Andrew Oberwager v. Karolina Stefanski (2012)

MEMORANDUM OF DECISION

This case comes to this court as a court trial.   The parties were in a relationship for several years wherein among other things, they lived together.   The underlying complaint of the plaintiff is dated February 14, 2008.   The first count sounds in conversion.   The second count sounds in statutory theft.   The third count is a breach of contract claim.   The defendant filed the first revised answer Pleading No. 107 essentially denying the claims in the three counts.   Special defenses were asserted as to Counts One and Two and there were also four affirmative defenses.   In addition, the defendant counterclaimed in defamation-slander per se in the first counterclaim.   In the second counterclaim there was an invasion of privacy claim.   The defendant sought money damages for those counterclaims.   The plaintiff filed an answer to the counterclaims Pleading No. 111 denying the counterclaims and inserting special defenses as to the counterclaims.   The plaintiff also filed a reply to the special defenses being Pleading No. 112.

The court in rendering this decision has reviewed all the exhibits, the testimony of the witnesses and the briefs of the parties.   The parties do not substantially dispute the law.   The dispute is in the factual claims of the parties.

Although the trial was extensive, the central issue was the negotiation of the plaintiff's check No. 368 Exhibit 1 by the defendant on January 7, 2007.   On that date she filled in herself as the payee, put in the amount of $80,000.00, wrote in the amount in words and negotiated the check.   The check had previously been signed by the plaintiff.   The central issue was whether this check that was delivered in July or August of 2004 was ever intended for the defendant's personal use without restriction.

The court finds the more persuasive evidence is that the check was delivered in 2004, Exhibit 1 for the limited purposes of emergency funds for the defendant's use while the plaintiff was traveling.

The court finds the following facts to be true.   The plaintiff testified that he gave the defendant a check in 2004 while they were living together to pay for household bills that needed to be paid when he was away on business.   He paid his bills on time, and communicated to the defendant his concern about timely payment of bills.   At the time they began their relationship in 2003, the defendant was not able to pay the household bills and was not working.   In 2004 the plaintiff began traveling for work, often for extended periods of time and would travel several times a year.   In order to make sure the bills were paid on time he gave the defendant the check at issue in this case.   Based on checks Nos. 367 and 369, he gave the defendant the check, Exhibit 1, sometime in July or August of 2004.   Check No. 367 was a check payable to the City of Stamford for $20.00.   That was dated July 16, 2004.   Check No. 369 was made payable to Cablevision for $285.41, on September 13, 2004.   These are the two checks either side of the check in question.

The plaintiff's version of the delivery of Exhibit No. 1 is more credible then the defendant's version.   He testified “the discussion was, if I'm away and we need to pay a household expense, utilities bill ․ since this was my first home and we had a lot of people coming in and out with cable, phones, painters and air conditioning people, that if I was away and the check was due, that she'd be able to pay a household expense with it.”   Question:  Is that the only purpose for which you gave her the check?   Answer:  Yes. Question:  Did she understand this was the case?   Answer:  Yes.

If the check as the defendant claims was intended for her personal use, the plaintiff could have made it payable to her, but he did not, and he did not make it payable to her because it wasn't for her.   Rather it was available for the payment of bills.   The “for” part of the check was not filled out since it was contemplated that she would fill it out when she negotiated it for bill purposes.   The plaintiff and defendant never discussed the check again until she negotiated it on January 7, 2007.   His testimony is credible that he had forgotten about the check.   It was in fact a check with the old apartment and address.   He had obtained new checks at the new address when they moved and put away those old checks and forgot about this one.

In addition, assisting his credibility concerning the $80,000.00 improper usage of the check were other activities.   At some point it became clear the parties were splitting up and she was returning to Germany.   Exhibit No. 3 is an email from the defendant to the plaintiff dated January 9, 2007.   In that email she advises him that she looked into prices for shipping her “stuff” to Germany and $3,300.00 was the cost.   She asked him specifically if she can use his credit card for this purpose.   Approximately one week prior to depositing the $80,000.00 check to her account, she had asked the plaintiff for $5,000.00 in order to pay her credit card.   He gave her $5,000.00 by check dated January 3, 2007.   See Exhibit No. 4. It is clear to this court that these two requests made it clear that she knew she was not entitled to take the plaintiff's money at will.   The $80,000.00 was a wrongful conversion.   The court finds that the check set forth as Exhibit No. 1 was delivered on condition that it be used for household bills and not for unrestricted use as done by the defendant.

The court finds the plaintiff has failed to prove the elements of statutory theft, particularly as it relates to the criminal intent necessary under § 52–564 and the theft statutes.

In the Third Count the plaintiff alleges a breach of contract.   He claims that he entered into a contract with the defendant wherein he agreed to finance the defendant's college education provided she repaid the loan after she graduated and obtained paid employment.   His claim in the complaint was for $32,785.50.   At trial it was $59,434.41, a substantial difference.   The plaintiff has failed to prove by a preponderance of the evidence a breach of any contract.   The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.

The plaintiff was unable to provide a written contract.   He provided a budget.   The claim of the plaintiff is that the budget was a memorialization of some terms of a written contract that he alleged was entered into between the parties.   The terms of the loan including how much is being borrowed are not contained in the writing.   There are no terms of repayment, and no total amount of repayment is established.

The defendant's testimony is more credible.   She says that the only agreement between the plaintiff and defendant was an oral one pertaining to her coming to the United States for school and the plaintiff's representations that he would pay for her school and all of her related expenses.   The defendant began work full time in October of 2003, and the plaintiff did not ask for repayment until she left in January 2007.

In addition, the course of dealing between the parties was that they had been living in a relationship with each other for six or seven years.   That they loved each other, and that he supported her financially, gave her money for personal bills, debts and expenses without ever requesting repayment.   He provided her a place to live, paid her dental bills, bought her clothes, paid her day-to-day expenses as well as household expenses.   He never requested repayment, and indicated that he was not concerned with that part of the money.

Accordingly, the plaintiff has failed to prove the contract.   There was no meeting of the minds.   There was no definite amount, and no terms or dates or conditions of repayment were set forth in any agreement.

All special defenses and affirmative defenses as pleaded are found not to have been proven by a fair preponderance of the evidence, except as they relate to the rulings on the underlying claims.

The defendant has filed counterclaims.   The first counterclaim is defamation-slander per se, and the second counterclaim is invasion of privacy.

In order to prove slander which is oral defamation of character, she must show that he slandered her by exposing her to shame, scorn, or ridicule when he told third parties that she stole money and was in a lot of trouble for stealing money.   In this case, the plaintiff never testified about the slander or the false light privacy claims in her testimony.   Her key witness was Cheryl Floyd, and she failed to identify any specific individuals to whom the plaintiff communicated the alleged theft of his $80,000.00.   The bulk of her testimony was hearsay.   The defendant did not testify to any damages she sustained.

To prove false light privacy, it must be proved that the plaintiff placed the defendant in a false light before the public with words that would be highly offensive to a reasonable person.   The claim was that he directly publicized those statements.   This court does not find publication proven.

There is no evidence of any damages suffered.   Again, the defendant did not testify as to her counterclaims when she was on the stand.

Truth is an absolute defense to slander.   In this case the court did not find theft.   However, conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights, this is very close to theft.

Accordingly, the court finds the defendant has not proven her slander or false light privacy claims.

Accordingly, the court enters the following orders:

1. The plaintiff has prevailed on the First Count conversion.

2. The plaintiff has failed to prove by a preponderance of the evidence statutory theft in the Second Count and the Third Count of breach of contract.

3. The court finds that the defendant has failed to prove her counterclaims by a fair preponderance of the evidence, being the first counterclaim of defamation-slander per se and the Second Count of invasion of privacy.

4. All special and affirmative defenses by the plaintiff and the defendant to the respective opposing parties claims, not specifically addressed herein are denied as they have not been proven by a fair preponderance of the evidence.

5. Judgment may enter for the plaintiff in the sum of $80,000.00

6. No attorneys fees are awarded the plaintiff.

7. No interest is awarded the plaintiff since the court does not find the money was wrongfully withheld.   It was withheld on a bona fide belief that the money could be used by the defendant as she stated.

6. Any other claims made, but not specifically addressed herein are denied.

SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.