Opinion
MMXCV146012106
12-17-2015
U.S. Electrical Services v. Gale M. Zolla et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Julia L. Aurigemma, J.
The plaintiff, U.S. Electrical Services, Inc., has moved for summary judgment against the defendants Gale Zolla (Gale) and Felix Zolla (Felix) on the grounds that there is no genuine issue of material fact and the plaintiff is entitled to judgment as a matter of law.
Subsequent to the plaintiff's filing of the present motion, the court Domnarski, J., ordered the substitution of Beazley Insurance Company, Inc., and Travelers Casualty and Surety Company of America as plaintiffs. The substitute plaintiffs then filed an amended complaint on May 22, 2015 to reflect the substitution of parties.
FACTS
The plaintiff commenced this action by service of process on the defendants on June 18, 2014. The six-count complaint sounds in civil theft, conversion, and unjust enrichment--one-count of each against each defendant.
Count one is directed against Gale and sounds in civil theft under Connecticut General Statutes § 52-564. The plaintiff alleges the following facts in count one. From 2007 to 2014, Gale was employed in the plaintiff's accounting department in Middletown, Connecticut. During the course of her employment, Gale embezzled a total of $1, 666, 396 from the plaintiff via 443 checks drawn on a number of the plaintiff's accounts and deposited into Gale's personal bank account. On the basis of these allegations, the plaintiff asserts that Gale committed larceny by embezzlement in violation of General Statutes § 53a-119(1), and therefore stole the plaintiff's property within the meaning of § 52-564. The plaintiff repleads the allegations of count one in each of the five succeeding counts.
Count two is directed against Felix and sounds in civil theft under § 52-564. The plaintiff alleges in that count that Felix jointly owned the bank account into which Gale deposited the stolen funds and used at least a portion of them to the exclusion of the plaintiff's rights; that Felix used these funds to purchase real and personal property, including real estate located in Bristol, Connecticut (Bristol property) and improvements made thereupon; and that, at the relevant times, Felix knew or believed that the money that Gale was depositing was probably stolen. On the basis of these allegations, the plaintiff asserts that Felix committed larceny by receiving stolen property, in violation of Connecticut General Statutes § 53a-119(8), and therefore stole the plaintiff's property within the meaning of § 52-564.
Counts three and four sound in conversion and are directed against Gale and Felix, respectively. The plaintiff alleges in these counts that the defendants exercised unauthorized dominion over the plaintiff's property to the exclusion of the plaintiff's rights; and that, in so doing, the defendants acted with reckless indifference to, or in intentional and wanton violation of, the plaintiff's rights. The plaintiff further alleges that it has been damaged by this conduct.
Counts five and six sound in unjust enrichment and are directed against Gale and Felix, respectively. The plaintiff alleges in these counts that the defendants' conduct wrongfully harmed the plaintiff and resulted in the defendants' unjust enrichment.
The plaintiff seeks damages, pre- and postjudgment interest, and costs. To remedy the civil theft alleged in counts one and two, the plaintiff requests treble damages pursuant to § 52-564. The plaintiff also seeks punitive damages for the reckless or intentional conversion alleged in counts three and four. As a remedy for the unjust enrichment alleged in counts five and six, the plaintiff seeks restitution and a judgment declaring that the defendants hold the proceeds of the stolen funds, which include the Bristol property, in constructive trust for the benefit of the plaintiff.
On April 24, 2015, the plaintiff moved for summary judgment on all counts. In support of its motion, the plaintiff filed a memorandum of law (memorandum) and the following relevant exhibits: (1) a signed and sworn affidavit of Robert Canyock, the plaintiff's chief financial officer, attached to which are copies of the 443 checks at issue and a spreadsheet summarizing relevant details of these checks; (2) a signed and sworn affidavit of the keeper of the records of Citizens Bank, attached to which are copies of the signature cards for the checking and saving accounts held by the defendants, account statements, and checks drawn on the accounts; and (3) a signed and sworn affidavit of William O'Sullivan, the plaintiff's attorney in the present case, attached to which are requests for admission served on Felix on March 19, 2015. On September 14, 2015, Felix filed an objection to the motion for summary judgment. In support of his objection, Felix filed a memorandum of law (memorandum in opposition), Felix's signed and sworn affidavit, and a signed and sworn quitclaim deed for the Bristol property dated June 19, 2015. At the September 14, 2015 oral arguments on the motion for summary judgment, Gale's attorney confirmed that Gale had filed no response to the motion and indicated that she takes no position on it.
Gale filed a motion to dismiss on August 7, 2014, on the ground that, under General Statutes § 52-577, the claims against her are time barred to the extent they relate to transactions made more than three years before the commencement of the present action. On November 5, 2014, the court, Diana, J., denied the motion on the ground that the statute of limitations argument is not properly asserted by way of a motion to dismiss. Because Gale and Felix may still pursue such a defense, the plaintiff seeks judgment only with respect to embezzlement postdating June 18, 2011, which amounts to $1, 115, 228.80.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
CIVIL THEFT
The plaintiff alleges civil theft in counts one and two. The plaintiff argues in its memorandum that, in light of the substantial amount of evidence submitted, there is no question that Gale wrongfully appropriated its funds and therefore committed larceny by embezzlement within the scope of § 53a-119(1). As to Felix, the only element in dispute is that of Felix's knowledge or belief that the funds Gale was depositing were likely stolen. The plaintiff asserts that this element is judged by an objective, reasonable person standard. According to the plaintiff, in order to sustain its burden of proof at the summary judgment stage, it need only submit evidence showing that " the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen." Pl.'s Mem., p. 18. Because " the vast amounts of stolen money deposited into and spent from the [defendants' joint bank] account . . . would have put any reasonable person on notice that the funds were likely stolen"; Pl.'s Mem., p. 19; the plaintiff concludes that they are entitled to judgment as a matter of law. In his memorandum in opposition, Felix highlights the lack of any direct evidence that he had actual knowledge of Gale's theft, and he asserts that his affidavit establishes that he in fact had no such knowledge. Felix further argues that, because the plaintiff relies solely on inferences drawn from circumstantial evidence, Felix's state of mind cannot be determined on a motion for summary judgment.
Under our civil theft statute, " [a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." Connecticut General Statutes § 52-564. " [S]tatutory theft under . . . § 52-564 is synonymous with larceny [as defined in] General Statutes § 53a-119 . . ." (Citation omitted; internal quotation marks omitted.) Stuart v. Stuart, 297 Conn. 26, 41, 996 A.2d 259 (2010). Section 53a-119 provides in relevant part: " A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody . . . (8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . . It is well established that, in order to establish a violation of § 53a-119(8), the prosecuting party must prove that the defendant actually knew or believed that the property at issue was probably stolen. " The essential fact to be proved by the state [in a prosecution under § 53a-119(8) is] . . . that the defendant knew he was disposing of stolen [property] . . . [It is] not sufficient that the jury find that, as a reasonable person, the defendant ought to have known that the [property] was probably stolen or that he ought to have ascertained whether it was stolen." (Citations omitted.) State v. Lenczyk, 1 Conn.App. 270, 272-73, 470 A.2d 1240 (1984) (per curiam). " [A]n error of judgment in failing to realize the stolen character of the goods is not the equivalent of guilty knowledge . . . [A]ctual knowledge that the property has been stolen is necessary . . ." (Citation omitted; internal quotation marks omitted.) State v. Scielzo, 190 Conn. 191, 198, 460 A.2d 951 (1983); see State v. Newman, 127 Conn. 398, 401, 17 A.2d 774 (1940) (" The jury must find that the accused had actual knowledge at the time he received the [property] that [it was] stolen as distinguished from finding that he negligently failed to ascertain if [it was] stolen" [internal quotation marks omitted]). Nevertheless, " [t]hat knowledge of a fact may be inferred from other facts proven is a well-settled rule of evidence. The policy consideration underlying this rule is that frequently the only method of establishing what lay in the mind of a person when he performed an act is through such an inference. Circumstantial evidence is offered and received for this purpose and jurors are properly told that they may, not that they must, infer knowledge, intent, or mental state or condition from such facts." (Emphasis added.) State v. Moynahan, 164 Conn. 560, 579-80, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973). In the context of § 53a-119, the fact finder may infer guilty knowledge " if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen." (Internal quotation marks omitted.) State v. Nunes, 58 Conn.App. 296, 301, 752 A.2d 93, cert denied, 254 Conn. 944, 762 A.2d 906 (2000).
Although a court deciding a motion for summary judgment may normally draw whatever inferences reasonably permitted by the evidence, issues of subjective state of mind are generally considered inappropriate for resolution by summary judgment. " Intent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case . . . [S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). Nevertheless, this " summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . [E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn.App. 778, 793, 57 A.3d 794 (2012).
In the present case, it cannot be seriously disputed that Gale embezzled the plaintiff's funds. The plaintiff has submitted voluminous, uncontradicted evidence establishing its financial loss, the amount of its loss, and the method by which the loss was incurred (i.e., fraudulently issued checks). Canyock's affidavit establishes that, between November 2007, and February 2014, the plaintiff lost a total of $1, 666, 396 via 443 fraudulently issued checks drawn from either the plaintiff's accounts or those of companies that were subsequently merged into the plaintiff. Copies of these checks, which are authenticated by and attached to Canyock's affidavit, reveal that the first stolen check bears the endorsement of " Gale Plourde." As established by Gale's August 1, 2006 Citizens Bank signature card, Plourde is Gale's former surname. Although the vast majority of the remaining checks were endorsed only with the " for deposit only" instruction, the court can reasonably infer from the undisputed evidence that between June 18, 2011, and February 13, 2014--the only time period at issue for the purposes of the present motion--Gale deposited 290 fraudulently obtained checks, totaling $1, 115, 228.80, into a Citizens Bank checking account that the defendants' jointly owned.
There is no question that the defendants in some manner obtained possession of the funds at issue. The uncontradicted evidence establishes that, within several weeks of the issuance of each of the 290 checks, a corresponding deposit was made in the defendants' checking account in the exact amount of the particular check. There is also no genuine dispute as to Gale's culpability for the misappropriation. In addition to the strong, uncontradicted circumstantial evidence of wrongdoing, the court takes judicial notice that, subsequent to the filing of the present motion, Gale pleaded guilty to violating Connecticut General Statutes § 53a-122(a)(2) (larceny in the first degree), which was accepted by the court, Gold, J., on June 2, 2015. " [A] plea of guilty . . . may be regarded as a verbal admission by the accused, and, as such, may be admissible in subsequent civil proceedings." Lawrence v. Kozlowski, 171 Conn. 705, 711 n.4, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977). Thus, in pleading guilty to a violation of § 53a-122(a)(2), Gale necessarily admitted that she committed larceny as defined in § 53a-119. See General Statutes § 53a-122(a)(2) (" A person is guilty of larceny in the first degree when he commits larceny, as defined in [General Statutes] section 53a-119, and . . . the value of the property or service exceeds twenty thousand dollars . . ."). Although this admission does not necessarily entitle the plaintiff to judgment as a matter of law; see Lawrence v. Kozlowski, supra, 711 n.4 (" [a guilty plea] does not . . . conclusively establish negligence, and the accused is not precluded from explaining his plea"); Gale has taken no position on the plaintiff's motion and has filed no opposing affidavits or other supporting documentation to raise as issue of fact. The court therefore grants summary judgment on count one in favor of the plaintiff.
It is well established that this court can take judicial notice of facts contained in the files of the Superior Court, and " [t]here can be no question of the court's power to take judicial notice of a guilty plea entered in another case before the same court, so long as it is not used for an improper purpose." State v. Taylor, 153 Conn. 72, 85, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S.Ct. 1372, 16 L.Ed.2d 442 (1966). " [Courts] may . . . take judicial notice of the court files in another suit between the parties, especially when the relevance of that litigation was expressly made an issue at this trial." State v. Fagan, 280 Conn. 69, 101, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007), quoting McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cent. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990). " The true conception of what is judicially known is that of something which is not, or rather need not be, the subject of either evidence or argument, unless the tribunal wishes it, -something which is already in the court's possession, or, at any rate, is so accessible that there is no occasion to use any means to make the court aware of it. 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988), pp. 112-13." (Internal quotation marks omitted.) State v. Fagan, supra, 101.
As to the civil theft claim in count two, there is a genuine issue of fact concerning whether Felix knew or believed that the funds being deposited into his account were probably stolen. As previously discussed, the plaintiff is required to produce evidence establishing the nonexistence of any dispute regarding Felix's actual knowledge. Although the plaintiff has submitted enough circumstantial evidence from which a fact finder could reasonably infer Felix's state of mind, Felix has filed an opposing affidavit in which he denies having had any actual knowledge or belief and provides a reasonable, albeit unlikely, explanation for his ignorance. In light of this evidence and the general policy against granting summary judgment on matters involving subjective intent and knowledge, the court concludes that Felix has presented a factual predicate sufficient to raise a genuine issue of fact as to his state of mind. The court, therefore, denies the plaintiff's motion for summary judgment on count two.
CONVERSION
As to its conversion claim in count three, the plaintiff argues that, because it is undisputed that Gale committed larceny by embezzlement, there can be no question that she also committed the tort of conversion. Regarding its claim against Felix, the plaintiff similarly argues that, it being clear that Felix committed larceny by receiving stolen property, it is therefore undisputed that Felix converted the plaintiff's funds.
" The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006). Although a claim for conversion does not require proof of intent to deprive another of his or her property; id., 771; conversion nevertheless remains an intentional tort: " The intention required [for conversion] is an intention . . . to exercise a dominion or control over the chattel which in fact seriously interferes with the right of another to control it." Luciani v. Stop & Shop Cos., 15 Conn.App. 407, 411-12, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988), quoting 1 Restatement (Second), Torts § 224, comment (c) (1965); see 1 Restatement (Second), supra, § 224 (" One who does not intentionally exercise dominion or control over a chattel is not liable for a conversion even though his act or omission is negligent"). This intention " [n]ormally . . . requires an affirmative act on the part of the defendant, as distinguished from a mere omission to act or to perform a duty." Id., comment (a). Similarly, " an act which is not intended to exercise any dominion or control over a chattel but is merely negligent with respect to it is not a conversion, even though it may result in the loss or destruction of the chattel." Id., comment (b).
The elements of the tort of conversion are " largely the same" as the elements of civil theft. Sullivan v. Delisa, 101 Conn.App. 605, 620, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). " Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 771.
In the present case, there is no genuine issue as to whether Gale converted the plaintiff's funds. The uncontradicted evidence clearly establishes that the plaintiff was harmed by Gale's theft. In his affidavit, Canyock, the plaintiff's chief financial officer, avers that the stolen checks at issue were all drawn on the plaintiff's accounts or accounts of companies that were subsequently merged into the plaintiff. As the plaintiff has proven the requisite elements of its civil theft claim against Gale, proof of this additional element of harm is sufficient to entitle the plaintiff to summary judgment on count three.
Because Gale had already converted the plaintiff's funds by the time they became available to Felix, the conversion claim against Felix depends on whether he subsequently exercised the requisite control or dominion over the funds. In its memorandum, the plaintiff does not identify the particular conduct by which it claims Felix exercised unauthorized control over its property. Section 223 of the Restatement (Second) of Torts lists the possible ways in which one may commit conversion; one commits an act of conversion if he intentionally: (1) dispossesses another of a chattel; (2) destroys or alters another's chattel; (3) uses another's chattel or exceeds his authorized use thereof; (4) receives another's chattel; (5) disposes of his principal or master's chattel; (6) misdelivers his bailor, principal, or master's chattel; or (7) refuses to surrender another's chattel. Upon the evidence submitted to the court, it cannot be said that Felix destroyed or altered the plaintiff's funds, disposed of or misdelivered the funds as an agent or servant of the plaintiff, or refused to surrender the funds. Felix also cannot be deemed to have converted the plaintiff's funds by dispossession. Dispossession entails the taking of a chattel from another's possession by physical force, fraud or duress, barring the possessor's access to it, destroying it while in the possessor s possession, or taking the chattel into the custody of the law. See 1 Restatement (Second), supra, § 221. It is undisputed in the present case that, to the extent Felix obtained possession of the funds, the plaintiff had already been dispossessed of them by Gale's fraud. The plaintiff does not allege that Felix directly dispossessed it of its property, and it has submitted no evidence that Felix aided Gale in the embezzlement. Indeed, the plaintiff concedes in its memorandum that Felix did not actively participate in the embezzlement. Thus, Felix plainly cannot be liable for conversion by dispossession. The plaintiff, therefore, appears to allege that Felix converted its funds either by virtue of the mere fact of Gale depositing them into their joint bank account, or by Felix's use of the funds to make purchases.
Section 229 of the Restatement (Second) of Torts provides that one commits a conversion when he " receives possession of a chattel from another with the intent to acquire for himself or for a third person a proprietary interest in the chattel." Liability for receipt of a chattel is appropriate " only when the transaction in consummation of which the actor receives the possession of the chattel is intended by the parties to give the actor a proprietary interest in the chattel." 1 Restatement (Second), supra, § 229, comment (c). Although Felix may be deemed to have obtained constructive possession of the stolen funds once they were deposited into his bank account; see In re Mikoshi, 124 Conn.App. 536, 538 n.3, 5 A.3d 569 (2010) (" Pursuant to [General Statutes § 36a-290], any of two or more joint owners of a bank account may withdraw any part or all of the balance of such account during the lifetime of the other owner. It is clear that, under Connecticut law, coholders of a joint account are considered owners of the entire account . . . with access to the entire amount therein." [Internal quotation marks omitted.]); the plaintiff has provided no evidence to suggest that, at the time Gale deposited the checks, Felix intended to acquire the funds for himself.
The only remaining basis for liability is Felix's use of the stolen funds. Section 227 of the Restatement (Second) of Torts provides that " [o]ne who uses a chattel in a manner which is a serious violation of the right of another to control its use is subject to liability to the other for conversion. In light of the overarching principle that one must affirmatively and intentionally exert control over a chattel in order to be liable for a conversion, Felix cannot be deemed to have committed conversion merely by passively receiving the stolen funds deposited by Gale into their joint Citizens Bank account. Nevertheless, the uncontradicted evidence, which includes years of the defendants' Citizens Bank account statements and copies of checks drawn on their account, discloses that Felix actively made purchases with funds from the account by using his ATM card and writing checks. Thus, Felix is liable for conversion to the extent that he affirmatively made use of the stolen funds. The court therefore grants the plaintiff's motion for summary judgment on count four.
UNJUST ENRICHMENT/CONSTRUCTIVE TRUST
The plaintiff also seeks summary judgment on its claims of unjust enrichment and requests the imposition of a constructive trust. In its memorandum, the plaintiff essentially argues that the defendants were necessarily enriched by virtue of their acts of civil theft and conversion, and that this enrichment came at the expense of the plaintiff. Felix does not contest this in his memorandum in opposition.
" [A] person who is unjustly enriched at the expense of another is subject to liability in restitution . . ." (Internal quotation marks omitted.) Kelley v. Five S Group, LLC, 136 Conn.App. 57, 58, 45 A.3d 647, cert. denied, 306 Conn. 904, 52 A.3d 731 (2012), quoting 1 Restatement (Third), Restitution and Unjust Enrichment § 1 (2011). " The doctrine's three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment." Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). " A plaintiff may seek restitution if the defendant has committed a civil wrong, usually a tort or breach of contract, and the plaintiff prefers to recover the amount the defendant was enriched by her wrongful conduct as opposed to damages . . . The recovery of restitution may take several forms, including the return of the specific property conveyed or the payment of the monetary value of the defendant's gain." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 40, 889 A.2d 785 (2006).
In the present case, Gale clearly obtained an undeserved benefit--$1, 115, 228.80--at the expense of the plaintiff by embezzling the plaintiff's funds. Felix has also been unjustly enriched, but only to the extent he used the stolen funds to make purchases. It is thus beyond question that the plaintiff has proven its claims of unjust enrichment. Therefore, the primary issue before the court is whether it may impose a constructive trust to remedy the defendants' unjust enrichment.
In its memorandum, the plaintiff contends that it is entitled to the imposition of a constructive trust over the defendants' Bristol property because the defendants used the plaintiff's funds to purchase, improve, and make mortgage loan payments for the property. In his memorandum in opposition, Felix counters that the court cannot impose a constructive trust because the Bristol property is now owned solely by Felix pursuant to a quitclaim deed executed by Gale, and the plaintiff has not submitted any evidence establishing that Felix acquired the property with funds obtained from the plaintiff by fraud, duress or abuse of confidence, the commission of a wrong, or any other form of unconscionable conduct, artifice, concealment, or questionable means.
A constructive trust is a type of equitable remedy that may be imposed in some situations where the party holding legal title has been unjustly enriched. " A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy . . . [Therefore], [a] constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form . . . [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that [she] would be unjustly enriched if [she] were permitted to retain it." (Citation omitted; internal quotation marks omitted.) Trevorrow v. Marcuccio, 125 Conn.App. 141, 146-47, 10 A.3d 1058 (2010). " A claimant entitled to restitution from property may obtain restitution from any traceable product of that property, without regard to subsequent changes of form"; (internal quotation marks omitted) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 466, 970 A.2d 592 (2009); and " may assert the same rights against any subsequent transferee who is not a bona fide purchaser . . . or a bona fide payee . . ." 2 Restatement (Third), Restitution and Unjust Enrichment § 58(2) (2011); see Millard v. Green, 94 Conn. 597, 602, 110 A. 177 (1920) (" A constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form . . . [I]n . . . [such] cases equity impresses a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrongdoer, but as long as it can be followed and identified in whosesoever hands it may come, except into those of a bona fide purchaser for value and without notice; and the court will enforce the constructive trust for the benefit of the beneficial owner or original cestui que trust who has thus been defrauded." [Emphasis in original; internal quotation marks omitted.]).
The court first addresses Felix's argument that the plaintiff's claim for a constructive trust necessarily fails for lack of evidence of any wrongdoing by Felix. This argument is without merit. Although it is true that a plaintiff may be granted a constructive trust to remedy a defendant's wrongful conduct, this is not the only situation in which a court may impose a constructive trust. Our case law is clear that " [t]he issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched." (Emphasis in original; internal quotation marks omitted.) Trevorrow v. Marcuccio, supra, 125 Conn.App. 147. Unjust enrichment, in turn, " does not require the performance of any wrongful act by the one enriched . . . Innocent parties may frequently be unjustly enriched. What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it." (Citation omitted; internal quotation marks omitted.) Trevorrow v. Marcuccio, Superior Court, judicial district of Windham, Docket No. CV-08-5003144-S (August 21, 2009, Swords, J.), aff'd, supra . Nevertheless, even if the Bristol property could not be placed in constructive trust as a remedy for Felix's unjust enrichment, there is no question that the court may impose such a constructive trust to remedy Gale's embezzlement.
Although Gale has conveyed her interest in the Bristol property to Felix such that he is now the sole owner, the court may still impress a constructive trust upon the property as restitution for Gale's theft. As evidenced by the quitclaim deed attached to Felix's affidavit, on June 19, 2015, Gale conveyed her interest in the Bristol property to Felix " for the consideration of one dollar and other valuable considerations received." Because this exchange was made for a merely nominal consideration after Gale had already pleaded guilty to embezzlement, Felix cannot be considered a bona fide purchaser. See Drazen Properties Ltd. Partnership v. E.F. Mahon, Inc., 19 Conn.App. 471, 477, 562 A.2d 1142 (1989) (" A bona fide purchaser is one who buys property of another without notice that some third party has a right to or interest in such property, and pays a full and fair price for the same . . . before he has notice of a claim or interest of such other in the property. The purchaser has such notice if he knows facts which are sufficient to put a prudent man on inquiry which, if prosecuted with reasonable diligence, would certainly lead to discovery of a conflicting claim. [Citations omitted; internal quotation marks omitted.]); 2 Restatement (Third), supra, § 68(1)(a) (" a purchaser gives value for rights if they are acquired . . . in exchange for present value, excluding nominal consideration . . ."). The plaintiff is therefore entitled to obtain restitution in the form of a constructive trust to the extent that it can trace the embezzled funds to mortgage payments made on the property and payments made for the improvement of the property.
The plaintiff further argues that, because the Bristol property was purchased and improved with fraudulently obtained funds, Felix may not avail himself of the homestead exemption contained in General Statutes § 52-352b(t), which precludes a judgment creditor from attempting to enforce a money judgment by way of postjudgment attachment on a judgment debtor's " homestead." Because the court concludes that the imposition of a constructive trust constitutes neither a money judgment nor a mechanism for enforcing such a judgment, the court need not decide whether § 52-352b(t) is subject to a fraud exception.
Section 52-352b lists the types of property that are exempt from attachment for the purposes of enforcing a money judgment. See General Statutes § 52-350f (" A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under [General Statutes] section . . . 52-352b . . ."). Section 52-352b provides in relevant part: " The following property of any natural person shall be exempt: . . . (t) The homestead of the exemptioner to the value of seventy-five thousand dollars . . ." As used in § 52-352b(t), " exempt" means " not subject to any form of process or court order for the purpose of debt collection." (Emphasis added.) General Statutes § 52-352a(c). A constructive trust, however, does not result in a money judgment and it is not a mechanism for debt collection; it is, effectively, a declaration by the court requiring the constructive trustee to convey legal title of certain property to the holder of the beneficial interest. See Cone v. Dunham, 59 Conn. 145, 157, 20 A. 311 (1890) (" Implied trusts are such as arise by operation of the law . . . they include the two classes of trusts known as resulting and constructive trusts . . . In implied trusts . . . instead of the idea of permanence, the substantial right of the beneficiary is that the trust should be ended by a conveyance of the legal title to himself. All trusts by operation of law consist, therefore, in a separation of the legal and equitable estates, one person holding the legal title for the benefit of the equitable owner, who is regarded in equity as the real owner, and who is entitled to be clothed with the legal title by a conveyance." [Citation omitted; internal quotation marks omitted.]). As such, a court enforces a constructive trust not by attachment, but by an injunction ordering the constructive trustee to convey the subject property to the holder of the beneficial interest. See 2 Restatement (Third), supra, § 55, comment (b), pp. 297-98 (" A court has the power to reassign title . . . as a means of rectifying unjust enrichment . . . Constructive trust is a flexible device . . . by which a court directs that property to which B holds legal title be transferred to A . . . The flexibility of constructive trust is significantly enhanced because this implicit injunction--the order to surrender specific property to the claimant--can easily be (and is frequently) made conditional on further remedial steps necessary to complete justice in a particular case."). Therefore, the postjudgment attachment procedures contained in Connecticut General Statutes § 52-350a et seq., and the corresponding exemptions therefrom, are inapplicable to constructive trusts.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's motion for summary judgment on counts one, three, four, five, and six, and denies the motion as to count two.