Opinion
No. 4000024
May 27, 2005
MEMORANDUM OF DECISION
This internecine litigation between the plaintiff, Sherry Wright, and the defendant, Walter Wright, Jr., one of her two brothers, arises out of their respective handling of the property of their now-deceased parents toward the end of the parents' lives.
A third sibling, Stephen Wright, appeared during the trial but is not a party to this action.
On July 1, 2004, the plaintiff filed a four-count complaint against the defendant. The first count alleges that on February 27, 2001, the parties' parents, both of whom were ill and elderly, conveyed their home in Hamden to the defendant under an oral agreement that the property would be held by the defendant in trust for the benefit of all three siblings. At the time, the plaintiff resided in the home with the parents in order to care for them. The complaint alleges that the defendant had a confidential relationship with his parents, and that the defendant attempted to evict the plaintiff from the home. The plaintiff claims that the defendant will be unjustly enriched if he is permitted to keep the home, and she seeks the imposition of a constructive trust thereon.
Prior to trial, the parties agreed to the imposition of a constructive trust on the family home. The parties further requested that the court withhold the entry of judgment on the first count because of outstanding tax issues. The court accedes to this request. Accordingly, the first count is not presently before the court.
The second count alleges that prior to April 15, 2004, the plaintiff and her mother maintained a joint bank account in both of their names. The plaintiff claims that in order to induce their mother to withdraw this money from the joint account, the defendant intentionally misrepresented to their mother that the plaintiff was stealing her funds. In reliance on this false representation, the mother closed the account on April 15, 2004, and gave the remaining monies therein to the defendant. The plaintiff claims that the defendant committed fraud, as a result of which she lost the money held in the joint account.
The third count incorporates the allegations of the second count and claims that the defendant was unjustly enriched by the monies he received from the joint account. The fourth count, which is a claim for conversion, also incorporates the allegations of the second count and alleges that the defendant's conduct deprived the plaintiff of funds in which she had an ownership interest. The plaintiff seeks money damages.
The defendant has answered the plaintiff's complaint and filed two special defenses. The first special defense alleges that the plaintiff has "unclean hands" because she wrongfully appropriated her mother's monies. The second special defense is in the nature of a set off.
In addition, the defendant has filed a four-count counterclaim. The first count of the counterclaim alleges that the plaintiff misappropriated and misspent her mother's money prior to the latter's death in April 2004. The fourth count alleges that this conduct constitutes civil theft, pursuant to General Statutes § 52-564. The second count alleges that shortly before her father's death in late 2002, the plaintiff moved into the family home, ostensibly to care for her elderly parents, and she has remained living there subsequent to their deaths, contrary to the wishes of the defendant, who is the title owner of the property. According to the defendant, the plaintiff has not paid rent, failed to pay for utilities, reprogrammed the alarm code, thwarted the defendant's attempts to market the property for sale and kept the defendant out of possession. The third count alleges that these actions of the plaintiff constitute a tortious trespass. The defendant claims money damages, a set off of any damages he may owe the plaintiff, treble damages pursuant to General Statutes § 52-564 and any other legal or equitable relief the court deems proper.
General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
The plaintiff has answered the counterclaim and interposed a special defense that the third and fourth counts thereof are without probable cause and were asserted with malice, in violation of General Statutes § 52-568.
General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
The case was tried to the court which now finds the following facts. The defendant, a successful professional, is the oldest child of Walter Wright Sr. and Lillian Wright. In 2001, as the parents were both approaching their eighties and were in poor health, they transferred the family home in Hamden to him, in the hope that they eventually might qualify for Medicare.
Sometime earlier, the parents had transferred a residence on Colby Court in New Haven to the defendant. They had initially purchased the residence on Colby Court in their own names for the plaintiff, with the understanding that the plaintiff would pay the mortgage. The plaintiff, who had a child and had been separated from her husband for several years, was unable to do so. The mortgagee foreclosed on the property and took possession of it.
In 2002, the parents were in need of care and assistance in living in their home and the plaintiff, who had long been employed as a medical assistant for a New Haven physician, and her son were in need of a place to live. That year, the plaintiff moved back into the family home. The parties do not dispute that the plaintiff "did administer care to [her parents] throughout the remainder of their lives."
Defendant's Memorandum, p. 2.
On February 19, 2003, the parties' father died of cancer. At the time of the father's death, the parents had a checking account and a savings account that were in both of their names. The following day, the plaintiff had her name added on both accounts. The plaintiff proceeded to handle all of her mother's finances, using both the checking and savings accounts. The monies contained in these two accounts derived from three sources: (1) a total $25,588.15, transferred from the accounts in her parents' names, prior to her father's death, (2) the mother's monthly social security checks, and (3) the proceeds from a personal injury claim that was settled on behalf of the mother prior to her death.
Curiously, although the plaintiff had her name added to the checking account, on every check she drew on the account she signed her mother's name. She drew three checks, payable to herself in the amounts of $300, $500 and $700. She drew another check payable to a dentist, Dr. James Camarano, in the amount of $750 for dental services for herself.
After their father's death, the parties' mother received social security and pension benefits in the amount of $24,015. Of this amount, $4,360.61 was not deposited. The plaintiff did not maintain records of her expenditures on behalf of her mother and the household, and the disposition of this sum is not documented.
In January 2003, attorneys for the mother settled a personal injury claim on her behalf and forwarded her a draft in the approximate amount of $30,000. The plaintiff signed her mother's name on the check, negotiated it, but deposited only $18,000 in the savings account. She claims that the balance of $12,000 was a gift to her from her mother.
Additional facts will be recited as necessary.
I
The second count of the complaint alleges that the defendant intentionally misrepresented to her mother that the plaintiff had been stealing her funds, thereby inducing her to withdraw $32,154.33 from the joint account she had with the plaintiff and give it to the defendant. The plaintiff claims that this was fraud.
"The essential elements of an action in common law fraud . . . are that (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777, 802 A.2d 44 (2002).
The following additional facts are necessary to the disposition of this count. Using a power of attorney his mother had given him, the defendant examined statements of the checking and savings bank accounts. The defendant was concerned because he considered his sister to be financially irresponsible, because monies appeared to be unaccounted for, and because the plaintiff had not paid the premiums for the mother's homeowners insurance and certain of her utility bills. The defendant called for a family meeting, which occurred at the family home in mid-April 2004. Present at the meeting, in addition to the plaintiff and the defendant, were the parties' mother, their younger brother Stephen, and Stephen's wife, Tressie.
The plaintiff claims that at this meeting, the defendant told their mother that the plaintiff had been stealing funds from her. The defendant denied this and testified that he questioned the plaintiff about the discrepancy in the accounts. Moreover, the defendant claims that the denouement of the meeting was an understanding that the defendant would be taking control of their mother's accounts finances, an understanding in which the plaintiff acquiesced if not consented. Several days after the meeting, the defendant took his mother to the bank, closed the existing savings and opened a new account on which the plaintiff was not named as an owner. Ten days later, on April 25, 2004, the parties' mother died.
Preliminarily, the defendant argues that the plaintiff lacks standing to assert this claim because she was not the person to whom the alleged misrepresentation was made. "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).
The account which the defendant either closed or from which he withdrew funds was in the names of the plaintiff and her mother jointly. "[U]nder Connecticut law, coholders of a joint account are considered owners of the entire account . . . with access to the entire amount therein" (citation omitted; internal quotation marks omitted) Grass v. Grass, 47 Conn.App. 657, 661, 706 A.2d 1369 (1998); General Statutes § 36a-290; at least with respect to the claims or rights of third parties. Durso v. Vessichio, 79 Conn.App. 112, 121-22, 828 A.2d 1280 (2003). The test for standing or aggrievement is whether there is a possibility, as distinguished from a certainty, that some legally protected interest has been affected. Dept. of Income Maintenance v. Watts, 211 Conn. 323, 326, 558 A.2d 998 (1989). Since the plaintiff was a prima facie owner of the entire account, she has standing to complain of tortious acts that deprived her of the monies in that account. Compare Ardito v. Olinger, 65 Conn.App. 295, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001).
General Statutes § 36a-290 provides in pertinent part: "(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them . . . such account is deemed a joint account and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto . . ."
However, the presumption of co-ownership of the entire account that arises by operation of § 36a-290 may be rebutted by clear and convincing evidence. Cf. Durso v. Vessichio, supra, 79 Conn.App. 112. Here, the court finds by clear and convincing evidence that the entire account was owned solely by the parties' mother. The plaintiff's own testimony bears this out. She had her name placed on the account to facilitate herself in her role as caretaker of her mother and as a fiduciary handling her mother's finances. There is no evidence that any of the monies the plaintiff earned from her employment were deposited in this account.
The significance of this is two-fold. First, plaintiff did not own any of the money in the account; hence, she could not be deprived of that money by anyone. This alone is dispositive of the merits of her claim. "Only those who have suffered injuries as a result of the alleged fraud are proper party plaintiffs in an action for damages for fraud." 37 C.J.S., Fraud § 94 (1997).
Second, all of the money in the account was owned by the mother and was hers to dispose of as she deemed best. Notably, the plaintiff agreed with the defendant that, at the family meeting, despite her ill health and impending death, their mother was "in possession of her mental faculties." The court finds that the mother was competent and in full possession of her faculties. While she was very ill and days away from dying, her judgment was not impaired. Moreover, there is no claim or evidence of undue influence.
Finally, the court finds that defendant did not accuse the plaintiff of stealing at the family meeting or at any other time. The plaintiff's testimony in this regard was that, in addition to the family meeting, she and the defendant had another meeting at which the defendant accused her of stealing. The court finds that, other than the family meeting in mid-April, there was no other meeting between the parties at which the subject of the plaintiff's handling of her mother's finances was discussed. At the family meeting, the parties were present together with their mother, their brother Steven, and his wife. The preponderance of evidence is that the defendant did not accuse the plaintiff of stealing at this meeting. Indeed, it is unlikely that the defendant would have made such an inflammatory accusation in the presence of his ailing mother. Rather, it is more likely that the defendant stated what everyone in the room except his mother already knew: that monies were unaccounted for, that bills had been unpaid, and that expenditures had been made which he had good reason to question, such as the plaintiff's paying a large bill for dental work on herself with her mother's funds. Even assuming the parties' mother later relied on her son's remarks, the defendant had good cause to raise all of these concerns, each of which was grounded in fact. Moreover, since the court has found that the monies in the account were entirely those of the mother, the same statute that confers standing on the plaintiff, § 36a-290, conferred the right on her mother to withdraw all the monies in the account. Ardito v. Olinger, supra, 65 Conn.App. 297-98.
As quoted supra, the first two elements of an action for fraud are "a false representation was made as a statement of fact [that] was untrue and known to be untrue by the party making it . . ." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 777. The court finds that these elements have not been proven by the plaintiff.
II
The third count of the complaint claims that the defendant has been unjustly enriched by the $32,154.33 he withdrew from the joint savings account that was in the names of his mother and the plaintiff.
A plaintiff seeking recovery for unjust enrichment must prove (1) that the defendant was benefited, (2) that the defendant unjustly did not pay the plaintiff for the benefit, and (3) that the failure of payment was to the plaintiff's detriment. Ayotte Bros. Construction Co. v. Finney, 42 Conn.App. 578, 581, 680 A.2d 330 (1996). "The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff." (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). Even assuming a benefit was conferred on the defendant, it was conferred by the parties' mother and not by the plaintiff.
General Statutes § 36a-290(b) provides: "The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds." This statute creates a presumption, rebuttable by clear and convincing evidence, that the creation of a joint account is evidence of the intent of the person creating the account to vest title in all named owners of the account. Cf. Bunting v. Bunting, 60 Conn.App. 665, 679, 760 A.2d 989 (2000). Also, "[p]ursuant to [General Statutes § 36a-290(a)], 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.) Ardito v. Olinger, supra, 65 Conn.App. 297-98. The court finds that the money in the account belonged to the parties' mother. This is the gist of the plaintiff's own testimony. Moreover, there is no evidence that the plaintiff mixed any of her own income or assets in this account. In addition, there was never an intent by the mother to make a gift of it to the plaintiff. Rather, the plaintiff had her name put on the account as a matter of convenience in paying her mother's expenses. Finally, since the parties agree that their mother, though very sick, was of sound mind in April 2004, the money in the account was hers to convey as she saw fit. The plaintiff has failed to prove the elements of unjust enrichment.
While a parent and child relationship does not per se give rise to a fiduciary relationship; Preston v. Preston, 102 Conn. 96, 112, 128 A. 292 (1925); Bunting v. Bunting, 60 Conn.App. 665, 680, 760 A.2d 989 (2000); Cooper v. Cavallaro, 2 Conn.App. 622, 626, 481 A.2d 101 (1984); here, by clear and convincing evidence, the court finds that such a relationship was created by the plaintiff's handling of her mother's financial affairs, especially in the context of the plaintiff's assumption of the responsibility for the medical care of her mother, a very sick woman.
III
The fourth count of the plaintiff's complaint alleges that the defendant's unauthorized conduct deprived her of funds in which she had an ownership interest resulting in a loss to her.
"Our Supreme Court has defined conversion as `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.' (Internal quotation marks omitted.) Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, CT Page 9312 646 A.2d 799 (1994). To establish a prima facie case of conversion, the plaintiff had to establish that `(1) the deposit given to the defendant belonged to the [plaintiff], (2) the defendant deprived the [plaintiff] of [her] funds for an indefinite period of time, (3) the defendant's conduct was unauthorized and (4) the defendant's conduct harmed the [plaintiff].' Aubin v. Miller, 64 Conn.App. 781, 796, 781 A.2d 396 (2001)." Durso v. Vessichio, supra, 79 Conn.App. 125.
As already discussed, the monies the parties' mother gave to the defendant belonged not to the plaintiff, but to the mother and were hers to dispose of as she saw fit. The plaintiff has not established the elements of conversion.
IV
In the first count of the defendant's counterclaim, the defendant alleges that beginning in February 2003, the plaintiff assumed the responsibility of managing her mother's financial affairs, including paying of her bills and processing her Social Security checks. She and her mother established joint bank accounts, the funds of which were intended to provide for the comfort, care and support of the mother, with the express understanding that any moneys remaining in the accounts at the time of the mother's death would be distributed equally among her heirs, including the defendant. From February 2003, until shortly before the mother's death in April 2004, the plaintiff spent her mother's money on services and items that were not related to her mother's comfort, care and support. Therefore, the defendant alleges, the plaintiff has knowingly received a benefit for which she has not paid, has been unjustly enriched and has deprived other heirs of the mother, including the defendant, of moneys that would have been available for distribution.
At the conclusion of the evidence, the court sua sponte advised the parties that it was concerned as to whether the defendant was the proper party to assert the causes of action alleged in counts one and four of his counterclaim. In support of its concern, the court cited Butler v. Sisson, 49 Conn. 580 (1882). In her post-trial brief, the plaintiff argues that the defendant's claim of mismanagement of their mother's funds must be dismissed because the fiduciary of the estate has the exclusive right to bring such a claim. In addition, the plaintiff has filed a post-trial motion to dismiss the first count of the counterclaim. As of this date, the defendant has not responded to the plaintiff's argument.
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter' . . . a lack of standing deprives the court of subject matter jurisdiction . . ." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). The lack of subject matter jurisdiction cannot be waived and may be raised at any time. Practice Book § 10-33; Sivilla v. Philips Medical Systems of N.A., Inc., 46 Conn.App. 699, 703, 700 A.2d 1179 (1997).
The gist of the first count of the counterclaim is that the plaintiff mishandled or misappropriated monies belonging to her mother while her mother was still alive. At common law, such a cause of action would have died with the mother and could not have been revived by her executor or administrator. Flynn v. New York, N.H. H.R. Co., 111 Conn. 196, 201, 149 A. 682, aff'd, 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837 (1930); Merwin v. Merwin, 75 Conn. 8, 10, 52 A. 614 (1902); Booth's Administrator's v. Northrop, 27 Conn. 325, 328 (1858). This rule has been abrogated by General Statutes § 52-599, which, in subsection (a), provides: "A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." Indeed, it has been said that the legal title to such causes of action ("choses in action") "vests in the administrator or executor." Lynch v. Skelly, 138 Conn. 376, 379, 85 A.2d 251 (1951). "As a general rule, in the absence of a statute so providing, neither an heir nor a distributee can, before a decree of distribution, maintain an action at law or a suit in equity in respect of the personal estate of his ancestor." 31 Am.Jur.2d, Executors and Administrators § 1166 (2002).
That a cause of action accruing before the death of a decedent survives thereafter by virtue of the statute only in favor of the decedent's personal representative was recognized over 100 years ago. In Butler v. Sisson, supra, 49 Conn. 580, the beneficiaries of the estate of Jonathan Butler brought a bill in equity to compel the defendant to transfer certain stocks to the Security Company, the administrator of the estate, and to account for monies that they claimed he was holding and that were the property of the estate. The defendant filed a demurrer on the grounds that only the Security Company could bring the bill. The trial court agreed and dismissed the bill. In affirming the trial court, the Supreme Court stated: "It is very clear that, if the Jonathan Butler estate is entitled to the stocks, it is not only in the power of the Security Company as administrator to bring a proper action at law for their recovery, but is its duty to do so. This duty the law enforces by sundry remedies of which parties interested in the estate may avail themselves; while it presumes that an administrator will do his duty and gather in all the assets that he is able. He ordinarily has no interest to the contrary. Where he neglects his duty in this or any other particular he makes himself liable on his bond; he may be removed by the court of probate on the application of any person interested; if he finally neglects to account for all the assets of the estate, the aggrieved heir or legatee may object to the allowance of his administration account in that court . . . The law has intended to furnish all parties interested ample security against every neglect or maladministration on the part of executors, administrators and testamentary trustees, in the probate court or by suits on the bonds filed in that court." Id., 588. The court also held that the petitioners had not advanced any reason why they could not have availed themselves of these remedies. The court further observed that it did not suggest that "the doors of a court of equity are absolutely closed against" persons in the petitioners' situation. "They may present a case of an impending irreparable injury. For instance, in a case of misapplication of funds commenced or probably to be made by an insolvent trustee, executor or administrator, with insufficient bond, that court would, on the application of parties interested, arrest his action and take the estate into its custody at once and hold it until his successor should be duly qualified. But no such emergency is presented here." Id., 589-90.
More recently, Butler v. Sisson was cited by the Supreme Court for the proposition that: "If the estate has a viable claim against the trustees, the defendant has a fiduciary duty to bring such a claim on the estate's behalf." Ramsdell v. Union Trust Co., 202 Conn. 57, 66, 519 A.2d 1185 (1987).
While there is language in Appeal of Dunn, 81 Conn. 127, 70 A. 703 (1908), and Winchell v. Sanger, 73 Conn. 399, 47 A. 706 (1900), that may be read to suggest that beneficiaries or legatees under a will may have standing to bring an action arising prior to the death of their decedent, the general rule is that only the decedent's personal representative, that is, an administrator or executor, may bring such an action. Dickman v. Generis, 48 Conn.Sup. 380, 383-84, 845 A.2d 488 (2004) ( 36 Conn. L. Rptr. 460); Czel v. Parks, 16 Conn.Sup. 211, 212 (1949) ("The executors of the grantor are proper parties rather than the legatees under his will."); G. Wilhelm D. Daniels, Connecticut Estates Practice Series, Settlement of Estates in Connecticut (Thomson West 2d Ed., 2004) §§ 8:347, 8:348, 8:354, 8:355; see also Davis v. Hunter, 323 F.Sup. 976, 979-80 (D.Conn. 1970).
In Winchell v. Sanger, 73 Conn. 399, 47 A. 706 (1900), the defendant, Sanger, had brought a claim against the estate of one Lura which its administrator, Cable, failed to properly defend. The legatees of Lura brought an action to obtain a new trial. In reversing the judgment for the defendant, denying the petition, the Supreme Court stated that "the plaintiff's in this case are interested in the estate of Lura. They are legatees, and their legacies will be required, in whole or in part, to satisfy the judgment in the said case of Sanger v. Cable. They are, in interest, the real parties defendant in that case. They are the real parties against whom judgment in that case was rendered; the real judgment debtors. It is their property which will be taken to pay that judgment if it is allowed to stand. They are parties who, under the Practice Act, could and should have been made defendants in that case. They were parties who had an interest in the controversy adverse to the plaintiff; but they had no notice of that action and had no opportunity to appear and be made defendants." Id., 403.
In Appeal of Dunn, 81 Conn. 127, 70 A. 703 (1908), the decedent had been defrauded during her life by her own conservator in connection with the sale of her real estate. The conservator's account was accepted by the Probate Court. After the decedent's death, her executor, Michael Dunn, and his three children sued the conservator for fraud. The plaintiffs were named in the writ simply as individuals but the complaint alleged that the decedent died testate, that her will had been probated, and that Dunn had duly qualified as executor. The Supreme Court had little difficulty in holding that the omission of the writ to describe Dunn as executor was of no moment and had not been timely raised. However, the court went further and stated that "Dunn, individually, as one of the four residuary legatees, was a real party in interest within the meaning of the Rules of Court. Practice Book (1908), p. 238 § 126." Id., 132.
Certain exceptions to this general rule have been recognized or suggested. See Dickman v. Generis, supra, 48 Conn.Sup. 384. One generally recognized exception is that the legatees under a will may bring an action that would otherwise be maintainable only by the decedent's personal representative in the case of fraud, collusion or refusal to sue on the part of the personal representative. 26B, C.J.S., Descent Distribution § 90 (2001); cf. Winchell v. Sanger, supra, 73 Conn. 403.
No such exception to the general rule is supported by the record. At trial, the court was simply advised by the defendant's attorney that the executor was "aware" of this action. Aside from the rule that representations of counsel are generally not evidence; Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985); the executor's awareness of the pendency of this proceeding does not implicate any recognized exception to the general rule. The court concludes that the defendant lacks standing to maintain the first count of his counterclaim. See Tata v. Reignier, Superior Court, judicial district of Waterbury, Docket No. CV 0103374 (November 19, 1991, Meadow, J.) ( 6 C.S.C.R. 1129) ( 5 Conn. L. Rptr. 218) (so holding on facts similar to those here). For that reason, the first count of the counterclaim is dismissed.
The fourth count incorporates the facts alleged in the first count and adds that "the plaintiff's actions, as aforementioned, constitute civil theft within the meaning of [General Statutes] § 52-564. That statute provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." The word "steals" in the statute is synonymous with larceny as defined in the Penal Code. Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000). For the same reason that the defendant lacks standing to maintain the action alleged in the first count, he lacks standing to maintain the action alleged in the fourth count. Sua sponte, the court dismisses the fourth count.
V CT Page 9316
The second count alleges that following their mother's death, the plaintiff has remained in the residence at the property against the wishes of the defendant, who is the owner of the property, without the defendant's permission, without a lease and without paying rent. The defendant seeks rent for each month in which the plaintiff has occupied the house since the mother's death.
There is no dispute that the plaintiff has occupied this single-family home since the mother's death without paying rent or use and occupancy payments. As she did at trial, the plaintiff "acknowledges a responsibility from the date of her mother's death to pay rent." Plaintiff's Memorandum, p. 8. However, the parties do take issue as to the amount of the reasonable rental value of the house and whether the plaintiff must pay the total amount of that value or only a portion thereof. The defendant opined that the fair rental value of the home was $1,800 a month. The plaintiff has submitted expert evidence that the house "has an economic rent of between $1,200 and $1,300 per month . . ." The defendant and the plaintiff's expert have also given evidence as to the nature of the house and the neighborhood. The court finds that the reasonable rental value of the house is $1,450 per month.
Both parties misuse the term "rent." "`Rent' is defined as: `An agreed sum paid at fixed intervals by a tenant to his landlord for the use of land or its appendages.' Webster's Ninth New Collegiate Dictionary." New Haven v. Mason, 17 Conn.App. 92, 95 n. 2, 550 A.2d 18 (1988); see General Statutes § 47a-1(h) ("`Rent' means all periodic payments to be made to the landlord under the rental agreement."). Here, there never was a rental agreement or agreed-upon sum. The defendant's claim should be for "use and occupancy" which "is a term of art that has been embodied in General Statutes § 47a-3c, providing the remedy of use and occupancy payments absent a rental agreement." New Haven v. Mason, supra, 17 Conn.App. 95 n. 2. Since the parties make no issue about terminology, neither does the court.
As observed supra, a constructive trust is being imposed on the house, to which the plaintiff presumably wild be a one-third beneficiary. Although, the plaintiff has cited no authority for the proposition that she ought to be liable only for a portion of the rental value of the house, the defendant has acquiesced thereto in his brief. Defendant's Memorandum, p. 15. Accordingly, the plaintiff is liable for 2/3 the monthly rent, there being two other beneficiaries of the trust who do not occupy the house, or $982.77 for each of the thirteen months she has occupied the house since her mother's death, for a total of $12,776. See Nearing v. Bridgeport, 137 Conn. 205, 206, 75 A.2d 505 (1950) ("The trial court [is] justified in deciding the case on the theory on which it was tried.").
VI
The third count of the counterclaim alleges that the plaintiff has acted to deprive the defendant of his rights to possession of the property and that her actions constitute tortious trespass. "A trespass on real estate is the doing of a direct injury to property by force. Whitman Hotel Corporation v. Elliot Watrous Engineering Co., 137 Conn. 562, 570, 79 A.2d 591." Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 516-17, 280 A.2d 877 (1971). "Since trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail . . . Proof of its title and the absence of actual, exclusive possession by another are sufficient to show constructive possession in the plaintiff." Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973).
The defendant has failed to prove that the plaintiff inflicted any injury to the property; to the contrary, she caused a valuable improvement to the property, albeit not at her expense, when she had the second floor bathroom renovated. Moreover, the defendant cannot prove the absence of actual exclusive possession in another. That the plaintiff's son and boyfriend also occupy the house, with her, under her right to possession as a tenant at will does not, as the defendant contends, defeat her from enjoying actual exclusive possession of the house. "Exclusive possession does not necessarily mean sole possession." State v. Foster, 149 N.C.App. 206, 209, 560 S.E.2d 848, cert. den. 355 N.C. 496, 564 S.E.2d 48 (2002). "`Exclusive possession' . . . merely means the actual exercise of the possessory rights vis a vis third parties." Matter of Daben Corp., 469 F.Sup. 135, 143 (D.P.R. 1979); see also Walker v. Walker, 509 S.W.2d 102, 106 (Mo. 1974) (in context of adverse possession, "`[e]xclusive possession' means that the claimant must hold the possession of the land for himself, as his own, and not for another."); see e.g. Torre v. DeRenzo, 143 Conn. 302, 306, 122 A.2d 25 (1956) (lessee who lived in apartment with her three children was in exclusive possession); see also Carroll v. Cooney, 116 Conn. 112, 163 A. 599 (1933); Milardo v. Banciforte, 109 Conn. 693, 698, 145 A. 573 (1929); Gura v. Scotnickie, 102 Conn. 83, 87-88, 92, 128 A. 22 (1925); Radican v. Hughes, 86 Conn. 536, 86 A. 220 (1913); Quigg v. Zeugin, 82 Conn. 437, 439-40, 74 A. 753 (1909); Holly v. Brown, 14 Conn. 255, 270 (1841); 75 Am.Jur.2d, Trespass § 38(1991) ("A possession of the property in question with others is sufficient . . .").
See Radican v. Hughes, 86 Conn. 536, 543, 86 A. 220 (1913) ("When one enters on land, to use and occupy it with the consent and permission of the owner, but for no definite time, he is a tenant at will.")
Judgment may enter in favor of the defendant on the second, third and fourth counts of the complaint. Judgment may enter dismissing the first and fourth counts of the counterclaim. Judgment may enter in favor of the defendant and against the plaintiff on the second count of the counterclaim in the amount of $12,776. Judgment may enter for the plaintiff on the third count of the counterclaim.
BY THE COURT
Bruce L. Levin Judge of the Superior Court