Ivanhoe Investment Partners, L.P. v. Andrew Murray (2012)

MEMORANDUM OF DECISION RE COMPLAINT FOR BILL OF DISCOVERY (100.31).

Ivanhoe Investment Partners, L.P. (Ivanhoe) filed a complaint for a bill of discovery directed to Andrew Murray.   There is a pending civil action in this court wherein Ivanhoe seeks money damages from the late John Murray, among others, arising from an alleged fraud committed by John Murray and others in connection with an investment by Ivanhoe that was allegedly lost or dissipated.   Ivanhoe Investment Partners, L.P. v. Bjorn Koritz, CV 10 5013308.   Prejudgment remedies have been granted against John Murray and Koritz, the one against John Murray in January 2011.   John Murray and his wife Mary Elizabeth Murray each died in 2011.   Estates for each have been opened in New York Surrogate's Court.

The Defendant Andrew Murray is the son of John and Mary Elizabeth Murray.   In 2010 Andrew Murray held a power of attorney for his father who was ill.   It is alleged by Ivanhoe that certain “reverse mortgage” transactions affecting two pieces of property owned by John Murray took place in the spring of 2010.   Apparently, the proceeds were put into an Emigrant Savings Bank account in the joint names of John and Andrew Murray.

Ivanhoe alleges that an unjust enrichment of Andrew Murray and his mother's Estate would occur unless a constructive trust is imposed.   It is alleged that Andrew Murray has refused to produce any documents concerning “financial transactions he executed on behalf of his father” (presumably the “reverse mortgage” transactions).   It is alleged there is a potential cause of action against Andrew and the Estate of Mary Elizabeth and there is no adequate remedy to obtain the materials requested which are documents about the refinancing transactions and how the proceeds thereof were used.

A “bill of discovery is an independent action in equity for discovery to be used in another proceeding ․ because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection.”   Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 680–81 (2008) (quoting Berger v. Cuomo, 230 Conn. 1, 5–7 (1994)).  “The plaintiff must demonstrate by detailed facts that there is probable cause to bring a potential cause of action ․ must demonstrate more than mere suspicion.”   Berger v. Cuomo, supra, 230 Conn. 7. The plaintiff must also show he has no other adequate means of enforcing discovery, and a remedy is “adequate” only if it is specific and adapted to securing the relief sought.  Id., 6.

The bill of discovery is denied for the following reasons.   First, at the hearing on this matter on May 14, 2012 the court repeatedly inquired as to the facts supporting a finding of probable cause, and the responses failed to identify any such facts.   It was contended that John Murray, abetted by Andrew, sought to reduce the equity in John Murray's real estate assets to evade the prejudgment remedy.   This is not persuasive because no attachment against John Murray was even sought until at least six months after the reverse mortgage financings took place.   It was also contended that Andrew Murray had control over the Emigrant Savings Bank account, but Andrew Murray testified in a deposition by Ivanhoe that he never wrote a check on that account.   Exhibit E., p. 25.

Second, there are specific, direct and adequate remedies available to Ivanhoe.   Ivanhoe has availed itself of one such remedy by obtaining an order in the pending case allowing the deposition of Andrew Murray on the question of encumbrances against John Murray's property and other assets.  Ivanhoe Investment Partners, L.P. v. Koritz, supra, Dkt Entry 144.87 (Order of Jennings, JTR.) In addition, Ivanhoe has initiated a probate of the Estate of John Murray and initiated a claim against the Estate of Mary Elizabeth Murray in New York State, and discovery is available in those forums.   Finally, Ivanhoe could take the deposition and examine records of the joint account at Emigrant Savings Bank.

Ivanhoe contended at the hearing that during and after Andrew Murray's deposition, Murray and his counsel promised to produce certain documents.   The court observed that argument might be persuasive if borne out.   The court has examined the Andrew Murray deposition transcript and finds no requests by Ivanhoe's counsel and no agreement by Andrew Murray to produce any documents.   This court has no evidence before it that a subpoena for documents was served.   If there was such a subpoena or document request, Ivanhoe's remedy lies with enforcement action in the pending case.

Subsequent to the hearing, the court received an uninvited submission by Ivanhoe that included copies of correspondence between Ivanhoe's and Murray's counsel.   This correspondence and the accompanying affidavit of Attorney Bonsangue does not contain evidence of any agreement by Andrew Murray to produce documents.

Conclusion

The bill of discovery application is denied.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.