DISTINCTIVE v. COPAR CONSTRUCTION, No. CV 05-4019423 (Oct. 24, 2006)

DISTINCTIVE HOME BUILDERS, LLC v. COPAR CONSTRUCTION, LLC ET AL.

2006 Ct. Sup. 19719
No. CV 05-4019423Connecticut Superior Court Judicial District of Hartford at Hartford
October 24, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON THIRD PARTY KEVIN MASON’S MOTIONS TO STRIKE DATED SEPTEMBER 8, 2006 (#153)
FREED, SAMUEL, JUDGE TRIAL REFEREE.

This motion to strike is the second of such motions filed by this defendant challenging the second count of the third party plaintiff Kenneth Rattet’s August 23, 2006 amended complaint which alleges a breach of fiduciary duty by Mason to Rattet.[1]

In this motion, Mason alleges that the additional allegations of such breach are still insufficient to support a breach of fiduciary duty.

Although Mason claims Judge Scholl’s decision is now the law of the case, he ignores the rule that a new pleading which adds substantive factual allegations, the law of the case doctrine is not applicable. Firgelski v. Hubbell, Inc., 2001 Conn.Super. Lexis 3597, 2005 Conn.Super. Lexis 854.b.

The following additional allegations were added in Rattet’s amended 2nd count of the complaint as noted by this court (see Paras. 12-18). Those allegations note that Mason as counsel for Copar prepared an assignment of the lien representing the defendant Copar Construction, prepared an opinion to Rattet that the mortgage interest being assigned would allow him (the holder) to take the property at any time through foreclosure. Mason farther induced Rattet to accept the mortgage by inducing Rattet to a belief that Mason could rely upon him. This inducement resulted in a fiduciary responsibility to Rattet. See Alaimo v. Royer, 188 Conn. 36, 41 (1982).

Alaimo and similar cases hold that in situations where there is a justifiable trust confided in one side and a resulting superiority and influence on the other, a fiduciary duty is a question of fact. Gouin v. Chaplin Lodge, #1440, 2006 CT Page 19720 Conn.Super. Lexis 1059 at 13 (Conn.Super.CT. 2006).

A fiduciary duty can also be premised on allegations of the defendant’s morality, honesty and loyalty. Salzano v. Gould,
2005 W.L. 1154 225 at 7, Conn.Super. April 18, 2005 (Wiese, J.).

Therefore, this court finds that the fiduciary duty as alleged survives the motion to strike but is subject to factual proof. The motion to strike is therefore denied.

[1] The first challenge by Mason was partially sustained by Judge Scholl on August 9, 2006. See Memorandum of Decision of August 9, 2006, striking the fiduciary claim and denying the striking of the negligence claim.

CT Page 19721