Opinion
No. CV 06 5002849
July 31, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The issue presented in this case is whether count two of the plaintiff's revised complaint, alleging conversion of property, should be stricken on the ground that it is legally insufficient as it fails to set forth a cause of action in conversion.
Brief History
On February 5, 2007, the plaintiff filed a revised two-count complaint alleging breach of contract and conversion of property. The plaintiff alleges the following facts. On July 22, 1998, the defendant purchased property known as 3 Seibert Drive, Terryville, Connecticut for the sum of $123,000. Prior to purchasing the property, the parties orally agreed that each would contribute equally to the down payment and closing costs, that they would live on the property together and that the defendant would be the owner of record. As a result of this agreement, the plaintiff contributed $17,000 toward the purchase of the property and $2,000 per month for the mortgage and other household expenses. The plaintiff also took the mortgage interest deduction each year on his personal federal tax returns. On April 5, 2005, the plaintiff moved from the property and on December 15, 2005, the defendant sold the property for $220,000. After the sale of the property, the defendant failed to pay the plaintiff one-half of the net sale proceeds. The defendant subsequently purchased another property at 53 Prospect Street, Terryville, Connecticut.
On April 11, 2007, the defendant filed a motion with attached memorandum of law to strike count two of the complaint on the ground that it fails to set forth a cause of action in conversion. On May 15, 2007, the plaintiff filed a memorandum of law in opposition. This matter was heard on the short calendar on May 21, 2007.
Discussion
In her memorandum of law in support of the motion to strike, the defendant argues that the plaintiff is erroneously basing his claim of conversion on a breach of contract. Additionally, the defendant states that the plaintiff provides no facts to indicate that he ever owned, possessed or exercised control over the funds at issue. The plaintiff counters that the defendant's use of the net proceeds from the sale of their shared residence was unauthorized.
"The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." (Emphasis in original; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43, 761 A.2d 1268 (2000). "The seminal case in this state regarding conversion is Coleman v. Francis, 102 Conn. 612, 129 A. 178 (1925) . . . Coleman established that there are two `general classes' of conversion: (1) that in which possession of the allegedly converted goods is wrongful from the onset; and (2) that in which the conversion arises subsequent to an initial rightful possession." Luciani v. Stop Shop Cos., 15 Conn.App. 407, 410, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988). "The second class is where the possession, originally rightful, becomes wrongful by [1] reason thereafter of a wrongful detention, or [2] a wrongful use of the property, or [3] the exercise of an unauthorized dominion over the property." (Internal quotation marks omitted.) Id.
"Money can clearly be subject to conversion." Omar v. Mezvinsky, 13 Conn.App. 533, 536, 537 A.2d 1039, cert. denied, 208 Conn. 803, 545 A.2d 1101 (1988). See Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790 n. 6, 646 A.2d 799 (1994) (conversion of a trust account); Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979) (conversion applicable to an account passbook); Dunham v. Cox, 81 Conn. 268, 270-71, 70 A. 1033 (1908) (recovery of a sum of money entrusted to the defendant for payment to a third person). However, "for the plaintiffs' conversion claim to survive a motion to strike, the plaintiffs must present a theory of how . . . the money that the defendants allegedly have retained . . . [is] the plaintiffs' property." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 649, 804 A.2d 180 (2002).
In Macomber, the court upheld the granting of a motion to strike a claim of conversion as the plaintiffs could not "point to specific, identifiable money to which they had a right, just as they must in order to support a conversion claim regarding any other type of chattel." Id., 650. In Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 905 A.2d 623 (2006), the dispute was over the payment of certain deferred compensation benefits and commissions after the plaintiffs terminated their employment relationships with the defendants. The plaintiffs' claim of conversion, with respect to these deferred compensation benefits and commissions, failed as the plaintiffs did not allege that they ever possessed the accumulated funds. Id., 773. See also Fiume v. Wiremold Co., Superior Court, judicial district of Hartford, Docket No. CV 054014882 (September 29, 2006, Tanzer, J.) (42 Conn. L. Rptr. 94) (motion to strike a claim for conversion granted as the plaintiff only alleged that the defendant withheld bonus payments due him under an employment agreement). However, in Withers Bergman, LLP v. New England Personnel of Hartford, LLC, Superior Court, judicial district of New Haven, Docket No. CV 05 4007937 (April 5, 2007, Licari, J.), the court denied a motion to strike the plaintiff's conversion claim as the plaintiff was seeking the return of "a specific, identifiable sum of money that it [was] allegedly entitled to possess pursuant to a guarantee agreement." Id.
Our Supreme Court, citing to case law from other jurisdictions, has stated: "[T]he 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." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 772. Although the court in Deming sets forth that a breach of contract cannot be subject to a claim of conversion, the funds under contention in that case did not originally belong to the plaintiffs, but was money allegedly due them as a result of their employment agreement.
In the instant case, by incorporating paragraphs one through thirteen of count one, (breach of contract), into count two, (conversion), the plaintiff predicates his claim for conversion on the alleged breach of an oral contract between the parties. However, it is not disputed that the plaintiff owned, possessed and exercised control over the $17,000 he contributed towards the down payment of the shared residence. The defendant's unwillingness to disperse any funds to the plaintiff upon the sale of the property appears to be a "wrongful detention" of these funds. The plaintiff has demonstrated ownership of an identifiable sum of money in his claim of conversion.
Conclusion
Accordingly, the defendant's motion to strike count two is denied.