintenance of an action for unjust enrichment. It would, however, stretch the doctrine to its breaking point to apply it to the facts as alleged in the complaint.
The point is perhaps best illustrated by the fact that the plaintiff's unjust enrichment claim in the present case is dependent for its ultimate validity upon the success of the plaintiff's remaining causes of action challenging the decedent's will. If the plaintiff succeeds on the other counts, the unjust enrichment claim will be duplicative. However, if those claims ultimately fail, then the unjust enrichment claim will fail as well. This is in stark contrast to the typical case where unjust enrichment is utilized as an equitable doctrine to avoid injustice if the plaintiff's claims at law fail. The motion to strike the ninth count is granted.
In sum, the motion to strike the first, second, third, sixth and seventh counts is denied; the motion to strike the eight and ninth counts is granted.