Opinion
HHDCV146050575S
06-16-2016
Carmella Wild et al. v. Joseph Cocivera, Jr
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE #117
Cesar A. Noble, J.
This action arises out of a dispute between the beneficiaries of the last will and testament of Salvatrice A. Cocivera (decedent). The parties to this action are the children and heirs of the decedent. The defendant, Joseph Cocivera, has moved to strike the plaintiffs, ' Carmella Wild and Rosalie Muzzy, revised complaint in its entirety based on the ground that the complaint fails to state claims upon which relief can be granted. For the following reasons, the court grants the defendant's motion in part and denies it in part.
For purposes of this memorandum, Carmella Wild and Rosalie Muzzy will collectively be referred to as the plaintiffs. Should specific references to the plaintiffs in their individual capacities be needed, the plaintiffs will individually be referred to by their last names.
I
FACTS AND PROCEDURAL HISTORY
For purposes of the present motion, the following facts as alleged in the plaintiffs' complaint are accepted as true. The parties to this action are the children of the decedent and are the sole beneficiaries under the decedent's last will and testament dated April 29, 2010 (decedent's will). The decedent died on February 8, 2011.
In accordance with the decedent's will, the parties were to share equally in the decedent's assets at the time of her death. In January 2007, the defendant engaged an attorney to have a power of attorney prepared for the decedent, appointing him as the decedent's attorney in fact. The decedent signed this power of attorney form. At the time that the defendant had the power of attorney form drafted, he knew that the decedent wanted him to protect and maintain her assets for the benefit of her heirs, including the plaintiffs.
In his capacity as attorney in fact, the defendant caused himself to be the co-owner of the decedent's bank accounts and ultimately withdrew at least $81, 287.21 from the decedent's accounts. The defendant kept these funds for himself and did not equally share the decedent's assets with the plaintiffs as was required by the decedent's will. Additionally, the defendant used a credit card belonging to the decedent for his own personal use and paid those credit card balances with the funds he received from the decedent's bank accounts. Moreover, prior to and in connection with the probate proceedings for the decedent's will, the plaintiffs requested that the defendant provide financial records for the decedent's affairs during his time of service as attorney in fact. The defendant refused to divulge any financial records pertaining to his tenure as attorney in fact. Finally, the defendant caused a " new" will to be prepared for the decedent, which was executed on April 29, 2010, at a time when the decedent was legally blind and failing in health. The only change for this " new" will was that it nominated and appointed the defendant as executor for the decedent's estate, replacing his sister, Muzzy, who was nominated as executrix in the decedent's " prior" will.
The plaintiffs allege that the defendant's conduct provides a factual predicate for the following causes of action: (1) a breach of the defendant's fiduciary obligations that he owed as attorney in fact; (2) a tortious interference with the plaintiffs' expected inheritance; and (3) the diverted monies should be held in a constructive trust for the benefit of the plaintiffs.
On December 1, 2015, the defendant filed the present motion to strike and an accompanying memorandum of law. After the court, Scholl, J., granted the plaintiffs an extension of time to respond to the defendant's motion, the plaintiffs filed their opposition on February 17, 2016. This court heard argument on the defendant's motion during the February 22, 2016 short calendar and now provides the following memorandum of decision.
II
DISCUSSION
A
Standard of Review
The principles of law governing this court's review of the defendant's motion to strike are well established. " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see also Practice Book § 10-39(a)(1). " A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . In doing so, moreover, [the court] read[s] the allegations broadly . . . rather than narrowly." Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010). Finally, " [a] motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Rich v. Foye, 51 Conn.Supp. 11, 16, 976 A.2d 819 (2007).
B
Count One--Breach of Fiduciary Duty
The defendant argues that the plaintiffs, in their individual capacities, have failed to allege sufficient facts to support a cause of action for breach of a fiduciary duty. Specifically, the defendant argues that he did not owe the plaintiffs a fiduciary duty as the decedent's attorney in fact. The plaintiffs argue that the defendant owed them, as beneficiaries of the decedent, a fiduciary duty.
The allegations in the first count central to the plaintiffs' claim are that the defendant was aware that the decedent desired to have her children share equally in her assets upon her death; that he was the decedent's attorney in fact and was, therefore, her agent with a fiduciary duty to remain loyal to her wishes; that he was obligated to afford the plaintiffs the same duty, knowing that the plaintiffs were co-beneficiaries of the decedent's estate; and that he breached that duty as to them. The factual allegations constituting the breach of fiduciary duty refer to conduct of the defendant pursuant to the power of attorney (i.e., the diversion of funds and use of a credit card) and that undertaken without the use of the power of attorney (i.e., procuring the execution of a new will naming the defendant as the executor). The court will discuss these claims in order.
The plaintiffs expressly clarify in their memorandum of law in opposition to the defendant's motion to strike that their claim is limited to an independent fiduciary duty owed to them in their individual capacities as beneficiaries.
1
Duty Created by a Power of Attorney
" Under our common law, a power of attorney creates a formal contract of agency between the grantor and his attorney in fact." Kindred Nursing Centers East, LLC v. Morin, 125 Conn.App. 165, 167, 7 A.3d 919, 920 (2010), citing Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). The Appellate Court held in Kindred that the only duty owed by an attorney in fact appointed pursuant to General Statutes § 1-42, et seq., the Connecticut Statutory Short Form Power of Attorney Act, was to the grantor, to the exclusion of any potential third-party beneficiaries of that duty. " [T]he act contains not one provision holding an attorney in fact accountable to anyone other than his principal." Id., 173. While the plaintiffs' complaint does not specify whether the power of attorney granted to the defendant was pursuant to § 1-42 et seq. or at common law, this court can find no principled reason why it should arrive at a different conclusion if it were the latter.
Accordingly, the duty owed by an attorney in fact, here the defendant, extends only to the grantor of the power of attorney, the decedent in this case. It is on this basis that judges of the Superior Court have held that the legal right to assert a claim for breach of a fiduciary duty arising out of the grant of a power of attorney vests solely in the grantor. " Any claim for abuse of [the attorney in fact's] actions under the power of attorney from the father [grantor] belonged to his father during the father's lifetime, and to the father's estate after the father died. The plaintiff lacks the capacity to bring the present action." Noyes v. Regan, Superior Court, judicial district of Middlesex, Docket No. CV-11-6006197-S (July 3, 2014, Aurigemma, J.) (58 Conn.L.Rptr. 475, 477, 2014 WL 3906599, at *4); see also Kudravy v. Kudravy, Superior Court, judicial district of Fairfield, Docket No. CV-11-6018664-S (June 6, 2014, Hartmere, J.T.R.) (2014 WL 3511531) (dismissing claim for breach of fiduciary duty by beneficiary of inheritance against sibling, attorney in fact, for claimed pre-mortem misapplication of grantor's funds); Vechiola v. Fasanella, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029378-S (February 7, 2013, Radcliffe, J.) (55 Conn.L.Rptr. 525, 528, 2013 WL 1010619, at *4) (defendant owed fiduciary obligation only to grantor of power of attorney and not to plaintiff, an intended beneficiary); Finno v. Rebimbas, Superior Court, judicial district of New Britain, Docket No. CV-14-6026980-S (April 5, 2016, Wiese, J.) (2016 WL 2763340, at *3) (relying on Kudravy for the proposition that duty owed by attorney in fact is only to principal). The court concludes that the defendant owed no duty to the plaintiffs by virtue of the power of attorney.
2
Breach of Fiduciary Duty in General
" [A] prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship . . ." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). " [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ." (Emphasis added; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006). Our Supreme Court has " refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." (Internal quotation marks omitted.) Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982).
The existence of a fiduciary or confidential relationship is ultimately a question of fact. See Dunham v. Dunham, 204 Conn. 303, 320-21, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). " The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 41, 761 A.2d 1268 (2000). " In the seminal cases in which [courts have] recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another." Id., 38.
The court finds that the revised complaint fails to allege sufficient facts to support a finding that a fiduciary relationship existed between the parties that would impose a fiduciary duty. See, e.g., Ahern v. Kappalumakkel, supra, 97 Conn.App. 194 (prerequisite to fiduciary duty is fiduciary relationship). Notably absent from the allegations of the plaintiffs' complaint are any facts which would support a finding that the defendant's conduct occurred because the plaintiffs placed their trust and confidence in him such that he undertook to act primarily for their benefit. To find that a fiduciary relationship existed, thus imposing a fiduciary duty, our law requires the existence of such facts. See Alaimo v. Royer, supra, 188 Conn. 41; Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 41. Even when read in their most favorable light, the plaintiffs fail to allege such facts in any of the paragraphs from count one of their revised complaint.
Absent facts demonstrating that an independent fiduciary relationship existed between the parties, the defendant did not owe the plaintiffs a fiduciary duty. Moreover, this court is unaware of any authority in this state which would impose fiduciary duties upon an attorney in fact vis-a-vis intended beneficiaries. Accordingly, the court grants the defendant's motion to strike count one.
C
Count Two--Tortious Interference with an Expected Inheritance
As to count two, the defendant bases his motion to strike this count on two independent grounds. First, he argues that tortious interference with an expected inheritance is not a valid cause of action in Connecticut. Specifically, he argues that, although judges of the Superior Court have recognized it as a valid cause of action, neither of our appellate courts have so held. Second, even if this court were to recognize count two as a valid cause of action, it is nonetheless legally insufficient because it fails to allege facts to support what courts have determined to be the third and fourth elements of tortious interference with an expected inheritance. Specifically, the plaintiffs have failed to allege fraud or undue influence and also have not alleged that they have sustained actual damages as a result of the defendant's conduct. In response, the plaintiffs argue that a split in the Superior Court exists as to whether tortious interference with an expected inheritance is a valid cause of action. Additionally, under the Superior Court authority recognizing such a cause of action, they have pleaded sufficient facts to support their claim.
1
Whether Tortious Interference with an Expected Inheritance is Viable in Connecticut
As correctly noted by the parties, a split of authority exists amongst the judges of the Superior Court as to whether tortious interference with an expected inheritance is a valid cause of action in this state. Our appellate courts have not yet resolved this split. See Geremia v. Geremia, 159 Conn.App. 751, 770 n.13, 125 A.3d 549 (2015) (Superior Court has jurisdiction to entertain such cause of action, but expressing no opinion as to legal sufficiency).
This court's research reveals that a minority of judges of the Superior Court has declined to recognize such a cause of action. See, e.g., Eder v. Eder, Superior Court, judicial district of New Haven, Docket No. CV-13-6036446-S (June 10, 2014, Nazzaro, J.) (58 Conn.L.Rptr. 347, ); Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV-07-4006664-S (December 22, 2008, Pickard, J.) (46 Conn.L.Rptr. 817, ); Moore v. Brower, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-CV-05-4010227-S (June 14, 2006, Munro, J.) (41 Conn.L.Rptr. 681, ). The reasoning in these cases for finding that a cause of action for tortious interference with an expected inheritance does not exist in Connecticut can be condensed to the following: (1) our appellate courts have not expressly recognized, thoroughly analyzed, or defined the remedy for this cause of action; (2) the Superior Court has been inconsistent in its determination of the necessary elements for this cause of action; and (3) courts recognizing or commenting on the viability of this cause of action are factually distinguishable.
By contrast, a majority of judges of the Superior Court has recognized the viability of this cause of action. See, e.g., Hart v. Hart, Superior Court, judicial district of Windham, Docket No. CV-14-6007918-S (May 11, 2015, Calmar, J.) (60 Conn.L.Rptr. 399, ); Axiotis v. Michalovits, Superior Court, judicial district of Fairfield, Docket No. CV-13-6034754-S (January 9, 2014, Tyma, J.) (57 Conn.L.Rptr. 455, ); Vechiola v. Fasanella, supra, 55 Conn.L.Rptr. 525, Id. ; DePasquale v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV-10-6007472-S (August 27, 2010, Peck, J.) (50 Conn.L.Rptr. 605, ); Van Eck v. West Haven Funeral Home, judicial district of New Haven, Docket No. CV-09-5031256-S (August 4, 2010, Zoarski, J.T.R.) (2010 WL 3447830); Bocian v. Bank of America, Superior Court, judicial district of Hartford, Docket No. CV-06-4019877-S (December 8, 2006, Rittenband, J.T.R.) (42 Conn.L.Rptr. 483, ); see also Eder v. Eder, supra, 58 Conn.L.Rptr. 349, at *9 (" [T]he majority of trial court decisions considering this issue have held that intentional interference with an inheritance is a viable claim in Connecticut"). The reasoning in these cases for finding that a cause of action for tortious interference with an expected inheritance exists in Connecticut may be summarized as follows: (1) trial courts are well positioned to determine whether Connecticut is prepared to recognize a developing ground of liability, even where our appellate courts have not expressly adopted such cause of action; (2) tortious interference with an expected inheritance is similar to tortious interference with a contractual right or business relations, which is a recognized cause of action in this state; (3) tortious interference with an expected inheritance is recognized as a valid cause of action by the Restatement (Second) of Torts; (4) the facts involved in an action for interfering with an expected inheritance are distinct from other related causes of action, namely will contests based on fraud or undue influence; (5) our Supreme Court in Hall v. Hall, 91 Conn. 514, 520, 100 A. 441 (1917), referred to the possibility of this cause of action, even though it did not expressly recognize such an action; and (6) sister jurisdictions have recognized the viability of this cause of action.
" [Our Supreme Court] has long recognized a cause of action for tortious interference with contract rights or other business relations . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." (Citations omitted; internal quotation marks omitted.) Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). " A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Varley v. First Student, Inc., 158 Conn.App. 482, 502, 119 A.3d 643 (2015).
In Hall v. Hall, 91 Conn. 514, 100 A. 441 (1917), the plaintiff attempted to set forth a claim of tortious interference with an inheritance from his father, which was defeated by a demurrer for the sole reason that the claim in question constituted a collateral attack on a decree of probate.
In Devlin v. U.S., 352 F.3d 525, 539-41 (2d Cir. 2003), the Second Circuit noted that the majority of jurisdictions have recognized tortious interference with an expected inheritance as a valid cause of action. See also Eder v. Eder, Superior Court, judicial district of New Haven, Docket No. CV-13-6036446-S (June 10, 2014, Nazzaro, J.) (58 Conn.L.Rptr. 347, 351,, *19) (majority of jurisdictions have adopted intentional interference with expected inheritance into their tort jurisprudence).
Although this court is aware that reasonable minds have diverged as to whether Connecticut is prepared to recognize a claim for tortious interference with an expected inheritance, this court finds persuasive those opinions recognizing such a cause of action. As noted by those opinions, tortious interference with an expected inheritance is similar to a cause of action that has long been established in this state, the Restatement (Second) of Torts recognizes the viability of this action, our Supreme Court in dicta referred to the possibility of this action, and the majority of sister jurisdictions have held that tortious interference with an expected inheritance is a valid cause of action.
2
Legal Sufficiency of Plaintiffs' Tortious Interference with an Expected Inheritance Claim
Having determined that tortious interference with an expected inheritance is a viable cause of action, this court now turns to the defendant's second argument that the plaintiffs have failed to plead sufficient facts to establish the third and fourth elements of this cause of action. As astutely noted by some judges, the Superior Court has been somewhat imprecise with establishing the requisite elements for this cause of action. Compare Hart v. Hart, supra, 60 Conn.L.Rptr. 406, at *9 and DePasquale v. Hennessey, supra, 50 Conn.L.Rptr. 607, at *7, with Bocian v. Bank of America, N.A., supra, 42 Conn.L.Rptr. 485, at *8.
The majority of decisions finding that tortious interference with an expected inheritance is a valid cause of action have noted that the elements for such a cause of action are: " (1) the existence of an expected inheritance; (2) the defendant's knowledge of the expectancy; (3) tortious conduct by the defendant; and (4) actual damages to the plaintiff resulting from the defendant's conduct." Hart v. Hart, supra, 60 Conn.L.Rptr. 406, at *9; Vechiola v. Fasanella, supra, 55 Conn.L.Rptr. 527, Id. ; DePasquale v. Hennessey, supra, 50 Conn.L.Rptr. 607, at *9; Debus v. Comp, Superior Court, judicial district of Middlesex, Docket No. CV-10-6002356-S (March 9, 2011, Wiese, J.) (2011 WL 1288602). Moreover, these elements are substantively similar to how the Restatement (Second) of Torts defines this cause of action. Such a cause of action lies, according to the Restatement, when " [o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance of gift." 4 Restatement (Second) Torts, § 774B, p. 58 (1979).
Although the Restatement (Second) of Torts is not binding precedent, our appellate courts have frequently looked to it in outlining the contours of tort law in this state. See, e.g., Clohessy v. Bachelor, 237 Conn. 31, 38-39, 46, 675 A.2d 852 (1996) (citing Restatement [Second] of Torts in recognizing action for bystander emotional distress); Stohlts v. Gilkinson, 87 Conn.App. 634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005) (citing Restatement [Second] of Torts in adopting exception to common-law rule that punitive damages cannot be imposed based on theory of vicarious liability).
Finally, in his memorandum of law in support of his motion to strike, the defendant relies on Debus v. Comp, supra, Docket No. CV-10-6002356-S, for establishing the necessary elements for this cause of action, and Judge Wiese in Debus cited to DePasquale v. Hennessey, supra, 50 Conn.L.Rptr. 607, at *9, for determining the necessary elements for this action. Accordingly, this court will assess the legal sufficiency of the plaintiffs' revised complaint in accordance with the majority position that the third and fourth elements for this action are tortious conduct by the defendant and actual damages to the plaintiff resulting from the defendant's conduct.
Paragraphs one through fourteen of count one are incorporated by reference into the second count of the plaintiffs' revised complaint. In paragraphs six and seven of count one, the plaintiffs allege that the defendant became the decedent's power of attorney in January 2007. In paragraph eleven of count one, the plaintiffs allege that the defendant diverted and used thousands of dollars from the decedent's bank account while knowing that the decedent's expectation was that such funds would be shared equally with her beneficiaries. Similarly, in paragraphs fifteen and eighteen of count two, the plaintiffs allege that the defendant misappropriated thousands of dollars of the decedent's funds for his own use. Finally, in paragraph thirteen of count one, the plaintiffs allege that the decedent was legally blind and in failing health around April 29, 2010, which was when the defendant caused a new will to be created that nominated and appointed him as executor, replacing his sister, Muzzy.
When read in their most favorable light, such allegations could support a finding by a trier of fact that such conduct was tortious. Indeed, the third element of this cause of action is demanding. See Hart v. Hart, supra, 60 Conn.L.Rptr. 406, at *29 (tortious conduct will often require more than undue influence); see also 4 Restatement (Second), Torts § 774B, comment (c), p.58-59 (tortious conduct involves " fraud, duress, defamation or tortious abuse of fiduciary duty, or [where the defendant] has forged, altered or suppressed a will or document making a gift"); cf. Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983) (tortious conduct " satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously"). Nonetheless, a trier of fact could conclude that such alleged conduct satisfies this element. See Garrigus v. Viarengo, 112 Conn.App. 655, 670, 963 A.2d 1065 (2009).
In Garrigus v. Viarengo, 112 Conn.App. 655, 659, 670, 963 A.2d 1065 (2009), the Appellate Court held that it was not clearly erroneous for the trial court to find that the defendant's conduct constituted a fraud where the defendant withheld certain funds from relatives after she had been named joint owner of certain accounts and bonds with the decedent, which the defendant " claimed . . . were hers and not part of the estate property" that she was to distribute as co-executor. The court noted that " the defendant was the co-executor of [the decedent's] will, was entrusted to make health care decisions for [the decedent], was given [the decedent's] power of attorney and helped [the decedent] with her financial affairs. [The decedent] told the defendant how she wanted her assets to be distributed. Under those circumstances, the court's conclusion that the defendant's silence [regarding future distribution of the decedent's assets] constituted fraud was not clearly erroneous." Id., 670. Although Garrigus involved a claim of fraud, the relevant authority addressing the elements for tortious interference with an expected inheritance note that " tortious conduct" involves, inter alia, fraud. See, e.g., Hart v. Hart, Superior Court, judicial district of Windham, Docket No. CV-14-6007918-S (May 11, 2015, Calmar, J.) (60 Conn.L.Rptr. 399, 406, ); 4 Restatement (Second), Torts § 774B, comment (c), p. 58-59.
As to the fourth element regarding actual damages resulting from the defendant's conduct, the plaintiffs allege in paragraphs fifteen through eighteen of count two that they expected to inherit one-third of the decedent's assets upon her death and that the defendant knew of this expectation. Moreover, they allege that the defendant misappropriated thousands of dollars of the decedent's funds for his own personal use. In paragraph nineteen, they allege that such conduct was to their financial detriment. Such allegations could support a finding by a trier of fact that the plaintiffs suffered damages as a result of the defendant's conduct.
Accordingly, when read in its most favorable light, count two of the plaintiffs' revised complaint sufficiently alleges conduct that states a claim for tortious interference with an expected inheritance. The defendant's motion to strike count two of the revised complaint is hereby denied.
Although the defendant does not attack the legal sufficiency of this count as it pertains to the first and second elements for tortious interference with an expected inheritance, count two of the plaintiffs' revised complaint contains sufficient allegations to support a finding that the defendant knew of the expected inheritance.
D
Count Three--Constructive Trust
Finally, the defendant argues that the plaintiffs' revised complaint is legally insufficient to support a cause of action for a constructive trust. Specifically, the defendant argues that the revised complaint does not allege that the decedent provided the defendant with access to her bank accounts in order to hold said accounts for the benefit of the plaintiffs. Moreover, the complaint fails to allege that the defendant made a false or fraudulent promise to the decedent in order to induce her to add the defendant to her bank accounts. In response, the plaintiffs argue that the defendant abused his power of attorney and engaged in unconscionable conduct.
" A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy . . . A constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form . . . [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." (Emphasis in original; internal quotation marks omitted.) Garrigus v. Viarengo, supra, 112 Conn.App. 672; see also Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996). As succinctly stated by the Appellate Court, " [i]n order for a constructive trust to be imposed, the plaintiff must allege fraud, misrepresentation, imposition, circumvention, artifice or concealment, or abuse of confidential relations." Wing v. White, 14 Conn.App. 642, 644, 542 A.2d 748 (1988); accord Garrigus v. Viarengo, supra, 112 Conn.App. 673; Giulietti v. Giulietti, 65 Conn.App. 813, 860, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001). " The issue raised by a claim for constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched." (Internal quotation marks omitted.) Garrigus v. Viarengo, supra, 112 Conn.App. 672.
The plaintiffs incorporate all of counts one and two of their revised complaint into count three. Although the plaintiffs do not specifically use the word " fraud" in their complaint, the allegations contained in the complaint, when read in their most favorable light, could support a finding of fraud or unconscionable conduct. See Garrigus v. Viarengo, supra, 112 Conn.App. 670. Moreover, as noted by the Appellate Court in Garrigus, a party is entitled to the equitable remedy of a constructive trust where fraud exists and a party would be unjustly enriched by holding the wrongfully appropriated property. Id., 672-74. In paragraph twenty-four of count three, the plaintiffs allege that the defendant has been unjustly enriched by holding onto certain misappropriated funds. When read in their most favorable light, the allegations contained in the plaintiffs' revised complaint state a legally sufficient cause of action for imposing a constructive trust. Accordingly, the motion to strike count three is hereby denied.
III
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted as to count one, but is denied as to counts two and three. It is so ordered.