Opinion
No. FST CV 03 0195866 S
June 10, 2009
CORRECTED MEMORANDUM OF DECISION
The plaintiffs in this action are two brothers, Geno Piacentini and Frank Piacentini (the plaintiffs), who sue their sister, JoAnn Piacentini (the defendant or JoAnn), alleging breach of a fiduciary duty owed by her both to her mother, Pauline Piacentini (Pauline) and to the plaintiffs. In the second count of their complaint, they seek an accounting and an order imposing a constructive trust on monies wrongfully caused to be transferred by Pauline during her lifetime and entrusted to the defendant, JoAnn. The plaintiffs also complain that the defendant, after being appointed executrix of the estate of Pauline, failed to discharge her duties administering the estate properly, including failing to file a proper inventory, and a proper accounting. They presented in the Probate Court (district of Norwalk) a petition to remove the defendant as executrix, and objected to virtually all of her filings. The Probate Court (DePanfilis, J.), denied the plaintiffs' petition to remove the defendant as executrix and accepted the inventory, the final account of the defendant, and issued its decree on August 14, 2006.
At the outset, the defendant defends by raising the claim of res judicata. "The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. A valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand. Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made. Probate Court decrees are final judgments for the purpose of the doctrine of res judicata. (citations omitted; internal quotation marks omitted) Gaynor v. Payne, 261 Conn. 585, 595, 596, 804 A.2d 170 (2002).
The court finds that all claims of the plaintiffs against their sister, JoAnn, for conduct as executrix of her mother's estate were either made or could have been made in the Probate Court, were decided against them, and represent a final judgment. Therefore, those claims are barred in this case. Gaynor v. Payne, supra, 261 Conn. 595, 596. However, the claims by the brothers against the defendant for breach of fiduciary duty for conduct occurring before Pauline's death are not barred in this action. Id., 598.
It is clear from the complaint in this case, which was never revised or amended, that the plaintiffs allege that the defendant owed a fiduciary duty to her mother during the mother's lifetime, and that she also owed a fiduciary duty to her brothers, the plaintiffs. Complaint dated June 23, 2003, ¶¶ 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 25, 26, 27 and 28. The defendant filed a request to revise the complaint to separate causes of action. In their objections (August 20, 2003, pleading item #104), to the request to revise, the plaintiffs disavow any claim against the defendant for breach of fiduciary duty owed to her mother, stating "The plaintiffs certainly do not have standing to allege such a cause of action. Rather, each allegation of the First Count of the Complaint supports Plaintiffs (sic) claim against the defendant for breach of fiduciary duty to the plaintiffs." Continuation pages to Plaintiffs' Objection to Request to Revise, page 1, 2. The plaintiffs also conceded, in a statement of counsel in open court, that the plaintiffs are not claiming undue influence, Tr. 3/4/09, page 55; he also stated "What we're claiming is that the defendant violated her duty to her mother by seeing that all her assets were depleted in the ways that we intend to get into." Tr. 3409, pages 55, 56. The following dialogue also took place:
Mr. Newman: You know, I don't want to go around and around, but I don't believe that we are trying to relitigate those things.
We acknowledge that the will was admitted to probate.
We're not here today complaining about that. And we're not trying to overturn the provisions of the will.
Mr. Leventhal: May I —
Mr. Newman: We're here claiming a violation of the defendant's fiduciary duty basically to her mother. Tr. 3409, page 57.
With these contradictory pleadings and comments by plaintiffs' different counsel, it is difficult to evaluate what fiduciary duty, if any, existed or was violated. Nevertheless, the evidence with the law applied to it will resolve these issues.
"A fiduciary or a 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 interest of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Citations omitted.) Albuqueque v. Albuqueque, 42 Conn.App. 284, 287, 679 A.2d 962 (1996); Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987). "Whether such a confidential relationship exists is a factual question for the trial court. Albuqueque v. Albuqueque, supra, 42 Conn.App. 287. The burden of proving a fiduciary relationship is on the party alleging it by a preponderance of the evidence. If such a relationship is established the burden is shifted to the fiduciary, who must prove that her confidential relationship was not violated and do so by clear and convincing evidence." Berty v. Gorelack, 59 Conn.App. 62, 66, 67, 756 A.2d 856 (2000).
The court finds the following facts. Pauline and her husband, John Piacentini, were Italian immigrants with little or no formal education, coming to the United States in the 1930s. Mr. Piacentini worked as a construction laborer all his life, while Pauline worked as a piece-worker in a factory. Pauline was a frugal woman, whose four children turned all their earnings as youngsters over to their mother. In 1953, Pauline and John Piacentini purchased with the aid of a mortgage, a three-family house at 1 Davenport Street in Norwalk for $17,500.00. The mortgage was paid off in 1973. The adult male children paid rent to Pauline for apartments in the house whenever they, or their wives, lived there. The daughter, JoAnn, was not charged rent.
In addition to Geno, Frank and JoAnn, Pauline and John had another son, Anthony, who is deceased.
The Piacentinis were a matriarchal family with Pauline Piacentini dominating all phases of life at 1 Davenport Street. She was in charge of her own financial decisions, literally paying many of her bills by walking to the facility where she owed money and paying in cash. She did not write checks herself but if a check was necessary, she would give the money to JoAnn to pay, sometimes out of a joint savings account in her name and JoAnn's. Much was made by the plaintiffs of the issue of Pauline's command of the English language. The court finds that Pauline indeed understood and spoke English, and would read some. Several credible witnesses testified that they conversed with Pauline in English, including her parish priest, her grandson, and friends. She was a devoted Catholic and took part in church affairs. There is no evidence that anyone took advantage of Pauline because of her Italian speaking background.
Pauline decided when and to whom in the family she would give gifts. At one point she loaned $14,000 to her son, Anthony, for his struggling restaurant business. She arranged that by having JoAnn give him money out of the Fairfield County Savings Bank joint savings account. After Pauline retired in the 1960s, she lived on social security checks and rentals from the apartments in her house. This amounted to approximately $1,800 (gross) per month and this income was supplemented by JoAnn when needed. JoAnn worked as a secretary for the same company for most of her life before retiring.
The loan was never repaid in full.
The court finds as a factual matter that no fiduciary duty was created or owed by JoAnn to her mother during her mother's lifetime. Although there was, of course, a close personal relationship between mother and daughter, it did not give rise to a superiority and power of influence in the defendant over Pauline, nor did JoAnn have a duty to represent her interests. All the evidence demonstrates that it was Pauline who was the dominant figure in all her family relationships, and especially in financial matters. JoAnn followed her orders in all her financial affairs, which Pauline thoroughly understood.
Even if the fiduciary relationship had been proven, the plaintiffs have not proven that the defendant breached any duty owed by her to her mother. Had the burden of proof shifted to the defendant, the court finds that the defendant has, in fact, proven by clear and convincing evidence that she did not breach any duty owed to her mother.
"When, as here, a child is the beneficiary, the burden of proving the absence of undue influence does not shift to the child, even though it appears that a confidential relationship existed." Berkowitz v. Berkowitz, 147 Conn. 474, 477, 478, 162 A.2d 709 (1960).
The plaintiffs, for nearly eight years, have been trying to prove that Pauline died with a great deal of money. The testimony of the plaintiff, Frank, sums up their position. In response to questions posed by his counsel at trial, he estimated a "ball park figure" in excess of $100,000.00. He considered that figure "very, very conservative. I think its closer to the seven figure number." Tr. 3109, pages 10, 11. There is absolutely no evidence in the record to support such a conclusion. The Probate Court gave the plaintiffs more than ample opportunity to produce, by multiple depositions of the defendant, and discovery of all bank accounts and financial transactions, any evidence demonstrating that the defendant used her mother's money for her own purposes. To this day, no credible evidence to that effect has been uncovered.
In 1982, Pauline's husband and the father of the parties in this case, died leaving a will dated March 1, 1982, in which he left everything he owned to his wife; and if she were to predecease him, all his personal estate to his daughter, JoAnn. Also, if his wife predeceased him, he devised a life use of all his real estate to JoAnn, to terminate upon her death or her marriage. Upon her marriage, the real estate was to be shared equally by JoAnn, Anthony, Geno and Frank. Upon JoAnn's death, the house was to go to his three sons. Pauline also executed a will on March 1, 1982 providing for her children exactly as John had in his will. On August 31, 1996, Pauline executed a new will which deleted any gifts to her husband, John or to her son, Anthony, both of whom were then deceased. Again, Pauline devised a life estate in the real estate to JoAnn, with the same limitations imposed upon the marriage or death of her daughter. She left the remainder of her estate both real and personal, to all three children.
The only real estate owned by him was the house at 1 Davenport Street, Norwalk.
At that time, John's son Anthony was still alive.
There is evidence that Pauline was disenchanted with her son Anthony because he and his wife had divorced, and did not want his children to receive his share. The court makes no comment on whether Anthony's issue could ever receive their father's share of any bequest from Pauline, since it appears that Anthony's share was bequeathed per capita and not per stirpes.
The plaintiffs argue that since their mother included them in this will to receive a share of her personal estate, she must have had personal assets to leave. This non sequitor has no basis in the evidence.1 1 As stated in this decision, the court rejects the proposition that a fiduciary relationship existed between mother and daughter in this case. If however, such a relationship did exist, and if the burden of disproving a violation of her position of trust fell upon the defendant (which it did not) Berkowitz v. Berkowitz, supra, 147 Conn. 474, see footnote 3), she has done so by clear and convincing proof.
This trial was a review of the life of Pauline Piacentini: her nature, her capabilities, her personality, her relationship with her children and especially with JoAnn. It reveals a loving and caring relationship with her unmarried daughter for whom she took special care to provide, particularly by assuring that she would always have the family home to live in and from which to enjoy the benefits. JoAnn provided for her mother's every need, and followed her bidding in all ways, including expediting her financial responsibilities. The plaintiffs presented more than one witness who testified that Pauline often said that she loved her children equally. The court does not view this as being inconsistent with the terms of her will, which reflected her true intent.
The court finds the defendant and her witnesses to be more credible than that of the plaintiffs and theirs. The plaintiffs' eight-year battle with their sister is born of disappointment, fueled by suspicion and waged on speculation. That this immigrant Italian woman, Pauline Piacentini, although wise and knowledgeable, accumulated in excess of $100,000.00 and, as claimed by the plaintiffs, closer to one million dollars in her lifetime is unsupported by any proof. That JoAnn Piacentini violated a fiduciary duty owed to her mother is not born out by any credible evidence. The plaintiffs have not met their burden of proof.
The court finds that no fiduciary duty ever existed between JoAnn and her brothers during her mother's lifetime. Furthermore, there is no evidence that JoAnn, as executrix of the estate of her mother, breached any duty she may have owed to anyone.
In the second count of the complaint, the plaintiffs seek the imposition of a constructive trust upon the monies Pauline transferred and entrusted to JoAnn. "Before a constructive trust can be created, however, there must be a duty owed, or a fiduciary or other special relationship between the parties." Filosi v. Hawkins, 1 Conn.App. 634, CT Page 9492 639, 474 A2d. 1261 (1984). "To impose a constructive trust, there must also be a finding that the [defendant] was unjustly enriched. Two elements must be demonstrated: that the [defendant] was benefitted and that the benefit was unjust." (Citations omitted.) Filosi v. Hawkins, Id., 639. As stated above in this decision, no fiduciary relationship existed between Pauline and JoAnn, nor did JoAnn receive any benefit that was unjust.
Judgment may enter in favor of the defendant, JoAnn Piacentini, and against the plaintiffs, Geno Piacentini and Frank Piacentini.