Opinion
No. CV 03-0824100
June 2, 2005
MEMORANDUM OF DECISION
This is an action brought by one brother, John Rimscha, against another brother, Edward A. Rimscha. In his amended complaint John Rimscha alleges conversion by his brother of $9,986.14 from Fleet Bank checking account #9435621536 and $2,374.91 from Fleet Bank savings account #50268580 owned by John Rimscha. The plaintiff also alleges conversion by the defendant of an expensive watch valued at approximately $8,900.00, a coin collection consisting of approximately 500 American silver dollars and American half dollars worth no less than $10,000.00, another coin collection consisting of Napoleonic coins with a minimum value of approximately $5,000.00 and conversion of a bronze statue of a musician with a fair value of approximately $2,500.00. The plaintiff seeks interest and treble damages.
The defendant has filed an answer to the amended complaint in which he denies all of the allegations of conversion. In addition, he has filed three special defenses. In the first special defense he claims that the plaintiff's claim is barred by the statute of limitations. In the second special defense he claims that he loaned the plaintiff $13,000.00 and that the plaintiff refused to pay the money back. In the third special defense the defendant claims that the plaintiff signed a release discharging the defendant from any and all claims, suits, actions and causes of action which the plaintiff may have against him.
The plaintiff has filed a reply to the special defenses in which he denies all three of them. As to the third special defense, he claims that the release relates only to claims and causes of action which the plaintiff may have had against the defendant for payment of defendant's litigation expenses in a certain Connecticut case no. CV 02-0820710 but does not cover the claims alleged in this action. This special defense was not pursued.
In Connecticut, conversion has been defined as "some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 329, 852 A.2d 703 (2004). "[T]here are two general classes of conversion: (1) that in which possession of the allegedly converted goods is wrongful from the outset; and (2) that in which the conversion arises subsequent to an initial rightful possession." (Internal quotation marks omitted.) Maroun v. Tarro, 35 Conn.App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994). "The second class is where the possession, originally rightful, becomes wrongful by [1] reason thereafter of a wrongful detention, or [2] a wrongful use of the property, or [3] the exercise of an unauthorized dominion over the property." (Internal quotation marks omitted.) Luciani v. Stop Shop Cos., 15 Conn.App. 407, 409-10, 44 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988).
During two days of trial of this case the court found the testimony of the defendant and his witnesses to be extremely unreliable due to confusion and lack of credibility.
In the opinion of this court, the following are the facts in this case pertinent to a resolution of same. The plaintiff in this case is a substantial business man and owner of two large pieces of commercial property in the center of Hartford. He also owns a home on Asylum Avenue. He lived in this home with his mother and father and the defendant for more than twenty years paying all expenses. He operated a cafe and restaurant known as the Russian Lady in downtown Hartford for over twenty years. The defendant worked for him on a part-time basis for most of that period and until its closing in 1997. Defendant's job was to collect, count and deposit the money from the Russian Lady business.
John had two accounts at Fleet Bank for some period of time which he put into joint names with brother Edward so that Edward could access it to pay household bills when John was traveling which he did frequently until his mother became ill. It is undisputed that all of the funds in the account were provided by John. After John discontinued his frequent travel when his mother's health declined, he took possession of the checks and passbooks and thereafter only he used the accounts. He forgot to remove Edward's name. On or about March 22, 2000 Edward went to a branch of Fleet Bank in Windsor, Connecticut and by use of a temporary check withdrew $9,986.00 from the checking account and $2,374.91 from the savings account. John never gave permission to Edward to withdraw the money from these accounts and had no knowledge of the withdrawals until he discovered that he had approximately $13,000.00 in floating checks whereupon he called the bank and discovered that Edward had taken the money from the accounts. After some difficulty, John eventually reached his brother who admitted in a telephone conversation that he had taken the money and stated that he needed the money for medication; all of his other monies were in CDS but when they matured he would pay back the money.
On April 26, 2000, Edward confirmed that he had taken the money out of John's account without his permission. For the first time he mentioned that he was told by his companion that he had loaned John $13,000.00 and he had to take it back for payment of his medications. This claim of a $13,000.00 loan is basis for the what is supposed to be the second special defense filed by the defendant. There is no doubt that on April 10, 1997 Edward did write a check to John for $13,000.00. He claimed he loaned the money to John on a thirty-day basis because John said he needed the money to pay taxes on his property in Hartford. This $13,000.00 was received by John, deposited in his account with a notation that it was paid to him by Edward for his share of the mother's expenses. Substantial evidence was introduced to indicate that John's taxes were all paid, that he was not in financial difficulty, that the money was for the mother's expenses and was not a loan.
It is the opinion of this court that the plaintiff has by clear and convincing evidence proven that Edward converted a total of $12,361.00 belonging to John with the intention of keeping it himself and that he has not repaid same.
John claims that two coin collections were converted by Edward for his own use. The first was a collection of silver dollars and half dollars which the plaintiff had been collecting since the 1960s. This collection consisted of approximately 500 coins. A second collection consisted of a number of Napoleonic coins which had been given to John by an aunt from Belgium as a gift for having arranged a reunion between the aunt and her sister, the Rimschas' mother. The silver coin collection was kept in a bank money bag and the Napoleonic collection kept in a Crown Whiskey bag and both were kept in a locked cedar closet on the second floor hallway of the home at 1240 Asylum Avenue. They were seldom if ever examined by John. Edward had access to the coins. At some time in 1997 Edward decided that the closet was too crowded and he, although ill at the time, dragged the bags which were quite heavy, to his room and somehow raised them and stored them in a sock drawer where he admitted they had been kept for years. Edward took these coins from the house and deposited them in a safe deposit box and never returned them to John. Edward admits that he took the two coin collections out of the closet where they were hidden and put them in his drawer without the permission of the owner, John, but had no explanation as to what happened to them thereafter. There was, however, credible evidence that he had at a later time admitted that he had placed these coins in a safe deposit box in Massachusetts.
John was quite knowledgeable about coins such as those in the collection, having saved the silver coins over a period of many years and having checked values periodically with coin collectors, particularly at G. Fox Company in Hartford. Applying his knowledge of coins to the approximate number of same, the weight of the coins, the size and weight of the bags in which they were contained, he estimates the value of the coin collections to be approximately $15,000.00.
The third item allegedly converted by Edward is a Philippe Patek Calatrava watch. This watch had been given to John by a friend many years ago and used very seldom. At a period of time subsequent to the closing of the Russian Lady, Edward had become very ill and spent several months in a convalescent home and then moved to Holland, Massachusetts where he lived with a male companion. However, in 2000 he had considerable difficulties with this companion and moved back to live with John in the home at Asylum Avenue. At this time he sought John's aid in bringing legal action against the companion, admitted that he had taken the watch and given it to his companion and indicated his intention to recover the watch from the companion. He later solved his problem, moved back with the companion and never returned the watch. John placed the value of the watch at $8,900.00 having received an appraisal at one time in the past.
In addition to the items mentioned above, John alleged that Edward had taken a small bronze statue approximately 2 1/2 ft. high without permission and kept it in his home in Holland, Massachusetts, having refused to return it and still claiming that it was his and still refusing to return it. This statue had been among several of similar size that John had kept at the Russian Lady. When he closed up he asked Edward to transport several of them back to the home at Asylum Avenue. Edward arranged to have them placed in the back of his car and returned some to Asylum Avenue but took the one in question which was a statue of a musician and brought it to his home in Holland, Massachusetts where it was seen by John for the first time quite some time after the Russian Lady was closed. Edward admitted that it belonged to John, asked to be allowed to keep it because it helped to show his property which was for sale, and said he would return it after the place was sold. It has never been returned.
John, who had purchased several similar statues for the Russian Lady and for his home, was familiar with the value of such things and places the value of this statue at $2,500.00.
It is the opinion of this court that the plaintiff has proven by a fair preponderance of the evidence the conversion of the two coin collections, the watch and the statue as alleged in the complaint.
The plaintiff is seeking treble damages for the conversion of his property. General Statutes Sec. 52-564 provides for treble damages from "any person who steals any property of another . . ."
"[S]tatutory theft under [General Statutes] § 52-564 is synonymous with larceny [as provided in] General Statutes § 53a-119 . . . Pursuant to § 53a-119, [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 [the] owner." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000); see also Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520-21, 705 A.2d 215 (1998). "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." (Internal quotation marks omitted.) Suarez-Negrere v. Trotta, supra, 47 Conn.App. 521.
The plaintiff is required to satisfy the higher standard of proof by clear and convincing evidence to be entitled to an award of treble damages pursuant to Sec. 52-564. Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520 (1998).
In order to prevail, the plaintiff must show by such standard that the defendant had the requisite intent to take the plaintiff's property. The court finds that the defendant did have the requisite intent to deprive the plaintiff of the two bank accounts and therefore awards treble damages in the amount of $37,083.15.
The defendant has raised the special defense of the Statute of Limitations. In the opinion of this court the conversion of the bank accounts was clearly not subject to the Statute of Limitations. However, while the court is of the opinion that there was a conversion of the two coin collections, the watch and the statue and is reasonably satisfied as to the values of same, the evidence of the conversions places them at uncertain dates but all prior to February 27, 2000 and therefore barred by the statute.
The plaintiff has countered by claiming that the statute doesn't run until the conversion has been discovered by the owner which he alleges dates from after the bank accounts were withdrawn by the defendant on March 22, 2000.
Conversion is an intentional tort, and therefore, conversion claims are governed by the three-year statute of limitations period set forth in General Statutes § 52-577. The statute of limitations may be tolled under certain circumstances. For example, if a person fraudulently conceals facts that would establish a cause of action, the statute of limitations may be tolled. See General Statutes 52-595.
Section 52-577 provides that "no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
Section 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
"[T]he statute of limitations can be tolled to the time when the person entitled to sue thereon first discovers its existence by pleading fraudulent concealment under General Statutes § 52-595 . . . The plaintiff, therefore, has the burden of pleading that the defendant was aware of the facts necessary to establish a cause of action for fraudulent concealment." (Citation omitted; internal quotation marks omitted.) Blew v. Jacobson, Superior Court, judicial district of New London, Docket No. 565433 (October 5, 2004, Hurley, J.T.R.) "To meet this burden, it [is] not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendant had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence." (Internal quotation marks omitted.) Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995); Bound Brook Association v. Norwalk, 198 Conn. 660, 665-66, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986). "[T]o prove fraudulent concealment the plaintiffs [must] show: (1) a defendant's actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs' cause of action; (2) that defendant's intentional concealment of these facts from the plaintiffs; and (3) that defendant's concealment of the facts for the purpose of obtaining delay on the plaintiffs' part in filing a complaint on their cause of action." Bartone v. Robert L. Day Co., supra, 232 Conn. 533. "In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it." Beckenstein v. Potter and Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983). "The court may not consider evidence which is presented for the first time in a post-trial brief and which a litigant had no opportunity to counter at trial. See Hicks v. Bronson, 11 Conn.App. 808, 809, 526 A.2d 1350 (1987)." Sheetmetal Works, Inc. v. Metropolitan Plumbing Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0829961 (July 20, 2004, Shapiro, J.) ( 37 Conn. L. Rptr. 558, 559). However, if evidence of the defendant's fraudulent concealment was introduced at trial, then it may be analogous to situations where evidence of a special defense is not properly pleaded but admitted at trial. "It is well established that a failure to allege a special defense is waived if evidence relating to that special defense is admitted without objection." Sidney v. DeVries, 18 Conn.App. 581, 587, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990).
See also Blew v. Jacobson, Superior Court, judicial district of New London, Docket No. 565433 (October 5, 2004, Hurley, J.T.R.); Altfeter v. Naugatuck, Superior Court, judicial district of Waterbury, Docket No. CV 96 0136342 (December 9, 1999, Pellegrino, J.)
The statute of limitations may also be tolled in instances where the continuing course of conduct doctrine applies. "When 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 . . . The continuous course of conduct doctrine is conspicuously fact-bound." (Citations omitted; internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 295, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). "Our courts have recognized two general categories in which the continuing course of conduct doctrine has tolled, or theoretically could toll, the statute of limitations. One category may be satisfied when an initial act or omission occurs, and a special relationship creates an ongoing duty to correct or otherwise ameliorate the wrong . . . A second general category addresses situations in which, because of a continuous course of contacts or dealings, it cannot be said with precision when a specific act or omission occurred in the course of the relationship. In this situation, the statute may be tolled until the time of the last act within the course of the relationship . . . There may, of course, be scenarios which analytically fit both categories." (Citations omitted.) Partitions, Inc. v. Blumberg Associates, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0576664 (October 9, 2001, Beach, J.). Nevertheless, "because the continuous course of conduct doctrine contravenes, or at least qualifies, the legislatively mandated policies favoring repose as found in the statutes of limitations the doctrine has been applied narrowly and somewhat sparingly." Id."[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). "A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto." (Internal quotation marks omitted.) Id. "Our Supreme Court has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Home Loan Investment Bank, F.S.B. v. Sebjan, Superior Court, judicial district of Danbury, Docket No. CV 97 0329603 (July 24, 2000, Moraghan, J.).
The plaintiff has not plead nor been able to establish fraudulent concealment. The same is true of the continuing course of conduct doctrine.
Judgment may enter for the plaintiff in the amount of $37,083.15 plus interest at the statutory rate of 10% from the date of the conversion, March 22, 2000, until the date of this judgment. Judgment may enter for the defendant as to the allegations of conversion of the two coin collections, the watch and the statue.
Hale, JTR