Markowitz v. Villa

• Decision Date: 26 January 2017
• Docket Number: CV166060963S
• Court: Connecticut Superior Court
• Parties: Judy Markowitz et al. v. Judy Villa

Judy Markowitz et al.
v.
Judy Villa

No. CV166060963S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

January 26, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE (#115)

Robin L. Wilson, J.

I

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiffs, Judy Markowitz and Gyorgy Emil Sallay (plaintiffs) commenced this action against the defendant, Judy Villa (defendant), by service of writ, summons and complaint. The return date is April 5, 2016, and the case was returned to court on March 11, 2016. In response to a request to revise, the plaintiffs filed a revised complaint on September 23, 2016, which is the operative complaint and alleges the following facts.

The plaintiffs are the beneficiaries under the will of Agnes Moriber who died on April 21, 2015 (decedent). The defendant is also a beneficiary under the will of the decedent. At the time of her death, the decedent was a resident of Stratford, Connecticut and her estate is being probated in the Stratford Probate Court. The will of the decedent provides that her estate was to be divided 30% to each of the plaintiffs, 30% to the defendant and 10% to Karol Alexander. At some time prior to the decedent's death, the defendant arranged for the decedent to transfer certain of her bank accounts from simple savings accounts into brokerage accounts which named the defendant as the beneficiary. The defendant also convinced the decedent to name her as beneficiary on certain other bank accounts owned by the decedent. This was accomplished through contacts by the defendant, her husband, Frank Villa and her son. The defendant's husband, Frank Villa handled the decedent's finances and had access to all of her financial information, including her accounts. According to the complaint, upon information and belief, this all occurred on or before August 26, 2013, and thereafter prior to the decedent's death in April 2015.

By arranging for the decedent to transfer certain of her bank accounts from simple savings accounts into brokerage accounts which named the defendant as the beneficiary, and convincing the decedent to name the defendant as beneficiary on certain other bank accounts owned by the decedent, the defendant received a disproportionate share of the decedent's estate in that she has received $209, 144.11 which represents approximately 64% of the estate rather than 30% as provided for under the decedent's will.

The defendant also persuaded the decedent to transfer assets from simple savings accounts to brokerage accounts through her son at Edward Jones Financial by which the accounts were charged fees by Edward Jones which resulted in the diminution of the gross estate available for distribution. This was accomplished through the contacts by the defendant, her husband and her son. Additionally, by placing the accounts at Edward Jones the monies in the accounts were subject to market risk to the damage and loss of the plaintiffs. When the decedent met with her attorney to prepare her will, the existence and the amount of money contained in the accounts on which the defendant was a beneficiary of the decedent, was not made known to the decedent's attorney so that he could advise her that the accounts as structured would not pass in accordance with her estate plan but would go to the defendant outright at the decedent's death.

The defendant accomplished the foregoing by exercising undue influence on the decedent by herself and through other family members in that the decedent's desires for the disposition of her assets as set forth in her will was effectively overcome. As a result of the defendant's undue influence, the plaintiffs have been damaged in that they have not and will not receive their rightful share of the decedent's estate pursuant to the will. Count one alleges undue influence; count two alleges unjust enrichment; count three alleges tortious interference with the plaintiffs' expectation of inheritance; count four alleges conversion and count five alleges statutory theft.

The defendant filed a motion to strike all five counts of the complaint and a memorandum in support on the following grounds. The defendant moves to strike the claim of undue influence on grounds that the claim is legally insufficient because the plaintiffs fail to allege all of the elements to support a claim for undue influence, and because the claim is more appropriately raised in a contested Probate Court matter as a will contest. The defendant moves to strike the claim for unjust enrichment on grounds that the claim is legally insufficient and solely based on the claim of undue influence; that the plaintiffs cannot allege that they somehow conferred a benefit upon the defendant; and the plaintiffs have failed to allege facts in support of their allegations of unjust enrichment.

The defendant moves to strike the claim for tortious interference with an inheritance expectancy on grounds that Connecticut appellate courts have not recognized this claim as a cause of action and that, even if it were recognized, the claim fails because the plaintiffs have failed to allege sufficient facts to support the claim. The defendant moves to strike the claims for conversion and statutory theft on grounds that the plaintiffs have failed to allege the requisite elements for both causes of action.

The plaintiffs filed an objection and a memorandum in support. The plaintiffs argue that they have sufficiently pled the express and implied allegations against the defendant in their revised complaint in order to legally support all five counts contained therein.

The motion was heard at short calendar on January 23, 2017.

II

DISCUSSION

A

Standard of Review

The principles of law governing this court's review of the defendant's motion to strike are well established. " 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); see also Practice Book § 10-39(a)(1). " A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . In doing so, moreover, [the court] read[s] the allegations broadly . . . rather than narrowly." Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010). Finally, " [a] motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Rich v. Foye, 51 Conn.Supp. 11, 16, 976 A.2d 819 [44 Conn.L.Rptr. 184] (2007). " Sometimes legal questions require a factual setting within which to be decided. Just because we have a pleading device called a motion to strike it [should not] be regarded as a straightjacket preventing a proper testing of new legal theories." (Citation omitted; internal quotation marks omitted.) Prada v. Bova, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6014139-S (January 30, 2013, Adams, J.T.R.) [55 Conn.L.Rptr. 451, ].

B

Count One--Undue Influence

The defendant moves to strike the first count of the plaintiffs' complaint which purports to allege a cause of action for undue influence. The defendant argues that count one fails to state a claim for undue influence because the plaintiffs merely state legal conclusions and have not alleged facts sufficient to satisfy the elements of undue influence. " Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his [or her] free agency and constrain him [or her] to do something other than he [or she] would do under normal control . . . It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence . . . Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he [or she] had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his [or her] predisposition to make the transfer in question, the extent of the transfer in relation to his [or her] whole worth . . . failure to provide for all of his [or her] children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties." (Internal quotation marks omitted.) Tyler v. Tyler, 151 Conn.App. 98, 105-06, 93 A.3d 1179 (2014); see also Dinan v. Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006).

" Undue influence must be proven by clear and convincing evidence. Proof of a plan, design, or disposition to gain control and influence testamentary provisions generally may be used . . . The courts have held that direct and positive proof is not needed to prove undue influence. Circumstantial proof such as family relations, the testator's physical and mental condition and dependence upon others can be used. The contesting party has the burden of laying a foundation of such material facts as fairly and convincingly lead to a conclusion of undue influence. There must be proof not only of undue influence but also that its operative effect was to cause the testator to make a [w]ill which did not express...