Kerrigan v. Kerrigan, No. CV 05-4007359S (Conn. Super. 5/24/2006)

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Unpublished Opinion

David Kerrigan v. Richard Kerrigan et al. Opinion No.: 93669

No. CV 05-4007359S

Superior Court of Connecticut

Judicial District of Hartford at Hartford

May 24, 2006

MEMORANDUM OF DECISION ON MOTION TO STRIKE # 118

LOIS TANZER, JUDGE.

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.¹ 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).

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...