Opinion
No. FST CV 08 5009121 S
October 1, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (129.00)
FACTS
On December 8, 2008, the plaintiff, Today's Kids, LLC (Today's Kids) filed a four-count complaint dated December 2, 2008 against the defendants, Gerard E. Bach, Jldiko Bach, and Precision Electric Corporation (Precision). Count one sounds in breach of contract, count two in breach of fiduciary duty, count three in conversion, count four in violation of General Statutes § 52-564 (civil theft), and count five in a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Attached to the complaint as exhibits are the operating agreement of the plaintiff LLC (agreement), and a schedule of member capital contributions made pursuant to the operating agreement (capital contributions), Exh. 1; an action by written consent of the members in lieu of meeting (written consent), Exh. 2; and a demand letter sent to one of the defendants, Gerard Bach, dated October 3, 2008 (Exh. 3).
This name is alternately spelled as Jldiko Bach and Ildiko Bach. In the relevant pleadings for the purpose of the present motion, it is Jldiko Bach in the initial complaint, and Ildiko Bach in the defendant's motion to strike, the plaintiff's opposition, and the defendant's reply.
An earlier unsigned version of the complaint, dated October 24, 2008 is in the file in connection with an application for a prejudgment remedy, an application that was granted in November 2008. There is no discernible difference between the two complaints. While the motion to strike now under consideration is purportedly directed against part of the complaint dated October 28, 2008, the court will treat it as directed at the operative complaint filed December 8, 2008.
In count four, the plaintiff alleges that "the defendants intentionally asserted control over the [c]apital [c]ontributions to which they knew they were not entitled," and that "the defendants asserted control over the [c]apital [c]ontributions by depositing the proceeds into their own bank accounts with the intent to deprive Today's Kids of its interest in those [c]apital [c]ontributions." Incorporating paragraphs one through eighteen from count one, the plaintiff also alleges that "the [c]apital [c]ontributions were given to Gerry Bach for use in furthering the goals of Today's Kids," and that "rather than deposit the [c]apital [c]ontributions in a Today's Kids account, Gerry Bach deposited the [c]apital [c]ontributions in accounts held by the defendant [Precision] and/or other accounts controlled by Gerry Bach and/or Jldiko Bach." Moreover, the plaintiff alleges that "the [c]apital [c]ontributions have remained in accounts held by [the] defendant [Precision] and/or other accounts controlled by Gerry Bach and/or Jldiko Bach and have never been transferred to a Today's Kids account."
On June 24, 2009, the defendant Jldiko Bach filed a motion to strike count four of the plaintiff's complaint, as well as a memorandum in support. The plaintiff filed a memorandum in opposition on July 7, 2009, to which the defendant filed a reply on July 10, 2009. The matter was heard at short calendar on July 13, 2009.
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 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). 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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendant argues that there is no allegation in the complaint that she deposited the capital contributions. The defendant further argues that the allegation that the defendants asserted control over the capital contributions with the intent to deprive the plaintiff of its interest in those funds is a legal conclusion unsupported by facts. Statutory theft requires intent, and the defendant argues that there are no facts pleaded supporting the conclusion that the defendant intended to deprive the plaintiff of its funds. Because a legal conclusion is not a fact, and the phrase "intent to deprive" are conclusory, and the fact that the deposit itself cannot show the plaintiff's intent, the defendant argues that count four merely states a cause of action for conversion.
The plaintiff responds that the elements of statutory theft and conversion are identical, with the exception of the additional element of "intent" required for statutory theft. Citing to the complaint, the plaintiff argues that count four sufficiently alleges statutory theft as it alleges that the defendants "intentionally asserted control" over the capital contributions, and that they did so "with the intent to deprive" the plaintiff of its interest in those funds. The plaintiff further argues, citing to various Superior Court cases, that on multiple occasions courts have held allegations that a defendant intended to assert control over proceeds and intended to deprive the plaintiff of the use of those proceeds not to be conclusory.
The defendant replies that the cases cited by the plaintiff can all be distinguished, as they all "contain allegations that the offending party actually took the property or money involved," and that the complaint in the present case fails to allege that the defendant took the funds. The defendant further argues that although paragraph twenty of the complaint alleges that the defendants asserted control by depositing proceeds into their own accounts, paragraphs eight, nine, and ten contradict that by alleging that the defendant Gerry Bach deposited the funds in the account. Accordingly, in the view of Jldiko Bach, there is no allegation that the defendant received or deposited any of the plaintiff's funds.
"Statutory theft under § 52-564 is synonymous with larceny under 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 an owner . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).
General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
"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 . . . Thus, [c]onversion 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 . . . The term owner is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770-71, 905 A.2d 623 (2006).
There are no cases directly on point, addressing a motion to strike a statutory theft count for a failure to plead intent when multiple defendants are involved, however Superior Courts have consistently denied motions to strike when intent is pleaded. In DeHart v. Crossen, Superior Court, judicial district of Windham, Docket No. CV 04 4000241 (June 3, 2005, Riley, J.), the court denied the motion to strike because defendant had "added the additional allegation of intent necessary to state a cause of action for theft" stating that "whether the defendant can substantiate this claim is irrelevant to the present motion." See also Coyle Crete, LLC v. Nevins, Docket No. CV 06 5004795 (December 2, 2008, Holden, J.) ( 46 Conn. L. Rptr. 761, 764) (denying motion to strike because plaintiff "alleged that the defendant intended to withhold the funds in order to appropriate the same to a state marshal"); Coston v. Reardon, Superior Court, judicial district of Windham, Docket No. 063892 (October 18, 2001, Foley, J.) ( 30 Conn. L. Rptr. 611, 612) (denying motion to strike because pleaded conversion plus that defendant intended to deprive plaintiff of property by destruction and/or injury of personal property).
Cases have also denied a motion to strike when, even though intent was not specifically pleaded, it was sufficiently pleaded when looking at the underlying allegations. See Fabian v. Cordova, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5009629 (July 6, 2009, Pavia, J.) (denying motion to strike because "the plaintiff alleges facts that [the defendant] obtained possession of his property wrongfully through forged documents and did so with the requisite intent to deprive him of his property"); Wright Brothers Builders, Inc. v. Shuldman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4005897 (October 31, 2006, Jennings, J.) ( 42 Conn. L. Rptr. 252, 254) (denying motion to strike because defendant pleaded sufficient facts in counterclaim to show that plaintiff misappropriated funds "for its own use with the intent to deprive the defendant of those funds," even though counterclaim fails to use word "intent"); Bethea v. Olmstead, Superior Court, judicial district of Waterbury, Docket No. CV 02 0169072 (September 27, 2002, Pittman, J.) ( 33 Conn. L. Rptr. 129, 131) (denying motion to strike because "[t]he plaintiff has alleged facts sufficient to come within [the] statutory definitions").
In the present case, the plaintiff alleges that the defendant's conduct was intentional. A closer look at the allegations indicates that the person, who deposited the funds into accounts held by the defendant, amongst others, was Gerry Bach. The allegations, however, also state that all of the defendants "intentionally asserted control" and did so "with the intent to deprive" the plaintiff, by "depositing the proceeds into their own bank accounts." The plaintiff, therefore, pleads the requisite word "intent." In addition, the case law does not specifically state what type of facts must be pleaded to substantiate a claim of statutory theft. Accordingly, reading the complaint in favor of the pleader on a motion to strike; Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 378; the facts alleged in count four are sufficient to sustain that count.
CONCLUSION
Because the plaintiff in the present case sufficiently pleaded intent as required for statutory theft, the motion to strike count four of the plaintiff's complaint is denied.