Opinion
CV156052643S
10-24-2016
Kevin Finucane v. Sally Motzer
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Thomas J. Corradino, Judge
The substituted complaint in this matter is based on a single count claiming unjust enrichment which reads as follows:
SINGLE COUNT (UNJUST ENRICHMENT):
1. In or about and after September 2009, the plaintiff KEVIN FINUCANE, an individual residing in Madison, Connecticut, made interest-free loans totaling $31,500.00 to Gregory Motzer, to pay down his household debts and those of his wife, the defendant SALLY MOTZER, an individual residing in Madison, Connecticut.
2. The aforementioned loans were made in the presence of SALLY MOTZER and with her specific knowledge as to the loans' purpose, which purpose was to pay Sally and Gregory Motzers' mortgage(s) and credit cards .
3. The value of the loans provided to Gregory Motzer, for his and Sally Motzer's use, by KEVIN FINUCANE is substantial.
4. A benefit was conferred upon SALLY MOTZER through the use of the $31,500.00 provided by KEVIN FINUCANE to her and Gregory Motzer, because at least a portion of her own financial obligations were satisfied through the use of Mr. Finucane's aforementioned loan to Mr. Motzer .
5. SALLY MOTZER unjustly failed to pay KEVIN FINUCANE for the said benefit, because his funds helped to satisfy payment of her debts and she knew he expected repayment .
6. The lack of payment for the said benefit was detrimental to KEVIN FINUCANE, because he is presently without the loaned funds and requires same for his own financial maintenance .
7. SALLY MOTZER has been unjustly enriched by virtue of her failure to pay for the said benefit.
The court will first discuss the legal concept of unjust enrichment and what it considers to be the law to be applied to this case and then will try to apply that discussion to the facts of this case presented at the trial, in the form of testimony from Mr. Finucane and Mrs. Motzer.
The concept of unjust enrichment is discussed in the case of Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665-66, 368 A.2d 6 (1976):
The doctrine of unjust enrichment " is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated . . . It is not necessary, in order to create an obligation to make restitution or to compensate, that the party unjustly enriched should have been guilty of any tortious or fraudulent act. The question is: Did he, to the detriment of someone else, obtain something of value to which he was not entitled?" Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215, 218; Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A.162. See Restatement, Restitution s 1. " 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." Cecio Bros, Inc. v. Greenwich, 156 Conn. 561, 564-65, 244 A.2d 404 . . .
Cases supporting this general definition include Vertex, Inc. v. City of Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2000), Gagne v. Vaccaro, 255 Conn. 390, 408-09, 766 A.2d 416 (2001), Cecio Brothers, Inc. v. Town of Greenwich, 156 Conn. 561, 564, 244 A.2d 404 (1968). The Gagne case at 255 Conn. page 409 went on to say the doctrine of unjust enrichment " three basic requirement are that (1) the defendant was benefitted (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment, " also to the same effect is the language in Vertex, 278 Conn. at page 573.
In Schirmer v. Souza, 126 Conn.App. 759, 767, 12 A.3d 1048 (2011) the court said " that a contractual relationship is not a prerequisite to recovery based on unjust enrichment." It is also true that: " It is not necessary, in order to create an obligation to make restitution or to compensate, that the party unjustly enriched should have been guilty of any tortious or fraudulent act, " Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959).
Case law also says " that the measure of damages in an unjust enrichment case is ordinarily not the loss to the plaintiff but the benefit to the defendant. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Company et al., 231 Conn. 276, 285, 649 A.2d 518 (1994), citing Monarch Accounting Supply, Inc. at 170 Conn. pp. 659, 660-67, 368 A.2d 6. The Hartford Whalers case went on to say this observation " does not mean that . . . a reasonable approximation of that benefit could not be derived from the evidence presented. Where damages are appropriate but difficult to prove the law eschews the necessity of mathematical exactitude. Such 'exactitude in the proof of damages is often impossible and . . . all that can be required is that the evidence, with as much certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate" . . . 231 Conn. at page 285.
On the concept of unjust enrichment cases from other jurisdictions and references to the Restatement in Restitution and Unjust Enrichment, 3d are also helpful. Thus in Section 2(1) the Restatement says " (1) The fact that a recipient has obtained a benefit without paying for it does not of itself establish that the recipient has been unjustly enriched." As said in Ghirardo v. Antonioli, 14 Cal.4th 39, 51, 57 Cal.Rptr.2d 687, 924 P.2d 996 (1996): " Even when a person has received a benefit from another, he (she) is required to make restitution 'only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for him (her) to retain it." In Omnibank of Mantee v. United Southern Bank, 607 So.2d 76, 92-93 (Miss., 1992). The court said that " The mere fact that a third person--here BOM benefits from an arrangement between two other persons--USB and LK and USB and Bigelow--does not make such third person liable in quasi contract, unjust enrichment, or restitution. Moreover, where a third person benefits from an arrangement--here a loan agreement--entered into between two other persons, in the absence of some misleading or wrongful act by the third person, the mere failure of performance by one of contracting parties (LK & R and Bigelow) does not give rise to a right of restitution against the third person (BOM). In other words, a person who has conferred a benefit on another, by making a contract with a third person, is not entitled to restitution from the other merely because of the failure of performance by the third person"; also see Bennett Heating & Air Conditioning, Inc. et al. v. Nations Bank of Maryland et al., 342 Md. 169, 182, 674 A.2d 534 (1990), Haggard Drilling, Inc. v. Greene, 195 Neb. 136, 142, 236 N.W.2d 841 (1975).
These cases on unjust enrichment often involve situations where a subcontractor performs work on property and the general contractor has refused to reimburse the subcontractor who then files a mechanics lien or otherwise makes a demand for payment from the property owner. The court in Haz-Mat Response, Inc. v. Certified Waste Services, Ltd., 259 Kan. 166, 178, 910 P.2d 839 (1996) said:
An examination of our past cases and further consideration of those cases set forth in Annot., 62 A.L.R.3d 288, convinces us that an essential prerequisite to such liability is the acceptance by the owner (the one sought to be charged) of benefits rendered under such circumstances as reasonably notify the owner that the one performing such services expected to be compensated therefore by the owner. In the absence of evidence that the owner misled the subcontractor to his or her detriment, or that the owner in some way induced a change of position in the subcontractor to his or her detriment, or some evidence of fraud by the owner against the subcontractor, an action for unjust enrichment does not lie against the owner by a subcontractor.
As said in 66 Am.Jur.2d, " Restitution and Implied Contracts" at § 15 p. 612: " To establish unjust enrichment the plaintiff must show that the defendant voluntarily accepted a benefit which would be inequitable to retain without payment. Otherwise stated, an essential prerequisite to unjust enrichment liability is the acceptance by the one sought to be charged of the benefits rendered under circumstances as are reasonable to notify them that the one performing the services expected to be compensated for them." Am.Jur. cited the Haz-Mat cases, just discussed, for this proposition, also see General Hanes, Inc. v. Denison, 625 S.W.2d 794, 796 (Tex., 1981).
Finally in Section 14 of the Am.Jur. article it states that " One has a right to decline to permit another to perform an act on his or her account. A party is not liable quasi ex-contract for benefits forced upon him or her, " pages 611-12, see Mehl v. Norton, 201 Minn. 203, 275 N.W. 843, 845 (Minn. 1937).
Also, confusingly enough, at Section 10 of the Am.Jur.2d article it states that it is fundamental that for a person to be entitled to restitution, there must not only be unjust enrichment but also the person sought to be changed must have wrongfully secured a benefit, or passively received one which it would be unconscionable to retain, p. 607, see In re Brereton's Estate, 388 Pa. 206, 130 A.2d 453, 457 (Pa., 1957).
From a review of our cases and those from other jurisdictions one has to agree that the doctrine of unjust enrichment has been described as " a very broad and flexible doctrine." Gagne, 255 Conn. at page 409. On the other hand, providing less comfort to the trier of fact, the court in Cecio Brothers at 156 Conn. at page 564, referring to an observation in a treatise said: " The doctrine of unjust enrichment has been described as a doctrine 'which is so broad as to include almost any case in which unfair dealing appears and so vague as to give no help in solving cases as they arise . . ."
As with any other restitution claim, the plaintiff has the burden of proving his claim of unjust enrichment. In this case the plaintiff claims he gave Mr. Greg Motzer, the plaintiff's husband, $31,500 in a series of four payments commencing in September 2009. By the fall 2009 Mrs. Motzer claims her husband's tire business had closed down. Sometime after May of 2010 Greg Motzer filed for bankruptcy and after that event this suit for unjust enrichment was brought against the defendant Sally Motzer.
The only corroboration of the amount the plaintiff claims to have given to Mr. Motzer was Exhibit 1, a document the plaintiff prepared for the Motzers to sign. Only Greg Motzer signed it, the plaintiff refused to sign the document. The plaintiff did not have Greg Motzer sign anything upon receipt of any of the four payments and he did not bring any ledger he claims to have made recording the payments to trial. Greg Motzer was never subpoenaed to trial. He was living in New York City with a friend in September of 2009 but returned to live with the plaintiff in February of 2010. Even if he was again living in New York at the time of trial, his testimony could have been obtained by either side.
Exhibit 1 reads that " I, Greg Motzer, owe Kevin Finucane $31,500.00 which I borrowed in cash for our mortgages, credit cards, and payments to the parking garage owed for working overtime." The document goes on to say the payments were made " during the fall of 2009 and January and February 2010 . . ." The court will discuss the contents of this document in more detail later in its opinion but prior to doing that would note several difficulties it has with the plaintiff's overall position.
At the time the plaintiff started making payments to Greg Motzer they had only known each other for two years, had not gone out socially, and had not been in any business ventures. The question arises as to why he would make cash payments of $31,500 to Greg Motzer under these circumstances. His testimony was that, although he always expected to be paid back and indicated that to the recipient of his largesse, he lent a large amount of money over a roughly six-month period to a man whose business had collapsed, after he knew it had done so.
Furthermore the mathematics do not add up. The defendant lived at New Road in Madison. She owed $1,000 a month on a mortgage and $200 on a line of credit. Maintenance costs were $300 a month and she spent $400 a month on household expenses. For a six-month period this would total $11,400. She owned a house at 97 Cottage Road which had three rentals. The mortgage was $2,000 a month with $400 a month for maintenance of the property. The rent was $1,100 per month for each apartment. Only two were rented before September 2009 but Mrs. Motzer said she secured a tenant for the third apartment in September so that her income from that property exceeded her expenses on it. She also said her daughter's college tuition was $3000 a year. Query when the tuition was due and owing and more germane to the issue at hand--when was it paid. The total expenses on the two addresses, including living expenses and college tuition for the six month period from September 2009 through February 2010 would be $14,400. That makes the statement signed by Greg Motzer, Exhibit 1, inexplicable--as noted it states he borrowed $31,500 " in cash" no less for " our" mortgages and credit cards. It does say he borrowed the money to also pay a parking garage for working overtime. What that represents is unclear but one could surmise it could not consume a large amount of money and it is unclear whether that expense was incurred before September 2009.
There was no evidence introduced or attempted to be elicited that as of September 2009 back monies were owed on mortgage payments or any other outstanding debts.
The net result of the foregoing observations is that for the six-month period in question when Finucane gave money to Greg Motzer there was no need for an influx of $31,500 to meet expenses totaling $14,400 Mrs. Motzer had. In fact she testified she had an income from her job of $40,000 a year net which would amount to over $3,000 a month or $20,000 for a six-month period. Greg Motzer was living with a friend in New York during this period according to the defendant and in any event there was no evidence or suggestion she helped support him or meet any expenses he might have had. In addition Mrs. Motzer's mother had left her $30,000. In the beginning of 2009 she testified she had over $20,000 in this account and had withdrawn $8,000 in 2009. She also could borrow from her credit card account which she said she did in 2009 and 2010. But the amount was never inquired into and she was adamant she was able to pay all her expenses in the time period in question.
It is also true that no evidence was presented or questions asked about any failure let alone inability to meet the expenses referred to before September 2009 or perhaps even more to the point, after February 2020 to the time of trial.
In light of the foregoing it is difficult to conclude that if the plaintiff gave $31,500 to Greg Motzer that full amount would have benefited Mrs. Motzer in meeting any expenses she had. In fact why would any of the money be needed for mortgage payments, living expenses, college tuition or any other expenses that had to be paid?
All of this casts doubt or at least makes it impossible as between these two people to conclude that the plaintiff conferred any benefit on Sally Motzer despite his testimony that on several occasions she thanked him for helping them out on their expenses which Mrs. Motzer denies. The plaintiff has the burden of proof on the Gagne element of establishing he conferred a benefit on the defendant. Beyond that Mrs. Motzer testified that, contrary to the language of Exhibit 1, the mortgages on the two properties mentioned could not be characterized as " our" mortgages nor could it be said any credit card debts were both their debts--" our" credit cards. It is true that no copies of these mortgages were produced or subpoenaed nor was any documentation produced as to who was active on the credit cards but either side could have done that. Mrs. Motzer said the mortgages and credit cards were in her name. She further testified she paid the mortgage debt and all her bills without assistance from the plaintiff or anyone else. There was no objective evidence produced to belie this assertion and the evidence as to expenses which the court has discussed supports the assertion.
It is true that Exhibit 1 can be read to establish that he in fact loaned Greg Motzer $31,500 and Motzer signed a document that said the money was borrowed to pay our mortgages and credit cards, college tuition was not mentioned. Why would Greg Motzer sign this document alleging the mortgages and credit cards were obligations he contributed to meeting. But it could be said that at the point the document was signed its contents made little different to Greg Motzer--he eventually decided to go into bankruptcy anyway. But the contents of the document, which the plaintiff drew up, was of great importance to the plaintiff. As he testified to, by May 10, 2010 when Exhibit 1 was prepared and signed, he had an inkling that he might have been the subject of a scam and would not be reimbursed. He could also have surmised Greg Motzer had no source of income or expectation of receiving monies from a government contract which he was told was non-existent. The plaintiff had every reason to draw up the document in such a way so as to make Mrs. Motzer liable for any monies he had given to her husband Greg Motzer.
Other aspects of the preparation and signing of Exhibit 1 which the plaintiff testified about are confusing. First the plaintiff said the defendant was in the kitchen when he drew up the document and her husband signed Exhibit 1. Then he stated she was in another room but qualified this observation by saying he, Greg and Sally Motzer, talked about the contents of Exhibit 1 before he drew it up and before Greg Motzer signed it. The fact remains Mrs. Motzer refused to sign Exhibit 1 and even read it which is consistent with her testimony she believed that the Exhibit concerned some business venture between the plaintiff and her husband. She testified she wanted nothing to do with any business venture which the plaintiff and Greg Motzer had talked about at a restaurant they all went to before Exhibit 1 was prepared and signed at her house. The oddest thing about Exhibit 1 in this case, at least to the court is the fact that it reads " I, Greg Motzer, owe Kevin Finucane $31,500 . . ." It does not read " I, Greg Motzer, and Sally Fitzer owe Mr. Finucane $31,500." The plaintiff said this oversight was due to " forgetfulness" and the fact that he was " nervous." That explanation is not persuasive. Mr. Finucane struck the court as an intelligent individual who was well aware of financial dealings. But it must be said that the court itself does not attach much significance to this factor since it would not defeat a claim of unjust enrichment if it were otherwise shown that the defendant benefited from Mr. Finucane's monies in a manner which would be considered unfair. If the plaintiff's testimony is believed that Mrs. Motzer was aware of the monies that were being given to her husband and that it was really helping her and her husband meet their financial obligations, the unjust factor would be met since such statements by the plaintiff would encourage Finucane to continue the process of giving money to her husband as would her statements to Mr. Finucane that he would be paid back.
In any event the plaintiff has the burden of proof on the elements that must be established for an unjust enrichment award under Gagne . Either Mr. Finucane's testimony is that Mrs. Motzer said she and her husband were in dire financial straits, not able to meet mortgage payments or even day to day household expenses, etc. or Mrs. Motzer is truthfully denying those portions of the statements Mr. Finucane attributes to her. The court has no magic charm based on the delivery of the testimony and the manner thereof to decide which party is testifying truthfully. It can only rely on objective facts and as previously discussed the objective facts do not persuade the court that the plaintiff has met his burden. Mr. Motzer did not testify, and as discussed no independent records of arrearage on debts owed was introduced. The plaintiff did bring groceries to the residence of Mrs. Motzer to help them out of their dire straits. Mrs. Motzer testified she could not understand why he was doing this. It could very well be that Greg Motzer told stories of their dire straits for purposes of his own. But, for the court at least, it passes understanding that this woman who was earning $40,000 per year, with income from three rentals, thousands of dollars in the bank and the ability to get advances from her credit cards would in fact need to be supplied with groceries and more to the point would not be able to meet the expenses set forth in Exhibit 1 for a six-month period. The court concludes the unjust enrichment claim has not been established.
But even if the court had concluded that an unjust enrichment cause of action had been established the court also concludes that based on the evidence submitted it cannot make an award that is anything but nominal damages. To requote the comment in the Hartford Whalers case: " Where damages are appropriate but difficult to prove the law eschews the necessity of mathematical exactitude. Such 'exactitude' in the proof of damages is often impossible, " 231 Conn. at page 285. But in Bhatia v. Debek, 287 Conn. 397, 419, 948 A.2d 1009 (2008) the court did qualify the foregoing general remarks by quoting from earlier case law to the effect that: " 'To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence, which afford a reasonable basis for measuring the (plaintiff's) loss . . . The (plaintiff has) the burden of proving the nature and extent of loss . . .' 'Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . .'" also see 22 Am.Jur.2d " Damages" at § 719, pp. 660-62.
In this case it seems clear that the sum of $31,500 is far in excess of monies that would have been needed to pay the mortgages that have been discussed, maintenance on the two properties, household, and even college expenses of the Motzer child for the six months during which the money was purportedly given by Mr. Finucane (September 2009 through February 2010). Part of the $31,500 was to reimburse for parking expenses at a garage which could not be ascribed to Mrs. Motzer; she worked at home. More to the point proof of damages is the plaintiff's burden; no reason has been offered why Mr. Motzer could not have been subpoenaed or subject to a pretrial deposition to explain how much of Mr. Finucane's monies in fact went to pay or help pay the mortgages, any credit card debts (whose credit card debts by the way, his or Mrs. Motzer's), household expenses, house maintenance expenses or college tuition. Discovery could have been used to procure bank and checking records to indicate who paid what and when during this six-month period, including checks covering any arrearages that might have been owed on the mortgages or credit cards. Sufficient evidence has not been presented that would justify anything but an award for nominal damages.
In any event for all of the foregoing reasons the court enters judgment for the defendant.
If an appellate court concludes unjust enrichment should have been found, the court concludes and would have concluded if it had also so found that nominal damages should be awarded.