Opinion
No. 05-4001918
October 3, 2007
MEMORANDUM OF DECISION
This is a case in which the plaintiff mother has brought an action against her youngest son, Robert J. Gennotti, and his wife, Lori A. Gennotti, and her half-brother, Robert N. Jetmore. The case concerns real property consisting of a house and lot at 72 Summer Street in the City of New London, Connecticut conveyed by plaintiff to defendant Robert Gennotti on November 9, 1993.
I. PLEADINGS
By her amended complaint of February 22, 2006, plaintiff seeks damages, punitive damages and equitable relief based upon separate claims of undue influence in the conveyance of the real property at 72 Summer Street and unjust enrichment.
The complaint also included a count alleging lack of capacity to convey real property which was withdrawn at the time of trial. The fourth count of the amended complaint alleged undue influence — personal property and the fifth count alleged unjust enrichment — personal property. Both of these claims concerning personal property were dismissed without objection after plaintiff had produced her evidence and rested. Conn. Practice Bk. Sec. 15-8.
On August 14, 2006, defendant Robert N. Jetmore filed his answer denying the essential allegations of the amended complaint and a special defense claiming that the action is time-barred.
Subsequently, on August 16, 2006, defendants Robert J. and Lori A. Gennotti filed their answer together with seven special defenses: (1) plaintiff had a donative intent and is not entitled to the relief sought; (2) plaintiff gifted the property; (3) defendant provided consideration for the property; (4) plaintiff had the capacity to convey the property; (5) the claim is time-barred; and (7) plaintiff has unclean hands and is not entitled to the relief sought. Two counterclaims were also filed, one being an action to settle title and also a claim of breach of covenant of warranty. By way of relief, defendants Gennotti also seek a judgment settling title to the property in question, and order vesting title to the property in themselves and damages, punitive damages and attorneys fees.
On December 1, 2006, plaintiff filed a reply and answer to the defendants Gennotti's special defenses and counterclaims. In this pleading, plaintiff denied the allegations of specific defenses 1 through 4 and 6 and 7. With respect to the fifth special defense claiming that the action was time-barred because of the statute of limitations, plaintiff denied the allegation and alleged that "(1) The Plaintiff's causes of action were fraudulently concealed by the Defendant. (2) The Defendant engaged in a continuing course of conduct, based upon his special relationship with the Plaintiff, to deprive the Plaintiff of her property. (3) Any delay in commencing this action is excusable on the basis of Plaintiff's condition and/or the conduct of the Defendants and/or the conduct of other family members." The plaintiff also interposed two special defenses to the counterclaims. The first special defense involved a lack of capacity which claim has been withdrawn. The second defense claims that the conveyance alleged in the counterclaim were invalid since they are the products of undue influence and the title conveyed to defendants Gennotti is therefore void. By pleading filed the same date, plaintiff replied to defendant Robert Jetmore's special defense concerning the statute of limitations using the same language as in the reply to defendants Gennotti's claim that the action was time-barred.
II. BASIC FACTS
Certain basic facts, all of which are not in dispute, are found by the Court.
Plaintiff was raised by her mother, Josephine Jetmore and her stepfather. She had four siblings, half-brother Melvin Jetmore, half-sister Anna Made Carlson and half brothers defendant Robert Jetmore and David Jetmore.
Plaintiff and her former husband, Frank Gennotti, Sr., had three children. The oldest child was Frank Gennotti, Jr., a middle child, Ann, now Ann Tefft, and defendant Robert J. Jetmore, the youngest child.
In 1954, plaintiff and her husband acquired the property at 72 Summer Street and came to reside there. The house on the property was built with the assistance of family members principally Melvin Jetmore.
Josephine Jetmore, plaintiff's mother, and her husband, plaintiff's stepfather, built a house at 64 Summer Street and commenced to reside there in 1959. The two properties were contiguous allowing easy access from one house to the other.
The marriage between plaintiff and her husband was at times strained and, although divorce proceedings were then pending, they were still living together at 72 Summer Street in December 1988.
On December 12, 1988, plaintiff was seriously injured in an automobile accident in which she suffered injuries to the frontal lobes and left side of her brain as well as other injuries. She was 61 years of age at the time and hospitalized for about four weeks.
While plaintiff was still in the hospital, conservator proceedings were initiated in the probate court and on January 13, 1989. Attorney Humbert Polito, a member of the firm representing her in her claim for personal injuries, was appointed conservator. Defendant Jetmore handled plaintiff's financial matters with the consent of the conservator and prepared the final account for Attorney Polito. The conservatorship was terminated on November 6, 1989.
At the time of the accident and prior thereto, defendant Robert Gennotti was residing in his parents' home at 72 Summer Street. Plaintiff's daughter and her son, Frank Gennotti, Jr., had established residence elsewhere and were not living at home at the time of the accident. Frank Gennotti, Sr. vacated the premises prior to plaintiff's returning from the hospital because of the divorce proceedings then pending.
Defendant Robert Jetmore suffers from what has been described as an anxiety disability which made it impossible for him to hold regular employment. In December 1988, he was then residing with his mother at 64 Summer Street, his stepfather apparently having passed away. Defendant Robert Jetmore was still residing in the house at the time of trial. His mother, Josephine Jetmore, died in 2005.
When plaintiff returned home after her hospitalization, she required a considerable amount of home care. In addition to professional medical assistance, family members assisted in caring for her. As her recovery progressed, she began to spend more and more time next door with her mother and defendant Robert Jetmore at 64 Summer Street. By late 1989, plaintiff was residing at 64 Summer Street. Defendant Robert Gennotti was residing alone at 72 Summer Street. There was considerable visiting between the houses and meals were frequently eaten together at 64 Summer Street.
In January 1991, a judgment of divorce was finally entered terminating plaintiff's marriage to Frank Gennotti, Sr. As a result of the judgment, plaintiff acquired sole title to 72 Summer Street.
On December 24, 1991, plaintiff executed a deed conveying the property at 72 Summer Street to defendant Robert Jetmore as trustee for the benefit of defendant Robert Gennotti reserving a life use in herself. The deed created a simple trust with no separate trust instrument. The deed was prepared by Attorney James Mattern who had represented defendant Robert N. Gennotti in the past. Attorney Mattern had prepared a revised will for plaintiff in 1989.
On November 9, 1993, two deeds prepared by Attorney Mattern were executed. One deed was a quitclaim deed from plaintiff conveying her life interest in the property at 72 Summer Street to defendant Robert Gennotti. The second deed was from defendant Robert Jetmore, trustee, conveying what interest he had in the property to defendant Robert Gennotti. As a result of these conveyances, defendant Robert Gennotti acquired full title to the property at 72 Summer Street. No financial consideration was then paid by defendant Robert Gennotti to his mother, the plaintiff.
There was no evidence as to the legal title to the property. There is nothing to indicate that plaintiff did not possess full legal title and defendant Robert J. Gennotti acquired plaintiff's interest by virtue of the quitclaim deed.
On December 12, 2006, defendant Robert Gennotti executed a deed to himself and his wife, Lori A. Gennotti. As a result of this conveyance, except for parties and interest not in evidence, at the time of trial, title to the property at 72 Summer Street was in the name of the defendants, Robert J. Gennotti and Lori A. Gennotti.
For some time prior to and after the accident, plaintiff had been estranged from her daughter, Ann Tefft. In 2003, Frank Gennotti, Jr. took his mother, the plaintiff to the residence of her daughter, Ann Tefft. She did not return to Summer Street and was residing with her daughter at the time of trial.
III. ISSUES
There are two principal issues which must be considered by the Court. The first is plaintiff's claim that the conveyances to defendant's Robert N. Jetmore and Robert J. Gennotti, were the products of undue influence. The second issue is whether or not plaintiff's action here is time-barred.
a.
CT Page 16562
Undue Influence
The second count of the amended complaint is entitled "Undue influence in the conveyance of real property." In this count, plaintiff alleges that, as a consequence of the traumatic brain injury suffered in the automobile accident, she was incapable of managing her own affairs and that from December 1988, until 2003, she was under the domination and control of defendants Robert N. Jetmore and Robert J. Gennotti. It is further alleged that these defendants isolated plaintiff from neighbors, friends, her daughter and granddaughters. Plaintiff further alleges that the conveyances to these defendants are voidable because they were produced by undue influence."Undue influence 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 he would do under normal control. Reynolds v. Monitor, 184 Conn. 526, 528, 440 A.2d 192 (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.' 25 Am.Jur. 397-98, Duress and Undue Influence Section 36" Pickman v. Pickman, 6 Conn.App. 271, 275 (1986). The ultimate question before the Court is whether plaintiff's mind was so dominated by defendants so as to prevent the exercise of an independent judgment. Bucchi v. Gleason, 137 Conn. 25, 30 (1950). See also Dinan v. Marchand, 91 Conn.App. 492, 494 fn. 1 (2005).
A claim of undue influence presents a question of fact which may be inferred from all of the circumstances. Salvatore v. Hayden, 144 Conn. 437, 440 (1957).
The general rule places the burden of proof of the existence of facts essential to her claim on the plaintiff. Nikitiuk v. Pishtey, 153 Conn. 545, 552 (1966). "Ordinarily, the burden of proof on the issue of undue influence rests on the one alleging it." Bucchi v. Gleason, 137 Conn. 25, 30 (1950).
In her brief, plaintiff claims that because of the fiduciary relationship between the defendants, principally Robert N. Jetmore, the burden of proof has shifted from plaintiff to the defendants.
"Proof of a fiduciary relationship therefore imposes a twofold burden upon the fiduciary. Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. Furthermore, the standard of proof for establishing fair dealing 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). (Citations omitted.)
What constitutes a fiduciary relationship has not been specifically defined by the law and is not confined to clearly recognizable relationships such as between lawyer and client. "It has left the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." Harper v. Adametz, 142 Conn. 215, 225 (1995).
Plaintiff claims that a fiduciary relationship existed between her and the defendants, particularly the defendant Robert N. Jetmore. This relationship with her brother, it is claimed, was characterized by a unique degree of trust and confidence between the two with her brother having superior knowledge, skill or expertise. It is pointed out by plaintiff that her brother assisted with her affairs while the conservatorships existed and that he was the executor of her estate in her revised will. He had her power of attorney and he held the key to her safe deposit box and he assisted her with investments. He had been appointed trustee in the deed of December 24, 1991. Defendant Robert N. Jetmore also appears to have been the manager of the household at 64 Summer Street doing most of the cooking and providing transportation for plaintiff and her mother.
There is no doubt but that plaintiff relied upon Robert N. Jetmore for assistance and trusted him with her financial affairs. He was, in fact, her brother and a person who was in a position to assist her from the time of her accident until she left Summer Street to live with her daughter. Based upon the law and the evidence, it must be found that a fiduciary relationship existed between the two so as to shift the burden of proof. It has not been proven that a fiduciary relationship existed between plaintiff and the other defendants.
Of the four elements which the Court must consider in determining undue influence, the first involves the person who it is alleged was the subject of the undue influence, here, plaintiff.
Relevant factors include "age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction . . . consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth . . . failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties." Pickman v. Pickman, supra, 6 Conn.App. 275-76.
The first element of undue influence which must be addressed, and which the Court must consider is the person who it is claimed was subject to the undue influence. In this case, that would be the plaintiff. Pickman v. Pickman, supra, 6 Conn.App. 275.
Plaintiff suffered serious injuries, including brain damage as a result of the accident which occurred on December 12, 1988. Recognizing that it would not be possible for her to manage her affairs as a result of her injuries, Attorney Humbert Polito, of the firm representing plaintiff in her claim for personal injuries, was appointed conservator in December 1988. The conservatorship was terminated on November 6, 1989.
In April 1990, plaintiff began to be treated by Dr. Edward S. Tucker, a neurologist. She continued to see Dr. Tucker from time to time up to the date of trial. Under Dr. Tucker's supervision, plaintiff underwent a neurological evaluation and testing in 1991. As a result of the test, Dr. Tucker concluded that plaintiff's cognitive skills, her ability to think, to remember and understand things were all intact. Plaintiff's neurological condition continued to improve with the greatest improvement being in the 18 to 24 month period after the accident. Dr. Tucker testified that as a result of her injuries when forced with a combination of things, plaintiff might fall apart, become frustrated and lose emotional control. She would "explode" if forced to do something that she did not want to do. There was separate evidence that plaintiff was difficult to live with after the accident. From Dr. Tucker's testimony, it must be found that at the time the deeds were executed in 1991 and 1993, plaintiff was competent under the law.
During the time relevant to the issues here, plaintiff was involved in certain court-related activities which must have placed great stress upon her.
In June 1989, while still under the conservatorship, plaintiff applied for a restraining order against her daughter, Ann Tefft. The proceedings required an affidavit of facts. The oath was taken by her conservator, Attorney Polito, who testified that at that time plaintiff was competent and understood what she was doing. In January 1991, plaintiff proceeded to judgment in her divorce action, a proceeding universally considered to be stressful. The divorce involved the execution of documents under oath. There is no evidence that plaintiff lacked the capacity to perform these tasks or that she was emotionally unable to participate.
Both of these court-related activities must have caused tension, anxiety and stress to the plaintiff but the evidence indicates that she was able to cope.
The deeds of December 24, 1991 and November 1993 were executed by, or under the supervision of, Attorney James Mattern, an experienced lawyer with many years of practice in the field of real estate and probate. Plaintiff first consulted Attorney Mattern on November 14, 1989 concerning a will. Attorney Mattern's testimony, at the time of trial, indicates that he then had very little specific recollections of his dealings with plaintiff. He testified that when preparing documents, such as those requested by plaintiff, his usual procedure was to have a pre-execution conference with his client to determine what the client wished to have done, Attorney Mattern's notes indicate that this procedure was followed with plaintiff. After the conference, the deeds would be prepared and the client would return for the execution of the instruments. Before executing the documents, the attorney would explain to his client what the document represented and, if the person still wanted to execute the papers. Attorney Mattern was certain that this procedure was followed with plaintiff.
The attorney also testified that if he had suspicions of any problems, either undue influence or competency, he would not have executed the instruments. He did not recall that plaintiff was under a great deal of stress and at the time he found her "fully astute." None of the defendants were present at the time the deeds were executed.
In her complaint, plaintiff alleges that she feared defendant Robert N. Jetmore since he periodically battered her to keep her under his control. This allegation has not been proven. People who saw her frequently such as her neighbors and her cousin Joan Siragusa never observed any evidence of any battering and plaintiff never complained to them of any such abuse. Plaintiff's brothers, Melvin and David, were frequent visitors at 64 Summer Street, both before and after plaintiff began to reside there. Both were former police officers and if they had observed any such abuse being committed on their sister or if she had brought such abuse to their attention, they certainly would have taken action to protect her.
It is also alleged in the complaint that the defendants isolated plaintiff from her neighbors, friends and her daughter and granddaughters. These allegations have not been proven. The testimony of her neighbors and friends, Sandra Daley and Donna Shea Romanofski, was that plaintiff frequently visited them to discuss such matters as children, family matters and topics of the day, including politics. Their testimony and that of plaintiff's cousin Joan Siragusa clearly indicates that plaintiff was not being held against her will and prevented from seeing other people or attending family functions.
There was also testimony that plaintiff took vacations, including a trip to Florida to visit her son, Frank, Jr.
Whether or not defendants had an opportunity to exert undue influence on the plaintiff is an element of undue influence which must be considered by the Court. Defendants Robert J. Gennotti and Robert N. Jetmore both lived with or in close proximity to the plaintiff at all times relevant to the claim here, and it must be found that both had the opportunity to exert undue influence on plaintiff. This was particularly true with respect to defendant Robert N. Jetmore who lived in the same house as plaintiff and performed a myriad of tasks for her, including housekeeping, cooking, transportation and financial advice.
The third element which the Court must consider is whether the defendants had a disposition to exert undue influence on plaintiff so as to induce her to convey the property at 72 Summer Street to defendant Robert J. Gennotti. Id.
There was testimony that defendant Robert N. Gennotti did not want the house. Although he did not reject it and there was evidence that he made a number of improvements both inside the house and outside landscaping. Also, he lived there both prior to and after his marriage.
Defendants advance in their brief a theory that Robert N. Jetmore, because of his nervous condition and inability to maintain employment, was receiving financial assistance from the state or federal government. As a consequence of this, any funds or other assets which he might receive could be forfeited or would affect his receipt of financial assistance. To avoid this, some assets owned by defendant Jetmore were kept in the name of his nephew, defendant Robert J. Gennotti. While this may be true and it may not have been completely honest, there is no nexus between this and the claim that defendant Robert N. Jetmore exerted undue influence on plaintiff for the benefit of her younger son.
The fourth element of undue influence under Pickman is "a result indicating undue influence." Factors including undue influence mentioned in Pickman include a "predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth . . . failure to provide for all of his children in case of transfer to one of them." Pickman v. Pickman, supra, 6 Conn.App. 275-76.
In connection with these factors, the evidence indicates that at the time the conveyances were made, plaintiff's principal assets consisted of the property at 72 Summer Street and her brokerage account with Merrill Lynch established with the proceeds from the settlement of her personal injury claim. From this, it must be concluded that the house was a principal asset, although it was in need of repair.
There was considerable evidence as to plaintiff's situation at the time the transfers were made in 1991 and 1993. At the time, plaintiff had established herself in residence at 64 Summer Street with her mother and brother, defendant Robert N. Jetmore. It was not always the happiest of homes, but brother and sister were caring for their mother and the household was functioning.
Defendant Robert J. Gennotti was then living next door at 72 Summer Street making improvements to the house. After his marriage, plaintiff and his wife, defendant Lori A. Gennotti, commenced to reside in the house and, in due time, with their two children. There was much visiting back and forth between the two houses with meals frequently being eaten at 64 Summer Street.
Plaintiff had the opportunity to interact with her grandchildren living next door. Neighbors testified as to her playing ball with and helping her grandson in his bicycle riding endeavors.
Plaintiff frequently discussed her family situation with her neighbors Sandra Daley and Donna Shea Romanofski, as well as her cousin Joan Siragusa. All three testified of the affection which plaintiff had for her son, defendant Robert J. Gennotti. She was very proud of him and loved him very much. Ms. Siragusa testified that based upon her conversations with plaintiff, the youngest son was the apple of plaintiff's eye and that he gave her much joy.
According to the same witnesses, plaintiff's oldest son, Frank Gennotti, Jr., did not enjoy the same fond relationship as with her younger son. Ms. Siragusa testified that plaintiff informed her that Frank, Jr. was an embarrassment, both morally and financially. At the time in question, Frank, Jr. had moved out of the area and established a residence in Florida. Plaintiff did maintain a relationship with her oldest son and visited him in Florida. He visited her when he returned to Connecticut periodically, but the relationship was not as close as the relationship between plaintiff and her younger son.
There was considerable evidence concerning plaintiff's relationship with her daughter, Ann Tefft. All of the credible evidence indicates that at all times relevant to the claims here, plaintiff hated her daughter. From the time she was a teenager to her early 20s, Ann had been the cause of significant problems to her mother. The affidavit executed by plaintiff on June 5, 1989, in connection with the restraining order illustrates the strained relationship between mother and daughter. This affidavit executed under oath contains the following:
2. On April 22, 1989, my daughter, Ann Tefft, came into my home and physically restrained me and threatened me.
3. During the course of my hospitalization following my automobile accident on December 12, 1988, Ann Tefft physically attacked me in the bathroom of the Lawrence and Memorial Hospital.
4. Prior to this automobile accident, Ann Tefft choked me and was stopped by my son, Frank Gennotti, Jr.
5. Ann Tefft once put a loaded gun to my head and threatened to kill me.
6. I fear that Ann Tefft will harm me and desire a restraining order immediately.
Plaintiff's signature appears under the allegations.
At trial, plaintiff, who was then living with her daughter, Ann Tefft, claimed that the affidavit was false. Other testimony tended to confirm the allegations of the affidavit, and the more credible testimony of Attorney Polito also contradicts plaintiff's courtroom testimony.
The fourth element under Pickman, "a result indicating undue influence" presents the ultimate question. That is, whether it has been established by clear and convincing and unequivocal evidence that in making the conveyances to her son, plaintiff's mind was not dominated by defendant Robert N. Jetmore or the other defendants so as to prevent the exercise of her independent judgment. Based upon all of the credible evidence, it must be found that this burden has been sustained.
Although a finding that a fiduciary relationship may have existed between Robert N. Jetmore and plaintiff, there is no credible evidence that the conveyances in question were the result of any undue influence exerted on plaintiff by any of the defendants.
The unequivocal evidence requires a finding that at the time the deeds were executed, plaintiff was fully competent and capable of making the decision to convey the property to her younger son. Her intention was to convey the property to this son who, at the time, was the only child still with her as a functioning part of her immediate family. He was the only child remaining with her and was the natural object of her bounty. Plaintiff informed Sandra Daley of the transfer and told her she wanted her younger son to have the property. Plaintiff discussed the transfer several times with her cousin Joan Siragusa. She told her cousin that she wanted "Bobby Joe" to have the property and did not want her daughter or Frank, Jr. to get it.
Plaintiff's testimony concerning the conveyances was not credible. She testified that she would never do such a thing and that the deeds were forgeries. This is contradicted by the more believable testimony of Attorney Mattern and other disinterested witnesses.
Considering all of the evidence, and the reasonable deductions which may be inferred from such evidence, it must be found by clear, convincing and unequivocal evidence that the conveyances executed by plaintiff on December 24, 1991 and November 9, 1993 were not procured by undue influence exerted by any of the defendants.
b. Unjust Enrichment
The third count of the amended complaint alleges unjust enrichment. Specifically, plaintiff alleges that defendants Robert J. Gennotti and Lori A. Gennotti paid no consideration for the property at 72 Summer Street and that they have been unjustly enriched by the conveyance. Plaintiff seeks the imposition of a constructive trust and that defendants now holding title to the property be compelled to convey it back to her. Plaintiff also seeks compensation for use, occupancy and rents.
In their answer to the third count, defendants Robert J. Gennotti and Lori A. Gennotti deny the allegations of plaintiff's third count. Three special defenses were interposed by these defendants. The first special defense alleges that plaintiff had donative intent and is not entitled to the relief sought. The second special defense alleges that plaintiff gifted the property. The third special defense alleges that plaintiff provided consideration for the conveyance.
"A gift is the transfer of property without consideration . . . To make a valid gift inter vivos the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee . . . The burden of proving the essential elements of a valid gift rests upon the party claiming the gift." Parley v. Parley, 72 Conn.App. 742, 749 (2002).
From the evidence, it must be found that these defendants have sustained the burden of proof and that in executing the quitclaim deed to her son, defendant Robert J. Gennotti, on November 9, 1993, and in her prior deeds, plaintiff had the intent to make a valid gift of the property. The deed was recorded in the land records title vested in defendant Robert J. Gennotti and he took possession of the property.
The third special defense alleges that these defendants provided consideration for the conveyance. Although defendant Robert J. Gennotti performed work on the property and expended funds for improvements in connection with such work, there is no evidence that he paid anything directly to plaintiff in consideration of the conveyance. However, "a good consideration is that of blood or natural affection, and a gift made for such consideration ought to prevail unless it is found to interfere with the rights of creditors or purchasers." Candee v. Connecticut Savings Bank, 81 Conn. 372, 378 (1908). See also Parley v. Parley, 170 Conn. 455, 460 (1976).
The rights of creditors and subsequent purchasers are not involved here. It must then be found that the conveyance of the property by plaintiff to defendant Robert J. Gennotti was supported by a valuable consideration of natural affection and blood.
c. The Statute of Limitations
The second principal issue here is whether or not plaintiff's action is time-barred. All of the defendants have interposed a special defense claiming that plaintiff is not entitled to the relief sought because the claim is barred by the statute of limitations.
The last conveyance by plaintiff to defendant Robert J. Gennotti, the validity of which plaintiff is contesting, was executed on November 9, 1993. This action was commenced by service of process on the defendants on December 8, 2004, with the complaint being filed with the court on January 12, 2005, a period of about ten years having elapsed between the act complained of and the start of this action.
Defendants claim that plaintiff's action brought ten years after the act is time-barred because of the provisions of Connecticut General Statutes § 52-577, which provides:
No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
By way of reply to the special defenses claiming that this action is time barred, plaintiff stated:
The plaintiff denies the allegations of the first special defense.
(1) The plaintiff's causes of action were fraudulently concealed by the defendant; (2) the defendant engaged in a continuing course of conduct based upon his special relationship with the plaintiff to deprive the plaintiff of her property; (3) any delay in commencing this action is excusable on the basis of plaintiff's condition and/or the conduct of the defendants and/or the conduct of other family members.
In her brief, plaintiff has raised the claim that the statute of limitations is inapplicable here because she has brought an equitable cause of action. In fact, in an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute. Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations. Dunham v. Dunham, supra, 204 Conn. 326-27.
The facts in the Dunham case are quite different from those that exist in this case. In Dunham, the defendant, an attorney, purposely induced the plaintiff, his brother, to sign waiver forms and led him to believe that the property in question was a part of their mother's estate when, in fact, he had induced his mother to convey the property to him years before. The situation here is quite different. In this case, plaintiff knowingly and intentionally conveyed the property and then acknowledged the conveyance to others, including her neighbors and her brothers. Also, plaintiff first conveyed the property in favor of her younger son on December 24, 1991 reserving a life interest to herself. Almost two years later, she confirmed her donative intent by conveying the property outright to this son on November 9, 1993.
During the period after the execution of the conveyances, plaintiff had ample opportunity to bring an action to invalidate the conveyances if she so desired. She could have contacted Attorney Polito, or another attorney. She could also have requested the assistance of her brothers, Melvin and David, or her son, Frank, Jr., with whom she visited. Plaintiff did none of these things. The circumstances of this case preclude the equitable tolling of the statute of limitations. Gager v. Sanger, 95 Conn.App. 632 (2006).
A case directly in point is D'Agostino v. D'Addio, 6 Conn.App. 187 (1986), in which the plaintiff sought to set aside a conveyance on the grounds of undue influence. The defendants claim that the action was barred by the provisions of Connecticut General Statutes § 52-577 and moved for summary judgment which the trial court granted. In upholding the judgment of the trial court, the Appellate Court stated:
It is the nature of the right sued upon and not the form of action nor the relief demanded that determines the applicability of the statute of limitations. Here, the allegations of the complaint are based on undue influence. The undue influence which will avoid a deed is an unlawful or fraudulent influence which controls the will of the grantor. In order to have an effect, undue influence must amount to coercion or fraud. Where a complaint alleged a conspiracy to cheat or defraud the plaintiff, it sounds in tort. Accordingly the applicable statute of limitations is General Statutes § 52-577 which limits the bringing of such an action to three years. Rosenblatt v. Berman, 143 Conn. 31, 39, 119 A.2d 118 (1955). Id., 188.
It then must be concluded that the provisions of Connecticut General Statutes § 52-577 apply.
Plaintiff has abandoned her claim of fraudulent concealment, but does claim that because of her brain injuries and her dependence on Robert N. Jetmore, she was prevented from bringing this action within the time limited by statute. These claims have not been proven.
Considering the evidence and the applicable law, it must be found that the allegations of the special defenses claiming that this action is barred by the statute of limitations have been proven.
d. Counterclaims
Defendants Robert J. Gennotti and Lori A. Gennotti have alleged two counterclaims.
The first counterclaim is an action to settle title to the land. The Court has found that by virtue of the deed of December 12, 2006, except for parties in interest not in evidence, at the time of trial, title to the property at 72 Summer Street was in the name of defendants Robert J. Gennotti and Lori A. Gennotti. No title search or similar evidence was submitted in this case. There is, therefore, insufficient evidence for the Court to enter the judgment requested on this count.
The second counterclaim alleged by defendants Robert J. Gennotti and Lori A. Gennotti asserts a claim of breach of warranty by the plaintiff and seeks damages and attorneys fees. All of the deeds executed by plaintiff were quitclaim deeds. By virtue of these deeds, particularly the deed of November 9, 1993, plaintiff relinquished all of her interest in the property in question to these defendants.
The claims for damages here are based upon losses claimed to have been suffered as a result of the pendency of this action. It is claimed that defendants were unable to remortgage or sell their property while the action was pending. These claims are speculative and afford no basis for judgment.
These defendants also seek attorneys fees. No legal precedence for the ordering of attorneys fees here has been cited and the Court declines to award such fees.
IV. CONCLUSIONS
The issues are found for the defendants on the complaint and on the special defense of the statute of limitations. Accordingly, judgment is entered in favor of the defendants against the plaintiff. This decision is dispositive of the remaining special defenses alleged by defendants Robert J. Gennotti and Lori A. Gennotti.
Judgment enters accordingly.