HOWARD F. ZOARSKI, JUDGE TRIAL REFEREE.
The defendant moves to strike counts six, seven and eight of the plaintiff's complaint, in which the plaintiff purports to allege claims for an accounting, breach of fiduciary duty, and negligent infliction of emotional distress, respectively. The defendant asserts that the plaintiff fails to allege the elements necessary for an accounting in count six, and the plaintiff fails to allege sufficient facts to sustain a cause of action with respect to courts seven and eight. The defendant additionally moves to strike the plaintiff's claims for punitive damages and attorneys fees in his prayer for relief on the ground that the complaint does not allege a basis for such awards. The plaintiff objects to the motion as it pertains to counts six and seven.
In count six, the plaintiff alleges that the defendant had a fiduciary duty to account for partnership funds and benefits, and that the defendant mismanaged such funds during the partnership's existence. The defendant argues that count six is legally insufficient to state a cause of action because the complaint is "wholly devoid of any allegation of a demand [by the plaintiff] or a refusal [by the defendant] to provide an accounting," as is required in most, but not all, instances. "To support an action of accounting, one of several conditions must exist. There must be a fiduciary relationship, or the existence of a mutual and/or complicated accounts, or a need of discovery, or some other special ground of equitable jurisdiction such as fraud." (Emphasis in original; internal quotation marks omitted.) Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 CT Page 13702 (2004). "The basis for a right to an accounting is supported by an allegation that a fiduciary relationship exists . . . The fiduciary relationship is in and of itself sufficient to form the basis for the relief requested." (Citation omitted.) Zuch v. Connecticut Bank Trust Company, Inc., 5 Conn.App. 457, 460, 500 A.2d 565 (1985).
"[The Supreme Court] has recognized that, generally, partners are bound in a fiduciary relationship and act as trustees toward each other and toward the partnership." (Internal quotation marks omitted.) Oakhill Associates v. D'Amato, 228 Conn. 723, 727, 638 A.2d 31 (1994). See also Konover Development Corp. v. Zeller, 228 Conn. 206, 218, 635 A.2d 798 (1994). "Each partner owes to his associates the duty of rendering true accounts and full information about everything which affects the partnership. If he fails to perform this duty, his associates are entitled to maintain a suit for an accounting against him . . . Any partner may bring a petition in equity for the settlement of partnership affairs." (Citations omitted.) Weidlich v. Weidlich, 147 Conn. 160, 164, 157 A.2d 910 (1960).
As noted by the defendant, "[t]he general rule is that a prior demand by the plaintiff for an accounting and a refusal by the defendant to account is a prerequisite to the commencement of an action for an accounting . . . The plaintiff must allege such a demand in his pleadings, with failure to do so resulting in dismissal of the action." (Citation omitted.) Zuch v. Connecticut Bank Trust Company, Inc., supra, 5 Conn.App. 461. Although count six lacks any allegation that the plaintiff demanded and the defendant refused to provide an accounting, the plaintiff does allege that as co-partners both parties were bound in a fiduciary relationship, and further that the defendant mismanaged funds during the operation of the partnership. "If the plaintiff is able to prove the allegations made in the complaint, the necessity for an accounting might be required to afford the plaintiff complete relief. This is not a case which is based solely upon the contractual duty to account or solely upon the existence of a fiduciary duty to account and, in view of the allegations of the complaint, it is not necessary for CT Page 13703 the [plaintiff] to allege that [he has] requested an accounting which has been refused. New Haven Sand Blast Co. v. Dreisbach, 102 Conn. 169, 190 (1925)." Merson v. Berkoff, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 92 0122617, (July 21, 1993, Rush, J.) ( 9 Conn. L. Rptr. 451). Accordingly, the defendant's motion to strike is denied as to count six.
In count seven, the plaintiff alleges that the defendant breached his fiduciary duty to the partnership. The defendant argues that count seven cannot support a claim for breach of fiduciary duty because the plaintiff fails to allege any facts necessary to establish such a cause of action. In opposition, the plaintiff argues that "[i]t is unnecessary to allege any promise or duty which the law implies from the facts pleaded" in accordance with Practice Book § 10-4.
In count seven, the plaintiff merely alleges that the defendant owed a duty of loyalty to the partnership, that the defendant breached that duty, and as a result, the plaintiff suffered harm. The plaintiff's claim of breach of a fiduciary duty is presumably predicated on his allegation in count six that the defendant mismanaged partnership funds, however, the plaintiff fails to incorporate the same into count seven. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The defendant's motion to strike is granted as to count seven on the ground that the plaintiff fails to allege sufficient facts necessary to establish a breach of fiduciary duty claim.
In count eight, the plaintiff seeks recovery for the emotional distress he allegedly suffered as a result of the defendant's alleged breach of the duties the defendant owed to the plaintiff as a partner during the operation of the partnership. According to the defendant, this count is devoid of any factual allegations that would support this cause of action.
"In order to recover on a claim of negligent CT Page 13704 infliction of emotional distress, the plaintiff must prove that the defendant should have realized that [his] conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179, 197, 851 A.2d 1154 (2004). In the present case, the plaintiff's complaint lacks any allegation that the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm to the plaintiff. Therefore, the defendant's motion to strike is granted as to count eight.
"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). A motion to strike a prayer for relief is properly granted where, "assuming the truth of the allegations in the complaint, the relief sought could not be legally awarded to the plaintiff." (Internal quotation marks omitted.) Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 298 n. 4, 478 A.2d 257 (1984).
"To furnish a basis for recovery of punitive damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004). "A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act." (Citation omitted; internal quotation marks omitted.) Nolan v. Borkowski, 206 Conn. 495, 501, 538 A.2d 1031 (1988). "To support an award of punitive damages, the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation CT Page 13705 of those rights." (Internal quotation marks omitted.) Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 778, 717 A.2d 150 (1998). "Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003).
In the present case the plaintiff's complaint fails to allege any facts demonstrating that the defendant recklessly or wantonly disregarded the plaintiff's rights. Absent such factual allegations, the plaintiff cannot recover punitive damages.
"The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . Connecticut adheres to the American rule." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). In the present case, the plaintiff's complaint is completely barren of any allegations that he is statutorily or contractually entitled to attorneys fees, therefore the relief sought cannot be legally awarded to the plaintiff.
Based on the foregoing, the defendant's motion to strike is granted as to paragraphs two and five of the plaintiff's prayer for relief, in which he seeks punitive damages and attorneys fees, respectively.
By the Court,
Howard F. Zoarski
Judge Trial Referee CT Page 13706