Opinion
No. CV 030091504
May 4, 2004
MEMORANDUM OF DECISION
The plaintiff, Jeannine Talbot, brought this eighteen-count action against the defendants, Brian Ladouceur and Sheila Kirkwood, individually and as executrix of the estate of Robert Kirkwood (hereinafter referred to as the "decedent"), for losses sustained after the decedent, the plaintiff's former law partner, passed away. The plaintiff alleges that she and the decedent, as part of their partnership agreement, each purchased a life insurance policy naming the other partner as the sole beneficiary. It is alleged that they purchased these policies to enable the surviving partner to purchase the deceased partner's partnership interest upon his or her demise. It is further alleged that, shortly before the decedent's death, he changed the beneficiary on his policy (hereinafter referred to as the "Kirkwood policy") from the plaintiff to his wife, the defendant Sheila Kirkwood (hereinafter referred to as "Mrs. Kirkwood"). The complaint further asserts that Mrs. Kirkwood redeemed the Kirkwood policy after the decedent died. The plaintiff initially filed a claim against the decedent's estate, but that claim was denied on June 4, 2003. This action was brought pursuant to Connecticut General Statutes § 45a-363.
Section 45a-363 allows a person who has presented a claim against an estate, which has been rejected, to file suit against the estate within one hundred and twenty days from the date of the rejection of the claim.
Specifically before this court is the defendants' request to revise filed pursuant to Practice Book § 10-36. The defendants have requested twenty-eight revisions to the plaintiff's complaint. The plaintiff filed an objection to the defendants' request to revise pursuant to Practice Book § 10-37, stating a general objection as well as particularized objections to each of the requested revisions. For the reasons set forth below, the plaintiff's objections to each request to revise is sustained.
Practice Book § 10-36 provides that "[t]he request to revise shall set forth, for each requested revision, the portion of the pleading sought to be revised, the requested revision, and the reasons therefor, followed by sufficient space in which the party to whom the request is directed can insert an objection and reasons therefor."
Practice Book § 10-37(a) provides in relevant part that a request to revise "shall be deemed to have been automatically granted by the judicial authority on the date of filing and shall be complied with by the party to whom it is directed within thirty days of the date of filing the same, unless within thirty days of such filing the party to whom it is directed shall file objection thereto." It should be noted that initially, the court overruled the plaintiff's objection because it was not timely filed. Subsequent to the court's decision, the plaintiff filed a motion to reargue and reconsider, which was granted by consent.
"[T]he proper way to cure any confusion [about what is being pleaded] is to file a motion to revise . . ." Rowe v. Godou, CT Page 7417 209 Conn. 273, 279, 550 A.2d 1073 (1988); see also Parsons v. United Technologies Corp., 243 Conn. 66, 100, 700 A.2d 655 (1997). "The request to revise is a motion for an order directing the opposing party to revise his pleading in the manner specified." Royce v. Westport, 183 Conn. 177, 180, 439 A.2d 298 (1981). "The purpose of a request to revise is to secure a statement of the material facts upon which the adverse party bases his complaint or defense . . . The test is not whether the pleading discloses all that the adversary desires to know in aid of his own cause, but whether it discloses the material facts which constitute the cause of action or ground of defense." (Citation omitted; internal quotation marks omitted.) Knight v. Southeastern Council on Alcoholism, Superior Court, judicial district of New London, Docket No. CV 01 557182 (September 21, 2001, Hurley, J.T.R.), citing Kileen v. General Motors Corp., 36 Conn. Sup. 347, 348, 421 A.2d 874 (1980). "[A] request to revise is permissible to obtain information so that a defendant may intelligently plead and prepare his case for trial but it is never appropriate where the information sought is merely evidential . . . The defendant is not entitled to know the plaintiff's proof but only what he claims as his cause of action." (Internal quotation marks omitted.) Summit Bank v. Riverview East Associates, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 99 0173369 (August 9, 2000, Hickey, J.). "Any party may file a request to revise in order to obtain . . . the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. 324786 (March 21, 1997, Stodolink, J.), rev'd on other grounds, 252 Conn. 193, 746 A.2d 730 (2000). Practice Book § 10-2 provides in pertinent part that "[a]cts . . . may be stated according to their legal effect, but . . . the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove." "[R]equiring a more particular statement . . . [is] largely within the discretion of the court." Cervino v. Coratti, 131 Conn. 518, 520, 41 A.2d 95 (1945).
The defendants first seek a revision of paragraph nineteen of count two, which states that "[a]s a partner in the partnership, the decedent owed a fiduciary duty to the plaintiff . . ." The defendants claim that paragraph nineteen states a conclusion of law and that the plaintiff has not supplied a short and plain statement of the facts as required by Practice Book § CT Page 7418 10-1. The plaintiff objects and argues that paragraphs one through eighteen of count two contain factual allegations showing that the decedent owed the plaintiff a fiduciary duty. The court sustains the plaintiff's objection because the plaintiff has alleged that she and the decedent formed a partnership and our Supreme Court has recognized that partners have a fiduciary duty to one another. Hi-Ho Tower, Inc. v. ComTronics, Inc., 255 Conn. 20, 39, 761 A.2d 1268 (2000); see also Spector v. Konover, 57 Conn. App. 121, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000).
Count two alleges breach of a fiduciary duty against Sheila Kirkwood as executrix of the estate of Robert Kirkwood.
Practice Book § 10-1 provides: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation. If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement; and, if in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority."
The defendants request that the word "wrongful" or "wrongfully" be deleted from several paragraphs, arguing that these paragraphs, as written, state legal conclusions rather than plain and concise statements of fact in accordance with the Practice Book. The plaintiff objects and argues that the use of the word "wrongful" is proper because it establishes prima facie elements of her claims.
In Homeside Lending v. Martin, Superior Court, judicial district of New London, Docket No. 561110 (August 7, 2002, Martin J.), the court held that a special defense stating that "[t]he defendant has made all payments as required and the acceleration is wrongful," was not a legal conclusion because whether the mortgage payments were made is a question of fact. The defendants have not cited any legal authority for the proposition that the use of the word "wrongful" in an allegation or a defense renders it a mere legal conclusion or that it is improper. Whether the decedent was authorized or wrongful in changing the beneficiary of the Kirkwood policy is a question of material fact that is dispositive of the plaintiff's claims. Accordingly, the plaintiff's objection is sustained as to all of the defendants' requests that the word "wrongful" be deleted.
This includes objections to paragraphs nineteen and twenty-three of count three, paragraphs nineteen, twenty and twenty-four of count nine, paragraph thirty-two of count twelve, paragraphs twenty-two and twenty-three of count fifteen, paragraph twenty-seven of count sixteen, paragraph three hundred and sixteen and subparagraphs (a), (b), (c) and (d) of paragraph three hundred and seventeen of count eighteen.
It should be noted that count nine is a conversion claim against Sheila Kirkwood individually, count twelve is a statutory theft claim against Sheila Kirkwood individually, count fifteen is a conversion claim against Ladoucer, count sixteen is a statutory theft claim against Ladoucer and count eighteen is a civil conspiracy claim against Sheila Kirkwood individually and Ladoucer.
The defendants make similar requests, seeking the deletion of the phrase "good faith," and the words "unlawfully" and "unjustly." First, the defendants request that the phrase "good faith" is deleted from paragraph twenty-five of count five, paragraph twenty-eight of count six, paragraph thirty of count seven and paragraph thirty-one of count eight. The defendants claim that the inclusion of "good faith" is a legal conclusion and assumes an obligation for which there is no factual basis. The plaintiff objects, arguing that whether the alleged actions were taken in "good faith" is essential to her claims. The defendants also seek the deletion of the word "unjustly" from paragraph twenty-six of count ten and the word "unlawfully" from paragraph three hundred and seventeen of count eighteen. Again, the defendants claim that the use of these words creates legal conclusions rather than plain and concise statements of fact. The court finds that each of the above counts, when read in their entirety, provide a sufficient factual basis for the disputed allegations and therefore, the allegations have been pleaded in accordance with Practice Book § 10-1. The defendants have not provided any legal authority which indicates that the inclusion of these terms in an allegation is improper. The plaintiff's objections regarding the deletion of these terms are sustained.
Additionally, the defendants seek the deletion of paragraphs nineteen through twenty-four of count four in their entirety. The defendants claim that the plaintiff has stated bold legal conclusions and has not alleged plain and concise statements of fact. The plaintiff objects and claims that the facts alleged in paragraphs one through twenty-seven of count four provide a plain and concise statement of facts to support the allegations in the disputed paragraphs.
Count four alleges fraudulent nondisclosure against Sheila Kirkwood as executrix of the estate of Robert Kirkwood.
Paragraph nineteen provides that "[t]he decedent failed to make a full and fair disclosure to the plaintiff about his intention to change the beneficiary of the Kirkwood policy . . ." "The key element in a case of fraudulent nondisclosure is that there must be circumstances which impose a duty to speak." Jackson v. Jackson, 2 Conn. App. 179, 194, cert. denied, 194 Conn. 805 (1984). Connecticut courts have indicated that allegations of a fiduciary relationship, such as a partnership, are sufficient to impose such a duty. See Konover Development Corp. v. Zeller, 228 Conn. 206, 218, 635 A.2d 798 (1994); Leisure Resort Technology, Inc. v. Trading Cove Associates, Superior Court, judicial district of Waterbury, Docket No. 000164799 (August 6, 2001, McWeeney, J.) ( 30 Conn. L. Rptr. 194). Paragraphs one through eighteen of count four allege that the plaintiff and the decedent were partners, that they agreed to purchase life insurance policies as part of their partnership agreement, that they purchased said policies with the intention that one partner would be named as the sole beneficiary and would be able to purchase the other's half of the partnership if one of them passed away, that the policy premiums were paid by the partnership and that the decedent unilaterally changed the beneficiary on the Kirkwood policy. The court finds that these facts are sufficient to establish that the decedent had a legal obligation to make a full and fair disclosure, and further finds that there is a sufficient factual predicate for the allegations made in paragraphs twenty through twenty-four. Accordingly, the plaintiff's objections are sustained.
Paragraphs twenty and twenty-one concern the decedent's assumption and duty to speak. Paragraph twenty-two involves the decedent's knowledge of the plaintiff's belief that she was the beneficiary of the Kirkwood policy and her reliance on that belief. Paragraph twenty-three involves the decedent's reasons for the nondisclosure and paragraph twenty-four alleges the plaintiff's loss as a result of the nondisclosure.
Finally, the defendants request that paragraph twenty-five of count thirteen be revised because they claim that the plaintiff has not set forth sufficient facts concerning Sheila Kirkwood's knowledge of the decedent's alleged fiduciary duty. The plaintiff argues that the defendants' requested revision is a disguised discovery tool and that count thirteen as a whole sets forth facts sufficient for a claim of aiding and abetting a breach of fiduciary duty claim against Sheila Kirkwood individually. Paragraph twenty-five reads "[u]pon information and belief, defendant Sheila Kirkwood had knowledge of the decedent's breach of his fiduciary duty to the plaintiff and/or the partnership." Whether Mrs. Kirkwood had knowledge of the decedent's fiduciary duty is a material fact to this claim. However, more specific information such as how and when she obtained the alleged knowledge need not be pleaded in order to alert the defendants of what the plaintiff intends to prove at trial. These particular facts are evidentiary in nature and are better left for the discovery process.
In summary, the defendants' request to revise is denied in its entirety and the plaintiff's objections are sustained.
BY THE COURT
HON. VANESSA L. BRYANT