Opinion
No. 398167
September 2, 2003
MEMORANDUM OF DECISION
The plaintiff, Nancy Weicker, has applied for a prejudgment remedy in this pending civil action. On November 11, 2002, the plaintiff brought this civil action in eight counts alleging breach of contract, conversion, civil theft, a claim for an equitable interest in certain real estate, unjust enrichment, quantum meruit, and intentional and negligent infliction of emotional distress.
In the first count of her complaint, which sounds in breach of contract, the plaintiff alleges the following. The plaintiff and the defendant, Gerry Granatowski, began cohabiting in 1995. In 1997, they bought a home in Cheshire, Conn., to which the plaintiff contributed a substantial down payment. The couple subsequently sold the Cheshire home, but continued living together in a non-marital relationship in Guilford, Conn. During her relationship with the defendant, the plaintiff contributed $17,500 to help resolve certain legal problems he encountered; and contributed $20,000 toward home improvements, furnishings, appliances, clothing and food. The plaintiff also maintained the house by cooking, laundering and grocery shopping. "By virtue of express and implicit conduct of the parties during their long-standing relationship, in addition to the contributions made by the plaintiff during the relationship, it was understood between the parties that [the plaintiff] was the owner of a fifty (50%) per cent interest with the defendant in all of the personal property acquired during the relationship." The defendant, she claims, "unilaterally terminated" their relationship in April 2002 and has failed to recognize the plaintiff's share of the personal property in the Guilford home.
In the second count of her complaint, the plaintiff alleges that the defendant's assumption of ownership over the personal property amounts to conversion. The Third count alleges that the defendant's actions constitute civil theft, within the ambit of General Statutes § 52-564.
General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
In the fourth count of her complaint, the plaintiff alleges that she "has an equitable interest in the [Guilford] House by virtue of the ten (10) year relationship of the parties, in addition to the labor, services and materials [she] rendered which have substantially increased the value of the House."
The fifth count alleges that as a result of the plaintiff's expenditures and efforts, and the defendant's failure to recognize her interest in the personal and real property, the defendant has been unjustly enriched.
The sixth count alleges that "[p]ursuant to the doctrine of quantum meruit, the plaintiff is entitled to recover on an equitable basis for the monies, services, materials and other contributions she made to the defendant during the ten (10) year relationship." The remaining counts allege intentional and negligent infliction of emotional distress by the defendant.
The defendant has filed an answer, special defenses and a counterclaim. In his answer, the defendant denies the material allegations of the plaintiff's complaint. In his second special defense, the defendant alleges that "[i]n connection with the allegations for damages relating to the sale of the Cheshire property and monies expended to help resolves [sic] the defendant's legal matters, the plaintiff waived any and all such claims when she knowingly and voluntarily agreed to split the proceeds from the sale of the Cheshire property." In addition, the defendant alleges that he satisfied any financial obligations to plaintiff when the proceeds from the sale of the Cheshire home were split evenly between the parties.
In his counterclaim, the defendant alleges that the plaintiff agreed to pay the defendant $1,000 per month rent during her occupancy of the Guilford property and, in addition would pay one-half of the utilities and expenses for groceries. The defendant alleges that although the plaintiff occupied the Guilford property she failed to perform these obligations. These allegations are repeated in each of the three counts of the counterclaim, which sounds in breach of contract, unjust enrichment and quantum meruit, respectively.
In April 2003, the plaintiff filed an application seeking a prejudgment remedy of $100,000 and seeking to replevy certain items of personal property located in the Guilford home. On May 12, 2003, the court heard the application. Only the plaintiff and the defendant testified.
General Statutes § 52-278d (a) provides in relevant part that a hearing on a prejudgment remedy "shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or modified by the court . . ."
"The plaintiff does not have to establish that [s]he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . . Probable cause for purposes of the PJR statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false." (Citation omitted; internal quotation marks omitted.) Pischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994). "In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim . . . [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiff's claim by weighing probabilities . . . Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action." (Citations omitted; internal quotation marks omitted.) Tyler v. Schnabel, 34 Conn. App. 216, 219-20, 641 A.2d 388 (1994).
The court finds the following facts. The plaintiff and the defendant met and began dating in 1992. Some time thereafter, they stopped dating, but resumed a romantic relationship in 1994.
In 1995, the plaintiff lost her job and could not afford to both own and occupy her condominium unit in Shelton, Conn. The parties agreed that the plaintiff would move into the defendant's apartment in Branford, Conn. and rent the condo in Shelton to cover the mortgage. When she became re-employed, the plaintiff would save her money, which would be used to purchase a new home for the couple. During that time, the defendant paid the household expenses. Through this arrangement the plaintiff saved over $30,000.
In August 1997, the couple purchased a home in Cheshire, Conn. The plaintiff contributed significantly to the purchase of this home. At the time of this purchase, the defendant had recently been declared bankrupt. Therefore the mortgage and title to the home were in only the plaintiff's name. Subsequently, both parties were named on the title. For most of their time in the Cheshire home, the couple shared expenses equally. The plaintiff purchased over $4,300 in furniture for this home.
In the spring of 1999, the defendant discharged a firearm and struck his neighbor's house. The defendant was arrested and ultimately convicted of a misdemeanor. The plaintiff contributed $17,000 toward the defendant's legal fees. Also, in 1999, the plaintiff became very ill and disabled from work. She applied for and received workers' compensation total disability benefits and also applied for social security disability payments. She has not worked outside the home since.
In 2000 the parties sold their home in Cheshire and received a net sum of $50,000 at the closing. They divided these proceeds evenly. About six months prior to the sale of the house, the parties began to occupy separate bedrooms. At that time the defendant began paying virtually all household expenses as well as the mortgage.
Prior to the closing, the defendant had made a down payment on a home in Guilford, Conn. The purchase price of this home was $268,000. On the same day that the parties sold their Cheshire home, the defendant purchased the Guilford home, taking title in his name alone. On cross-examination the plaintiff stated that when she moved into the Guilford home she was sick, out of work and did not "have the means to agree to pay" the expenses associated with the Guilford home. The parties agreed that the plaintiff was to contribute to the household expenses as she received her disability checks.
When the parties moved into the Guilford home they continued occupying separate bedrooms. The defendant had paid the moving expenses, the mortgage of $2,800 plus taxes per month the first year and $2,200 plus taxes per month the second year, and generally most of the household expenses. The plaintiff spent about $16,748 of her money on furnishings, performed all of the household chores and did the food shopping using her ATM card. For the most part, however, the defendant supported the plaintiff for over two years while they lived in Guilford. The plaintiff did not contribute to the mortgage. In March or April 2002, the defendant put the plaintiff out of the house. The parties never married and never shared a checking or savings account.
"ATM" is an abbreviation for automatic teller machine. Merriam-Webster Dictionary.
The plaintiff asserts that she is entitled to a prejudgment remedy to secure the sum of $100,000 because the facts of her case are analogous to those in Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987). The court disagrees.
"Although other jurisdictions may recognize common-law marriage or accord legal consequences to informal marriage relationships, Connecticut definitely does not . . . It follows that although two persons cohabit and conduct themselves as a married couple, our law neither grants to nor imposes upon them marital status." (Citation omitted.) McAnerney v. McAnerney, 165 Conn. 277, 285, 334 A.2d 437 (1973). "[C]ohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties." Boland v. Catalano, supra, 202 Conn. 339.
In Boland, the parties began cohabiting in the defendant's home in a romantic relationship in 1971. "In 1972 they became interested in building a new home on approximately twenty-seven wooded acres of land in the town of New Milford. Title to this realty was taken in the name of the defendant, who explained to the plaintiff `that it was easier to place it in his name because he had equity in another house and because they were not married.' While the defendant was solely liable for the mortgage loan on the New Milford property in the amount of $29,500, as well as on a loan from his mother of $13,320 obtained for the purchase of the property, the plaintiff helped to plan, build and improve the house into which the parties moved, and also cleared and landscaped portions of the grounds. The plaintiff [did] not [contribute] any funds toward [purchasing] the real estate or towards constructing the house.
"During their years together, the parties were regarded by some members of the public as husband and wife. During the period of their cohabitation, the plaintiff earned approximately $50,000, which she turned over to the defendant. The defendant, in turn, provided the plaintiff with an allowance, which she used for groceries, and for personal and household expenses. Although the parties maintained separate bank and charge accounts and filed separate income tax returns, the defendant used the plaintiff's bank account, and each had signatory power to use the other's charge accounts. By agreement the plaintiff was responsible for the housework, grocery shopping, cooking and landscaping, while the defendant ran his automotive business.
"In 1980, when the parties' relationship ended, the plaintiff brought an action in four counts claiming: (1) a contractual right to a one half share of all the personalty accumulated during their relationship; (2) an equitable interest in the New Milford realty; (3) a right to restitution based on quantum meruit; and (4) complete ownership of her own property." Id., 334-36. An attorney trial referee found that the plaintiff was entitled to recover only some furniture she had purchased or received as gifts. Id., 336. The court rendered judgment on the referee's report and the plaintiff appealed. Id.
On appeal, the plaintiff claimed that the referee's conclusions were contrary to the facts found. "In his supplemental report the attorney trial referee found [as an] `ultimate fact' [that `t]he parties agreed implicitly by their conduct and/or words to share their earnings and the fruits of their joint labor.'" Id. The Supreme Court observed that "[a] reasonable conclusion logically following from th[is] . . . finding is that the parties created a contract to share their earnings and property accumulated during the relationship." Id., 337. "Despite the finding of an implied contract . . . the referee effectively awarded all of the property acquired during the cohabitation to the defendant, except for a few items of furniture as mentioned. In his memorandum the referee concluded that `[t]he parties did not express the mutual assent necessary to form an express contact . . . Similarly, the evidence as to the circumstances and conduct of the parties falls short of a standard required by Connecticut for an implied contract between the parties regarding the disposition of property.'" Id.
The Supreme Court held that the attorney trial referee's finding that the parties implicitly agreed to share their earnings and fruits of their joint labor contradicted his conclusion that there was no implied contract. Id., 338. The court then enunciated the principles that have since governed the legal relationship of unmarried persons living together. The court adopted the holding of Marvin v. Marvin, 18 Cal.3d 660, 665, 557 P.2d 106, 134 Cal.Rptr. 815 (1976), in which the California Supreme Court held that "[t]he courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services . . . In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties." (Internal quotation marks omitted.) Boland v. Catalano, supra, 202 Conn. 340-41. In addition, the Boland court expressly ruled, in adopting Marvin, that the court may employ "equitable remedies" when warranted by the facts of the case. Id., 341. The court observed however, that "cohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties . . . The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit without entering a valid marriage relationship." (Internal quotation marks omitted.) Id., 339; see also Herring v. Daniels, 70 Conn. App. 649, 655, 805 A.2d 718 (2002).
Here, the court cannot find that there is probable cause that the parties agreed, expressly or implicitly, that the plaintiff would have an interest in the Guilford property. It is clear that initially the parties' relationship was based both on romance and on each party's capacity to contribute money to the relationship. As the parties prepared to move from the Cheshire home, however, the romantic aspect of their relationship, if not entirely ended, was certainly waning. The plaintiff did not controvert the defendant's testimony that six months before they sold the Cheshire home, he and the plaintiff began occupying separate bedrooms.
Moreover, the arrangement in the Guilford home was unlike the arrangement in the Cheshire home. The plaintiff initially held sole title to the Cheshire property, and subsequently added the defendant's name to the deed. The defendant holds sole title to the Guilford home and the plaintiff has offered no evidence to show that during her two years at that residence the defendant attempted to include her name on the title to that property. That the plaintiff used $16,748 of her own money to furnish the Guilford home, by itself, is insufficient to show that the defendant intended to offer the plaintiff an interest in the home.
The court recognizes that the fact that title is held in the name of only one of the parties is not dispositive. See Boland v. Catalano, supra, 202 Conn. 336-38; see also Herring v. Daniels, supra, 70 Conn. App. 659-60.
Finally, the court is persuaded that when the parties equally divided the proceeds from the sale of the Cheshire home, they settled their financial obligations to that date. Thereafter, the plaintiff provided no significant financial contribution to the declining relationship or to the maintenance of the household except to purchase food and household supplies.
What is left is that the parties carried on a platonic relationship while living in the Guilford home for two years; the defendant paid primarily all of the expenses, with the plaintiff contributing only furniture and food supplies. From the evidence presented, the court does not find probable cause that the pates expressly or implicitly agreed that the plaintiff would have an interest in the Guilford property, nor can the court divine an equitable basis for such an interest. Even if the court were to find that the parties carried on a romantic relationship while in the Guilford home, as observed supra, "cohabitation alone does not create any contractual relationship or . . . impose other legal duties upon the parties." Boland v. Catalano, supra, 202 Conn. 339.
The court, of course, recognizes that the plaintiff has invested some money into furnishing the Guilford home and would generally be entitled to a prejudgment writ of replevin. See Robinson v. Avery, 135 Conn. 517, 66 A.2d 593 (1949); International Harvester Credit Corp. v. Gillis, 4 Conn. App. 510, 512-13, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985) (replevin may be granted where probable cause found to sustain plaintiff's claim). Under General Statutes § 52-278d (d), (e), however, the plaintiff would be required to post a bond to protect any interest the defendant might have in the furniture. Dunleavey v. Paris Ceramics USA, Inc., 47 Conn. Sup. 565, 580, 819 A.2d 945 (2003) (PJR applicants must file bond). From the evidence presented, the court infers that the plaintiff would be unable to post such a bond and, hence, such a prejudgment remedy would be illusory.
Accordingly, the court finds that there is probable cause to show that the plaintiff purchased some furniture for the Guilford home, and a judgment in the amount of $20,000.00, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff.
A prejudgment remedy in the amount of $20,000 may issue without bond.
BY THE COURT
Bruce L. Levin Judge of the Superior Court