Lee A. Chenette v. Theresa A. Battistrada (2010)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE:

This case evolves out of a failed relationship between the plaintiff and the defendant.   The plaintiff lived at his house in Windsor Locks, Connecticut, and the defendant lived in her house at 91 Yale Avenue in Middlebury, Connecticut.   The couple had been dating for a period of time and then approximately in the Spring of 2005 became engaged to be married.   The plaintiff (hereinafter also “Chenette”) moved in with the defendant (hereinafter also “Battistrada”) at 91 Yale Avenue in Middlebury in the early Spring of 2005.   On May 14, 2005 there was a fire in the plaintiff's Windsor Locks house.   The plaintiff testified that he brought certain pieces of personal property that were in the garage as well as other personal property to 91 Yale Avenue at or about the time that he moved in with the defendant.   When the plaintiff had his Windsor Locks home restored by his insurance carrier, Liberty Mutual Insurance Company, (hereinafter also “Liberty Mutual”) he sold that property and at approximately the same period of time the defendant sold her property at 91 Yale Avenue, and they used these funds to purchase another house at 79 Watertown Avenue in Middlebury for $425,000.   They were together for approximately 2 1/2 years when on September 24, 2007, there was an intense dispute between the plaintiff and the defendant as a result of which the plaintiff vacated the premises at 79 Watertown Avenue.   Even though the house was in joint names, once the plaintiff moved out, he shortly thereafter stopped paying the mortgage and the bills concerning that house which, eventually, was lost under foreclosure.

The plaintiff claims that the defendant held onto personal property of his and refused to allow him onto the premises or retrieve his personal property.   He was told not to come back to the property on Watertown Avenue, and when he appealed to the police in Middlebury, according to him, he was told that any attempt to go back to the property could result in his arrest.   He did not originally testify that he had gone back for dinner at the invitation of the defendant on a few occasions apparently in an attempt by the parties to reconcile which reconciliation did not take place.   Because the plaintiff believed that the defendant was depriving him of his personal property, by complaint dated September 16, 2008, he brought suit against the defendant.   The first count is in conversion, the second count is in civil theft under C.G.S. § 52-564, the third count is in breach of contract, which count was eventually withdrawn by the plaintiff, the fourth count is in unjust enrichment and the fifth count claims Irreparable Harm.

The Court trial commenced on December 8, 2009 and lasted a total of 14 days (despite the plaintiff's prediction of a two-day trial) concluding after various delays on January 28, 2010.   Briefs were filed after obtaining transcripts, the last brief being dated June 22, 2010.

STANDARD OF REVIEW:

“The plaintiff in a civil case sustains his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true.”  Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968).   This is also known as proof by a preponderance of the evidence.

In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.

Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.

The burden is on the plaintiff to prove his allegations by a preponderance of the evidence, and the defendants have the burden of proving their allegations in their special defenses by a preponderance of the evidence.

CREDIBILITY:

Both the plaintiff and the defendant seem to believe what they were saying in testimony.   However, Chenette testified originally that he had lost a Kirby vacuum cleaner from his Windsor Locks home during the fire, and a Kirby vacuum cleaner was replaced by Liberty Mutual.   However, in testimony on January 7, 2010, Chenette finally admitted that he had not told Liberty Mutual that he did not lose a Kirby vacuum cleaner in the fire, and that he had, in fact, accepted the product, a new Kirby vacuum cleaner.¹  This was an admission that he had cheated Liberty Mutual.

On the other hand Battistrada, on cross examination by Attorney Robert J. Hale, Jr. representing Chenette, stated that the first time she knew what Chenette wanted returned was when suit was brought in September 2008.   However, she was confronted by Attorney Hale with plaintiff's Exhibit 108 which is an email from Chenette to Battistrada dated January 15, 2008 approximately nine months prior to the institution of suit, which email described in detail what it was in the way of personal property/cash that Chenette wanted from her.   On the issue of credibility, the Court has to come down in favor of Battistrada, but only slightly.   She may have forgotten about the email of January 15, 2008, but Chenette first did not tell the truth about the Kirby vacuum cleaner and Liberty Mutual in the initial stages of his testimony, and then on January 7, 2010 finally admitted that he had cheated Liberty Mutual.   He not only lied to the Court but committed a crime the facts of which he admitted.   The Court does not believe in the initial stages that he forgot that he had cheated Liberty Mutual, and, therefore, as stated, gives a slight edge to Battistrada on the issue of credibility.

ISSUES AND FINDINGS:

1. Did Battistrada commit conversion or theft?

The short answer is No.

From the totality of the evidence, the Court concludes that many of the items about which there is a dispute between the parties were purchased with joint funds.   Chenette testified that his contribution to the joint funds was 59% and Battistrada's was 41%.   Battistrada, on the other hand, testified that she contributed 60% to the joint funds and Chenette contributed only 40%.   Although Chenette presented bank statements to back up his claim and Battistrada did not but did testify as to her knowledge, the Court took the average of each side, the average of 59% and 41% and the average of 60% and 40%.   Then, the Court took the average of the average of each side and has concluded that they each contributed approximately 50%.

One of the elements of the tort of conversion and the tort of theft is intent to deprive someone of their property.   Battistrada testified that the reason she didn't return everything is because she believed that she had contributed 60% of the contributions to the joint accounts, but even at 50%, she testified that she felt that she had a right to hold onto the property because she was the rightful owner of 60% or even 50% of the property.   Accordingly, the Court finds, based upon her testimony and the testimony of Chenette that since she believed that she owned at least 50% and possibly 60% of the property there was no intent to deprive Chenette of the property for which he only had 50% or even 59%.   Accordingly, the Court concludes that based upon a 50% ownership by each party to the personal party, there was no intent to deprive the plaintiff of his property because she believed that she owned at least 50% of the property.   Without the requisite intent, a critical element is lacking in both the torts of conversion and statutory theft.

2. Has the plaintiff proven irreparable harm?

The short answer is No.

Chenette testified that he had eventually received some personal property such as his father's photographs and other items belonging to his father, so the only remedy at this point would be an award of money damages.   Accordingly, Chenette has an adequate remedy at law, and there is no irreparable harm as to the items of a personal nature which have been returned to him.

3. Has the plaintiff proven unjust enrichment?

The short answer is Yes.

This issue is a little more complex.   Either party would be unjustly enriched if said party were allowed to keep all of the personal property in dispute.   At the present time Battistrada has possession of all of the property, yet 50% of that property belongs to Chenette.   Accordingly, Battistrada has been unjustly enriched to 50% of the property.   This Court, based upon the totality of the evidence, finds that the plaintiff has proven unjust enrichment.   This will be resolved hereafter.

4. It is true that some of the personal property the plaintiff brought to the relationship in Middlebury came from his home in Windsor Locks.   However, some of that personal property has been returned.   Those items of his which are in possession of Battistrada are offset by the plaintiff's use of her furniture and other personal property during the 2 1/2 years that the parties were together, so the Court will not order at this point the return of what is his personal property.²

5. How should the Court divide the property which was purchased with joint funds.

a. As to the value of the property, the Court accepts the valuation of the defendant's expert witness, who was qualified as an expert witness on personal property by the Court, Regina Madigan.   The plaintiff chose to have Mr. Chenette testify as his expert witness because under case law he is entitled to evaluate his own real estate and his own personal property.   This has a certain weakness because of the Court's conclusion that he only owns 50% of the disputed property.   However, there were certain flaws in his evaluation of the personal property items as of September 24, 2007 when he left the premises on Watertown Avenue permanently, i.e., relying on what people are asking for their property, utilizing the new purchase price and then concluding from that what the used value was on September 24, 2007 instead of actually evaluating the personal property from his own knowledge as of September 24, 2007.   On the other hand, Regina Madigan is a longtime professional in the evaluation of personal property for which she receives compensation.   Her evaluation was more impressive to the Court than that of Chenette.   In her appraisal, defendant's Exhibit GGG, she evaluated the total of the used property as of September 24, 2007 at $3,360, which evaluation the Court accepts.

CONCLUSION:

1. Judgment is entered for the defendant on all counts except for unjust enrichment for which judgment is entered for the plaintiff.

2. Since Chenette owns 1/2 of the property from joint funds, and he brought the suit, the court orders that 1/2 of the property outlined in defendant's Exhibit GGG is to be turned over to the plaintiff forthwith.   One-half of Mrs. Madigan's evaluation of $3,360 is $1,680.   The plaintiff, using the valuation in Exhibit GGG may select those items which total a value of $1,680.   The defendant is to turn over to the plaintiff such items.   This transfer of personal property shall take place no later than 30 days from the date of this judgment.   If the plaintiff goes to the location(s) where the personal property is located to review and/or retrieve his share of same, he is to be accompanied by a police officer or his attorney.

3. Motion for attorneys fees is denied.

Rittenband, JTR

FOOTNOTES

FN1. See trial transcript (TT) of January 7, 2010 page eight lines 5-10..  FN1. See trial transcript (TT) of January 7, 2010 page eight lines 5-10.

FN2. Additionally, the plaintiff had access several times to the defendant's property after he moved out of the property and could have taken those items he brought with him from Windsor Locks..  FN2. Additionally, the plaintiff had access several times to the defendant's property after he moved out of the property and could have taken those items he brought with him from Windsor Locks.

Rittenband, Richard M., J.T.R.