Joanne Forbes v. Joseph Ashner (2010)

MEMORANDUM OF DECISION

On August 9, 2010 the court heard testimony regarding the defendant's motion to discharge the lis pendens which the plaintiff has filed on property of the defendant located at 229-233 North Elm Street and 100-102, 104-110 Brook Street in Torrington.   Both parties filed briefs, the last of which was filed by the defendant on August 30, 2010.

Having considered the evidence submitted by both parties, there is probable cause that the plaintiff will prove the following facts.   The plaintiff, Joann Forbes, began a romantic relationship with the defendant, Joseph Ashner, in early 2001.   The plaintiff moved into the defendant's home in July 2001.   Thereafter, the plaintiff began working in the defendant's business, at first for no pay.   Later she was paid for her work as an office manager charged with payroll and banking among other duties.   In order to facilitate the banking, the defendant placed her name on the business accounts.

In 2003, the defendant discussed with the plaintiff the purchase of a residential rental property in at 100-102 Brook Street in Torrington.   The defendant asked the plaintiff to act as a rental agent of sorts and to be in charge of a bank account into which to place the rents and to pay the expenses.   The defendant told the plaintiff that the money remaining in the account would be used to finance their retirement in a home in Florida.   The plaintiff agreed to this arrangement.

The plaintiff admits that she was not going to have an ownership interest in the property.   The defendant paid all of the expenses of the purchase.   Title to the property was taken in the defendant's name alone.   The plaintiff collected the rents, prepared the leases, made deposits, and paid the bills from the joint bank account which the parties set up.   Unlike the business bank accounts, there is probable cause that this account was in joint names as a true reflection of joint ownership, not merely to facilitate banking convenience.   Evidence of this includes the fact that the account included rights of survivorship.

In 2005 the defendant bought the second rental property at 229-233 North Elm Street in Torrington.   The parties had the same arrangement of having the rentals go into the same joint bank account and having the plaintiff handle the managing of the property.   The defendant made the same representation that the money in the account would be used to finance the parties' retirement in a home in Florida.

In 2009 the parties ended their romantic relationship and the plaintiff moved out of the defendant's house.   The defendant's position is that the plaintiff is entitled to nothing.   In this suit the plaintiff alleges causes of action sounding in breach of contract, promissory estoppel, imposition of a constructive trust, and quantum meruit.   The plaintiff has placed a lis pendens upon both rental properties.

The issue is whether any of the causes of action alleged by the plaintiff are “intended to affect” the rental properties held by the defendant and, if so, are those causes of action supported by probable cause.  C.G.S. § 52-325.   The plaintiff primarily relies upon constructive trust as a basis for the lis pendens.   There is probable cause that the defendant promised that he and the plaintiff would use the income from the properties for their retirement.

The constructive trust count alleges states that:  “The plaintiff seeks a constructive trust on the current balances of the bank accounts associated with the properties, and the funds removed by the defendant from the joint account appropriated for his own use, as well as undivided interest in the properties.”   Although the court agrees with the defendant that the facts are more appropriate for a prejudgment remedy to reflect the plaintiff's loss of an ownership interest in the joint bank account, the lis pendens based upon the theory of constructive trust must be sustained as well.   The properties are the source of the earnings from which the retirement was to come.   Under these facts, there would be probable cause for imposition of a constructive trust which would affect title to the properties.

The defendant's motion for discharge of the lis pendens is denied.

BY ORDER OF THE COURT,

John W. Pickard

Pickard, John W., J.