Opinion
CV095013561.
12-13-2012
Richard Todd MARTHINS et al. v. Donna M. HUMMEL.
Michael Anthony Hardesty, The Hardesty Law Firm, LLC, Mystic, for Richard Todd Marthins et al.
UNPUBLISHED OPINION
Michael Anthony Hardesty, The Hardesty Law Firm, LLC, Mystic, for Richard Todd Marthins et al.
ROBERT C. LEUBA, JTR.
The Plaintiffs, Richard Todd Marthins and Richard Todd Marthins, Executor for the estate of Richard Bruce Marthins (hereafter " Plaintiff or Todd"), brought this multi-count action against Donna M. Hummel (hereafter Donna or defendant) making various claims for the purpose of returning to the estate of Richard Bruce Marthins (hereafter " the estate") such sums of money they claim were improperly obtained by the defendant prior to his death. A claim against TD Banknorth was withdrawn.
I. PROCEDURAL BACKGROUND
The Plaintiffs filed the original Complaint on September 28, 2009 and Plaintiffs filed an Amended Complaint on January 7, 2010. The Defendant filed an Answer and Counter claim on March 15, 2010.
The Plaintiffs filed an Answer and Special Defenses to Defendant's Counter claim on April 21, 2010;
The case was tried to the court at New London on October 10th and 11th, 2012. The parties were well represented by counsel who presented evidence and argument. Briefs were filed on November 16, 2012.
II. FINDING OF FACTS
From the evidence presented, including the reasonable and logical inferences from the same and taking into account the court's evaluation of the credibility of the witnesses, the following facts are found.
Richard Bruce Marthins (hereafter " Richard"), a divorced father of four, died at the age of 71 on May 29, 2009. The actions in dispute occurred both prior to and after his death. They involved bank accounts and a certificate of deposit he had established at the TD Bank, which contained the major part of his assets.
Richard had been divorced many years and had four adult sons at the time of his death. He had been an underwriter prior to his retirement. He lived in Connecticut in recent years. The sons lived elsewhere. At least two of the sons, Richard Todd and Jeffrey, who lived in New Jersey, kept in touch with their father by telephone and visited two or three times a year. One of the sons was " estranged." Jeffrey testified that it was a six-hour drive from New Jersey so as to be too long to visit his father often. Todd was not aware of Richard's prior hospitalization for liver problems in 2009 nor did he visit his father when hospitalized for his gallstone surgery a couple of years earlier.
Richard and Donna met while working at the same Lord & Taylor's store and began dating on October 26, 2002. Donna was a beautician. Over the years during their relationship they lived separately, and kept separate financial dealings. They did not discuss each others' finances or estate plans.
Their close relationship involved, among other things, traveling with friends on vacations. They went together to Mexico two or three times with friends. They also went to Las Vegas, New York City and South Carolina. Donna was introduced to Richard's sons during their relationship. Richard's sons were familiar with the relationship between Richard and Donna over the seven years. Donna did not discourage Richard's relationship with his sons. Richard and Donna were social people who went to dinner and dancing with friends, some of whom testified at trial. This relationship continued until Richard's death. At the time of the trial Donna was 66 years old. At no time was Donna in a fiduciary, special or confidential relationship with Richard. Nor was there evidence of pressure, threat or importunity being exerted at any time by Donna or anyone else. There was no evidence that Donna had superior knowledge or ability. Donna described Richard to others as her " longtime friend and soul mate."
On May 9, 2006, Richard had executed an estate plan, including a Last Will and Testament, a Revocable Trust, a Durable Power of Attorney, including Health Care Decisions, a Living Will and Appointment of a Health Care Agent. Donna was not in Richard's estate plan and he was not in hers. Donna knew of Richard's plans with regard to his estate. Richard named his son Richard Todd Marthins (hereafter " Todd") as the executor and trustee of his estate.
The 2006 Last Will and Testament provided for all of his assets remaining in his estate to be given equally to his four sons through a trust.
Those papers also named three of his sons Todd, Jeffrey B. Marthins (hereafter " Jeffrey"), and Christopher as his health care agent or power of attorney for health matters.
Richard sold the house he had received from his father on March 30, 2007. The proceeds received represented the majority of the funds Richard thereafter deposited with TD Bank which are in dispute in this case.
The TD Bank accounts and Certificate of Deposit at issue in this case totaled $66,148.37 on May 27, 2009.
In his later years Richard was not in good health. He had previously suffered from alcoholism and from anxiety and depression. He had gallbladder and liver problems.
When his health problems became acute, at Donna's suggestion, Richard was admitted to The Hospital of Central Connecticut on May 8, 2009. He gave a history of gallbladder cancer, increased nausea, vomiting and obstructive jaundice. All of the medical records from the hospital are in evidence as Plaintiffs Exhibit 12. He stayed in the hospital until his death on May 29, 2009. After Richard was informed by his doctor that he had a limited time to live he telephoned his sons to ask them to visit him. That call was on May 24, 2009. Two of them rearranged their busy schedules and came to visit him on May 28, 2009, one day before he died.
During his stay at the hospital and until his death he was alert, understood what was going on, and was able to verbalize his understanding. Several witnesses testified and it is found that around the time in dispute here, May 27, 2009, Richard carried on conversations with visitors, conducted his financial affairs, recalled past trips with friends and appeared to be well in control of his faculties. He had a clear memory of past events. During his hospitalization he spoke with employees at Lord & Taylor to thank them for trying to get a leave of absence for Donna so she could spend more time with him in the hospital. Richard was involved in discussions about possibly going to Hospice in Branford, Connecticut, with the hope that Donna could go there to be with him. He discussed his plans for his funeral, songs to be sung and the church where the service should be held. There is evidence from the hospital records and it is found that Richard had received medications for pain during these times (Fentanyl and Morphine) but there is no credible evidence as to what effect they had on him. No expert or other testimony was presented as to what amount of such medications would be required to effect Richard's ability to conduct his own affairs. Notwithstanding the plaintiff's claim that Richard was " heavily" medicated, there is no evidence that the amount of medications were either " heavy" or " light." Even the plaintiff testified that on May 28, 2009, when he visited the hospital, his father was awake and aware and seemed clear and lucid although frail and in pain.
The primary dispute in this case involves a transaction which occurred on May 27, 2009. At that time Richard asked Donna to make arrangements for her to be added to his accounts at TD Bank, including his certificate of deposit, so that she could use the funds contained therein to pay his bills and so that she would have the remainder of those funds when he was gone. Richard told Donna at that time she was to pay the minimum payment required on the credit cards. It is found that on May 27, 2009, two days before Richard's death, Donna contacted the TD Bank and told Judith Kupstis (hereafter Kupstis) at that Bank that she was to be added to Richard's accounts. Kupstis, at the suggestion of Donna, telephoned Richard and spoke with him while he was in the hospital that day. Kupstis knew that Richard was hospitalized and had little time to live. She was told by Richard at that time, that Donna was the " love of his life." Kupstis explained to Richard that if he made the changes being discussed that Donna would get the contents of his accounts upon his death. Kupstis testified at trial and it is found that Richard was lucid at the time of these discussions. Donna was at the bank with Kupstis when the call to Richard was made. After having that conversation Kupstis prepared the necessary papers and gave them to Donna to be signed by Richard. When Donna returned to the bank with the signed papers Kupstis again telephoned Richard on May 27, 2009, to be certain of his intent and assured herself that he wanted to proceed. Also on that date a Social Security form was prepared for the purpose of having Richard's benefits paid into the bank account to which Donna's name had been added. The purpose of this was to put funds into the account to be available as necessary to pay Richard's bills. There was no credible evidence as to who signed Richard's name to that form. When these papers were being prepared Kupstis did not contact any of Richard's children or his attorney. Nor did she think it necessary to talk to his doctors about his mental condition.
As a consequence of the papers described above Donna was added as an " Account Owner" to the following bank accounts and Certificate of Deposit: (a) TD Banknorth Account # 4241680506, (b) TD Banknorth Account # 4241680514 and TD Banknorth Account # 4730349770. (Plaintiffs' Exhibit 2.) These accounts contained $66,148.37.
Todd and his brother Jeffrey visited their father in the hospital the next day on May 28, 2009. Richard told them at that time that he was handling his finances independently. He told Todd that Donna would be helping with the payment of bills and that she was added to the accounts at the TD Bank. Richard told Todd at that time that " there wasn't much left" but that what was left would go to the four sons. At the visit on the 28th Richard was bedridden and in pain, but Todd testified and it is found that he was clear and lucid and not delirious.
Richard died on May 29, 2009 (Plaintiffs' Exhibit 10; " Certificate of Death"). During the time Richard was in the hospital Donna was with him most of the time day and night.
The funds left in the above accounts would have been part of Richard's estate upon his death if they had not been transferred to Donna in the manner described.
At the time of his death Richard had substantial credit card debts amounting to about $17,083.58 (Pl's Exh 15). He had life insurance which he told Donna was to pay his funeral bill. After Richard's death Donna paid about $637 of his debts.
After Richard's death Todd learned that the Last Will and Testament referred to above had named him as executor. When he returned to New Jersey after his father's funeral Todd went to the local branch office of TD Bank there where he had an account and knew the branch manager. On June 5, 2009, before he had been appointed executor by the Probate Court in Connecticut, he was able to withdraw $65,016.39 from the accounts which had been previously transferred into Donna's name with the decedent.
The law and rules of the bank provided at that time that Donna was the owner of those accounts. Her name was on the account at the time of that withdrawal. Todd showed the bank a death certificate and a copy of the will. They gave him the money with a suggestion that he deposit it in an account at their New Jersey branch. A second withdrawal of $1,600.00 was permitted. All together Todd took about $66,600 from Donna's accounts. The manager of the bank had suggested the withdrawal in an e-mail in which he also suggested telling Donna what he was doing and to find out her intentions. (Pl's Exh. 6.)
Todd was appointed executor of Richard's estate in the Probate Court for the District of Berlin on July 2, 2009, almost a month after he withdrew funds from Donna's account. Donna did not find out about Todd's withdrawal at the New Jersey branch of the TD Bank until sometime later when she went to the Connecticut branch to withdraw funds. When she learned of the withdrawal by Todd on June 15, 2009, Donna discussed the matter with Kupstis. Kupstis told Donna that if this had happened to her she would hire a lawyer.
Donna did engage Attorney Lawrence J. Legenza, of Kensington, Connecticut, to obtain the return of those withdrawals. (Pl's Exh. 7.) The funds were returned by the TD Bank. Donna's legal fees for the attorney engaged to obtain the return of the funds was 25% or $16,254.09 which she paid. (Pl's Exh 19.) This fee was negotiated down from 30% which was first asked by the attorney. The bank refused to reimburse Donna for the expenses incurred to obtain the return of her funds on August 14, 2009. The plaintiff, Todd, claims that amount was excessive but there was no evidence as to what the plaintiff claims an appropriate legal fee would have been. Nor did the bank use the amount of the fee as their reason for the denial of their reimbursement. The TD Bank charged Todd's personal account at that bank about $25,000 for what they claimed had been utilized by him from the funds that belonged to Donna. Todd engaged an attorney in June 2009, in connection with his situation with the TD Bank. The relationship with and between Todd and Donna had broken down since each party had attorneys handling their affairs. This litigation ensued.
III. THE LAW AND CLAIMS OF THE PARTIES
1. BURDEN OF PROOF
Normally, the plaintiff has the burden of proof of the claims pled in the complaint by a preponderance of the evidence. Northrop v. Allstate Insurance Co., 247 Conn. 242 (1998). The burden of proving the special defenses lies with the defendant. Selvaggi v. Miron, 60 Conn.App. 600 (2000).
However, when a confidential, special or fiduciary relationship exists between the party accused of undue influence and the person subjected to that influence, the influencer bears the burden of proving fair dealing by clear and convincing evidence. Cohen v. Cohen, 182 Conn. 193 (1980), Collins v. Erdmann, 122 Conn. 626 (1937); Berty v. Gorelick, 59 Conn.App. 62.
" A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." Harper v. Adametz, 142 Conn. 218, 225, 113 A.2d 136 (1955). It is the superior position of the fiduciary or dominant party that affords him great opportunity for abuse of the confidence reposed in him. Dunham v. Dunham, supra, 204 Conn. at 303, 322, 528.
In this case, there is no evidence, direct or to be inferred from the circumstances, that Donna had a confidential, special and fiduciary relationship with Richard.
2. UNDUE INFLUENCE
In the first count of the complaint the plaintiff alleges that Donna exercised undue influence over Richard to obtain the transfer of funds to herself without consideration.
As the plaintiff's brief points out undue influence has long been defined by our courts as " [T]he degree of influence necessary to be exerted over the mind of the [donor] to render it improper, must from some cause or by some means be such as to induce him to act contrary to his wishes, and to make a different ... disposition of his estate from what he would have done if left entirely to his own discretion and judgment ..." St. Leger's Appeal, 34 Conn. 434, 442, 449; Lee v. Horrigan, 140 Conn. 232, 237 (1953). It is " the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than what he would do under normal control." Reynolds v. Monitor, 184 Conn. 526, 528 440 A.2d (1981). " It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence." Pickman v. Pickman, 6 Conn.App. 271, 275 (1986). See also Dinan v. Marchand, 91 Conn.App. 492, 494 fn. 1 (2005).
A claim of undue influence and the existence of its four elements need not be proved with direct evidence. It can and, in most cases, is inferred from the circumstances of the matter. Salvatore v. Hayden, 144 Conn. 437, 440 (1957). Because it generally takes place in private moments, " [d]irect evidence of undue influence is often unavailable and is not indispensable." Lancaster v. Bank of New York, 147 Conn. 566, 573, 164 A.2d 392 (1960). On the other hand, the rule which dispenses with the necessity of direct proof of undue influence, does not relieve the contestant from the burden of laying a safe foundation of material facts proven, and in inferences which fairly and convincingly lead to that conclusion. Hills v. Hart, 88 Conn. 394, 397, 91 A. 257." Downey v. Guilfoile, 93 Conn. 639, 631, 107 A. 562. More recent decisions which have reaffirmed the principle determinative of the existence of undue influences are: Preston v. Preston, 102 Conn. 96, 109, 128 A. 292, and Bucchi v. Gleason, 137 Conn. 25, 30, 74 A.2d 212.
Generally the burden of proof on the issue of undue influence rests on the one alleging it. Bucchi v. Gleason, 137 Conn. 25, 30 (1950). If, however, a confidential or fiduciary relationship is found to have existed between the [donor] and the proponent of the [gift], the burden of proof shifts to the proponent of the [gift]. " Furthermore, the standard of proof for establishing fair dealing [with the donor] is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence." Dunham v. Dunham, 204 Conn. 303, 321-22 (1987).
Notwithstanding the plaintiff's claims to the contrary, as indicated above, after careful review of the evidence, the evaluation of the witnesses and the circumstances present in this case, the court has determined that there has been no credible evidence, express or to be implied, that there was a special, confidential or fiduciary relationship or that undue influence has been involved in the transfer of the TD Bank accounts or certificate of deposit.
The defendant, in her brief, claims that Connecticut General Statutes, Section 36a-290 (joint accounts) and the cases applying it require the proof of contrary ownership to be by " clear and convincing" proof not simply a preponderance of the evidence.
But by whatever standard is used by the court, the plaintiffs have not sustained their burden of proof with respect to this claim.
3. Mental Capacity
The plaintiff claims that Richard did not have adequate mental capacity to legally affect the transfers of his assets in the manner described above. The plaintiff cites the following legal argument to support that claim.
" In order to make a gift, the donor must possess sufficient mental capacity. The test of the donor's mental capacity is whether, at the time of the transaction, the donor had the ability to understand the nature and the effect of his or her act." Mullen, Jr. v. McAteer, 2009 WL 3082800 (Conn.Super. Aug. 17, 2009).
Analogously, in order to possess testamentary capacity, the testator must have mind and memory sound enough to know and understand the business upon which he was engaged at the time of execution. Stanton v. Grigley, 177 Conn. 558 (1979) (citing In re City Nat. Bank & Trust Co. of Danbury, 145 Conn. 518 (1958)). The court finds no evidence to suggest that Richard did not possess the requisite capacity to effectuate a gift on May 27, 2009. Nor do the bare medical records of the medical conditions Richard suffered or the medications given, without more, suggest otherwise. On the contrary, the court credits the testimony that during that period of time in the days prior to his death Richard was lucid.
The plaintiffs have not sustained their burden of proof with respect to this claim.
4. UNJUST ENRICHMENT
The Plaintiffs seek to recover the value of their father's TD Bank accounts and CD received by Donna because of a claim that Donna was unjustly enriched for no consideration. The case cited by the plaintiffs in their brief provides a definition which suggests that this claim is not applicable to these circumstances. " 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 ..." Meaney v. Connecticut Hospital Assn., 250 Conn. 500, 511 (1999). That case involved an employee's action against his employer and applied equitable principles to a claim of an implied contract. This case is inapposite.
" 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 ... it becomes necessary ... to examine the circumstances and the conduct of the parties ..." Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282 (1994).
Even applying equitable concepts to this factual situation, as found by the court, the plaintiffs do not benefit. The court does not find it inequitable for a man to voluntarily give part of his estate during his life to a friend at the expense of depriving his sons of the same. This is especially true where the donee has been described by the donor as the " love of his life."
The court finds that the plaintiffs have not sustained their burden of proof with respect to this claim.
5. FRAUD, MISREPRESENTATION AND FORGERY
The plaintiffs have alleged, in count four of their complaint, a claim based on what they termed " fraud, misrepresentation and forgery." In their brief they omit citations but claim the facts here " shed suspicion on the credibility of all action taken by Donna."
The essential elements of a cause of action in fraudulent misrepresentation are: (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 the false representation to his injury. Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 1 A.3d 859 (2010).
Whether the court uses the " clear and convincing" standard or a simple preponderance of the evidence standard, the court does not find, nor do the plaintiffs elucidate, any credible evidence of fraud, misrepresentation or forgery on the part of Donna or anyone else.
The plaintiffs have not sustained their burden of proof with respect to this claim. See Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613 (2004).
6. DEFENDANT'S COUNTERCLAIM
The defendant has alleged, in a counterclaim against Todd, claims of breach of contract, unjust enrichment, statutory theft, conversion and misrepresentation.
The Plaintiffs have denied the allegations of the counterclaim. The defendant has the burden of proof with respect to the counterclaim.
1. Breach of Contract, First Count
The defendant claims that an agreement between the TD Bank and Todd created a third-party benefit for the defendant.
The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages. Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). To form a valid and binding contract there must be a mutual understanding of the terms that are definite and certain between the parties. Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).
" The law regarding the creation of contract rights in third parties in Connecticut is ... well settled ... [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and ... that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties ... Although [Connecticut courts have] explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary ... [our courts have] emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended ... The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder." (Internal quotation marks omitted.) Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 109 (2009).
The court finds no evidence nor has defendant cited any to establish the intent of TD Banknorth and/or Todd to benefit the defendant or any other third party when they entered into a contract relating to Todd's account at the New Jersey Branch.
The defendant has failed to sustain her burden of proof on this claim.
2. Unjust Enrichment, Second Count
In this claim the defendant claims that the plaintiff benefitted from the obtaining and retention and use of Donna's funds forcing her to suffer damages in the expense of retaining a lawyer and defending this suit. The defendant cites the case of New Hartford v. Connecticut Resource Recovery Authority, 291 Conn. 433 (2009), where the court upheld the application of the theory of unjust enrichment upon the facts of that case. The plaintiff, without specifically addressing this claim, appears in his brief to argue that since a bank manager in New Jersey suggested he withdraw the funds when he did he should be protected from any of the defendant's claims of wrongdoing. No authority is cited by the plaintiff for that proposition. The facts here do indicate that the plaintiff individually withdrew funds belonging to the defendant when he had no legal right to do so and was thus unjustly enriched at the defendant's expense. The fact that some bank representative may have suggested the same does not benefit the plaintiff. Nor does the fact that the bank reimbursed the defendant after an attorney was engaged to obtain the return of the funds to their owner. Nor does the fact that the bank later required the plaintiff to reimburse it for their losses assist the plaintiff. The defendant has established by a preponderance of the evidence that she was required to expend funds for a lawyer to obtain the return of the funds which the plaintiff improperly withdrew. The defendant has established that the damages resulting from the plaintiff's unjust enrichment were in the amount of $16,254.09.
3. Statutory Theft, Third Count
The defendant has claimed that the actions of the plaintiff, as above, constitute Statutory Theft in violation of Connecticut General Statutes, Section 52-564, which if established would entitle the defendant to treble damages.
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." " [S]tatutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 ... A person commits larceny within the meaning of ... § 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 the taker, obtainer or withholder ... Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Citations omitted; internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn.App. 99, 113-14, 46 A.3d 175.
The standard of proof issue with regard to that statute has been settled in the case of Stuart v. Stuart, 297 Conn. 26 (2010), where the court held that the preponderance of the evidence standard governs factual determinations required by the statute.
After a careful review of the credible evidence and the arguments advanced by the parties, the court finds the defendant has sustained the burden of proof by a preponderance of the evidence that the plaintiff did, with intent, wrongly appropriate the property of the defendant to himself by the withdrawal of her funds from the bank when he had no legal right to do so.
The plaintiff had been told by his father that Donna's name had been added to the accounts. He knew what he was doing. The banking official's suggestion that he should do so does not provide an excuse. Because of his actions the defendant was caused to expend the sum of $16,254.09 for legal expenses.
Under this claim the defendant is entitled to treble damages or three times the legal fees paid in the amount of $48,762.27.
4. Conversion, Fourth Count
Another claim of the defendant in her counterclaim is that the actions of the plaintiff constituted conversion. A conversion is an action at law. See Dzubin v. Dzubin, 121 Conn. 646 (1936). The measure of damages in conversion is normally the value of the property at the time of the conversion. Healey v. Flammia, 96 Conn. 233 (1921). But consequential damages may also be appropriate in connection with proof of conversion. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 222-23 (1984). As indicated above, the establishment of a conversion does not require the element of intent which is required for statutory theft. The facts found here establish that the plaintiff did appropriate to himself the defendant's funds when he withdrew the money from her account and that the defendant suffered damages as a result.
Accordingly the defendant is entitled to recover from the plaintiff on this count of the counterclaim the sum of $16,254.09, which was the cost of her legal fee in connection with the recovery of the funds.
5. Misrepresentation, Fifth Count
Also in the defendant's counterclaim there is a claim of misrepresentation. The defendant's brief argues that the plaintiff obtained the defendant's funds at the TD Bank by making a misrepresentation as to his right to the same. The court finds no credible evidence as to what if any representation was made by the plaintiff to the bank at the time of the withdrawal. He did show the bank a copy of Richard's Will and a copy of his death certificate. But that is all the evidence shows with regard to that claim. The court finds that the defendant has not sustained the burden of proof with regard to the claim of misrepresentation.
7. Plaintiff's Special Defense to Counterclaim
Plaintiffs have asserted a special defense that any damages claimed by the defendant in her counterclaim, if any should be found, should be reduced or eliminated for her claimed failure to mitigate those damages. Plaintiffs claim that defendant's voluntary actions resulted in her agreeing to pay a contingent attorneys fee of 25% to Attorney Legenza which they claim was excessive. The court finds no evidence in this case as to what legal fees would be appropriate to obtain the collection of funds under these circumstances. The plaintiff has the burden of proof with regard to the claims in the special defense. The plaintiff has not sustained his burden of proof on this issue. The defendant will prevail as to the plaintiff's special defense.
CONCLUSION
The court finds the issues on the complaint in favor of the defendant and against the plaintiff and awards no damages on the complaint.
With respect to the defendant's counterclaim, the court finds the issues for the plaintiff on the First and Fifth Counts as above and makes no award of damages as to those counts. The court finds the issues for the defendant against the plaintiff on the Second, Third and Fourth Counts of the Counterclaim, as above, and enters Judgment for the defendant against the Plaintiff, Richard Todd Marthins, in the amount of $48,762.27, together with costs.
The defendant has requested the court to order the payment of interest pursuant to Connecticut General Statutes, Section 37-3a. Such an award is discretionary. Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749 (1997). The court, having considered the circumstances of this case, declines to award interest to the defendant under the statute.
Judgment shall enter accordingly.