Opinion
CV126034651S
08-26-2016
Surekha Patel v. Haresh Patel et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
LINDA K. LAGER, JUDGE.
This case was brought by Surekha Patel (Surekha) at the end of 2012 against her brother Haresh Patel (Haresh), her sister-in-law Shilpa Patel (Shilpa) and her father Amrutlal Patel (Amrutlal). An answer to the complaint was filed on December 18, 2013. The case proceeded to trial on February 25, 2016 and March 18, 2016. A request for leave to amend the answer was granted on March 18, 2016. At the close of evidence, plaintiff's counsel represented that he wished to order the trial transcript so the parties were directed to file post-trial briefs on May 23, 2016 and June 13, 2016 respectively. The briefs were filed on those dates.
I
The court finds the following facts based on the credible testimony, the exhibits and the admitted facts. Surekha is directly related to the defendant Haresh, her brother, and the defendant Amrutlal, her father, and is related by marriage to the defendant Shilpa, her sister-in-law. By practice and custom, it was common for these family members, who are members of the Indian Gujarati community, to engage in financial dealings with each other, exchange funds for various purposes and hold property for each other.
In 2001, Haresh, Shilpa, Amrutlal and Surekha's mother Hiraben Patel (Hiraben) lived together in an apartment in Hamden, Connecticut. Some time before January 22, 2002, Amrutlal, who managed the money of his wife, son and daughter-in-law, began collecting funds so that a house could be bought where the four of them would live together which was customary in the family's culture. On November 2, 2001, Surekha withdrew $46,876.64 from an account at Superior Savings of New England, N.A. which apparently represented the proceeds of a certificate of deposit at that institution which had matured on October 30, 2001. (Ex. 4, 5.) On the same date, she obtained three sequential cashier's checks from Superior Savings, each in the amount of $15,000.00 and made out to Hiraben, Haresh and Shilpa, respectively. (Ex. 6, 7, 8.) Two $15,000.00 deposit slips at the Hudson United Bank, dated November 5, 2001, were offered in evidence (ex. 9, 10) although the depositor is unknown. However, Haresh and Shilpa admit they each received a $15,000.00 check.
Exhibit 4, which is the original certificate of deposit, indicates it was held by " Surekha M. Patel ITF Sonal and Rupal Patel." There is no evidence as to the identity of " Sonal and Rupal Patel."
On January 22, 2002, Haresh tendered an offer to purchase a single-family home located at 31 Washington Road in Hamden which was accepted on January 23, 2002. (Ex. A.) The purchase price was $120,000 of which $97,000 was to be financed. Surekha obtained another cashier's check from First Union on February 23, 2002 payable to Haresh in the amount of $15,000.00 (ex. 11) which he also admits having received. The closing for Washington Road occurred shortly thereafter. A conservator's deed dated February 27, 2002 in favor of Haresh Patel and Hiraben Patel was recorded in the Hamden land records' on February 28, 2002. (Ex. 15.)
Subsequent to the closing, Hiraben and Shilpa repaid $45,000.00 to Surekha. Surekha agrees that she was repaid a substantial portion of the $45,000.00, but she maintains that only $42,998.95 was repaid. On March 28, 2002, she received an additional $7,498.95 representing unused funds that were not needed for the closing. (Ex. 14.)
Sometime after the Washington Road property was purchased, Surekha became estranged from her family, especially her father. Around 2003, she stopped talking to Amrutlal because they argued over money and business matters. Well before then, in the 1990s, she purchased gold bullion which was kept in what was described to be a " locker, " a safe deposit box located in Amrutlal's home state in India. Gold of other family members was also kept in that safe deposit box. Surekha purchased the gold in the United States. She brought some of the gold to India herself and some was brought there by family members or friends. She did not have access to the safe deposit box; access was limited to her father and mother although she testified that her sister Dipti had access through what she described was a " power of attorney." In February 2011, Dipti was in India and brought back some gold for Surekha.
Sometime in 2010, Hiraben Patel became ill. On July 28, 2010, she quitclaimed her interest in the Washington Road property to Haresh. (Ex. 16.) Hiraben passed away in 2011. Surekha did not make any claims against Hiraben's estate for any funds she claims to have loaned to Hiraben. On February 13, 2013, well after Hiraben's death, Haresh quitclaimed the Washington Road property to himself and Shilpa as joint tenants with rights of survivorship. (Ex. 17.) They continue to reside on Washington Road. Since approximately July 2014, following a surgery and subsequent illness, Amrutlal resided at a nursing care facility in Hamden.
In the defendants' post-trial brief, counsel represents that Amrutlal Patel passed away on March 25, 2016. To date, the plaintiff has not applied for an order to substitute his executor or administrator. General Statutes § 52-599(b).
To the extent necessary for the resolution of the claims in this case, the court will make additional findings of fact below.
II
The first and second counts of the complaint were brought against Haresh and Shilpa only. The first count alleged breach of oral contracts for the repayment of loans. The second count alleged unjust enrichment.
A
Surekha alleged she loaned a total of $80,000 to Hiraben, Haresh and Shilpa (Complaint, First count, ¶ 8), and that " Haresh Patel and Hiraben Patel unequivocally represented" that it would be repaid (Id., ¶ 9), and she seeks repayment of what she maintains is the outstanding balance. Haresh and Shilpa admit that they received a loan in the amount of $45,000.00 from Surekha in connection with the purchase of the Washington Road property. The court has concluded that entire amount was repaid to Surekha.
To prevail on the first count against Haresh and Shilpa, Surekha had the burden of proving by a fair preponderance of the evidence that she reached a specific oral agreement with each of these defendants, that the terms of the agreement were definite and certain, that she performed in accordance with the agreement and that each defendant breached the terms of the agreement. 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).
There is simply no evidence that Shilpa or Haresh entered into any definite agreement with Surekha that she would loan them $80,000.00 and they were to repay that loan in a reasonable period of time. The fact that Surekha provided a cashier's check to Shilpa in the amount of $15,000, 00, which Shilpa admits she received and was part of the funds used to purchase the Washington Road property, does not establish, without more, an oral contract between Shilpa and Surekha for the repayment of a loan of $80,000.00. Similarly, the fact that Haresh received two cashier's check from Surekha totaling $30,000.00, which were also part of the funds used to purchase the Washington Road property, does not establish an oral contract between Haresh and Surekha for the repayment of a loan of $80,000.00.
The court concludes the plaintiff has failed to establish the requisite elements of breach of contract by a fair preponderance of the evidence and finds in favor of the defendants Haresh Patel and Shilpa Patel on the first count.
B
The second count alleged unjust enrichment. " 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 . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . ." (Internal quotation marks omitted; citation omitted). Schirmer v. Souza, 126 Conn.App. 759, 763-64, 12 A.3d 1048 (2011). " [T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant." Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 285, 649 A.2d 518 (1994). It is the plaintiff's " burden to prove the elements of a claim of unjust enrichment, including that the defendants were benefited . . . Whether the defendants were benefited is a factual determination . . ." (Internal quotation marks omitted; citation omitted). Schirmer v. Souza, supra, 126 Conn.App. 771. The plaintiff has the burden to prove all " the elements of a claim of unjust enrichment, including that the defendants were benefited." Id., 772. Exact evidence of the benefit is not required if there is evidence upon which the court can make a " reasonable approximation." Id., 773.
The court has concluded that Haresh and Shilpa repaid $45,000.00 to Surekha. Surekha's claim for unjust enrichment pertains to the funds she allegedly loaned to her deceased mother Hiraben in connection with the purchase of the Washington Road property. Assuming, without deciding, that Surekha loaned Hiraben $35,000.00 and that those funds went to the purchase of the Washington Road property, Surekha has failed to present evidence from which the court can reasonably approximate the extent of the benefit to Haresh and Shilpa. While there is evidence that they presently own Washington Road as joint tenants with survivorship rights, there is no evidence upon which the court could rely to reasonably approximate the property's current fair market value. Cf. Kelley v. Five S Group, LLC, 136 Conn.App. 57, 64, 45 A.3d 647, cert. denied, 306 Conn. 904, 52 A.3d 731 (2012) (In the absence of evidence of market value, no basis for a finding of unjust enrichment). There is no evidence of the current condition of the Washington Road property, whether it is encumbered, whether it has been improved or renovated or any other evidence upon which the court could measure or fairly estimate any benefit to these defendants of any loan Surekha made to Hiraben. There is no evidence upon which the court can base any factual determination as to whether these defendants received a benefit from the purported loan of funds to Hiraben, an essential element of this claim.
" All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine" of unjust enrichment. Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). Here, the totality of the circumstances, including Surekha's estrangement from her family, the lack of evidence of a timely demand for repayment from Hiraben, the lack of a claim made against Hiraben's estate, and the passage of time since the date of the purported loan, weigh against the doctrine's application.
The court concludes the plaintiff has failed to establish all the requisite elements of unjust enrichment by a fair preponderance of the evidence and finds in favor of the defendants Haresh Patel and Shilpa Patel on the second count.
III
The third, fourth, fifth and sixth counts of the complaint were directed against Amrutlal only. In these counts, Surekha alleged that she entrusted a certain amount of gold bullion to his care and that he failed to return all the gold she had entrusted to him. The third count alleged a breach of the entrustment agreement, the fourth count alleged unjust enrichment, the fifth count alleged conversion and the sixth count alleged statutory theft.
In connection with the claims against Amrutlal, the court makes the following additional findings of fact: During the 1990s, Surekha and other family members used her parents' safe deposit box in India to store gold bullion. The purpose for keeping the gold in India was to have it available to be made into jewelry for weddings and other special occasions. Surekha purchased thirteen " Swiss Credit" one-ounce gold bars from Jefferson Coin & Bullion in Jefferson, Louisiana on May 1, 1997. (Ex. 20.) She claims that in 1999, when Haresh returned to India for his wedding, she gave him the thirteen bars so that they could be placed in the safe deposit box but, instead, ten of the thirteen bars were made into jewelry for Shilpa to wear at her wedding. Haresh credibly denies these claims. According to Haresh, Amrutlal gave Shilpa a small necklace as a wedding gift. Haresh has never seen the safe deposit box in India, does not know what bank it may be located in and has no access to it.
It appears that as early as 2007, while she was still estranged from her parents, Surekha tried to get access to the safe deposit box in India but was unsuccessful. In 2010, the same year that her mother became ill, she became aware that her father was not willing to " give her anything" that she claimed belonged to her, including the gold, and that she would " have to go to court" to get " everything back from him." On November, 6, 2012, Surekha wrote a letter to Amrutlal demanding that he return " the other ten one-ounce pieces of my gold that you still have with you." (Ex. 18.) In late 2015, Surekha found out that her father was seriously ill and in a nursing home and she began to visit him. About two months before the first trial date, Surekha claims that Amrutlal told her that in 1999 the gold was melted to make jewelry for Shilpa's wedding but he also told her he thought that the gold belonged to Haresh and not to Surekha. The court does not credit this testimony.
Transcript, March 18, 2016, p. 9.
Transcript, March 18, 2016, p. 10.
A
In the third count, Surekha alleged that she " entrusted the defendant, Amrutlal Patel" " twenty-one pieces of gold bullion, " ¶ 5, but that he only returned eleven pieces to her in 2011, ¶ 6. In his answer, Amrutlal admitted that she gave him thirteen ounces of gold and that he returned eleven ounces, with two ounces going to Dipti Patel, who is Surekha's sister. It is presently undisputed that eleven ounces of gold bullion were returned to Surekha and that Dipti Patel paid Surekha for the two ounces she received. See Plaintiff's Brief dated May 23, 2016, 4th unnumbered page (entry #136). Nonetheless, the plaintiff maintains that Amrutlal failed to return ten ounces of gold to her and she claims the gold was melted into jewelry as a wedding gift to Shilpa. The court concludes that Amrutlal received only thirteen ounces of gold belonging to Surekha and returned that gold to her on demand but there is no credible evidence that Surekha entrusted an additional ten one-ounce gold bars to Amrutlal's care which he then failed to return to her.
In her post-trial brief, the plaintiff relies on the law of bailment in support of the third, fifth and sixth counts. " A bailment involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement. A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions." (Internal quotation marks omitted; citations omitted). B.A. Ballou & Co. v. Citytrust, 218 Conn. 749, 753, 591 A.2d 126 (1991). Having asserted a bailment relationship, the plaintiff has the burden of proving facts to establish its existence. Id., 752.
Here, there is no credible proof of an agreement, express or implied, between Surekha and Amrutlal that he would safekeep the ten " Swiss Credit" one-ounce gold bars she purchased in 1997 and allegedly sent to India in 1999 and that he would return that gold upon her alleged demand in 2012. It was the practice of the Patel family to store commingled gold in the safe deposit box in India so that jewelry could be made there. While it is true that " the commingling of fungible goods alone does not defeat a bailment when the bailor specifically intended to retain ownership of a known share of the commingled goods, " Id., 754, it is unclear how much gold Surekha had in the safe deposit box in India and it is undisputed that more than eleven ounces of gold was returned to Surekha. The court concludes that the plaintiff has failed to prove by a fair preponderance of the evidence that she entrusted ten ounces of gold to Amrutlal and finds in favor of the defendant on the third count.
B
The fifth count alleged conversion. Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights. E.g., Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006); Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43, 761 A.2d 1268 (2000); Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979).
The basis for the conversion claim is that Amrutlal " exercised an unauthorized right of ownership over the gold coins by using them for the wedding of defendants Haresh and Shilpa Patel." Plaintiff's Brief dated May 23, 2016, 8th unnumbered page (entry #136). A defendant may be liable for conversion when he " intentionally destroys a chattel or so materially alters its physical condition as to change its identity or character . . . the defendant may be liable for conversion where he has in fact exercised dominion or control, although he may be quite unaware of the existence of the rights with which he interferes." (Internal quotation marks omitted; citations omitted.) Luciani v. Stop & Shop Companies, Inc., 15 Conn.App. 407, 411, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988). However, the plaintiff has failed to prove, by a fair preponderance of the evidence, that her gold was used for the purpose of making jewelry to be given to Shilpa at the time of her marriage to Haresh. There is no credible proof that Amrutlal engaged in the unauthorized assumption and exercise of the right of ownership over the gold, to the exclusion of Surekha's rights, a requisite to the tort of conversion. Coleman v. Francis, 102 Conn. 612, 614, 129 A. 718 (1925). The court finds in favor of the defendant on the fifth count.
C
The sixth count alleged statutory theft. " Statutory theft is the stealing of another's property or the knowing receipt and concealment of stolen property. See General Statutes § 52-564 ('[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages). Statutory theft requires an element over and above what is necessary to prove conversion, namely, that the defendant intentionally deprived the complaining party of his or her property." Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418-19, 934 A.2d 227, 234 (2007). To prevail on her claim of statutory theft under General Statutes § 52-564 the plaintiff had to prove by clear and convincing evidence that Amrutlal intended to deprive her of her gold or intended to appropriate it for the purpose of making jewelry to be given to Shilpa at the time of her marriage to Haresh by wrongfully taking, obtaining or withholding the gold. Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520, 705 A.2d 215 (1998). The plaintiff has failed to meet this heavy burden. (See the factual findings in III.B., supra, that the plaintiff failed to prove, by a fair preponderance of the evidence, that her gold was used for the purpose of making jewelry for Shilpa.) The court finds in favor of the defendant on the sixth count.
D
Finally, in the fourth count, the plaintiff alleged that Amrutlal was " unjustly enriched by retaining the ten one-ounce pieces of gold bullion." Based on the court's factual findings and on the law of unjust enrichment set forth in section II.B., supra, the court finds in favor of the defendant on the fourth count.
IV
In light of the court's factual findings and legal conclusions, the court will not address the special defense of laches. Judgment shall enter in favor of the defendants Haresh Patel and Shilpa Patel on the first and second counts of the complaint. Judgment shall enter in favor of the defendant Amrutlal Patel on the third, fourth, fifth and sixth counts of the complaint.