Opinion
No. CV 04 4000923 S
June 20, 2007
MEMORANDUM OF DECISION
This matter was tried to the court March 6-8, 2007. The court heard closing arguments on March 8, 2007. After considering the evidence and arguments of the parties, the court issues this memorandum of decision.
I. BACKGROUND
On April 18, 2005, the plaintiffs, Alois Levesque and Andre Carriere, filed a four-count amended complaint against the defendant, Noel Carriere, alleging: (1) promissory estoppel; (2) imposition of a constructive trust; (3) breach of contract; and (4) unjust enrichment. This action arises from a series of land transactions that occurred from February 26, 2004 through June 25, 2004, wherein the plaintiffs make the following allegations: (1) the defendant was deeded a parcel of land: (2) the defendant agreed to reconvey that land to a revocable family trust set up for the plaintiffs and the defendant; (3) the land was to be sold and the proceeds shared by the plaintiffs and the defendant; and (4) the defendant, after receiving the land, did convey it to the trust, however, the defendant subsequently revoked the trust and now intends to sell the land and keep all of the proceeds for himself
The original complaint was filed on October 22, 2004. This operative complaint was then filed on April 28, 2005.
The plaintiffs and the defendant in this case are all siblings. The land in question was owned by their mother, Winifred Carriere.
On July 5, 2005, the defendant filed an answer and eight special defenses: (1) any agreement to reconvey the property to the revocable trust would have been illegal; (2) the plaintiffs had unclean hands; (3) lack of consideration for any alleged promise by the defendant to reconvey the property; (4) lack of mutual agreement to reconvey the property; (5) proper revocation of the trust by the defendant; (6) a constructive trust cannot arise when an express trust exists; (7) any promises made by the defendant were illusory; and (8) the plaintiffs would be unjustly enriched if the proceeds were to be distributed to them.
II. FACTS
Many of the issues in this case turn on assessments of credibility. As the trier of fact, the court must resolve issues of credibility. See State v. Nowell, 262 Conn. 686, 695, 817 A.2d 76 (2003); Lacic v. Thomas, 78 Conn.App. 406, 409-10, 829 A.2d 1, cert. denied, 266 Conn. 922, 835 A.2d 472 (2003). "The determination of a witness' credibility is the special function of the trial court." (Internal quotation marks omitted.) State v. Knight, 266 Conn. 658, 674, 835 A.2d 47 (2003). "[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony." (Internal quotation marks omitted.) Hoffer v. Swann Lake Assn., Inc., 66 Conn.App. 858, 861, 786 A.2d 436 (2001). From the testimony given and evidence submitted, the court finds the following facts and credits the following evidence.
The plaintiffs, Alois Levesque and Andre Carriere, filed this action against their disabled brother, Noel Carriere. Their mother, Winifred Carriere, was moved to a nursing home on or around January of 2004. Winifred Carriere owned the property known as 80 Old Winsted Road (the premises), which is the property at issue in this case. While Winifred was in the nursing home, Alois Levesque held a power of attorney for her. Once it became apparent that her mother would have to be in the nursing home for a longer period than Medicare would cover, Alois decided to apply for Title XIX for their mother. To effectuate this, Alois and her brother, co-plaintiff Andre Carriere, retained attorney Julia Brown of Waterbury. On February 17, 2004, the plaintiffs met with attorney Brown to discuss their intentions. The defendant was not present at this meeting. During this meeting, attorney Brown became aware that the defendant was disabled and they discussed the option of deeding the premises to the defendant to avoid losing it under the applicable rules of Title XIX.
At some point after this meeting, the plaintiffs contacted the defendant and all three siblings went to a second meeting with attorney Brown on February 26, 2004. While none of the parties remembered the exact details of what they signed and when, the parties were in general agreement that they were at attorney Brown's office for several hours, discussed a variety of issues and signed several documents. There is no dispute that, at some point during the February 26, 2004 meeting, the parties executed a quit claim deed conveying the premises to the defendant. Alois Levesque signed this deed as the power of attorney for her mother. This deed specifically contained the quit claim covenants.
The court finds all of the parties to be credible in their attempts to recount what took place during the meeting on February 26, 2004, however, they were simply not able to recall exact details regarding which documents were signed in exactly what order.
On the same day, the parties also signed a document which purported to convey the premises from the defendant to a revocable family trust. There was some discussion between the parties and attorney Brown as to the nature of the trust. Ultimately, the family trust was made revocable. The deed purporting to convey the premises to the trust was also signed on February 26, 2004. This was done in an attempt to have all three siblings share in the proceeds from the sale of the premises that otherwise may have been lost pursuant to Title XIX.
There was a dispute as to exactly when the trust was created, but the parties agree that this particular document, whatever its legal significance, was signed at the February 26 meeting.
The defendant also executed a power of attorney with his sister Alois. At some point after the meeting on February 26, 2004, the defendant consulted with an attorney and attempted to obtain copies of the papers that the parties signed at attorney Brown's office. The defendant claimed he received copies of some of the paperwork, but not everything. The defendant made several requests for copies of the rest of the documents, which he claims he never received. After further consultation with his attorney, the defendant revoked both the power of attorney he had with Alois as well as the trust. The defendant now plans to retain the premises and proceeds from the sale for himself.
As indicated above, in response to the defendant's actions, the plaintiffs filed a four-count complaint. Each count will be addressed in turn.
III. DISCUSSION A. Promissory Estoppel
The plaintiffs' first count alleges promissory estoppel. "[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance . . .
"Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future . . . [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance." (Internal quotation marks omitted.) Saye v. Howe, 92 Conn.App. 638, 647-48, 886 A.2d 1239 (2005).
In the present case, the plaintiffs claim that they were induced to give up their rights of inheritance and deed the premises to the defendant because of his promise to deed it back to the trust so the siblings could all share in the proceeds. The evidence is clear, however, that it was the plaintiffs and attorney Brown who first discussed the option of deeding the premises to the defendant to avoid losing it under Title XIX. The defendant was not even present at this initial meeting.
Assuming, arguendo, that the only reason the plaintiffs gave up their inheritance rights was because the defendant promised to transfer the premises to the revocable trust, the defendant did just that. The trust, however, was a revocable trust, which the defendant properly revoked. There are no allegations that the defendant promised not to revoke the trust.
The court finds that the transfer of the premises to the defendant was not induced by any promise on the part of the defendant, rather, it was done because the defendant was handicapped and this was a way to prevent losing the premises pursuant to Title XIX. The decision to convey the premises to the defendant was discussed during the February 17, 2004 meeting when the defendant was not even present. The plaintiffs may have expected that the defendant would share the proceeds. The defendant may have even originally intended to share the proceeds. That is not enough, however, for the plaintiffs to prevail on a claim of promissory estoppel. The original deed to the defendant was not induced by any promise of the defendant. It was an option that originated with attorney Brown and the plaintiffs before the defendant was even involved in the transactions. The court therefore finds for the defendant on the first count of the complaint.
Since the court concludes that the plaintiff cannot prevail on their claim for promissory estoppel, the court need not reach the defendant's special defenses to this claim.
B. Constructive Trust
The plaintiffs' second count seeks the imposition of a constructive trust based on the fact that the defendant stood in a confidential relationship with his mother and there would be an unjust enrichment of the defendant if he were to own the premises outright. "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 . . . 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 he would be unjustly enriched if he were permitted to retain it . . . The 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." (Citation omitted; internal quotation marks omitted.) Stornawaye Properties, Inc. v. O'Brien, 94 Conn.App. 170, CT Page 10783 175-76, 891 A.2d 123 (2006); see also Schmaling v. Schmaling, 48 Conn.App. 1, 13, 707 A.2d 339, cert. denied, 244 Conn. 929, 711 A.2d 727 (1998) ("a constructive trust should be imposed . . . to prevent the abuse of a confidential relationship"). As to the issue of a confidential relationship between parent and child, "the bond between a parent and child is not per se a fiduciary one; it does generate, however, a natural inclination to repose great confidence and trust." Hieble v. Hieble, 164 Conn. 56, 61, 316 A.2d 777 (1972).
In the present case, the plaintiffs claim that a constructive trust should be imposed, in equity, because of the confidential relationship between the defendant and his mother. As in Hieble, this is not per se a confidential relationship. Outside of the fact that the defendant is related to the mother, there was no other indication that he was in a position of confidence. To the contrary, the plaintiffs went to great lengths to show that the defendant rarely came to visit his mother and that they were the ones who primarily took care of their mother. Moreover, it was the plaintiff, Alois, who had a power of attorney for the mother. Alois was the one who, acting for her mother through the power of attorney, actually deeded the property to the defendant. There is simply no evidence to show that the defendant received the property because of an abuse of his relationship with his mother. He obtained the premises because his siblings were applying for Title XIX for their mother and this was a way to try to save the premises.
Additionally, there is no evidence of the type of fraud or wrongful conduct on the part of the defendant to convince the court that, in equity, a constructive trust should arise. There was evidence that the defendant originally intended to share the proceeds. The defendant, in his testimony, stated that he originally thought this was a good idea. The plaintiffs claim that this is the type of fraudulent conduct that should lead to the imposition of a constructive trust. The court is not convinced. It was not until after the meetings, when the defendant could not get all of the relevant documents, that the defendant changed his mind. There is no evidence that the defendant expressed his intention to deed the premises back to the trust solely for the purpose of fraudulently obtaining the deed to the premises. Again, it was not even his idea to have the premises deeded to him in the first place. He was, initially, just going along with the idea suggested by the plaintiffs and attorney Brown. This court, sitting in equity, declines to impose a constructive trust for the benefit of the plaintiffs. If the defendant was not given the premises, it likely would have been lost pursuant to Title XIX. The court, therefore, finds for the defendant on count two of the complaint.
The parties signed a document wherein the defendant stated that he intended to share the proceeds with his siblings. This document, however, was not admitted for the purpose of showing the existence of a contract and is not considered for that purpose, rather, it was admitted solely for the purpose of showing fraud on the part of the defendant.
Again, the court need not reach the defendant's special defenses to this claim since the court will not impose a constructive trust under these circumstances.
C. Breach of Contract
The plaintiffs' third count seeks recovery based on breach of contract. The alleged contract was an agreement made on February 26, 2004, wherein the plaintiffs claim that the defendant promised to share the proceeds from the sale of the premises. The only indication of such an intent was the defendant's testimony that, originally, he was planning to deed the property to the trust and share in the proceeds from the sale. As indicated above, however, the defendant changed his mind and revoked. As such there is no evidence of a contract.
The exhibit purporting to be an agreement between the parties was not admitted for the purpose of establishing a contract. See footnote 6. Even if the document were a full exhibit, however, it is merely a written expression of the defendant's intention at the time of the meeting, which he testified to.
Though the court need not reach any of the defendant's special defenses at this time, the special defense of illegality of the contract does warrant brief discussion. In this special defense, the defendant argues that any contract or agreement to reconvey the premises would be illegal because its purpose would be to circumvent Title XIX, which would be void against public policy. The defendant attempted to distinguish between the facially valid transfer to a handicapped child that is permitted under Title XIX and an agreement to circumvent the requirements by allowing others to share in the property. The court notes, however, that "[a]greements that are legal on their face, yet which are designed to evade statutory requirements, are routinely held unenforceable." Parente v. Pirozzoli, 87 Conn.App. 235, 246, 866 A.2d 629 (2005); see also Stamford Wrecking Co. v. United Stone America, Inc., 99 Conn.App. 1, 16, 912 A.2d 1044, cert. denied, 281 Conn. 917, 917 A.2d 999 (2007) ("it is . . . well established that contracts that violate public policy are unenforceable"). Were the issue squarely before the court today, it appears as though the entire series of transactions, including the facially valid quit claim deed to the defendant, was designed to evade the statutory requirements of Title XIX. This issue, however, is not before the court today. The court, therefore, finds for the defendant on count three, the claim of breach of contract.
The court need not reach the question of the legality of any of the documents involved. There has been no challenge to the legality of the deed to the defendant. Moreover, even if' that transfer were illegal, the plaintiffs would still not prevail. If the deed were to be set aside, it may revert back to the mother's estate or escheat to the state to effectuate the underlying policy that was evaded.
D. Unjust Enrichment
The plaintiffs' final claim is for unjust enrichment. "Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
In the present case, the plaintiffs claim that the defendant would be unjustly enriched if the terms of the agreement and trust were not upheld. As the court instructed in Vertex, it is necessary for this court to examine the circumstances and conduct of the parties in this case. Here, it was the plaintiffs and attorney Brown who decided the best way to save Winifred Carriere's property in a Title XIX application would be to have Alois deed the property to the defendant, as power of attorney, with all of the quit claim covenants. While it is clear that the defendant gained some benefit from this and the failure to receive any compensation may have ultimately been to the plaintiffs' detriment, the court, sitting in equity, does not find that "the defendants unjustly did not pay" the plaintiffs. The premises belonged to Winifred Carriere. There is no evidence that she was even aware that she was deeding it to the defendant. The premises was never the plaintiffs' to give up. Therefore, the defendant's failure to pay for the premises certainly does not make the transaction unjust as against these plaintiffs under the circumstances.
As to the claim of unjust enrichment pursuant to the trust, that claim is without merit because the trust was revocable. Even if the court were to reach the issue of enforcing the terms of the trust, as indicated above, the defendant was perfectly justified in revoking the trust. That is precisely what the defendant did. It was the plaintiffs, along with the help of attorney Brown, who set up the trust and chose to make it revocable. The court is unwilling to find that the defendant unjustly failed to pay these plaintiffs for the benefit of the premises. The court, therefore, finds for the defendant on count four.
IV. CONCLUSION
For the foregoing reasons, the court finds for the defendant on all four counts of the complaint. So ordered.