Opinion
FSTCV165015982S
03-05-2019
Patricia SPICER v. John MONTAGNESE et al.
UNPUBLISHED OPINION
TAGGART D. ADAMS, JUDGE TRIAL REFEREE
I. BACKGROUND AND HISTORY OF THE CASE
This dispute has a tortuous history before and after it was first filed in Stamford Superior Court as an application for a prejudgment remedy in September 2016, and its history extends back to a 2008 summary process proceeding in the Superior Court Housing Session in Norwalk. Plaintiff Patricia Spicer’s First Amended Complaint contained three counts: (1) the defendant Montagnese’s failure to pay a portion of a judgment of the Housing Session court entered against him and in favor of Spicer amounting to about $45,000; (2) fraudulent conveyance of Montagnese’s interest in real property located on West Hill Road in Stamford to the defendant McKay, and (3) unjust enrichment of both defendants, Montagnese and MacKay, who is the wife of Montagnese.
After five days of hearings, the Honorable Kevin Tierney, Judge Trial Referee, denied Spicer’s application for a prejudgment remedy for reasons stated in a fifteen-page decision, not all of which were based on the merits of the plaintiff’s and defendants’ claims and defenses. As is his practice, Judge Tierney’s decision, dated November 28, 2017 and found at Dkt. Entry 134.00, includes a careful and complete recitation of the facts found relevant to the PJR application and the pertinent legal authorities. At the time of Judge Tierney’s decision the pleadings had not been closed. After her original attorney withdrew her appearance Spicer represented herself for a period of time leading to trial. On the morning of the first day of trial Attorney Robert Singer entered an appearance for the plaintiff.
The trial of this case took place over two days, November 6 and 7, 2018. Post-trial memoranda were filed per this court’s schedule on November 28, 2018. On November 23, 2018 the plaintiff Spicer sought to amend her complaint, and over objection by the defendants, the court allowed the amendment. Presently, Spicer’s operative complaint contains only one count, a civil action on a judgment pursuant to General Statutes § 52-598(a) directed at only one defendant: John Montagnese. Docket Entry 146.00. Heather McKay is no longer a defendant.
The present case arises out of the summary process action commenced by Montagnese against Spicer in 2008 wherein Montagnese sought to evict Spicer from his residence on West Hill Road, Stamford after what has been described as a "tumultuous," non-marital relationship.
According to the allegations of Spicer’s pleadings and supported by the evidence at trial, a stipulated agreement was entered into at the Housing Session court between Montagnese and Spicer wherein Spicer agreed to vacate the West Hill Road premises by May 31, 2008, and Montagnese agreed to pay her $75,000: $15,000 by March 31, 2008, another $15,000 by April 11, 2008, and $45,000 by December 31, 2008. It is the third payment of $45,000 that is the major issue in this case. The Housing Session court imposed a 10% annual interest rate on that amount and in 2010 ordered Montagnese incarcerated for contempt of court based on nonpayment of the stipulated judgment. When Montagnese paid the purge amount of $5,000, $4,000 went to Spicer and $1,000 to her attorney. In addition, over the course of 2009 and 2010 Montagnese paid Spicer another $3,480 in relatively small payments. Tr., 11/6, 20.
References to "Tr." are to pages of the November 6 and 7 trial transcripts. Exhibit 3 contains receipts for payments made to Spicer in 2009 and 2010.
Montagnese appealed the contempt order, but the Appellate Court upheld the decision in Montagnese v Spicer, 130 Conn.App. 301 (2011) a decision criticized by Judge Tierney as being contrary to Connecticut law as stated in Pease v. The Charlotte Hungerford Hospital, 325 Conn. 363, 377 (2017) ("Connecticut has rejected the practice of imprisonment for debt as inhumane, unjust and generally ineffective"). See Dkt. Entry 134.00 at p. 7.
Montagnese filed an answer, special defenses and counterclaims to Spicer’s First Amended Complaint that contained the following allegations: (1) he had paid Spicer about $35,000; (2) that Spicer’s son, Ian Callanan, had paid Spicer $42,000 on the terms that the payment was in full satisfaction of Montagnese’s remaining debt to Spicer under the stipulated agreement, and that Montagnese had agreed to repay the $42,000 to Callanan. Dkt. Entry 108.00.
II. THE EVIDENCE AT TRIAL
At trial Patricia Spicer generally testified in a manner supportive of her pleadings, although she was very hesitant, somewhat unclear and inconsistent, and had difficulty identifying documents and other matters. Indeed, the court found the testimony of all witnesses, except the former defendant Mackay, to be sometimes imprecise, confused and occasionally contradictory. On her direct examination Spicer testified to the "stipulated agreement" signed by Spicer and Montagnese in Housing Session before Judge Jack Grogins on March 18, 2008. Tr. 11/6, 17; Ex. 1. That stipulation called for a payment by Montagnese of $75,000 to Spicer in three separate payments. Ex. 1. Spicer received a stay of execution of eviction from the West Hill residence until May 31, 2008 and Montagnese agreed to pay her $75,000 in three installments: on March 31, April 11 and December 31, 2008. Spicer received the first two payments totaling $30,000 in timely fashion. Spicer further testified that the final $45,000 was not paid timely and she filed a motion for contempt of court. Tr. 11/6, 19. Judge Grogins held Montagnese in contempt on several occasions in 2009 and 2010, and on May 4, 2010 after Montagnese’s failure to adhere to various payment schedules, ordered him to jail until he paid a purge amount of $5,000. Ex. 11. The defendant eventually paid the purge amount— $4,000 went to Spicer, and the remainder to her attorney. Tr. 11/6, 23, 25, 26. Montagnese’s appeal of the contempt citation was unsuccessful. Montagnese v. Spicer, 130 Conn.App. 301 (2011). In the two years after the stipulated agreement Spicer testified she had received a total of $37,480. Tr. 11/6, 44-45. Exhibit 13 contains copies of receipts of payments by Montagnese to Spicer.
After testifying that she did not recall any specific conversation with her son, Ian Callanan, Spicer subsequently identified an April 2008 statement of her bank account at Peoples United Bank reflecting a receipt of $42,000 by wire transfer from Callanan on April 1, 2008; Ex. 2; and also testified that Callanan had received wiring instructions from Spicer’s attorney, Donald Brown, to send a "Gift Letter" representing no repayment was expected in connection with a residential mortgage Spicer was seeking to obtain at the time for a Stamford residence. Tr. 11/6, 60-71; Ex. 20. Spicer testified that Callanan had taken out an equity line of credit on his condominium to obtain the funds sent to her. Tr. 11/6, 79. Spicer testified, and the documents confirm, that the $42,000 wire transfer occurred shortly after the stipulated judgment had been entered in Housing Session. Id., 70. She recalled asking Callanan for $42,000 but did not provide much additional detail. Tr. 11/6, 79. Spicer further testified that her proposed purchase of a condominium unit did not go through and she started looking for other places to live. Id., 84-85, 92. Finally, she testified, somewhat adamantly, that she never mentioned her receipt of $42,000 in any court proceeding before Judge Grogins and that the $42,000 had "nothing to do with [Montagnese’s] obligation to me." Tr. 11/6, 82, 89.
Montagnese testified he was not aware of the Callanan payment to Spicer at the time it was made and therefore did not raise that issue with Judge Grogins. Tr. 11/6, 125. Montagnese said he was completely in the dark that Callanan had given money to Spicer and only became aware of it around 2010. Tr. 11/6, 116, 123, 125, 133-34. Indeed, the records indicate the Callanan payment was made before, or at about, the time Montagnese was making the payments to Spicer called for under the Housing Session stipulation. Montagnese also testified, twice, that it was his understanding that the Callanan $42,000 payment was made to satisfy Montagnese’s debt to Spicer, and he came to this understanding after a conversation with Callanan. Tr. 11/6, 124-26. He also testified that he arranged to pay Callanan back in full, testimony that was fully supported by Callanan. Id., 134-36, 168.
Callanan is Spicer’s son, and he lived with Spicer and Montagnese during their relationship until he went away to college. He referred to Montagnese as his "father" on several occasions noting that Montagnese had "raised him" since he was several months old. Tr. 11/6, 168. Callanan confirmed that he did not inform Montagnese of his 2008 $42,000 payment to Spicer until 2010. Id., 166-67. Callanan testified credibly that it was his intention that the $42,000 payment would bring an end to the court proceedings between Spicer and Montagnese. Id., 167.
Montagnese’s testimony referred to Callanan as his "god son." Tr. 11/6, 130; Ex 15, p. 33.
DISCUSSION
The relationships between Spicer, Montagnese and Callanan are sometimes difficult to decipher, particularly where communications from Montagnese and/or Callanan to Spicer were few, if any, and far between. Montagnese testified he had not spoken to Spicer in over fifteen years, going back to before 2008. Tr. 11/6, 124, 136. Callanan testified he had not spoken to her for five years prior to his wedding in August 2016 at Montagnese’s property on West Hill Road, to which Spicer was invited. Id., 173. Apparently, but for unknown reasons, that occasion opened old wounds as Spicer’s Prejudgment Remedy Application and supporting affidavit directed at Montagnese were dated and filed in court less than three weeks later. DEs 100.31, 100.36.
The court has carefully considered the testimony at trial including a thorough review of the transcripts, the admitted exhibits and its contemporaneous notes. The court concludes that the evidence as to the actual intent of Callanan at the time he made the $42,000 payment to Spicer in 2008 is unclear, despite Callanan’s testimony to the effect that it was to pay off the stipulated judgment amount owed by Montagnese. Further, the court views, with some dismay, the scenario where Montagnese was actually jailed for non-payment when, in fact, Spicer had received an amount equal to or larger than what was owed under the stipulated agreement. The court concludes that Spicer has not met the burden of proof, preponderance of the evidence, to support her claim that Montagnese owes her any portion of the stipulated judgment entered into in the 2008 Housing Session matter. She has conceded receiving $42,000 from Callanan in 2008 and tellingly told Callanan, when he asked for some repayment at a later date, to get it from "your [expletive] father." Tr., 11/6, 165-66. As discussed earlier, Montagnese and Callanan agree that the former has reimbursed Callanan. In sum, and in a somewhat unorthodox manner, the amounts paid to Spicer while originating from Callanan were eventually financed by Montagnese, so that this court can only conclude the Housing Session stipulated agreement amount, plus interest, has been fully satisfied.
The court finds the issues in favor of the defendant.