Opinion
No. FST CV 05-5000502 S
November 25, 2009
MEMORANDUM OF DECISION
This lawsuit is a multi-count cause of action between two cohabiting adults who have terminated their romantic relationship and are seeking court resolution of their continuing financial differences. A special master's pre-trial was not able to resolve the matter. A court pre-trial supervised by a Superior Court Judge concluded unsuccessfully after three days of intensive efforts to resolve the matter. The trial was promised to be five days in length. The first day of trial was March 31, 2009. It concluded after twenty-one trial days on August 17, 2009. The litigation between these parties commenced with a return date of December 20, 2005 and the judicial relationship between these parties was longer than their romantic relationship.
It has been stated that the national divorce rate is close to half of all marriages. A study performed under the auspices of Rutgers, The State University of New Jersey, found: "The breakup rate of cohabitors is far higher than for married partners. Within two years about half of all cohabiting relationships end either in marriage or a parting of the ways, and after five years only about 10% of couples are still cohabiting. In comparison, only about 45% of first marriages today are expected to break up over the course of a lifetime." The National Marriage Project. A Comprehensive Review of Recent Research, David Popenoe and Barbara Dafoe Whitehead. The number of divorces reported in Connecticut has increased substantially in the last few years. www.cdc.gov/nchs/data. Although there are no statistics reporting the increase of childless cohabitors breaking up and then seeking access to courts for resolution of their financial matters, this court has noted an increase in these types of lawsuits being filed in the Stamford Superior Court.
The plaintiff and the defendant join a line of litigants who have filed multiple lawsuits in an attempt to resolve their financial differences as cohabitors. These two parties have been involved in three separate lawsuits. (1) Lisa Bratt v. Jerrold S. Klein and Citibank Federal Savings Bank, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FSTCV 05-4004611 S (Partition action concerning the property at 40 France Street, Norwalk, Connecticut, in multiple counts, special defenses and other claims resulting in a Stipulation and withdrawal of the partition action on October 31, 2006, which Stipulation was a contested issue in this trial). (2) Citibank F.S.B. v. Jerrold Klein, Lisa Bratt and Citibank Federal Savings Bank, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 05-4007100 S (Foreclosure action commenced by a mortgage holder on 40 France Street, Norwalk, Connecticut, the former joint residence of both the parties, returnable November 8, 2005 resulting in judgment of foreclosure by sale on January 9, 2006 and a withdrawal of the foreclosure action as a result of a bona fide sale of 40 France Street, Norwalk, Connecticut to a third party on April 17, 2006). (3) Jerrold S. Klein v. Lisa Bratt, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 05-5000502 S (This is the instant matter).
There was also one unpublished decision on a Motion to Strike in the partition action which raised multiple issues. The plaintiff, Lisa Bratt, brought an action returnable May 10, 2005, against the defendant Jerrold S. Klein, seeking a partition of the real property at 40 France Street, Norwalk, Connecticut that she and the defendant purchased in December 2002 and owned as joint tenants. Since the property contained a single-family dwelling and the property was not physically divisible, the plaintiff sought a partition by sale and the division of the proceeds between the parties according to their respective rights in the real estate pursuant to Gen. Stat. § 52-500. The defendant in the partition action, Jerrold S. Klein, asserted three special defenses to the plaintiff's partition action; (1) A combined special defense of unclean hands, laches and equitable estoppel; (2) The plaintiff failed to contribute to the maintenance and the upkeep of the property in accordance with the parties' agreement; and (3) The plaintiff's intentional misconduct interfered with the defendant's property rights, diminished its value, resulted in waste and damaged the defendant's credit standing. In addition Jerrold S. Klein filed seven counterclaims for an accounting, contribution, unjust enrichment, quantum merit, conversion, statutory theft and constructive fraud. The Motion to Strike filed in the partition action addressed all three special defenses and all the seven counterclaims. The trial court, in a lengthy decision, granted the plaintiff's Motion to Strike addressed to the three stated special defenses since they were irrelevant to the plaintiff's right to partition. The trial court also struck the fifth, sixth and seventh counterclaims because they were improperly joined in the partition action. The Motion to Strike the first, second, third and fourth counterclaims alleging respectively an accounting, contribution, unjust enrichment, and quantum merit were denied. Bratt v. Klein, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 05-4004611 S, (September 20, 2005, Tobin, R., J.T.R). As stated, the partition action was withdrawn during the pendency of this instant lawsuit due to the October 31, 2006 stipulation. Virtually all claims raised in the partition action are found in the instant action. Stipulation and Order in this action (#113.00) and in the partition action (#134.00, #134.55).
The litigation between these parties commenced with a return date of May 10, 2005. The release of this Memorandum of Decision on November 25, 2009 means that this case has been pending in the Superior Court for over four and one-half years; this is before any appellate proceedings or enforcement proceedings to collect any judgment issued. The evidence discloses that the parties' romantic relationship was less than four years.
On February 9, 1993 Alan H. Maris, D.D.S. filed a lawsuit against Pamela Jo McGrath, his former girlfriend, for money damages on the basis of breach of contract, unjust enrichment, return of personal and constructive trust alleging that monies had been expended during their relationship and had to be repaid after their relationship terminated. The defendant filed an answer, multiple special defenses and counterclaims including unjust enrichment, breach of a confidential relationship, breach of contract, trespass, theft, and detrimental reliance. Prior to trial the pleadings were amended numerous times by both parties. The matter was tried to the court and a Memorandum of Decision was rendered by the trial judge on August 18, 1997, some four and one-half years after the return date. A post-decision Motion for Counsel Fees was filed by the defendant who was successful at trial and attorney fees were ordered to be paid to the defendant. The plaintiff appealed to the Appellate Court which affirmed the trial court's judgment stating "This was purely recreational litigation brought by a plaintiff against a woman with whom he had a long term relationship." Maris v. McGrath, 58 Conn.App. 183, 191 (2000). The published trial court decision in the case in chief is Maris v. McGrath, Superior Court, judicial district of New London at New London, Docket Number 525692 (August 18, 1997, Hurley, J.). The published opinion on post-trial attorneys fees is Maris v. McGrath, Superior Court, judicial district of New London at New London, Docket Number 525692 (January 27, 1998, Hurley, J.T.R.). From the adverse Appellate Court decision, the plaintiff petitioned for certification to the Supreme Court, which was granted limited to the issue of attorney fees. Maris v. McGrath, 254 Conn. 919 (2000). The judgment of the Appellate Court was affirmed. Maris v. McGrath, 269 Conn. 834, 836 (2004). These decisions did not end the litigation. Pamela Jo McGrath, now known as Pamela J. Mauldin, filed a judgment lien on the plaintiff's real property in Clinton and Waterford, Connecticut in the amount of $15,218.86 pertaining to the 1998 attorneys fees award. In 2004 Dr. Maris tendered the amount of $15,218.86 without any interest and requested a satisfaction of judgment. She would not release the judgment lien. Dr. Maris then commenced litigation to release the judgment lien. Maris v. Mauldin, Superior Court, judicial district of Middlesex at Middletown, Docket Number MMX CV 05-4001822 S. After a court trial a Memorandum of Decision was filed denying his relief on May 17, 2005. Thereafter, Dr. Maris paid the full amount of the $15,218.86 together with interest and received a satisfaction of judgment and release of the judgment liens on the two parcels of real property. The trial court's May 17, 2005 decision stated:
"The court finds that the Petition has no legal basis and was made solely for the purpose of continuing the plaintiff's harassment of the defendant and to delay full payment to the defendant on the original judgment." "Therefore, the court awards the defendant the amount of $5,000 in attorneys fees. Interest will run on that amount at the rate of 10% per annum from the date hereof." Maris v. Mauldin, Superior Court, judicial district of Middlesex at Middletown, Docket Number MMX CV 05-4001822 S (May 17, 2005, Aurigemma, J.). This ended over twelve years of litigation for those parties. What the future holds in the instant case after the release of this Memorandum of Decision is beyond the authority of this court.
The court finds the following facts and legal conclusions.
The plaintiff commenced this action returnable on December 20, 2005, seven months after Lisa Bratt commenced the partition action, five months after Jerrold S. Klein filed an answer, special defenses and counterclaims in that partition action and three months after Hon. Richard J. Tobin, J.T.R. ruled on the Motion to Strike addressed to the three special defenses and the seven counts of the counterclaim filed by Jerold S. Klein in the CT Page 96 Bratt v. Klein partition action. The operative complaint in the instant action is the plaintiff's amended complaint dated March 11, 2009 (#122.00) in eight counts alleging: (1) accounting in 35 paragraphs; (2) breach of contract in 37 paragraphs; (3) unjust enrichment in 40 paragraphs; (4) quantum meruit in 42 paragraphs; (5) contribution in 43 paragraphs; (6) constructive fraud in 45 paragraphs; (7) promissory fraud in 48 paragraphs and (8) constructive trust in 51 paragraphs. The plaintiff's previous complaints contained counts of conversion, statutory theft, intentional infliction of emotional distress and CUTPA.
Jerrold S. Klein claimed money damages, common-law punitive damages, imposition of a constructive trust, a permanent injunction against future harm, the appointment of a receiver of rents for the real property at Delavan Avenue, Greenwich, Connecticut and prejudgment interest. The operative complaint was the third amendment to the original complaint filed by the plaintiff. The answer filed by the defendant was a pleading target that required the defendant to replead six times. Defendant filed six answers, special defenses and counterclaims; four of them during trial. The operative answer is dated July 31, 2009 (#135.00). The answer contains ten special defenses; (1) If a contract is found to have existed, the parties mutually rescinded it. (2) If a contract is found to have existed, it was rescinded by the defendant's actions and communications. (3) If a contract is found to have existed, the contract was orally modified. (4) If the contract is found to have existed, the contract fails for lack of consideration. (5) If a contract is found to have existed, the contract was entered into under duress and manipulation not of her own free will and volition. (6) If a contract is found to have existed, it is against public policy and illegal since it was entered into under duress and manipulation. (7) Any claims of the plaintiff are made in bad faith and for the purpose of harassment and annoyance. (8) The plaintiff has failed to mitigate his losses, if any. (9) The defendant has made payments and/or is entitled to credits regarding certain stated expenses that are listed in the Ninth Special Defense. (10) The defendant has the right of statutory setoff pursuant to Gen. Stat. § 52-139(a) against the claims of the plaintiff. A one-count counterclaim was filed alleging that: plaintiff owes defendant money and financial obligations from the rental of apartment 15J in New York City, from the rental of apartment 16M in New York City, for costs paid by the defendant regarding the jointly owned property 40 France Street, Norwalk, Connecticut, for the expense of maintaining and insuring a 2003 Saab automobile, for the use of 1993 Honda Civic automobile and for damages to certain itemized personal property. Finally the defendant alleged in the last paragraph of the counterclaim: "Due to the plaintiff's failure to share expenses with the defendant as outlined above and for the plaintiff maintaining possession or control of the defendant's personal property, the defendant has suffered damages." The claims for relief in the counterclaim seeks money damages and interest. It is noted that the Tenth Special Defense contains the right of setoff. The parties agree that the issue of setoff is properly raised by the defendant's Tenth Special Defense. The issue of setoff will be dealt with by this court in its Memorandum of Decision even though is raised as a special defense and not pled separately. P.B. §§ 10-50, 10-54, Gen. Stat. § 52-139; Savings Bank of New London v. Santaniello, 130 Conn. 206, 210-11 (1943).
The plaintiff filed a Reply to these ten special defenses, an answer to the counterclaim and five special defenses to the defendant's counterclaim (#136.00). The plaintiff essentially denied each of the ten special defenses, although his Reply did contain some factual admissions. The plaintiff's five special defenses are: (1) The defendant's alleged damages were caused by her own actions or the actions of third persons other than the plaintiff. (2) The plaintiff is the owner or co-owner of certain of the allegedly converted property. (3) Defendant abandoned certain of the allegedly converted personal property. (4) The defendant failed to properly mitigate her alleged damages, and (5) The defendant's counterclaims are barred by the doctrine of laches and statute of limitations as set forth in Gen. Stat. §§ 52-576 and 52-577. To these five special defenses, the defendant filed a Reply dated August 7, 2009 (#137.00) denying each of the five special defenses. The pleadings were therefore closed on the eighteenth day of trial. Neither party filed a jury claim.
The parties are both over eighteen and were over eighteen throughout the entirety of their relationship. Neither party had any children and no children were issue of their relationship. They had no written contract to their joint purchase, maintenance and occupation of the one piece of real property that they jointly owned at 40 France Street, Norwalk, Connecticut. They had no written contract concerning any of their other financial arrangements. There was no evidence of any other written contractual type of documentation. There was substantial documentation supporting the amounts and dates of the various financial expenditures but none of this documentation allocated those expenditures between the parties.
Neither party is claiming that they were married nor are they seeking marital distribution rights. Mickey v. Mickey, 292 Conn. 597, 614 (2009). Neither party is claiming that their relationship is or was a common-law marriage. Connecticut does not recognize common-law marriages. Loughlin v. Loughlin, 280 Conn. 632, 643 (2006); Hames v. Hames, 163 Conn. 588, 593 (1972); State ex rel. Felson v. Allen, 129 Conn. 427, 432 (1942); Herring v. Daniels, 70 Conn.App. 649, 655 (2002). The limited rights that unmarried parties have to one another was outlined in 1973. McAnerney v. McAnerney, 165 Conn. 277 (1973). Three years later the California Supreme Court rendered a decision that held: "The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services . . ." "The nonenforceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to or encompassed prostitution. To equate the nonmarital relationship of today to such a subject matter is to do violence to an accepted and wholly different practice." Marvin v. Marvin, 18 Cal.3d 660, 683, 557 P.2d 106, 134 Cal.Rptr. 815 (1976). "In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case." Marvin v. Marvin, supra, 18 Cal.3d 665. This exact language was adopted by the Connecticut Supreme Court on February 17, 1987. Boland v. Catalano, 202 Conn. 333, 340-41 (1987). This continues to be the law in Connecticut. Dicerto v. Jones, 108 Conn.App. 184, 190 (2008).
Marvin v. Marvin was decided on the pleadings. The case had not yet reached trial. After the 1976 decision Marvin v. Marvin was tried. The trial court found insufficient evidence of an express contract, implied contract, quantum meruit, unjust enrichment, partnership, joint venture, constructive trust or resulting trust. Michelle Marvin lived with the actor, Lee Marvin, for six years during which he earned $3,600,000. She claimed half. The term "palimony" was created. The trial court ordered Lee Marvin to pay Michelle Marvin $104,000 "for rehabilitative purposes, a sum equal to her highest weekly salary for two years. The monetary order of $104,000 was reversed on appeal in 1981.
Boland v. Catalano was a full trial to an attorney trial referee who recommended judgment in part for the plaintiff. The Supreme Court reversed and remanded for a new trial consistent with the newly adopted Marvin rule. "We agree . . . that cohabitation alone does not create any contractual relationship, or, unlike marriage, impose other legal duties upon the parties." Boland v. Catalano, supra, 202 Conn. 339. The Supreme Court noted: "The decided trend among commentators and courts that have found an agreement between unmarried cohabitants is to endorse the enforcement of such agreement." Id., 341-42 "We conclude that our public policy does not prevent the enforcement of agreements regarding property rights between unmarried cohabitants in a sexual relationship." Id., 342.
Neither party in the instant case claimed that there was a meretricious agreement or that the expenditure of money was based upon sexual services. Id., 340-41. This court notes that the causes of actions pled by both parties in the instant case are virtually identical to these mentioned in Boland v. Catalano.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." American Express Centurion Bank v. Head, 115 Conn.App. 10, 15-16 (2009). A contract must be definite and certain as to its terms and requirements. Glazer v. Dress Barn, Inc., 274 Conn. 33, 51 (2005). There must be a manifestation of mutual assent to those terms and requirements. Bender v. Bender, 292 Conn. 696, 728 (2009). The party seeking to establish the existence of an enforceable contract bears the burden of proof. LeBlanc v. New England Raceway, LLC, 116 Conn.App. 267, 271 (2009).
The elements of a constructive trust are: the defendant obtains or holds legal right to property, which he ought not, in equity and good conscience hold and which he obtained through actual or constructive fraud, duress, abuse of confidence, or other form of unconscionable conduct. Stornawaye Properties, Inc. v. O'Brien, 94 Conn.App. 170, 175-76 (2006). The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment. Giulietti v. Giulietti, 65 Conn.App. 813, 856 (2001).
"When the purchase money for property is paid by one and the legal title is taken in the name of another, a resulting trust ordinarily arises at once, by operation of law, in favor of the one paying the money." Cohen v. Cohen, 182 Conn. 193, 201 (1980).
In order to establish a claim for quantum meruit, a plaintiff must allege that the defendant knowingly accepted the services of the plaintiff, the defendant represented to the plaintiff that he would be compensated in the future, that by such representation the defendant impliedly promised to pay the plaintiff for the services rendered, that the services were performed and the payment was not made. Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737-38 (2006). Quantum meruit is not applicable where an express contract has been entered into by the parties. Rosick v. Equipment Maintenance and Service, Inc., 33 Conn.App. 25, 37 (1993).
To establish a claim of unjust enrichment, a plaintiff must prove that the defendant received a benefit from the plaintiff for which the defendant unjustly did not pay and the defendant's failure to pay for that benefit was to the plaintiff's detriment. Gagne v. Vaccaro, 255 Conn. 390, 409 (2001); Weisman Trustee v. Kaspar, 233 Conn. 531, 550 (1995).
An action for contribution is based on equity, that where one person has been compelled to pay money which others were equally bound to pay, each of the latter in good conscience should contribute the proportion which he ought to pay of the current expenses to discharge the common burden or obligation. Azzolino v. Sons of Italy, 119 Conn. 681, 692 (1935). Connecticut recognizes an implied right to contribution when one person seeks the reimbursement of a share of payments made by one person which in equity should be paid in part by others. Kaplan v. Merberg Wrecking Corp., 152 Conn. 405-12 (1965).
To establish an action for conversion, the plaintiff must prove that the defendant without authorization assumed and exercised ownership over property belonging to another to the exclusion of the owner's rights. News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 544 (2004).
To establish an action for promissory fraud, the plaintiff must prove that a false representation was made as a statement of fact, the statement was untrue and known to be untrue by the party making it, the statement was made to induce the other party to act on it and the other party did so act upon that false representation to his injury. Capp Industries, Inc. v. Schoenberg, 104 Conn.App. 101, 116 (2007). These elements must be proven by clear and convincing evidence. Duplissie v. Devino, 96 Conn.App. 673, 681 (2006).
To establish an action for constructive fraud, the plaintiff must prove in addition to the elements of fraud, the existence of a confidential or special relationship and the breach of that relationship. Mitchell v. Mitchell, 31 Conn.App. 331, 334-35 (1993). Once such a relationship is established the burden shifts to the fiduciary to prove fair dealing by clear and convincing evidence. In addition, the elements of a fraud must be proven by clear and convincing evidence. Id., 335.
To establish an action for theft, also known as statutory theft, the plaintiff must prove that the defendant intentionally stole property owned by the plaintiff or the defendant knowingly received or converted stolen property owned by the plaintiff. Gen. Stat. §§ 52-564, 53a-119; Sullivan v. Delisa, 101 Conn.App. 605, 620 (2007).
To establish an action of implied contract the same elements of a breach of express contract must be proven by the conduct of the parties not expressed in words. Janusauskas v. Fichman, 264 Conn. 796, 804-05 (2003). "A true implied in fact contract can only exist however where there is no express one." Id., 804
To prevail on a claim of rescission, the party must prove a legal or equitable basis for renouncing the contract and that the plaintiff restored or offered to restore the defendant to his former condition as nearly as possible. Demattia v. Mauro, 86 Conn.App. 1, 11 (2004).
There is no separate cause of action for partnership and/or joint venture. Contract principles apply. Fraulo v. Gabetti, 37 Conn.App. 708 (1995); Holmes v. Holmes, 32 Conn.App. 317, 321 (1993). A joint venture exists where two or more parties combine property, money, efforts, skills and/or knowledge to seek a profit in some common undertaking without any actual partnership or corporate designation. Lesser v. Smith, 115 Conn. 86, 89 (1932). The goal of a joint venture must be limited in duration, scope and objective and that it may terminate upon achieving the goal or objective and/or could dissolve from failure to timely achieve such goal or objective. Electric Associates, Inc. v. Automotive Electronic Development Corporation, 185 Conn. 31, 35 (1981); Herring v. Daniels, 70 Conn.App. 649, 661-62 (2002).
To support an action of accounting, there must be a fiduciary relationship or the existence of mutual and/or complicated accounts, or a need of discovery, or some other special ground of equitable jurisdiction such as fraud. Thereafter, there is a duty to render a true and complete account with full information. Konover Development Corp. v. Zeller, 228 Conn. 206, 218-19 (1994). Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460 (2004). Gen. Stat. §§ 52-404(b), 45a-175. "In any judgment or decree for an accounting, the court shall determine the terms and principles upon which such accounting shall be had." Gen. Stat. § 52-401. An accounting is based on equitable principles. Crowell v. Danforth, 222 Conn. 150, 162-63 (1992). No Connecticut case has as yet allowed for an accounting between unmarried cohabitants. Warren v. Gay, Superior Court, judicial district of Hartford at Hartford, Docket Number CV 05-4010286 S (April 11, 2006, Miller, J.) [ 41 Conn. L. Rptr. 206].
An action for a receiver is controlled by statute. Gen. Stat. §§ 52-504 through 52-514. Receivers are appointed as a measure ancillary to the enforcement of some recognized equitable right. The object of appointing receivers is to secure the property in dispute from waste or loss. Hartford Federal Savings and Loan Association v. Tucker, 196 Conn. 172, 175 (1985).
Injunctive relief can be granted if the plaintiff proves irreparable harm and an inadequate remedy of law. The issuance of an injunction is based on equitable grounds. Gen. Stat. § 52-471. Theurkauf et al v. Miller, 153 Conn. 159, 161 (1965).
To award prejudgment interest under Gen. Stat. § 37-3a, the plaintiff must prove that the money was wrongfully withheld and the equitable considerations that warrant the payment of interest. The plaintiff must also prove the appropriate rate of interest, not to exceed 10%, and the date interest is to commence. Ceci Brothers, Inc. v. Five Twenty-One Corporation, 81 Conn.App. 419, 427 (2004).
Duress, manipulation and mitigation are not alleged as causes of action requiring this court to order affirmative relief. They are alleged as special defenses.
After applying the above stated legal principles to the facts found, the court finds that the parties have established an implied contract that the downpayment, cash purchase funds, mortgage, repairs, utilities, maintenance, expenses and proceeds of sale of the real property of 40 France Street, Norwalk, Connecticut would be divided approximately equally between the parties.
The court finds that the parties impliedly agreed that the plaintiff would loan the defendant the sum of $49,000 so that she could purchase the real property of Delevan Avenue, Greenwich, Connecticut and the defendant would repay that loan.
The court finds that there were no further express or implied contracts between the parties as to any of their other financial undertakings. The parties had no agreement as to who was to do what household duty such as shopping, cleaning, cooking, etc. Both parties were employed during their relationship and each kept their own earnings. Each had separate accounts with no signature rights to the other's accounts. There were no written agreements between the parties. The court finds that the parties have failed to prove the elements of unjust enrichment, quantum meruit, promissory fraud, constructive fraud, theft, rescission, accounting and contribution. Neither party is entitled to the imposition of a constructive trust, resulting trust or the appointment of a receiver. The elements of an injunction have not been proven. The defendant has judicially admitted at trial that she owes the plaintiff $6,735 for recent purchases she made on the American Express card just before the parties separated. The defendant has proven the right to receive money damages for certain items of personal property.
By taking title on December 2002 in joint names, co-signing the mortgage documents and occupying 40 France Street while both were paying bills for 40 France Street, the parties created an implied contract that they would share approximately 50-50 in the acquisition and maintenance of 40 France Street during their joint occupancy. At the closing of 40 France Street the parties divided the net sales proceeds of $51,433.03 equally without prejudice to their respective claims at trial. The court divides the net proceeds of $51,433.03 from the sale of 40 France Street equally between the parties. The parties' payments have already divided the 40 France Street issue approximately 50-50. The court will not enter any further division orders in regards to 40 France Street. The court recognizes that this result is not a mathematically accurate equal division, but the parties themselves, by making these 40 France Street payments, created a slight variance from 50-50. The parties, by making these payments, abided by their implied contract in regards to 40 France Street.
40 France Street was purchased jointly and sold by both parties jointly. They mortgaged the property signing the mortgage loan documents jointly. There was no written agreement that the parties were to share in the expenses of 40 France Street on a 50-50 basis. Each of the payments made by the respective parties for the downpayment, the monthly payments of the first and second mortgages and the payment of utility and repairs were not made equally at the time they were made. Upon the sale of 40 France Street, the parties pendente lite divided the net proceeds of $51,433.03 equally, without an agreement that the other expenses incurred and payments made for 40 France Street would be divided 50-50. The sale and the division of the net sales proceeds of 40 France Street occurred during this lawsuit when the issues of the division of 40 France Street were unresolved and in litigation. Ex. 58.
While Bratt and Klein will each receive a 50% share of the Partition Net Proceeds presently on deposit with the Court immediately, the parties understand and stipulate that a final order regarding the final distribution of the Partition Net Proceeds will be determined by the Court in the Main Action and will be subject to future adjustment, with the present 50-50% split and interim distribution pendente lite intended entirely for convenience purposes, and not intended as a final settlement or release of any claims relating to the Partition Net Proceeds, all such claims being expressly preserved for the Main Action. Neither party will be permitted to argue in the Main Action that any claims, counterclaims or defenses previously asserted in the Partition Action, and still pending before the Court prior to the entry of this Stipulation and Order, are in anyway finally decided, settled or released by this Stipulation and Order.
(#113.00) (#134.00 and #135.00 in the partition actions.)
The parties in actuality did divide the major expenses of 40 France Street very close to 50-50. The plaintiff paid $55,267 at the purchase. He paid $25,510 in first mortgage payments and $6,002 in second mortgage payments. He received $42,696 in the distribution of the home equity/second mortgage distribution. The plaintiff contributed to those major home expenses the sum of $44,083. The defendant made no contribution toward the purchase price. She paid $40,053 in first mortgage payments and $13,461 in second mortgage payments. She received $9,453 in the distribution of the home equity/second mortgage distribution. The defendant contributed to those major home expenses the sum of $44,061. This results in 50.01247% to the plaintiff, rounded off to the nearest ten thousands of a percent, is exactly 50%. Levay v. Levay, 137 Conn. 92, 96 (1950); LeBow v. LeBow, 115 Conn.App. 419, 423-24 (2009). Using the summation sheet prepared by the plaintiff which supported his counsel's closing argument, the plaintiff paid the following for 40 France Street: $55,267 purchase, $25,510 first mortgage payments, $6,002 second mortgage payments and $21,703 household/utility expenditures. The plaintiff received $42,696 as a home equity withdrawal. According to the plaintiff's own exhibits, documentation and closing argument, the net payments made by him for 40 France Street were $65,786. In those same exhibits, documentation and closing argument, the plaintiff claims that the defendant paid the following for 40 France Street: $40,053 first mortgage payments, $10,661 second mortgage payments, $850 Alex Sequa and $16,247 household/utility expenditures. The defendant received $9,453 as a home equity withdrawal. Thus the net payments made by the defendant for 40 France Street were $58,358. This calculation does not take into consideration that the defendant vacated 40 France Street in January 2005 and the plaintiff occupied the home until its April 2006 sale. Thus the plaintiff alone should be responsible for the maintenance, real estate taxes and utility costs for these 15-16 months. Ex. 57, 58. Subtracting such costs from the $65,786 reduces the plaintiff's net claims substantially, such that the resulting net payments made by both parties for the above costs for 40 France Street approaches an equal division.
The court finds that the parties intended that the $49,000 paid by the plaintiff to the defendant was a loan so the defendant could purchase the Delevan Avenue, Greenwich, CT real estate. The defendant took title in her own name and/or in the name of her wholly owned LLC and used $11,000 of her own funds for the $60,000 downpayment. She alone signed the Delavan Avenue mortgage documents. There is insufficient evidence of the creation of a partnership or joint venture relationship in regards to Delevan Avenue. The claims for a constructive trust, resulting trust and/or receivership for Delevan Avenue are rejected. The plaintiff obtained a one-year interest-free advance on his credit card in order to raise the necessary loan funds. Since the plaintiff did not incur any costs for the first year, interest will accrue after the first year. Ex. 61. The evidence disclosed that the interest incurred by the plaintiff on the credit card after the first year was in the 12% range. The court finds that the $49,000 was wrongfully withheld and interest at the rate of 10% should accrue from March 17, 2005. Gen. Stat. § 37a-3; Sears, Roebuck Co. v. Board of Tax Review, 241, Conn. 749, 765 (1997).
The defendant has proven that the plaintiff either damaged or failed to return certain of the defendant's personal property. The plaintiff is liable for money damages therefore to the defendant.
The plaintiff claims that he loaned $19,350 to the defendant from June 6, 2000 to July 2, 2001 in twelve transactions. Exhibit 1 contains an itemization of these specific transactions, nine of which involved checks issued by the plaintiff on his two checking accounts. Of these nine checks only three have notations on the checks stating "loan." Ex. 8, 9, 11. The parties never discussed these transactions as a loan. There was no agreement as to when, if ever, these "loans" were to be repaid or if they were to be repaid with interest. No other documentation or correspondence supported the "loans." The defendant never paid the plaintiff back for any of the $19,350. Despite the fact that the defendant never made any repayment the plaintiff still continued to write more checks to the defendant. Ex. 1. The plaintiff has failed to prove that any of the transactions listed in Exhibit 1 are loans. Maris v. McGrath, supra, 58 Conn.App. 185-86. See trial court decision of Maris v. McGrath.
Both parties have formal education in finances. Both parties are employed in the financial industry. The plaintiff's business was in money management. He is a law school graduate. Despite the detailed documentation of hundreds of transactions showing the date, source and amount of each transaction, documents that the plaintiff meticulously either kept or marshaled for this trial, none mentions "loans" other than the above three checks. This inconsistency adversely affects the plaintiff's credibility. Maris v. McGrath, supra, 58 Conn.App. 188.
"Dr. Maris produced no documentation whatsoever, other than the word `loan' in the memorandum section of one check which he might well have added after the check had been endorsed. Given Dr. Maris' practice of keeping careful documentation, the court finds that Dr. Maris was being untruthful when he testified that he and Ms. Mauldin agreed that the amount of money that he was depositing into their joint checking account were loans and that they simply never got around to providing any written loan document." Maris v. McGrath, supra, Docket Number 525692 (August 18, 1997, Hurley, J.).
The Fahnestock notations in Ex. 93 are not a contract. The defendant's e-mails after she moved out are not affirmations of a contract for her to pay the plaintiff's entire American Express claim. Ex. 34, 81, 84. Those e-mails confirm the defendant's obligations to repay the $49,000 Delevan Avenue loan and the $6,735 charged to the American Express card. The plaintiff's first demand that the defendant pay for a share of the American Express charges was on March 11, 2005 and March 17, 2005 after the parties separated in January. Ex. 34, 61, 84. This demand was almost four years after she started using the American Express card.
Although first litigation between these parties was a partition action addressed to the 40 France Street, Norwalk property, that property has been sold and the legal issues remaining have been introduced into the instant lawsuit. There are no remaining issues involving the partition of 40 France Street for this court to decide. Gen. Stat. § 52-495; Penfield v. Jarvis, 175 Conn. 463, 74-75 (1978); DiCerto v. Jones, 108 Conn.App. 184, 190 (2008) (partition of real estate between unmarried cohabitants); Fernandes v. Rodriquez, 255 Conn. 47, 60 (2000).
The defendant admitted at trial that she owes the defendant $6,735 for the purchase of furniture and furnishings that she bought around December 2004 in preparation for her vacating the jointly owned home in January 2005. That sum of $6,735 is to be paid back to the plaintiff. Ex. 86.
All other claims made by each party against the other are disallowed for insufficient proof.
A recent decision issued by the Superior Court in New Haven involved a four-year relationship between two unmarried childless adults. The plaintiff filed a lawsuit seeking equitable relief and money damages. There was no claim for the dissolution of a common-law marriage. In a lengthy memorandum of decision on the defendant's Motion to Strike the judge discussed in detail the elements of the various and multiple claims made by the plaintiff. Those causes of action were discussed in detail; breach of contract, prejudgment interest, express contract, implied contract, equitable interest in property, accounting, appointment of a receiver, constructive trust, resulting trust, unjust enrichment and attorneys fees. The trial judge discussed each of the elements necessary to prove each cause of action and applied the facts as alleged in the complaint to each of the above elements and rendered a lengthy decision denying the Motion to Strike allowing the plaintiff to proceed on the multiple claims alleged. On April 6, 2006, over three years later, the case came to trial. The plaintiff was an architect and the defendant a veterinarian. They met in May 1999 when she took her dog to the animal hospital where the defendant was employed. Shortly thereafter they commenced a dating relationship and formed a committed relationship in October 1999 until the romantic relationship ended in December 2003. In that four plus year period of time the parties cohabited with each other. During that period of cohabitation each rendered professional services to the other. The plaintiff devoted her time to the start up and operation of a veterinary hospital that was partially owned by the defendant. Both contributed money to the purchase of a house owned by the defendant that they jointly occupied. The trial court cited the same sections of Boland v. Catalano already cited in this Memorandum of Decision. The trial court, after considering claims of law and the underlying facts, rendered a three-page decision and attached to it a two-page three-column chart. The first column was the nature of the claim, the second column was the amount of the monetary claim made by each party and the third column was the court's findings as to those monetary claims. The trial judge then rendered a one-paragraph decision adding up the monetary claims. The trial court did not discuss in detail each of the legal theories as was done in the Motion to Strike, despite the fact that dozens of legal theories were argued at trial. The court finds that a similar format is appropriate in this case.
During trial this court prepared a list of legal theories that were contained in the pleadings. That list disclosed forty-seven separate legal theories. The parties, during trial, were requested by this court to furnish charts or summaries buttressing their respective monetary claims made in their case. The plaintiff submitted a five-page chart and the defendant eight pages. The plaintiff originally made a claim against the defendant in the amount of $242,665.30. The defendant's chart rejects the entirety of the $242,665.30 claim arguing that the plaintiff is entitled to $0 and that the defendant is entitled to $31,032.87 from the plaintiff.
The parties prepared their own charts and summaries of figures and submitted them in evidence, consistent with Code of Evidence Section 10-5. On many occasions those charts and summaries were amended and then on the very next trial day a new chart or summary concerning the same subject matter with additions, deletions, corrections, and modifications was submitted to the court. Although there were ninety-eight separate exhibits, some were offered for identification. Many of those exhibits contained dozens and dozens of individual claims. Among these claims is the plaintiff's claim for reimbursement for monies charged by the defendant to her sub-account on his American Express card from April 2001 through December 2004 less credits for payments made by the defendants and chargebacks made by American Express. This court recalls counting the individual claims for these American Express charges in open court. The plaintiff's American Express claims alone exceeded 700. Coupled with the myriad of other financial claims made by each party, it is possible that this trial involves more than 900 individual monetary damage claims each one subject to an analysis by each of the forty-seven legal issues. The resulting Memorandum of Decision would involve tens of thousands of pages. This court, therefore, is going to adopt the chart method of decision as established by that New Haven trial judge. Warren v. Gay, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 05-4031182 S (May 12, 2009, Berdon, J.T.R.).
This court's monetary decision is as follows:
Claims made by Jerrold S. Klein against Lisa Bratt
Nature Amount Court's of Claim
of Claim Findings Citibank check# 1278 6/6/2000, Ex. 1, 10 $ 1,050 $ 0 Citibank check # 1280 6/16/2000, Ex. 1, 11 2,000 0 Optima check # 5097 8/6/2000, Ex. 1, 13 2,200 0 Riggs check #2564 9/28/2000, Ex. 1, 4 2,000 0 Citibank check # 1112 11/28/2000, Ex. 1, 7 1,500 0 Riggs check # 3003 12/5/2000, Ex. 1, 5 1,500 0 Citibank check #2688 12/20/2000, Ex. 1, 6 2,000 0 Citibank check # 1179 12/28/2000, Ex. 1, 8 1,000 0 Citibank check# 1078 1/3/2001, Ex. 1, 9 4,500 0 Citi cash advance 2/5/2001, Ex. 1 400 0 Citi cash advance 3/30/2001, Ex. 1 1,000 0 Citi cash advance 7/2/2001, Ex. 1 200 0 American Express Card charges 2001, Ex. 31, 33 10,246 0 American Express Card charges 2002, Ex. 18, 33 19,552 0 American Express Card charges 2003, Ex. 26, 29, 30 15,749 0 American Express Card charges 2004, Ex. 28, 29, 30 20,252 0 Citibank check, dated 3/10/04 deposited to Peoples Bank 49,000 49,000 (Delevan Avenue loan), Ex. 53, 54 10% interest on $49,000 from 3/17/05—11/25/09 22,996 22,996 40 France Street purchase—Ex. 19, 20, 21, 22, 24 * 55,257 55,267 40 France Street—1st mortgage payment, Ex. 35, 36 * 25,510 25,510 40 France Street—2nd mortgage payment, Ex. 39 * 6,002 6,002 40 France Street—household/utility expenditures, 21,703 21,703 Ex. 56, 57,96 * 40 France Street—credit to Klein (42,696) (42,696) for Home Equity withdrawal, Ex. 38 * Automobile insurance Honda/Saab, Ex. 95 2,600 0 Peoples Bank joint account deposit differential, Ex. 42 234 0 Klein's withdrawals from Peoples Bank joint account, (700) 0 Ex. 46 Furnishing for defendant's new apartment, Ex. 86 6,735 6,735 6% interest on $6,735 from 1/1/05—11/25/09 1,980 1,980 Klein payments to Bratt, Ex. 44, 45 3,507 0 Bratt withdrawals from Peoples joint account 23,411 0 for Delavan, Ex. 46, 51 Bratt withdrawals from Peoples joint account for Saab, 6,118 0 Ex. 46 Bratt withdrawals for Peoples joint account of ATM, 602 0 Ex. 46 40 France Street, division of net sales proceeds 25,716.51 25,716.51 one-half of $51,433.03, Ex. 58 *Claims made by Lisa Bratt against Jerrold S. Klein
Nature of Claim Amount Court's of Claim Findings
Apartment 15J New York City rent $ 16,875 $ 0 Apartment 16M New York City rent 23,800 0 New York City apartment finders fee, Ex. 90 1,620 0 New York City utility payments 3,057 0 Verizon telephone bill, New York City 100 0 Peoples Bank joint account deposits 23,411 0 Peoples Bank joint account ATM withdrawals 301 0 Saab automobile payments, Ex. 77, 46 1,849 0 Saab automobile downpayment, Ex. 15 2,600 0 Honda automobile sale value 4,100 0 Honda automobile insurance 2,206 0 Honda automobile mileage charge 19,397 0 Delevan Avenue rent check withheld 1,500 0 Delevan Avenue lost tenant claim 1,500 0 40 France Street, first mortgage payments, Ex. 36 * 40,053 40,053 40 France Street, second mortgage payments Ex. 39, 40 * 13,461 13,461 40 France Street Bratt payments to Klein, Ex. 41 * 16,251 16,251 40 France Street, household/utility expenditures, Ex. 88 * 16,247 16,247 40 France Street, Alex Segua payments, Ex. 88, 92 * 4,000 850 40 France Street—credit to Bratt for (9,453) (9,453) Home Equity withdrawal, Ex. 38 * 40 France Street, division of net sales 25,716.51 25,716.51 proceeds one-half of $51,433.03, Ex. 58 * Red antique sofa, Ex. 89, Original claim 4,935 500 Lancaster leather sofa, Ex. 89, Original claim 4,495 1,000 Antique wrought iron bed, Ex. 89, Original claim 924 0 Schifman set claim (Serta), Ex. 89, Original claim 1,852 1,000 Oak filing cabinet, Ex. 89, Original claim 2,645 2,000 Antique claw foot bathtub, Ex. 89, Original claim 1,500 0 French entry way table, Ex. 89, Original claim 1,999 500 Side table, Ex. 89, Original claim 149 0 French provincial mirror, Ex. 89, Original claim 99 0 Kerry Hallam nautical painting, Ex. 89, Original claim 9,400 0 Clothing, Ex. 89, Original claim 5,565 0 6% sales tax on above personal property, Ex. 89, 2,013 0 Original claimThese above eleven items of personal property plus the sales tax are claims made by Lisa Bratt in her Offer of Proof (Original Claim), which has been later limited by Ex. 89.
The court has made certain findings of fact and legal conclusions as related to the expenses for 40 France Street, Norwalk, Connecticut. The court has concluded that the parties have already divided the downpayment, mortgage payments, household/utility expenditures and all other expenses, payments and credits in an approximate equal fashion during their relationship. In addition, the parties equally divided the net sales proceeds in April 2006 when 40 France Street was sold. Therefore, this court, although it found certain expenditures made by each party in the above chart, will not further divide or calculate these items in the chart that contain "40 France Street," marked with an asterisk (*). The above mentioned numbers referencing "40 France Street"* are not involved in the monetary judgment paragraph that follows.
Net Claims Between Jerrold S. Klein and Lisa Bratt without reference to 40 France Street
5,000
Court's Award to Jerrold S. Klein $80,711 Less Court's Award to Lisa Bratt — Monetary judgment in favor of Jerrold S. Klein $75,711The court hereby enters judgment in favor of the plaintiff, Jerrold S. Klein, as against the defendant, Lisa Bratt, in the amount of $75,711.
The court has examined the record and ascertains that the plaintiff has not recovered an amount equal to or greater than the Offer of Judgment dated May 23, 2006 (#107.00). The plaintiff is not entitled to statutory interest pursuant to Gen. Stat. § 52-192a.