Opinion
No. CV04-0085473S
August 10, 2004
MEMORANDUM OF DECISION
The plaintiff brings this action against the co-conservators of a former resident of the plaintiff in their individual capacities, seeking payment for services rendered. In an amended complaint, the plaintiffs allege in Count One a breach of fiduciary duty; in Count Two a breach of contract; in Count Three a breach of implied contract; and in Count Four a quantum meruit claim. The defendants first filed a Motion to Dismiss Counts Three and Four of the Amended Complaint. Then, the defendants filed a Motion to Strike Counts Three and Four of the Amended complaint. Setting aside the procedural problems with the defendants' approach, the court denies both motions.
"A conservator has an implied power to enter into contracts on behalf of his ward's estate where such contracts involve the exercise of the express or implied powers which are granted to the conservator by statute. Stempel v. Middletown Trust Co., supra, 222. If such a contract has been previously authorized by the Probate Court, or is subsequently approved by that court, the ward's estate will be bound thereto. Id., 222, 223; Johnson's Appeal, supra, 598. The authorization or approval by the Probate Court, however, is essential, and without it the ward's estate is not liable. Greer v. Greer, 218 Ga 416, 128 S.E.2d 51; Dean v. Estate of Atwood, 221 Iowa 1388, 1394, 212 N.W. 371; Mitchell v. McDonald, 114 Mont. 292, 301, 136 P.2d 536. While a conservator, as any other fiduciary, may act at his peril and on his own personal responsibility, before his ward's estate can be directly obligated to pay for services rendered to that estate at the request or with the knowledge of the conservator, the Probate Court must CT Page 11232-ib expressly approve the necessity and propriety of the utilization of those services and the reasonableness of the charge demanded for them." Elmendorf v. Poprocki, 155 Conn. 115, 118, 230 A.2d 1 (1967).
Elmendorf is directly applicable to the instant matter. Though Elmendorf applied to a very specific fact pattern involving contracts arising out of real estate transactions, the appellate court has interpreted its application to be broader. See, Doyle v. Reardon, 11 Conn.App. 297, 302, 527 A.2d 260 (1987).
There is no dispute that the defendants did not obtain explicit approval from the Probate Court to enter the contract with the plaintiff. It is the defendants' position that they did not need to do this, because the actions they took were explicitly authorized by statute. There is logic and appeal to their position. But, they cite no case law upholding this interpretation, and it is contrary to the explicit language in Elmendorf. Because the defendants did not obtain authorization from the Probate Court to enter the contract, either prior to entering it or subsequent, this court must deny the defendants' motions to dismiss and to strike. CT Page 11232-ic