Opinion
No. CV 05 4003241
November 9, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE #104
BACKGROUND
On April 17, 2006, Carabetta Construction Company, Inc., (Carabetta Construction) filed a four-count amended complaint against the defendants, Luis Martinez, Jr., Elizabeth Martinez (Martinez defendants) and John A. Barbieri (Barbieri). On April 20, 2006, Barbieri filed a motion to strike counts three and four with a memorandum of law in support of his motion. On May 15, 2006, Carabetta Construction filed a memorandum of law in opposition to Barbieri's motion to strike. This motion was heard by the court on July 24, 2006. For reasons more fully set forth in this decision, the motion to strike is granted as to count three and denied as to count four of the amended complaint.
FACTS
This action arises out of a real estate transaction that took place on or about November 2004, during which Barbieri acted as an attorney for the Martinez defendants. Carabetta Construction alleges that the Martinez defendants entered into an agreement in which it agreed to sell the Martinez defendants a piece of land in Meriden, Connecticut and build a house on the property for their use. In return, the Martinez defendants agreed to pay Carabetta Construction $234,484, most of which they would pay in cash when the plaintiff delivered title to them. The Martinez defendants further agreed to pay the balance of $15,000 pursuant to a promissory note for that amount which would be secured by a second mortgage on the property. In December 2004, Carabetta Construction delivered title to the property to the Martinez defendants, and they paid the cash portion of the purchase price. The Martinez defendants later executed a note and mortgage in favor of Carabetta Construction and delivered the documents to Barbieri, who was acting as their attorney in all of the matters described in the amended complaint. Although Barbieri has acknowledged that he received the documents, he has refused to deliver them to Carabetta Construction in violation of the alleged "express agreement" of all of the parties to the real estate transaction and their respective attorneys.
Counts one and two are claims against the Martinez defendants. The allegations and relief sought under counts three and four are directed toward Barbieri and are the subject of this motion to strike. Count three alleges that Barbieri breached the express agreement between the parties by refusing to promptly deliver the note and mortgage to Carabetta Construction. Count four alleges that Barbieri's withholding of the note and mortgage constitutes conversion of those documents, which rightfully belong to the plaintiff.
DISCUSSION A. Motion to Strike
"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). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], 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). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
B. Statute of Frauds CT Page 20711
As to count three, Barbieri argues that Carabetta Construction's breach of contract claim is legally insufficient because he was not a party to a contract with the plaintiff, and to the extent that this claim is based on an oral agreement, the agreement is unenforceable under the statute of frauds. Barbieri further argues that even if he had a written agreement with the plaintiff, he cannot be held liable as a matter of law because he was acting as an agent for the Martinez defendants.Carabetta Construction counters that it adequately alleges that it entered into an agreement with Barbieri and that the note and mortgage satisfy the statute of frauds requirement that the agreement be memorialized in writing. The plaintiff also argues that the doctrine of agency does not shield Barbieri from liability as he was a party to the agreement to deliver the mortgage note and deed.
Carabetta Construction alleges that it entered into an agreement with both the Martinez defendants and Barbieri pursuant to which, once Carabetta Construction delivered title to the property, the Martinez defendants would promptly execute and deliver the mortgage note and deed. Although the mortgage and note are sufficiently alleged to be written instruments, the agreement to deliver these executed documents is not alleged to have been memorialized in writing. Instead, it is identified as an "express agreement." Thus, there are two agreements. One is for the mortgage and note, which represent an interest in real property; the other is for the delivery of these executed documents in order to perfect that interest. The question raised is whether these agreements are unenforceable pursuant to the statute of frauds.
"The statute of frauds is permitted to be raised by a motion to strike only when the alleged agreement falls squarely within those categories of agreements required to be in writing." (Internal quotation marks omitted.) Advanced Environmental Interface, Inc. v. Archers Cissell Associates, LLC, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003437 (June 20, 2006, Dubay, J.) ( 41 Conn. L. Rptr. 525, 526). The statute of frauds is codified at General Statutes § 52-550, and reads in pertinent part that "[n]o civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property . . ." "The requirements of a memorandum of sale to satisfy the statute of frauds in this [s]tate are too well established to require extended consideration. It must state the contract between the parties with such certainty that the essentials of the contract can be determined by the memorandum itself without the aid of parol proof, either by direct statement or by reference therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement." (Internal quotation marks omitted.) Gabriele v. Brino, 85 Conn.App. 503, 507, 858 A.2d 273 (2004).
Carabetta Construction relies upon the note and mortgage to satisfy the requirement that its agreement with Barbieri complies with the statute of frauds. "Although under certain circumstances, the court may read documents together to satisfy the statute of frauds . . . multiple writings still must state the essential terms of the contract without the use of parol proof." (Citation omitted.) Id., 509. However, in the present case, Barbieri is not a party to either the mortgage note or deed, and the allegations in the complaint do not include any mention of any other written agreements between Barbieri and Carabetta Construction.
The complaint refers to the "express agreement" of the parties to deliver the mortgage note and deed. The complaint also refers to a purchase and sale agreement for the property that includes a mortgage note and deed in the amount of $15,000. However, nowhere in the allegations is any representation made that these agreements, or any amendments, have been committed to writing and signed by any party. Nor are any allegations made to suggest that either party partially performed the agreement in a manner giving rise to a claim under Glazer v. Dress Barn, Inc., 274 Conn. 33, 873 A.2d 929 (Conn. 2005).
"The statute of frauds bars actions where there is not a sufficient memorandum in writing signed by the party to be charged." Booth v. Flanagan, 23 Conn.App. 579, 584, 583 A.2d 148 (1990), appeal dismissed, 220 Conn. 453, 599 A.2d 380 (1991). "In an action to enforce a contract for the sale of real property, the party to be charged, within the meaning of the statute [of frauds], is the party against whom the contract is to be enforced . . . The party to be charged refers to the party to be charged in the legal proceeding, not the party or parties bound by the contract." (Citations omitted; internal quotation marks omitted.) Kasper v. Anderson, 5 Conn.App. 358, 362, 498 A.2d 132, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985).
Because Barbieri is the party that the plaintiff seeks to charge in count three, his identity as a party to the agreement is an essential term of an enforceable agreement concerning "the sale of real property or any interest in or concerning real property . . ." General Statutes § 52-550(a)(4). Therefore, the plaintiff's reliance on the note and mortgage to satisfy the statute of frauds is misplaced since Barbieri is not a party to either agreement. Instead, the relevant agreement and dispute is over the alleged "express agreement" for Barbieri to deliver the executed mortgage note and deed to Carabetta Construction. Therefore, the relevant question is whether such an agreement must be in writing to be enforceable under the statute of frauds. The parties have provided the court with no authority on this specific point of law; namely, whether an attorney's agreement to deliver executed real estate documents is subject to the requirements of the statute of frauds. However, an agreement to deliver a mortgage note and deed appears to be so intertwined with the rights of the parties "concerning real property" so as to be within the clear meaning of the statute of frauds. The rights and obligations of the parties surrounding the delivery of a mortgage are essential conditions for the sale of real property. As previously mentioned, Barbieri is not a party to any written agreement with Carabetta Construction concerning the mortgage note and deed at issue in this case. Based upon this analysis and the arguments presented by the parties, the motion to strike count three is granted.
C. Agency
Barbieri further argues that even if there is an enforceable contract under the statute of frauds, he cannot be held liable under agency principles. "[T]he attorney-client relationship is one of agency." Kubeck v. Foremost Foods, Co., 190 Conn. 667, 673 n. 6, 461 A.2d 1380 (1983). The amended complaint clearly states that Barbieri was the attorney for the Martinez defendants. Barbieri is therefore an agent because he was acting as the Martinez defendants' attorney. "Our Supreme Court has refused to recognize an attorneys liability to his clients' opponents in all cases except those involving claims for abuse of process and vexatious litigation." (Internal quotation marks omitted.) Anziano v. Harbor Hill Care Center, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 04 0103648 (October 29, 2004, Aurigemma J.) ( 38 Conn. L. Rptr. 180). "The agent is not liable where, acting within the scope of his authority, he contracts with a third party for a known principal." (Internal quotation marks omitted.) Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 619, 674 A.2d 805 (1996).
The amended complaint did not allege that Barbieri was abusing legal process. To the contrary, it seems he is withholding the documents due to a dispute between the parties over the property's condition. Since it was not alleged that Barbieri abused process by withholding the note and mortgage, his principles, the Martinez defendants, would be held liable, not the agent, Barbieri. Accordingly, the court grants Barbieri's motion to strike count three on this additional ground, but only to the extent that Carabetta Construction seeks legal damages from Barbieri.
D. Conversion
Barbieri argues that count four is legally insufficient because an obligation to pay money cannot be enforced by a conversion action and that a conversion action cannot be premised on a breach of contract. Carabetta Construction counters that it has adequately alleged a claim for conversion in that its claim is premised on Barbieri's failure to turn over the note and mortgage to the plaintiff, and not on Barbieri's obligation to pay the money referenced therein.
"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." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006). Here, the plaintiff's conversion claim against Barbieri is premised on its allegations that Barbieri has wrongfully retained possession of two documents, the note and mortgage that rightfully belong to the plaintiff. As Barbieri correctly points out, "[a]n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money." (Internal quotation marks omitted.) Id., 772. It is also understood that, as between parties to a promissory note, it is merely a contract for the payment of money. Nevertheless, count four is neither premised on allegations that Barbieri is a party to the note and mortgage, breached the provisions of those documents, nor on an allegation that Barbieri owes the plaintiff any money. Therefore, Barbieri has not shown that count four is legally insufficient. Accordingly, Barbieri's motion to strike as to count four is denied.
To the extent that the conversion count may require proof of ownership of the note and mortgage, such proof may be subject to the statute of frauds. In addition, the agency claim made in this case with respect to count three may also be applicable to count four.
CONCLUSION
For the foregoing reasons, the court grants Barbieri's motion to strike count three, and denies Barbieri's motion to strike count four of the amended complaint.