Dorothy Sokolik v. Daniel Sokolik (2010)

MEMORANDUM OF DECISION

The plaintiff, Dorothy Sokolik (hereinafter “plaintiff”), commenced this action against her son, Daniel Sokolik, in his individual capacity (hereinafter “defendant”).   The plaintiff contended that through the actions of the defendant, she executed a quit claim deed without reading and/or understanding the contents of said deed with the deed not executed before a notary public.   The plaintiff further contends that she executed an Irrevocable Trust Agreement without reading the contents, without the assistance of an attorney and without proper explanation and understanding of the terms of said irrevocable trust.   The seven counts of the complaint alleged fraud, constructive fraud and undue influence (counts one through three) as to the execution of the quit claim deed, and fraud, constructive fraud and undue influence (counts four through six) as to the execution of the Irrevocable Trust Agreement, and breach of fiduciary duties (count seven) regarding his actions as a fiduciary.

The defendant, initially pro se, and later through counsel, denied he was liable and filed a counterclaim for release of the lis pendens filed by the plaintiff pertaining to a probate matter.¹

The parties tried this case before the court on July 29, 2010.   The parties' counsel, due to their trial schedule, requested until September 15, 2010, to file contemporaneous briefs.

BACKGROUND

The plaintiff contends that her son, the defendant, in essence perpetrated a fraud, utilized undue influence upon her and breached his fiduciary duty concerning the execution of a quit claim deed and irrevocable inter vivos trust agreement concerning a home at 160 Water Street, Stonington, Connecticut, a home she resided in for 46 years prior to this lawsuit.   By way of background, the plaintiff was married and had four children with her ex-husband (now deceased), Susan, Alexis, Sharon and the defendant.   The plaintiff's forty-year marriage was dissolved in 1989.   Through the divorce judgment, the plaintiff received 60% interest in the marital property with her ex-husband receiving 40% interest.   At the time of her ex-husband's death, Susan received 20% with the other one half (20%) interest willed to the defendant.   Susan, in turn, deeded over her 20% interest back to the plaintiff.   The defendant, in turn, deeded 19% to the plaintiff, keeping an undivided 1% interest in the property in his own name.

The plaintiff has remained in the property, using it as her residence, with a downstairs commercial office rented to third parties.   The plaintiff was retired for 10 years prior to the commencement of this action.   She had previously worked in various factory positions and as a home health aid.   She is a high school graduate and paid her living expenses with social security income and rental income from the street level commercial space.   The plaintiff had also suffered from various medical problems, including two hip replacements, cancer (in remission) and arthritis, but at all times, pertinent to the present controversy, was of sound mind with no problem understanding and reading the English language.

The plaintiff and the defendant, prior to the present controversy, agree that they had a close and loving relationship.   He grew up in the home.   As evidenced by a will executed by the plaintiff in 1995, she intended to leave the house to him with the provision that if he sold the house 20% would go to his sister (Defendant's Exhibit M).  The defendant is the owner of a painting company he referred to as a small business.   The plaintiff, on occasion, would assist in writing contracts for him.   He visited his mother on a regular basis, took her out to the store, or for lunch and/or dinner.   The defendant put a new roof on the house, painted both inside and out, refinished the floors and redid the downstairs rental unit after a recent tenant had vacated the unit.   After the time the will was executed, the plaintiff and defendant discussed a quit claim of the real property to him according to the defendant.   He also contends that a trust was discussed between them prior to any discussion or meeting with an attorney.

The parties are in substantial dispute as to what transpired concerning the discussions, legal representations and execution of various documents surrounding the irrevocable trust and quit claim deed execution.   The plaintiff contends that she never read the irrevocable trust (Defendant's Exhibit 1) prior to its execution at the law offices of Andrew B. O'Donnell in Worcester, Massachusetts on February 9, 2006.   She further claims that she only saw counsel once.   The defendant contends that the trust was discussed with the plaintiff at three separate meetings with counsel on September 14, 2004, where the trust was initially discussed, November 17, 2005, where changes to the trust were discussed and the third in person meeting when the final trust documents were executed.

As to the quit claim deed of the real property, the plaintiff contends that the deed was placed before on the kitchen table of her residence by the defendant in June 2006.   She further claims that she never read the deed and did not know what it was.   She claims the defendant covered it with his hand when she was signing it.   The defendant and notary testified to the contrary.   The defendant contends that she signed the deed in the living room in front of the notary who notarized her signature in the presence of the plaintiff.

FINDINGS AND APPLICABLE LAW

The plaintiff bears the burden of proof in proving fraud, constructive fraud, undue influence and breach of fiduciary duty.   The plaintiff testified and offered various exhibits admitted into evidence.   In order for the plaintiff to prevail, her oral testimony must be believed in light of the testimony of the defendant, Attorney Andrew B. O'Donnell, Kathy Lathrop, the notary public and all of the documentary evidence submitted into the record.   The credibility of the witnesses is solely determined by the trier of fact.  Conservation Commission of Fairfield v. Red 11, LLC, 119 Conn.App. 377, 391, 987 A.2d 398, cert. denied, 295 Conn. 924, 991 A.2d 556 (2010).

The court hereby finds that the plaintiff and the defendant had both discussed options concerning the ownership of the real estate in question more than a year prior to the execution of the documents.   The defendant initially did not want a quit claim deed in his name due to the fact that he was a small business owner.   The defendant counseled with his significant other concerning methods of achieving an agreed upon result with his mother.   His fiancee was a lawyer in a law firm in Massachusetts where Andrew B. O'Donnell was also employed.   The parties had discussed the option of the quit claim deed and/or a trust agreement earlier than September 2004, where they first met Attorney O'Donnell.   He represented the plaintiff and due to the relationship of the defendant with his law partner, he did not bill the plaintiff for his services.

As to the advice and legal counsel defendant received from Attorney O'Donnell, the court finds that she met with her counsel three times, not the one time that she claimed.   The court further finds that she met with counsel alone and on other times with her son present.   Her relationship with her children was also discussed previously with her son prior to the first meeting with her lawyer.   The plaintiff and her counsel went over the terms of the trust agreement with her including the changes previously discussed as evidence by counsel's testimony and time statements.  (Defendant's Exhibit N.) The plaintiff, although she had previous medical problems with diabetes, arthritis and cancer as alleged in her complaint, was of sound mind and capable of understanding what she was signing.   The court further concludes that Attorney O'Donnell explained the legal ramifications of an irrevocable inter vivos trust with the plaintiff prior to its execution.

As to the quit claim deed (Defendant's Exhibit 5), the court further finds that the evidence does not support the plaintiff's claim of fraud, undue influence or breach of any fiduciary duty.   As to the execution of the quit claim deed, the court concludes that the defendant was following through with the directives and/or purpose of the trust agreement.²  The court finds that the plaintiff executed the quit claim deed in her living room, in the presence of the defendant and the notary public who notarized her signature.   The court further concludes that the defendant did not deny her the ability to review the document prior to the execution.   The execution of the deed to the trust was not a new concept.   The will, dated October 5, 1995 (Defendant's Exhibit 1), bequeathed the real estate to the defendant with precatory language concerning any sale of the property by the defendant.   The trust has language naming a granddaughter as beneficiary and daughter Susan as residual beneficiary, if the defendant predeceases her.   The plaintiff discussed her relationship with each of her children with counsel.   She intended her son, the defendant, to be the recipient of the real property, if he survived her.   The quit claim deed to the trustee merely carries out the operative effect of the trust.

To prove fraud, the plaintiff must prove the following:  (1) defendant either made a false representation as a statement of fact or failed to tell the plaintiff a material fact that the defendant had a duty to tell;  (2) the statement of fact must not only be untrue, but known to be untrue when the defendant made it or that the defendant made this statement with a reckless regard for the truth and the statement of fact was made to convince the plaintiff to act;  and (3) the plaintiff proves that she acted on the statement to her injury.  Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981);  Egan v. Hudson Nut Products, Inc., 142 Conn. 344, 347-48, 114 A.2d 213 (1955).

The plaintiff retained a life estate in the trust agreement.   She is responsible for the expenses and taxes as were her previous obligations except for the increase in property taxes resulting from the conveyance to the trust.³  The plaintiff has failed in her burden of proof as to fraud, which must be proven by clear and convincing evidence, for reasons stated above.

As to her claims of undue influence concerning the execution of the quit claim deed and trust, the plaintiff also has the burden of proof.   The claim of undue influence is the exercise of sufficient control over a person, the validity of whose act is brought into question to destroy his or her free agency and constrain him to what he would not have done if such control had not been exercised.  Gengaro v. New Haven, 118 Conn.App. 642, 649, 984 A.2d 1133 (2009).   The four elements are:  “(1) a person who is subject to influence;  (2) an opportunity to exert undue influence;  (3) a disposition to exert undue influence;  and (4) a result indicating undue influence.”  (Internal quotation marks omitted.)  Pickman v. Pickman, 6 Conn.App. 271, 275, 505 A.2d 4 (1986).

As previously stated, the plaintiff from 1995 to 2006 had devised by will all of her interest in the real property to the defendant to the exclusion of her other children.   Her relationship with each child was discussed not only with the defendant but with her legal counsel.   The plaintiff was questioned outside the presence of the defendant by her counsel as to her relationship with each child.   She further stated to her counsel why the defendant and not her other three children deserved the property.   The plaintiff had from at least September 14, 2004, through February 2006, to change her mind concerning any disposition of the property.   The plaintiff again has failed in her burden of proof as to undue influence.

The plaintiff's final claims deal with the theory of breach of fiduciary duty.   The law on the obligations of a fiduciary is well settled.  “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him ․ Once a fiduciary relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary ․ Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof ․ by clear and convincing evidence ․” (Citations omitted;  internal quotation marks omitted.)  Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996).

This court finds that the plaintiff has failed to establish that a fiduciary relationship existed between the plaintiff and the defendant.   The evidence shows that the plaintiff had the option not to enter into the irrevocable trust agreement and/or execute the quit claim deed to the trust.   The defendant furthermore made sure that the plaintiff had an attorney to advise her of her options and the legal ramifications as a result of her execution of the trust documents.   The plaintiff had the requisite mental capacity to review the documents, make changes as requested and execute the trust and the deed.

ORDER

Judgment is rendered in favor of the defendant on all counts.

Devine, J.

FOOTNOTES

FN1. By agreement of counsel, the lis pendens was ordered released by order of the court on July 29, 2010..  FN1. By agreement of counsel, the lis pendens was ordered released by order of the court on July 29, 2010.

FN2. The court is aware that the quit claim deed was signed with no witnesses.   The court, prior to testimony, ruled that the plaintiff failed to properly challenge the enforceability of the deed pursuant to Conn. Gen.Stat. § 47-36aa, and § 52-325(a) and (c)..  FN2. The court is aware that the quit claim deed was signed with no witnesses.   The court, prior to testimony, ruled that the plaintiff failed to properly challenge the enforceability of the deed pursuant to Conn. Gen.Stat. § 47-36aa, and § 52-325(a) and (c).

FN3. As to the analysis is as to the plaintiffs ability to pay for the future tax payments, while the counsel's advice may have overlooked this expense, the court concludes that counsel's oversight does not result in a finding that the plaintiff has met her burden of proof as to her claims alleged in the amended complaint..  FN3. As to the analysis is as to the plaintiffs ability to pay for the future tax payments, while the counsel's advice may have overlooked this expense, the court concludes that counsel's oversight does not result in a finding that the plaintiff has met her burden of proof as to her claims alleged in the amended complaint.

Devine, James J., J.