Opinion
No. 07-5004195
May 29, 2009
MEMORANDUM OF DECISION
I. Statement of the Proceedings
In this action filed August 17, 2007, plaintiff sought a partition of real property held jointly by plaintiff Paul Sullivan and defendant Alissa Ross. The plaintiff's second amended complaint, filed March 31, 2008 expanded the claim against defendant Ross to nine counts: (1) breach of contract; (2) fraudulent misrepresentation; (3) unjust enrichment; (4) constructive trust; (5) resulting trust; (6) fraudulent endorsement of checks; (7) conversion; (8) theft; and (9) partition. A tenth count sought damages from Citi Group/Smith Barney, N.A. By agreement and by order of the court, separate trials were to be held with the action against defendant Ross (hereinafter the defendant) to proceed prior to the action against Citi Group/Smith Barney, N.A.
Michael J. McCabe, claiming to have an interest in the real property involved here, on motion, was made a party defendant, but took no part in the proceedings.
The attorney for the defendant was allowed to withdraw his appearance on March 24, 2008. The defendant, having appeared pro se on August 20, 2007, represented herself thereafter. The case between the plaintiff and the defendant was tried on February 10 and 13, 2009. Briefs were filed on February 27, 2009. The court is not bound to consider any claim of law not briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1985).
"[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) Aley v. Aley, 97 Conn.App. 850, 853 (2006). The right of self-representation, however, provides no license not to comply with the rules of procedural and substantive law. For this reason, facts not in evidence recited in defendant's brief cannot be considered by the court. Also, questions asked to a witness cannot be considered evidence.
II Factual Background
The plaintiff and the defendant first met in early 2005 in Norwalk, Connecticut. A relationship developed and they began to cohabitate later in the same year at 9 Bartlett Manor with a one-year lease and a monthly rental of $2,300, which plaintiff paid.
At the time the plaintiff was suffering from hepatitis C.
The parties had plans to marry and were interested in moving to Southeastern Connecticut. They visited the area on a number of occasions staying in motels and looking at real estate. They also investigated a chapel in Rhode Island where they might be married. Plaintiff paid all of the expenses involved in these trips.
On January 29, 2006, the plaintiff and defendant executed a purchase and sale contract for a house in the Mystic section of Groton. The defendant signed the agreement as Alissa A. Sullivan. On March 10, 2006, the sale was consummated with title to property at 139 Ridgewood Drive, Mystic, being conveyed to Paul Sullivan and Alissa Sullivan in survivorship. Although the parties were not then married, the property was acquired in survivorship and defendant took title as Alissa Sullivan because both parties were then contemplating marriage. The stated purchase price for the house was $235,000, with all expenses included, $239,350.78 was paid for the property.
The parties moved into the home on March 10, 2009. Plaintiff paid the entire purchase price for the home together with $1,500 in moving expenses. Both parties contributed furniture to the home. The plaintiff purchased new furniture including $4,600 for a leather couch. He also paid for painting the house, remodeling the kitchen and appliances.
During the period of cohabitation, plaintiff and defendant held themselves out as a married couple.
During this period of cohabitation, plaintiff paid for all household expenses, including food, joint medical and pharmaceutical needs and utilities associated with the household. Plaintiff also paid for defendant's expenses, including clothing.
Although she sought employment, at no time did defendant ever become employed.
She did not contribute money for any of the expenses or costs incidental to the cohabitation of the parties or the acquisition of the property.
In May 2006, plaintiff purchased a 1948 Cadillac for $15,000. He intended to restore the vehicle. This car was registered in the names of both plaintiff and defendant, defendant taking title as Alissa Ross Sullivan. The Cadillac was not in good condition with rust, mold and was in need of substantial repair.
Things did not remain amicable between plaintiff and defendant. There was domestic violence directed against the defendant by the plaintiff. The police were called to the home on a number of occasions. Restraining orders were issued against plaintiff preventing him from entering the dwelling.
When plaintiff violated the restraining order, he was incarcerated. The plaintiff was incarcerated from September 24, 2006 until he was released from confinement on December 26, 2007. The evidence indicates that he is still precluded from entering the residence by the terms of his release. There is nothing to indicate that there was anything inappropriate in the issuance of the restraining orders or that the court action which resulted in plaintiff's incarceration and removal from the home was in any way improper.
From May 1, 2006 through August 31, 2006, plaintiff maintained an account with defendant Citi Group/Smith Barney, N.A. All funds in this account were deposited by the plaintiff. The account included a checking account. The defendant signed a number of checks against this account withdrawing a total of $2,330.71.
III. Discussion 1.
The first count of the second amended complaint sets forth a claim by the plaintiff against the defendant for breach of contract. Plaintiff alleges that he and defendant entered into an oral contract whereby plaintiff would purchase a home and place the title in both names. Defendant would marry him, obtain gainful employment in order to contribute to the costs of purchasing and maintaining the joint household while plaintiff would participate in a plan of medical treatment for his hepatitis C. The property would be used for the mutual benefit and enjoyment of both parties during their contemplated marriage.
It is further alleged that plaintiff fully performed his obligations under the contract. It is also alleged that defendant breached her part of the contract by failing to obtain employment or contribute to the costs of running the household. It is also alleged that she engaged in a series of actions to deny the plaintiff the benefit and enjoyment of the property.
The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages. Sullivan v. Thorndike, 104 Conn.App. 297, 303 (2007).
The evidence clearly indicates that there was an agreement between the parties as alleged. Marriage was the main objective of the agreement with each party making contributions in accordance with their capabilities. That marriage was the object of the agreement as confirmed by the parties' description of defendant as "Sullivan" on the deed and other important papers. There was evidence that in the Mystic area the parties held themselves out as husband and wife and that their neighbors knew them as such.
Defendant's obligation under the agreement was to obtain employment and contribute to the household. Considering that the parties were contemplating a move to Southeastern Connecticut and were actively seeking a home in that area, it is reasonable to conclude that defendant's obligation to obtain employment did not commence until March 10, 2006, when residence in the area was established. There was no evidence as to what skills defendant possessed or what her qualifications for employment were. There was evidence that she did seek employment, but was unsuccessful.
Defendant did help maintain the home in Mystic and there were no indications that her employment was of immediate concern to the parties at the time. There is no evidence that defendant had any income or what other assets she may have had which would have allowed her to contribute financially to the household. The plaintiff did have money and the arrangement between the parties was that he would make all of the necessary and desirable financial contributions for the parties' home. When defendant became employed, it was understood that she would then contribute financially.
Shortly after the move to Mystic, domestic violence perpetrated by the plaintiff against the defendant began with at least two episodes being observed by a neighbor, Robert H. Secor. Restraining orders were issued and violated by plaintiff. There were clashes between the police and plaintiff. This conduct on the part of the plaintiff resulted in his incarceration for an extended period of time.
The allegations that the restraining orders, which resulted in plaintiff's expulsion from the property, were based on false accusations or that defendant engaged in any wanton, wilful or malicious actions to obtain this result and have not been proven by credible evidence.
Also, it has not been proven that plaintiff's failure to participate in a plan of medical treatment was caused by the defendant.
For plaintiff to recover on his claim of breach of contract, it was incumbent upon him to prove that he performed his obligations under the contract. The principal obligations under the contract were that he would purchase the house and other things, which he did. The essence of the agreement, however, was that the parties would marry and mutually benefit from their contributions. The agreement centered on an understanding that the parties would marry. Plaintiff's assaultive conduct toward the defendant, which resulted in physical injury to her and court orders removing him from the property made marriage highly improbable. Plaintiff's conduct towards the defendant is inconsistent with any claim that he has performed his obligations under the agreement.
It must then be found that plaintiff has failed to prove the breach of contract allegations in the first count.
The applicability of Connecticut General Statutes § 52-572b, the Heart Balm Act, has not been raised by either party. The statute does not appear to preclude this action since plaintiff is not seeking damages for "a broken heart or mortification of spirit," but for the transfer of property and money damages.
2
In the second count of the second amended complaint, the plaintiff has alleged fraudulent misrepresentation on the part of the defendant. It is claimed that defendant represented to plaintiff that she would marry him and that if he purchased a house and placed title in both names, the property would be used for their mutual benefit and enjoyment. It is further claimed that defendant promised that she would obtain employment and contribute financially to the running of the joint household while plaintiff engaged in a plan of treatment for his medical condition. It is also alleged that in reliance upon defendant's representations, plaintiff purchased the home and permitted defendant to be a nominal holder of an interest in the property and paid all costs of renovation to the property together with moving expenses as well as living expenses associated with the property.
Plaintiff further alleges that the representations made by the defendant were fraudulent and made for the sole and exclusive purpose of inducing the plaintiff to purchase the property in both names and that she never intended to obtain employment or contribute to the costs of the household. It is further alleged that defendant did not marry plaintiff and that she never intended to continue her relationship with him much less marry him.
"The essential elements of a cause of action in (fraudulent misrepresentation) are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury." (Internal quotation marks omitted.) Phillips v. Phillips, 101 Conn.App. 65, 71 (2007). Plaintiff as the party claiming fraudulent misrepresentation has the burden of proving the allegation. Duplissie v. Devine, 96 Conn.App. 673, 680 (2006). Additionally, plaintiff has the burden of proving the existence of the first three elements by a standard higher than the usual fair preponderance of the evidence. Plaintiff must prove these elements by clear and satisfactory or clear, precise and unequivocal evidence. Id., 681.
The evidence indicates that defendant did make the representations alleged and that plaintiff relied on such representations in the purchase of the house and other actions considered to be for the mutual benefit of the parties. The better evidence is to the effect that both parties made representations and took action with the understanding that they would be married and live happily ever after. This did not happen. As noted in connection with the first count, shortly after the parties established their residence in Mystic, the romance ended and plaintiff went to jail.
In his brief, plaintiff argued that the testimony in support of his claim is undisputed. However, when the credibility of the witness and the probative value of the testimony is considered, it must be concluded that plaintiff has not proven by clear and satisfactory proof that the representations as alleged made by defendant were false and known by her to be untrue at the time they were made.
Plaintiff, having failed to sustain the burden of proof in this matter, he cannot recover under the allegations of the second count.
3.
Plaintiff claims under the third count that the defendant, by taking title to the property in Mystic despite failing to contribute to the purchase and maintenance of the property, has been unjustly enriched. It is not in dispute that plaintiff paid the entire purchase price for the house, together with all closing costs. He also paid the cost of moving the parties' personal property to Mystic as well as painting of the house and other improvements. The defendant made no financial contributions towards the purchase of the property or the improvements. Defendant has continued to reside in the property since the date of the purchase to the time of trial.
In the third count, plaintiff is relying on the legal theory of unjust enrichment. This doctrine is based upon the principle that one should not be permitted to unjustly enrich one's self at the expense of another, but should be required to make restitution for property received, retained or appropriated. The obligation to do justice rests upon all persons. A right of recovery under the doctrine is essentially equitable, its basis being that in a given situation, it is contrary to equity and good conscience for one to retain the benefit which has come to such person at the expense of another. It is not necessary in order to create an obligation to make restitution or to compensate, that the party unjustly enriched should have been guilty of any tortious or fraudulent act. The question is: did he or she, to the detriment of someone else, obtain something of value to which he was not entitled? Franks v. Lockwood, 146 Conn. 273 (1959). The three basic requirements for the doctrine of unjust enrichment are: "(1) the defendant was benefitted; (2) the defendant unjustly failed to pay the plaintiff for the benefits; and (3) the failure of payment was to the plaintiff's detriment. All the facts in each case must be examined to determine whether the circumstances render it unjust, equitable or inequitable, conscionable or unconscionable to apply the doctrine." Gagne v. Vaccaro, 255 Conn. 390, 409 (2001).
Here, plaintiff paid the entire purchase price for the house in Mystic, together with all of the expenses incidental to the acquisition, maintenance and improvements to the property. Defendant paid nothing. Defendant was given an interest in the property in the contemplation that she and plaintiff would marry and make it their residence. This did not happen. In this situation, it would be contrary to equity and good conscience for her to retain the benefits which came to her at the expense of the plaintiff. National CSS, Inc. v. Stamford, 195 Conn. 587, 597 (1985). The essential allegations of the third count have been proven. Defendant has been unjustly enriched at the expense of the plaintiff as alleged. To reach this conclusion that the defendant has been unjustly enriched, it is not necessary to find that she has been guilty of any tortuous or fraudulent act. Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 665 (1976).
4.
In the fourth count of the second amended complaint, plaintiff has incorporated the essential allegations of the third count and claims that a constructive trust now exists on the property for the benefit of the plaintiff.
"A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee . . . The imposition of a constructive trust by equity is a remedial device designed 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." (Citations omitted.) Filosi v. Hawkins, 1 Conn.App. 634, 639 (1984).
Having determined that the defendant would be unjustly enriched if she were permitted to retain the property, it must further be found that she has an equitable duty to convey her interest in the property to the plaintiff. Consequently, a constructive trust exists on the property in favor of the plaintiff.
5.
In the fifth count, the plaintiff has spelled out a claim that a resulting trust exists on the property in his benefit.
"When the purchase money for property is paid by one and the legal title is taken in the name of another, a resulting trust ordinarily arises at once, by operation of law, in favor of the one paying the money . . . The parties seeking to impose the resulting trust need only show that the purchase money was paid by him and legal title was taken in another to gain the benefit of the presumption." (Citation omitted.) Farrah v. Farrah, 187 Conn. 495, 501 (1982).
In the case at bar, the undisputed evidence shows that plaintiff paid the entire purchase price for the property in Mystic. In this situation, there is a presumption of fact that a resulting trust in favor of the plaintiff has arisen. Extrinsic evidence, however, may indicate that the intent of the parties was otherwise. Where the nominal grantee, here the defendant, was a natural object of the pair of the purchase price's bounty, the presumption is rebutted because the law presumes a donative intent. Id., 500.
The presumption of a donative intent has been recognized in the case of a parent and child and husband and wife. This presumption has never been recognized between an unmarried couple. Wright v. Mallen, 94 Conn.App. 789, 792 (2006), cert. denied 278 Conn. 918 (2006). In this case, at the time of the conveyance, the parties were not married. Here, then, where plaintiff paid the entire purchase price, defendant received her interest in the real property as a gift in contemplation of marriage. A gift made in contemplation of marriage is not an absolute gift, but is conditioned upon a subsequent ceremonial marriage. Piccininni v. Hajus, 180 Conn. 369, 372 (1980). Under such circumstances, a donative intent on the part of the plaintiff here cannot be found.
The allegations of the fifth count have been proven. A resulting trust, in favor of the plaintiff, exists on the property as alleged.
6.
The sixth count alleges fraudulent endorsement of checks. In this count, plaintiff claims that he maintained a checking account with defendant Citi Group/Smith Barney, N.A. and that plaintiff was the only person authorized to withdraw funds from this account. It is further alleged that defendant without plaintiff's authority and with fraudulent intent drafted and endorsed checks withdrawing money from this account for her own purposes to the financial detriment of the plaintiff.
The essential elements of fraud are: "(1) A false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury." Phillips v. Phillips, supra, 101 Conn.App. 71. In addition, the plaintiff who has the burden of proof on this claim must prove the first three elements by a standard higher than the usual fair preponderance of the evidence. This standard is clear and satisfactory or clear, precise and unequivocal. Capp Industries v. Schoenberg, 104 Conn.App. 101 (2007).
The evidence is clear that plaintiff did have funds on deposit with Smith Barney from May 1, 2006 to August 31, 2006. He was authorized to withdraw funds from this account by check. It has also been proven that defendant did not deposit any funds into this account. There is no signature card or other bank document indicating that she was authorized to withdraw funds from this account. There is in evidence a letter from James P. Walsh, an officer of Smith Barney, dated August 27, 2007, which states that defendant had no authorization to write checks, withdraw money or make trades from the account.
Plaintiff testified that at some time, defendant ordered replacement checks, added her name to the face of the checks and fraudulently negotiated nine cheeks for a total of $2,330.71. The fraud claimed was defendant's ordering and writing these checks knowing that she had no authority to do so.
Nine checks drawn on the Smith Barney account are in evidence. All of these checks have printed in the upper left-hand corner the following:
Paul Sullivan Alissa Ross Sullivan 139 Ridgewood Dr. Mystic, CT 06355
Eight of these checks are signed by Alissa P. Sullivan. One check payable to Stoneware Clothing dated June 6, 2006 is signed by "Paul Sullivan." Plaintiff claims that he never purchased anything from Stoneware Clothing and the signature on the check is not his. By his testimony, plaintiff has inferred that the defendant forged his name to this check.
Six of the checks, in the total amount of $2,106.84 payable to Stoneware Clothing, were for the purchase of clothing for the defendant. There is no evidence that the defendant had any income at the time the checks were drawn or that she had any assets which would allow her to purchase the clothing herself. All of the evidence is to the contrary. She was unemployed and plaintiff was supplying all funds for the household. Most of the checks were written in the spring of 2006 when the parties were living amicably and still had plans to marry. The Cadillac was purchased in May 2006 and registered in both names.
It is logical to conclude that all of the clothing purchased by the checks was brought into the home shared with plaintiff and was being worn by defendant. There is no evidence that she had any other place to store the clothing and it is illogical that she would do so. Yet, plaintiff who was cohabiting with and in close daily contact with the defendant testified that he was unaware of the purchases. This testimony is not credible and is unworthy of belief.
The checks were written during the period May 5, 2006 to August 6, 2006. Three of the checks were written in May and were deposited in that month. Certainly, plaintiff would have received statements from the bank reflecting the transactions, now questioned, in June or July. The last check was written on August 6, 2006. Even if the plaintiff somehow was unaware that defendant had purchased the clothing, it is logical to conclude that he would have received monthly bank statements which would have reflected the purchases. If defendant were truly unauthorized to use the account, he could have taken steps to rectify the situation before the last check was written in August. The letter from James P. Walsh was written over one year after the last check and well after the contemplation of marriage had ended.
The plaintiff has alleged that he was the sole signatory on the Smith Barney account and that the defendant was not authorized to sign or negotiate any such checks. The letter from Mr. Walsh in evidence confirmed that defendant was never formally authorized on the records of Smith Barney to draw funds from such account. Yet, her name was printed on the checks and it is inconceivable that plaintiff was unaware that she was writing checks against the account. Whatever his arrangement with Smith Barney was, it cannot be found that he did not acquiesce in defendant writing checks against this count.
In the sixth count, plaintiff has alleged fraud. He has alleged that he did not authorize defendant to negotiate the checks and that without her authority and with fraudulent intent defendant did so. The plaintiff has the burden of proving the essential allegations of the sixth count by clear and satisfactory evidence. Considering the evidence and the logical inferences which may be drawn from such evidence, it cannot be found that the plaintiff has sustained the burden of proof on the claims raised in the sixth account.
7.
The seventh count incorporates the allegations of the sixth count and claims that in exercising the right of ownership over the Smith Barney account and withdrawing funds from such account without authority of the plaintiff, defendant converted the property of plaintiff.
"The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43 (2000).
The only issue of fact here is whether or not it has been proven that defendant had no authority from plaintiff to draw funds from the Smith Barney account. Plaintiff claims that she did not have such authority and by drawing checks in the amount of $2,330.71 from such account for her own purposes, she converted the funds to her detriment.
In connection with the allegations of the sixth count, it was found that plaintiff had failed to sustain the burden of proof on the claim of lack of authority. For plaintiff to recover under the allegations of the sixth count, which alleges fraud, plaintiff was held to a higher standard of proof than that required for conversion. For the tort of conversion, plaintiff was required to prove the allegation by the usual civil standard, a fair preponderance of the evidence.
Although the burden of proof is lower on the seventh count, for reasons above stated, it cannot be found that plaintiff has proven by a fair preponderance of the evidence that he did not authorize defendant to draw checks from the Smith Barney account. Plaintiff cannot recover under the allegations of the seventh count.
8.
The eighth count alleges statutory theft in that without authority, the defendant intentionally sold or otherwise conveyed to unknown third parties items of personal property owned by the plaintiff and that she retained the proceeds of such sales for her own personal use.
"Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Citations omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Company, 279 Conn. 745, 771 (2006).
In the eighth count, plaintiff is claiming that defendant sold certain items of his personal property without his permission and retained the proceeds of the sales. The items in question included the 1948 Cadillac, golf clubs, a jewelry box, watches, gold rings, tools, paintings, military memorabilia, family pictures, clothing, shoes and other personal items.
As previously noted, the parties moved into the house in Mystic on March 10, 2006. In May, the Cadillac was purchased and registered in both names. The parties continued to reside in the house until difficulties arose and restraining orders were issued preventing plaintiff from entering the residence. As a result of plaintiff's violating the restraining orders, he was incarcerated from September 2006 through December 2007.
The personal property which is the subject of the claim under the eighth count, including the Cadillac, were left on the property after plaintiff was restrained from entering and during his incarceration. The uncontroverted evidence indicates that defendant did assume control over these items and disposed of them. There is no clear evidence that the items were sold by the defendant and, if sold, for how much. But, under any standard of proof, preponderance of the evidence or clear and convincing proof, it has been established that defendant, with intent to appropriate plaintiff's personal property to herself took such property and disposed of it so as to permanently deprive plaintiff of such property. Defendant's actions in appropriating the property were wrongful. There is nothing to infer that she could claim any right to dispose of the property. At the time, her relationship with plaintiff was no longer amicable and the mutual contemplation of marriage had ceased to exist. The property taken includes the 1948 Cadillac, golf clubs, jewelry box, watches, a gold ring, tools, paintings, plaintiff's father's military memorabilia, family pictures, clothing, shoes and personal papers.
Plaintiff is entitled to fair and just damages for this tort, but as a claimant seeking damages he bears the burden of proving, with reasonable certainty, the damages sustained as a result of defendant's actions. The measure of damages would be the fair market value of the items at the time defendant appropriated them. Adkins v. Guerin, judicial district of New Haven at New Haven, Docket Number CV-04-0487475 (March 29, 2006); Bernardino v. Semrau, judicial district of New Haven at Meriden, Docket Number CV-97-259624 (October 19, 1998).
Defendant had a one-half interest in the 1948 Cadillac by virtue of the joint registration. The vehicle was purchased in 2006 for $15,000. There was no other evidence as to the market value of the vehicle or its book value if such existed. The vehicle could not have been in good condition at the time of purchase because plaintiff testified that he intended to restore it. The testimony of Robert H. Secor was that the Cadillac was in bad condition. It had not been driven in some time, the engine was rusty, the interior was covered with mold and new upholstery was needed. Plaintiff testified the defendant sold the vehicle for $3,000, but there is no evidence to indicate how he acquired this information. There is no clear evidence as to the market value of the Cadillac, in the condition that it was then in, at the time defendant appropriated it.
There was no evidence as to the value of some of the more personal items, such as clothing and pictures. The only evidence as to the value of the more expensive items was plaintiff's testimony. For example, he testified that the ring was worth $3,000 and the tools over $2,000. He also testified that the golf clubs were worth $4,500. Plaintiff's testimony as to the value of these items was not worthy of belief. The values he testified to appeared to be greatly excessive. There was considerable animosity between himself and the defendant and his testimony as to certain other matters was not entirely credible.
The evidence as to the amount of damages is insufficient. Plaintiff, however, is entitled to more than nominal damages. He has suffered at least $1,000 in damages and that amount is found to be just and fair. Under the provisions of Connecticut General Statutes § 52-564, plaintiff is entitled to treble damages amounting to $3,000.
9.
The ninth count of the second amended complaint is an action for partition of the real property at 139 Ridgewood Drive, to which both parties hold title. Plaintiff seeks this relief only if a constructive or resulting trust is not found under the fourth and fifth counts of the complaint. Since the issues on these counts have been found in favor of plaintiff, it will not be necessary to proceed further on the ninth count.
Conclusion
Having found that plaintiff has failed to prove the allegations of the first and second counts, he cannot recover on such counts. Plaintiff has proven the allegations of count three alleging unjust enrichment. Damages on such count, however, are covered by judgment on the fourth and fifth counts. Plaintiff has proven the allegations of the fourth and fifth counts and a constructive trust and a resulting trust are imposed on the property. The allegations of the sixth and seventh counts have not been proven and plaintiff cannot recover on the allegations of such counts. The allegations of the eighth count claiming theft have been proven. Damages are found to be $1,000. Under the provisions of § 52-564, plaintiff is entitled to treble damages, or $3,000.
Accordingly, judgment is rendered in favor of the defendant on counts one, two, six and seven. Judgment is rendered in favor of the plaintiff on the third, fourth and fifth counts and a constructive trust and a resulting trust are imposed upon the real property in question. Judgment is also rendered in favor of the plaintiff on the eighth count that he should recover damages in the amount of $3,000 together with costs.