Opinion
No. CV-09 502 38 79
February 8, 2010
MEMORANDUM OF DECISION
The plaintiff and the defendant maintained a boyfriend-girlfriend relationship for many years. During that relationship, property was purchased located at 49 Zurko Farms Road in Milford, CT. The property was purchased in joint names and the plaintiff's name was on the mortgage and on the mortgage note. The relationship between the parties deteriorated, and, on February 29, 2008, they went to the Milford Town Hall, executed an agreement and had the document notarized. Insofar as here relevant, the document provided that the defendant would have use and possession of the property, and after a certain date, the plaintiff would not be allowed to enter the property without the defendant's consent. The document also provided that the defendant would pay the mortgage payment each month directly to the plaintiff and, if payment is not received, the plaintiff has the "right to charge an annual interest of 12% on any remaining balance." The document also provided that the defendant, at her expense, agreed to file for a partition of the property no later than a certain date.
The defendant made the mortgage payments up until June of 2008 and then discontinued making those payments for approximately a year and a half and then resumed making those payments. The plaintiff also did file a partition action but subsequently withdrew that action. The evidence produced did not explain why the mortgage payments were stopped or why the partition action was withdrawn.
The plaintiff instituted the present action seeking to recover monetary damages for the mortgage payments that were not made by the defendant together with 12% interest on the amount unpaid. The plaintiff also seeks to recover attorneys fees for the collection of those amounts pursuant to a provision in the contract which states that the defendant would be responsible "for all collection and legal costs" if payments were not made. The plaintiff also seeks to recover damages for the re-institution of the partition action and the prosecution of that case.
The defendant admits that she signed the document and that she did not make the mortgage payments as claimed by the plaintiff. The defendant also admits that the partition action was withdrawn.
The defendant asserts various special defenses including: (1) that she was induced to enter the agreement by affirmative and fraudulent misrepresentations; (2) that she entered the contract under duress and did not execute it voluntarily; (3) that she entered the contract as a result of undue influence; (4) that the plaintiff breached the contract by not giving her exclusive use of the property and (5) that the contract is unconscionable and violates public policy as the contract is one-sided in favor of the plaintiff. There is no counterclaim asserted by the defendant nor is there any tort action on behalf of the defendant relating to the claimed abusive acts by the plaintiff to which the defendant testified.
There is no credible evidence to support a claim that the plaintiff made affirmative and fraudulent misrepresentations to the defendant at the time the contract was signed by the parties.
"For a party to demonstrate duress, it must prove (1) a wrongful act or threat, (2) that left the victim no reasonable alternative, and (3) to which the victim in fact acceded, and that (4) resulting transaction was unfair to the victim . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for (the party) to exercise his own free will." (Internal quotation marks and citations omitted). Noble v. White, 66 Conn.App. 54, 59 (2001); see also Jenks v. Jenks, 232 Conn. 750 (1995); and, McCarthy v. Wladyslawa, 84 Conn. 377, 381-82 (1911).
"Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control . . . It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; (4) a result indicating undue influence." (Internal quotation marks and citations omitted). Pickman v. Pickman, 6 Conn.App. 271, 275 (1986).
The defendant testified that she executed the contract before a notary public at the Town Hall in Milford where both parties drove separately for that purpose. The defendant further testified as to the history of physical and mental, emotional and psychological abuse she claimed to have suffered as a result of the claimed actions of the plaintiff. The defendant also testified that she did not read the contract prior to signing it and that her primary concern was to get the plaintiff to leave the house. The plaintiff testified, however, that she was given the opportunity to read the document and to consult family members who were attorneys.
The defendant was aware prior to signing the document that she was obtaining exclusive use of the house and, in return for that benefit, she would be paying the mortgage payments until a certain time. While the defendant testified that she felt that she had no alternative but to sign the document, that decision was not the result of duress or undue influence by the plaintiff but rather, was the result of importance the defendant placed upon getting the plaintiff out of the jointly owned property so that she would have the exclusive use of that property.
The defendant also asserts that the plaintiff himself breached the agreement by not providing her with exclusive use of the property. Such a claim arises from three visits to the property by the plaintiff upon which there is conflicting testimony. The plaintiff testified that he went to the property on three occasions to pick up the mortgage payments and that he was there only for that purpose and stayed only a short time. The defendant claims that the plaintiff stayed overnight, on three occasions when he showed up intoxicated. The defendant also testified as to the claimed abuse to which she was subjected on those occasions. However there was no testimony that the defendant refused to let the plaintiff in the house, or that she called the police or that she went to stay with family members. While the plaintiff's testimony might give rise to un-asserted tort claims, it does not involve a claim of a breach of contract by not providing exclusive use of the property.
As to the claim that the agreement was one sided in favor of the plaintiff, it did provide the defendant what she wanted most, i.e., exclusive use of jointly owned property. The defendant also admits that she had the opportunity to have the document reviewed by family members who were attorney. The agreement also provides other benefits to the defendant such as the required payments by the plaintiff to cover insurance costs. The court does not find that agreement is unconscionable.
Accordingly, the court finds in favor of the plaintiff on the issues raised by the special defenses asserted by the defendant.
The plaintiff asserts that the defendant breached the agreement by withdrawing the partition action and claims damages because of the attorney fees incurred in the re-institution of that action and for the prosecution of that action. However, the agreement provides that the defendant only agreed to "file her partition from Gordon Zippi in the Milford Connecticut court by no later than Monday, March 3, 2008." The agreement was not drafted with the assistance of an attorney and does not specifically require the defendant to prosecute that case beyond the filing of the action. There was no evidence submitted as to why the action was withdrawn. Accordingly, the court awards no damages resulting from the withdrawal of that action.
The plaintiff is however entitled to damages arising from the failure of the defendant to pay the mortgage payments and finds the damages, including the 12% interest, to be in the amount of $36,073.40 (see exhibit 2). In addition the plaintiff is entitled to attorney fees relating to Attorney Framularo in the amount of $4,011.00 including costs (see exhibit 5) and attorney Becher in the amount of $4,483.00, including costs (see exhibit 6; some adjustment has been made for future anticipated time).
Accordingly, judgment may enter in favor of the plaintiff against the defendant in the amount of $44,628.20.