William Caldwell et al. v. Patricia Caldwell et al. (2011)

AMENDED MEMORANDUM OF DECISION RE PARTITION

The litigants own equally an undivided one-half interest in a condominium identified as Swanson Crescent, Unit 3, Foxwood Condominium, Milford, Connecticut.   The other one-half interest is owned by the heirs of Emma Caldwell, collectively referred to herein as the Estate of Emma A. Caldwell.   The entire condominium was occupied by Emma Caldwell until April 13, 2008 at which time Emma Caldwell died.

Thereafter certain expenses, carrying charges relative to the entire condominium were paid by Francis “Joe” Delaney, executor of the estate of Emma Caldwell.   In addition, certain expenses were incurred and paid by William Caldwell in renovating and marketing the entire condominium.

On or about December 5, 2008, a written contract was entered into to sell the entire condominium.   The contract of sale was signed jointly by William Caldwell, individually, and Francis Delaney, Executor (of the estate of Emma Caldwell).   A closing was scheduled for January 31, 2009, which was aborted because the defendant Patricia Caldwell refused to attend the closing and also refused to sign all the necessary papers including the deed of transfer in order to effectuate a transfer of title.

This turn of events precipitated the instant action claiming in Count One a partition action pursuant to C.G.S. § 52–495 and sale pursuant to C.G.S. § 52–500.   The plaintiffs further claim, in count two, damages by reason of tortious interference of contract rights.   The court ordered a public auction sale of the litigants' undivided one-half interest in the subject condominium pursuant to C.G.S. § 52–500.   Incident thereto, the court appointed Attorney Linda Fogler as Committee to conduct a public auction sale to occur on March 27, 2010.

The plaintiff William Caldwell was the only bidder at the public auction sale and bid $1.00 as a purchase price.   The committee incurred certain expenses relative to the public auction sale that took place on March 27, 2010.

Subsequently, the public auction sale that took place on March 27, 2010 was disapproved due to insufficiency of bid.

Therefore, the court ordered Linda Fogler, as Committee to conduct another public/private auction sale to occur on July 2, 2010.

The plaintiff William Caldwell bid $40,000.00 as a purchase price, which was approved by the court despite objection by the defendant Patricia Caldwell.

The committee incurred further expense relative to the public/private auction sale on July 2, 2010.

Transfer of the title took place on August 18, 2010 and William Caldwell personally became sole owner of a one-half undivided interest in the subject condominium.   The Court now has in hand $40,000 subject to disbursement.

A bench trial was held on October 29, 2010 wherein the litigants presented evidence and testimony as to their respective claims.

The plaintiffs claim that all litigants should be equally responsible for one-half of all expenses, carrying charges and renovation expenses expended on behalf of the entire condominium from April 14, 2008 to January 31, 2009.   The plaintiffs further claim that the defendant, Patricia Caldwell should be personally responsible for one-half of all expenses and carrying charges incurred and paid on behalf of the entire condominium from February 1, 2009 to on or about October 10, 2010.

The defendant Patricia Caldwell disagrees with and objects to the plaintiff's claims.

The plaintiff's claims are partially misguided.

Connecticut General Statutes § 52–550 entitled Statute Frauds;  Written agreement or memorandum, provides in part “(a) No civil action may be maintained ․ unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party ․ to be charged ․ upon any agreement for the sale of real property or any interest in or concerning real property.”

This Court finds that the defendant, Patricia Caldwell, was not a signatory party to the contract for sale regarding the subject condominium entered into or about December 5, 2008.

It is axiomatic that a party cannot be charged to something not legally obligated to do.   The defendant, Patricia Caldwell, was not legally obligated to enter into or join in that certain contract of sale entered into on or about December 5, 2008 ¹ and further not legally obligated to participate in the scheduled closing.

The solution to this impasse by, between and among the litigants is partition pursuant to Chapter 919 of the Connecticut General Statutes as applicable.

Section 52–495, entitled Partition of Joint and Common Estates provides:

Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in task.   The court may appoint a committee to partition any such property ․

Section 52–500, entitled Sale or Equitable Distribution of Real or Personal property owned by two or more persons.   Life estate provides in part “any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interest of the owners.”

“The right to partition is founded on the principle that no person can be compelled to remain the owner with another of real property, even if the party seeking the partition willingly entered into the joint ownership.  General Statutes § 52–495 confers an absolute right of partition upon any person holding real property as a tenant in common with others ․ In those cases where the court finds that a sale of the property would better promote the interest of the owners, the court may order such a sale.  General Statutes § 52–500.”  (Citations omitted.)  Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 25–26, 544 A.2d 1207 (1988).

“Ordinarily, in a partition by sale, the claims of the parties as to their interests in the property are considered in connection with the distribution of the proceeds.”  Gaer Brothers, Inc. v. Mott, 147 Conn. 415, 161 a.2d 782 (1960);  Katula v. Paradis, 1 Conn.Sup. 117, 119 (1935) (“In a partition suit, the division of the ․ proceeds may be based upon equitable interests”).

Francis “Joe” Delany testified credibly that he paid certain expenses and carrying charges for and on behalf of the entire condominium.   He broke down the payments into two time frames from April 14, 2008 to January 31, 2009 (the date of the aborted closing) and from February 1, 2009 to October 10, 2010.

From April 14, 2008 to January 31, 2009, Francis “Joe” Delaney testified that he made the following expenditures:

Mortgage and Taxes $4,550.78

Monthly condominium fees $2,114.12

Electricity $ 307.12

Condominium recording fee $ 75.00

Insurance Fee $ 30.00

$7,077.02 ÷ 2 = $3,538.51

This court finds that it is fair and equitable to charge one half of these expenditures to the litigants herein in equal amounts as to each litigant.

Francis “Joe” Delaney further testified that he made the following expenditures from February 1, 2009 to October 10, 2010, a time frame of approximately 21 months:

Mortgage and Taxes ² $ 7,252.26

Condominium fees (21 months) ³ $ 4,641.00

Condominium Insurance $ 276.00

Utilities ⁴ $ 334.63

$12,503.89

These figures do not reconcile.   Therefore in order to be imminently fair to all parties concerned herein;  this court makes the following adjustments.⁵

As regards mortgage and taxes, there were no mortgage payments due and owing.   Further, the only real estate taxes payments that would have been made by Francis “Joe” Delaney are:

July 2009 ⁶ $1,439.41

January 2010 $1,439.41

July 2010 $1,439.41

$4,318.23

In Milford, real estate taxes are considered paid for the next six months that is the July 2010 real estate payment covers July 1, 2010 to December 31, 2010.   The litigants herein are only liable for half of the real estate taxes paid in July 2009 and January 2010.   Further, the litigants are only liable for real estate taxes as regards the July 2010 real estate tax payment from July 1, 2010 to August 18, 2010, a period of seven weeks. $1,439.41 ÷ 26 = $55.36 per week x 7 = $387.53.

The expenditure for condominium fees must be adjusted to eliminate any condominium fees for the second half of August, and September and October. 2 1/2 x $221.00 = $552.50

The expenditures for utilities must be adjusted to eliminate any utility expenses for the second half of August and September and October.

The utilities on average are 16.00 per month.   Therefore, the utilities charge of $334.63 must be reduced by $40.00. ($16.00 x 2 1/2 = $40).

Recapping the fair equitable and correct amounts to be charged to all litigants from February 1, 2009 to August 18, 2010 is as follows:

Taxes July 2009 $1,439.41

January 2010 $1,439.41

July 1, 2010 to August 18, 2010 $ 387.53

$3,266.35

Condominium Fees February 2009 to

August 18, 2010, 18 1/2 months

@ $221.  Per month $4,088.50

Condominium Insurance $276.00

Utilities $ 294.63

$7,925.48 ÷ 2 = $3,962.74

The Court finds that it is fair and equitable to charge one-half of these expenditures to the litigants in equal amounts as to each litigant.

William Caldwell testified credibly that he made and incurred the following expenditures on behalf of the entire condominium in order to remodel and make it marketable.

Remodel kitchen and bathroom $ 6,250.00

Flooring and carpeting $ 2,928.00

Refrigerator, stove and dishwasher $ 1,614.00

Cabinets and new sink in bathroom & kitchen $ 600.00

Storm Door $ 800.00

Interior doors, knobs, hinges, hardware $ 500.00

Electrical work $ 600.00

William Caldwell—labor $ 3,600.00

William Caldwell—mileage $ 510.00

$17,402.00 ÷ 2 = $8,701.00

The Court finds that it is fair and equitable to charge one-half of these expenditures to the litigants in equal amounts as to each litigant.

The second count of the plaintiff's complaint sounds in tortuous interference with contractual relations.

“Connecticut has long recognized a cause of action for tortious interference with business relations ․ The necessary elements of a cause of action in tortious interference with business relations are the existence of a business relationship, an intentional and improper interference with that relationship and a resulting loss of benefits of the relationship ․ [N]ot every act that disturbs a contract or business expectancy is actionable ․ [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means.”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 768–69, 706 A.2d 1379 (1998).

This court finds that the plaintiffs have failed to present any credible evidence supporting the tort of tortious interference with contractual relations.   Further, “The Plaintiffs are waiving any claim that the defendant was under any form of a legal obligation and/or duty to sell her one-fifth interest of a one-half interest in the condominium unit at issue.”   (Plaintiff's post-trial brief dated December 15, 2009(sic) page 1.)

This court enters judgment in favor of the defendant, Patricia Caldwell on Count Two of the plaintiff's complaint.

The plaintiff filed a Bill of Costs dated March 9, 2011 as follows:

Superior Court filing fee $300.00

State Marshal Fee $221.14

*Proceedings before trial $ 50.00

*Trial of an issue of law or fact $ 75.00

*Difficulties of case/defense interposed $200.00

$846.14

The Defendant, Patricia Caldwell, objected to the Bill of Costs.

Those items marked with an asterisk are by way of indemnification and do not represent cash outlays and this court does not believe they should be assessed against any litigants herein.   However, the Superior Court filing fee ($300.00) and State Marshal filing fee ($221.14) are cash outlays and should be borne equally as to each litigant.

The Court orders the following disbursements from the sum of $40,000.00 on hand:

To:  Linda Fogler

Committee Fees $3,600.00

Expenses $ 956.11 ⁷

Appraisal Fee $ 325.00 $ 4,881.11

To:  Francis “Joe” Delaney

Expenses—April 14, 2008 to January 31, 2009 $3,538.51

Expenses—February 1, 2009 to August 18, 2010 $3,962.74 $ 7,501.25

To:  William Caldwell

Remodeling, etc. $8,701.00

Bill of Costs $ 521.14 $ 9,222.14

= $21,604.50

These disbursements total $21,604.50 leaving a balance of $18,395.50 to be disbursed equally among the litigants:

To:  William Caldwell $ 3,679.10

James Caldwell $ 3,679.10

Jeffrey Caldwell $ 3,679.10

Jack Caldwell $ 3,679.10

Patricia Caldwell $ 3,679.10

$18,395.50

+$21,604.50

$40,000.00

Judgment shall enter accordingly.⁸

John W. Moran, Judge Trial Referee

FOOTNOTES

FN1. Further, the plaintiffs concede that the defendant Patricia Caldwell was not legally obligated to join in said contract of sale or participate in the close and transfer of title.   See plaintiff's post-trial brief, dated December 15, 2009(sic) page 1..  FN1. Further, the plaintiffs concede that the defendant Patricia Caldwell was not legally obligated to join in said contract of sale or participate in the close and transfer of title.   See plaintiff's post-trial brief, dated December 15, 2009(sic) page 1.

FN2. Note that mortgage was paid in full in December 2009..  FN2. Note that mortgage was paid in full in December 2009.

FN3. Note that title to half of the condominium passed to William Caldwell on August 18, 2010 and this amount must be adjusted lest the litigants herein are overcharged..  FN3. Note that title to half of the condominium passed to William Caldwell on August 18, 2010 and this amount must be adjusted lest the litigants herein are overcharged.

FN4. See footnote 3..  FN4. See footnote 3.

FN5. This Court invokes its experience based on over 26 years of private legal practice in the City of Milford having handled hundreds of residential closings.   In addition, such adjustments are made based on interpolation of the testimony of Francis “Joe” Delaney..  FN5. This Court invokes its experience based on over 26 years of private legal practice in the City of Milford having handled hundreds of residential closings.   In addition, such adjustments are made based on interpolation of the testimony of Francis “Joe” Delaney.

FN6. Bank paid real estate taxes due January 2009 per testimony of “Joe” Delaney..  FN6. Bank paid real estate taxes due January 2009 per testimony of “Joe” Delaney.

FN7. In reviewing this file, the Court has discovered an arithmetic error in Order dated 9/9/10, # 119.01. The figure of $1,281.11 for expenses includes $325.00 appraisal and thus constitutes a double entry of $325.00 for appraisal fee..  FN7. In reviewing this file, the Court has discovered an arithmetic error in Order dated 9/9/10, # 119.01. The figure of $1,281.11 for expenses includes $325.00 appraisal and thus constitutes a double entry of $325.00 for appraisal fee.

FN8. Please note that this decision and judgment is based only on the credible testimony (subject to adjustments as necessary) and is not intended to interfere with any informal agreements by, between and among any persons concerned herein..  FN8. Please note that this decision and judgment is based only on the credible testimony (subject to adjustments as necessary) and is not intended to interfere with any informal agreements by, between and among any persons concerned herein.

Moran, John W., J.T.R.