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HARBORSIDE CONNECTICUT LTD. PARTNERSHIP v. WITTE—DISSENT

   BISHOP, J., dissenting. In assessing the viability of
a complaint, the focus of the court must be on the
allegations actually set forth in the complaint, and not
on unstated allegations that the court believes the com-
plaint should have made. In this task, the court is
instructed to ‘‘construe pleadings broadly and realisti-
cally’’; (internal quotation marks omitted) Stotler v.
Dept. of Transportation, 142 Conn. App. 826, 839, 70
A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d 527 (2014);
and to ‘‘consider the allegations set forth in the com-
plaint as well as those facts necessarily implied from
them, construing them in favor of the pleader.’’ Id. Fur-
ther, in addition to admitting all facts well pleaded, the
motion to dismiss ‘‘invokes any record that accompan-
ies the motion, including supporting affidavits that con-
tain undisputed facts.’’ (Internal quotation marks
omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242,
789 A.2d 1142 (2002). Not only must the court construe
the facts in favor of the pleader, but also ‘‘every pre-
sumption favoring jurisdiction should be indulged’’;
(internal quotation marks omitted) Amodio v. Amodio,
247 Conn. 724, 728, 724 A.2d 1084 (1999); and ‘‘[e]ssen-
tial allegations may not be supplied by conjecture or
remote implication . . . .’’ (Internal quotation marks
omitted.) Stotler v. Dept. of Transportation, supra, 839.
The way a plaintiff characterizes its claims, therefore,
should be given great deference by the court as it con-
strues a complaint for purposes of a motion to dismiss.
   Here, though, the trial court took a different tack
and, in my view, the majority on review, has followed
this errant path. Rather than assessing the complaint
as made, the court determined what the complaint prop-
erly should have alleged and what claim the plaintiff
should have made, and then dismissed the complaint,
finding that the Probate Court, not the Superior Court,
has jurisdiction over the claim not made. In following
this path, the trial court and the majority have paid
no more than lip service to the well-worn guidance
regarding the court’s role in construing a complaint.
  Specifically, the trial court construed the complaint
essentially as a collection action for services provided
to a decedent. The court stated: ‘‘[A] fair reading of the
complaint is that the plaintiff is seeking to recover for
a personal obligation of [the defendant’s husband, the
decedent], who is now deceased.’’ Having done so, the
court then concluded that such a claim should have
been brought against the decedent’s estate, if one exists,
and that, in any case, a claim of such nature as the
court divined is required, by statute, to be filed in the
Probate Court.1 In reaching this conclusion, the court
misread the complaint. It is also clear to me that the
court, contrary to the dictates of the law, did not con-
strue the facts in the light most favorable to the plaintiff
or indulge every presumption in favor of jurisdiction.
See Stotler v. Dept. of Transportation, supra, 142 Conn.
App. 832; Amodio v. Amodio, supra, 247 Conn. 728. By
any fair reading, the complaint is not a collection action
for health care services rendered. Rather, it is a claim
against the person who is alleged to have received pay-
ment for those services and who, the complaint alleges,
wrongfully retained those proceeds.
   In count one of the complaint, the plaintiff alleges
conversion and asserts that it provided health care ser-
vices to the decedent, who had health care insurance
to cover the cost of this care, and that the plaintiff
submitted a bill for its services to the insurer, which,
in turn, issued payment in the requested amount to the
defendant, the decedent’s widow. The complaint further
asserts that while the defendant initially issued a check
in the same amount to the plaintiff, the check was
returned for insufficient funds, and, thereafter, despite
the plaintiff’s request, the defendant has not issued
another check or forwarded the funds to the plaintiff.
The complaint further alleges that the money retained
by the defendant ‘‘belonged to or should have been pos-
sessed by the plaintiff.’’ (Emphasis added.) As a conse-
quence, count one of the complaint asserts that ‘‘[t]he
plaintiff has been damaged and the defendant is liable
for any conversion of funds.’’ In count two of the com-
plaint, the plaintiff alleges unjust enrichment and incor-
porates the factual basis from count one. The plaintiff
further alleges in count two that as a consequence of
the defendant’s actions, the defendant ‘‘received the
benefit of the proceeds’’ and was ‘‘unjustly enriched
in the amount of $34,200’’ and that the plaintiff ‘‘has
been harmed.’’
   Importantly, nowhere in the complaint has the plain-
tiff claimed that the defendant acted in concert with
or on behalf of the decedent; nowhere in the complaint
has the plaintiff alleged that the decedent or his repre-
sentative has failed to make payment for its services.
Instead, it appears that such claims, not made, were
imported into the complaint by the trial court, thus
converting it into a collection action over which, the
court concluded, it had no jurisdiction. Interpreting the
complaint broadly and realistically, as is required, the
crux of the plaintiff’s argument is that it was entitled
to $34,200 that the defendant has wrongfully retained
and withheld from the plaintiff. In coming to a contrary
interpretation, the trial court overstepped the reason-
able bounds of the construction of pleadings. As this
court has previously stated, in this task, ‘‘[t]he com-
plaint must be read in its entirety in such a way as to
give effect to the pleadings with reference to the general
theory upon which it proceeded, and to substantial jus-
tice between the parties. . . . Our reading of pleadings
in a manner that advances substantial justice means that
a pleading must be construed reasonably, to contain
all that it fairly means, but carries with it the related
proposition that it must not be contorted in such a way
so as to strain the bounds of rational comprehension.
. . .’’ (Internal quotation marks omitted.) Stotler v.
Dept. of Transportation, supra, 142 Conn. App. 839. In
the case at hand, the court, and the majority on review,
took the opposite tack by construing the complaint in
a manner that contorted its clear import and that results
in a substantial injustice to the plaintiff.2
   To be sure, there may be issues whether the com-
plaint adequately sets forth a cause of action for conver-
sion or for unjust enrichment, but the question of the
legal sufficiency of the complaint is not before the court.
The defendant’s motion to dismiss is premised on the
court’s lack of subject matter jurisdiction and not the
adequacy of the allegations and claims set forth in the
complaint. If the defendant perceives that the complaint
does not adequately set forth allegations that, if proven,
constitute conversion and unjust enrichment, or either
of them, the defendant may seek to attack the com-
plaint’s claimed insufficiency through the vehicle of a
motion to strike. Practice Book § 10-39 (a). If such a
motion were to be granted, the plaintiff would then
have the option of attempting to restate its cause with
appropriate allegations. Practice Book § 10-44. In the
case at hand, however, the plaintiff’s cause has been
ousted from court, leaving the plaintiff with no reason-
able recourse against the defendant with the conse-
quence that the defendant may be in possession of funds
that rightly belong to the plaintiff and which she may
now retain against law and justice.
  Since, unlike my colleagues in the majority, I believe
the trial court erroneously dismissed the complaint, I
would reverse the judgment of dismissal and remand
the matter to the trial court with direction that the
motion to dismiss be denied and for further proceedings
as appropriate.
      Accordingly, I respectfully dissent.3
  1
    Indeed, in a long footnote, the majority sets forth the basic jurisprudence
that claims against the estates must be filed in Probate Court. See footnote
6 of the majority opinion. While I agree, in the main, with this proposition,
it is wide of the mark, as the action we review is not a claim against a
decedent or an estate and does not involve the settlement of an estate,
which, in this case, does not even exist. Rather, quite simply, it is a claim
against a third party, alleging that the third party has received and wrongfully
retains funds that belong to the plaintiff. Thus, because this is not a claim
against an estate, it does not properly lie within the Probate Court’s jurisdic-
tion, and all the language in footnote 6 of the majority regarding the jurisdic-
tion of the Probate Court is not germane to the issue at hand. The balance
of footnote 6 refers to a 1915 Connecticut Supreme Court case, Slattery v.
Woodin, 90 Conn. 48, 96 A. 178 (1915), in which the issue was whether a
party who appeals from a decision of the Probate Court is constitutionally
entitled to a trial by jury in the Superior Court that is now sitting as a
Probate Court on appeal. The court answers that question in the negative,
distinguishing probate matters from civil actions to which the constitutional
right attaches. Finally, footnote 6 contains an unsupported implication that
the complaint is somehow a ‘‘creative pleading,’’ the utilization of which
the majority believes violates an unstated legislative policy. If, in a health
care provider’s action against a person who possesses and retains funds
that are allegedly the property of the plaintiff, such a claim somehow violates
a policy against ‘‘creative pleading,’’ if such a policy even exists, I invite the
majority to inform the reader of the nature of the policy thus violated and
to provide support for such an assertion.
   2
     The import of the trial court’s decision is that in order for the plaintiff
to seek the funds to which it claims an entitlement, the plaintiff must bring
an action against the estate even though there is no claim that the estate
is in possession of the funds. Because the record reflects that no estate
exists, this task would require the plaintiff to first seek the creation of an
estate in the Probate Court and then to bring a claim against the estate in
the Probate Court, regardless of whether it is solvent, with the apparent
notion that the estate would then seek reimbursement from the defendant,
who presumably holds funds that properly belong to the estate. Neither
justice nor the dictates of proper pleading construction suggest the necessity
of such a fool’s errand.
   3
     Because I would remand the matter to the trial court with direction to
deny the motion to dismiss, there is no need for me to respond to the
plaintiff’s second claim on appeal that the trial court declined to afford the
plaintiff an evidentiary hearing on the defendant’s motion to dismiss.
