Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore

• Decision Date: 14 August 2001
• Docket Number: (SC 16388)
• Citation: 257 Conn. 531,778 A.2d 93
• Court: Connecticut Supreme Court
• Parties: THE JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY, INC. v. J. MICHAEL CANTORE, JR., CONSERVATOR (PERSON AND ESTATE OF DIANA KOSMINER), ET AL.

257 Conn. 531

778 A.2d 93

THE JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY, INC. v. J. MICHAEL CANTORE, JR., CONSERVATOR (PERSON AND ESTATE OF DIANA KOSMINER), ET AL.

(SC 16388)

Supreme Court of Connecticut.

Argued April 19, 2001.

Officially released August 14, 2001.

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js. Elizabeth J. Stewart, with whom were Martha Everett Meng and, on the brief, Everett E. Newton and Jennifer Morgan DelMonico, for the appellant (plaintiff).

James J. Farrell, for the appellees (defendants).

Opinion

VERTEFEUILLE, J.

The sole question in this certified appeal is whether a nursing home has a right to bring an action on a probate bond when it suffers a loss as a result of a conservator's failure to ensure payment to the nursing home for his ward's care. The plaintiff, The Jewish Home for the Elderly of Fairfield County, Inc., appeals from the judgment of the Appellate Court, affirming the judgment of the trial court granting the defendants' motion to strike the complaint. Jewish Nursing Home of Fairfield County, Inc. v. Cantore, 58 Conn. App. 1, 752 A.2d 117 (2000). We conclude that the plaintiff has a right to bring this action on a probate bond pursuant to General Statutes (Rev. to 1995) § 45a-144 (a).¹ Accordingly, we reverse the judgment of the Appellate Court.

Pursuant to § 45a-144 (a), the plaintiff, a state licensed nursing home, brought this action on a probate bond against the defendants, J. Michael Cantore, Jr., conservator of the person and estate of Diana Kosminer, and Continental Casualty Company (Continental), the surety on the bond. The trial court granted the defendants' motion to strike the plaintiff's complaint for failure to state a legally sufficient cause of action and subsequently rendered judgment for the defendants. The plaintiff appealed from that judgment to the Appellate Court. The Appellate Court affirmed the judgment of the trial court, holding that the complaint did not state facts sufficient to show that Cantore had breached any fiduciary duty that he owed to his ward, Kosminer, and, therefore, an action on the probate bond could not be sustained. Id., 7. We granted the plaintiffs petition for certification to appeal to this court.² We conclude that the plaintiffs complaint stated a legally sufficient cause of action under § 45a-144 (a) and therefore reverse the judgment of the Appellate Court.

The complaint sets forth the following facts. On June 8, 1987, the Probate Court appointed Cantore as conservator of the person and estate of Kosminer. Pursuant to General Statutes § 45a-139,³ Cantore executed and filed with the court a probate bond in the amount of $50,000, naming himself as principal and Continental as surety. The bond provided that it was conditioned, as required by § 45a-139, on Cantore "faithfully perform[ing] the duties of his trust and administer[ing] and account[ing] for all monies and other property coming into his hands, as fiduciary, according to law ...."⁴ On August 29, 1989, upon Cantore's request, Kosminer was admitted to the plaintiff's facility as a "private, selfpay" resident, where she remained until her death in 1995. At the time of Kosminer's admittance, her estate had assets of approximately $160,000. Despite the ample resources of the estate, Cantore failed to make timely payment to the plaintiff for the care and services provided to Kosminer. Instead, on May 2, 1990, more than eight months after Kosminer had been admitted to the plaintiff's facility, Cantore made an initial application on Kosminer's behalf to the department of income maintenance (department)⁵ for Title XIX (medicaid) assistance, which, if Kosminer had been eligible, would have paid for the cost of her care. This initial application was denied on the ground that Cantore had failed to provide the department with information to verify that Kosminer's assets did not exceed $1600, the maximum amount permitted for medicaid eligibility.

Approximately one and one-half years after the initial application was denied, and more than two years after Kosminer had entered the plaintiffs facility, Cantore applied for medicaid benefits on Kosminer's behalf for a second time. Again Cantore failed to provide the department with the necessary asset information, and this second application was also denied. On January 15, 1992, Cantore attempted for a third time to qualify Kosminer for medicaid benefits, but this application was denied on the ground that the assets in Kosminer's estate exceeded the $1600 maximum eligibility requirement. At the time of this third application, the plaintiff had provided care and services to Kosminer for nearly two and one-half years despite Cantore's continuous failure to make or ensure payment for those services. Cantore finally liquidated Kosminer's assets to below $1600 on June 20, 1992, and his fourth application for medicaid benefits of July 17, 1992, was granted by the department, retroactive to June 1, 1992. Although the liquidation of the estate included a payment to the plaintiff, an unpaid balance of $63,000 remained for the care and services Kosminer received from August 29, 1989, when she was admitted to the plaintiffs facility, to June 1, 1992, the date on which the medicaid benefits began to cover the cost of her care.

In its complaint, the plaintiff alleged that Cantore had a duty as Kosminer's conservator to use the assets of her estate to pay for the care and services she had received from the plaintiff. In addition, it alleged that Cantore had a duty to apply promptly for medicaid assistance when the estate's assets approached the $1600 medicaid eligibility mark. The plaintiff alleged further that Cantore's failure to pay for Kosminer's care, first from the assets of the estate and then through medicaid once those assets were depleted, constituted a breach of his fiduciary duty as conservator of Kosminer's estate and person. Finally, the plaintiff alleged that Cantore's breach of these duties cost the plaintiff $63,000, and gave it the right under § 45a-144 (a) to bring an action on the probate bond against Cantore, as the principal on the bond, and Continental, as surety.

The defendants moved to strike the complaint for failure to state a legally sufficient cause of action. The trial court, construing the action as one sounding in negligence, determined that the plaintiff had failed to satisfy the duty prong of a negligence action, because "any duty owed by ... Cantore [was] solely to ... Kosminer." The trial court concluded therefore that the plaintiffs complaint did not state a legally sufficient cause of action. Accordingly, the trial court granted the defendants' motion to strike and rendered judgment for the defendants.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had construed the action on the probate bond as an action in negligence and improperly had determined that the plaintiffs complaint failed to state a cause of action sufficient to withstand a motion to strike. The Appellate Court agreed with the plaintiff on the first issue, concluding that the plaintiffs complaint constituted an action on the probate bond under § 45a-144 (a), rather than an action in negligence. Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 58 Conn. App. 5-6. The Appellate Court, however, agreed with the trial court on the second issue, namely, that the plaintiffs complaint failed to state a recognized cause of action, and, as a result, affirmed the trial court's judgment for the defendants. Id., 6-7. This appeal followed.

On appeal to this court, the plaintiff argues, in essence, that: the law imposed certain duties upon Cantore, as conservator of Kosminer's estate and person; he breached those duties by failing to ensure timely payment to the plaintiff through either the estate or through public assistance; the breach of those duties constituted a breach of the probate bond; and the plaintiff was aggrieved by those breaches. The defendants respond by arguing that the plaintiff had no authority to bring an action for the breach of the probate bond because only parties acting as a representative of the estate or seeking recovery for the estate are entitled to bring such actions. We agree with the plaintiff.

The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). "We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996)." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260-61, 765 A.2d 505 (2001).

The sole issue in this appeal is whether the plaintiff has a right to bring an action on the probate bond to recover for the loss it suffered as a result of Cantore's failure to ensure timely payment for Kosminer's care. As defined by statute, a probate bond is "a bond with security given to secure the faithful performance by an appointed fiduciary of the duties of his trust and the administration of and accounting for all moneys and other property coming into his hands, as fiduciary, according to law."⁶ General Statutes § 45a-139 (a). The fiduciary's faithful...