Opinion
No. FST CV 05-4004245 S.
December 7, 2006.
MEMORANDUM OF DECISION
The plaintiff, Frank Verkaik ("Verkaik"), brought this action on behalf of his minor son, Simon Verkaik ("Simon"). Defendants Steven Scheno ("Scheno") and J. Eric Anderson ("Anderson") are sued in their capacities as present and former trustees of a revocable trust and an irrevocable trust. Defendant Gary Ryder ("Ryder") is alleged to be the settlor of both trusts. The complaint claims that Simon is a beneficiarie of both trusts and that Ryder conspired with the other defendants to remove assets from the trusts and otherwise harm the interests of the plaintiff as a beneficiary.
Presently before the court is a motion to dismiss dated January 10, 2006 filed by defendants Scheno and Ryder (#145.00). In that motion the defendants claim that the plaintiff`s action must be dismissed on two grounds. The defendants assert that the plaintiff lacks standing on a number of grounds and that the pendency of a prior action requires dismissal of one count of the complaint.
PRIOR PENDING ACTION
A motion to dismiss is properly used to consider a claim of prior pending action. Halpern v. Board of Education, 196 Conn. 647, 652 n. 4, 495 A.2d 264 (1985); In re Jessica M., 71 Conn.App. 417, 427, 802 A.2d 197 (2002). Although the defendants` motion to dismiss claims the existence of a prior pending action, a brief submitted in support of the motion alleges that the claims brought by the plaintiff have already been adjudicated by the Probate Court. The action which the defendants claim is currently pending is the plaintiff`s appeal from probate which is on file in this judicial district under docket number FST 05-4003520.
Appeals from the Probate Court to the Superior Court result in de novo hearings before the Superior Court. Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969) On appeal the Superior Court may consider any relevant evidence, even if not offered in front of the Probate Court. Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978) However, General Statutes § 45a-186 only permits appeals of an "order, denial or decree of a court of probate." Accordingly, whether the plaintiff`s pending appeal from probate constitutes a prior pending action depends an the nature of the order, denial or decree which was the subject of the decree.
With the exception of appeals on the record as provided in General Statutes § 51-71 and § 51-72.
The court`s ability to take judicial notice of its own files is not subject to question. Jewett v. Jewett, 265 Conn. 669, 678 n. 7, 830 A.2d 193 (2003). A review of the file in Plaintiff`s appeal from probate (FST 05-4003520) reveals that the orders and decrees which plaintiff appealed from consist of the following:
1. A decree dated November 29, 2004, finding that the plaintiff had an interest as an income beneficiary of the irrevocable trust, but deciding that, in light of other conflicts which could only be addressed by the superior court, the court should decline concurrent jurisdiction under General Statutes § 45a-175 of plaintiff`s applications for an accounting and for removal of the trustee.
2. A decree dated November 24, 2004, finding the plaintiff no longer had an interest in the revocable trust following the amendment of May 28, 2004, and accordingly denying applications for an accounting and to remove the trustee.
The seventh count of the plaintiff`s complaint in this matter demands an accounting by the trustees of both trusts. The court agrees with the defendants that the plaintiff`s pending probate appeal seeking accountings for the same period from the same trustees represents a prior pending action which requires dismissal to the seventh count of the plaintiff`s complaint.
STANDING ISSUES I. IRREVOCABLE TRUST
The defendant`s first claim regarding the plaintiff`s standing is that the irrevocable trust was amended on May 28, 2004 by defendant Ryder, acting as settlor, to eliminate Simon as a remainder beneficiary of that trust. The defendants correctly note that paragraph 49 of the plaintiff`s complaint alleges the above amendment to the irrevocable trust. In plaintiff`s opposition to the motion dismiss, it is claimed that even following the amendment to the revocable trust, Simon remained a discretionary income beneficiary of the irrevocable trust during Ryder`s lifetime. In the memorandum submitted in support of their motion to dismiss the defendants acknowledge the accuracy of that claim. Since the plaintiff`s status as a beneficiary of the irrevocable trust is not seriously disputed, it follows that the motion to dismiss on the grounds of his lack of standing with respect to the irrevocable trust is without merit.
II. REVOCABLE TRUST
The defendants next claim that the revocable trust was amended on May 28, 2004 to completely remove the plaintiff as a beneficiary. The plaintiff does not seriously dispute that the amendment to the revocable trust terminated the plaintiff`s interest in the revocable trust, but claims standing to pursue claims against the trustees and settlor arising prior to the amendment. With respect to the revocable trust the complaint does not allege that the plaintiff was entitled to any income or principal from the trust prior to the amendment, only that the property was improperly transferred from the trust to the settlor. Under these circumstances the court agrees with the defendants that claims arising out of the revocable trust if separated pleaded would be vulnerable to a motion to dismiss. However, for reasons set forth below the court finds that the present status of the pleadings do not allow the court to grant the motion to dismiss.
The complaint sets forth seven counts alleging various theories of recovery against the defendants based on their conduct with respect to both the irrevocable trust and the revocable trust. On August 5, 2005, the defendants filed a request to revise requesting that the plaintiff separate his claims into separate counts so that claims relating to the irrevocable trust were separated from those relating to the revocable trust. The plaintiff did not either file a timely objection to the request to revise or file a revised complaint as he was required to do by Practice Book § 10-37(a). The defendants, without citing any authority, invite the court to "consider the complaint to consist of fourteen counts, with seven of those counts limited to the allegations concerning the Irrevocable Trust and seven of those counts limited to allegations concerning the [revocable] Trust."
The court does not look with favor upon the defendants` proposed procedural innovations. When the plaintiff failed to revise the complaint as required by Practice Book § 10-37(a), the defendants` remedy was to move for a non-suit pursuant to Practice Book § 17-31. The court finds that under the circumstances of this case it would be improper for the court to rewrite the plaintiff`s complaint so as to separate the causes of action arising out of the irrevocable trust from those arising out of the revocable trust.
Each of the remaining six counts contain allegations relating to the irrevocable trust. The plaintiff`s status as a potential income beneficiary of that trust is properly pleaded and is not seriously disputed. It follows that the defendants` motion to dismiss on the ground that plaintiff is not a beneficiary of the revocable trust must be denied. Once the plaintiff has filed an amended complaint separating the claims relating to the irrevocable trust from those relating to the revocable trust the defendants may address the issue of the plaintiff`s standing as a beneficiary of the revocable trust through an appropriate pleading.
III. PLAINTIFF`S RIGHT TO SUE THE DEFENDANT SETTLOR
The defendants` final standing claim relates to the claims asserted against defendant Gary Ryder, the settlor of the both trusts, in the plaintiff`s first, second and fifth counts. The defendants claim that under the authority of Hall v. Hall, 91 Conn. 514, 519 (1919) any claims against third parties can only be brought by the trustee on behalf of the trust. The plaintiff argues that the general rule is not applicable where the plaintiff alleges that the fiduciary conspires or colludes with a third party to the detriment of the trust and its beneficiaries.
In support of his claim the plaintiff cites the provisions of 2 Restatement (Second) Trusts Trustees § 282 which, in relevant part, states "the beneficiary cannot maintain a suit in equity against the third person, except . . . [i]f the trustee improperly refuses or neglects to bring an action against the third person, the beneficiary can maintain a suit in equity against the trustee and the third person . . ."
"A motion to dismiss . . . attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot, as a matter of law and fact state a cause of action that should be heard by the court." Gurliacci v. Mayer, 218 Conn. 531, 544, 580 A.2d 914 (1991). In deciding a motion to dismiss the court "must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . ." Brookridge District Ass`n. v. Planning and Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002).
Construing the allegations of the plaintiff`s first, second and sixth counts in a manner most favorable to the plaintiff, the court finds that the plaintiff has alleged sufficient facts to bring his claims against defendant Gary Ryder outside of the scope of the rule of Hall v. Hall, supra. Accordingly, the defendant`s motion to dismiss those counts against defendant Ryder is denied.
CONCLUSION
The defendants` motion to dismiss the seventh count of the complaint on the ground of prior pending action is granted. The defendant`s motion to dismiss is denied in all other respects.