Opinion
CV156053024
12-05-2017
Diane MANFREDO v. Maria PORTESES
UNPUBLISHED OPINION
OPINION
Jon C. Blue, Judge of the Superior Court
I. INTRODUCTION
" O what a tangled web we weave, " Sir Walter Scott famously observed, " when first we practice to deceive." Marmion canto 6, st. 17 (1808). Diane Manfredo, through her attorney, deceived the West Haven Probate Court as to her intentions with respect to the eventual distribution of her incompetent mother’s estate. She now seeks what she claims to be the benefit of her bargain. For reasons stated below, public policy does not permit the court to provide her with that benefit.
This case involves the estate of Edna Porteses, who was born on June 15, 1914 and died on February 16, 2016 at the age of 101. (For clarity, members of the Porteses family will be referred to by their first names.) Edna had three children: Diane, Maria, and Val. Diane is the plaintiff in the present action, Maria is the defendant, and Val appears to be something of a bystander.
In August 2013, Edna- then age 99- had become incompetent. It was apparent that she would have to be placed in a nursing facility. The central question for the children was what would become of Edna’s principal asset- a multi-family house located at 17 Ashburton Place in West Haven (the " House"). The House had a net value (after deduction of a mortgage) of approximately $174,000.
The children retained an attorney named Bruce S. Gordon, who practices in Southport under the name of " Your Family Lawyer, LLC." Diane and Maria, the principal actors in this drama, met with Gordon on August 19, 2013. We don’t know Maria’s version of what transpired at that meeting, but we do know Diane’s.
In an affidavit dated January 6, 2017, Diane states that, " Prior to and during our meeting with Attorney Bruce Gordon in August 2013, my sister and I agreed to divide our mother’s assets equally even if the probate court ruled otherwise ." (Emphasis added.) In an undated letter to the three children submitted to the court, Gordon adds that, " At no time did the three of you indicate there was any expected outcome except for the sharing equally in the value of the house owned by Edna in West Haven."
II. THE PROBATE COURT CASE
Shortly after this meeting, a Probate Court case commenced. Judicial notice is taken of the file of In re Edna Porteses (West Haven Probate Court No. 13-00384). A copy of the Probate Court file has been entered into evidence as Court’s Ex. 1. Audio recordings of proceedings before the Probate Court and a transcript of those proceedings have also been entered into evidence.
On August 22, 2013, Maria filed a petition for the appointment of a temporary conservator for Edna in the Probate Court. The petition proposed that Maria be named as the temporary conservator.
The petition identifies Attorney Gordon as the attorney for the petitioner. Although the petition identifies Attorney Gordon only as the attorney for Maria, Diane states in her affidavit that Attorney Gordon represented her and Val as well.
The Probate Court granted the petition for the appointment of a temporary conservator on August 22, 2013. On September 5, 2013, following a hearing, the Probate Court found Edna incompetent and made the appointment of Maria as conservator permanent.
On December 16, 2013, Attorney Gordon filed a " Motion For Order To Quitclaim Legal Interest Of The Conserved To Her Children/Caregivers." The Motion represented that Edna owned a home and had " just been moved into a facility." It requested " an order transferring the interest that Edna Porteses has in her home to her children in equal parts." The Motion did not inform the Probate Court that Edna’s children had previously agreed to divide Edna’s assets equally even if the Probate Court ruled otherwise.
The Probate. Court heard the Motion on January 9, 2014. Attorney Gordon appeared before the Court. When the issue of the house was raised, the following dialogue ensued:
THE COURT: And I understand what it is what you’re wanting to do is to do it equally.
ATTY. GORDON: DSS, I have spoken to them. I did it once before, something like this, with DSS and they didn’t have a problem. I spoke to them actually yesterday and they said oh, no, no, it has to go to the person who was carrying [sic] for and living in the house-
THE COURT: Right, Right.
ATTY. GORDON: - and what she does with it afterwards is what she does with it afterwards.
THE COURT: Right.
ATTY. GORDON: So I’m going to ask your Honor to allow an oral amendment to the request-
THE COURT: All right, that’s fine, yeah.
* * * *
[M]y thought ... is to give her a 25 percent share in title of compensation of taking care of mom, and then the other 75 percent would remain in mom’s estate ... [T]hen what happens is, when the estate gets done ... the other 75 percent will be a third, a third, and a third. That way she doesn’t have to worry about quit claiming, that way I’m not giving her a hundred percent and then worrying about the IRS.
* * * *
ATTY. GORDON: Or. that- if she got a hundred percent, transferring it over, there might be a gift tax.
THE COURT: A gift tax to the brother and sister, where you’re much better off putting it through the estate.
* * * *
Before I issue my decree, Attorney Gordon, I’ll let you research it to make sure that- it doesn’t have to be a hundred percent. I’m 95 percent sure that it does not, that they just have to have title, and then I’ll let you call the clerks and let ... the Court know what percentage you want. As I said, I thought a fair percentage would be 25 percent, not for anything other than that still gives your ... other siblings 25 percent instead of a third; it’s not that much different, okay? And you guys can always work that out down the road in any respect, in any case.
* * * *
[W]e’ll probably send you [a] draft copy of ... the decree without it being signed for you to do your research ... And then let me know whether the percentage is good.(Probate Court T. 26-35.)
At no point during this exchange did Attorney Gordon inform the Probate Court that his clients had previously agreed to divide Edna’s assets equally even if the Court ruled otherwise.
On January 16, 2014, the Probate Court issued the promised draft decree. The draft decree provided as follows:
The Conservator, Maria Porteses, has requested permission of the Court to transfer legal ownership of part of the home of the conserved person to herself. In support of this motion, the conservator has testified that she has resided with her mother since at least 1980 and because of her ability to care for her mother, her mother has not had to go into a nursing home. Unfortunately, the care for Edna had become so intense that she is now in a nursing home and a Title XIX application has to be filed. Under the circumstances, the home would be considered a non-asset but for the fact that Maria Porteses is not on title to the property. She is now requesting that title be transferred to her in order to take advantage of the regulations of the Department of Social Services with respect to Title XIX Applications. During the hearing, Maria Porteses testified that she moved back in with her mother shortly after her own divorce in 1980. Her father had died a couple of years prior thereto, and she became the primary source of assistance to her mother who at that time was in her late sixties. Over the next thirty years, Maria provided a range of assistance and services for her mother. The house is a two-family dwelling wherein Edna owned a half-interest for many years. In approximately 1992, Edna purchased the other half interest from her brother by financing the same. Because she had no income, Edna was unable to get the mortgage on her own and Maria, who was gainfully employed, signed on the note. Although Maria’s name probably should have been added to title at that time, it was not done in that Edna intended that all three of her children should share in the property. Even after acquiring ownership to the entire property, Edna and Maria resided in the same dwelling unit, renting the other floor of the building. A few years after purchasing the other half interest in the property, the purchase money mortgage was refinanced and a higher mortgage was taken in order to make repairs to the property. Once again the note was signed by Maria as she was the only one with sufficient income, even though she remained off the title. Over the years, Edna, who is now almost 100 years old, has been cared for by Maria without compensation. This includes a period of the last several years, where but for Maria, Edna would have been in a nursing home. Had that occurred, the house would have had to be sold, and after payoff of the mortgage, which there is still a balance of over $30,000, the net proceeds would have been used to pay for Edna’s care. Even in the best case scenario, those proceeds would have long ago been used up and Edna would have been a recipient of Title XIX benefits long ago. Instead, Maria kept her mother in the home, caring for her on a full-time basis over the last several years since her retirement in approximately 2006, when Edna was then 92 years old.
Maria is now seeking permission to add her name to the title in order to take advantage of exemptions permitted by Title XIX regulations. The exemptions were intended to encourage families to keep family members in their homes by having family members take care of them as long as possible without being placed in a nursing home. In consideration of the family taking care of the family member, the house would be considered exempt, providing that certain conditions were met. It appears in this circumstance that the conditions were met with the exception that Maria is not on title to the property. She is now attempting to correct that oversight.
And it is ORDERED AND DECREED that:
Maria Porteses, as Conservator for Edna Porteses, may transfer a 25% ownership in the property known as 17 Ashburton Place, West Haven, Connecticut, to herself, Maria Porteses, individually without further consideration. Nothing herein binds the State of Connecticut with respect to its treatment of the property and whether the same qualifies for an exemption. However, it appears to the court that the circumstances are such that the exemption would otherwise be granted.
As the Probate Court had expected, this was not the end of the matter. A March 25, 2014 memorandum of the Probate Court states that:
Decree of 1/16/14 signed but per Judge not mailed, Atty. Gordon to check with DSS and family as to percentage to be transferred. Never heard back from him- re-contacted him and he indicated OK to transfer 100% to Maria- relayed to Judge- Judge said put down for reconsideration (his decree not yet issued had indicated 25%).
On March 25, 2014, the parties were notified that the matter would be reheard on April 3, 2014. A new hearing was held on that day, with Attorney Gordon present.
At the Apri1 3, 2014 hearing, the Probate Court explained that it had concluded that, if 75 percent of the house remained in Edna’s name at the time of her death, " the State will basically be able to take that money and keep it, that 75 percent. So we do want to keep all of it out." (Probate Court T. 37.) Addressing Maria, the Probate Court further stated as follows:
So I’m going to modify my order that allows a hundred percent to go to you, and then you can do what you want. Attorney Gordon has told me that he- prior to the hearing, that he’s already talked to your accountant about a potential gift and so forth. Whatever you want to do, that’s between the family. I have no problems whatsoever, and certainly they have got notice of this as well, so they’ll know. The decree will say that it be transferred a hundred percent to Maria in consideration of all that you’ve done for your mother.
(Probate Court T. 36-37.)
Once again, the parties at no time informed the Probate Court that they had previously decided to divide Edna’s property equally between themselves even if the Probate Court ordered otherwise.
On April 3, 2014, following the rehearing, the Probate Court ruled as follows:
The Conservator, Maria Porteses, had originally requested permission from the Court to transfer legal ownership of the home of the conserved person to herself and her two siblings. In support of her motion, the conservator testified that she has resided with her mother since at least 1980 and because of the care Maria provided, Edna was able to remain in the family home for a [sic] many years before ultimately having to reside in a skilled nursing facility. It has only been recently that the care needed for Edna has become so intense that she is now in a nursing home and will not be able to return home. As such, a Title XIX application has to be filed and the transfer of title to the home will allow it to be considered a non-asset by the Department of Social Services.
By decree dated January 16, 2014, this Court approved the transfer of 25% of title of the house to Maria, retaining the balance in Edna. During the initial hearing, it was discussed that although the other two children did provide care services, those services may not meet the criteria necessary to permit the transfer to be exempt under Medicaid guidelines. There was no question that Maria has provided services such that if not for her, Edna would have been in a nursing facility long ago. At that initial hearing, it was suggested that the entire title to the house be transferred to Maria, but she was reluctant to do so since the initial application was for all three siblings to share the title.
Since that decree, the conservator, through counsel, has requested permission to transfer the entire interest in the house from Edna to Maria. Both the attorney for the conservator and the conservator have reported to the Court that the family is in agreement with this proposal and have requested that the Court amend its prior order to permit the transfer of 100% of Edna’s interest in the home to Maria.
The Court finds that it is in the best interests of the conserved person to permit the transfer. The Court further notes that Connecticut General Statute Section 17b-261b provides that the Department of Social Services has final authority over eligibility such that the actions of the conservator will be independently reviewed.
And it is ORDERED AND DECREED that:
Maria Porteses, as Conservator for Edna Porteses, may transfer title to the real property known as 17 Ashburton Place, West Haven, Connecticut, to herself, Maria Porteses, individually without further consideration. This decree hereby supersedes and modifies the decree dated January 16, 2014 regarding the same.
At no time, either before or after this order, did Attorney Gordon or any of the parties disclose to the Probate Court that the parties, in Attorney Gordon’s presence, had previously agreed to divide Edna’s assets equally between themselves even if the Probate Court ordered otherwise.
On July 25, 2014, Maria, in her capacity as Conservator, quitclaimed her interest in the House to Maria, in her individual capacity.
Maria subsequently refused a demand from Diane that she transfer title to the House from herself, as the sole owner, to herself, Diane, and Val as equal co-owners.
III. THE SUPERIOR COURT CASE
On February 24, 2015, Diane commenced the present action by service of process. Diane is the sole plaintiff, and Maria is the sole defendant.
Diane’s Amended Revised Complaint consists of six counts. The First Count alleges breach of contract. The Second Count alleges fraud. The third Count alleges negligent misrepresentation. The Fourth Count alleges unjust enrichment. The Fifth Count alleges promissory estoppel. The Sixth Count alleges " contract implied by conduct (implied-in-fact)."
The complaint seeks damages and the imposition of a constructive trust on the House for the benefit of Diane. The gist of all six counts is that, prior to the commencement of the Probate Court action, Maria agreed to divide title to the House equally between her, Diane, and Val; that in reliance on this agreement, Diane did not object to Maria’s Probate Court motion to transfer title of the House to herself; and that, after receiving title to the House, Maria breached the agreement.
On November 9, 2016, Maria filed the Motion For Summary Judgment now before the court. The Motion claims that Maria " is entitled to judgment as a matter of law." Prior to argument, the court, on its own motion, ordered the parties to brief the issue of whether, assuming that Diane’s allegations are correct, public policy permits Diane to recover the judicial relief she seeks. The Motion was argued on December 4, 2017.
IV. DISCUSSION
Nullus commondum capere protest de injuria sua propria . No one shall be allowed to profit by his own wrong. " This doctrine ... so essential to the observance of morality and justice, has been universally recognized in the laws of civilized communities for centuries and is as old as equity. Its sentiment is ageless." Neiman v. Hurff, 93 A.2d 345, 347 (N.J. 1952). (Internal quotation marks and citations omitted.)
It is well established that Connecticut courts cannot provide relief that condones " an unpurged act of fraud upon the court." Pappas v. Pappas, 164 Conn. 242, 247, 320 A.2d 809 (1973). Accord Cohen v. Cohen, 182 Conn. 193, 205, 438 A.2d 55 (1980). It is precisely such " an unpurged act of fraud upon the court" that forms the basis of the relief which Diane seeks in this case.
According to Diane’s own affidavit, in August 2013 she and Maria " agreed to divide [Edna’s] assets equally even if the probate court ruled otherwise." On December 16, 2013 Attorney Gordon moved the Probate Court to transfer Edna’s interest in the House " to her children in equal parts." Diane, who had notice of this motion and who was represented by the attorney filing the motion, at no point disclosed to the Probate Court that she had agreed with Maria to divide Edna’s assets " equally even if the probate court ruled otherwise." Instead, she states in her affidavit, " I did not object to any of the motions filed by Attorney Gordon because of our agreement."
In March 2014, following the Probate Court’s initial ruling, the Probate Court contacted Attorney Gordon in order to determine the family’s current wishes with respect to the disposition of the House. In response, Attorney Gordon indicated that it was " OK to transfer 100% to Maria." Diane expressly states in her affidavit that Attorney Gordon represented her as well as Maria. It is crystal clear that neither Attorney Gordon nor Diane informed the Probate Court in any way that Diane, Maria, and Val had previously agreed to divide the House equally regardless of what the Probate Court ruled.
The Probate Court made its final ruling on April 3, 2014. The Probate Court’s decision to transfer 100% of Edna’s interest in the home to Maria was deliberate, thoughtful, and faithful to both the requirements of Title XIX and " the best interests of the conserved person." Although Attorney Gordon’s original motion had requested equal distribution of Edna’s interest in the House to Diane, Maria, and Val, the Probate Court specifically rejected that request. It explained that, " although the other two children did provide care services, those services may not meet the criteria necessary to permit the transfer to be exempt under Medicaid guidelines ." (Emphasis added.) Given this reasoning, it is clear that, had the Probate Court been informed of the agreement between the siblings on which Diane now relies, it would not necessarily have made the decision that it did. After receiving this decision, neither Attorney Gordon nor Diane did anything to correct the Probate Court’s mistaken assumption, although- since they were parties and witnesses to the original agreement- they were plainly aware that the Probate Court had been deceived.
As mentioned, it is well established that courts in this State cannot provide relief that condones " an unpurged act of fraud upon the court." Pappas v. Pappas, supra, 164 Conn. at 247. This fundamental principle is hundreds of years old and applies in courts of law as well as courts of equity. See Greenberg v. Evening Post Ass’n, 91 Conn. 371, 375, 99 A. 1037 (1917). It dates at least from the legendary Highwayman’s Case of 1725, in which a highwayman sued his partner in crime claiming his share of the booty acquired during the case. The court dismissed the case and, for good measure, hanged the parties and threw the plaintiff’s lawyers into prison. The Highwayman’s Case, 9 L. Q. Rev. 197 (1893). See McMullen v. Hoffman, 174 U.S. 639, 654 (1899).
In modern times, our Supreme Court has drawn a distinction between frauds perpetrated upon private parties and frauds perpetrated on the courts. Cohen v. Cohen, supra, 182 Conn. at 205. A plaintiff who has perpetrated a fraud upon a private party is entitled to relief if she establishes the elements of her action. But a plaintiff who has perpetrated a fraud upon the court presents an altogether different issue. This is not a principle of justice between the parties. This is a principle of judicial policy grounded in the integrity of the judicial system itself.
The objection here is not to the uncleanliness of the plaintiff’s hands but to the whole enterprise. A court simply cannot operate with the integrity that the judicial task demands if the parties conspire to deceive it by conspiring to conceal crucial facts from the court. Under these circumstances, Professor Chafee has explained, the court will not touch the case " with a ten-foot pole. It always refuses to help carry it out, and it often refuses to pick up the pieces after the enterprise has fallen apart. Courts were set up to enforce the law, not to enforce violations of law." Zechariah Chafee, Jr., Coming into Equity with Clean Hands, 47 Mich. L.Rev. 877, 896 (1949). An action brought on such a " corrupt bargain" cannot prevail. Greenberg v. Evening Post Ass’n, supra, 91 Conn. at 375.
This court does not possess quite the robust judicial power employed by the court in the Highwayman’s Case . Like any court in any era, however, it must act in a way consistent with the law and the integrity of the judiciary itself. This case smells to high heaven. The court won’t touch it with a ten-foot pole. The Motion For Summary Judgment must be granted.
A copy of this Memorandum Of Decision will be sent to the Statewide Bar Counsel for whatever investigation and disciplinary action with respect to Attorney Gordon he deems appropriate. Another copy of this decision will be sent to the Hon. Mark J. DeGennaro, Judge of Probate, for whatever action he deems appropriate in the case of In re Edna Porteses .
V. CONCLUSION
The Motion For Summary Judgment is granted.