Summary
dismissing plaintiff's negligent infliction of emotional distress claim in part because plaintiff failed to offer "any objective evidence, in the form of medical notes, reports, bills, prescriptions or otherwise or any testimonial evidence other than his own self-serving testimony. . . ."
Summary of this case from Packer v. SN Servicing Corp.Opinion
No. CV-04-0413046.
December 20, 2006.
MEMORANDUM OF DECISION
This action is in the nature of a family feud over real and personal property that started shortly after the death of the family's matriarch. In his two-count revised complaint, the plaintiff, William Ordner, alleges that his daughter, the defendant, Alice Kirschner, is liable to him in damages for her failure to provide to him a written mortgage payoff statement in accordance with General Statutes § 49-10a and for her negligent infliction of emotional distress upon him. The defendant denies the material allegations of the plaintiff's complaint and asserts a counterclaim in which she alleges that the plaintiff is liable to her in damages for breaching the standard of care owed by the plaintiff as a gratuitous bailee of certain of the defendant's personal property.
The matter was tried to the court, and the parties simultaneously filed post-trial briefs on November 6, 2006. Essentially all of the material facts are disputed by the parties.
The plaintiff alleges in the first count of his revised complaint that his personal residence located at 586 Riverdale Drive in Stratford, Connecticut became subject to a foreclosure action. In an effort to reinstate or otherwise satisfy the mortgage that was being foreclosed, the plaintiff sought to sell another property owned by him and located at 80 Horace Street in Stratford. The crux of the plaintiff's claim in this count is that the defendant failed to comply with the plaintiff's request for a payoff statement relating to the mortgage encumbering Horace Street in violation of General Statutes § 49-10a.
The plaintiff alleges in the second count of his revised complaint that the defendant has caused him to suffer damages as a result of her negligent infliction of emotional distress upon him. The basis for the plaintiff's claim of emotional distress is the assertion that "the [d]efendant has mounted an on-going campaign of terror, extortion and abuse upon the Plaintiff in order to force the Plaintiff to abandon his life estate at property deeply coveted by her at 586 Riverdale Drive in Stratford, Connecticut." That property apparently has water views.
In her counterclaim, the defendant claims that the plaintiff was a gratuitous bailee of certain personal property that she owned and delivered by her to the plaintiff for keeping at the plaintiff's Riverdale property. The defendant alleges that the personal property consists of many pieces of jewelry, glassware and other like property that she believes is worth close to a million dollars. The defendant claims that the plaintiff failed to return her personal property to her despite several demands therefore.
I DEFENDANT'S FAILURE TO PROVIDE PAYOFF STATEMENT
The plaintiff alleges in the first count of his revised complaint that the defendant failed to provide to him a written payoff statement relating to a certain mortgage given by the plaintiff to the defendant on Horace Street. The plaintiff's wife, Bernadine Ordner, died on August 22, 2002. In accordance with her will, the plaintiff was given a life use in their personal residence on Riverdale. The plaintiff testified that at some time after his wife died, his son, Billy, informed the defendant, his sister, that he was going to make a claim against the plaintiff, their father, for sexual abuse. The defendant similarly testified that sometime in 2003 the plaintiff told her that Billy was going to sue him for past sexual abuse and that "he had to protect his house."
The evidence shows that the plaintiff and the defendant executed an agreement dated January 8, 2003. The agreement was prepared by Attorney John Florek, who had prepared the wills of the plaintiff and his deceased wife. The defendant testified that Attorney Florek was the plaintiff's lawyer and that she was represented at the time by another attorney. The agreement noted that the plaintiff's deceased wife had devised to him a life use of an undivided one-half interest in Riverdale and that the defendant was given the remainder interest. The defendant resided at 626 Wilcoxson Avenue in Stratford at all relevant times. The agreement also noted that the plaintiff was responsible to financially and physically maintain the Riverdale property during his life use and, in the event that he was unable to, that the defendant agreed to maintain it "provided she is financially able to do so." To secure any monies advanced by the defendant under the agreement, the plaintiff granted to the defendant a mortgage interest in Horace Street. The mortgage deed was executed on that same date and recites consideration in the amount of $200,000.00.
The defendant testified that the only reason for the transaction with her father was "so that Billy couldn't take the house." In addition to the alleged potential claim of Billy, the plaintiff testified that at that time he was experiencing financial trouble to the extent that he could not pay the mortgage on his personal residence. Despite that the defendant agreed to maintain Riverdale if she was financially able to do so, it is undisputed that she never advanced any monies under the agreement. She testified that she was financially unable to do so.
At some point in 2004, the plaintiff desired to sell Horace Street to either reinstate or satisfy the mortgage underlying the foreclosure action that had been commenced against Riverdale. The plaintiff needed to obtain from the defendant a release of her mortgage on the property in order to be able to sell it. The plaintiff testified that the defendant refused to release the mortgage. The defendant testified that her attorney at the time advised her not to release the mortgage because the plaintiff was not maintaining the financial condition of the house as he was obligated to under his deceased wife's will. For example, in addition to the plaintiff not paying the mortgage he was not paying the municipal taxes.
On October 4, 2004, the parties put on the record before the court (Richards, J.) an agreement providing for a release of the Horace Street mortgage. The purpose of the agreement was to facilitate the sale of Horace Street by the defendant releasing her mortgage on it subject to the condition that the sale proceeds be held in escrow under certain terms and conditions. Those conditions included the plaintiff either reinstating or satisfying the mortgage, and paying the back taxes, out of the proceeds of any sale. Consequently, the mortgage was released and Horace Street was ultimately sold.
The plaintiff alleges in the first count of his revised complaint that the defendant failed to provide to him a written payoff statement relating the Horace Street mortgage as required by General Statutes § 49-10a. That statute provides, in pertinent part, that "[a] mortgagee shall, upon written request of the mortgagor or the mortgagor's attorney or other authorized agent provide a payoff statement in writing to the person requesting such a statement on or before the date specified in such request, provided such request date is at least ten business days from the date of the receipt of the written request for a payoff statement. If the mortgagee fails to provide such payoff statement on or before such request date, the mortgagee shall not be entitled to the payment of any interest on the mortgage loan which accrues after the expiration of such request date . . . The burden of proof shall be on the mortgagor with respect to the receipt by the mortgagee of the mortgagor's request for a payoff statement of the mortgage loan . . ." (Emphasis added.) General Statutes § 49-10a.
The plaintiff produced no evidence that he either made, or caused to be made on his behalf, a written request to the defendant for a payoff statement, or that the defendant received such a request. The statute places the burden of proof on the plaintiff. Because the plaintiff failed to meet his burden, the court renders judgment in favor of the defendant on the first count of the plaintiff's complaint.
Even if the plaintiff met his burden to prove receipt, he failed to prove any statutory damages. The written agreement underlying the mortgage provided that the plaintiff agreed to pay "upon demand" any monies paid by the defendant in performing the obligations placed upon the plaintiff as a life tenant under his deceased wife's will. The agreement further provided that any such monies would be reimbursed to the defendant at the interest rate of 10% "on the unpaid balance."
It was uncontroverted that the defendant did not advance any monies to the plaintiff under the agreement. That fact is supported by the agreement of the parties put on the record in court providing for the payment of certain expenses, such as taxes, relating to Riverdale out of the sale proceeds of Horace Street.
II PLAINTIFF'S CLAIM FOR EMOTIONAL DISTRESS
The plaintiff alleges in the second count of his revised complaint that the defendant negligently caused him to suffer emotional distress. He asserts in his complaint that the defendant "deeply coveted" Riverdale and caused him stress as part of her scheme to force the plaintiff to abandon the property.
The defendant testified at trial that the plaintiff caused him "stress." The plaintiff testified that the defendant knew that he is "sensitive to anxiety and stress." Particularly, the plaintiff asserts in his post-trial memorandum that the acts of the defendant in interfering with his tenant in the Horace Street property, failing to provide a release of mortgage on that property, calling a 211 telephone number associated with state health officials and telling police that the defendant had guns in his house caused him stress.
The plaintiff's claim that certain acts of the defendant caused him stress is bereft of any explanation of what type of stress they caused him or why they caused him stress. Rather, the plaintiff merely makes bare assertions. Further, the plaintiff did not submit any objective evidence, in the form of medical notes, reports, bills, prescriptions or otherwise, or any testimonial evidence other than his own self-serving testimony, in support of his claim for emotional distress.
A plaintiff must prove the following elements to establish a claim for negligent infliction of emotional distress: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carroll v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), wherein the court first recognized a cause of action for negligent infliction of emotional distress, it was held that in order to prevail on such a claim the plaintiff must prove that "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." E.g., Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001).
"This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." Barrett v. Danbury Hospital, 232 Conn. 242, 261-62, 654 A.2d 748 (1995).
The plaintiff is not in good physical health. The plaintiff is seventy years old. He has difficulty hearing. He lost his hand more than forty years ago due to an incident involving a grenade. He lost an eye as a result of being shot. He has had two open heart surgeries, including a valve replacement. He takes nitroglycerin.
The court observed that the plaintiff has been emotionally affected by the death of his wife in August 2002. Also, the plaintiff testified that he was under the further emotional stress of being informed that his son, Billy, intended to bring a civil action against him for alleged sexual abuse.
As discussed, the plaintiff also was in poor financial condition at all relevant times. Susan Hovan, who was the first witness called by the plaintiff, testified that the plaintiff admitted to her that he was "agitated" by his financial situation. His real estate taxes were in arrears. The plaintiff was given a life estate in his homestead at Riverdale under the decedent's will and could not maintain the first mortgage on property resulting in a foreclosure being commenced.
The court finds the testimony of Susan Hovan not only credible, but telling in regards to the plaintiff's claim of emotional distress. Ms. Hovan testified that she talked with the plaintiff a lot in 2005. She further testified that the defendant was in control of his mental faculties and that she had not noticed any change in the plaintiff's mental state other than his agitation over his poor financial condition. It is undisputed in this case that at all times relevant to the plaintiff's claim that the defendant was causing him to suffer emotional distress he was in the midst of serious financial troubles that were affecting him emotionally.
The plaintiff made the unsupported assertion in his testimony that the defendant caused him stress as a result of the tenant in Horace Street vacating the premises. The plaintiff didn't elaborate on this assertion or state how his alleged "stress" was different from the overall stress that he was experiencing in his life at or about that time.
The plaintiff claims in his post-trial memorandum that the defendant caused him stress by supposedly calling the police to report that there were firearms present in his residence. The plaintiff makes this claim notwithstanding that the plaintiff testified at trial that he actually didn't know who called the authorities.
The plaintiff claims in his post-trial memorandum that the defendant's contacting state mental health authorities caused him stress. Again, the plaintiff didn't elaborate on this assertion or state how his alleged "stress" was different from the overall stress that he was experiencing in his life at or about that time. The defendant admitted that in 2003 she called the state department of mental health concerning the plaintiff "because [she] wanted him to get help." She testified that she called the department by using their 211 phone number because her father was exhibiting unusual behavior, such as reporting her dead, leaving gun clips where she could see them, and leaving pictures for her to see of her children with bullet holes through them, bull's-eyes on them and with their heads torn off.
The plaintiff testified at trial that the defendant's failure to provide him with a release of the mortgage on the Horace Street property when he requested it caused him stress. Again, the plaintiff didn't elaborate on this assertion or state how his alleged "stress" was different from the overall stress that he was experiencing in his life at or about that time.
The court concludes that the plaintiff failed to sustain his burden of proof that the defendant negligently caused him to suffer emotional distress. The court finds that under the circumstances present at the relevant times of this case the plaintiff's assertions of that various acts of the defendant caused him to suffer emotionally are not believable. The fact that the plaintiff made these assertions without explanation as to how the defendant's actions caused him emotional distress or affected his life, or without any medical or other documentation concerning the distress, supports the court's conclusion. There was no credible evidence from which the court can conclude that the defendant's alleged conduct created an unreasonable risk of causing the plaintiff emotional distress or that any stress suffered by the plaintiff was severe enough that it might result in illness or bodily harm. The plaintiff testified to suffering stress in the generic sense of the word. Moreover, the plaintiff offered no evidence to distinguish, and therefore the court cannot distinguish, between the stress the defendant admitted he was suffering from because of his own financial troubles and position in life, and the stress he claims to have suffered as a result of the defendant. Therefore, there was no credible evidence that the defendant's alleged conduct caused the plaintiff's claimed distress.
In view of the foregoing, the court renders judgment in favor of the defendant on the second count of the plaintiff's revised complaint alleging negligent infliction of emotional distress.
III DEFENDANT'S COUNTERCLAIM BASED ON BAILMENT
The defendant alleges in her counterclaim that she delivered certain valuable personal property to the plaintiff for keeping at the plaintiff's residence on Riverdale. The defendant claims that the plaintiff was a gratuitous bailee of her personalty and that he is liable to her because he failed to return the property to her despite her demands for its return. The plaintiff has denied the existence of a bailment.
"A bailment is a consensual relation and it includes, in its broadest sense, any delivery of personal property in trust for a lawful purpose." Hartmann v. Black Decker Mfg. Co., 16 Conn.App. 1, 6, 547 A.2d 38 (1988). "A bailee is one to whom goods are entrusted by a bailor . . . the party to whom personal property is delivered under a contract of bailment." Lawton v. Weiner, 91 Conn.App. 698, fn. 13, 882 A.2d 151 (2005), citing Black's Law Dictionary (6th Ed. 1990).
"A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions. In a bailment, the owner or bailor has a general property [interest] in the goods bailed . . . The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment." B.A. Ballou Co. v. Citytrust, 218 Conn. 749, 753, 591 A.2d 126 (1991). (Citations omitted; internal quotation marks omitted.)
It is axiomatic that a bailee owes a duty of care to a bailor. "The duties and liabilities of bailor and bailee are generally determined according to the character of the bailment as one for mutual benefit or gratuitous . . ." Hartmann v. Black Decker Mfg. Co., supra, 16 Conn.App. 6. In this regard, a bailee without reward [gratuitous bailee] is responsible for such care as a prudent man takes of his own property; in other words, for ordinary care." National Broadcasting Co. v. Rose, 153 Conn. 219, 224, 215 A.2d 123 (1965). Simply stated, a bailee such as the plaintiff in the present action is alleged to be has the duty to exercise reasonable care for the bailed property. F F Distributors, Inc. v. Baumert Sales Co., 164 Conn. 52, 53, 316 A.2d 766 (1972).
"[O]nce a bailment has been established and a bailee is unable to redeliver the subject of the bailment to the bailor in an undamaged condition . . . there arises a presumption that the damage [to or loss of the bailed property] was the result of the bailee's negligence. Id. The burden of proof pertaining to a bailment is as follows: "[W]hen a bailee returns the bailed property to the bailor in a damaged condition [or fails to return the bailed property] there arises a presumption that the damage [or loss] was the result of the bailee's negligence. This presumption prevails unless and until the bailee proves the actual circumstances involved in the damaging for [oss] of the property. If these circumstances are proved, then the burden is upon the bailor to satisfy the court that the bailee's conduct in the matter constituted negligence . . . The circumstances which the bailee must prove must be something more than those indicating the immediate cause of the damage [or loss]. The proof must go so far as to establish what, if any, human conduct materially contributed to that immediate cause . . . The isolated fact of destruction by fire or of loss by theft rebuts nothing. The bailee must prove something more if he is to overcome the presumption. He must prove the actual circumstances connected with the origin of the fire or the theft, and these include the precautions taken to prevent the loss." National Broadcasting Co. v. Rose, supra, 153 Conn. 225. (Citations omitted; internal quotation marks omitted.)
The following facts are relevant to the bailment issue. The defendant was born in 1962 to the plaintiff and the decedent, Bernadine Ordner. The plaintiff and the decedent had three other children, Ann, Billy and Catherine. The defendant married David Kirschner in 1986, and they were divorced in 2004. The plaintiff and the defendant have three children of their own, Tiffany who is 18, Susan who is 16 and Joey who is 10.
The defendant's mother died in August 2002. She was married to the plaintiff for 42 years. The defendant's mother was a collector and dealer of antiques. The defendant testified that she received most of the jewelry and other personalty at issue from her mother, and some from other relatives.
At some point during their marriage, David Kirschner developed a cocaine addiction. The defendant testified that prior to delivering her personalty to the plaintiff, she had kept the items in her bedroom in her residence on Wilcoxson. Presumably, the defendant meant that she kept the jewelry in her bedroom, and not things like the china cabinet. The defendant offered no evidence that she insured any of the personalty at issue or that she placed the personalty in a secure place, such as a safe or safety deposit box. There was no evidence that the defendant kept an accurate inventory of her personalty.
The defendant testified that at some point a ring that she owned disappeared. There was no testimony as to where the ring was taken from, the type of ring, its value or what actually happened to it. She stated, "I knew exactly where it was, and it had disappeared, and I wasn't taking any chances." Although the defendant did not testify to the fact directly, the reasonable implication from her testimony was that her then husband, David, took the ring for purposes of his drug addiction. The disappearance of the ring apparently occurred after the death of the decedent, Bernadine Ordner. She further testified that the foregoing situation was the reason that she delivered her personalty to her father at Riverdale.
The defendant was asked by her attorney on direct the following question: "Now, of all the places that you could have taken the property, why Riverdale?" She answered "[b]ecause my father had asked me to move in there because he couldn't pay all the bills, he couldn't pay the taxes, he couldn't pay everything, and there was an alarm on it, and he was going to be there to protect it, and David couldn't get to it." Later in direct examination, the defendant testified, inconsistent with the foregoing testimony, that she informed the plaintiff about the missing ring and that he responded "bring your stuff over here, and so I started. I started with the jewelry and I moved on to the other things."
The defendant's testimony on this matter was in contradistinction to the plaintiff's testimony. He stated that shortly after his wife passed away in August 2002 the defendant offered to live at the Riverdale property if the plaintiff agreed to live in the basement. The plaintiff testified that he rejected the offer because "the basement was not fit to live in."
In any event, the defendant testified that she began to deliver the property to the plaintiff's residence for safekeeping in October or November 2002 through the fall of 2003. The defendant testified that she delivered personalty such as jewelry, china closets, furniture and like things. There was no evidence on how the defendant delivered the larger items, such as furniture and china closets, or who assisted the defendant in that endeavor.
The defendant testified that she stored the personalty in an area of the plaintiff's attic that she cleared. On direct examination the defendant testified that in terms of making the plaintiff aware of what personalty was being delivered for safekeeping in his house she "at one point" brought him into the attic "and showed him, and I pointed out — I did point out the box [of jewelry], it had my initials on it." The defendant testified that she never provided the plaintiff with an inventory or a valuation. When asked on direct whether the plaintiff was aware of the value of the property, she answered "I don't see how he couldn't be . . . I had explained to him what it was, he knows that Tiffany is valuable, he knows that diamonds, and sapphires, and white gold, and platinum are valuable, he was in the scrap metal business."
The life circumstances that allegedly existed between the parties at the time of the purported delivery of the personalty are important to in deciding this matter. The defendant, herself, testified to these alleged circumstances, which involved violent abuses by the plaintiff.
The defendant testified that the plaintiff "our whole lives, all four kids, he had abused us sexually, physically, mentally, verbally." The defendant testified that her father raped her countless times from the time that she was very young through high school. The rapes allegedly took place in her mother's bed, and the plaintiff allegedly held a gun to her head that he referred to as "Roscoe." In this regard, the defendant testified that "he had, all my life, right up until this, even after this, referred to getting punished by Roscoe."
In addition to her claim that she was sexually abused by the plaintiff, the defendant claimed to have been physically abused by him. She testified that "[i]t was very common for him to decide that we needed punishment and sit down in the living room chair and us go upstairs and open his top drawer and pull out the board of education and come back down and be hit with it or watch one of our sisters or brothers-brother get hit with it."
The plaintiff testified on cross examination that she was afraid of the plaintiff in late 2002, which is when she allegedly began to deliver her valuable personalty to the plaintiff for safekeeping from her then husband, David. She further testified on cross examination that she was intending to live with the plaintiff at the residence on Riverdale "with a locked door between us." The defendant testified that she was afraid of the plaintiff at the time she executed the agreement concerning the mortgage on Horace Street at Attorney Florek's office on January 8, 2003, but that she executed it because the plaintiff told her to do so. The sum and substance of the defendant's testimony in this regard is that she claims to have always been fearful of the plaintiff, including at trial. The plaintiff testified that "[n]otwithstanding all of the abuse that [she] described," which included the plaintiff still threatening her with the gun named "Roscoe," she had a "relatively stable" relationship with her father at the time she ostensibly delivered the personalty to the plaintiff for safekeeping.
The court does not believe the defendant's testimony that she had a "relatively stable" relationship with the plaintiff at the time that she claims to have delivered the personalty. The evidence is to the contrary. For example, if the relationship was stable notwithstanding the claimed history of abuse, the defendant wouldn't need the security of a locked door between her and the plaintiff if she were to reside there as she testified. The court concludes that at the time of the purported delivery, and as testified to by the defendant herself, the defendant had a real and palpable fear of the plaintiff belying her claim of a stable relationship with him.
The alleged cardboard box with the defendant's initials on it containing most of the valuable personalty claimed to have been delivered to the plaintiff is also significant in deciding this case. In support of her claim the plaintiff submitted into evidence photographs purporting to show the box in the plaintiff's attic. For example, several photographs contained in defendant's exhibit MMM are claimed by the defendant to show the box in the plaintiff's attic. The court gives no evidentiary weight to those photographs. Copies of two of the photographs that supposedly depict the box in the attic just evince the letter "A" in a triangular area that looks similar to a very small area of a cardboard box. The court, however, can conclude nothing else from the photograph. Also, the court cannot discern the box from an original photograph in that exhibit that the defendant claims shows the box in the attic. The court cannot understand why the few pictures of the supposed box full of jewelry and other valuable items in the plaintiff's attic were so unclear that they were of worthless evidentiary value.
In this regard, the court finds the defendant's testimony and documentary evidence concerning her claim that the plaintiff was the gratuitous bailee of her valuable personalty to be incredulous. Specifically, the court does not believe that the defendant delivered her allegedly valuable personalty in a cardboard box to the plaintiff under a gratuitous bailment. It defies common sense and reason in this case to believe, under all of the circumstances, that the defendant viewed the plaintiff as the ultimate protector of her valuable jewelry and antiques against her then husband at the time those items were supposedly threatened by his cocaine addiction.
The defendant claims that the plaintiff physically, sexually and emotionally abused her and her siblings for many years. After the plaintiff's wife died in August 2002, the defendant knew that the plaintiff was in financial trouble and that her brother, Billy, had discussed suing the plaintiff for sexual abuse. The plaintiff testified that the reason for the mortgage transaction in January 2003 was the plaintiff's desire to protect Horace Street from any claim of sexual abuse by Billy.
David Kirschner commenced a dissolution action against the defendant in 2003. In conjunction therewith, the defendant signed a financial affidavit under oath on January 6, 2004. In the section of the affidavit entitled "Other Personal Propety" the defendant listed "Jewelry, Household, Art" having a total value of $5,500. The defendant did not list the jewelry and other items at issue in this case that she testified was worth close to a million dollars. By way of explanation, the defendant testified she didn't list the property on the affidavit because "[i]t was locked in the house on Riverdale and I couldn't get to it." She further testified that David knew about the property and that "he said don't put it on there because you don't know if you are ever gonna get it back. We had an agreement."fn3 Despite the allegedly abusive history and all of the events involving the plaintiff that took place during the years 2002 and 2003, the plaintiff asserts that she began to remove her valuable personal property from her residence on Wilcoxson in the late fall of 2002 and put them in the plaintiff's residence on Riverdale in order to protect the property from her addicted then husband. She testified that removal process continued for almost a year, until the fall of 2003. The court finds the fact that the defendant claims to have delivered the property at issue to the plaintiff under a bailment over the course of approximately one year to be inconsistent with the reason proffered by the defendant for the property's removal; that being, to prevent her then husband from having access to the property for purposes of his cocaine addition. David Kirschner presumably had access to some of the personal property at issue during the time it remained at the defendant's residence on Wilcoxson, just like he had access to the ring that he impliedly wrongfully took. Again, the defendant testified that the ring incident is what prompted her to remove her personalty from her residence. It defies reason and common sense to believe that the defendant sought to protect her valuables from David, but took almost a year to complete the process. The court finds the plaintiff's testimony in this regard inconsistent and not credible.
The defendant testified that the plaintiff changed the locks on the Riverdale property in late 2003. affidavit did not match the defendant's testimony on that issue. He merely testified that "it [the property] was hers. I had no dispute on that."
Additionally, if David was such a threat to the personalty, why did he acquiesce in the defendant perpetrating a fraud on the court in the divorce action by not listing on the financial affidavit the personal property at issue in the present action. The defendant testified that David agreed that the property did not have to be listed on the affidavit because it was claimed to be locked in the plaintiff's residence and the defendant might not get it back. David testified otherwise. He testified that he knew that defendant did not list the jewelry on the financial affidavit, which didn't concern him because he didn't dispute that the jewelry was hers. There was no evidence that either the court or the attorneys for the parties were aware of the fact of the subject personalty. In judging the credibility of the defendant and David Kirschner in the present action, the court places weight on the facts that the defendant admittedly and knowingly signed a financial affidavit filed with the court that contained incorrect information, and that the defendant and David had a secret understanding concerning the personalty.
David Kirschner testified that he didn't witness the defendant pack up her personalty at Wilcoxson and deliver it to Riverdale. There was no testimony that David assisted her in any manner in delivering the items. However, he testified that in April 2004, after their divorce, he was with the defendant at Riverdale and saw the cardboard box with the initials "AOK" in the attic. He testified that "in that box was a fair amount of jewelry that I saw for a matter of a few seconds or so."
David Kirschner's testimony was directly contradicted by Lisa Oakes, a witness called by the plaintiff. She testified that an estate inventory was conducted at Riverdale in 2004 at which David Kirschner, Alice Kirschner and others were present. Ms. Oakes was at that time and at the time of trial a paralegal in the law firm representing the plaintiff. Ms. Oakes unequivocally testified that there was no cardboard box with the initials "AOK" on it in the attic or anywhere else on the property at the time of the inventory. She further testified the defendant tried to find the box, but was unsuccessful. The defendant's testimony on this issue directly conflicted with Ms. Oake's testimony. The defendant testified that the box was in the attic at the time of the estate inventory in April 2004. Also, Ms. Oakes testified, contrary to the defendant's testimony, that the defendant did not take picture of the cardboard box on that date as she testified that she did.
The pictures of the box the defendant testified that she took on the day of the inventory as those that the court discussed as lacking any evidentiary value.
Ms. Oakes was subject to a vigorous cross examination, and the court finds her testimony to be credible. Consequently, the court finds the testimony of David Kirschner not to be biased and not credible.
The court finds the totality of the defendant's testimony in support of her bailment counterclaim seriously flawed, inconsistent and not credible. Therefore, the court renders judgment in favor of the plaintiff on the defendant's counterclaim alleging bailment.
The court also discounts the testimony of the defendant's daughter, Susan Kirschner. Her testimony cannot overcome the serious flaws present in the other testimonies and evidence resulting in the court's finding that the box containing the valuable personalty was never delivered.
IV CONCLUSION
In view of the foregoing, the court renders judgment in favor of the defendant on the first and second counts of the plaintiff's revised complaint and in favor of the plaintiff on the defendant's counterclaim.