Opinion
DBDCV146015023S
01-13-2016
Sarah E. Huber, Executor of the Estate of Lawrence Smith et al. v. Cheryl Bakewell et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE, NO. 139.00
Anthony D. Truglia, J.
I. Facts and Procedural Background
The plaintiff, Sarah Huber, as executor of the estate of her deceased father, brings this action to recover compensatory and punitive damages from the defendants, Cheryl Bakewell, the former conservator of the decedent's estate and person, and Merton and Dawn Larmore (the Larmores). By amended complaint dated September 15, 2014 (#108.00), the plaintiff alleges twelve counts against the defendants that sound in negligence, breach of contract, breach of fiduciary duty, conversion, fraud, statutory theft, negligent infliction of emotional distress and violations of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiff also seeks, by way of a separate count, a complete inventory and accounting of all personal property formerly owned by the decedent, Lawrence Smith, and entrusted to the defendants in their fiduciary capacities.
In her amended complaint, the plaintiff alleges the following facts. Prior to his death on April 23, 2014, the decedent filed a voluntary petition for the appointment of a conservator of his estate and person with the Probate Court for the District of Housatonic (Probate Court). On February 1, 2012, the Probate Court, Landgrebe, J., granted the petition and appointed Bakewell, who was then serving as the decedent's accountant and financial advisor, as the conservator. In its decree of appointment, the Probate Court conferred upon Bakewell the authority to " [m]anage all of the conserved person's estate" and to " [c]ollect all of the conserved person's income and assets, pay the conserved person's bills, expenses and debts, and collect debts due." (Defendant's Memorandum of Law in Support of Motion to Dismiss #119.00, Ex. A.) During Bakewell's service as conservator of the decedent's estate, the defendants, acting together or in concert, committed acts of malfeasance that led to the loss of a considerable number of items of the decedent's personal property. Certain items, including a collection of rare coins and a collection of Native American artifacts, had great historic and intrinsic value; other items that were lost had equally great sentimental value to the decedent and other family members. Among these items was a jewelry box containing the remains of the decedent's wife.
The plaintiff specifically alleges that, in June of 2012, when Bakewell submitted an inventory of the decedent's property to the Probate Court, the inventory was incomplete, and " many of Mr. Smith's valuable items were not included." Subsequently, Bakewell began the " process of selling Smith's personal items without seeking advice or obtaining permission from the Probate Court and without having prepared a complete inventory."
The plaintiff alleges that Bakewell, in her capacity as conservator, retained the services of the Larmores to hold an estate sale at the decedent's former residence. The plaintiff alleges that, in the course of managing the decedent's assets, Bakewell breached her fiduciary obligation to the plaintiff's decedent in a number of ways: (1) she interviewed only one estate firm, the Larmores, before retaining them on behalf of the estate; (2) she failed to prepare a complete inventory of the decedent's property before allowing the Larmores access to the decedent's former residence; and (3) she otherwise failed to have any plan in place to prevent the Larmores, or others, from misappropriating the decedent's personal property. In short, the plaintiff alleges that Bakewell failed in her fiduciary obligation to the plaintiff's decedent to marshal, safeguard and sell the decedent's property in a way that respected the wishes of the decedent and his heirs, and in her obligation to maximize the value of the decedent's personal property.
Count one of the plaintiff's amended complaint, captioned " accounting as to all defendants, " alleges that the plaintiff is " entitled to a judgment requiring [Bakewell] to promptly provide to [her] full, complete and accurate accountings concerning the personal items of [the decedent] including items sold, donated, retained by the [d]efendants or given to others prior to the [s]ale or after." Count two alleges that Bakewell is liable to the decedent's estate for breach of her fiduciary obligations, for the reasons described in the preceding paragraph. Count three of the amended complaint alleges a cause of action in negligence, and count four alleges liability against Bakewell for negligent infliction of emotional distress. In count twelve of the plaintiff's amended complaint, the plaintiff alleges that the defendants' actions constitute an " unfair or deceptive practice in the conduct of trade or commerce in violation of CUTPA, " entitling the estate to recover attorneys fees in addition to compensatory and punitive damages in accordance with General Statutes § 42-110g et seq.
Bakewell now moves to strike counts one, four and twelve of the amended complaint for failure to state legally sufficient causes of action. Bakewell argues that an accounting is a remedy, which may be ordered by a court in certain circumstances, but is not a cause of action, and therefore, count one of the amended complaint should be stricken. Next, Bakewell argues that the weight of authority in Connecticut does not recognize a cause of action for negligent infliction of emotional distress in circumstances arising from damage to or loss of personal property and, therefore, count four of the amended complaint should also be stricken as legally insufficient. Third, Bakewell argues that the plaintiff's claims against her are claims of professional negligence, and it is well settled that claims of professional negligence do not give rise to causes of action under CUTPA. Finally, Bakewell argues that all references in the plaintiff's amended complaint to claims of persons other than the plaintiff are improper and should be stricken.
With respect to the last argument regarding references to claims of members of the decedent's family, Bakewell had previously moved to dismiss those claims for lack of subject matter jurisdiction. In her motion to dismiss (#116.00), Bakewell argued that in her role as the decedent's conservator prior to his death, she owed no duty to other family members and, therefore, this court had no jurisdiction over claims of persons other than the plaintiff as executor. The court denied that motion, ruling that " references to other heirs and family members mentioned in the amended complaint do not implicate subject matter jurisdiction. Irrelevant, superfluous, or otherwise improper allegations are properly dealt with by a request to revise or motion to strike, Practice Book § § 10-35 et seq., and not by a motion to dismiss." (Memorandum of Decision, #116.25.)
Bakewell then filed a request to revise the amended complaint (#132.00) in which she asked the plaintiff to delete all references to claims of other members of the decedent's family. The plaintiff objected to these requests, and her objections were sustained by this court, Ozalis, J., without comment (#134.05).
Also, previously in this action, the Lamores filed a motion to strike count eleven of the amended complaint, which alleged a cause of action for negligent infliction of emotional distress against them (#119.00). The court denied that motion, finding that a cause of action for negligent infliction of emotional distress involving loss of personal property is legally sufficient where the plaintiff alleges (1) a fiduciary relationship between the plaintiff and defendant; and (2) the harm to the plaintiff is foreseeable (#119.20).
II. Discussion.
The law on motions to strike made pursuant to Practice Book § 10-39 is well-settled. " 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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
" It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Doe v. Board of Education, 76 Conn.App. 296, 299-300, 819 A.2d 289 (2003). " The role of the trial court [in ruling on a motion to strike is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
A. Plaintiff's Action for an Accounting.
Count one of the plaintiff's amended complaint sets forth the facts upon which the plaintiff relies in the present case and asks for " a judgment requiring [the defendants] to promptly provide [the plaintiff] full, complete and accurate accountings concerning the personal items of [the decedent] including items sold, donated, retained by the [defendants] or given to others . . ." The plaintiff's prayer for relief as to Bakewell demands " [f]ull accountings of the [e]state . . . for the period from her appointment as conservator to the date of her resignation/removal and judgment for the amounts found due on such accountings."
Bakewell moves to strike count one of the amended complaint on the ground that an accounting is a remedy and not a cause of action. In support of her argument, Bakewell cites Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 804 A.2d 180 (2002). In Macomber, the plaintiffs brought suit against their liability insurer and others for misrepresentation and fraud arising out of the manner in which the defendants arranged for and purchased structured settlements to resolve claims. Id., 623. The plaintiffs' complaint in Macomber contained twelve counts, including counts eleven and twelve for an accounting and imposition of a constructive trust. Id., 623 n.3. The defendants moved to strike all twelve counts of the complaint on the ground that none sufficiently alleged any cognizable damages. Id., 623. The trial court agreed, and granted the motion to strike all twelve counts of the complaint. Id. The Supreme Court, in its recitation of the factual and procedural background to the case at the start of its opinion, described the plaintiff's complaint as containing only " ten substantive counts, " and discussed the eleventh and twelfth counts in a footnote to its decision as follows: " The plaintiffs also requested that the trial court order an accounting of all moneys that allegedly were wrongfully obtained by the defendants in purchasing the structured settlements on the plaintiffs' behalf; and impose a constructive trust over such moneys. Although the plaintiffs framed these requests as counts eleven and twelve of their complaint, these are issues to be addressed by the trial court upon remand because, rather than being substantive causes of action upon which the complaint is predicated, these counts request remedies, the appropriateness of which would be left to the discretion of the trial court if the plaintiffs, or either of them, were to prevail at trial." Id., 623, note 3.
Bakewell argues that this " clear authority" from the Supreme Court was recently followed in AW Power Holdings, LLC v. Firstlight Waterbury Holdings, LLC, Superior Court, judicial district of Hartford, Docket No. CV-14-6047836-S (February 17, 2015, Peck, J.) (59 Conn. L. Rptr. 889). The trial court in AW Power relied on the language from Macomber; however, the court also referenced the Appellate Court case Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004). In Mankert, the court several times referred to the plaintiff's action as an " action for an accounting, " and stated: " To support an action of accounting, one of several conditions must exist. There must be a fiduciary relationship, or the existence of a mutual and/or complicated accounts, or a need of discovery, or some other special ground of equitable jurisdiction such as fraud." (Emphasis omitted.) Id., 459-60. The trial court in AW Power recognized the split of authority among the Superior Court decisions that have considered this issue, and also noted the plaintiff's argument that Chapter 907 of the General Statutes, § § 52-402 et seq., is entitled " Actions for Accounting." AW Power Holdings, LLC v. Firstlight Waterbury Holdings, LLC, supra, 59 Conn. L. Rptr. 894-95. The court nevertheless ruled that the Supreme Court's language in Macomber controlled, and granted the motion to strike the plaintiff's cause of action for an accounting. Id., 895.
In the present case, the plaintiff argues that the facts of this case require an action for an accounting. The allegations of the complaint state unambiguously that Bakewell was charged with proper safekeeping and management of the decedent's property, failed in those obligations, and failed to account adequately the disposition of that property. An action for an accounting is therefore, the appropriate cause of action, as well as the proper remedy. Second, the plaintiff argues that one of the main purposes of an action for an accounting is to provide an equitable remedy when there is no remedy at law, citing Mankert v. Elmatco Products, Inc., supra, 84 Conn.App. 459-60, and 1 Am.Jur.2d Accounts and Accounting § 54 (" [t]he inadequacy of the legal remedy forms the basis for equity jurisdiction, and a suit in equity for an accounting"). If the plaintiff were not permitted to bring her claim for an accounting as a separate cause of action, she argues, this purpose would be frustrated, and she would have to manufacture another cause of action to which the remedy of an accounting must attach. The law, the plaintiff argues, permits " a court to compel an accounting where a fiduciary relationship exists between the parties and the defendant has a duty to render an account, " citing Mankert v. Elmatco Products, Inc., supra, 460, and AHP Holdings, LLC v. New Meadows Realty Co., LLC, Superior Court, judicial district of New Haven, Docket No. CV-12-6031174-S (April 22, 2013, Zemetis, J.) (denying motion to strike cause of action for accounting and holding that " [t]he plaintiff has . . . alleged that a fiduciary relationship exists between itself and the defendants, which is sufficient to support an action for an accounting").
Third, the plaintiff argues that long-standing case law precedent supports her position that a plaintiff is not required to plead a separate cause of action for which the remedy of an accounting may be ordered, citing Roberts v. Weiner, 137 Conn. 668, 81 A.2d 115 (1951). In Roberts, the administratrix of a deceased partner's estate brought an action for an accounting against the decedent's former business partner. Id., 669. The decedent and the defendant had entered into an arrangement where the decedent financed the purchase of used cars that the defendant reconditioned and sold at the defendant's used car lot. Id., 669-70. At the time of the decedent's death, the defendant had possession of approximately twenty cars that the decedent had financed. Id., 670-71. The plaintiff brought suit on behalf of the decedent's estate, claiming that the defendant had a partnership with the decedent, and was required to account to his estate for the proceeds from the sale of the cars financed by the decedent. Id., 669. The trial court found for the defendant, on the ground that the plaintiff failed to establish as a threshold issue, that there were any profits from the arrangement that were owed to the decedent's estate. Id.
On appeal, the Supreme Court reversed the judgment of trial court, ruling that assigning the plaintiff a preliminary, threshold burden of establishing that the defendant had realized profits from the arrangement before ordering the defendant to provide an accounting was incorrect. Id., 674-75. The Court reasoned that " it was the defendant alone who negotiated the sales, paid whatever expense was involved in carrying them through, received the money for the cars sold, and kept sole account of the transactions consummated. By reason of these facts and of the fiduciary and confidential position of quasi trust which he thus occupied, the burden of showing whether any profit resulted from the sales, and if so how much, rested not upon the plaintiff but upon him, the defendant." Id., 674. The court found that " knowledge as to the business was exclusively with the defendant, " and remanded to the trial court " with direction to order an accounting." Id., 674-75. Implicit in this holding, the plaintiff argues, is the Supreme Court's recognition of an accounting as a separate and distinct common law cause of action.
This court agrees with the plaintiff that the weight of authority on this issue, citing Roberts and Mankert, indicates that an action for accounting may be plead as a cause of action, and not simply as a remedy. First, the court further agrees with the plaintiff's argument that the court in Macomber " did not strike a cause of action for an accounting, address the elements of a cause in accounting nor analyze whether a fiduciary or other relationship existed which could give rise to an accounting." In Macomber, the court, in other words, did not squarely address the question of whether an accounting could be plead as a cause a of action. Furthermore, the court agrees with the ruling of the trial court in Eberle v. Ohlheiser, Superior Court, judicial district of Hartford, Docket No. CV-12-6029172-S (September 27, 2012, Robaina, J.) , that the language of footnote 3 in Macomber, cited by the defendants, is dicta that is not binding on this court. This court is also persuaded that Chapter 907 of the General Statutes § 52-402 et seq., entitled " Actions for Accounting, " authorizes actions for accounting.
An action for an accounting may be brought where it is alleged that a person standing in a confidential and/or fiduciary relationship has breached his or her duty of trust. A plaintiff is not required to plead a separate cause of action to which the remedy of an accounting may attach. Count one of the plaintiff's amended complaint alleges a confidential and fiduciary relationship between Bakewell and the plaintiff's decedent, in which Bakewell had a duty to account for personal property entrusted to her. The plaintiff, in count one, also alleges that Bakewell breached her duty of trust and responsibility to account for her management and disposition of the decedent's property. These allegations are sufficient to state a cause of action for an accounting by a fiduciary.
B. Plaintiff's Action for Negligent Infliction of Emotional Distress.
The court previously considered whether count eleven of the plaintiff's amended complaint states a legally sufficient cause of action against the Lamores, Bakewell's co-defendants. The court hereby incorporates by reference the discussion and analysis from its memorandum of decision (#116.25), dated May 15, 2015, and applies it to count four of the amended complaint, which alleges the same cause of action against Bakewell. Count four of the amended complaint makes the same allegations regarding the existence of a fiduciary obligation between Bakewell and the decedent, her obligation to use due care in the safekeeping of the decedent's personal property, and that the harm caused was foreseeable. For the same reasons stated in its earlier opinion, the court finds that count four of the amended complaint states a legally sufficient cause of action for negligent infliction of emotional distress against Bakewell.
C. Plaintiff's Claims Under CUTPA.
Bakewell also moves to strike count twelve which claims compensatory and punitive damages, and attorneys fees for Bakewell's alleged violations of CUTPA. In count twelve, the plaintiff alleges that Bakewell was engaged in trade or commerce when she committed the acts and omissions more particularly set forth in count one of the amended complaint. The plaintiff alleges, among other things, that these actions were unfair and deceptive, that they offend public policy and caused substantial injury to the decedent and his estate.
Section 42-110b(a) of CUTPA provides that " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." " It is well settled that in determining whether a practice violates CUTPA [our Supreme Court] has adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 227-28, 990 A.2d 326 (2010), quoting Votto v. American Car Rental, Inc., 273 Conn 478, 484, 871 A.2d 981 (2005).
Thus, the law is well settled that CUTPA is not applicable to claims of professional negligence. See, e.g., Stuart v. Freiberg, 142 Conn.App. 684, 69 A.3d 320 (2013), rev'd on other grounds, 316 Conn. 809, 116 A.3d 1195 (2015), cited by Bakewell in support of her motion to strike: " Our Supreme Court defined entrepreneurial as aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the defendant . . . and noted that professional negligence--that is, malpractice--does not fall under CUTPA . . . Thus, to succeed, the plaintiffs had to demonstrate that some element of the defendant's business practices was deceptive or unfair." (Citations omitted; internal quotations omitted.). Id., 709-10. See also, Beverly Hills Concepts v. Schatz & Schatz, 247 Conn. 48, 78-79, 717 A.2d 724 (1998) (" We . . . take this opportunity to reaffirm our prior holding that professional malpractice does not give rise to a cause of action under CUTPA."); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34-35, 699 A.2d 964 (1997) (professional negligence does not fall under CUTPA); Baker v. Brodeur, Superior Court, judicial district of Middlesex, Docket No. CV-12-5008115-S (August 21, 2012, Holzberg, J.) (54 Conn. L. Rptr. 576, 577) (Connecticut has adopted a professional services exemption to CUTPA).
The defendants argue that, the specific allegations of count twelve notwithstanding, the plaintiff's claims against Bakewell are essentially claims of professional negligence, which do not give rise to claims under CUTPA. The plaintiff alleges that Bakewell, an accountant serving as a court appointed conservator, breached her duty to marshal and dispose of the decedent's property in a proper and professional manner. The plaintiff also alleges that Bakewell failed in her obligations to retain and supervise the agents she retained to assist her in her duties to the decedent and his estate. The plaintiff, however, does not allege that Bakewell was in the business of managing estates, and that the manner in which she handled the decedent's case was a consistent business practice that caused injury to consumers. The court is aware that most breaches of contract, and many examples of negligence, including breach of fiduciary duty, can be described as unfair, possibly immoral and likely to cause substantial injury. They do not, however, state legally sufficient causes of action under CUTPA unless there are also allegations that the defendant's actions are part of a business practice that offends public policy or harms consumers generally.
In Gaynor v. Hi-Tech Homes, 149 Conn.App. 267, 279-80, 89 A.3d 373 (2014), for example, the Appellate Court reversed an award of punitive damages and attorneys fees under CUTPA where the plaintiffs failed to allege the existence of a business practice causing harm to consumers. The court reasoned that " [n]ot every contractual breach rises to the level of a CUTPA violation . . . Not every misrepresentation rises to [the] level of [a] CUTPA violation . . . There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy . . . In the absence of allegations arising to such a level of conduct, the plaintiffs have failed to properly plead a cause of action under CUTPA." (Citations omitted; internal quotation marks omitted.) Id., 276.
In the present case, the plaintiff alleges that Bakewell failed to meet professional and fiduciary obligations owed to the decedent and to the estate. The amended complaint does not, however, state that her actions were related to the entrepreneurial aspects of her business, or that the alleged wrongful actions and omissions were part of her general business practices. Therefore, even when read in the way most likely to sustain the sufficiency of the CUTPA claim, the allegations of count twelve of the plaintiff's amended complaint as to Bakewell do not set forth a cause of action under CUTPA.
D. Plaintiff's References to the Decedent's Family Members
Bakewell also moves to strike all references to damages sustained by members of the decedent's family, other than the plaintiff in her capacity as executor. The defendant argues that these references state causes of action on behalf of persons who are not parties to this action and are, therefore, not permissible. Bakewell further argues that any duties that she might have owed in her capacity as conservator she owed to the decedent or to his estate, and not to his heirs at law. Thus, all references in the amended complaint to harm sustained by member of the decedent's family are improper and should be stricken.
The plaintiff makes two arguments in response to the Bakewell's motion to strike these references. First, she argues that these arguments were already raised in her request to revise and rejected by this court. Second, she argues that every plaintiff has the right " to plead [her] case in [her] own way unless it is clearly in nonconformity with the applicable rule of pleading, " citing Wilder v. Brewer, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-94-0538573 (September 19, 1994, Mulchay, J.) (12 Conn.L.Rptr. 460, 460). The plaintiff argues that she is not attempting " to assert a separate cause of action on behalf of any non-parties, but is merely pleading facts in support of the claim for damages for the severe harm the defendants caused" the decedent.
Practice Book § 10-1 provides in relevant part that: " 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.
The court agrees with the plaintiff that the allegations of the amended complaint, read as a whole, make clear that her claims are brought solely on behalf of the plaintiff as representative of her father's estate. The court also agrees as a general matter that parties are entitled to some latitude in pleading their claims and defenses. Given the circumstances of this case, which involves the loss of property belonging to a decedent and his heirs, the references to the decedent's family are descriptive facts in support of these claims, and as such, are permissible pursuant to Practice Book § 10-1.
CONCLUSION
For the reasons set forth above, Bakewell's motion to strike is granted in part, and denied in part. The motion to strike counts one and four of the plaintiff's amended complaint is denied. The motion to strike count twelve is granted as to Bakewell only. The motion to strike the references to the decedent's family is denied.