Aaron Manor, Inc. v. Janet A. Irving (2009)

MEMORANDUM OF DECISION RE MOTION TO REARGUE

At the hearing on November 3, 2008, the Court heard two arguments in this matter;  namely, 1) the defendant's Motion for Counsel Fees, presented pursuant to Connecticut General Statues Section 42-150bb, for her successful defense of the consumer complaint in this case;  and 2) the plaintiff's Motion to Reargue that part of the Court decision, dated September 24, 2008, which found that defendant Janet A. Irving did not have access to her late father's checking account nor to any other of his financial resources.   Thereafter the Court issued a Memorandum of Decision which awarded counsel fees to the plaintiff, but, by inadvertence did not speak to the Motion to Reargue.   This memorandum is designed to address this error.

In a Motion for Articulation, filed in support of its Appeal, plaintiff/appellant Aaron Manor, Inc. set out the area of review as italicized below.

An issue at the trial of this case, as well as in the post-trial briefing, was whether the defendant had access or control over any of her father's funds to be used towards the cost of his care at plaintiff's skilled-nursing facility.   The plaintiff presented evidence (Exhibit 25 and testimony at trial from the defendant and her brother, William Ammon, Jr.) showing that the defendant received $13,630.89 in checks from her parent's checking account, including a check for $11,000.   The Court in its Memorandum of Decision never addressed the issue of whether the defendant would be liable to the plaintiff under the written contract (Exhibit 2) that she signed for the $13,630.89 she received.

Relevant Facts

Janet A. Irving and William Ammon, Jr. are issue of William Ammon.   William Ammon, the father, was cared for as a resident in the Aaron Manor nursing home from about October 29, 2002 until his passing on July 24, 2003.   Janet A. Irving signed the Resident's Admissions Agreement ¹ with Aaron Manor, Inc., and numerous other forms as the “Responsible Party,” for her father.²  Also she informed the plaintiff that she regarded herself as the party responsible for his medical care and needs, but that her brother, William P. Ammon, Jr. would be the person responsible for his financial matters.³  The Admitting Record (Exhibit B) for the nursing home lists as the “Person Responsible for the Account” “William P. Ammon Son POA,” together with his address.   The bills for the account were sent by the plaintiff to William P. Ammon, Jr. and not to defendant Janet A. Irving (trial transcript, pp. 79-80).

William P. Ammon's bills were paid by medicare and Cigna Insurance Company through February of 2003.   However, Cigna refused to pay for his care for the period of March 2003 through June 10, 2003, based upon its position that skilled nursing care was not required and/or provided during that time-frame.   (See trial transcript, pp. 29-31 for testimony of Michele Farmer, the corporate accounts receivables manager whose accounts included Aaron Manor.)   The bill covering this period is $27,340.   There was an appeal of the denial by Cigna to pay the bill (trial transcript, p. 31).   Asked why he did not pay the bill, William Ammon testified as follows:

THE COURT:  Did you pay the bill?

THE WITNESS:  No.

THE COURT:  Why?

THE WITNESS:  Why? Because it was up in the insurance, we went back-well, I didn't go back but Attorney Irving went back to the insurance company and asked why it wasn't paid.   But you know, before you were speaking of bills were paid after this to Aaron Manor from my father.   So why would I pay bills to Aaron Manor after this timeframe and not pay there particular bills, that's because there were questions ․

(Trial transcript, p. 65.)

During the trial it was disclosed that William P. Ammon, Jr. consulted a lawyer about the propriety of gifting some of the estate of his father and mother during their life time.   It was after the consultation and upon the advice of that lawyer that William P. Ammon distributed to himself, as well as to Janet A. Irving, various sums of money as gifts from their father and mother.

The Motion to Reargue

In its Motion to Reargue the plaintiff points out that because defendant Janet A. Irving received distributions from her late father's checking account as either 1) reimbursements for such things as monies advanced by her for his personal items, such as clothes, etc. or 2) financial gifts from her father disbursed in the form of checks written by her brother, those distributions translated into her having access to her father's income and/or assets.   The plaintiff also asserts that Janet Irving had access to her father's assets through her brother, William P. Ammon, Jr. The following questions to and answers from William P. Ammon, Jr. are informative in this regard:

Q. When counsel-when Attorney Garlick asked you whether your sister had access, your parents' funds through you, you agreed with that, correct?   Your sister had access to your parents' funds through you?

A. Was that the question he asked?

THE COURT:  Yes, he did ask that

BY ATTORNEY ROSENTHAL:

A.  Okay.

Q. You agree with that, your sister had access to your parents' funds through you.

A. Yes.

THE COURT:  Do you understand the question.

THE WITNESS:  Not totally, no.

THE COURT:  Why did you say yes then?

THE WITNESS:  I'm not sure.

THE COURT Well, tell him what you mean by that.

BY ATTORNEY ROSENTHAL:

Q. If your parents need something, which your sister provided to them, you gave it to her, right?

A. Yes. We just-you asked that earlier.

Q. You were taking care of your parents' funds for their benefit, right?

A. Yes.

Q. And you and your sister were taking care of your parents together, it was a joint effort to take care of your parents, to take care of all of their different needs that they had.

A. Sure.

ATTORNEY ROSENTHAL:  I don't have any further questions.

RECROSS EXAMINATION BY ATTORNEY GARLICK:

Q. [s]o when you say your sister had access to the funds through you you mean if she spent money on behalf of or for the benefit of your parents and she asked you, and you thought it was appropriate, and you'd reimburse her, correct?

A. Yes.

[Trial transcript, pp.   76- 77 April 8, 2008.]

The following question to and answer from Janet Irving is instructive:

Q. Did you ever-well with regard to your father's money, on various times you contacted your brother and said you wanted to be reimbursed for expenses you incurred on behalf of your father or mother, right?

A. Yes

Q. And you would tell him you bought some clothes for one of your parents and it cost x-dollars and can you sent me a check for x?

A.  Yes.

Q. Did he ever refuse you?

A. No.

Q. If you told him to pay the bill to Aaron Manor, do you think he would have refused you?

A. I have no idea.

[Trial transcript, pp. 95-96, April 8, 2008.]

From the evidence presented the Court was and is of the opinion that William Ammon, Jr. had complete control of his father's financial assets by virtue of his Power of Attorney and that Janet Irving did not have access to those assets.   The Court was and is of the opinion that the funds transferred to Janet Irving, pursuant to the Power of Attorney, were either 1) reimbursements for funds expended by her on behalf of her father and/or mother, or 2) financial gifts from her father and/or mother.

As quoted in Wasniewski v. Quick & Reilly, Inc., 105 Conn.App. 379, 382 (2008), “[t]he term ‘gift’ ․ is the transfer of property without consideration.   The two requisites are ‘a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him.’  “ [Guinan's Appeal from Probate, 70 Conn. 342, 347, 39 A. 482 (1898) ].

Conclusion

From the foregoing, the Court was and is of the opinion that the transfer of the gifted funds (including the $13,630.89 from her parent's checking account and the check for $11,000) to Janet Irving, resulted in the title to said funds immediately vesting in her.   Thus, upon receipt, the funds became the property of Janet Irving, and not the property of her father, William Ammon, and therefore she was under no legal obligation to use any of these funds to pay the outstanding bill in this case.⁴

Clarance J. Jones, Judge

FOOTNOTES

FN1. Paragraph 10 of the Patient/Resident Admission Agreement states “[i]f the responsible party has control of or access to the patient/resident's income and/or assets, the responsible party agrees that these funds shall be used for the patient/resident's welfare, including but not limited to making prompt payment for care and services rendered to the patient/resident in accordance with the terms of this agreement.”.  FN1. Paragraph 10 of the Patient/Resident Admission Agreement states “[i]f the responsible party has control of or access to the patient/resident's income and/or assets, the responsible party agrees that these funds shall be used for the patient/resident's welfare, including but not limited to making prompt payment for care and services rendered to the patient/resident in accordance with the terms of this agreement.”

FN2. The mother of Janet Irving and William Ammon, Jr. also was a resident of the Aaron Manor nursing home..  FN2. The mother of Janet Irving and William Ammon, Jr. also was a resident of the Aaron Manor nursing home.

FN3. William Ammon, Jr. held a Power of Attorney which provided him with control of his father's financial affairs, including the use of his father's checking account..  FN3. William Ammon, Jr. held a Power of Attorney which provided him with control of his father's financial affairs, including the use of his father's checking account.

FN4. Any reimbursements made by William Ammon, Jr. to defendant Janet Irving were returns of her monies advanced by her for the benefit of her father and/or mother..  FN4. Any reimbursements made by William Ammon, Jr. to defendant Janet Irving were returns of her monies advanced by her for the benefit of her father and/or mother.

Jones, Clarance J., J.