Summary
assuming arguendo that the execution of a quitclaim deed that occurred outside of the limitations period was the initiating event for purposes of Conn. Gen. Stat. § 52-577, and finding nonetheless that the defendant's subsequent refusal to tender payment for the victim's share of profits from a joint real estate venture gave rise to a continuing course of conduct sufficient to toll the statute of limitations where the parties had a special relationship
Summary of this case from Gibson v. Metropolis of CT LLCOpinion
No. CV 06-5007649S
May 6, 2011
MEMORANDUM OF DECISION
The plaintiff, administrator of the estate of his late son Cameron Car-lo Hogeboom-Huang, Ex. 10, hereinafter "CH," claims by a September 17, 2007 Amended Complaint that the defendant, CH's mother and the plaintiff's former companion, converted funds rightly belonging to CH's estate generated from the sale of real estate partially owned by the CH, violated CGS 52-564 (`statutory theft') by the same conduct, violated CGS 42-110 (`unfair trade practices') by the same conduct, that a quit claim deed signed by CH in favor of Jan Hogeboom was subject to an oral condition and/or funds from the above-described sale are subject to a constructive trust. The defendant, Jan Hogeboom, hereinafter "JH," in her October 30, 2007 Answer to the Amended Complaint and Special Defenses admits that she and CH jointly purchased real estate and that thereafter CH died in a motor vehicle accident, she denies the balance of the claims and asserts a statute of limitations defense, a defense that "the defendant became the sole owner of 413 Ocean Avenue, Stratford, CT, upon the Quit Claim Deed to her from her son of his interest in the same" and a defense that "defendant paid substantially all of the purchase price of 413 Ocean Avenue Stratford, CT so that any interest in the Estate of Cameron Car-lo Hogeboom-Huang had in the net proceeds of the same would be measured by the decedent's pro-rata share(.)"
The plaintiff denied the Special Defenses.
The case was tried to the court on July 8th and 9th, 2010. Counsel requested time to file briefs — the last of which was filed on March 11, 2011.
FINDING OF FACT:
On January 26, 2000 CH and JH purchased, as tenants in common, real property known as 413 Ocean Avenue, Stratford CT, hereinafter "Ocean Avenue," Ex. 4A, 4B and 6, at a purchase price of $582,731.00 (five hundred eighty-two thousand seven hundred thirty-one dollars). CH paid $27,300.00 (twenty-seven thousand three hundred dollars) toward the down payment on the purchase while JH paid $89,246.20 (eighty-nine thousand two hundred forty-six dollars and twenty cents) toward the down payment on said purchase. The balance of the purchase price, $466,184.80 was financed via a promissory note due and owing jointly and severally from both JH and CH to the lender and secured by a mortgage on the subject property.
The parties had no written or oral agreement precisely defining their economic relationship vis a vis the subject property other than the above-mentioned note and deeds.
However, as the parties were equally liable on the promissory note, a comparison of their actual past contributions and potential economic obligations under the promissory note yields a determination of their respective economic interests in the subject property. CH had a 47.04% share (being his $27,300.00 down payment and his joint and several obligations on the $466,184.80 loan) and JH had a 52.96% share (being her $89,246.20 down payment and her joint and several obligations on the $466,184.80 loan).
The court totaled their respective obligations — actual and potential — (CH's being $27,300.00 + $466,184.80 = $493,484.80 and JH's being $89,246.20 + $466,184.80 = $555,431.00), i.e. a total of $1,048,915.00. The court then divided that total by the parties' respective potential obligations to determine their relative obligations inter se.
On September 3, 2003 CH allegedly conveyed his interest in Ocean Avenue, via a Quit Claim deed, to JH. See Ex. 1 and Ex. E.
The validity of this quit claim deed and, if valid, the ramifications of this quit claim deed is the subject of most of the dispute between the parties.
On October 18, 2003 CH died in a motor vehicle collision in Colorado.
On January 14, 2004 JH recorded the September 3, 2003 Quit Claim deed from CH to JH in the Stratford CT land records.
On April 15, 2004 JH sold and conveyed by warranty deed Ocean Avenue to a third-party purchaser in consideration of $1,170,000.00 (one million one hundred seventy thousand dollars). The net payable to JH, after satisfaction of mortgage balance and other costs of closing, was $679,564.14 (six hundred seventy-nine thousand five hundred sixty-four dollars and fourteen cents).
JH declared a long-term capital gain of $285,553.00 in connection with this transaction on her 2004 Federal Income Tax, Schedule D, Ex. J. Apparently JH included in her calculations of her `basis' for calculation of the amount of the long-term capital gain CH's $27,300.00 contribution toward the down payment — as well as her own contribution, all expenses related to the carrying costs of the property including local property taxes, utilities and the like, mortgage related costs and expenses, sales expenses and claimed renovation expenses. No evidence was offered as to whether or what amount of income tax liability reduced said $285,553.00 gain.
JH has refused, failed and neglected to give any portion of the sales proceeds, including CH's initial contribution to the down payment, from the aforementioned April 15, 2004 transaction to the Estate of CH.
The Quit Claim Deed
The September 3, 2003 Quit Claim deed, Ex. 1, purports to be a transfer of all the right, title, interest and claim which CH had in Ocean Avenue to JH in consideration of $1.00 (one dollar).
JH testified that she bought a blank quit claim deed form at a stationary store, based on her considerable past real estate transaction experience she prepared the subject Quit Claim deed for CH to sign. She testified that she arranged for CH to meet her at a ReMax Real Estate office in Fairfield, CT to sign this deed. The deed is purportedly signed by CH, witnessed by Pat Laezzo and Sherwood Judson and an acknowledgement is signed by notary public Brian J. Shannon.
The plaintiff disputes that CH signed the deed. The plaintiff contends that the signature of CH on that deed is not genuine. The plaintiff offered handwriting expert testimony on this point. The plaintiff also offered the testimony of a "witness" to CH's signature, Patrick Laezzo, who testified that he did not sign that Quit Claim deed and did not witness that deed. Patrick Laezzo, whose name and "signature" appear as a witness on the deed, credibly testified that he did not witness CH sign the deed, that the `witness' signature on the deed was not his signature and that he had no knowledge of how his name appeared on the deed. Patrick Laezzo noted that the signature on the second page of plaintiff's exhibit one reads: Pat Laezzo. Mr. Laezzo indicated that he never signed a document such as a deed with his nick name: "Pat." Rather he testified that when he would sign a deed he'd always sign with his full name "Patrick." Laezzo was a real estate agent who occasionally worked at ReMax Real Estate in Fairfield CT in 2003.
On cross-examination Mr. Laezzo acknowledged that he did know the notary public, Brian Shannon, who acknowledged the signature of Cameron Huang on the Quit Claim deed. Brian Shannon was a co-worker of Laezzo at ReMax who sometimes worked in the same office as Patrick Laezzo. On rare occasion Laezzo recalled that he did witness a deed but had no memory of ever witnessing a deed in which Brian Shannon participated.
Anna Kyle, a handwriting expert with over 37 years experience who has previously testified in various courts in Connecticut and whose handwriting expertise was conceded by defense counsel, opined that the signature of Cameron Huang that appears on page 2 of plaintiff's exhibits number 1, the 9/3/03 quit claim deed was not a genuine signature of Cameron Huang. She described in significant detail the basis for her opinion having examined some 28 exemplar signatures of Cameron Huang as they appeared in from his checks produced by a Fort Collins Colorado Bank in which Cameron Huang had a checking account. The checks were dated between January and June of 2003. Ms. Kyle described that she found great similarity in the signatures on the checks and that she found that the quitclaim deed had significant differences than the signature contained on the checks. Her conclusion was that the signature on the quitclaim deed, plaintiff's exhibit number 1, reported to be the signature of Cameron Huang was not a genuine signature.
Ms. Kyle described that the method of evaluating handwriting she used is standard in the field, systematic and includes at least 16 significant items of examination. She detailed these in plaintiff's exhibits 13 and 14 and then went on in plaintiff's exhibit 18 to contrast and compare the different aspects of the quit claim deed signature and the printed name beneath the signature found in the September 3, 2003 quit claim deed with known signatures of CH. Ms. Kyle testified that she found significant differences between the signatures found on Cameron Huang's checks and the quit claim deed including; the initial stroke missing in the upper case "C" consistently found on the checks and not found on the quit claim deed; the letter "a" found immediately after, the letter "a," the second letter in Cameron's name, never appears in his signatures on the checks but was included in the signature on the quit claim deed; the letter "h," first letter of Huang's last name, was significantly different in its style and appearance on the checks than on the deed, the length of the last name found on the checks was very different than the length of the last name found in the deed, the deed contains a hesitation in the intensity in the writing that is not present that exist in the quit claim deed that is not present in any of the checks and the last letter of Huang's last name "g" is extended and shaped in a fashion on the quit claim deed that is never present in the signatures contained in the checks.
Ms. Kyle concluded that the signature on the quit claim deed was not made by the same person who signed the checks and she was convinced that the person who signed the checks was in fact Cameron Huang.
The defendant offered a handwriting expert who concluded that CH's signature on the subject quit claim deed was genuine and supporting testimony of two eyewitnesses to the signature.
James L. Streeter a forensic document examiner testified on behalf of the defendant. He was conceded to be an expert with over 15 years experience in the Connecticut State Police Department as a Forensic Document Examiner. He described his back ground and experience to include training with the FBI, the Secret Service, and other law enforcement agencies. He has previously testified over 70 times in a variety of states as an expert witness in connection with document examining.
Mr. Streeter agreed with Ms. Kyle's conclusions regarding the differences between the signatures on the checks and on the deed. He agreed the signatures on the CH's 2003 checks and the signatures on the 2003 quit claim deed and mortgage loan documents were different. He explained the differences in the signatures by indicating that the checks represented "informal signatures" made by Cameron Huang and that the September 3, 2003 quit claim deed, as well as several other bank loan application documents, plaintiff's exhibits 15, 16, 17, and plaintiff's exhibit A, represented the "formal signature" of Cameron Huang.
Mr. Streeter reached the conclusion of that there are differences between "formal" and "informal" signatures based upon his years of experience. He offered no reference materials or industry/field of study standards to substantiate this position. He concluded that Cameron Huang was writing "informal" signatures on his checks and "formal" signatures on the bank loan application documents. He offered no basis independent of his judgment and experience for this conclusion.
He opined that it highly probable that the CH signature on the bank loan documents, (this category does not include the subject quit claim deed): plaintiff's exhibit 15 — defendant's F, plaintiff's exhibit 16 — defendant's G, plaintiff's exhibit 17 — defendant's H and plaintiff's exhibit 1 — defendant's exhibit E were all signed by the same person.
JH testified that she was the mother of CH. Further, that Paul Huang, who is the administrator of the estate of Cameron Huang and the plaintiff in the captioned matter, was the father of CH. JH and Paul Huang were never married, lived together for some years, shared parentage of CH and had a bitter parting. The continued enmity between them was apparent during these proceedings.
JH is currently married to Sherwood Judson. Mr. Judson's name appears on the subject quit claim deed as the second witness on the September 3, 2003 deed. JH testified that she had considerable experience with real estate transactions before September 3, 2003. She described a lengthy list of properties that she had owned, some that she had subdivided and sold as building lots, some that she had acquired, improved, and then sold and that in 1998 she purchased a property known as 401 Ocean Avenue in Stratford, Connecticut as her principal residence. In January of 2000 she purchased, with her son Cameron Huang as a co-purchaser, 413 Ocean Avenue. This property was a single-family property adjacent to her home. The properties shared a common driveway.
JH testified that in September 2003 CH was living in Colorado, CH considered Colorado his permanent place of residence, that he had come to Connecticut so as to collect belongings and that she took advantage of his presence in the state to prepare and have him execute a quit claim deed "merely as a matter of convenience" since Ocean Avenue was on the market for sale and there was a prospect of a $1.25 million dollar offer to purchase.
JH said because of her background and experience with real estate matters that she prepared the quit claim deed. She knew that by buying a blank form at a local stationary store, hand writing in the names of grantee and grantor, photocopying the property description onto the quit claim deed and bringing the same to a local notary she could avoid legal fees associated with the preparation and execution of the deed.
JH testified that having CH execute the quit claim deed so to allow the title to vest solely in JH's name was a matter of "convenience" that would allow JH to complete the sale transaction without having to ship the documents across country, have CH travel across the country to attend the sale or otherwise delay the contract's completion. JH testified that when she suggested that CH sign the quit claim deed, she was unfamiliar with the power of attorney and indicated that she would have had to hire a lawyer to prepare the power of attorney and was unwilling to do so. JH denied that she signed CH's name to the deed. She denied that she signed CH's name to the bank loan documents in connection with the original purchase of 413 Ocean Avenue, defendant's exhibit G, H, and I. She insisted that she saw CH sign the quit claim deed, plaintiff's exhibit 1, defendant's E, on September 3, 2003 in Brian Shannon's ReMax real estate sales office in Connecticut. She insisted that she did not sign Pat Laezzo's name as a witness to CH's signature and that she observed Sherwood Judson, her husband, sign the subject deed as a witness to CH's signature on September 3, 2003 in the Fairfield CT ReMax real estate sales office.
JH admitted that Ocean Avenue was listed for sale by ReMax realtor Brian J. Shannon. Mr. Shannon was also the notary who acknowledged the signature on the subject deed. Mr. Shannon did not appear at trial.
The recognizance on the subject deed is incomplete as to the state where the transaction occurred.
The recognizance includes a affirmation by the notary, Mr. Shannon, that both Cameron Huang and Jan C. Hogeboom "personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her /their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument."
JH claims she did not sign the quit claim deed for CH yet the notary acknowledges that she acknowledged to me that . . . she . . . executed the same . . . and that by . . . her signature on the instrument the person . . . upon behalf of which the person acted, executed the instrument." One reading of this acknowledgement is that JH signed the quit claim deed claiming to be acting on behalf of CH. Another explanation is that the notary mistakenly included JH's name in the acknowledgement portion of the quit claim deed. Yet another explanation is that the notary mistakenly included JH's name in the acknowledgement portion of the quit claim deed even though JH's signature appears only on the bottom of page two of the Quit Claim deed above the pre-printed line "Signature of Preparer."
JH offered no satisfactory explanation for this acknowledgement of her signature on the quit claim by the notary. JH denied signing the quit claim deed for CH.
The notary did not testify at trial.
Further, the acknowledgement describes that CH "produced ID" and the notary examined CH's "driver's license" to establish CH's identity. JH admitted that on September 3, 2003, in fact, CH's motor vehicle driver's license was suspended, Ex 8 showed that in 2000 CH's driver's license had been suspended indefinitely by the CT DMV, and that he did not possess such a drivers license but instead had a Colorado identification card, plaintiff's exhibit number 2. Exhibit 2 states on its face that it is "not a driver license." No satisfactory explanation was offered as to how the notary examined CH's driver's license under those circumstances. Some time before September 3, 2003 Mr. Shannon was hired by JH to act as the real estate listing agent for the sale of 413 Ocean Avenue. The ReMax portion of the real estate sales commission associated with the April 2004 Ocean Avenue sale was $29,375.00, Ex 7.
JH testified that she and her husband Sherwood Judson, the second witness on the deed of Cameron Huang's signature, knew Mr. Shannon socially and had had him to their house for drinks on several occasions before September 3, 2003, but did not consider themselves close friends but rather business associates. Sherwood Judson testified that on September 3, 2003 he was not yet married to JH, the marriage occurred later, but that he was living with JH on September 3, 2003 in the house adjacent to the Ocean Avenue property involved in this matter.
The court finds that the plaintiff has proved by a fair preponderance that the signature purportedly of CH on the September 3, 2003 Quit Claim deed, Ex 1, is not genuinely the signature of CH. The Quit Claim deed was not executed by CH and has no validity or force and effect of transferring CH's right, title and interest in Ocean Avenue to JH. Both experts agreed that the signature on the loan documents and the quit claim deed were quite different from the known signatures of CH as obtained from CH's bank checking account records. The court accepts the plaintiff's expert's opinion that the quit claim deed signer was not CH because of the analysis she performed using testing and methodology accepted in her field of study. The defense expert confirmed the differences in the signature pattern between the known signatures of CH and the quit claim deed. The court finds the defense expert's explanation of the differences unpersuasive because the explanation hinged on two opinions: the existence of `formal and informal signatures' and that CH would use `informal signatures' to sign his bank checks, but would use `formal signature' when signing a deed, that were offered without attribution to any scientific study or analysis accepted within the field of handwriting analysis, but rather were based on personal opinions and experience of the expert. This becomes the classic `ipse dixit' (it is because I say it) expert opinion, which in the context of this testimony, the court finds unpersuasive. Additionally, the testimony of Patrick Laezzo was very persuasive refuting that he was a witness — while the court can accept that Mr. Laezzo might forget that he'd witnessed this particular quit claim deed, the court accepts Mr. Laezzo's testimony that whenever he signed a deed he knew he was signing an important document and he would sign his full name, not a nick name. Furthermore, the notary's acknowledgement of JH's signature on the quit claim deed, contrary to JH's insistence that she did not sign the deed for CH supports the conclusion that the notarization of CH's signature is very suspect. Lastly, the identity of the signer was supposedly confirmed by the notary examining a driver's license of the signer during a period when CH had no driver's license.
The court finds the plaintiff has established by a fair preponderance that CH did not sign the September 3, 2003 Quit Claim deed, Ex 1 and Ex E.
The September 3, 2003 is of no force and effect in transferring CH's interest in Ocean Avenue to JH.
The Ocean Avenue property
JH described 413 Ocean Avenue as a single-family home that was in deteriorated condition interiorly and exteriorly in 2000. JH testified that the property was dated, dingy and with a strong smell of cigarette smoke within. She indicated she purchased the property because she believed it would be a "good investment for me and Cameron." She described her reluctance to participate in the stock market but that she had significant success in the real estate market. She and Cameron purchased the property for $582,731.00 in January of 2000.
JH testified that Cameron's contribution, $27,300.00, to the down-payment on the purchase price came by exhausting his brokerage account with Merrill Lynch. She indicated that `Ocean Avenue' was an investment that she had found and she encouraged Cameron to participate. She told him it was a better investment than the stock market and "I would never allow him to lose money I couldn't see how that would happen, I wouldn't sell in a down market." She claimed that there was no written or oral agreement that defined the parties' respective ownership interest or any agreement that would reflect how any profit/loss upon sale would be divided. She described that she was an experienced and successful investor in real estate and that CH had little or no experience. She found the property, she arranged the financing, she finalized the transaction and later she supervised a rehabilitation and sale of the property.
JH and CH applied for and secured a purchase money mortgage on Ocean Avenue for the difference between their collective down payment and the purchase price.
JH described that after they bought the property she began to renovate the property. She did not discuss this renovation with Cameron. It was her idea to renovate. She invested her money. She controlled all aspects of the rehabilitation project.
She did not acquire a building permit for any of the renovations claiming the renovations were mostly "interior." Later in her testimony she described the renovations that were done and these included re-roofing, putting all new windows in the property, a new French door on one side, a new front door on the other side, a new deck, new siding, trim, a front porch renovation and then a great deal of interior renovation including the mechanical systems, electric, plumbing, HVAC, and removing interior walls as well as paint and paper and other aspects of renovation.
JH produced a hand-written list of expenses that she claimed in connection with the renovations of Ocean Avenue, Ex. C. The list totaled $216,090.86 in "renovation expenses." She added other costs of insurance, utilities, real estate taxes and sewer charges and mortgage interest to C Huang as well as `miscellaneous other expenses' totaling another $20,071.84.
Apparently she deducted from the sales price all the above-described `renovation and miscellaneous' expenses, Ex C, together with the initial down payments from CH and JH, the mortgage payments, the carrying costs of the property including local property taxes and the like and expenses of sale, from her 2004 Federal Income Tax return, Schedule D (for Identification only) (Capital Gains and Losses). She declared the sale of Ocean Avenue at $1,170,000.00 and deducted $884,447 as a `cost or other basis' and acknowledged a $285,553.00 long-term capital gain on her personal income tax for 2004, Ex J.
The only supporting documentation offered for the claimed renovation and associated expenses was JH's typewritten list of improvements, Ex C, page 2. JH claimed was that she invested $236,162.70, including all items listing on defendant's exhibit C, in addition to the purchase price when she calculated her capital gain. She claimed that in addition thereto she made mortgage payments and real estate tax payments but had insufficient documentation for the amount of either of those payments or any description of how much of the mortgage payments were principal and how much were interest to allow the court to accurately calculate the same. She offered no bills/receipts or other documentation from contractors. The lack of building permits deprived her, and this court, of even that documentation of the improvements/renovations and also deprived the Town of Stratford of the building permit fees and any increased real estate taxes, the public — and subsequent owners — of the benefit of public officials determining that improvements were made in accordance with applicable safety codes. JH admitted that at the April 15th, 2004 sale of Ocean Avenue she received $679,564.14 after payoff of the existing mortgage and sale related expenses. She did not turn any of the money over to Cameron Huang's estate. She first claimed that there was no estate to turn the money over to because the CH's Colorado estate was not created until March 23, 2006 and the ancillary estate in CT was not created until August 24, 2006, Ex 9 and 10. Nor did she make any effort to create an estate so as to pay CH's share of funds into the estate and have the same paid out under the supervision of the Probate Court. Nonetheless, after Estate was created in Colorado and Connecticut, she did not turn over any funds to the estate. Secondly, she indicated that she did not turn any money over to the estate because CH had executed a quit claim deed in her favor on September 3, 2003 and she felt CH thereafter had no legal interest in Ocean Avenue. She reached this conclusion in spite of her earlier testimony that the quit claim deed was executed merely as a "convenience" so as to expedite the sale process.
JH indicated that had CH had not been killed in the motor vehicle accident in October of 2003 that, upon the sale of Ocean Avenue, she would have returned his $27,300.00 investment and if he was going to buy a house — then she would have helped him organize that purchase and helped him with a down payment. She did not agree that she would pay the $27,300.00 to the estate of Cameron Huang. She did not agree that he was entitled to any return on the investment that he had made in this subject property and risk undertaken in connection with his obligations on the note executed to purchase Ocean Avenue. She noted that CH had no surviving spouse, no children, and that she thought CH's heirs were she and Cameron's father.
The subject property was purchased for $582,731.00.
The subject property was sold for $1,170,000.00 (one million one hundred seventy thousand dollars).
The declared gain on the sale of Ocean Avenue was $285,553.00, Ex. J.
Legal analysis
"We have defined conversion as [a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It 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." (Internal quotation marks omitted), Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994).
The plaintiff has proved, by a fair preponderance of the evidence, that the defendant converted his/its' right to his/its' share of the down payment and profits from the sale of Ocean Avenue to her own use. She admitted: CH invested $27,300.00 as his down payment in the venture, the joint ownership of the real property, the quit claim deed was a `mere convenience' to effectuate a quick sale process rather than a bona fide transfer of CH's interest in the property, the eventual sale of Ocean Avenue to a third party and the gross profits after the payment of the balance of the purchase money mortgage and the expenses associated with the sale: $285,553.00. She has admitted that she has failed, refused and neglected to tender any of the sale proceeds to CH's estate. JH's claimed defense that `there was no estate of CH to which to pay the sale proceeds' evaporated when, on August 24, 2006, the Estate of CH was created in New Haven Probate Court, New Haven CT, Ex 10.
The court finds plaintiff's pro rata share of the profits, calculated by the same percentage as his down payment together with his obligation on the promissory note bore to the total down payment, i.e. 47.04%, is $134,324.13 (being the admitted gain or profit of $285,553.00 times 47.04% = $134,324.13).
The court finds that the defendant converted $161,624.13 (being the plaintiff's decedent's down payment contribution of $27,300.00 ± his/its share of the profit $134,324.13) of the plaintiff's decedent's money to her own use effective September 24, 2006, (i.e. 30 days after the creation of the ancillary estate of CH here in Connecticut) and continuing to the instant date.
The court finds the defendant has failed to prove the applicability of the Special Defense of the statute of limitations to either Count One or Count Two of the Amended Complaint. In both instances the application of CGS § 52-577 is avoided because of the continuing course of conduct exception to the statute of limitations and/or that the act or omission complained of, conversion of plaintiff's decedent's share of the sale proceeds did not occur until after the sale date of April 15, 2004 which was well within the applicable limitations of action period.
Sec. 52-577. Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
Section 52-577 . . . is a statute of repose "in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues." Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988) . . . (Citation omitted.) Sanborn v. Greenwald, supra, 302.
Nonetheless, "[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957). [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . Blanchette v. Barrett, [ 229 Conn. 256, 275, 640 A.2d 74 (1994)]. The continuing course of conduct doctrine is `conspicuously fact-bound.'" (Internal quotation marks omitted.) Sanborn v. Greenwald, supra, 39 Conn.App. 295.
The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . [T]he doctrine is generally applicable under circumstances where it may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . . (Citation omitted; internal quotation marks omitted.) Id., 295-96.
In sum, "a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff." Sherwood v. Danbury Hospital, 252 Conn. 193, 204, 746 A.2d 730 (2000). Second, "there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ." (Citations omitted; internal quotation marks omitted.) Id., 204-05. Giulietti v Giulietti, 65 Conn.App. 813, 833-35 (2001).
In the instant case a special and continuing relationship existed between the plaintiff's decedent and the defendant: not only a child parent relationship but also that of the novice and experienced real estate investor where the experienced investor assured the novice that this venture was a good investment, indeed it was, and that she, JH, would never allow CH to lose money. JH undertook to assist CH in this investment and then, sometime after CH's death — specifically sometime after the sale of the subject property on April 15, 2004, ignored the obligations she'd undertaken toward CH. JH continued to hold CH's down payment funds after CH's death, continued to supervise their joint investment, concluded their joint investment with a sale of the jointly owned real estate and never paid CH's estate his/its share of the profit from the joint investment nor returned CH's down payment to CH's estate.
Additionally, the `act or omission complained of' in the Amended Complaint, i.e. the act which began the limitations period in CGS 52-577 for commencing a tort action, is: "On April 15, 2004 (the defendant) sold (Ocean Avenue) and has appropriated the funds to her own use without disclosure of same to CH's estate . . ." paragraph 4 of September 17, 2007 Amended Complaint.
The initiating event is alleged to have occurred on April 15, 2004. The instant lawsuit was commenced on November 16, 2006 well within the three (3) year limitations of action set by CGS 52-577.
If one assumed that the initiating action, the `act or omission complained of,' alleged in the Amended Complaint was the September 3, 2003 Quit Claim deed purportedly between CH and JH, there are two further considerations. First, the court has no confidence that the Quit Claim deed was executed by CH nor that the September 3, 2003 date was the date that document was finalized. The court is confident that the Quit Claim deed was finalized sometime before it was recorded on the Stratford Land Record on January 14, 2004, but was unsatisfied as to when. The defendant has failed to prove by a preponderance of the credible evidence that CH executed the Quit Claim deed and that the same was executed before November 16, 2003, i.e. three years prior to the institution of the instant action. Secondly, if CH did execute the Quit Claim deed, the defendant's actions, for reasons noted above, create a continuing course of conduct running from the execution of the deed to the time of trial wherein she was obligated to tender payment to CH for his/its share of the profits from the joint real estate venture. JH failed, refused and neglected to pay or tender any or all of the proceeds of the sale to CH from April 15, 2004 onward until the time of trial.
Therefore damages of $161,624.13 are awarded the plaintiff on Count One.
Count Two — Statutory theft pursuant to CGS 52-564
Sec. 52-564. Treble damages for theft. Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.
"Statutory theft pursuant to [General Statutes] § 52-564 . . . is synonymous with larceny under General Statutes § 53a-119, which provides in relevant part that `[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.'" Weiss v. Weiss, 297 Conn. 446, 470 n. 18, 998 A.2d 766 (2010).
Section 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." "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). "A person commits larceny within the meaning of General Statutes § 53a-119 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. An `owner' is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder. General Statutes § 53a-118(a)(5)." Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418-19 n. 14, 934 A.2d 227 (2007). Blackwell v. Mahmood, 120 Conn.App. 690, 700 (2010).
The plaintiff has established by a preponderance of the evidence that the defendant, JH, wrongfully took, obtained or withheld property from an owner, the plaintiff, while concurrently harboring larcenous intent to permanently deprive CH's estate of CH's property. JH's claim that she was the sole owner as a consequence of the September 3, 2003 Quit Claim deed, see Second Special Defense dated October 30, 2007, is rejected for the reasons noted above. JH testified that CH did put his $27,300.00 as a down-payment to the subject real estate and that the Quit Claim deed between CH and JH was only a `convenience' to effectuate a quick or smooth sale to a prospective third-party purchaser of said real estate. JH testified that upon the sale of Ocean Avenue she intended to return CH's down payment and also to assist CH with a down payment on a house of his choosing. In spite of that admission, she has failed and refused to pay or tender any portion of the April 15, 2004 sale proceeds to CH's estate. The undisputed sum of CH's down-payment, $27,300.00, was wrongfully withheld from CH following the sale. That sum has been wrongfully withheld since 30 days following the creation of the Estate of CH, i.e. September 24, 2006.
Treble damages of those wrongfully withheld funds, i.e. $27,300.00, with implicit larcenous intent by JH, are appropriate damages. That total: $81,900.00.
The court declines to find statutory theft has been proved with respect to the balance of the funds that were found to have been converted by the defendant in Count One. The court does not find that the plaintiff has proved larcenous intent with respect to the balance of the funds found to have been converted in Count One.
Therefore the damages awarded on Count Two are: $81,900.00 being $27,300.00 trebled.
Count Three CUTPA CGS 42-110b
"As a preliminary matter, we first delineate the basic elements of a CUTPA cause of action. "CUTPA provides that `[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.' General Statutes § 42-110b(a). In order to enforce this prohibition, CUTPA provides a private cause of action to `[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . .' General Statutes § 42-110g(a); see generally Fink v. Golenbock, 238 Conn. 183, 212-13, 680 A.2d 1243 (1996).
"Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, `as a result of' this act, the plaintiff suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff. See generally Haesche v. Kissner, 229 Conn. 213, 223-24, 640 A.2d 89 (1994)." Stevenson Lumber Co.-Suffield v. Chase Asso., 284 Conn. 205, 213-14 (2007).
However, the relationship between the parties was not `conduct in any trade or commerce' as required by the applicable statute. Instead, this was a transaction between family members giving rise, as noted above, to a special relationship, a fiduciary relationship between JH and CH.
As there was no `trade' practice, that is no conduct of trade or commerce between the parties, the court finds that the defendant did not violate the Unfair Trade Practices Act.
Fourth Count: Deed Absolute on its Face Subject to an Oral Condition
As the Court has found that the deed was ineffective and not signed by CH, this count of the Amended Complaint is inoperative and the Court renders judgment for the defendant hereon.
Fifth Count: Constructive Trust
As the Court has found that the deed was ineffective and not signed by CH, this count of the Amended Complaint is inoperative and the Court renders judgment for the defendant hereon.
Wherefore, the Court finds the issues in favor of the plaintiff on Counts One and Two finding that the plaintiff has proved the elements of the respective claims by a preponderance of the evidence as described above. The Court finds the issues in favor of the defendant on Counts Three, Four and Five for the reasons noted above. The Count finds the defendant has failed to establish, by a preponderance of the evidence that the any Special Defenses are applicable to bar or reduce the claims of the plaintiff except as described above.
The Court finds that the Estate of Cameron Car-lo Hogeboom is entitled to recover from the defendant Jan Cameron Hogeboom the following:
Count One:
The sum of one hundred sixty-one thousand six hundred twenty-four dollars and thirteen cents ($161,624.13) are awarded as damages.
Count Two:
The sum of eighty-one thousand nine hundred dollars, ($81,900.00) are awarded as damages.
Counts Three and Four are found in favor of the defendant.