2011 Ct. Sup. 15201, 52 CLR 298
No. HHD CV 10 6015281 SConnecticut Superior Court Judicial District of Hartford at Hartford
July 7, 2011
MEMORANDUM ORDER RE MOTION TO STRIKE REVISED AMENDED COMPLAINT
MICHAEL R. SHELDON, J.
Upon considering all arguments and materials presented by counsel in support of and in opposition to the defendant’s Motion to Strike Revised Amended Complaint dated May 20, 2011, the Court hereby concludes, for the following reasons, that said Motion must be DENIED:
1. This case involves a dispute concerning the defendant’s refusal to return to the plaintiff, her former fiancé, a diamond engagement ring, after the defendant broke off their engagement and the plaintiff, through his attorney, made a formal demand for the return of the ring. According to the Plaintiff’s Revised Amended Complaint (“Complaint”), he gave the defendant the ring in the spring of 2006 on the occasion of their engagement, as a conditional gift contingent upon the defendant marrying him. The defendant has allegedly retained the ring ever since she received it, even after she broke off her engagement to the plaintiff in August 2006 and the plaintiff’s later demand that she return the ring to him in a letter to her from his counsel on April 29, 2009. On the basis of those allegations, the plaintiff makes related claims of conversion and replevin against the defendant.
2. The defendant now moves this Court to strike both counts of the Complaint on the ground that the plaintiff’s claims of conversion and replevin are barred by General Statutes § 52-577, the general three-year statute of limitations for tort claims.
3. Section 52-577 provides that: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” Under that statute, the defendant rightly claims that the plaintiff had at most three years from the date of her challenged conduct to commence an action sounding in tort on the basis of such conduct.
4. As both of the plaintiff’s claims in this action are based upon the CT Page 15202 defendant’s allegedly wrongful retention of the plaintiff’s engagement ring, the defendant argues that the case must have been commenced not more than three years after the date on which her allegedly wrongful detention of the ring began. Contending that that date was no later than the last day of August 2006, the month in which she is alleged to have broken off her engagement to the plaintiff, the defendant asserts that this action is barred by Section 52-577 because it was not commenced until more than four years later, on October 4, 2010.
5. The first problem with this argument, quite simply, is that it violates one of the most fundamental rules concerning motions to strike, more particularly that no such motion can be based upon extrinsic facts not alleged in or to be implied from the allegations of the challenged pleading. Here, although the August 2006 time frame of the breaking off the parties’ engagement is expressly pleaded in the Complaint, the October 4, 2010 date on which process in this action was served and the action thereby commenced for purposes of the statute of limitations, is not. For that reason alone, the instant challenge to the facial validity and sufficiency of the plaintiff’s claims, as pleaded, must be rejected, albeit obviously without prejudice to her right to present a substantively identical challenge to those claims on a motion for summary judgment.
6. The plaintiff’s response on the merits to the defendant’s present motion is that, although both of his challenged claims are indeed admittedly founded upon a tort, and thus are governed by the provisions of Section 52-577, the three-year limitations period prescribed by that statute did not begin to run when she broke off her engagement to him, but on the later date when he first demanded the return of the ring and she failed to comply with that demand. This is so, he argues, because the latter date is when her continuing retention of the ring, which originally was consensual, became a wrongful detention of his personal property, and thus an actionable tort. Since that demand and the defendant’s refusal to comply with it are not claimed to have occurred until April 29, 2009, less than three years before the date of this memorandum of decision, the plaintiff’s challenged claims are not barred on their face under Section 52-577.
7. The Court agrees with the parties that the plaintiff’s claims of conversion and replevin both sound in tort, and thus that they are governed by the three-year statute of limitations set forth in Section 52-577. It agrees, however, with the plaintiff that in this action, where the defendant’s initial possession of the plaintiff’s wrongfully detained goods is alleged to have been consensual, that such possession could not have become wrongful, or thus actionable in tort, until a demand for CT Page 15203 their return was duly made and refused.
8. “Conversion occurs when one, without authorization, assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner’s rights . . . [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 . . . In the latter class . . . there are three forms which conversion may take. Classification of a particular conversion into one of these three forms determines whether a demand is required for the establishment of a cause of action. The second class is where the possession, originally rightful, becomes wrongful by [1] reason thereafter of a wrongful detention, or [2] a wrongful use of the property, or [3] the exercise of an unauthorized dominion over the property . . . Demand is only required in the `detention’ scenario because, by definition, a rightful possession cannot become a `detention’ until a possessor fails to comply with a request to quit possession made by the rightful owner. [S]ince the possession is rightful there can be no conversion until the possessor refused to deliver up the property upon demand . . . The wrongful use or dominion which characterize the remaining forms of conversion after rightful possession, however, change the character of the possession itself. Therefore, these actions, when taken by a possessor, constitute sufficient demarcation of a substantial change in the status of the relationship of the parties to each other, and to the property in question.” (Citations omitted; internal quotation marks omitted.) Luciani v. Stop Shop Cos., 15 Conn.App. 407, 409-10, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988). Under the foregoing analysis, the defendant’s retention of the plaintiff’s ring did not become actionable as conversion until April 29, 2009, when the detention became wrongful by reason of the defendant’s refusal to comply with the plaintiff’s demand for its return. Because this case was instituted less than three years after that date, the plaintiff’s challenged conversion claim is not barred by Section 52-577.
9. A claim for replevin, like a claim for conversion, is likewise founded upon a tort. Mead v. Johnson, 54 Conn. 317, 319, 7 A. 718
(1887). To establish such a claim, the plaintiff must plead and prove that he is immediately entitled to recover possession of specific property which has been tortiously taken or detained from him. A mere claim of right to the property under a contract, without such a tortious taking or detention of it, “is not sufficient.” Id. It has thus been held that when a defendant from whom property is sought to be replevied initially came into possession of such property lawfully, without any larcenous, fraudulent or other tortious behavior on his part, it is CT Page 15204 incumbent upon the plaintiff to demand its return, and thereby transform its lawful possession into a tortious detention, before he may sue for its return in an action for replevin. See, e.g., Lynch v. Beecher, 38 Conn. 490, 493 (1871) (holding that an action for replevin against a bonafide purchaser for value of converted goods can only be brought “after demand, and a reasonable time to comply with the demand.”) Under this rule, the three-year limitations period for the plaintiff’s challenged replevin claim did not begin to run until at least April 29, 2009, when he first demanded, through his counsel, the return of his ring. Because this case was instituted less than three years after that date, the plaintiff’s challenged replevin claim is not barred by Section 52-577.
10. For all of the foregoing reasons, the Court hereby concludes that the defendant’s Motion to Strike Revised amended Complaint must be DENIED.
IT IS SO ORDERED this 7th day of July 2011.
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