Jerrold S. Klein v. Lisa Bratt (2011)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR ARTICULATION AND/OR PARTIAL RECONSIDERATION, REHEARING OR MODIFICATION OF JUDGMENT DATED JANUARY 4, 2010 (# 144.00)

This court issued a Memorandum of Decision on November 25, 2009 (# 139.10).   The first paragraph of the November 25, 2009 Memorandum of Decision stated:  “This lawsuit is a multi-count cause of action between two cohabiting adults who have terminated their romantic relationship and are seeking court resolution of their continuing financial differences.   A special masters pre-trial was not able to resolve the matter.   A court pre-trial supervised by a Superior Court Judge concluded unsuccessfully after three days of intensive efforts to resolve the matter.   The trial was promised to be five days in length.   The first day of trial was March 31, 2009.   It concluded after twenty-one trial days on August 17, 2009.   The litigation between these parties commenced with a return date of December 20, 2005 and the judicial relationship between these parties was longer than their romantic relationship.”

The plaintiff, Jerrold S. Klein, filed this Motion on January 4, 2010 requesting “the court to articulate the basis for various aspects of and/or for partial reconsideration, re-argument, rehearing or modification of portions of the November 25, 2009 Memorandum of Decision issued in this action by Hon. Kevin Tierney (the ‘Decision’ or ‘Judgment’).”   This court notes that its Memorandum of Decision of November 25, 2009 is twenty-seven pages.   Included therein is a three-page chart of claims made by each party against the other party, which chart resolved the hundreds of claims made by both parties in this lawsuit.   The court awarded Jerrold S. Klein $80,711.   The court awarded Lisa Bratt $5,000.   The net monetary judgment in favor of Jerrold S. Klein was $75,711.   The court entered judgment on November 25, 2009 in favor of the plaintiff, Jerrold S. Klein, as against the defendant, Lisa Bratt, in the amount of $75,711.   The court noted that at trial Klein requested damages in the amount of $242,665.30.   Bratt rejected the entirety of Klein's claims and requested her own damages against Klein in the amount of $31,032.87.

On May 13, 2010 the plaintiff filed a Supplemental Statement in Support of its January 4, 2010 Motion (# 147.00).   Plaintiff's Supplemental Statement utilized the chart prepared by this court in its November 25, 2009 Memorandum of Decision and outlined plaintiff's monetary claims in his January 4, 2010 Motion (# 144.00) in six numbered categories, some categories contained subcategories.   Category number 1 was a request for post-judgment interest.   This post-judgment interest claim was supplemented on October 21, 2010 by plaintiff's Motion for Post-Judgment (# 151.00) requesting an award of post-judgment interest pursuant to Gen.Stat. § 37-3a of either 9.5% or 10.0% per annum.   Neither party filed any further documents or memorandum.   The court held two days of hearings on May 27, 2010 and October 21, 2010 with both counsel present arguing the issues for their clients.   Neither party offered any testimony.   Neither party offered any documentary evidence at the hearings.

The court will issue a separate Memorandum of Decision on Plaintiff's Motion for Post Judgment dated October 21, 2010 requesting post-judgment interest (# 151.00).

The plaintiffs instant motion (# 144.00) is claiming four remedies:  (1) Articulation;  (2) Partial Reconsideration;  (3) Rehearing;  and/or (4) Modification of Judgment.

MOTION FOR ARTICULATION

A judgment entered in this matter in accordance with the Memorandum of Decision dated November 25, 2009 (# 139.10).   Neither party filed an appeal.   Plaintiff's Motion for Articulation ․ (# 144.00) was labeled on the bottom of the first page as a Practice Book § 11-11 motion.   Plaintiff filed four motions for extension of time for the purpose of taking an appeal and those extensions were granted by the court (# 143.00, # 143.86, # 143.87, # 148.00, # 148.86, # 149.00, # 149.86, # 150.00, # 150.86).   After the last extension expired neither party appealed from the November 25, 2009 Memorandum of Decision (# 139.10).   There is no provision in the Practice Book for a motion for articulation to be filed in a case that has not been appealed.  P.B. 60-5, 63-1(c)(1), 66-5 and 66-7.  Brycki v. Brycki, 91 Conn.App. 579, 594 (2005);  Hogan v. Lagosz, 124 Conn.App. 602, 618 (2010).

That portion of the plaintiff's January 4, 2010 motion (# 144.00) that seeks articulation is denied.

MOTION FOR MODIFICATION OF JUDGMENT

There is no provision by statute for a modification of a civil judgment.   The parties were not married.   In effect the plaintiff is asking for what is typically considered in a dissolution of marriage decision, a modification.   Gen.Stat. § 46b-86 permits modification of periodic alimony orders in an “action for divorce, dissolution of marriage, legal separation or annulment.”   This rule is also applicable to civil unions.  Gen.Stat. § 46b-86 is not applicable in this case for three reasons:  the parties are two cohabiting adults who had not entered into a marriage or civil union, the orders entered by this court are property division type orders and there is no allegation or showing of a substantial change in circumstances.   Under circumstances of duress, fraud or mutual mistake or the like, the Superior Court retains supervisory power to open judgments.  In Re Samatha, 120 Conn.App. 755, 757, fn. 3 (2010).   No allegations of fraud, duress or mutual mistake have been presented to this court and there was no proof at the court hearings of fraud, duress or mutual mistake.

That portion of the plaintiff's January 4, 2010 motion (# 144.00) that seeks modification is denied.

MOTION FOR PARTIAL RECONSIDERATION

Motions for reconsideration find no support in either the statutes or the Practice Book. Courts have discussed motions for reconsideration in dissolution of marriage cases.  Jaser v. Jaser, 37 Conn.App. 194, 200 (1995).   In Jaser the motion was entitled “Motion for Reargument, Reconsideration and to Set Aside Judgment.”  Id. 196.   After a hearing the court entered the following order:  “Reargument and reconsideration are granted and the judgment is amended as follows.”   Id. 200, fn. 6. The Appellate Court discussed the general rules relating to reargument, reconsideration and modification.  “A reconsideration implies reexamination and possibly a different decision by the court which initially decided it.”  Id. 202.   The court discussed the general rules on reargument.  Id. 202.   It discussed a modification hearing in a family case and compared the modification procedure with a reconsideration hearing.  “While a modification hearing entails the presentation of evidence of a substantial change in circumstances, a reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law.”  Id. 203.   This rule on reconsideration is applicable to civil cases.  Intercity Development, LLC v. Andrade, 286 Conn. 177, 189 (2008);  Sinotte v. Waterbury, 121 Conn.App. 420, 426 (2010).   The plaintiff's motion and plaintiff's oral argument on his January 4, 2010 motion did not identify any new law, a miscalculation of the law or misapplication of the law.

That portion of the plaintiff's January 4, 2010 motion (# 144.00) that seeks reconsideration is denied.

MOTION FOR REHEARING

The statutes and Practice Book are silent on a motion for rehearing.   Motions for rehearing have been treated as a motion for reargue.  Rosenblit v. Danaher, 206 Conn. 125, 149 (1998);  O'Bymachow v. O'Bymachow, 10 Conn.App. 76, 78-79 (1987).  “Regardless of how the defendant characterizes his motion, we must examine the practical effect of the trial court's ruling in order to determine its nature.”  Jaser v. Jaser, supra, 37 Conn.App. 202.   The court has the inherent power to disregard the label of a motion and treat it as a differently labeled motion seeking substantially the same relief.  Girard v. Weiss, 43 Conn.App. 397, 417 (1996);  Murtha v. City of Shelton, Superior Court, judicial district of Ansonia-Milford at Derby, Docket Number AAN-CV 06-5001457 S (October 10, 2006, Esposito, J.).  (“Thus, in proceeding, the court will treat the defendants' motion to strike as a motion to dismiss.” fn. 1.) The court will treat the plaintiff's Motion for Rehearing dated January 4, 2010 (# 144.00) as a Motion to Reargue.

That portion of the plaintiff's January 4, 2010 motion (# 144.00) that seeks rehearing is denied.

MOTION TO REARGUE

“A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies.”  P.B. § 11-12(a) “This section shall not apply to motions to reargue decisions which are final judgments for purposes of appeal.   Such motions shall be filed pursuant to Section 11-11.”  P.B. § 11-12(d).  The plaintiff did comply with P.B. § 11-11 by indicating on the bottom of the first page of the motion that such motion is Section 11-11 motion.  P.B. § 11-11.   Plaintiff filed a Motion for Extension of Time within the requisite period after the November 25, 2009 Memorandum of Decision which the court granted.   This instant motion dated January 4, 2010 (# 144.00) was timely filed.  P.B. § 11-12(a).   The other technical requirements of the Practice Book have been met by the instant motion.  P.B. § 11-12(a)

“The purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.”  Opoku v. Grant, 63 Conn.App. 686, 692 (2001).  “It also may be used to addressed alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the movant claimed were not addressed by the court.”  Id. 692;  K.A. Thompson Electric Co. v. Wesco, Inc., 24 Conn.App. 758, 760 (1991).  “A motion to reargue however is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.”  Opoku v. Grant, supra, 63 Conn.App. 692-93.

“This trial court has jurisdiction to clarify an ambiguous judgment at any time.”   Avalon Bay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 246 (2002);  State v. Denya, 294 Conn. 516, 533, fn. 10 (2010).

Indeed, “courts have continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior ․ judgment ․ pursuant to [their] inherent powers ․ [Thus] [w]hen an ambiguity in the language of a prior judgment has arisen as a result of postjudgment events ․ a trial court may, at any time, exercise its continuing jurisdiction to effectuate its prior [judgment] ․ by interpreting [the] ambiguous judgment and entering orders to effectuate the judgment as interpreted ․ In cases in which execution of the original judgment occurs over a period of years, a motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated ․ Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment ․ and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.”  (Citations omitted;  internal quotation marks omitted.)   Mickey v. Mickey, supra, 292 Conn. 604-05;  cf.  Rome v. Album, 73 Conn.App. 103, 109, 807 A.2d 1017 (2002) (“[when] the movant's request would cause a substantive modification of an existing judgment, a motion to open or set aside the judgment would normally be necessary”).

State v. Denya, supra, 294 Conn. 528-29.

The court has inherent jurisdiction to correct at any time any scrivener's or mathematical error made by the court in rendering its Memorandum of Decision without the need for a motion to be filed by any party.   This type of clerical error can be corrected by the court at any time beyond four months.  Milazzo v. Schwartz, 88 Conn.App. 592, 597 (2005);  Blake v. Blake, 211 Conn. 485, 495 (1989);  Federal National Mortgage Association v. Dicioccio, 51 Conn.App. 343, 345 (1998).

REARGUMENT

The court granted reargument on motion # 144.00 and heard the parties on the merits of motion # 144.00. The court will issue a written decision in numbered paragraphs following the numbering in Plaintiff's Supplementary Statement dated May 13, 2010 (# 147.00).   The court entered judgment in favor of Klein against Bratt in the amount of $75,111.   If Klein is successful in each of the issues raised in this Motion # 144.00, Klein will have a judgment against Bratt in the amount of $133,267.98 plus possible Offer of Judgment interest (# 107.00 filed May 24, 2006) and possible post-judgment interest (# 151.00).

1. Requested Amount of Post-Judgment Interest

This claim has been resolved by a Memorandum of Decision dated February 18, 2011 on Plaintiff's Motion for Post-Judgment dated October 21, 2010 (# 151.00).

2. Requested Reductions of Counterclaim Award

A. Red Antique Sofa (Ex. 89);  Claim Amount ($4,935);  Award-$500.

Bratt made a claim against Klein for $4,935 for damage to a red antique sofa.   The court heard testimony from both parties on this claim and allowed Bratt's claim to the extent of $500.   Klein now requests that the $500 award be reduced to zero.   Lay persons as owners can testify as to the value of their personal property.  Misisco v. LaMaita, 150 Conn. 680, 684 (1963).   Klein did not claim to be an owner of the red antique sofa.   Bratt's claim was for conversion of the red antique sofa.

We have defined conversion as [a]n unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights ․ It is some unauthorized act which deprives another of his property permanently or for an indefinite time;  some unauthorized assumption and exercise of the powers of the owner to his harm.   The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.

Macomber v. Travelers Property & Surety Corp., 261 Conn. 620, 649.

In order to prevail on a claim for conversion, the party must prove that they have been injured by the defendant's possession of the property.  Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521 (1998).  “[T]here are two general classes into which conversions are grouped:  (1) those where the possession is originally wrongful, and (2) those where it is rightful.   The first class comprises a conversion by wrongful taking, or by an illegal assumption of ownership, or by an illegal user or misuse, or by any other form of possession wrongfully obtained.   The second class comprises those where the possession, originally rightful, becomes wrongful by a wrongful detention.”  Coleman v. Francis, 102 Conn. 612, 615 (1925).

Klein claims that Bratt testified at trial that she has possession of the red antique sofa, that she purchased it from an estate sale for $200-$300, that it only had a few minor scratches, and it was presently in her possession and control in a storage facility awaiting future restoration.   Thus Klein requests a reduction of Bratt's red antique sofa award to zero.

The court's trial notes show that Bratt testified that the red antique sofa was German in origin manufactured 100 years ago.   She described it as having wooden ball feet, scroll carving with red velvet horsehair.   She did admit purchasing it from an estate sale for a price of $250 to $300.   She then had the red antique sofa stripped down, reseated and recovered.   The red antique sofa was originally in her New York City apartment and she removed it to 40 France Street, Norwalk, where both parties lived.   Bratt then moved out of France Street leaving the red antique sofa in Klein's possession.   Klein continued to occupy 40 France Street.   Just before the sale of 40 France Street she removed the sofa and noticed that it was badly damaged:  one leg was missing, the sofa was propped upon books, portions of the scrolling had been removed and the sofa was scratched and otherwise damaged.   The red antique sofa was then placed in a public storage facility by Bratt and is now stored in a garage since it will not fit into Bratt's current apartment.   She took the sofa to Wigs End in Stamford to have it valued for restoration and appraised.

Klein disputes that he had occupancy, possession and control of 40 France Street from the day Bratt vacated in January 2005 until the April 2006 closing.   Both parties agree that Bratt did not reside at 40 France Street after January 2005.  “Courts must necessarily rely, in many cases, on circumstantial evidence.   They are entitled to draw reasonable and logical inferences from facts existing prior to or subsequent to an event for the purpose of reaching a conclusion of fact.”  Slack v. Greene, 294 Conn. 418, 431 (2009).  “There is no distinction between direct and circumstantial evidence insofar as probative force is concerned ․ In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.”  Id. 431-32;  Goldstar Medical Services, Inc. v. Department of Social Services, 288 Conn. 790, 834 (2008).

The court finds the following facts in regards to the possession, occupancy and control of 40 France Street, Norwalk between the day Bratt moved out in January 2005 until the closing in April 2006;  all utility bills were mailed to Klein, addressed to Klein alone and paid by Klein, he changed the exterior and interior locks, he did not give Bratt a copy of the new keys, he did not notify her in advance that he was going to change the locks, Klein denied access for the repairman requested by Bratt, the upstair rooms were deadbolt locked, Klein put a chain on the treadmill, Bratt needed specific permission by Klein to enter the house, Klein had 50% title to the house, Klein listed the house for sale, Klein dealt with the real estate brokers, Klein made all the necessary arrangements with the real estate brokers including access for inspections, open houses and showing to prospective buyers.   Bratt had to write a letter to Attorney Marc Grenier in order to inspect the house on January 11, 2006.   There was no evidence offered by Klein that he permitted a third party or parties to occupy the house.   There was no evidence of any rent being paid.   There was no evidence that any third party or parties paid utility bills.   Klein paid the homeowner's insurance and the real estate taxes.   Bratt did not occupy the house after she moved out but instead purchased furniture using Klein's credit card to furnish her new apartment.   Klein offered no evidence of his occupancy expenses at any other location for that period of time.

The court finds that Klein had sole exclusive possession, occupancy and control of 40 France Street, Norwalk, Connecticut from January 2005, the day Bratt vacated, until April 2006, when 40 France Street was sold.

The motion to reargue having been granted, the relief requested therein by Klein on the red antique sofa is denied.

B. Lancaster Leather Sofa (Ex. 89);  Claim Amount ($1,999);  Award-$1,000

Bratt made a claim against Klein for $4,495 for the loss of a Lancaster leather sofa.   The court heard testimony from both parties on this claim and allowed Bratt's claim to the extent of $1,000.   Klein now requests that the $1,000 award be reduced to zero since no conversion existed.   Klein is not claiming ownership of the Lancaster leather sofa.

Bratt's trial exhibit stated:  “Restoration hardware Lancaster leather sofa $4,495” and “french entry way table $1,999.”   The court used $4,495 in its chart on Bratt's claim (# 139.10, page 26) and its trial notes recorded the monetary claim set forth in Ex. 89.   Despite the discrepancy of $4,495 and $1,999, the court awarded Bratt $1,000 for the Lancaster leather sofa.

Klein claims that Bratt admitted on cross-examination that there never was a Lancaster leather sofa, that she bought a replacement for another leather sofa in March 2005 after she moved out of 40 France Street.   Klein also claimed that Bratt's testimony was inconsistent and she testified that she actually retrieved that other leather sofa from France Street before the April 2006 closing and donated that non-Lancaster leather sofa to Goodwill Industries.   Klein did not offer any transcripts of Bratt's at trial testimony although he was given the opportunity to do so well before the second hearing date of October 21, 2010.

Bratt's trial testimony established that it was a Lancaster leather sofa and she purchased it in 2003 for $2,100 from an online distributor in South Carolina.   She described the Lancaster leather sofa as brown mahogany with three cushions.   When Bratt left 40 France Street the Lancaster leather sofa was in the living room in good condition.   When the real estate brokers were showing the house in early 2006, Bratt was allowed to inspect the interior of 40 France Street.   The real estate broker was Maggie Tee. The Lancaster leather sofa was missing one cushion.   There were slash marks on its legs, deeper than scratches.   The sofa also had chair mark scratches.   Bratt tried to find the missing cushion but some rooms in the house were locked.   Bratt was not permitted to remove certain personal possessions before the closing so she gave the real estate broker a description of certain items of personal property she wanted to remove including the Lancaster leather sofa.   The Lancaster leather sofa was then removed by the broker's mover before the closing and returned to Bratt's possession.   Due to the damaged condition with a missing cushion, Bratt donated the sofa to Goodwill Industries.   Bratt then purchased a new sofa of similar size from Restoration Hardware.

The court finds Bratt's testimony credible and confirms the award of $1,000 for the damage to the Lancaster leather sofa while it was under Klein's possession, occupancy and control.

The motion to reargue having been granted, the relief requested therein by Klein on the Lancaster leather sofa is denied.

C. Oak Filing Cabinet (Ex. 89);  Claim Amount ($2,645);  Award-$2,000

Bratt made a claim against Klein for $2,645 for the loss of an oak filing cabinet.   The court heard testimony from both parties on this claim and allowed Bratt's claim to the extent of $2,000.   Klein requests that the $2,000 award be reduced to zero on the basis that the oak filing cabinet was a gift from Bratt to Klein, Klein is the owner and there can be no claim for conversion.   Klein claims that Bratt gave him the oak filing cabinet while they both were living at 40 France Street and Klein has had possession of the oak filing cabinet since that date.

Bratt testified that she purchased the oak filing cabinet in August 2004 for $2,645 from Restoration Hardware.   Bratt bought the oak filing cabinet since there were no filing cabinets at 40 France Street.   Klein does not dispute these facts but claims that a gift occurred after August 2004.   Bratt denied such a gift in her trial testimony.   Bratt also purchased a matching bureau from Restoration Hardware in December 2004.   That matching bureau is now in Bratt's apartment.   When Bratt went to 40 France Street to retrieve the oak filing cabinet, it was gone.

Klein claims that he was in the hospital.   Shortly after his return from the hospital, Bratt bought the oak filing cabinet to assist Klein in his work.   He admitted removing the oak filing cabinet from France Street in the winter of 2005 after Bratt vacated and a few months before the closing.   Klein is not now actively using the oak filing cabinet since it is in storage.

No transcript of Bratt's testimony was offered at the two reargument hearings.   The court has carefully examined its detailed trial notes on Bratt's testimony about the oak filing cabinet.   The court did not note any admission by Bratt at trial that the oak filing cabinet was a gift by Bratt to Klein.

The court finds Bratt credible and confirms the award of $2,000 for the loss of the oak filing cabinet.   The court has considered reducing the judgment by $2,000 on the condition that Klein, at his own cost and expense, deliver the oak filing cabinet to Bratt.   The court has decided otherwise, since the oak filing cabinet may have been damaged reducing its fair market value to less than $2,000.   That fact would require further evidence putting the judgment into doubt.   The parties themselves may resolve the matter of the oak filing cabinet without judicial intervention.

The motion to reargue having been granted, the relief requested therein by Klein on the oak filing cabinet is denied.

D. Schifman Mattress (Serta) (Ex. 89);  Claim Amount ($1,852);  Award-$1,000

Bratt made a claim against Klein for $1,852 for loss of a Schifman mattress set.   The court heard testimony from both parties on this claim and allowed Bratt's claim to the extent of $1,000.   Klein requests the $1,000 award be reduced to zero on the basis that there never was a Schifman mattress set, Bratt actually purchased a Serta mattress in 1999 from Bloomingdale's for $400-500 and such a seven-year-old used Serta mattress would have zero market value.

Klein testified that he was with Bratt when she purchased the Serta mattress at Bloomingdale's in 1999 for $400-500.   He testified that when she vacated France Street in January 2005 she did not take the Serta mattress with her.   When Klein moved his possessions just before the April 2006 closing he hired Gilberto Retano to conduct the move.   Klein did not take the Serta mattress.   He left it at 40 France Street.   Bratt hired her own movers and Klein is not aware of what personal property Bratt's movers removed from France Street.

Bratt described the Schifman as a pillow top full size mattress set.   She claims that Klein still has that Schifman pillow top full size mattress set.   She claims that she bought the Schifman pillow top full size mattress set from Bloomingdale's at an unknown date for an unknown price.   Bratt provided no documents relating to the purchase.   On cross-examination she then admitted that the mattress purchased from Bloomingdale's was a Serta and she agreed that her claim is not for the Schifman mattress set but a Serta mattress.   No transcript of either testimony was offered at the two reargument hearings.

Upon further review of this court's detailed trial notes, the court is unsure if a Schifman mattress set is one and the same as a Serta mattress set.   No evidence was offered on that subject by either party.   The court is not going to conduct independent research on whether a Schifman is a Serta, since that requires an opportunity for the parties to reopen the evidence.   Therefore, the court credits Klein's testimony as the most accurate:  that Bratt owned a Serta mattress set purchased at Bloomingdale's for $400-$500 in 1999.   The court was in error in referring to the missing mattress set as a Schifman mattress set, in not referring to the missing mattress as a Serta mattress, in failing to acknowledge a $400-$500 purchase price for the mattress set, in failing to reject the $1,852 Schifman mattress set purchase price and failing to discount to April 2006 the fair market value of a mattress set that has been used for seven years.   Bratt had the burden to prove the fair market value of a used mattress.   Unlike furniture that may have an intrinsic value seven years after purchase, a used mattress for health and aesthetic reasons may have no intrinsic value as a commodity that can be sold.   Bratt failed to produce credible evidence that the lost mattress set, whatever brand name it may be, had any fair market value in April 2006.

The motion to reargue having been granted, the relief requested therein by Klein on the Schifman mattress set is granted.   Bratt's claim for $1,852 for the Schifman mattress set is disallowed.   The $1,000 award to Bratt in the November 25, 2009 Memorandum of Decision for the Schifman mattress set is vacated.   The judgment in favor of Klein against Bratt is thus increased by $1,000.

E. French Entry Way Table (Ex. 89);  Claim Amount ($1,999);  Award-$500.

Bratt made a claim against Klein for $1,999 for the loss of a French entry way table.   The court heard testimony from both parties on the claim and allowed Bratt's claim to the extent of $500.   Klein requests that the $500 award be reduced to zero on the basis that he did not damage or remove the French entry way table.

Klein testified that he did not take any piece of furniture described as a French entry way table.   In fact, he is not sure he knows what this table is.   He cannot admit that Bratt is the owner of what may be described as a French entry way table.

Bratt testified that the French entry way table was in the 40 France Street house when she vacated on January 2005 and was not returned to her, either by her retrieving it during one of her infrequent interior inspections during the time the house was listed for sale, or her final interior inspection with the real estate broker or when the movers returned the personal property to her.   She testified that the French entry way table is not an antique.   She bought it in a Virginia store and paid $600.   It is a reproduction in the French provincial style.   It had scrolling decorations.   She could not locate any purchase records.   No transcript of either party's testimony on the French entry way table was furnished to this court at the two reargument hearings.   The court has reviewed its detailed trial notes of the testimony of both parties on this subject.

The court finds that the French entry way table existed.   It was in the 40 France Street house on January 2005 when Bratt vacated.   It was not in the 40 France Street house as of the April 2006 closing.   Klein had exclusive possession, control and occupancy of 40 France Street for that fifteen-sixteen month period.   Klein therefore is responsible for the loss of the entire French entry way table.   The motion to reargue having been granted, the relief requested therein by Klein on the French entry way table is denied.

3. Klein Should Have Been Awarded 50% of the Withdrawals from the Joint Account for Delavan in the Amount of $11,705.50

The parties had a joint bank account at Peoples Bank. Klein is claiming that the parties made approximately even deposits into the Peoples Bank joint bank account but that Bratt withdrew $23,411 from that account for her purchase of Delavan Avenue, Greenwich, Connecticut real property and other expenditures.   Klein also claims that records in Bratt's own handwriting support this uneven disbursement to Bratt.   Ex. 46, 47, 48, 49, 50 & 51.   Klein states that the court was in error when it found that the $11,000 down payment for the Delavan Avenue purchase came from Bratt's own funds. # 139.10, page 18.   As a result of these facts and the court's error, Klein should have been awarded $11,705.50, which is one-half of the Bratt $23,411 withdrawal from the People's Bank joint bank account used for her purchase of the real property at Delavan Avenue, Greenwich, Connecticut.

The court noted these claims by Klein in the chart in its Memorandum of Decision:  “Peoples Bank joint account deposit differential, Ex. 42.”   Klein's claim 234, Court award to Klein 0;  “Klein's withdrawals from Peoples Bank joint account, Ex. 46” Klein's claim (700).   Court award to Klein 0;  “Bratt withdrawals from Peoples joint account for Delavan, Ex. 46, 51.”   Klein's claim 23,411, Court award to Klein 0. Of these three claims noted in this court's November 25, 2009 Memorandum of Decision the first and second are not part of Klein's motion to reargue (# 139.10, page 24).   There is no dispute that Klein and Bratt made approximately even deposits into the Peoples Bank joint bank account (See Ex. 42) # 147.00. The only remaining issue is the treatment of the Klein $23,411 claim for “Bratt withdrawals from Peoples joint account for Delavan, Ex. 46, 51.” (# 139.10, page 24).   Klein is claiming that the judgment in his favor should be increased by $11,705.50, one-half of the $23,411 Bratt withdrawal.

It is noted that Klein originally claimed that Bratt and Klein were equal partners in the Delavan Avenue, Greenwich, Connecticut purchase.   At trial proof of that claim appeared to be abandoned but Klein pressed his claim for the return of the $49,000 loan plus interest and as well as the excess withdrawals from the Peoples Bank joint bank account.   The court found in Klein's favor on the $49,000 loan and awarded him the $49,000 as a loan together with 10% interest.  “Citibank check dated 3/10/04 deposited to Peoples Bank (Delavan Avenue loan), Ex. 53, 54.”   Klein's claim 49,000, Court award to Klein 49,000 (# 139.10, page 24). “10% interest on $49,000 from 3/17/05-11/25/09” Klein's claim 22,996, Court award to Klein 22,996.   The court rejected Klein's claim for the Bratt over withdrawals from the Peoples Bank joint bank account of $23,411.   In reaching that result the court stated:  “The court finds that the parties impliedly agreed that the plaintiff would loan the defendant the sum of $49,000 so that she could purchase the real property at Delavan Avenue, Greenwich, Connecticut and the defendant would repay that loan.” (# 139.10, page 15).  “The court finds that there were no further express or implied contracts between the parties as to any of their other financial undertakings.” (# 139.10, page 15).   The court did not find that the $11,000 withdrawal by Bratt from the Peoples Bank joint bank account was a loan.   In fact the court found that the $11,000 used by Bratt along with the $49,000 Klein loan was the source of the $60,000 down payment for her purchase of the Delavan Avenue real property and that the $11,000 came from Bratt's own funds. (# 139.10, page 18).   The court further found:  “All other claims made by each party against the other are disallowed for insufficient proof” (# 139.10, page 21).   The court by rejecting the $23,411 withdrawal claim, rejected Klein's 50-50 claim as to the Peoples Bank joint bank account.

Klein's reargument fails to state the legal theory and the facts upon which the Peoples Bank joint bank account was to be divided equally.   Both parties had access rights to the Peoples Bank joint bank account and used these access rights without objection from either party to make deposits and make withdrawals.   Only much later, well after the withdrawals, is Klein now claiming a right to an equal split of those withdrawals.   No banking statute or case law requires a joint bank account to be declared as being owned equally by each depositor.  State v. Lavigne, 121 Conn.App. 190, 203 (2010).

The court has rejected Klein's trial claim for lack of evidence and failure to sustain his burden of proof.   The court found that there was no express or implied contract between the parties except for the $49,000 loan and France Street.

The motion to reargue having been granted, the relief requested therein by Klein as to the additional sum of $11,705.50 from the Peoples Bank joint bank account is denied.

4. The Court Miscalculated the True Differential Between the Parties' Relative Contributions Toward 40 France Street and Klein Should Accordingly be Awarded An Additional $7,890.50

The court spent considerable effort in reviewing all expenses incurred for 40 France Street and the financial contributions made by each party.   It must be noted that there was a previous lawsuit between the parties, a partition action of 40 France Street.   Lisa Bratt v. Jerrold S. Klein and Citibank Federal Savings Bank, FST CV 05-4004611 S. The parties entered into a Stipulation resulting in the withdrawal of the partition action on October 31, 2006.   A portion of that Stipulation was cited in this court's Memorandum of Decision (# 139.10, page 17).  “Bratt and Klein will each receive a 50% share of the Partition Net Proceeds ․” In its November 25, 2009 Memorandum of Decision this court found:  “40 France Street was purchased jointly and sold by both parties jointly.   They mortgaged the property signing the mortgage loan documents jointly.   There was no written agreement that the parties were to share in the expenses at 40 France Street on a 50-50 basis.   Each of the payments made by the respective parties for the down payment, the monthly payments at the first and second mortgages and the payment of utilities and repairs were not made equally at the time they were made.   Upon the sale of 40 France Street, the parties pendente lite divided the net proceeds of $51,433.03 equally, without an agreement that the other expenses incurred and payments made from 40 France Street would be divided 50-50.” (# 139.10, page 16).   Paragraph 4 of Plaintiff's Supplemental Statement dated May 13, 2010 (# 147.00) states:  “The Court miscalculated the true differential between the parties' respective contributions toward 40 France Street and Klein should accordingly be awarded an additional $7,890.50.”   This court made no finding of an exact equal division in its November 25, 2009 Memorandum of Decision.   Klein has furnished no additional facts or law that would support such an exact equal express or implied agreement.   The court did review the various expenditures and found that despite no implied or express agreement, the “parties in actuality did divide the major expenses of 40 France Street very close to 50-50.” (# 139.10, page 17).

It appears that Klein is arguing that the court was in error when it allocated to Klein utilities, taxes, insurance and maintenance costs of 40 France Street from January 2005 when Bratt vacated to the April 2006 closing.   The court has rejected this argument three times (# 139.01, page 16, # 139.01, page 18 and paragraph 2 of this Memorandum of Decision.) “․ the parties created an implied contract that they would share approximately 50-50 in the acquisition and maintenance of 40 France Street during their joint occupancy.”   That joint occupancy ended in January 2005 when Bratt moved out leaving Klein in sole possession, occupancy and control of 40 France Street.

In reaching the conclusions drawn in its Memorandum of Decision, the court considered various numbers, calculations and formulas.   The two stated in its Memorandum of Decision are but a few of those preliminary calculations.   Only one equaled a 50-50 division. (# 139.10, page 17) All others approximated a 50-50 division.   Accepting Klein's reargument figures to support his claim for an exact 50-50 division of $7,782.50, these numbers also approximate 50-50 (Klein $69,293 and Bratt $54,358 equals $123,651 resulting in a 56-44 split).   The exact 50-50 distribution of the net sales proceeds of $51,433.03 would reduce that differential.   Even assuming Klein's argument to be correct and the math to be accurate, a 56-44 split of the expenses at 40 France Street does not change this court's conclusion;  “The parties payments have already divided the 40 France Street issue approximately 50-50.   The court will not enter any further division orders in regards to 40 France Street.   The court recognizes that this result is not a mathematically accurate equal division, but the parties themselves, by making those 40 France Street payments, created a slight variance from 50-50.   The parties, by making these payments, abided by their implied contract in regards to 40 France Street.” (# 139.10, page 16) See # 139.10, page 28 for a 53-47 split in Klein's favor:  $63,786 and $58,358.   Klein obtained the $7,890.50 claim by calculations that led to Klein's expenses of $69,293 and Bratt's expenses of $54,358.   Using Klein's reargument figures, Klein $69,293 and Bratt $54,358, fails to take into account that Klein alone was held by this court to be responsible for the utilities, real estate taxes, insurance and maintenance costs of 40 France Street from January 2005 until April 2006. (# 147.00, paragraph 4, page 4).   Klein's own figures for utilities, real estate taxes, insurance and maintenance is $21,703.   Subtracting the $21,703 from Klein's reargument figures of $69,293 leaves Klein at $47,590 and Bratt at $54,358.   There is a 46.7%/53.3% division in favor of Bratt.   The court finds such a 46.7%/53.3% in favor of Bratt, is also an approximate 50-50 division.

The motion to reargue having been granted, the relief requested therein by Klein as to the additional sum of $7,890.50 from the 40 France Street expenses is denied.

5. $19,350 In Loan Advances Made By Klein

Klein claims that he made $19,350 in loan advances to Bratt between June 6, 2000 and July 2, 2001.   Ex. 1, 4, 5, 6, 7, 8, 9, 10, 11 and 13.   The court considered each of the twelve transactions and rejected each of Klein's claims therein that totaled the $19,350 (# 139.10, pages 19 and 20).   The court concluded that Klein failed to prove that any of these twelve transactions were loans.  “Despite the detailed documentation of hundreds of transactions showing the date, source and amount of each transaction, documents that the plaintiff meticulously either kept or marshaled for this trial, none mentions ‘loans' other than the above three checks.   This inconsistency adversely affects the plaintiff's credibility.” (# 139.10, page 19).   The court concludes that Klein is trying to obtain a “second bite of the apple” in regards to the $19,350.   Opoku v. Grant, supra, 63 Conn.App. 693.   The motion to reargue having been granted, the relief requested therein by Klein as to the additional sum of $19,350 as loans from June 6, 2000 to July 2, 2001 is denied.

6. Certain Sub-Categories of American Express Charges that Bratt Admitted Personal Responsibility for During Her Testimony in the Amount of $14,570.98 Should Have Been Added to Klein's Award

Klein is requesting an additional $14,570.98 based upon a chart that contains six categories of expenses, incurred by Bratt for the years 2001, 2002, 2003 and 2004.   They are Poland Spring Purchases (Bratt may have sold Poland Spring products to her fellow employees), GMAT/Tution Expenses (Bratt studied and took the GMAT tests), Commuting Expenses;  (MTA/Metro-North Bratt's commuting expenses from Connecticut to New York City), Concord Limousine (Bratt's personal transportation), NYC Gym Charges (Bratt's personal use of a gym membership in her name) and NYS Income Tax (a one time payment in 2002 of $3,895 for Bratt's personal income taxes due the State of New York.)

Except for the real estate, the court found “that there were no further express or implied contracts between the parties as to any of their other financial undertakings” (# 139.10, page 15).   The court therefore rejected the extensive proof offered by Klein for the myriad of American Express credit card charges.   The court did carve out one exception:  “The defendant has judicially admitted at trial that she owes the plaintiff $6,735 for recent purchases she made on the American Express card just before the parties separated” (# 139.01, page 15).

The court's November 25, 2009 Memorandum of Decision (# 139.10, page 24) contains a chart with five categories relating to American Express Card charges:  “2001, Ex. 31, 33 10,246”;  “2002, Ex. 18, 33 19,552”;  “2003, Ex. 20, 29, 30 15,749”;  “2004, Ex. 28, 29, 30 20,252”;  and “Furnishing for defendant's new apartment, Ex. 86 6,735.”   The first four categories were rejected at trial and the court awarded Klein the entire $6,735 together with $1,980 as 6% interest on $6,735 from 1/1/05 to 11/25/09. (# 139.01, page 24.)

By allowing the $6,735 the court did not intend to revisit the American Express Card charges, even those that admittedly were incurred by Bratt for her own personal needs and uses.   The court allowed the $6,735 because Bratt judicially admitted that she was liable for the $6,735 to Klein.   Bratt made no other judicial admissions on Klein's American Express Card claims.   The court's findings as to the American Express Card charges remain as stated in the November 25, 2009 Memorandum of Decision.

The motion to reargue having been granted, the relief requested therein by Klein for an additional sum of $14,570.98 on the American Express Card charges is denied.

ORDER

The court hereby changes the orders in its Memorandum of Decision dated November 25, 2009 (# 139.01) as follows:

(1) on page 26 on the line entitled “Schifman set claim (Serta), Ex. 89, Original claim.”   Change to “Court's Findings 0”;

(2) on page 27, on the line entitled “Less Court's Award to Lisa Bratt” Change to “-4,000”

(3) on page 27, on the line entitled “Monetary judgment in favor of Jerrold S. Klein” Change to “$76,911”;

(4) on page 27, the first full sentence beginning with “The court hereby” is deleted, and

(5) on page 27, this sentence is substituted therefore:  “The court hereby enters judgment in favor of the plaintiff, Jerrold S. Klein, as against the defendant, Lisa Bratt, in the amount of $76,711.”

All other portions of the Memorandum of Decision dated November 25, 2009 remain as stated. (# 139.10).

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.