Bienvenido Fabian v. Nancy Cordova et al. (2011)

MEMORANDUM OF DECISION

In this multi-count complaint the plaintiff seeks recovery against the defendants for conversion and statutory theft of a grocery store business ¹ which he claims was taken from him while he was recovering from an injury in the Dominican Republic.   The case turns entirely on whether the plaintiff's signatures on an Asset Purchase Agreement and a Bill of Sale pursuant to which the defendant, Angie's, LLC purported to purchase the business, are genuine.   The plaintiff contends that they are forgeries while the defendants Nancy Castro and Nancy (“Patty”) Cordova contend that not only are they genuine but that Nancy Cordova paid to the plaintiff in consideration for the business the total sum of $120,000.   At the time, Nancy was the plaintiff's wife and Patty was his stepdaughter.   Nancy and the plaintiff thereafter divorced.

The court finds the following facts.   Both of the transactional documents referred to above were prepared by the law office of E. Gaynor Brennan.   While the plaintiff was in the Dominican Republic Nancy Castro took the documents to the Dominican Republic and had the plaintiff sign them in her presence.   After she returned to Stamford she brought them to Attorney Brennan's office where Jodi R. Gross, Mr. Brennan's secretary, purported to take the plaintiff's acknowledgment in absentia since the plaintiff was still in the Dominican Republic.   At various times Patty made installment payments to the plaintiff in cash and by check.   In addition, some of the payments were made through the checking account of a friend, one Liliana Pareja.

When the plaintiff returned to Stamford after spending approximately four months in the Dominican Republic he attempted to regain the business from Angie's, LLC. The plaintiff was denied access to the grocery store and thereupon filed a complaint against the defendants claiming forgery of the transactional documents and theft of the business.

At the request of the Stamford Police the Connecticut Forensic Science Laboratory was asked to provide a handwriting analysis of the plaintiff's signatures as contained on the transactional documents.   From authenticated exemplars of the plaintiff's signature that were provided from other sources, handwriting expert Craig Kettering testified that the signatures on the transactional documents were made by the same author as the exemplars.   This opinion was given to a degree of absolute, not reasonable certainty.   Mr. Kettering then examined other signatures which the plaintiff had used and determined that the plaintiff had used two different signatures at various times.   The court accepts Mr. Kettering's testimony and finds that the plaintiff actually signed the documents in question.

It is well settled that the plaintiff has the burden of proof in a civil action by a preponderance of the evidence.   The plaintiff has failed to sustain his burden as the court finds his testimony to lack credibility.   Obviously, any higher level of proof required for enhanced damages likewise fails.

Judgment may enter for the defendants.

BY THE COURT

A. William Mottolese

Judge Trial Referee

FOOTNOTES

FN1. The complaint also seeks recovery for unjust enrichment and for violation of CUTPA.   The former does not apply and no evidence or argument was presented to support the latter..  FN1. The complaint also seeks recovery for unjust enrichment and for violation of CUTPA.   The former does not apply and no evidence or argument was presented to support the latter.

Mottolese, A. William, J.T.R.