Opinion
No. CV04 4000119-S
January 6, 2006
MEMORANDUM OF DECISION
Background
The plaintiff seeks the repayment of money by the defendant in a six-count, "corrected second amended complaint," dated July 7, 2005. The trial in this matter began on June 28, 2005 and, after several continuances, concluded on September 8, 2005. During the trial, the defendant sought rulings from the court on two of three special defenses; namely, that certain of the plaintiff's claims were barred by the statute of limitations and the statute of frauds. The court did not rule on these special defenses as a preliminary matter, and permitted additional briefing by the parties on these issues. These special defenses are addressed, infra.
The original complaint, dated June 4, 2004, was served on the defendant on July 6, 2004 and filed with the court on July 12, with a return date of July 20, 2004. The plaintiff sought leave to amend the complaint, dated June 23, 2005, at trial, to conform to testimony elicited from witnesses at a pre-judgment remedy hearing held before the court on August 31, 2004. The motion to amend was granted by the trial court or June 28, 2005. The amendment added a claim that the defendant owed $1,100 of rent he improperly collected from tenants living in residential property owned by the plaintiff. This figure of $1,100 was in addition to a previous claim of $2,200 in rent or security deposits improperly collected from the same tenants. Although the defendant originally objected to the amendment, this objection was subsequently withdrawn. However, the plaintiff was unable to produce the tenant at trial, and the parties stipulated to the fact that the defendant received $2,200 from the tenant. No stipulation was reached with respect to the plaintiff's additional claim for $1,100. The court also granted the plaintiff's motion to file a corrected second amended complaint, dated July 7, 2005, which added a prayer for relief.
A pre-judgment remedy (PJR) hearing had previously been held before the court on August 31, 2004, at which the court ruled in favor of the plaintiff that sufficient evidence was presented to issue an order of attachment in the amount of $15,500. The PJR hearing involved several issues not presented in this action, primarily involving a claim of money owed by the plaintiff to the defendant.
At trial, the defendant also filed a motion in limine to bar the introduction of documentary evidence of the endorsements on the backs of certain bank checks not previously produced at the PJR hearing. The defendant's motion was denied. The plaintiff's attorney produced an original facsimile (FAX) of documents sent to the defendant's attorney. Although the defendant's attorney claimed that he did not receive the FAX, it was sent by the plaintiff's attorney himself, and the document itself was consistent with testimonial evidence produced at the PJR hearing. Therefore, the defendant's motion in limine was denied by the court in that it did not result in any prejudice or surprise to the defendant.
II. Facts
Lucille Markley was 97 years old at the time of this trial. Through various closely held business organizations involving members of her family, and most particularly her daughter, Myrna Long, Markley was involved for many years in the leasing of numerous residential properties located in the City of Meriden. Between the years of 1999 and 2000, the Markley family began the process of divesting their businesses of these residential dwelling units by transferring many of them to the defendant's business organizations. The defendant, Mr. Walter Lewis, is a carpenter by trade and hoped to restore these properties to more marketable conditions, as many of them were in various states of disrepair.
By February of 2000, Lewis had taken title to approximately ten Markley family properties. Lewis' investment in these properties was in the form of "sweat-equity," as well as tangible improvements to the properties, which he estimated to be in the hundreds of thousands of dollars. Lewis paid no cash to purchase the properties; instead, he granted mortgages back to businesses owned by Markley family members in lieu of cash at the closings. Although he was an experienced builder, Lewis was not an experienced landlord and by the summer of 2000 he was unable to achieve his anticipated goal of turning his investment in these properties into a profitable business. In fact, he found himself in the position of being unable to pay the city taxes on these newly purchased properties.
A. 76 Lincoln Street
The plaintiff's allegations of money owed by the defendant primarily involve transactions related to one of the Markley family's former properties, located at 76 Lincoln Street in Meriden. During the late spring of 2000, Long approached Lewis to see if he would be interested in purchasing an additional rental property located at 76 Lincoln Street in Meriden. Although this property had previously been the Markley family abode some years ago, it was transformed into a multifamily rental unit and was owned by a Mr. Robert Boisvert, Sr., a personal friend of Ms. Long. Although Boisvert resided in one of the rental units at 76 Lincoln Street, portions of the building were in substantial disrepair and Boisvert was no longer interested in being the record owner of the property.
Boisvert originally purchased 76 Lincoln Street from L.Y.M. Properties, Inc. (LYM). According to the deed, the purchase price was $65,000.00. LYM is a domestic stock corporation, originally organized under Connecticut law in 1964. The President of LYM is Lucille Y. Markley. The Vice President of LYM is her daughter, Myrna Lou Markley, now Myrna Long. When Boisvert purchased the property, it was subject to a mortgage to LYM in the amount of $32,500, as well as a substantial tax, water and sewer debt to the City of Meriden, which at that time was nearing $30,000, and which he agreed to pay in full by October 2001.
Although it is implied by these facts that this was a distressed sale of real estate to Boisvert, there was insufficient evidence presented at trial for the court to reach this conclusion. However, by January of 2000, it appears that the condition of the property was distressed, as was the sale to Lewis.
Apparently, Boisvert was unable or unwilling to pay these taxes. In addition, during the course of 1999 and 2000, an "abatement" proceeding was initiated by the City of Meriden against Boisvert due the condition of 76 Lincoln Street. The matter was ultimately referred for a criminal prosecution in January of 2000.
Apart from Long's personal relationship with Mr. Boisvert and her family history with the property, both Markley and Long had a business interest in protecting the LYM mortgage held on 76 Lincoln Street. Markley and Long therefore had an interest in ensuring its economic viability as a rental property, and Lewis had filled a similar role of restoring troubled properties with the recent purchases of other Markley family real estate. After viewing this additional property, Lewis agreed to take title to 76 Lincoln Street, and did so by a quitclaim deed, dated June 15, 2000, from Boisvert to 76 Lincoln Street Associates, LLC (LSA), a business entity associated with Lewis.
The deed was originally drawn from Boisvert to LYM. The grantee in the original text of the deed was changed, in handwritten language, to LSA. (See Exhibit 7.) Presumably, it was Boisvert's intention to return title to the Markley family; however, they were not interested in taking title and therefore Long sought out Lewis for this reason. Evidence was also presented that Boisvert was the subject of a criminal prosecution for failure to comply with an abatement order, and that it was his plan to quitclaim the property back to the original owners. (See Exhibit L.)
At trial, Lewis testified that his understanding of the business deal on 76 Lincoln Street was that LSA would pay the taxes owed on the property which, at that time, totaled in excess of $45,000. He also claimed that he agreed to take title to the property subject only to the taxes owed, and not the LYM mortgage, despite the fact that he took title by a quitclaim deed.
Markley claims that a number of transactions between the parties occurred at or about the time of the closing. The specific purpose and meaning of these transactions is the primary subject of the dispute between the parties.
Prior to the execution of the quitclaim deed from Boisvert to LSA for 76 Lincoln Street, Markley claims that she made a loan in the amount of $10,000.00 to Lewis for the purpose of paying taxes on that property. This loan took the form of a June 1, 2000 Webster Bank cashier's check in the amount of $10,000.00, drawn to the order of Markley, which she endorsed. Markley's copy of the check is marked "Loan to Walter Lewis." (Exhibit 2.) Markley also presented evidence of a check receipt stub, allegedly in Lewis' handwriting, indicating the following: "Date 06/02/2000, To Walt Lewis, For Terms of loan by 15th June, Amt. of Acc't 10,000.00, Bal. Due 10,000.00." (Exhibit 1.) However, this money was not used to pay taxes on 76 Lincoln Street and was not repaid by Lewis on June 15th which was, coincidentally, the date of the execution of the quitclaim deed. (Exhibit 7.)
The original copy of the bank check presented as evidence at the PJR hearing showed the notation "Loan to Walter Lewis." (See Exhibit 2.) The photocopy of the original, executed check did not contain this notation. (See Exhibit 12.)
Approximately three weeks later, Lewis received another Webster Bank cashier's check from Markley, dated July 6, 2000 in the amount of $35,000.00, which he endorsed. (See Exhibits 3 and 12.) Both Markley and Long claim that this money was an additional loan to Lewis to pay taxes on 76 Lincoln Street. They claim that Markley loaned the money to Lewis because there was a tax foreclosure action pending on the property and that LYM still held a mortgage on the property from Boisvert in the amount of $32,585.76. However, the $35,000.00 check was not used to pay the taxes owed on 76 Lincoln Street, and no documentation was offered at trial to show the intended purpose of this transaction. Lewis claims that this money was for the purpose of paying taxes on and making improvements to the numerous properties that he had purchased previously from Markley family members, and especially from Long, which were also the subject of pending tax foreclosures. Lewis claims that these transactions were intended to ensure the continued viability of these other rental properties, on which Markley and Long also held mortgages.
Markley's Lincoln Street mortgage included a covenant for Boisvert to pay the numerous and substantial tax liens on the property by October 1, 2001. (Exhibit 8.)
In support of this claim, Lewis presented evidence that he used this money to pay taxes and for expenses associated with other properties. In particular, he offered evidence of a $20,324 payment made to the City of Meriden, dated July 17, 2000. (See Exhibit 19.)
Several weeks later, on July 20, 2000, Markley released the LYM mortgage of $32,500 held on 76 Lincoln Street, now owned by LSA. (Exhibit 9.) Whether this was knowingly done is disputed by the parties. Lewis testified that he never would have purchased the property subject to the mortgage because of its poor condition and because taxes were owed on the property in excess of $45,000.00. Markley testified that she would never have given away something so valuable without consideration. Markley's attorney, Dennis Lanzoni, testified that Markley signed the release knowingly and voluntarily.
Approximately one week later, on July 28, 2000, Attorney Lanzoni made arrangements to pay all of the taxes owed on 76 Lincoln Street from his clients' fund account in the amount of $46,869.57. (See Exhibits 4, 17, G, H O.) This tax payment was made to the City of Meriden as a part of a mortgage closing between the Dennis Lanzoni Retirement Plan and Trust, and LSA. (Exhibit D.) The total amount of the mortgage granted by LSA, and signed by Lewis qua Manager, was $52,500.00. Several days later, Markley's release of the Boisvert mortgage was recorded, along with the LSA mortgage to Lanzoni. With the taxes paid and the release of the LYM mortgage recorded, the Lanzoni Trust mortgage was, presumably, well secured by the value of 76 Lincoln Street.
Several years earlier, the property was sold by LYM to Boisvert for $65,000.00. Assuming an equivalent value several years later, without improvements, the debt to value ratio would be approximately 80%. The court notes, however, that the plaintiff disputes the value of the property, and believes that it should be viewed in light of its current assessment value of $135,600. It would appear, however, that this city assessment in 2005 may reflect improvements made to the property by Lewis.
B. 86 Lindsley Street
On July 25, 2001, Markley wrote another check to Lewis, in the amount of $6,300. Markley claims that this check was for the purpose of paying taxes on another property; namely, 86 Lindsey Avenue in Meriden and that these funds were not used for this intended purpose. At trial, the parties stipulated to these facts. This property was similarly the subject of a Meriden tax foreclosure action, by way of a complaint dated June 28, 2001. Lewis claims that he kept this money for debts owed to him by Markley and Long. He claims to have done this because soon after he received the $6,300 check from Markley, Long initiated a foreclosure action on ten mortgages associated with this and other rental properties previously transferred to Lewis.
This property was owned by Rhodora Investments, LLC. The members of this LLC were Long and Sally Marlowe. In a settlement agreement between Walter Lewis and his related business organizations, Rhodora Investments, et al. executed a limited release for all claims related to their business dealings, including loans, concerning this and other properties; however, Lucille Markley was not a party to this release. See Exhibit I.
C. 564 Wadsworth Street
The Markley Marital Trust owned a rental property known as 564 Wadsworth Street in Middletown. Lewis claims that he orally agreed to a "lease to own" arrangement for the property and began renovations to the dwelling unit for the purpose of' making it a residence for his sister. Long inspected the property on one occasion and found the property occupied by a former tenant, Eleanor Fedler, who had paid rent and a security deposit to Lewis. At trial, the parties stipulated to Lewis' receipt of $2,200 from Fedler. Lewis testified that he kept the money for debts he claims were owed to him by Markley and Long for improvements to the property. The parties dispute the need for improvements to the property and the extent to which they were performed. Lewis cites a bill for $657.58 he was presented with by Giacco Oil for "home heating" and service attributable to the Wadsworth Street property. (See Exhibit K.) However, no bills were presented to Long for the work Lewis claims to have performed at the property or for other expenses.
D. Other Disputed Facts
Other facts were made a part of the record in this trial, many of which are disputed by the parties as to their meaning and relationship to the claims made in this case. The defendant presented evidence of an invoice to do roof repair work for Markley, dated June 1, 2000, requiring a deposit of $20,000. During the trial, there was testimony concerning two checks from an account in the names of Markley, Long and Sally Marlow. Each check was payable to Lewis in the amount of $5,000.00. However, this was not a claim that the plaintiff pursued as a part of her case. In addition, Lewis testified at trial that he paid $10,000.00 in cash to the plaintiff, but offered no documentary evidence to support this fact.
The court finds that there is insufficient evidence to show that these facts are relevant to the particular claims made in this case.
III. DISCUSSION A. Special Defenses
Lewis raised three special defenses to defeat claims made in Markley's complaint. His first special defense is based on the statue of frauds. His second special defense is based upon the applicability of a three-year statute of limitations. In addition, Lewis raised a third special defense of payment of any debts claimed by the plaintiff.
First, the court will address the statute of frauds special defense. Lewis argues that counts one and two are barred by the statute of frauds, General Statutes § 52-550(a)(5), because the alleged contract was not reduced to writing and full performance by the parties was not expected until more than one year after the loan originated. Lewis asserts that the statute of frauds bars the court from enforcing the alleged loan agreements because they provided for repayment beyond the first year following the dates of their origination.
General Statutes section 52-550(a) provides, in relevant part, as follows: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (5) upon any agreement that is not to be performed within one year from the making thereof . . ."
Markley counters that the expectations of the parties, with regard to the timing of full performance, is irrelevant to this provision of the statute of frauds. Markley argues that because Lewis was free to render full performance through repayment within the first year following the formation of the contract, enforcement of the contract is unaffected by the statute of frauds.
Under the statute of frauds, "[n]o civil action shall be maintained . . . upon any agreement that is not to be performed within one year from the making thereof, unless such agreement, or some memorandum thereof, be made in writing, and signed by the party to be charged therewith, or his agent. It is the law of this state, as it is elsewhere, that a contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year." (Internal quotation marks omitted.) Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492, 78 A.2d 698 (1951).
"Our case law makes no distinction, with respect to exclusion from the statute of frauds, between contracts of uncertain or indefinite duration and contracts that contain no express terms defining the time for performance . . . [T]he statute [of frauds] will not apply where the alleged agreement contain[s] [no] provision which directly or indirectly regulated the time for performance," (Citation omitted; internal quotation marks omitted.) C.R. Klewin, Inc., v. Flagship Properties, Inc., 220 Conn. 569, 579-80, 600 A.2d 772 (1991).
In this case, Markley has alleged that she loaned Lewis money and that repayment has not occurred. Under the alleged agreement, repayment could have occurred, and with respect to at least part of the loan arguably should have occurred, within one year following origination of the loan. Because Lewis was permitted to render full performance of the agreement within the first year, the contract is not barred by the statute of frauds. Therefore, the court finds that the statute of frauds special defense is legally insufficient to bar plaintiff's claims. Accordingly, the agreement will not be held unenforceable simply because it was not reduced to writing.
The alleged loan of $10,000.00, made on June 1, 2000, was to be repaid two weeks later on June 15.
Lewis asserts in his second special defense that a three-year statute of limitations, as set forth in General Statutes § 52-581, bars Markley's claims. Lewis's argument is based on a reading of § 52-581 that requires any action for the breach of an oral contract to commence within three years of the accrual of that claim. Markley counters that because written checks were signed as part of the transaction giving rise to the disputed contract, the statute of limitations applicable to her cause of action is six years, as codified in General Statutes § 52-576. Accordingly, Markley asserts that her claim is not barred by the statute of limitations because she initiated suit less than six years after the underlying cause of action accrued.
General Statutes section 52-581 provides, in relevant part, as follows: "(a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues."
General Statutes section 52-576 provides, in relevant part, as follows: "(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section."
In John H. Kolb Sons, Inc. v. G L Excavating, Inc., 76 Conn.App. 599, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617, (2003), the court discussed and applied the distinction between General Statutes §§ 52-576 and 52-581. "These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts . . . A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations . . . It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies. Thus, the . . . argument that § 52-581 automatically applies to the oral contract between the parties is incorrect. The determinative question is whether the contract was executed." (Citations omitted; emphasis in original; internal quotation marks omitted.) John H. Kolb Sons, Inc. v. G L Excavating, Inc., 76 Conn.App. 610.
In Kolb Sons, "the plaintiff had performed all of its contractual obligations fully by obtaining the insurance on behalf of the defendant. All that remained was for the defendant to provide payment for the plaintiff's services. As a result, the contract was not executory in nature, and the six year statute of limitations in § 52-576 applied." Id. In this case, Markley fully performed her contractual obligations when she executed the alleged loans; all that remains to be performed under the contracts, as alleged, is for Lewis to pay back the loans. Therefore, as in Kolb Sons, this case involves executed contracts rather than executory ones. Markley's breach of contract action in this case is, consequently, governed by the six-year statute of limitations of § 52-576 and not the three-year statute of limitations of § 52-581. Accordingly, the court finds that Lewis's second special defense based on the statute of limitations is legally insufficient to bar Markley's recovery.
In his third special defense, Lewis claims payment of all sums owed to Markley. Although not fully articulated by Lewis in this special defense, he denies most of the loans claimed in this case and he therefore denies any debt related to those alleged loans. Therefore, since this special defense depends upon disputed factual assertions, the court will address this issue in the context of the fundamental legal and factual claims made in this case.
B. Contracts
Markley claims to have entered into oral contracts for the repayment of certain loans she made to Lewis. Lewis acknowledges the receipt of all these funds, but disputes the fact that they were loans. "We begin with the fundamental principles that guide our inquiry. Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 51, 873 A.2d 929 (2005). "[T]he basic principle of contract law [is] that in order to form a binding contract there must be an offer and acceptance based on a mutual understanding by the parties." (Internal quotation marks omitted.) Lembo v. Schlesinger, 15 Conn.App. 150, 154, 543 A.2d 780 (1988). "The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete." (Internal quotation marks omitted.) J B Weston Auto Park Associates v. Hartford Redevelopment Agency, 24 Conn.App. 36, 41, 582 A.2d 112 (1991). "A court may, however, enforce an agreement if the missing terms can be ascertained, either from the express terms or by fair implication. Presidential Capital Corp. v. Reale, 231 Conn. 500, 507-08, 652 A.2d 489(1994). Thus, an agreement, previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance." (Internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 627-28, 760 A.2d 969 (2000).
The court will first dispose of Markley's claim for the repayment of the $6,300.00 check. Although Lewis acknowledges that he received the $6,300.00 check from Markley for payment of municipal taxes on property located at 86 Lindsley Street in Meriden, he chose to keep these funds as payment for unspecified debts and because Long initiated foreclosures on several of his properties. In light of the court's ruling on the special defenses, above, and the fact that there is no counterclaim for the alleged debts owed by Markley to Lewis, the court finds that Lewis breached his agreement with Markley to pay taxes owed on 86 Lindsley Street with this money and awards the plaintiff damages in the amount of $6,300.00 on this issue.
In addition, Markley claims to have entered into oral agreements for two loans to Lewis, totaling $45,000.00, for the purpose of paying taxes on property located at 76 Lincoln Street. The court must first determine whether contracts exist between the parties.
Lewis denies acceptance of the terms and conditions of the contract for either of these two loans, as alleged by Markley. In fact, he claims that the money Markley gave him was not a loan but, instead, an infusion of cash to sustain their sinking real estate venture. He argues that this infusion of cash was in their mutual interest because it would further his objective of maintaining the economic viability of his rental properties and her objective of protecting her mortgages on these properties from impending foreclosure. Markley denies that this was their agreement.
Although Lewis' view of these transactions made business sense to him, it made less business sense for Markley, particularly if Markley was expected to release her $32,500.00 mortgage on the Lincoln Street property and, in addition, give Lewis $45,000.00 in cash. In general, Markley had secured mortgage interests in each of these properties, while Lewis appears to have had no security interest whatsoever in these properties. Therefore, in a foreclosure action, his financial interest was in greater jeopardy than Markley's. Focusing on the Lincoln Street property alone, apart from the larger business transactions involving other mortgaged properties, it would make no business sense at all for Markley to give Lewis $45,000.00 to pay taxes on property she did not own and on which she planned to release her mortgage interest in the near future.
On the other hand, it was logical for Markley to assume that she was loaning this money to Lewis to pay taxes on the Lincoln Street property, since the transfer of these funds occurred at or about the time of the execution of the quitclaim deed on the property and, in addition, that the taxes owed on the property approximated the $45,000.00 loan she claims to have made to Lewis.
At the time of the two loan transactions in question, Lewis' business venture was in serious trouble and he was unable to obtain sufficient capitalization from traditional lending institutions. Lewis was, however, successful in obtaining capital from Markley by suggesting that taxes needed to be paid to prevent foreclosure. The court heard credible evidence that Markley believed that the requested funds were loans to be used to pay taxes on 76 Lincoln Street. Instead, Lewis used this substantial sum of money, generally, to pay taxes and further renovate and improve a number of properties transferred to him by the Markley family. He then used a nearly equivalent sum loaned from the Lanzoni Trust, specifically, to pay taxes owed on 76 Lincoln Street.
Turning specifically to the $10,000.00 transfer to Lewis, the court heard sufficient evidence to conclude that these funds were intended by the parties as a loan. Markley's testimony, combined with the documentary evidence of the intent of the parties on the check stub in Lewis' handwriting, supports this conclusion by a preponderance of the evidence. Accordingly, the court awards $10,000.00 to Markley on this claim.
The testimony and evidence presented at the trial is less conclusive with respect to the $35,000.00 transfer of funds. The $35,000.00 check was made out to Lewis without any documentary evidence of its purpose; however, the court heard extensive testimony from both parties concerning their differing versions of the purposes of the check. Although it is difficult to believe that Markley failed to properly memorialize the transaction as a loan, as she had done by taking mortgages in so many other real estate transactions, Lewis' view of the deal is too good to be realistic under the circumstances. It would appear, nonetheless, that there was no meeting of the minds between the parties concerning the purposes and objectives of this transaction. Therefore, there is no contractual remedy available to either party for this transfer of funds.
C. Unjust Enrichment
Markley claims that Lewis has been unjustly enriched by the $35,000.00 she transferred to him in a check dated July 6, 2000. In addition, she claims that Lewis has been unjustly enriched by retaining $2,200.00 for rent and a security deposit paid on the dwelling unit she owned at 564 Wadsworth Street in Middletown.
"Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract . . . Recovery is proper if the defendant was benefitted, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff." (Citation omitted.) Russell v. Russell, 91 Conn.App. 619, 637-38, 882 A.2d 98, cert. denied, 276 Conn. 924 A.2d., cert, denied, 276 Conn. 925 A.2d (2005). See 26 S. Williston, Contracts (4th Ed. 2003) § 68:5, p. 58. "A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another." (Internal quotation marks omitted.) Cagne v. Vaccaro, 255 Conn. 390, 408, 766 A.2d 41 (2001).
With respect to the $35,000.00 transfer, it is clear that Lewis was benefitted by this money and that he did not pay for this benefit. The question here is whether Lewis' failure to pay for this benefit operated to the detriment of Markley. Lewis strenuously argues that Markley was generally benefitted by this transfer because her mortgages were further secured by the infusion of capital into properties subject to foreclosure. Although this may be partially true, the court finds that it would be inequitable to allow Lewis to retain this benefit for which he has not paid.
In reaching this conclusion, the court is particularly struck by several facts. Markley believed that she loaned Lewis a total of $45,000.00 for back taxes on 76 Lincoln Street. Markley then released LYM's $32,500.00 mortgage on that very same property, which was immediately substituted with a mortgage from LSA (Lewis) to the Lanzoni Trust (her attorney) in the amount of $52,500.00. Although her attorney claims that she released the mortgage knowingly and voluntarily, she claims that she never would have released the mortgage without consideration. Only Mr. Lewis believes that it is logical for Markley to have given him both the $45,000.00, as well as the release of the $32,500 mortgage after a closing on the property at which Lewis took a quitclaim deed. In addition, the rationale Lewis would have the court believe is that Markley would give him $45,000.00 in cash when, after all, it was he who purchased real estate from the Markley family in "no cash" deals. Under the circumstances of this case, the court finds it contrary to equity and good conscience for Lewis to retain the benefit of the $35,000.00 transfer.made to him at the expense of Markley. Accordingly, the court awards Markley $35,000.00 for this claim.
With respect to the $2,200.00 payment for rent and security on 564 Wadsworth Street, Lewis had no legal right to lease or sublease this property to the Fedler family. Lewis testified that he kept the money for debts he claims were owed to him by Markley and Long for improvements to the property. Notwithstanding these claims, Lewis cites only one bill for $657.58 that he was presented with by Giacco Oil for "home heating" and service attributable to the Wadsworth Street property. The court finds that it would be inequitable for Lewis to keep this $2,200.00, except to the extent that he has shown that this should be set-off by his expenses, which in this case he has shown by the Giacco Oil bill. Accordingly, the court awards Markley $1,542.42 for this claim.
IV. CONCLUSION
The court finds for the plaintiff. Judgment shall enter in the amount of $52,842.42 for the reasons set forth in the body of this decision.