Opinion
No. LLI CV 10 6003211S
March 29, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The issue before the court is whether to grant the defendant's motion for summary judgment as to counts two and five of the plaintiff's amended complaint on the ground that there are no genuine issues of material fact in that: (1) count two was not brought within the applicable statute of limitations; and (2) count five fails to state a claim upon which relief can be granted.
I FACTS
On October 5, 2010, the plaintiff, Gloria Riendeau, filed an amended complaint against the defendant, Robert C. Grey, as trustee and executor under the will of Edward F. Orzech (decedent). The complaint alleges claims of breach of contract, quantum meruit and unjust enrichment arising out of an alleged oral contract or promise to convey real property upon death in consideration for services rendered during the decedent's lifetime. The plaintiff alleges the following facts. At all relevant times, the plaintiff resided at 219 Baker Road, Roxbury, Connecticut (premises), a residential property owned by the decedent. In 1984 the plaintiff and her husband, Rene Riendeau, took up residence at the premises under a lease agreement with the decedent, as landlord. Beginning in 1997, the plaintiff began providing services as a caregiver to the decedent's wife, who was in failing health, and continued to provide such services until January 2000, when the decedent's wife died. For the first two weeks that the plaintiff provided such services, the decedent compensated her, but discontinued the compensation arrangement thereafter. Following the death of the decedent's wife in 2000, the plaintiff began to visit the decedent at his home on a virtual daily basis, rendering the same type of caregiver services to him as she had previously provided to the decedent's wife. The plaintiff provided these services to the decedent until he moved to a nursing home in April 2008.
Initially, Robert L. Grey was also named as a defendant in his capacity as co-trustee and co-executor. Robert L. Grey died on September 24, 2010, and the plaintiff subsequently filed a withdrawal of the action as to claims asserted against him.
The plaintiff further alleges that on many occasions throughout the approximate eleven-year period that she rendered caregiver services to the decedent and his wife, the decedent repeatedly voiced his intentions to leave the premises to her after his death, in consideration for the caregiver services that she had provided to his late wife and was thereafter providing to him. According to the plaintiff, there was at least one particular occasion when the decedent represented to her that he had executed the appropriate documents to effectuate his stated intentions. The plaintiff alleges that after the decedent moved to the nursing home in April 2008, he informed the plaintiff that she would no longer need to pay rent for her occupancy of the premises.
The decedent died on July 8, 2008, at which time title to the premises passed automatically to the Orzech Family Trust (trust). The defendant is the executor under the decedent's last will and testament, as well as the sole beneficiary under the will, and is also the trustee of the trust. The decedent's will, admitted to probate, does not provide for the devise of the premises to the plaintiff, but instead gives all of his real and personal property to the trust, of which the plaintiff is not named in the will as a beneficiary. The plaintiff alleges that the defendant attempted to sell the premises to a third party and intended to place the proceeds of such sale in the trust. On April 1, 2010, the plaintiff delivered written notice to the defendant of her claim to the premises. On August 20, 2010, the defendant communicated his rejection of the plaintiff's claim. The present action was brought thereafter.
On February 14, 2011, the defendant filed a motion for summary judgment, as to counts two and five, along with a supporting memorandum of law and evidentiary support on the ground that there are no genuine issues of material fact that (1) the plaintiff's claim for breach of contract was not filed within the applicable statute of limitations; and (2) the plaintiff cannot satisfy the requirements necessary for the court to impose a constructive trust and, thus, the complaint fails to state a claim upon which relief can be granted. On February 16, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment along with evidentiary support. This matter was heard on the March 21, 2011 short calendar.
Additionally, the defendant moved for summary judgment as to counts two and five on the ground that there was no genuine issue of material fact that the defendant does not have title interest in the property which the court can order him to convey to the plaintiff. At oral argument, however, the defendant withdrew this argument. Thus, the court will not address this ground.
II DISCUSSION A Summary Judgment Standard CT Page 8073
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
B Analysis
The defendant moves for summary judgment as to count two, alleging breach of contract, on the ground that there is no genuine issue of material fact that it was not brought within the applicable statute of limitations. Additionally, the defendant moves for summary judgment as to count five, alleging unjust enrichment and seeking to impose a constructive trust, on the ground that there is no genuine issue of material fact that it fails to state a claim upon which relief can be granted. Specifically, with regard to count five, the defendant contends that the plaintiff cannot satisfy the requirements necessary for the court to impose a constructive trust.
The plaintiff objects arguing that summary judgment as to count two is inappropriate because it was timely filed. Specifically, the plaintiff contends that the defendant mischaracterizes the nature of count two and relies on the wrong statute of limitations. Additionally, the plaintiff argues that summary judgment is not proper as to count five because she has asserted a valid claim for the imposition of a constructive trust.
1 Count Two: Statute of Limitations
In count two, the plaintiff alleges that the defendant attempted to sell the premises to a third party and intended to place the proceeds of such sale in the trust; that such actions are at variance with and constitute breach of the contractual agreement reached between the plaintiff and the decedent under which she was to receive title to the premises at the time of the decedent's death in consideration for her years of caregiving services rendered to the decedent and the decedent's late wife; and further the plaintiff has suffered the loss of her bargain as a consequence of the breach of her agreement with the decedent, which the defendant has failed to honor; and the plaintiff fully performed all of her obligations under the terms of her agreement with the decedent, and she is entitled to enforce the decedent's promise to her that she would receive title to the premises upon his death in consideration therefor. The plaintiff seeks specific performance of the contract for the transfer of the premises by the defendant to the plaintiff.
The defendant argues that count two seeks enforcement of an agreement for the purchase and sale of the premises that was formed prior to the decedent's death and was to have been performed after the decedent's death. Thus, according to the defendant, the statute of limitations set forth in General Statutes § 47-33a applies. General Statutes § 47-33a(a) states: "No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325." The defendant contends that regardless of whether the one-year or the eighteen-month period applies, the plaintiff's claim is untimely because the decedent died on July 8, 2008, but the plaintiff's action was not commenced until August 31, 2010, by summons and complaint.
In contrast, the plaintiff argues that its action was timely commenced because it is more properly governed by the six-year statute of limitations for contract claims under General Statutes § 52-576, or the three-year statute of limitations for oral contracts provided by General Statutes § 52-581. Consequently, the plaintiff contends that the claim is timely because the decedent died on July 8, 2008, and the lis pendens was filed on April 1, 2010, less than two years after his death, leaving more than four years remaining under General Statutes § 52-576, and more than one year under General Statutes § 52-581.
General Statutes § 52-576(a) states in relevant part: "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 . . ." General Statutes § 52-581(a) states: "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."
Notably, the defendant provides no citations to case law to support his contention that General Statutes § 47-33a applies to an action to enforce an oral promise to convey property at the time of death in exchange for services rendered to the promisor and his wife during their lifetimes. The plaintiff's position, however, is supported by case law demonstrating that the present action is more properly governed by either General Statutes §§ 52-576 or 52-581. See Hull v. Thomas, 82 Conn. 647, 651-52, 74 A. 925 (1910) (the defendant asserted a statute of limitations defense based upon a six-year statute of limitation on the plaintiff's cause of action to enforce the testator's promise to compensate the plaintiff by will for services rendered to the decedent); see also Foley v. Coggins' Estate, 121 Conn. 97, 183 A.25 (1936); Downey v. Guilfoile, 96 Conn. 383, 114 A. 73 (1921); Appeal of Beardsley, 83 Conn. 34, 75 A. 141 (1910); Rennie v. McCue, 18 Conn.Sup. 132 (1952).
Accordingly, the court hereby denies the defendant's motion for summary judgment as to count two.
2 Count Five: Constructive Trust
In count five, the plaintiff alleges unjust enrichment and seeks to impose a constructive trust. The plaintiff alleges that the defendant was aware of the decedent's promise to the plaintiff to leave the premises to her following his death and the defendant has admitted his awareness of this promise to the plaintiff. The plaintiff further alleges that the defendant, despite his acknowledgment of the existence of the decedent's promise, has refused to honor the decedent's promise and has informed the plaintiff that he would not honor that promise because the decedent had not made the promise in writing.
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff cannot satisfy the requirements necessary for the court to impose a constructive trust. Specifically, the defendant argues that (1) the plaintiff cannot identify any transfer of the real property to another that was intended to be for her benefit; and (2) there is no allegation that the defendant made and disregarded a promise to the decedent to receive the premises and thereafter convey it to the plaintiff. The defendant contends that absent allegations and proof that the decedent transferred the property to the defendant, as executor or trustee, with the intent that the defendant would subsequently convey it to the plaintiff in fulfilment of the decedent's alleged promise and the defendant promised the decedent that he would subsequently transfer the property to the plaintiff, there is no cause of action for unjust enrichment and the imposition of a constructive trust. In support of his argument, the defendant submits only an unauthenticated copy of the last will and testament of the decedent and an unauthenticated copy of the probate decree.
The plaintiff objects arguing that summary judgment is not proper because there are genuine issues of material fact concerning the facts necessary to impose a constructive trust. The plaintiff submits nine affidavits in support of her position. According to the plaintiff, these affidavits show that the decedent intended to leave the property to the plaintiff; that his intent was common knowledge in the community, and that the decedent had satisfied himself that he had done what was necessary to accomplish this from a legal standpoint.
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46. In the present case, all of the affidavits submitted by the plaintiff are sufficient.
"A constructive trust is an equitable remedy imposed 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 . . . Before a trial court finds that a constructive trust exists and should be imposed, the court must find that a confidential relationship existed between the transferor and the transferee at the time of transfer of the property . . . The confidential or special relationship must be of a nature that generates a natural inclination to repose great confidence and trust . . . A confidential relation exists not only where there is a fiduciary relation . . . but also where, because of family relationship . . . the transferor . . . is justified in placing confidence in the belief that the transferee will act in the interest of the transferor . . . Where the owner of land transfer it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, the transferee will be compelled to hold the land upon a constructive trust for the third person, if the transferee at the time of the transfer was in a confidential relation to the transferor. This is true even though at the time of the transfer the transferee intended to perform the oral trust, and even though he was not guilty of undue influence or other abuse of his confidential relation to the transferor in procuring the transfer. In such a situation a wrong is committed not merely against the transferor but also against the third person; and a court of equity will specifically redress the wrong by putting the parties in the position in which they would have been if the wrong had not been committed." (Citations omitted; internal quotation marks omitted.) Gulack v. Gulack, 30 Conn.App. 305, 311-13, 620 A.2d 181 (1993).
"The elements of a constructive trust are the intent by a grantor to benefit a third person, the transfer of property to another who stands in a confidential relationship to the grantor with the intent that the transferee will transfer the property to the third person, and the unjust enrichment of the transferee if the transferee is allowed to keep the property. A constructive trust is created by operation of law when these elements are present." Id., 310.
The plaintiff submits her own affidavit attesting in relevant part: "When I learned that the Greys intended to sell the premises, I met with the late Robert L. Grey and his wife . . . to discuss the status of the premises. During that discussion, I reminded Mr. Mrs. Grey of [the decedent's] promise to leave the premises to me after his death. In response, Mr. Mrs. Grey told me that, although they are aware of [the decedent's] promises to leave the premises to me after his death, insofar as none of those promises was in writing, they could not honor [the decedent's] wishes as expressed through those promises." In addition, the plaintiff submits the affidavits of:
(1) Chris Alfson, who attests in relevant part that he personally heard the decedent speak of his intentions to leave the premises to the plaintiff and that this fact "was generally understood in the community";
(2) T.D. Dratch, who attests in relevant part that on multiple occasions he heard the decedent state that he would leave the premises to the plaintiff;
(3) Bennie Little, who attests in relevant part that he heard the decedent tell the plaintiff on a number of occasions that the premises "belonged to her," and after advising the decedent to consult a lawyer about formally transferring the premises to the plaintiff, the decedent informed Little that "what he was going to provide for [the plaintiff], by giving her legal ownership to [the premises] . . . would occur `after probate,' which [Little] took to understand meant that he would transfer the property without doing so through his will";
4) Phil Ross, who attests in relevant part that "[i]n approximately 2002, [he] learned that it was common knowledge in the community that [the decedent] was leaving" the premises to the plaintiff and that he "also heard from [the decedent] that he was leaving [the premises] to [the plaintiff] and her family";
(5) William Lemoine, who attests in relevant part that, in 2006, the decedent informed him that "he was going to provide for [the plaintiff] because she was an excellent caregiver to him, by giving her legal ownership to [the premises]" and the decedent informed Lemoine that the transfer of ownership of the premises to the plaintiff was "`all taken care of;' which[Lemoine] took to understand meant that [the decedent] had consulted with his attorney regarding the transfer of the property";
(6) Alan Hoegemann, who attests in relevant part that he took care of repairs and improvements at the premises, he attended to any other repairs requested by the plaintiff because the decedent had informed him that the premises was "going to be [the plaintiff's house anyway," and it was generally understood in the community that the decedent would leave the premises to the plaintiff because she was a very good caregiver to him;
(7) Glen Krizan, who attests in relevant part that he recalled hearing the decedent state that the plaintiff "could do what she pleased with [the premises] because the home would be transferred to her after his death"; and
(8) Barbara Henry, who attests in relevant part that she had a conversation with the decedent three days before his death during which Henry asked the decedent "if his will stated all the intentions he wanted to see occur after his death, including a provision for [the plaintiff] and he . . . stated that `it was all taken care of and [the plaintiff] did not have to worry.'"
By failing to submit affidavits or any other evidence, the defendant has not satisfied his burden of proving that there is no genuine issue concerning the facts necessary for the imposition of a constructive trust. Moreover, the plaintiff's affidavits demonstrate that there is a genuine issue of material fact concerning whether the decedent transferred the property to the defendant with the intent that the defendant would transfer the property to the plaintiff. Accordingly, the court hereby denies the defendant's motion for summary judgment as to count five.