DocketNumber: No. CV 95-0126366
Citation Numbers: 1996 Conn. Super. Ct. 5123-AAAAA
Judges: PECK, J.
Filed Date: 7/22/1996
Status: Non-Precedential
Modified Date: 4/17/2021
The complaint is set forth in thirteen counts alleging, inter alia, breach of fiduciary duty, constructive fraud, actual fraud, breach of contract, breach of the covenant of good faith and fair dealing and several statutory violations including theft and violation of the federal and state racketeering laws. On January 30, 1996, the defendants, Idaet Bushka, Myfit Bushka and Margarita Bushka filed a motion to strike addressed to the fourth, eighth, ninth and thirteenth counts and subparagraphs A, B, C, D, H, I, J, K and M of the prayer for relief of the complaint dated January 17, 1996. A memorandum of law accompanied the motion. The motion appeared on the short calendar for oral argument on June 19, 1996. Despite several previous requests for extensions of time to file an opposition memorandum as well as the mandate of § 155 of the Practice Book, the plaintiff failed to file a memorandum of law by that date.1
At the time of oral argument, the plaintiff agreed to amend the prayer for relief in accordance with the motion to strike the aforementioned subparagraphs. The court therefore limits its consideration to the fourth, eighth, ninth and thirteenth counts of the complaint which the defendants challenge on the grounds of legal insufficiency.
One of the primary purposes of a motion to strike is to challenge the legal sufficiency of one or more counts of a complaint "to state a claim upon which relief may be granted." Practice Book § 152. In ruling on a motion to strike, the court is bound to accept facts alleged in the complaint which must be viewed in the light most favorable to the nonmoving party.Novametrix Medical Systems v. BOC Group, Inc.,
FOURTH COUNT
The fourth count of the complaint incorporates the first ninety-seven (97) paragraphs which contain claims of breach of fiduciary duty, constructive fraud and actual fraud, set forth in the first three counts, respectively. This count adds no new factual allegations and essentially asserts that based on the defendants' conduct as set forth in the incorporated allegations, the plaintiff is entitled to a constructive trust.2
The constructive trust is a remedial rather than substantive device. R. Maudsley, Hanbury's Modern Equity (9th Ed. 1969) p. 222. It is imposed by equity to prevent unjust enrichment. Gulack v. Gulack,
EIGHTH COUNT
The eighth count of the complaint realleges the first one hundred and sixteen (116) paragraphs of the complaint and seeks, pursuant to §
It is well-settled that a receivership is a "remedy" or "temporary status or condition" which is equitable in nature. The object of a receivership is to secure or preserve the property or assets in controversy pending the outcome of CT Page 5123-DDDDD litigation. The procedure for the appointment of a receiver was outlined by former Chief Justice Swift and has been supplemented by our rules of practice. 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) pp. 159-60; Practice Book §§ 504-510; See also Hartford Federal Savings Loan Assn. v.Tucker,
NINTH COUNT
The ninth count of the complaint realleges the first one hundred and twenty (120) paragraphs of the complaint and asserts what it characterizes as "derivative claims" on behalf of Bushka Lumber Company, Inc., pursuant to §
The defendants move to strike this count on the following grounds:
(1) The corporation, Bushka Lumber Company, Inc. is neither a plaintiff nor a defendant in this action;
(2) The plaintiff does not fairly and adequately represent the interests of the shareholders in enforcing the rights of the corporation;
(3) No demand and refusal has been made on the corporation or alleged in the complaint, as required by law; and
(4) The complaint fails to state facts showing injury to CT Page 5123-EEEEE the corporation.
A shareholder derivative action typically is brought by a shareholder to require the corporation to enforce a right which the management is failing to assert. General Statutes §
Since the plaintiff has not alleged that the corporation failed to assert a right which may properly have been asserted by it, he fails to meet the threshold requirement for a shareholder's derivative action under the statute. General Statutes §
THIRTEENTH COUNT
The thirteenth count of the complaint is brought pursuant to §
General Statutes §
(a) "Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to intentionally aid, solicit, coerce or intimidate another person to commit any crime which, at the time of its commission, was a felony chargeable by indictment or information under the following provisions of the general statutes then applicable: (1) Sections
53-278a to53-278f , inclusive, relating to gambling activity; (2) chapter 949a, relating to extortionate credit transactions; (3) chapter 952, part IV, relating to homicide; (4) chapter 952, part V, relating to assault, except assault with a motor vehicle as defined in section53a-60d ; (5) sections53a-85 to53a-88 , inclusive, relating to prostitution; (6) chapter 952, part VII, relating to kidnapping; (7) chapter 952, part VIII, relating to burglary, arson and related offenses; (8) chapter 952, part IX, relating to larceny, robbery and related offenses; (9) chapter 952, part X, relating to forgery and related offenses; (10) chapter 952, part XI, relating to bribery and related offenses; (11) chapter 952, part XX, relating to obscenity and related offenses; (12) chapter 952, part XIX, relating to coercion; (13) sections53-202 ,53-206 ,53a-211 and53a-212 , relating to weapons and firearms; (14) section53-80a , relating to the manufacture of bombs; (15) sections36b-2 to36b-33 , inclusive, relating to securities; (16) sections21a-277 ,21a-278 and21a-279 , relating to drugs; (17) section22a-131a , relating to hazardous waste; or (18) chapter 952, part XXIII, relating to money laundering.(e) "Pattern of racketeering activity" means engaging in at least two incidents of racketeering activity that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents, provided the latter or CT Page 5123-GGGGG last of such incidents occurred after October 1, 1982, and within five years after a prior incident of racketeering activity.
Based on these statutory provisions, in order to sustain a claim based on the Connecticut Corrupt Organizations and Racketeering Activity Act ("CORA"), §
Although the plaintiff alleges that the defendants' conduct, as set forth in the previous paragraphs of the complaint, amounts to "racketeering activity" as that term is defined by §
/s/ Peck, J. PECK