Opinion
No. CV 05-4014882
September 29, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( # 112)
The defendant's motion to strike counts five and six of the plaintiff's amended complaint is granted. In count six, the plaintiff has alleged conversion on the part of the defendant, namely that the defendant is withholding bonus payments as authorized under an employment agreement and executive bonus plan. In count five, the plaintiff additionally alleges that the withholding of his bonus payments is statutory theft.
"The essence of the wrong of conversion is that the property rights of the plaintiff have been dealt within a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 649, 804 A.2d 180 (2002). "[A]n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money . . . It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use." (Internal quotation marks omitted.) Id. The plaintiff has failed to allege anymore than that the defendant has not paid him monies that he was expecting under a bonus plan.
In order for the plaintiff to maintain a cause of action for statutory theft, he must prove all elements of conversion. Conversion is closely related to statutory theft, in that statutory theft requires the pleading of similar elements, with the addition of the element of intent. "The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Similarly, [s]tatutory theft under [General Statutes] § 52-564 is synonymous with larceny [as provided in] General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from [the] owner . . . [S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion . . ." (Citations omitted; internal quotation marks omitted.) News America Marketing In-Store, Inc., v. Marquis, 86 Conn.App. 527, 544, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 868 A.2d 758 (2005).
The plaintiff has failed to plead a legally sufficient cause of action for conversion, because the plaintiff has only alleged that the defendant withheld sums which he claims are due to him. The plaintiff has not alleged a legally sufficient cause of action in statutory theft, because such cause of action requires proof of conversion, which the plaintiff has also failed to properly plead.
The motion to strike counts five and six is granted.