Opinion
HHDCV136046755S
09-25-2018
Jared HELENE et al. v. Jason EISENBAUM
UNPUBLISHED OPINION
OPINION
PECK, JTR
In this lawsuit, the plaintiffs, Jared Helene and Hayley Helene, brother and sister, sue the defendant, their cousin, Jason Eisenbaum, seeking a constructive trust concerning numerous U.S. EE and HH Savings Bonds, allegedly purchased by their great aunt, Sara Gitson, for the benefit of all her great nieces and nephews. Specifically, the plaintiff’s assert that prior to her death, their great aunt Sara directed the defendant to share his interest in certain bonds with his sister, Ariel Grover, and the plaintiffs, which she had purchased in her own name and that of the defendant as joint owner. The complaint is set forth in three counts: establishment of a constructive trust (count one); equitable trust (count two); and, breach of fiduciary duty (count three).
A trial to the court was held on August 29, 2017, August 30, 2017, September 1, 2017. Final argument on the briefs was heard on March 12, 2018. At trial, the plaintiffs called as witnesses the defendant; Donna Eisenbaum, the defendant’s mother; Richard Case, Esq., the attorney for Wayne Eisenbaum, the executor of Sara’s estate; and the plaintiffs. The defendant called as a witness, Rosetta ("Rose") Monroe, the former secretary and bookkeeper for Development Realty, a family owned real estate development business.
I
FINDINGS OF FACT
Based on the testimony and full exhibits in the case, the court finds the following facts. Sara Gitson was the sister of Marion Eisenbaum who was the grandmother of the plaintiffs, the defendant and his sister. Sara was unmarried and did not have children. She died on September 7, 2011. Marion Eisenbaum died on February 28, 2012. Marion had three children, Wayne Eisenbaum, the executor of Sara’s estate; Alan Eisenbaum, the father of the defendant and his sister; and, Marla Helene, the mother of the plaintiffs. Wayne has no children. The defendant’s mother, Donna Eisenbaum, is divorced from his father. The defendant’s sister, Ariel, is married to Colin Grover. Of Sara’s great nieces and nephews, Ariel is the oldest, then follows the defendant, Jared and Hayley. Sara, Marion and the defendant all lived in Avon, Connecticut. The plaintiffs grew up in New York City, where they continue to reside.
Over her lifetime, Sara accumulated a number of savings bonds currently or formerly in the defendant’s possession whose value at the time of trial was $275,528.16, subject to additional interest. See Plaintiffs’ Exhibit 16. The centerpiece of the evidence at trial was a letter, dated January 17, 2007, addressed to the defendant expressing Sara’s intentions and wishes concerning the savings bonds, which was purportedly written and signed by Sara and "accepted" and signed by the defendant. The letter was the subject of no less than five separate exhibits marked as Plaintiffs’ Exhibit 1, 1a, 28 and 30 and Defendant’s Exhibit G. For much of the pretrial proceedings, the parties had only photocopies of Exhibits 1 (bearing the signatures of Sara and the defendant), and Exhibit 1a (bearing the signature of the defendant only), and the debate centered on the authenticity of Sara’s signature on the document and the document itself. Midway through the trial, on August 30, 2017, Attorney Case appeared to testify, pursuant to a subpoena, and produced his file concerning the probate of Sara’s estate. In the file, was Plaintiffs’ Exhibit 30, the original January 17, 2007 letter, which contains the signatures of both Sara and the defendant in what appears to be the same blue ink. The day of his testimony was the first time either counsel had seen the original letter. As noted, Plaintiffs’ Exhibits 1 and 28, and Defendant’s Exhibit G are exact duplicates of Plaintiffs’ Exhibit 30. Plaintiffs’ Exhibit 1a, however, is different. Although the text in the body of the letter is exactly the same as the other exhibits, the configuration of the lines is different and the word "the," has a distinct typeover which could only have been caused by a typewriter. In addition, only the defendant’s signature is contained on Plaintiffs’ Exhibit 1a and it is distinctly different in appearance than his signature on Plaintiffs’ Exhibits 1, 28, 30 and G.
Plaintiffs’ Exhibit 1 and 28 and Defendant’s Exhibit G are all copies of Plaintiffs’ Exhibit 30.
Plaintiffs’ Exhibit 28 came from a file of Donna Eisenbaum. It another copy of the original version of the January 17, 2007 letter but also has some handwritten notations of Donna Eisenbaum that are of no consequence.
The fully executed version of the letter is addressed to Jason Eisenbaum, 127 Montevideo Drive, Avon, CT 06001 and states as follows:
Dear Jason:
While the majority of my bonds have both my name and Jason Eisenbaum on them, I want Ariel, Jared, Hayley and you to share equally in the bonds. I wanted to personally sign all of my bonds over to all of you. Unfortunately, the number of bonds involved, and the time which it would require, would be much too difficult a task for me in my present health.
Jason, please abide by my wishes.
Very truly yours, Sara Gitson [signed]
Accepted
Jason Eisenbaum [signed]
The defendant was called by the plaintiffs as their first witness. He testified that both Plaintiffs’ Exhibits 1 and 1a bore his true signatures. His direct testimony was thereafter interrupted midway to accommodate the work schedule of his mother, Donna Eisenbaum, who was subpoenaed by the plaintiffs. Donna Eisenbaum testified that the defendant was wrong when he testified that Plaintiffs’ Exhibit 1 contained his genuine signature and that only Plaintiffs’ Exhibit 1a bore his true signature. When the defendant resumed his testimony the following day, after having testified both at trial and at his deposition that both Plaintiffs’ Exhibits 1 and 1a contained his true signatures, he changed his testimony and insisted that he only signed one letter at his mother’s behest, and Plaintiffs’ Exhibit 1a was a copy of that letter.
The defendant testified that he was age twenty-one when he signed the letter. He stated that there was no other signature on the letter when he signed it. He did not read the letter; nor did he ask his mother what it was for or keep a copy of it. No original of Plaintiffs’ Exhibit 1a was produced at trial. The defendant visited Sara one to two times per week between 2006 and her death in 2011. He never had a discussion with her about the bonds.
When Donna Eisenbaum was confronted with the fact that the defendant had previously identified his signatures as they appeared in both Plaintiffs’ Exhibits 1 and 1a as genuine, she stated that he "misunderstood." For several reasons, the court’s impression is that neither the defendant nor his mother’s testimony on the subject of the defendant’s signature is credible. First, the defendant’s signature on Plaintiffs’ Exhibits 1 and 1a are markedly different. Second, the defendant testified twice previously, at his deposition and initially at trial, that both signatures were genuine. Third, the defendant’s signature also appears on Defendant’s Exhibit A, a document filed with the probate court that also bears the signatures of Wayne Eisenbaum, Ariel Rosenbaum and Marion Eisenbaum. The defendant testified that his signature on Defendant’s Exhibit A, dated September 29, 2011, closely resembled his signature on Plaintiffs’ Exhibit 1a, as opposed to the signature on Plaintiffs’ Exhibit 1, which the court finds is clearly not the case. When confronted with Defendant’s Exhibit A and asked if the signature was his, inexplicably, the defendant responded by stating that he could not say if it was his signature because he did not recall signing that document. He also could not recall signing Plaintiffs’ Exhibit 1a but, nevertheless, as to that document, he was willing to validate the signature on it as his. Fourth, the defendant’s signature also appears on Plaintiffs’ Exhibit 33, a check dated September 29, 2012, payable to his sister, Ariel. When confronted with Plaintiffs’ Exhibit 33 and asked if that signature resembled his signature on Plaintiffs’ Exhibit 1a, the defendant replied, "Does it resemble it? Not exactly." Actually, the court’s distinct impression is that the defendant’s signature as it appears on the check to Ariel closely resembles the signature on Plaintiffs’ Exhibit 1 (and thus, Plaintiffs’ Exhibit 30), as well as the defendant’s signature on Defendant’s Exhibit A, much more so than it resembles the signature on Defendant’s Exhibit 1a.
The document in question was a "General Waiver" filed in the probate court relating to the admission of Sara’s will and codicils. Because Defendant’s Exhibit A was a form required by the probate court and also contained the signatures of other members of his family, it is curious that the defendant responded to the question about his signature in an obviously evasive fashion. It is exactly this type of response from the defendant that undermined his credibility with the court.
Donna Eisenbaum testified that she presented Sara’s letter (Plaintiffs’ Exhibit 1a), to the defendant and he signed it. She further stated that Sara’s signature was not on the document when the defendant signed it. Donna had the defendant sign the letter at Marion’s request and, after he signed it, she returned it to Marion. Donna never discussed the January 17, 2017 letter with Sara. From 2007 to Sara’s death in 2011, Donna handled Sara’s finances, had access to Sara’s safe deposit box and paid all her bills. When Donna gained access to Sara’s safety deposit box in 2006, she discovered the savings bonds that Sara had purchased over many years, some of which were in the name of both Sara and the defendant. Upon this discovery, she informed her mother-in-law, Marion Eisenbaum, and sister-in-law, Marla Helene, of her discovery. She also informed the defendant that his name appeared on many of the bonds. The plaintiffs did not learn of the bonds until after Sara’s death in 2011.
The court finds that Donna Eisenbaum’s testimony on the subject of Sara’s signature is not credible based on a comparison of Sara’s signature as it appears on Plaintiffs’ Exhibit 30 and the signatures of Sara that appear on her will and codicils filed in the probate court on May 11, 2012. See Plaintiffs’ Exhibit 4. Donna testified that she was most familiar with Sara’s signature as she handled Sara’s financial affairs over many years and that the signature of Sara on Plaintiffs’ Exhibit 1 did not appear to be genuine. Specifically, Donna testified: "[I]t doesn’t look anything like her signature on her checks or anything else she signed in my possession ." (Emphasis added.) This statement is difficult to accept as truthful for several reasons: Colin Grover, Donna’s son-in-law, whose deposition was taken on August 21, 2017, testified that in connection with an investigation of Sara’s estate performed for his wife, Ariel, that ultimately benefitted all four of the cousins, over a period of thirty days, he had occasion to closely examine Sara’s signature as it appeared on her will and codicils and found that the "G" in her last name was written in a unique way, and, that the signature on Plaintiffs’ Exhibit 1 "definitely is Sara’s signature ... because of the G." Plaintiffs’ Exhibit 37. He also testified that he had seen the defendant’s signature hundreds of times and that the signature on Plaintiff’s Exhibit 1 "looks like his." Id. The court agrees that a comparison of Sara’s signatures as they appear on Plaintiffs’ Exhibit 4 closely resemble her signature on Plaintiffs’ Exhibit 1 (thus, Plaintiffs’ Exhibit 30). In addition, it is difficult to accept Donna’s testimony that she never discussed the January 17, 2007 letter with Sara when she handled all Sara’s bond transactions and other financial matters. Finally, incredibly, Donna testified that the defendant’s signature on Defendant’s Exhibit A looks the same as his signature on Plaintiffs’ Exhibit 1a. As previously noted, upon examination, those signatures appear to be distinctly different from each other. When asked to compare the defendant’s signature as it appears on Defendant’s Exhibit A with Plaintiffs’ Exhibit 1, Donna stated definitively: "It is nothing like it," which statement the court finds to be lacking in credibility.
Donna testified before Attorney Case did and, therefore, Plaintiffs’ Exhibit 30, the original January 17, 2007 letter, was not yet in evidence at the time of her testimony.
Rose Monroe testified that she generated Plaintiffs’ Exhibit 1a on her computer at Development Realty at the request of Marion Eisenbaum. She did not recall what happened with the letter after she typed it. She handled personal matters and correspondence for Marion who came to work at Development Realty in August 1989 after her husband passed away. Rose did not type Plaintiffs’ Exhibit 30 as that version of the letter was clearly typewritten and Rose did not use a typewriter. Prior to Sara’s death, at Wayne Eisenbaum’s request, Rose listed all of Sara’s bonds on a spread sheet. She never saw a copy of the original signed letter, Plaintiffs’ Exhibit 30.
After Sara’s death, at the request of Wayne Eisenbaum, the executor of Sara’s estate, Donna Eisenbaum emptied Sara’s safe deposit box and delivered its contents to Attorney Case. Attorney Case did not know exactly how the original letter came into his possession other than all Sara’s documents were delivered to him by Donna. A reasonable inference may be drawn that Plaintiffs’ Exhibit 30 was included among the documents in Sara’s safe deposit box. There was no evidence to suggest that anyone other than Sara herself, Wayne or Donna, had access to Sara’s safe deposit box.
The last codicil to Sara’s will was dated October 30, 2006, less than three months before Plaintiffs’ Exhibit 30 is dated. There had been two previous codicils. In the last codicil, Sara left the residuary of her estate to the four great nieces and nephews equally. Ultimately, all the beneficiaries of Sara’s estate entered into a Mutual Distribution Agreement, which also provided for all four great nieces and nephews to share the residue of the estate. For this reason and because the court finds that both the defendant’s and his mother’s testimony on the subjects of the defendant’s and Sara’s signatures are not credible and Attorney Case produced the original January 17, 2007 letter (Plaintiffs’ Exhibit 30), from his probate file, the court finds by clear and convincing evidence that Plaintiffs’ Exhibit 30 is authentic in that the signatures of both Sara Gitson and the defendant on that document are genuine.
Sara’s original will was executed August 29, 1995. The will provided that the "rest, residue and remainder" of her estate was to go to Ariel and Jason. There were several codicils to Sara’s will. The first codicil, executed on November 6, 1997, provided that the "rest, residue and remainder" of her estate was to go to Jason alone. The next codicil, executed on August 8, 2002, provided that the "rest, residue and remainder" of her estate was to go to Donna. The next and final codicil was executed on October 30, 2006, and provided that the "rest, residue and remainder" of her estate was to go to Jason, Ariel, Jared and Hayley, equally.
Although Donna Eisenbaum testified that she believed that Marion wrote the letter, there was no evidence, beyond surmise and speculation that Plaintiffs’ Exhibit 30 was created by anyone other than Sara Gitson. In creating that document, the clear and convincing evidence as revealed by the text of the letter reflects Sara’s intent was to establish a trust, with the defendant as trustee, to benefit all four of her great nieces and nephews. The fact that Marion may have asked Rose Monroe to type Plaintiffs’ Exhibit 1a on the office computer is of no moment. The relevant document is Plaintiffs’ Exhibit 1, a true copy of Plaintiffs’ Exhibit 30, the original January 17, 2007 letter, which was created on a typewriter and whose exact origin is unknown.
The defendant testified that he cashed in bonds on two occasions, in 2012 and again in 2015. Although the plaintiffs requested that the defendant turn over some of the bonds prior to filing suit, he refused. Sara retained possession and control of the bonds until her death so they could be used for her care. Interest earned from the bonds were deposited into Sara’s checking account. In fact, several of the bonds were cashed to cover Sara’s living expenses. Based on these undisputed facts, the court finds that Sara had no intention to part with any proceeds of the bonds during her lifetime for any purpose other than to cover her own expenses. Following her death, the defendant took physical possession of the bonds. Because the bonds were in joint ownership, they were not included in the probate estate. Some of the bonds were in Donna’s name in addition to that of Sara. Donna has retained those bonds. Plaintiffs’ Exhibit 2 contains a list of bonds, prepared by Donna, that were in Sara and the defendant’s names. The remaining bonds were changed to the defendant’s name with Donna’s assistance in 2016 at a time after the defendant received a demand letter from the plaintiffs challenging his right to claim full ownership of the bond proceeds. See Plaintiffs’ Exhibit 32. In addition, the defendant and his cousin Jared had an exchange of text messages in 2013 during which the defendant imparted misleading or outright false information to Jared about the extent and status of the bonds including the fact that the defendant had cashed some bonds in 2012. See Plaintiffs’ Exhibit 31.
In sum, the court finds that the defendant has not been honest and forthright in his testimony before the court and has been untruthful in connection with his communications and dealings concerning the bonds with the plaintiffs and his own sister. For these reasons, the court finds by clear and convincing evidence that the defendant has acted with a dishonest purpose. As previously stated, the court also finds by clear and convincing evidence that by virtue of the Plaintiffs’ Exhibit 30, Sara entrusted the defendant with the task of distributing the proceeds of the bonds remaining at the time of her death equally between himself, the plaintiffs and his sister.
II
CONCLUSIONS OF LAW
A. Standard of Proof
"There is substantial authority which requires clear and convincing evidence of facts needed to establish any constructive trust." Starzec v. Kilda, 183 Conn. 41, 44 n.3, 438 A.2d 1157 (1981). "A court’s determination of whether to impose a constructive trust must stand unless it is clearly erroneous or involves an abuse of discretion ... This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court." (Internal quotation marks omitted.) Menard v. Gaskell, 92 Conn.App. 551, 555, 885 A.2d 1254 (2005); Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 114, 680 A.2d 1314 (1996). "[C]lear and convincing proof ... denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ... [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist ..." (Citation omitted; footnote omitted; internal quotation marks omitted.) Garrigus v. Viarengo, 112 Conn.App. 655, 662-63, 963 A.2d 1065 (2009).
The clear and convincing standard has also been used in our Appellate Court to overcome the presumption of ownership of joint U.S. savings bonds. See Garrigus v. Viarengo, 112 Conn.App. 655, 963 A.2d 1065 (2009).
B. Authentication
"In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence." (Internal quotation marks omitted.) State v. John L., 85 Conn.App. 291, 301, 856 A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695 (2004). "It is undisputed that where an issue is raised regarding authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an exemplar, the authenticity of which has been established ... The authenticity of the exemplar may be proven by circumstantial evidence ... In general, a writing may be authenticated by a number of methods, including direct testimony, circumstantial evidence or proof of custody." (Citations omitted; internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 720, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). "[I]n this state we allow the disputed signature to be compared with signatures admitted or proved to be genuine. The triers may compare and judge for themselves, and experts may, upon comparison, give their opinions. But the signature used as a standard of comparison must not only be genuine, but must be admitted or proved to be such before it can be used." Tyler v. Todd, 36 Conn. 218, 222 (1869). "Although the court may compare signatures to determine authorship," the court is not required to do so. (Emphasis in original.) Nash v. Stevens, 144 Conn.App. 1, 17, 71 A.3d 635, cert. denied 310 Conn. 915, 76 A.3d 628 (2013).
"[A]nyone familiar with the signature in question may testify to its authenticity." Webster Bank v. Flanagan, 51 Conn.App. 733, 738, 725 A.2d 975 (1999). "It is not necessary that an expert be hired for the purpose of testifying." Bank of America, National Assn. v. Nino, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6004691-S (December 31, 2015, Tierney, J.T.R.). "A writing may be authenticated by identifying the signature contained in the document ... A signature can be authenticated by a signatory to the document by acknowledgment. A signature can additionally be proved by a witness to the execution of the document or by a witness who is familiar with the signature in question and attests that it is genuine." (Citation omitted; emphasis added.) Id., 737. "Therefore, while an expert may offer her opinion as to the authenticity of a signature at issue, an expert is not required for the trier of fact to determine whether a signature is forged." Cariati Truck & Equipment, LLC v. Ye Old Station Auto Body, Inc., supra, Docket No. CV- 14-6048826-S. "[T]he trier of fact has the right to make a determination as to the authenticity of a signature." Bank of America, National Assn. v. Nino, supra, Docket No. CV-10-6004691-S. "Authorship of handwriting can ... be proved by a comparison of the disputed writing with a specimen of known authorship ... Comparisons may be made by the trier of fact, be it judge or jury, with or without the aid of expert testimony." (Internal quotation marks omitted.) Chernick v. Johnston, 100 Conn.App. 276, 281, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).
A signature of a decedent may be authenticated by testimony of those familiar with the decedent’s signature or by comparison with authenticated exemplars of the decedent’s signature. Exemplars may be authenticated by circumstantial evidence. The determination as to the challenged signature’s authenticity belongs to the trier of fact. In the present case, there were sufficient authenticated exemplars of the handwriting of both the defendant and Sara Gitson in evidence for the court, as the trier of fact, to determine the authenticity of their signatures, specifically, Plaintiffs’ Exhibit 30, Plaintiffs’ Exhibits 4 (Sara’s will and codicils) and 33 (a check from the defendant to Ariel), and Defendant’s Exhibit A (a self-authenticating probate form signed by the defendant). In addition, the court’s conclusions were also informed by other circumstantial evidence as noted in part I ("Findings of Fact") of this memorandum of decision.
C. Connecticut Code of Evidence § 8-3(1)
"In Connecticut, a statement of a party opponent may be admitted into evidence as an exception to the hearsay rule. This exception generally includes any words or acts of a party opponent ... It is essential that such evidence be offered by the party who is the opponent to the party declarant ... although the statetment of a party opponent need not be against the declarant’s interest either at the time the statement was made or at the time it is sought to be admitted into evidence." (Citations omitted; emphasis added). Gateway Co. v. DiNoia, 232 Conn. 223, 238, 654 A.2d 342 (1995). "Connecticut Code of Evidence § 8-3(1) provides a hearsay exception for [a] statement that is being offered against a party and is (A) the party’s own statement ... [or] (B) a statement that the party has adopted or approved ..." (Emphasis added; internal quotation marks omitted.) Peerless Ins. Co. v. Gateway, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5031515-S (December 17, 2010, Shapiro, J.). "The statements made out of court by a party-opponent are universally deemed admissible when offered against him ... so long as they are relevant and material to issues in the case ." (Emphasis in original; internal quotation marks omitted.) In re Jessica B., 50 Conn.App. 554, 570-72, 718 A.2d 997 (1998).
A signature on a document is an adoption of the information contained therein. See Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 486-87, 586 A.2d 1157 (1991). In Bell Food Services, Inc. v. Sherbacow, although the offering parties of the hearsay statement offered a statement not of their opponent, but of their former employee, the court recognized the declarant’s signature as either indicating the declarant had filled out the relevant form himself "or adopted the information contained therein" by signing the form. (Emphasis added.) Id., 486, 489 ("[the declarant] either filled out the tax error form or adopted its contents upon signing it" [emphasis added] ).
In Peerless Ins. Co. v. Gateway, Inc., supra, Docket No. CV-09-5031515-S, the court, Shapiro, J., found admissible a document signed by the defendant’s president as an admission of a party opponent despite the document, a claimed affidavit, failing to "contain the requisite formality of having been sworn to before an officer authorized to administer oaths." In that case, the document presented was signed by the defendant’s president and presented by the defendant as evidence in support of a motion to dismiss. The plaintiff, in their argument, relied upon the document submitted by the defendant. The court found that "the statement [was] not precluded as hearsay, and portions of it [could] be considered as a statement by a party opponent, since it was made in a representative capacity by [the defendant] and was adopted and approved by the [defendant]" because the defendant’s president had signed the document. Id.
Therefore, the court finds that it was within its discretion to allow into evidence a document signed by a party opponent (Plaintiffs’ Exhibit 1, thus Plaintiffs’ Exhibit 30), on the ground that the signing of the document by the defendant, acts as his adoption of the statements contained therein. Accordingly, once the defendant’s signature on Plaintiffs’ Exhibit 30 was deemed authentic by the court, it was admissible into evidence as an exception to the hearsay rule, pursuant to the Connecticut Code of Evidence § 8-3(1).
D. Breach of Fiduciary Duty
"The elements which must be proved to support a conclusion of breach of fiduciary duty are: [1] [t]hat a fiduciary relationship existed which gave rise to ... a duty of loyalty ... an obligation ... to act in the best interests of the plaintiff, and ... an obligation ... to act in good faith in any matter relating to the plaintiff; [2] [t]hat the defendant advanced his or her own interests to the detriment of the plaintiff; [3] [t]hat the plaintiff sustained damages; [and] [4] [t]hat the damages were proximately caused by the fiduciary’s breach of his or her fiduciary duty." (Internal quotation marks omitted.) Chioffi v. Martin, 181 Conn.App. 111, 138, 186 A.3d 15, 32 (2018).
"A prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266, 269 (2006). "[T]his court has recognized that some actors are per se fiduciaries by nature of the functions they perform. These include agents, partners, lawyers, directors, trustees, executors, receivers, bailees and guardians ... Beyond these per se categories, however, a flexible approach determines the existence of a fiduciary duty, which allows the law to adapt to evolving situations wherein recognizing a fiduciary duty might be appropriate." (Citation omitted; internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 800, 99 A.3d 1145, 1154 (2014).
"[P]roof of a fiduciary relationship imposes a twofold burden on the fiduciary. First, the burden of proof shifts to the fiduciary; and second, the standard of proof is clear and convincing evidence. 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 proof of fair preponderance of the evidence, but requires proof ... by clear and convincing evidence." Chioffi v. Martin, supra, 181 Conn.App. 137.
"One of the basic elements necessary for the creation of a trust is a manifestation of intention to create it. Effect must be given to that intent which finds expression in the language used. Fidelity Title & Trust Co. v. Clyde, 143 Conn. 247, 253, 121 A.2d 625; Conway v. Emeny, 139 Conn. 612, 618, 96 A.2d 221. In Peyton v. Wehrhane, 125 Conn. 420, 425, 6 A.2d 313, 315, citing Loomis Institute v. Healy, 98 Conn. 102, 114, 119 A. 31, we stated: ‘(W)hen property is given absolutely and without restriction, a trust is not lightly to be imposed, upon mere words of recommendation or confidence.’ " Marzahl v. Colonial Bank & Trust Co., 170 Conn. 62, 64, 364 A.2d 173, 174 (1976).
"When property has been acquired and maintained under circumstances that make it inequitable for the holder of the legal title to retain the entire beneficial interest, equity converts him into a trustee." Saradjian v. Saradjian, 25 Conn.App. 411, 595 A.2d 890 (1991); see also Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). "In deciding whether the property was wrongfully appropriated or retained and what the intent of the parties was at the time of the conveyance, the court in this case had to rely upon its impression of the credibility of the witnesses. Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn." (Internal quotation marks omitted.) Spatola v. Spatola, 4 Conn.App. 79, 82, 492 A.2d 518, 520 (1985).
In the present action, the plaintiffs argue that the letter signed by the defendant and Sara Gitson is evidence that it was Sara’s intent to create a trust in which the defendant, as trustee, held their jointly owned savings bonds in trust for his sister and cousins and himself as equal beneficiaries. Also supporting this intent is Sara’s will and last codicil, created on October 30, 2006, just three months before the trust letter of January 17, 2007. In that final codicil, she leaves the "rest, residue and remainder" of her estate to her four great nieces and nephews equally, after having previously left it to Ariel and the defendant, then the defendant alone, and then Donna Eisenbaum alone. The evidence presented by the defendant falls far short of rebutting the evidence presented by the plaintiffs as to Sara’s intent to have the defendant hold the bonds in trust for all four of her great nieces and nephews. The defendant’s lack of credible testimony on the issue of his promise to follow the wishes of his great aunt and fulfill the responsibilities he assumed to his sister and cousins, under all the circumstances, constitutes a breach of fiduciary duty.
The defendant argues that the trust letter is in violation of both the statute of wills and the statute of frauds. However, "the statute of frauds and the statute of wills seek to effectuate the policies of safeguarding titles and frustrating fraudulent claims. Those statutes, however, do not apply to constructive trusts, which are implied by operation of law." Starzec v. Kilda, 183 Conn. 41, 44 n.2, 438 A.2d 1157 (1981); see also Cohen v. Cohen, 182 Conn. 193, 202, 438 A.2d 55 (1980).
E. Constructive Trust
"Equity employs the constructive trust to remedy the unjust enrichment which results when a testator leaves property to a person in reliance on that person’s subsequently disregarded promise to convey the property to the testator’s intended beneficiary." Starzec v. Kilda, 183 Conn. 41, 44, 438 A.2d 1157 (1981). "Courts may use the equitable device of a constructive trust to remedy the unjust enrichment which results from not disposing of property as promised after the promise induced someone with whom the promissor shared a confidential relationship to transfer the property to the promissor." Id., 49. "[A] constructive trust would compel [the defendant] ... to convey the property, to the person to whom it justly belongs" where the defendant promised to leave the property to the decedent’s intended beneficiaries and failed to fulfill that promise. Id., 50.
"A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee ... The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment ... Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." (Citations omitted.) Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980).
"A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy ... A constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form ... [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ... The issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched." (Citations omitted; internal quotation marks omitted.) Garrigus v. Viarengo, 112 Conn.App. 655, 672, 963 A.2d 1065, 1075 (2009).
"[U]nder Connecticut law, a fiduciary or confidential relationship is broadly defined as a relationship that is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ... The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Citations omitted; internal quotation marks omitted.) Ahern v. Kappalumakkel, supra, 97 Conn.App. 194. "Courts consider two distinct relationships ‘confidential’ in the context of constructive trusts. In the first, one party is under the domination of another. In the second, circumstances justify a party’s belief that his or her welfare or instructions will guide the other’s actions." Starzec v. Kilda, 183 Conn. 41, 44 n.1, 438 A.2d 1157 (1981).
In the present action, circumstances justified Sara’s belief that the defendant would follow her instructions as set forth in Plaintiffs’ Exhibit 30 and as acknowledged by his acceptance of them. The defendant testified that he was close to his great aunt Sara and visited her frequently, more frequently than the plaintiffs who lived further away. Sara’s letter to the defendant was more than a request to the defendant, it was a plea to him, for which she required his written acceptance to share her bonds equally with Ariel, Jared and Hayley, to "please abide by my wishes" because it was much too difficult a task for her in her present health to manage the time and paperwork required to sign the bonds over to the four great nieces and nephews herself. The defendant’s acceptance of this responsibility by his signature evidences the trust she placed in him to fulfill her wishes and his agreement to do so. Thus, the letter of January 17, 2007, is evidence of the creation of a trust by Sara with the full expectation that the defendant would carry out her request by sharing the remaining savings bonds equally with his sister and cousins. This was not an arm’s length agreement between them created by their mutual signatures. It was a commitment of trust that the defendant has failed to honor. Thus, the court finds that the plaintiffs have demonstrated by clear and convincing evidence that a relationship of trust and confidence existed between Sara and the defendant, which relationship has been abused by the defendant, and will result in his unjust enrichment. See Giulietti v. Giulietti, 65 Conn.App. 813, 860, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001).
In, Garrigus v. Viarengo, supra, 112 Conn.App. 662, the plaintiff sought to impose a constructive trust over assets in a joint bank account with a right of survivorship. The Connecticut Appellate Court applied the clear and convincing standard in accordance with Connecticut General Statutes § 36a-290, which expressly requires proof by clear and convincing evidence to displace the survivor of a joint account as the owner. In the present case, because the plaintiffs have demonstrated by clear and convincing evidence that the defendant promised Sara that he would divide the remaining proceeds of the bonds equally with his sister and cousins, the court finds that they have rebutted the presumption of joint bond ownership and that the defendant would be unjustly enriched if he were allowed to keep the entirety of the bonds. Under these circumstances, the application of a constructive trust to the bonds is an appropriate equitable remedy.
CONCLUSION
For all the foregoing reasons, based on the clear and convincing evidence presented, the court finds the issues raised in the complaint in favor of the plaintiffs and further that the plaintiffs are entitled to the equitable relief sought in their prayer for relief. Accordingly, judgment is hereby ordered in favor of the plaintiffs. The court further orders a hearing to be held concerning the specifics of the elements claimed by the plaintiffs in their prayer for relief. At the hearing, the court will address whether a full accounting of the bonds has now been made as evidenced by Plaintiffs’ Exhibit 16, what the value of the bonds is calculated to the present time, including interest and whether the plaintiffs are entitled to any of the further relief they claim, including but not limited to, monetary damages and attorneys fees. Following the hearing, a supplemental judgment may be ordered as necessary. The parties are hereby ordered to contact the Caseflow Office within ten (10) days of the electronic order issued in this case to schedule a status conference to address these and any other open issues.
The court notes that the original judgment was ordered by way of electronic order on September 24, 2018. This memorandum of decision follows as referenced in that order.