Bentley, Mosher, Babson & Lambert, PC v. People's Bank

Bentley, Mosher, Babson & Lambert, P.C. et al. v. People's Bank
X08CV01197279

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD-NORWALK, AT STAMFORD
COMPLEX LITIGATION DOCKET

2004 Conn. Super. LEXIS 206

January 29, 2004, Decided
January 29, 2004, Filed

MEMORANDUM OF DECISION RE MOTION TO DISMISS (114.00)

In this action the plaintiff law firm, Bentley, Mosher, Babson & Lambert (BMBL) and one of its partners, Montgomery, make the following allegations in their complaint against the defendant, People's Bank (People's). The plaintiffs purchased and issued certain cashier's checks drawn on People's and made payable to one Nancy Lee Chang. The checks were delivered to one Margaret L. Lee, described as Chang's sister. Lee forged Chang's endorsements, cashed the checks and People's honored the forged endorsements. The plaintiffs claim damages based on theories of conversion, breach of contract, negligence and a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et seq. (CUTPA).

People's has moved to dismiss the complaint asserting that the plaintiffs lack standing to prosecute the action, and therefore, the court lacks subject matter jurisdiction over the action. The motion to dismiss was initially made while this case was pending in the judicial district of Fairfield. While the motion was sub judice, the case was transferred to the undersigned in the Complex Litigation Docket at the judicial district of Stamford-Norwalk at Stamford. See Docket Entries 151.00, 154.10. Following the expiration of the 120-day period for deciding a fully submitted short calendar motion, People's made a timely motion for reassignment of the motion. Practice Book § 11-19. That motion was granted and the matter referred to this court. On September 12, 2003, the motion to dismiss was denied on the grounds that the "facts are disputed as to ownership of attorneys escrow account." See Docket Entry 114.00. This court vacated that decision because the motion for reassignment had been filed prior to the denial of the motion to dismiss.

People's has renewed its motion to dismiss. A motion to dismiss is the appropriate means to raise the issue of standing. A plaintiff must have standing to assert the claims in a complaint, and without standing, the court has no jurisdiction over the subject matter of the case. Ganim v. Smith & Wesson Corp., 258 Conn. 313, 346, 780 A.2d 98 (2001). The plaintiff has the burden of showing it has standing and that there is subject matter jurisdiction. Sadloski v. Manchester, 235 Conn. 637, 648-49, 668 A.2d 1314 (1995). When issues of fact must be determined on a motion to dismiss, due process requires a trial-like hearing where evidence can be presented and there is an ability to cross-examine witnesses. Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003). The court provided the parties with an opportunity to present witnesses for examination and cross-examination, but the parties agreed to rely on affidavits, agreed-upon exhibits, and oral argument.

Facts

The following facts drawn from affidavits are agreed upon by the parties. In an affidavit the plaintiff Montgomery stated he was a partner of BMBL and in 1998 represented Eastern Savings Bank, a Maryland bank, in a mortgage loan closing on property in Greenwich, Connecticut owned by Chang. At Montgomery's direction Eastern Savings Bank wired $946,682.53 into account number 0264093687 at People's Bank. On October 7, 1998 Montgomery signed a check drawn on that account in the amount of $780,290.81 payable to "cash." Montgomery then arranged to have the check cashed at People's and purchased 10 separate cashier's checks from People's, each payable to Chang in the amount of $78,029.90. He also signed a check, No. 9666, from the same account made payable to Chang in the amount of $68,700.00. All eleven checks were delivered by Montgomery to Margaret Lee, who claimed to be Chang's agent by virtue of a power of attorney. Montgomery Affidavit PP4, 6, 7, 17-19, 22, 23. As noted, Lee forged Chang's endorsement and absconded with the money.

An affidavit of Kristina Lindsted, a manager of the Pickwick Plaza, Greenwich branch of People's, states that account number 26-4093687 n1 is in the name of "Tuthill Finance Attorney's Escrow Account" and that the checks used with, and drawn on, that account are in the name of Tuthill Finance Wainco Funding Attorney's Escrow Account. The affidavit states that the tax identification number shown on the account card, 06-1850628, is the number of Tuthill Finance, a Connecticut limited partnership, and separate from BMBL and Montgomery, each of whom have different tax identification numbers. Wainco Funding is a limited liability company registered to do business in Connecticut. Lindsted & Affidavit, PP5-9, 12-14.

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n1 While the parties refer to the account by different numerical formats, they agree it is the same account.

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Also before the court as an exhibit is the signature card for the account showing four signatures, that of Montgomery and three other numbers of BMBL. The mailing address of the account is 20 Dayton Avenue, P.O. Box 788, Greenwich, CT, 06836-0788, which apparently was the address of BMBL at the time the account was established.

Discussion

People's contends that the plaintiffs lack standing to pursue their claims of conversion, contract breach, negligence or CUTPA violation because they were not the owners of account No. 26-4093687. People's argues that Tuthill Finance or Wainco were the owners of the account as set forth on the signature card and checks, and therefore, the two checks paid from the account were not plaintiffs' check and the funds lost were not funds of the plaintiffs.

Based on the facts presented thus far, the court disagrees and determines that the account belonged to the plaintiffs thereby giving them the requisite standing to pursue their claim. The parties have not cited much Connecticut law on ownership of bank accounts; however, the parties appear to agree that ownership is in large part controlled by the bank documentation. See generally Grass v. Grass, 47 Conn.App. 657, 706 A.2d 1369 (1998); McAuley v. Southington Savings Bank, 69 Conn.App. 813, 796 A.2d 1250 (2002). First and foremost the account was in the name of "Tuthill Finance Attorney's Escrow Account" on the bank's signature card. The use of the possessive on the signature card strongly indicates that the account was the attorney's, not Tuthill's. Montgomery's affidavit states that Account No. 0264093687 was established in 1995 and served as BMBL's escrow account into 1999 for use in mortgage closings by BMBL's clients, primarily Tuthill Finance and Wainco Funding, and a few others. That is exactly what the account was used for in connection with the events giving rise to this lawsuit. The only authorized signatures on the account were partners of BMBL. The checks in question were signed by Montgomery. There is no evidence that the funds disbursed to Chang from the account had any connection to Tuthill or Wainco.

People's points to the tax identification number, apparently that of Tuthill Finance, on the signature card as evidence that plaintiffs are not the account holder. In addition, there are two somewhat contradictory responses to interrogatories. On May 21, 2002 the plaintiffs stated that BMBL was "the undisclosed beneficial owner of the account." On June 28, 2002 plaintiffs, in response to a second set of interrogatories, stated BMBL was the "100% owner of the account at all times."

While the tax identification number is evidence in support of People's position, the court believes that on the present record the more persuasive evidence points to BMBL being the account holder of account number 0264093687 and using it, as it's title suggests, as an escrow account for mortgage closings. Therefore, the motion to dismiss on the ground that plaintiffs are not the owners of the account is denied.

People's has also argued that even the owner of the account cannot assert a claim for conversion when it is the issuer of a check from its account or the purchaser of a cashier's check. These arguments do not involve standing or subject matter jurisdiction and are not appropriately made in a motion to dismiss.

TAGGART D. ADAMS
SUPERIOR COURT JUDGE