Opinion
No. CV 05-4007359S
May 24, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE # 118
The plaintiff, David Kerrigan, filed a nine-count second amended complaint dated November 22, 2005, against the defendants, Richard Kerrigan, Crystal Kerrigan and the estate of Mary Hager. The plaintiff alleges the following causes of action in the following counts, respectively: (1) action for declaratory relief to set aside a gift as to Richard Kerrigan; (2) action for declaratory relief to set aside a gift as to Crystal Kerrigan; (3) conversion as to Richard Kerrigan; (4) conversion as to Crystal Kerrigan; (5) unjust enrichment as to Richard Kerrigan; (6) unjust enrichment as to Crystal Kerrigan; (7) breach of fiduciary duty as to the estate of Mary Hager by its executor, Richard Kerrigan; (8) action for declaratory relief to set aside a gift as to the estate of Hager; and (9) conversion as to the estate of Hager.
The relevant facts from the complaint are as follows. The plaintiff is the grandson of Hager, who died testate on July 13, 2004. Richard Kerrigan is Hager's son and Crystal Kerrigan is Hager's daughter-in-law. The plaintiff alleges that shortly before Hager died, she transferred "vast sums of her money and money that was held in constructive trust, or on behalf of the Plaintiff" and certain items of personal property, including jewelry, to Richard and Crystal Kerrigan. The plaintiff further alleges that some of the monies transferred were "held in trust for the Plaintiff and the Plaintiff's benefit, either specifically held in trust, or jointly held with the Plaintiff and . . . Hager." The plaintiff alleges that when Hager made many of these transfers, she was of unsound mind and the plaintiff was applying for a conservatorship. As a result of these transfers, Hager's estate was "significantly depleted to the detriment of the Plaintiff" who is entitled to a one-third share of the estate. The defendants filed a motion to strike counts three through nine of the plaintiff's complaint as well as paragraphs two, four and five of the prayer for relief in which the plaintiff requests "the return of all personal property and/or assets held in trust, constructive trust, or in another form of tenancy with the Plaintiff and Ms. Mary Hager to the Plaintiff, including any and all monies held at Webster Bank," exemplary damages, and reasonable attorneys fees, respectively. This motion was supported by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the defendants' motion.
DISCUSSION
"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). "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.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United States Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). In addition, "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
Counts Three, Four and Nine (Conversion)
In counts three, four and nine, the plaintiff alleges claims for conversion against Richard Kerrigan, Crystal Kerrigan and Hager's estate, respectively. The defendants move to strike these counts on the ground that they fail to "allege sufficient facts demonstrating that the plaintiff possesses a cause of action in conversion." A cause of action in conversion is stated when the complaint alleges that one without authority assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner's rights. Luciani v. Stop Shop Cos., 15 Conn.App. 407, 409, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988). "Conversion is defined `as [a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . .' It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm. Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). `[T]here are two general classes of conversion: (1) that in which possession of the allegedly converted goods is wrongful from the outset; and (2) that in which the conversion arises subsequent to an initial rightful possession.' Maroun v. Tarro, 35 Conn.App. 391-96, 646 A.2d 251 (1994). `Fraud is not a necessary part of a conversion.' Plikus v. Plikus, 26 Conn.App. 174, 180, 599 A.2d 392 (1991)." Berty v. Gorelick, Superior Court, judicial district of Fairfield, Docket No. CV 93 0307939 (August 6, 1996, Grogins, J.), aff'd, 59 Conn.App. 62, 756 A.2d 856, cert. denied, 254 Conn. 933, 761 A.2d 751 (2000).
Since these transactions took place prior to Hager's death, the plaintiff brings the cause of action against Hager's estate through Richard Kerrigan as the executor of the estate.
Count three of the plaintiff's complaint appears to allege several acts of conversion by Richard Kerrigan, and with respect to some of these acts, it is unclear whether the plaintiff is making claims on behalf of himself or on behalf of Hager's estate. Count three incorporates paragraphs one through eleven of count one, in which the plaintiff alleges, inter alia, that the personal property, including jewelry, in dispute was taken by the defendants and greatly reduced Hager's estate to which the plaintiff was entitled to a one-third share. Paragraph twenty of count three states: "[T]he Defendant, Mr. Richard Kerrigan, wrongfully took possession and control of, and/or aided and abetted the Defendant Ms. Crystal Kerrigan, the above-named Ms. Mary Hager's property, on account of her mental infirmity which he knew about or should have known about."
If the plaintiff is making this claim on his own behalf, the count fails to allege that he had any ownership interest in the disputed personal property and, therefore, fails to allege sufficient facts to support a claim in conversion. If, however, the facts alleged in this count are construed in the plaintiff's favor to allege a cause of action on behalf of Hager's estate, an issue of standing arises. In Dickman v. Generis, 48 Conn.Sup. 380, 383-84, 845 A.2d 488 (2004) ( 36 Conn. L. Rptr. 460), the court acknowledged that as a general rule legal title to all of a decedent's personal property, including choses in action, vests in the administrator or executor of the decedent's estate. The court in Dickman further noted, however, that "an exception to this rule . . . although it has not necessarily been recognized by our Appellate or Supreme Courts, applies when there are legitimate reasons for an exception . . . Additionally, there is an exception where there has been fraud, collusion or refusal to sue on the part of the administrator/administratrix or executor/executrix, or where the interests of the personal representatives are antagonistic to those of the heirs or distributees." (Citations omitted; internal quotation marks omitted.) Id., 383-84; see also Wright v. Wright, Superior Court, judicial district of New Haven, Docket No. CV 04 4000024 (May 27, 2005, Levin, J.).
Since Richard Kerrigan is the executor of Hager's estate and a defendant in this suit, his interests are antagonistic to the interests of the plaintiff. Furthermore, the complaint alleges that Hager suffered from an unsound mind during the period in which at least some of these transfers occurred. Construing the facts in the complaint in the manner most favorable to the plaintiff, he has standing to pursue this cause of action on behalf of Hager's estate and has pleaded sufficient facts to state a cause of action against Richard Kerrigan for conversion of Hager's personal property.
In addition to the allegations of conversion by Richard Kerrigan with regard to Hager's personal property, the plaintiff alleges that the defendants "caused to have transferred monies that were held in constructive trust, and/or in tenancy with, Mr. David Kerrigan, which were monies for which the intended beneficiary was Mr. David Kerrigan." In paragraph twenty-one of count three the plaintiff further alleges "[t]hat the defendant, Mr. Richard Kerrigan, wrongfully took possession and control of, and/or aided and abetted the Defendant Ms. Crystal Kerrigan, property that was held in trust for the Plaintiff and the Plaintiff's benefit, either specifically held in trust, or jointly held with the Plaintiff and . . . Hager." Apart from an additional reference to "bank accounts" in paragraph ten, these are the sole allegations regarding the accounts that held the funds of which the defendant allegedly took wrongful possession. The plaintiff argues in his memorandum of law in opposition to the defendants' motion to strike that "count one of the complaint is quite clear in that paragraphs 7 and 11 refer to a myriad of types of accounts, and copies of the accounts were attached to the complaint as Exhibits"; however, no exhibits were attached to either the plaintiff's original or amended complaint. While the plaintiff did attach copies of various account records to his memorandum of law in opposition to the defendant's motion to strike, those exhibits will not be considered by this court in deciding the motion to strike, for "[i]n 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., supra, 240 Conn. 580. Although the court must construe the allegations in a light favorable to the plaintiff, it cannot add facts which are not alleged or assume facts not alleged.
As discussed, count three alleges several acts of conversion, some but not all of which this court finds legally sufficient. The defendants have, however, moved to strike the entire count. Just as this court would not be permitted to grant a motion to strike an entire complaint if any of the plaintiff's claims were legally sufficient; see Kovacs, v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989); the court cannot grant the motion to strike count three given the legal sufficiency of at least one of the claims of conversion. The defendants' motion to strike is denied as to count three.
Count four alleges conversion by Crystal Kerrigan. Count four, incorporates paragraphs one through eleven of count one and further alleges that Crystal Kerrigan aided and abetted Richard Kerrigan in wrongfully taking possession of Hager's property. Construing those allegations in the light most favorable to the plaintiff, it is not inconceivable that Richard Kerrigan as executor would refuse to bring suit on behalf of Hager's estate against Crystal Kerrigan; thus, his interests would be antagonistic to those of the plaintiff. The plaintiff therefore has standing to bring a claim in conversion against Crystal Kerrigan on behalf of Hager's estate. The defendants' motion to strike as to count four is denied for the same reasons that the motion to strike as to count three is denied.
Count nine alleges conversion against Hager's estate. Count nine, like counts three and four, incorporates by reference counts one through eleven of count one. It is also alleged that Hager, wrongfully took possession and control of, and/or aided and abetted Richard and Crystal Kerrigan, property in Webster Bank accounts and property held in constructive trust or in title with, albeit on account of her mental infirmity, which should have passed, was being held for, or legal title was held by the Plaintiff.
General Statutes § 36a-296, which governs trust accounts, provides in subsection (a)(1), that "it shall be conclusively presumed that the depositor or share account holder intends to create a trust of all funds credited to the deposit or share account . . . upon the following terms: (A) The depositor or share account holder during the depositor's or share account holder's life may withdraw, or authorize charges against, such funds . . ." (Emphasis added.) Trust accounts allow the "creator and depositor of such an account to exercise complete and exclusive control of the account while alive. Upon the depositor's death, provided the beneficiary is still living, the title to the funds remaining in the account vests immediately in the beneficiary." Limoncelli v. Limoncelli, Superior Court, judicial district of New Haven, Docket No. CV03 0483531 (December 8, 2004, Pittman, J.) ( 38 Conn. L. Rptr. 395, 396).
The plaintiff in the present case has failed to allege any facts to rebut the conclusive presumption set forth in § 36a-296 and, thus, fails to state a cause of action in conversion for the trust account. Furthermore, The plaintiff has failed to allege any reason why Hager was not permitted to withdraw all of the funds or any portion thereof from the joint account during her lifetime. See Masotti v. Bristol Savings Bank, 43 Conn.Sup. 360, 364, 653 A.2d 836 (1994) (under common law,"[t]he coholders of a joint account are considered owners of the entire account and either may withdraw"); Wright v. Wright, supra, Superior Court, Docket No. CV 04 4000024 ("all of the money in the [joint] account was owned by the [plaintiff's] mother and was hers to dispose of as she deemed best").
Count nine also alleges that Hager's personal property was "held in constructive trust for the Plaintiff and/or held in title" with Hager. "[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 title to property which he ought not, in equity and good conscience, hold and enjoy." (Citations omitted; internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996).
In the present case, the plaintiff is not asking the court to impose a constructive trust on the personal property that he claims was wrongfully converted. Rather, the plaintiff alleges that the property was already "held in constructive trust" for his benefit. Furthermore, although the plaintiff alleges that Hager converted this personal property, he fails to allege that Hager engaged in any fraud, duress, unjust enrichment or undue influence. See Priceline.com, Inc. v. Mayes, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0196820 (March 16, 2005, Adams, J.) ( 39 Conn. L. Rptr. 9, 12) (holding that a constructive trust is a remedy usually associated with equitable causes of action and not a specific or separate cause of action). The plaintiff has failed to allege sufficient facts to assert a cognizable claim against Hager or Hager's estate.
The defendants' motion to strike is granted as to count nine.
Counts Five and Six (Unjust Enrichment)
Count five alleges unjust enrichment as to Richard Kerrigan and count six alleges unjust enrichment as to Crystal Kerrigan. The defendants move to strike these counts on the ground that they "fail to allege facts to support a theory of unjust enrichment." They argue more specifically in their memorandum of law that since the doctrine of unjust enrichment applies in the context of a contract where no remedy at law is available and no contract has been alleged in counts five and six, those counts fail to state a cause of action. The plaintiff argues that the Supreme Court held in Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959), that a party does not need to prove a tortious or fraudulent act to seek restitution for unjust enrichment. Rather, the party must show that the defendant obtained something of value to which he was not entitled to the detriment of another.
"[A plaintiff] seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the [plaintiff] for the benefit, and (3) that the failure of payment was to the [plaintiff's] detriment." (Internal quotation marks omitted.) Ayotte Bros. Construction Co. v. Finney, 42 Conn.App. 578, 581, 680 A.2d 330 (1996). "The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff." (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). "Unjust enrichment applies whenever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment . . . [I]t is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff." (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).
In the present case, the plaintiff has not alleged that property or services were rendered under a contract or otherwise to anyone which would require a remedy be given. There is no allegation of a promise to the plaintiff from Richard Kerrigan, Crystal Kerrigan, or Hager. If the plaintiff is attempting to allege that the joint bank account and/or trust account constitute a contract or promise for which unjust enrichment may be awarded, the plaintiff has failed to allege a detriment. He has not alleged that he deposited any of his own funds in the account; see Wright v. Wright, supra, Superior Court, Docket No. CV 04 4000024; that he had any ownership interests in the funds; see McAuley v. Southington Savings Bank, 69 Conn.App. 813, 820, 796 A.2d 1250 (2002); or that Hager was not free to convey the money during her lifetime; see Ardito v. Olinger, 65 Conn.App. 295, 298, 782 A.2d 698 (2001). In addition, counts five and six allege, respectively, that Richard Kerrigan aided and abetted Crystal Kerrigan and that Crystal Kerrigan aided and abetted Richard Kerrigan in the unjust enrichment. To sustain a cause of action for aiding and abetting, the plaintiff must plead and prove that "the party whom the defendant aid[ed] must [have] perform[ed] a wrongful act that caus[ed] an injury . . ." (Internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 505, 846 A.2d 222 (2004). The plaintiff's claims of aiding and abetting in both counts five and six are based on the claim of unjust enrichment, which has been found to be legally insufficient.
The motion to strike counts 5 and 6 is granted.
Count Seven (Breach of Fiduciary Duty)
In count seven, the plaintiff alleges that Hager breached a fiduciary duty that she owed him. The plaintiff alleges that Hager breached an oral trust agreement that she had created with the plaintiff to hold funds for his benefit by transferring sums of money to Richard Kerrigan prior to her death. The defendants move to strike count seven on the ground that the plaintiff has failed to allege facts to support a theory of breach of an oral trust. The defendants also argue that Hager was permitted to withdraw the money during her lifetime under General Statutes §§ 36a-290 and 36a-296.
As to the account held in trust for the benefit of the plaintiff, General Statutes § 36a-296 governs. Connecticut law provides for the creation of a deposit trust account under § 36a-296. Limoncelli v. Limoncelli, supra, 39 Conn. L. Rptr. 396. "A savings account trust arises when a bank depositor establishes an account in trust for a named beneficiary while reserving to himself, as trustee, the right to withdraw the funds in that account at any time. Upon the trustee's death, ownership of the funds remaining on deposit passes automatically to the beneficiary." Salvio v. Salvio, 186 Conn. 311, 314-15, 441 A.2d 190 (1982). "This type of account, often called a Totten trust, is a common estate planning tool recognized in Connecticut law and the law of most other jurisdictions. It allows the creator and depositor of such an account to exercise complete and exclusive control of the account while alive. Upon the depositor's death, provided the beneficiary is still living, the title to the funds remaining in the account vests immediately in the beneficiary." Limoncelli v. Limoncelli, supra, 39 Conn. L. Rptr. 396. Furthermore, courts are instructed by subsection (a)(1) of § 36a-296 that "it shall be conclusively presumed that the depositor or share account holder intends to create a trust of all funds credited to the deposit or share account . . . upon the following terms: (A) The depositor or share account holder during the depositor's or share account holder's life may withdraw, or authorize charges against, such funds . . ." (Emphasis added.)
Section 36a-296(b) however, makes it clear that "[i]n the case of a deposit or share account established or maintained with a bank . . . by a trustee under a . . . trust agreement . . . the trustee shall provide the bank . . . with a writing identifying such . . . agreement . . ." (Emphasis added.) The plaintiff has failed to allege that Hager provided the bank with a signed writing that would alter the conclusive presumption of § 36a-296(a)(1) that Hager was permitted to withdraw the funds from this account at any time during her lifetime. The plaintiff also alleges that the bank account in dispute here was held as a joint bank account between Hager and himself. In Grodzicki v. Grodzicki, 154 Conn. 456, 226 A.2d 656 (1967), the plaintiff alleged that he was the owner of an undivided one-half interest in a joint account from which the defendant withdrew all the funds and converted them to her own use. "The obvious intent of the legislature is to give to the survivor or survivors an irrebuttable presumption of ownership . . . [T]he question of the donee's inter vivos interests is not answered, and the courts must once again look to their common law . . . The first sentence of subsection (1) of the statute permits the payment by the bank to any of the co-depositors during the lifetime of all of them or to the survivor or survivors after the death of one or more of them and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made. This portion of the statute is obviously for the protection of the banks. The language of the statute does not determine the respective rights of the parties inter vivos. The presumption created by the second sentence of subsection (1) of the statute has no application to an action between the parties when all of them are alive. In such a case, we must look to our common law for a determination of the question presented." (Citations omitted; internal quotation marks omitted.) Id., 462-63 (interpreting General Statutes § 35-3, the precursor to the current statute).
In the present case, the plaintiff alleges that the joint accounts were subject to an "oral trust agreement" and that the funds were transferred inter vivos in violation of this trust agreement. The court must, therefore, look to the common law to determine the plaintiff's rights.
An express oral trust constitutes a legal relationship. Hieble v. Hieble, 164 Conn. 56, 59 n. 1, 316 A.2d 777 (1972). "Trusts of personal property may be created verbally, by direct and express statements, or by implication from the circumstances, where the objects and purposes of the transfer may be held to express the true intention of the transferor to be the creation of a trust." McDonald v. Hartford Trust Co., 104 Conn. 169, 184, 132 A.2d 902 (1926). "The settlor must manifest an intention to create a trust. An undisclosed state of mind is not sufficient; neither is a secret intention on the part of the settlor of any efficacy. But no particular form of words is necessary for the manifestation of the requisite intention. Whether or not the word `trust' or `trustee' is or is not employed is of no special significance." Fidorski v. Maryeski, 11 Conn.Sup. 414, 418 (1943). "Assuming that the decedent reserved unto herself the right to revoke the arrangement with the defendant, such would not defeat the creation of a valid trust. A power of revocation is perfectly consistent with the creation of a valid trust." (Internal quotation marks omitted.) Id.
Apart from the conclusory statements that the funds in these accounts were intended to be held for the benefit of the plaintiff thus creating an oral trust agreement, the plaintiff has failed to allege sufficient facts from which it could be found that Hager created an oral trust with him or that the joint bank account was subject to an oral trust. Furthermore, the plaintiff has failed to allege any reason why Hager was not permitted to withdraw all of the funds or any portion thereof from the joint account during her lifetime. See Masotti v. Bristol Savings Bank, supra, 43 Conn.Sup. 364 (under common law, "[t]he coholders of a joint account are considered owners of the entire account and either may withdraw"); Wright v. Wright, supra, Superior Court, Docket No. CV 044000024 ("all of the money in the [joint] account was owned by the [plaintiff's] mother and was hers to dispose of as she deemed best").
The plaintiff has failed to allege a cause of action for breach of fiduciary duty, and the defendants' motion to strike is granted as to count seven.
Count Eight (Declaratory Relief)
The defendants move to strike count eight on the ground that it fails to allege any facts that can be construed reasonably to frame a cause of action. The plaintiff's sole argument in opposition to the defendant's motion to strike count eight is as follows: "Connecticut has adopted the principle that all persons are presumed sane and that the burden of proving it to the contrary rests upon the Plaintiff, which the Plaintiff is prepared to meet at trial . . . The claim is essentially a pleading in the alternative, as it may be deemed that Ms. Hager was of sound mind, and the transfers were made on her own free will and accord, and not an instrument of Richard and Crystal Kerrigan."
Whatever that means, count eight, which is captioned an "action for declaratory relief to set aside gift as to defendant #3, estate of Ms. Mary Hager, deceased," incorporates by reference counts one and seven, that is, that Richard and Crystal Kerrigan, knowing that Hager was of unsound mind, wrongfully took possession of funds and/or personal property and/or that Hager wrongfully gifted or transferred funds or property that belonged outright to the plaintiff or was jointly held by Hager and the plaintiff — property that would have been a part of Hager's estate to which the plaintiff was entitled to a one-third share under the terms of Hager's will. The plaintiff also alleges that Hager aided and abetted Richard and Crystal Kerrigan in obtaining title and/or possession of certain funds and/or personal property, constituting a wrongful gift at the expense of the Plaintiff as to what would have passed to the Plaintiff by will or that which the Plaintiff held an interest in title and that the result of the aforestated actions Hager's Estate was grossly depleted, at the expense of the plaintiff an heir.
The legal insufficiency of all but one of these allegations has been addressed previously in this decision and that the plaintiff brings the same claims against Hager's estate does not justify repeating the discussion of those allegations. The only allegation not previously addressed in detail is the claim of aiding and abetting.
"To sustain a cause of action for aiding and abetting, the plaintiff must plead and prove the following: 1) the party whom the defendant aided must have performed a wrongful act that caused an injury; 2) the defendant must have been generally aware of [its] role as part of an overall illegal or tortious activity at the time [the defendant] provided the assistance; and 3) the defendant must have knowingly and substantially assisted the principal violation." Streeter v. Rifton Management, LLC, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 02 179481 (December 27, 2004, Sheedy, J.) ( 38 Conn. L. Rptr. 493, 500), citing Efthimiou v. Smith, 268 Conn. 499, 505, 846 (2004).
In count eight of the present case, the plaintiff claims that Hager aided and abetted the defendants in obtaining title or possession of her property, although she was not of sound mind when many of these transfers occurred. The plaintiff has failed to plead sufficient facts from which it could be found that Hager was generally aware of her role in an overall illegal or tortious activity or that she could have knowingly and substantially assisted the principal violation, two of the necessary allegations of a claim for aiding and abetting. Therefore, the defendants' motion to strike is granted as to count eight on the ground that it fails to state a cause of action.
Prayer for Relief (Paragraphs Two, Four and Five)
The defendants move to strike the following paragraphs of the prayer for relief: paragraph two, which requests the return of all personal property and/or assets held in trust, constructive trust or tenancy to the plaintiff, paragraph four, which seeks exemplary damages; and paragraph five, which requests reasonable attorneys fees. A party may file a motion to strike to contest the legal sufficiency of a prayer for relief in any complaint. Practice Book § 10-39(2). "A motion to strike a prayer for relief is properly granted where, assuming the truth of the allegations in the complaint, the relief sought could not be legally awarded to the plaintiff." (Internal quotation marks omitted.) Paskiakos v. Dimasi, Superior Court, judicial district of Windham, Docket No. CV 05 4001276 (October 28, 2005, Riley, J.).
With the striking of counts five through nine of the complaint, there are no remaining allegations that the defendant held any property in trust, constructive trust or tenancy with Hager, allegations which if proven would require the return of the property to the plaintiff. Since the relief requested in the second paragraph of the prayer for relief cannot be awarded to the plaintiff, that paragraph is properly stricken. It is noted that counts one and two, which were not the subject of this motion to strike, seek to set aside the gifts from Hager to the defendants. If the plaintiff is successful on these counts, then the property in dispute would be returned to Hager's estate. Paragraph one of the prayer for relief, which requests "[t]he return of all assets, including personal property, that rightfully would have passed to the Estate of Ms. Mary Hager, and in turn, to the Plaintiff," would be the legally appropriate relief. This relief would also be appropriate if the plaintiff prevails on the claims sounding in conversion made in counts three and four brought on behalf of Hager's estate.
The defendants have also moved to strike paragraph four of the prayer for relief requesting exemplary damages. Our courts do not make a distinction between "exemplary" and "punitive" damages and the same test is used to invoke both. See Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 93, 881 A.2d 139 (2005). "To furnish a basis for recovery of punitive damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004). "A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made . . ." (Internal quotation marks omitted.) Jones v. Gulley, Superior Court, judicial district of New London, Docket No. 0558526 (June 18, 2002, Corradino, J.). In addition, "punitive damages may be awarded only for outrageous conduct . . . The conduct must be outrageous, either because the defendants' acts are done with an evil motive or because they are done with reckless indifference to the interests of others." (Citations omitted; internal quotation marks omitted.) Ames v. Sears, Roebuck Co., 8 Conn.App. 642, 655, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986). The court in Park Distributors, Inc. v. UST Bank Connecticut, Superior Court, judicial district of Fairfield, Docket No. CV 96 0334576 (January 28, 1998, Skolnick, J.) ( 21 Conn. L. Rptr. 259, 260), noted that at least one superior court decision has held that "in a conversion action, punitive damages may be awarded upon a showing of fraud."
In the present case, the plaintiff has alleged neither wanton, malicious, outrageous or fraudulent behavior on the defendants' part. The plaintiff's prayer for punitive damages is insufficient, and the defendants' motion to strike is granted as to paragraph four of the prayer for relief.
Finally, the defendants' motion to strike is granted as to paragraph five of the prayer for relief, which seeks attorneys fees. "The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Marsh, Day Calhoun v. Solomon, 204 Conn. 639, 652, 529 A.2d 702 (1987). Although noting that attorneys fees may be awarded as a component of punitive damages, the court in Park Distributors v. UST Bank of Connecticut, supra, 21 Conn. L. Rptr. 260, further noted that "[w]ithout a finding of punitive damages, attorney fees cannot be awarded for a claim of conversion."
In the present case, the plaintiff has not alleged the existence of a contractual or statutory obligation that would permit the recovery of attorneys fees. Moreover, the plaintiff's claim for punitive damages has also been stricken; therefore, no basis exist for an award of attorneys fees.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is denied as to counts three and four. The motion to strike is granted as to counts five, six, seven, eight and nine and as to paragraphs two, four and five of the prayer for relief.