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Mitchell v. Silverstein

Connecticut Superior Court Judicial District of Tolland at Rockville
Apr 13, 2005
2005 Ct. Sup. 6346 (Conn. Super. Ct. 2005)

Opinion

No. CV 97 63909 S

April 13, 2005


MEMORANDUM OF DECISION RE SUPPLEMENTAL JUDGMENT AND DISTRIBUTION OF FUNDS


This is an action instituted in 1997 claiming a partition of real properties in Bolton and Columbia owned by the Plaintiff and Defendants as tenants in common. The Defendants, Morris Silverstein and Samuel Silverstein, also filed a counterclaim seeking certain moneys they claimed were due them. On April 4, 2000 the court entered judgment ordering partition by sale and appointed Attorney Atherton Ryan as committee to accomplish the sale. All offers by prospective purchasers were ordered to be submitted to the court for approval prior to the entering into any agreement or contract for sale. On August 24, 2000 the court approved the offer of Michael Taylor to purchase the properties and granted the sale of the properties to Taylor, with the condition that Taylor personally guarantee the purchase. The purchase price was $505,000 for the Bolton property, $30,000 for the Columbia Mono Lot and $4,000 for 8+ acres in Columbia. On September 8, 2000 the Defendant Morris Silverstein filed an appeal from that judgment. On November 20, 2001, the Appellate Court affirmed the judgment of the trial court ( Mitchell v. Silverstein, 67 Conn.App. 58 (2001)). The Defendant's Motion for Reconsideration was denied by the Appellate Court, en banc, on January 10, 2002. The Defendant's petition for certification to appeal the Appellate Court's decision to the Supreme Court was denied on March 6, 2002 ( Mitchell v. Silverstein, 259 Conn. 931 (2002)). On May 2, 2002 the Committee moved for approval of the deeds and authorization to pay certain property and conveyance taxes from the proceeds of the closing. By motion dated May 6, 2002 the Defendant moved for disapproval of the deeds stating that "[s]ome items and figures are, in parts, incorrect, inaccurate, and misleading, while others have not been included." By motion also dated May 6, 2002 the Defendant moved that "the contract for the sale of the properties be declared null and void and be rescinded because the purchaser has failed to comply with the terms and conditions of his offer, and this amounts to a breach of the sale contract" On August 22, 2002 that motion was denied. On September 6, 2002 the Defendant appealed to the Appellate Court from that order. On October 11, 2002 the court granted the Committee's motion to approve the deeds and overruled the Defendant's objection to the motion. On October 30, 2002 the Defendant appealed from those decisions. On November 1, 2002 the court denied the Defendant's motion to reargue his objection. On December 2, 2003, the Appellate Court affirmed the court's decision approving the deeds ( Mitchell v. Silverstein, 80 Conn.App. 903 (2003)). On December 22, 2003 the Defendant petitioned for certification for review of that decision to Supreme Court. The petition was denied on January 22, 2004 ( Mitchell v. Silverstein, 267 Conn. 916 (2004)). On March 18, 2004 the Committee made return on the sale and paid into court the sum of $427,397.12. On March 19, 2004 the Defendant David C. Rappe, moved that he be paid the sum of $53,254.56 from the Plaintiff's share of the proceeds. On June 2, 1998 the court had entered judgment, pursuant to the stipulation of the parties thereto, on the Defendant Rappe's counterclaim against the Plaintiff in the amount of $53,254.46, without interest.

For purposes of this decision, the term "Defendant" refers to Morris Silverstein unless otherwise indicated.

By order dated May 27, 2004 the court granted the Committee's Motion for Allowance of Fees and allowed the Committee a fee of $8,997. That amount was paid by the clerk, leaving on hand with the court the sum of $418,400.12. The court also ordered that, as to the Motion for payment dated March 19, 2004 by the Defendant Rappe, that: "the judgment of the court entered on April 19, 2000 provided that: `All persons having claims against said properties shall submit said claims to this court, to be determined by Supplemental Judgment. Connecticut General Statutes Sec. 52-502.' Therefore all persons having such claims shall submit them to the court by July 16, 2004. A hearing will then be held on the claims submitted for determination by Supplemental Judgment." By motion filed June 28, 2004, the Plaintiff moved that one-third of the proceeds be distributed to her and that $20,186.36 be deducted from the Defendant Morris Silverstein's share as per previous court orders and the amount be distributed equally to the Plaintiff Mitchell and the Defendant Samuel Silverstein. The Plaintiff also moved that certain administrative expenses be paid from the proceeds. On July 13, 2004 the Defendant Rappe filed his claim for $53,254.56 to be paid from the Plaintiff's share. On July 16, 2004 the Defendant Morris Silverstein filed his claims. On July 19, 2004 he also filed an objection to the Plaintiff's motion for payment. The Plaintiff filed a response to that objection on August 2, 2004 as well as an objection to Morris Silverstein's claims of July 16th. The court held a hearing on the various claims and objections thereto on September 15, October 20, and December 1, 2004. On September 15th the court ordered that the Defendant Morris Silverstein file an accounting of the moneys he received as receiver of rents by October 15, 2004. He had been appointed receiver of the rents of the properties which are the subject of this partition action on October 14, 1997 but no accountings had been filed with the court.

The court heard testimony from Morris Silverstein and Attorney Rappe. Post-trial memoranda were also filed. Attorney Rappe moved that Samuel Silverstein be nonsuited as to his counterclaims for his failure to appear. However Samuel Silverstein had advised the court that because of ill health he wished to be excused from court and desired that the court "stop Morris Silverstein's appeals and delays." Therefore the court will deny the motion for nonsuit but consider that Samuel Silverstein has abandoned the claims set forth in the counterclaim. In any event, the Defendant Morris Silverstein joined in the same claims and the court is adjudicating them in this decision.

On the first day of hearing the parties present agreed that the proceeds of the sale, which resulted from the sale of three properties, shall be divided as follows:

Property Party Share Bolton Property Dorothy Mitchell 1/3 Morris Silverstein 1/3 Samuel Silverstein 1/3 Columbia Property Mono Lot Dorothy Mitchell .238096 (5/21) Morris Silverstein .380952 (8/21) Samuel Silverstein .380952 (8/21) Columbia Property 8± acres Dorothy Mitchell .166667 (1/6) Morris Silverstein .666666 (4/6) Samuel Silverstein .166667 (1/6) In Fernandes v. Rodriguez, 255 Conn. 47 (2000) the Court stated: "it is not always true that each tenant in common or joint tenant is entitled to equal shares in the real estate. Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950) ('Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the moneys obtained from the sale. Equities must be considered and, if established, must be liquidated before distribution is ordered'); see also Hackett v. Hackett, 42 Conn.Sup. 36, 40, 598 A.2d 1112 (1990), aff'd, 26 Conn.App. 149, 598 A.2d 1103 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). Accordingly, should it order a partition by sale, the trial court may distribute the proceeds of the sale in accordance with the equitable interest of each party."

In the counterclaim, the Defendant Morris Silverstein claims that he is entitled to certain funds in addition to his percentage share of the proceeds for a number of reasons. At the trial of this matter Morris Silverstein pursued a number of these claims.

First he claims, pursuant to theories of unjust enrichment and quantum meruit that he should be paid for the work, labor, services and efforts that he provided over the 20 years and 8 months that he oversaw the properties. This period of time references the time in which Morris Silverstein was the administrator of his mother's estate, that is, from March 8, 1969 to October 31, 1989. He values this at $10,000 per year for a total of $206,666.67. He has made similar claims in the course of the extended litigation over his mother's estate and the courts have rejected them. He seeks in essence to recover here amounts representing what the Probate Court and the Superior Court have not allowed on his claims against the estate. If he had been paid in full through the Probate Court he would not be making such claims here. He claims that his efforts increased the value of the estate for the heirs and therefore the heirs, and not the estate, should be liable for this payment. " Quantum meruit and unjust enrichment are common-law doctrines that provide restitution, or the payment of money, when justice so requires. See Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001); Sidney v. DeVries, 215 Conn. 350, 351-52 n. 1, 575 A.2d 228 (1990); Burns v. Koellmer, supra, 11 Conn.App. 384-85. Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. See 5 S. Williston, supra, § 1479. Recovery is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff. See Gardner v. Pilato, supra, 68 Conn.App. 453; Polverari v. Peatt, 29 Conn.App. 191, 200-01, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). `In the absence of a benefit to the defendant, there can be no liability in restitution; nor can the measure of liability in restitution exceed the measure of the defendant's enrichment.' Restatement (Third), Contracts, Restitution and Unjust Enrichment, § 2(d) (Discussion Draft March 31, 2000). These requirements for recovery of restitution are purely factual. Dow Condon, Inc v. Muros North Ltd. Partnership, 69 Conn.App. 220, 228, 794 A.2d 554 (2002)." United Coastal Industries v. Clearheart Construction Company, Inc., 71 Conn.App. 506, 511-2 (2002).

In 1988, the court allowed Morris Silverstein $3,507.84 for work on the cider mill located on the property, $10,677.28 for management fees for rental income operations and $43,006.83 for management of the real estate for a total of $57,181.95. He had claimed a total of $268,470 for these items for the period March 8, 1969 to June 30, 1982 (see Silverstein v. Estate of Silverstein, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 83 0029489 (October 3, 1988 Vasington, J.)). In 1991, the court allowed Morris Silverstein $17,428.55 for work and administrator's fees. He had claimed $218,657 for work done by him from July 1, 1982 to October 31, 1989 (see Silverstein v. Estate of Silverstein, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 91 46834 (December 11, 1991, Klaczak, J.)). He claims he is entitled to the balance of $206,666.67 minus the $74,610.50 which was allowed by the courts. In essence, he requests, under the guise of unjust enrichment and quantum meruit, what the courts have already determined he was not entitled to. This he cannot do. "`[T]he doctrines of collateral estoppel and res judicata, commonly referred to as issue preclusion and claim preclusion, respectively, have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion . . . prevents a party from relitigating an issue that has been determined in a prior suit . . . Notwithstanding the differences between the two doctrines, we have noted their conceptual closeness . . . as well as their similarity of purpose.' (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 57-58 n. 16, 808 A.2d 1107 (2002). `The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. [A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand . . . Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made . . . Probate court decrees . . . are final judgments for the purpose of the doctrine of res judicata.' (Citations omitted; emphasis in original; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 595-96, 804 A.2d 170 (2002). The principles underlying the related doctrine of collateral estoppel also are well established. `The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment . . . Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.' (Internal quotation marks omitted. Cumberland Farms, Inc. v. Groton, supra, 262 Conn. 58." Zanoni v. Lynch, 79 Conn.App. 325, 337-8 (2003). The same claims the Defendant is presenting here have already been fully and fairly litigate by the Defendant in the probate, superior, and appellate courts, and have already come to rest. Even if the court were to consider them again under the guise of claims of unjust enrichment and quantum meruit, the evidence does not support the Defendant's claims or that his efforts, for which he claims compensation, have benefited his siblings in any significant way.

Second, the Defendant Morris Silverstein claims he is owed $286,426.22, based on the accounting which he claims was approved by the Probate Court pursuant to a stipulation entered in the Superior Court on August 7, 1985. In that case, Docket Number 29345, Dorothy Mitchell appealed from certain orders of the Probate Court entered on January 4, 1983. There was also a companion case, docket Number 29489, in which Morris Silverstein appealed from the same orders. Both cases were resolved by stipulation on August 7, 1985 and the same judgment was entered in each case. Silverstein's Appeal from Probate, 13 Conn.App. 45, 48 (1987). Morris Silverstein appealed from the judgment entered on the stipulation in his case. Id., p. 51. The Appellate Court set aside the judgment and remanded the matter for further proceedings. Id., p. 60. Following that decision, the Superior Court opened the judgment, set it aside, and ordered it set for trial. Judge Vasington thereafter issued a decision in which he allowed Morris Silverstein $61,041.95 for services rendered to the estate but also surcharged him $79,778.02 for improper payments that he had made from the estate. That decision was appealed by Morris Silverstein and affirmed per curiam by the Appellate Court. Morris Silverstein's Appeal from Probate, 18 Conn.App. 821 (1989). The Defendant cannot now claim a benefit under a judgment which he appealed and which was subsequently set aside. The fact that technically the judgment in the companion case was not appealed, is of no moment since the judgment was the same in both cases.

Third, the Defendant claims that he is entitled to judgment with respect to a certain lien he has placed on the subject properties plus interest. The lien sets forth what Morris Silverstein claims he is due pursuant to the order of the Superior Court entered on August 7, 1985. As noted above, he cannot make such a claim.

Fourth, the Defendant claims $12,246.07 for real estate taxes, insurance and other items he allegedly paid for the benefit of the common properties. He also seeks reimbursement for his brother, Samuel, of $4,361.15 which he contributed towards the payment of property taxes for the Bolton property. These expenditures were allegedly made at various times between October 31, 1989 and June 30, 1994. This is after Morris Silverstein was removed as administrator of the estate. He has sought reimbursement from the estate of theses expenses but they have not been paid. On December 23, 1994 the Probate Court approved a administration account dated October 6, 1994. Morris Silverstein appealed that decision to the Superior Court. In that appeal Morris Silverstein references the failure of the Probate Court to pass judgment on a list of estate expenses he had paid on behalf of the estate or to recognize the $4,361.15 in taxes paid by his brother. See, Reasons of Appeal paragraphs 16, 17, in Docket No. CV 95 0057529, Morris Silverstein v. Estate of Esther S. Silverstein, Superior Court, judicial district of Tolland at Rockville. In the decision on that appeal, Judge Klaczak found that the Probate Court had tacitly disapproved Morris Silverstein's claims and that there was no credible evidence that Samuel Silverstein had advanced any sums to the estate. Memorandum of Decision dated January 8, 1998, affirmed, Silverstein v. Laschever, 54 Conn.App. 901 (1999), cert denied, 251 Conn. 905 (1999). Thus, pursuant to the doctrines of collateral estoppel and res judicata, this claim is without merit.

Fifth, the Defendant claims $253.40 he is due in order to pay a bill for well and water pump repairs on the Bolton property done in November 1993. Once again this should have been a claim presented to the estate for payment since it relates to a period time after the Defendant was administrator of the estate and prior to his appointment as receiver of rents.

Sixth, the Defendant claims $15,600 as his share of rent that should have been paid by a tenant who occupied certain property allegedly at the behest of the Plaintiff. In support of this claim, Morris Silverstein submits portions of the transcripts of the trial before Judge Klaczak in Docket Number CV95-57529 referred to above. That evidence does not support the Defendant's claim that the tenant occupied the property from July 1, 1994 to March 2004 or the amount of rent that should have been paid during that time. In fact, the testimony also indicates that the rent was being offset by material and labor supplied by the tenant.

Seventh, the Defendant Morris Silverstein claims $500 payment from either Rappe's or the Plaintiff's share for work he performed for Rappe while Rappe represented the Plaintiff in probate matters. The evidence does not support this claim.

Pursuant to the court's order, Morris Silverstein submitted an accounting of the rents he received as well as disbursements since his appointment as receiver of rents of the property on October 14, 1997. He claims $41,764.06 in income and $37,776.55 in expenses. However he did not establish any separate bank accounts for the deposit of the rental income or the payments of expenses related to the properties. Included in the expenses are $897.76 for Belle Silverstein's gravestone, a property appraisal of $600, and $656.94 in taxes on 35± acres of land in Columbia which property is not the subject of this action or of the receivership. The only evidence regarding the purchase of the gravestone is that the siblings may have agreed to payment of this expense from unclaimed property due Belle Silverstein from the state of Connecticut, not out of the proceeds of the sale of this property. As to the appraisal, it was done in 2000 and there is no indication as to what was the subject of the appraisal or its purpose. Therefore these expenses are not properly chargeable to the rents received since they do not relate to the maintenance of the property. This leaves approved expenses a $35,621.85. Morris Silverstein also claims $200 per month in management fees for 77 months for a total of $15,400. This equates to an expense of $200 per month to collect gross income of $535.58 per month ($41,764.06 — insurance premiums refund of $524.06 divided by 77). Such a fee is excessive. He never advertised or effectively advanced the rental of the properties to maximize the rental income. The court approves a fee of 10% of the income or $4,124 for total expenses of $39,745.85. This leaves a net income for the properties of $2,018.21. Since this has not been paid into court the court will consider it as owing to the other distributees from Morris Silverstein's share. "When a receiver is appointed . . . to take charge of the property, he holds it as an arm of the court and the funds in his hands are available to the court for distribution to those rightfully entitled to them; Desiderio v. Iadonisi, 115 Conn. 652, 655, 63 A. 254 (1932); including the payment of taxes and the compensation of the rent receiver." Hartford National Bank Trust Co. v. Tucker, 195 Conn. 218, 225 (1985).

The amount for property taxes for the 35± acres in Columbia consists of the following payments shown on the attachments to the Report of the Receiver of Rents dated December 1, 2004: 1998-$77.18; 1999-$80.26; 2000-$92.61; 2001-$88.49; 2002-$99.66; 2003-$52.14; 2004-$52.14 + $114.46.

Lastly, the Plaintiff argues that the funds on hand here should be used to pay expenses of the administrator appointed by the Probate Court and his attorneys fees as well as surcharges imposed upon Morris Silverstein in the amount of $20,186.36 pursuant to previous court orders. Pursuant to the Probate Court's order of September 10, 2004 the court approved, as part of an interim accounting, administrative expenses of $13,579.80 and that the amount of $12,616.76, plus statutory interest of $7,569.60, be assessed against Morris Silverstein's share of the estate. The properties which are the subject of this partition action are no longer part of the probate estate of Esther S. Silverstein and this proceeding is not one dealing with her estate or the assets or expenses thereof. Therefore the court will not assess the payment of any expenses or surcharges, against the proceeds of the sale of these properties, which may be chargeable or payable to that estate.

Therefore the monies from the sale of the properties shall be distributed as follows:

Since the Adjustment Sheet Re: Sale, provided by the Committee, did not separate the amount of tax adjustment attributable to each Columbia parcel, the court has divided the $314.25 tax adjustment in proportion to the sale price, i.e, 12% to the 8+ acres and 88% to the Mono Lot.

Property Net Proceeds Party Share Distribution Bolton Property $393,082.87 Dorothy Mitchell 1/3 $131,027.63 Morris Silverstein 1/3 $131,027.62 Samuel Silverstein 1/3 $131,027.62 Columbia $30,276.54 Dorothy Mitchell .238096(5/21) $ 7,208.72 Property Mono Lot Morris Silverstein .380952(8/21) $ 11,533.91 Samuel Silverstein .380952(8/21) $ 11,533.91 Columbia $ 4,037.71 Dorothy Mitchell .166667(1/6) $ 672.95 Property 8± acres Morris Silverstein .666666(4/6) $ 2,691.81 Samuel Silverstein .166667(1/6) $ 672.95 Totals Dorothy Mitchell $138,909.30 Morris Silverstein $145,253.34 Samuel Silverstein $143,234.48 From the above totals the court will deduct the proportionate share of the expenses of the Committee. The Committee was awarded a fee of $8,997 which is chargeable in the amount of $2,999 to each distributee. The court also notes that the Defendant has retained $2,018.21 in rental profits. Without information as to how the rental income may have been attributable to the proportionate interests of the parties in the real estate, the court will assume an equal share and find that this amount should have been divided among the three tenants in common. Thus Morris Silverstein's share will be reduced by $1,345.48 (2/3 x $2,018.21) and this amount divided between Dorothy Mitchell and Samuel Silverstein. In addition, Dorothy Mitchell, pursuant to the stipulated judgment entered in favor of Defendant Rappe, owes him $53,254.46 from her share.

In conclusion, the court orders the following distribution of the funds deposited with the court:

Dorothy Mitchell — $83,328.58 David Rappe — $53,254.46 Morris Silverstein — $140,908.86 Samuel Silverstein — $140,908.22 Total — $418,400.12

Supplemental judgment shall enter in accordance with this decision.

Jane S. Scholl, J.


Summaries of

Mitchell v. Silverstein

Connecticut Superior Court Judicial District of Tolland at Rockville
Apr 13, 2005
2005 Ct. Sup. 6346 (Conn. Super. Ct. 2005)
Case details for

Mitchell v. Silverstein

Case Details

Full title:DOROTHY S. MITCHELL v. MORRIS SILVERSTEIN ET AL

Court:Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Apr 13, 2005

Citations

2005 Ct. Sup. 6346 (Conn. Super. Ct. 2005)