Opinion
HHBCV196050646S
11-22-2019
Taelor SCOTT et al. v. Susan SCOTT et al.
UNPUBLISHED OPINION
OPINION
Morgan, J.
The plaintiffs, Taelor Scott and Sydni Scott, bring this action in twenty-one counts against four defendants involved in the creation and administration of a trust (Trust) settled by their father, Stuart O. Scott (Scott), now deceased. The defendant Charles S. Silver, Esq., an attorney for Scott and a co-trustee of the Trust, moves to dismiss count one of the plaintiffs’ complaint alleging breach of contract against him in his individual capacity. The defendant also moves to strike the following nine counts of the complaint asserting claims against him in his individual capacity or in his capacity as co-trustee of the Trust: (i) count three alleging breach of fiduciary duty (as co-trustee); (ii) counts eight and nine alleging negligent infliction of emotional distress (as co-trustee and individually); (iii) count eleven alleging intentional infliction of emotional distress (as co-trustee); (iv) count thirteen alleging recklessness (as co-trustee); (v) count fifteen alleging bad faith (as co-trustee); (vi) count seventeen alleging abuse of discretion (as co-trustee); (vii) count nineteen alleging violation of General Statutes § 45a-318 et seq. (as co-trustee); and (viii) count twenty-one alleging violation of General Statutes § 45a-321 et seq. (as co-trustee).
The claims against the defendants John L. Bonee, III, Esq. and BoneeWeintrab, LLC were withdrawn by the plaintiffs after the court struck the claims asserted against them.
Count One: Breach of Contract (Individually)
The defendant claims the plaintiffs lack standing to bring a claim for breach of contract against him in his individual capacity because the plaintiffs did not enter into an attorney-client relationship with him and they were not the intended beneficiaries of his attorney-client relationship with their father. The complaint does not allege and the plaintiffs do not claim an attorney-client relationship between the plaintiffs and the defendant. Rather, the plaintiffs claim they have standing to sue the defendant for breach of contract because they are the intended beneficiaries of the Trust and the attorney-client contract between their father and the defendant. The issue of standing implicates subject matter jurisdiction and is properly raised by way of a motion to dismiss. Styslinger v. Brewster Park, LLC, 321 Conn. 312, 316 (2016).
In Stowe v. Smith, 184 Conn. 194, 198-99 (1981), our Supreme Court recognized that an attorney alleged to have erred in the preparation of a will may be held liable to the intended beneficiary of the will under either a tort or a contract theory of liability. "If the defendant thwarted the wishes of the testatrix, an intended beneficiary would also suffer an injury in that after the death of the testatrix, the failure of her testamentary scheme would deprive the beneficiary of an intended bequest. It therefore follows that the benefit which the plaintiff would have received under a will prepared in accordance with the contract is so directly and closely connected with the benefit which the defendant promised to the testatrix that under the allegations of the complaint the plaintiff would be able to enforce the contract." Id., 198.
In the present case, the plaintiffs allege that the defendant breached his contractual obligations to Scott not only by mishandling the Trust and Scott’s estate, but also by drafting a trust that violates the rule against perpetuities and fails to comport with Scott’s wishes. Although Stowe v. Smith involved an action by beneficiaries to recover damages for breach of a contract between a testatrix and her attorney to draft a will, the court’s legal analysis is persuasive and apposite to this case involving an action by beneficiaries to recover damages for breach of a contract between a settlor and his attorney to draft a trust. Considering the allegations of the complaint in their most favorable light, as the court must do when deciding a jurisdictional question raised by a motion to dismiss, see Gold v. Rowland, 296 Conn. 186, 200-01 (2010), the court finds that the plaintiffs have standing to bring a cause of action against the defendant, in his individual capacity, for breach of the attorney-client contract between Scott and the defendant.
Count Three: Breach of Fiduciary Duty (as Co-Trustee)
The defendant claims that the plaintiffs failed to allege a legally sufficient claim for breach of fiduciary duty because the complaint is devoid of any allegations that the defendant engaged in fraud, self-dealing or conflict of interest. The plaintiffs reply that their claim is sufficiently pled because the complaint is replete with allegations implicating the defendant’s honesty, loyalty and/or morality, as well as allegations that the defendant engaged in fraud, self-dealing and/or had a conflict of interest.
"The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut law are: (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; (2) That the defendant advanced his or her own interests to the detriment of the plaintiff; (3) That the plaintiff sustained damages; and (4) That the damages were proximately caused by the fiduciary’s breach of his or her fiduciary duty." T. Merritt, 16 Connecticut Practice Series: Elements of an Action (2019-2020 Ed.) § 8:1, p. 760; Chioffi v. Martin, 181 Conn.App. 111, 138 (2018). Several courts have further held that in order to allege a legally sufficient claim for breach of fiduciary duty a plaintiff must also allege conduct by the defendant amounting to fraud, self-dealing, immorality, or the like. See, e.g., Basile v. Castanho Financial Group, LLC, Superior Court, judicial district of Hartford, Docket No. CV-13-6045941-S (September 9, 2014, Elgo, J.) (citing cases); Salzano v. Goulet, Superior Court, judicial district of New Haven, Docket No. CV- 04-0287567-S (April 18, 2005, Wiese, J.), 39 Conn.L.Rptr. 166, *8 (same).
In the present case, the plaintiffs allege, among other things, that a fiduciary relationship existed between the defendant and the plaintiffs, that the relationship was characterized by a unique degree of trust between the parties, that the defendant had superior knowledge, skill or expertise and was under a duty to represent the plaintiffs’ interests, that the defendant breached his fiduciary duty to them, and that they suffered damages as a result. The specific allegations of breach against the defendant include the following: that he improperly pursued life insurance for the benefit of the Trust even though the life insurance was to benefit the plaintiffs, that he failed to pursue revenue belonging to the Trust for the benefit of the plaintiffs, that he has not distributed funds or property to the plaintiffs as required by the express terms of the Trust, and that he charged excessive fees for his services. Accepting as admitted all well-pleaded facts and those facts necessarily implied from the allegations, and construing the allegations of the complaint broadly, realistically, and in the manner most favorable to sustaining their legal sufficiency, as the court must do when ruling upon a motion to strike, see Geysen v. Securitas Sec. Services USA, Inc., 322 Conn. 385, 398 (2016), the court finds that the plaintiffs have pled a legally sufficient claim against the defendant, as co-trustee of the Trust, for breach of fiduciary duty.
Counts Eight and Nine: Negligent Infliction of Emotional Distress (as Co-Trustee and Individually)
The defendant argues that the plaintiffs fail to allege legally cognizable claims for negligent infliction of emotional distress because the plaintiffs’ claims are premised entirely on the defendant’s handling of their property, i.e., the Trust assets, and Connecticut courts do not recognize claims for negligent infliction of emotional distress where the claimed injury stems from damage to or loss of property. The plaintiffs respond that their claims are legally cognizable because they derive not solely out of property damage or loss of property, but rather from the manner in which the defendant conducted himself in administrating the Trust.
"To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, cert. denied, 286 Conn. 914 (2008).
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446 (2003). Our Supreme Court has further reasoned that this "essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable ... the defendants should have realized that their conduct created an unreasonable risk of causing distress, and [it], therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Id., 447.
"It is fairly well established that to date, Connecticut has not recognized claims for negligent infliction of emotional distress arising out of situations resulting in property damage alone ... Superior Courts have found that [a] negligent infliction of emotional distress claim based on property damage is not a legally cognizable claim in Connecticut ... reasoning that [w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Fasano v. Caprio, Superior Court, judicial district of New Haven, Docket No. CV-10-6014443-S (June 28, 2011, Woods, J.) (52 Conn.L.Rptr. 119, 120) (granting motion to strike negligent infliction of emotional distress claim based solely on loss of property, i.e., jewelry). See also Goldstein v. Rapp, Superior Court, judicial district of New London, Docket No. CV- 10-4010224-S (October 15, 2010, Martin, J.) (50 Conn.L.Rptr. 779, 781) (granting motion to strike negligent infliction of emotional distress claim based upon allegations that the defendant removed or caused to be removed the plaintiffs’ personal possessions, including mementos, family photos, and a jar containing the cremated remains of the plaintiff’s father).
Where, however, the claim does not derive solely from property damage or loss, but rather arises from the defendant’s misconduct which caused the damage or loss, the claim has been found legally sufficient. See Thompson v. Cherry St. Condominium Ass’n, Superior Court, judicial district of Waterbury, Docket No. CV-16-5018206-S (December 20, 2017, Roraback, J.) (denying the defendant’s motion to strike where the basis of the plaintiff’s emotional distress claim was not the destruction of his property, but the manner in which the defendants conducted themselves in responding to flood damage to the plaintiff’s property). See also Duffy v. Wallingford, 49 Conn.Supp. 109, 122-23 (2004) (denying the defendant’s motion for summary judgment as to the plaintiffs’ negligent infliction of emotional distress claim arising from the overflow of raw sewage into the plaintiffs’ residence because although property damage was involved, "their claims of emotional distress arise from their responses to the offensive exposure and continuing risk of exposure to raw sewage, not solely from the damage their property allegedly sustained as a result of the invasion of their home").
In the present case, the plaintiffs allege, among other things, that the defendant caused them to suffer emotional anguish by mishandling Trust assets and denying them access to their father’s personal effects, allegations which largely involve emotional distress relating to property loss. However, the plaintiffs also allege that the defendant did not permit them to see their father in the hours before his death; did not permit them to sit with their mother at their father’s funeral; did not permit them to attend the repass reception following the funeral; did not permit them to accept posthumous awards on their father’s behalf; did not permit them to accept invitations to events honoring their late father; did not notify them of personal requests for their appearances at events honoring their late father; forbade them from returning to their father’s residence for over three years despite having shared that residence with their father prior to his death; told them that there would be significant financial consequences to their mother if they brought legal action against him; and behaved toward them in a disparate, arbitrary and punitive mariner. Construing these allegations broadly and realistically, and accepting them as true, the court finds that the plaintiffs’ emotional distress claims do not derive solely from the alleged loss of or damage to property, but rather from the defendant’s alleged misconduct. Consequently, the plaintiffs’ claims against the defendant, as co-trustee of the Trust and in his individual capacity, are legally cognizable.
Count Eleven: Intentional Infliction of Emotional Distress (as Co-Trustee)
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must prove the following four elements: "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 442-43. "In assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeper function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility the court is not [fact-finding], but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Historic District Commission v. Sciame, 140 Conn.App. 209, 218 (2013).
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! ... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
The defendant argues that the plaintiffs’ claim for intentional infliction of emotional distress fails as a matter of law because the defendant’s conduct was not extreme and outrageous. The court agrees. The factual allegations of prior counts, which are incorporated by reference in count eleven, describe conduct which, if true, may very well have been distressing or hurtful to the plaintiffs. However, such conduct is not, as a matter of law, so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Consequently, the plaintiffs’ claim against the defendant, as co-trustee, for intentional infliction of emotional distress is legally insufficient.
Count Thirteen: Recklessness (as Co-Trustee)
"Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that wilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ... It is at least clear ... that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted; citation omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43 (2003).
The defendant argues that the plaintiffs have failed to sufficiently allege a claim of recklessness. The court agrees. The plaintiffs’ allegations, no matter how broadly construed, simply do not demonstrate that the defendant engaged in wilful, wanton, or reckless conduct that took on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. Consequently, the plaintiffs’ claim for recklessness against the defendant, as co-trustee, is legally insufficient.
Count Fifteen: Bad Faith (as Co-Trustee)
The defendant argues that Connecticut does not recognize an independent cause of action for "bad faith" outside of the insurance and contract contexts. The plaintiffs disagree and cite to Wiederman v. Halpert, 178 Conn.App. 783 (2017) and McCarthy v. Tierney, 116 Conn. 588 (1933) in support of their position that common-law bad faith is an independent cause of action that may be asserted under the circumstances presented by this case.
The court is not persuaded that Wiederman stands for the proposition advanced by the plaintiffs. Wiederman involved a myriad of claims arising from a real estate investment agreement entered into by the parties. 178 Conn.App. 785. One of those claims was for "bad faith." Id. After the defendants were defaulted for failing to appear at a trial management conference, the court held a hearing in damages at which it awarded compensatory damages collectively on four counts of the plaintiff’s complaint sounding in breach of fiduciary duty, fraud, conversion and bad faith. Id., 785-86. On appeal, the defendants claimed, in part, that the trial court erred when it failed to make explicit determinations as to the legal sufficiency of the plaintiff’s claims. Id., 799. The appellate court disagreed and found that the trial court did not commit plain error in this regard, reasoning that although the trial court did not explicitly address the legal sufficiency of each of the plaintiff’s claims, it must necessarily have found them sufficient when it awarded damages on those claims. Id., 800. In so holding, the appellate court did not expressly find that a claim for "bad faith" is viable outside the context of insurance disputes and contract actions. Moreover, given that the underlying action arose from a real estate investment agreement, it is reasonable to conclude that the plaintiff’s claim for "bad faith" was actually one for violation of the covenant of good faith and fair dealing arising from the investment agreement. For these reasons, the court rejects the plaintiffs’ contention that Wiederman stands for the proposition that the tort of common-law bad faith is viable outside the context of insurance disputes and contract actions. Similarly, while the court in McCarthy v. Tierney, supra, 116 Conn. 588, mentions the legal principles of fraud, bad faith and abuse of discretion, it did not hold that an independent cause of action for "bad faith" exists under the circumstances presented in this case.
Here, the plaintiffs’ claim against the defendant for "bad faith" is in form and substance the same as their claim against him for breach of fiduciary duty. Absent citation to any controlling authority for the proposition that the plaintiffs, as beneficiaries of the Trust, can maintain an independent cause of action for "bad faith" against the defendant, as co-trustee of the Trust, the court finds the plaintiffs’ claim, as alleged, is not a viable cause of action.
Count Seventeen: Abuse of Discretion (as Co-Trustee)
The defendant also argues that Connecticut does not recognize an independent cause of action for "abuse of discretion." The plaintiffs disagree and rely upon three cases in support of their position that Connecticut courts have recognized abuse of discretion actions against fiduciaries, to wit: McCarthy v. Tierney, supra, 116 Conn. 588 (1933), Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21 (1974), and Spring v. Dias, Superior Court, judicial district of New Britain, Docket No. CV-04-4000110-S (February 8, 2006, Domnarski, J.). None of these cases stands for the proposition advanced by the plaintiffs. In fact, all three cases involve actions between fiduciaries, not claims by a beneficiary against a fiduciary, and none of the cases involve allegations of or independent claims for "abuse of discretion."
As with their claim for "bad faith," the plaintiffs’ claim against the defendant for "abuse of discretion" is in form and substance the same as their claim for breach of fiduciary duty. Absent citation to any controlling authority for the proposition that the plaintiffs, as beneficiaries of the Trust, can maintain an independent cause of action for "abuse of discretion" against the defendant, as co-trustee of the Trust, the court finds that the plaintiffs’ claim as alleged is not a viable cause of action.
Count Nineteen: Violation of Gen. Stat. § 45a-318 (as Co-Trustee)
The defendant argues that the court should strike count nineteen of the plaintiffs’ complaint because General Statutes § 45a-318 does not provide a private cause of action for money damages. The plaintiffs disagree and contend that § 45a-318 does allow for legal causes of action for which monetary and non-monetary relief may be awarded.
"[T]here exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute ... In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose ... benefit the statute was enacted ... ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purpose of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483 (2012); see also Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).
General Statutes § 45a-318 governs the disposition of a deceased person’s body. Subsection (d) of the statute sets forth the priority of persons who have the right to custody and control of the disposition of a deceased person’s body following his/her death in the event the decedent made no prior designation. General Statutes § 45a-318(a) and (c). General Statutes § 45a-318(g) provides: "The court of probate for the district of the domicile or residence of a deceased person shall have jurisdiction to hear and decide any issue regarding the custody, control or disposition of the deceased person’s body, upon the petition of any individual designated by the deceased person pursuant to subsection (a) of (f) of this section, the individual entitled to custody and control under subsection (c) of this section if no designation is made pursuant to subsection (a) of this section, ... and upon such notice to interested parties as the court shall determine." There is no provision in the statute, however, creating a private cause of action for an individual seeking monetary or non-monetary relief upon allegations that the provisions of § 45a-318 were violated.
In the present case, the plaintiffs have not sustained their burden of overcoming the presumption described above. Moreover, that § 45a-318 provides a very specific remedy and vests jurisdiction in the probate court weighs heavily against finding that the statute provides for a private cause of action for an alleged violation of the statute. Consequently, the court finds that the plaintiffs’ claim for monetary and/or non-monetary relief under § 45a-318 is legally insufficient.
Count Twenty-One: Violation of Gen. Stat. § 45a-321 (as Co-Trustee)
Finally, the defendant argues that the court should strike count twenty-one of the plaintiffs’ complaint because General Statutes § 45a-321 does not provide a private cause of action for money damages. The plaintiffs disagree and contend that § 45a-321 does allow for legal causes of action for which monetary and non-monetary relief may be awarded.
General Statutes § 45a-321(b) provides: "The family of the decedent shall be allowed to remain in the dwelling house occupied by him at the time of his death, and may occupy such land and buildings connected therewith as the court considers necessary for their convenience and comfort until the same is sold, distributed, or otherwise disposed of according to law." There is nothing in the language of the statute that supports finding a private remedy for an alleged violation of the statute and the plaintiffs have not sustained their burden of overcoming the presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. Consequently, the court finds that the plaintiffs’ claim for monetary and/or non-monetary relief under § 45a-321 is legally insufficient.
For the foregoing reasons, the motion to dismiss count one is DENIED, the motion to strike counts three, eight and nine is DENIED and the motion to strike counts eleven, thirteen, fifteen, seventeen, nineteen and twenty-one, together with the corresponding claims for relief, is GRANTED.