Melonia Yaneczki v. Roy Moeckel et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY

Before the court is the plaintiff, Melonia Yaneczki's application for a prejudgment remedy.   Evidentiary hearings were held on July 10 and 29, 2013.   Testimony was received from the plaintiff and both defendants. 29 exhibits were received into evidence.

For the reasons set forth below, the court grants the prejudgment remedy requested.

I. NATURE OF THE PROCEEDINGS

At the time of the hearing, the Plaintiff Melonia “Mella” Yaneczki was 92 years of age.   The defendant Robert Matues is Mella's nephew.   The defendant Roy Moeckel is Matues' domestic partner.

Prior to November of 2004, Mella lived with her sister Florence and relied upon her sister to manage her financial and household dealings.   Around November of 2004, Florence passed away.   The plaintiff then sought the assistance of her nephew to pay her bills, manage her bank accounts and assist her with day to day household needs.   On November 8, 2005, Mella executed a power of attorney in favor of Matues and Moeckel.   The plaintiff executed a second power of attorney in favor of Matues and Moeckel on September 15, 2009 and that power of attorney was in effect through July 15, 2011.   Both powers of attorney gave the defendants authority to conduct banking and financial transactions on behalf of the plaintiff.

This lawsuit arises from misappropriation of funds and mishandling of the plaintiff's financial affairs which occurred during the period from November 2005 to July 2011 when the powers of attorney were in effect.

The plaintiff's proposed complaint is in eleven counts.   The First Count and Second Counts allege breach of fiduciary duty as to against Roy Moeckel and Robert Matues respectively.   The Third and Fourth Counts allege civil conversion against Roy Moeckel and Robert Matues respectively.   The Fifth and Sixth Count allege statutory theft against Roy Moeckel and Robert Matues respectively.   The Seventh Count alleges a civil conspiracy between Roy Moeckel and Robert Matues to commit civil conversion.   The Eighth Count alleges a civil conspiracy between Roy Moeckel and Robert Matues to commit statutory theft.   The Ninth Count alleges unjust enrichment as to Roy Moeckel and Robert Matues.   The Tenth and Eleventh Counts allege exertion of undue influence over the plaintiff by Roy Moeckel and Robert Matues respectively.

II. STANDARD OF PROOF—PROBABLE CAUSE

“A prejudgment remedy is available upon a finding by the court that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ․' General Statutes § 52–278d(a)(1).”  Margolin v. Kleban & Samor, PC, 275 Conn. 765, 767–68 n.3, 882 A.2d 653 (2005).

“Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence ․ The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false ․ Under this standard, the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits ․” Kosiorek v. Smigelski, 112 Conn.App. 315, 319, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009).

Generally, “a trial court [must] make a probable cause determination as to both the validity of the plaintiff's claim and the amount of the remedy sought.”  TES Franchising, LLC v. Feldman, 286 Conn. 132, 145–46, 943 A.2d 406 (2008).  “Although the likely amount of damages need not be determined with mathematical precision ․ the plaintiff bears the burden of presenting evidence [that] affords a reasonable basis for measuring her loss” [internal quotation marks omitted] ).  Id.

“[I]t is well settled that, in determining whether to grant a prejudgment remedy, the trial court must evaluate both parties' evidence as well as any defenses, counterclaims and setoffs ․ Such consideration is significant because a valid defense has the ability to defeat a finding of probable cause.”  (Citations and internal quotes omitted.)  J.E. Robert Company, Inc. v. Signature Properties, LLC, 309 Conn. 307, 339–40 (2013).

III. FINDINGS BASED ON PROBABLE CAUSE STANDARDS

Applying the aforementioned standards, the court finds, on the basis of the evidence presented and under the law for the various causes of action the plaintiff has alleged, the court finds the following.

During the period of time in which the defendants held powers of attorney, numerous checks were drawn on Mella's account, payable to “cash,” which were cashed by—or deposited into the account of—the defendants.   The plaintiff, in summarizing her damages claim, states that there are 64 of these checks payable to “cash” and they total approximately $66,000.   The defendants do not appear to dispute the number and amount of the checks.   The defendants claim that the cash was used to reimburse them for incidental expenses for the household or to give cash to Mella herself.   Nonetheless, no satisfactory accounting or credible explanation has been provided by the defendants for those transactions.   Therefore, there is probable cause to believe the money was misappropriated and diverted to the personal use of the defendants.

During the period of time in which the defendants held powers of attorney, numerous checks were drawn on Mella's account, payable to the defendants themselves—typically Robert Matues.   Those checks were cashed by (or deposited into the checking account of) the defendants.   The defendants do not appear to dispute those facts.   The defendants contend that the payments were either reimbursement for amounts they paid from their personal funds (or charged to credit cards) for the benefit of Mella, or they were payments authorized and approved by Mella herself.   The plaintiff denies authorizing any such payments.   No satisfactory documentation such as receipts or credit card statements was provided to corroborate the defendants' explanation of the payments.   Based on the totality of the evidence presented, the court finds that there is probable cause to believe the money was misappropriated and diverted to the personal use of the defendants.

The defendants used funds from Mella's account to pay their personal CITGO gas credit card bills.   They claim this was authorized by Mella to compensate for numerous trips from their residence in Manchester to her residence in Wethersfield, but there is no testimony from Mella or documentation to corroborate this.   The court finds that there is probable cause to believe the payments were not for the benefit of the plaintiff and were not authorized.

The defendants used funds from Mella's account to pay their CL & P electric bills for their properties in Manchester and Vernon.   They claim this was authorized by Mella but again there is no testimony or documentation to corroborate this.   The court finds that there is probable cause to believe the payments were not for the benefit of the plaintiff and were not authorized.

The defendants used funds from Mella's account to pay for cable TV service (Cox Communications) for their residence in Manchester.   Again, the defendants claim this was authorized by Mella but there is no testimony from Mella or documentation to corroborate this.   The court finds that there is probable cause to believe the payments were not for the benefit of the plaintiff and were not authorized.

The defendants used funds from Mella's account to pay for their personal cell phone bills, including overseas phone calls.   Mella did not own a cell phone.   The defendants claim that some of the overseas phone calls were to check on Mella.   There are no records or invoices to support this claim and there is no documentation or testimony showing Mella authorized these payments.   The court finds that there is probable cause to believe the payments were not for the benefit of the plaintiff and were not authorized.

The defendants used funds from Mella's account to pay for various restaurant outings.   The defendants claim that payment for each of these events was authorized by Mella, or bizarrely, that Roy Moeckel “just happened to have” the checkbook from Mella's account with him at the restaurant and used that for the payment (at another point he testified that he viewed his own personal checking as “interchangeable” with Mella's checking account).   There is no testimony from Mella or documentation to suggest that she knew of these restaurant outings, much less agreed to fund them.   The court finds that there is probable cause to believe the payments were not for the benefit of the plaintiff and were not authorized.

The defendants used funds from Mella's account to pay for renovations and improvements (Bob Zito) to their condominium property in Vernon.   There is no testimony from Mella or documentation to suggest that she knew of these improvements to the Vernon property, much less agreed to fund them.   The court finds that there is probable cause to believe the payments were not for the benefit of the plaintiff and were not authorized.

The defendant Roy Moeckel used $1,300 from Mella's account to pay for a European tour.   There is no testimony from Mella or documentation to showing that she authorized the use of her funds for this purpose.   The court finds that there is probable cause to believe that the payment was not for the benefit of the plaintiff and was not authorized.

There is probable cause to believe that the various expenditures outlined above were not disclosed to the plaintiff at the time they were made.

There is probable cause to believe that during the time that the defendants managed the plaintiff's finances under the powers of attorney, that the defendant Roy Moeckel either intentionally withheld information from the plaintiff regarding the various expenditures outlined above, or actively misled the plaintiff to conceal the fact that these expenditures were being made.

IV. DISCUSSION—PLAINTIFF'S CLAIMS

A. Robert Matues

Although there was a concerted effort by Roy Moeckel to assume all responsibility for any mismanagement of the plaintiff's finances—and the evidence certainly suggested that Moeckel was the primary actor in initiating, executing, and thereafter concealing the suspect transactions—the court does not find that the defendant Robert Matues has established an absence of involvement or responsibility, such that a prejudgment remedy should not be entered against him.

A power of attorney establishes a principal-agency relationship and imposes a fiduciary duty upon the designated attorney-in-fact.  Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981).   A fiduciary relationship demands a high degree of commitment and attentiveness to the welfare of another person.   In a fiduciary relationship, one person vests confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter.   In such circumstances the law requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.

Here the evidence establishes a knowing abandonment by Robert Matues of all of his fiduciary obligations, all to the financial loss and detriment of Mella Yaneczki.   During his testimony, Matues testified to the fact that he “let Roy take care of everything.”   He said he “figured Roy knew what he was doing, so I just let things go.”   He explained that he “never bothered looking” at the financial transactions Moeckel was making, because he was “not interested.”   He testified he “never read, never asked” about the checks he was signing.

As far as the claims of conversion and theft, there is probable cause to believe that Matues had knowledge of the improper transactions because many checks for substantial sums of money were made payable to him and endorsed by him for deposit in his personal account.   As a fiduciary, he had a duty to inquire as to the propriety of those payments.   Moreover, it is not plausible under any standard of proof that Matues could have remained oblivious while large amounts of money were being spent by Moeckel for condo renovations, dining out, entertainment, and other extraordinary expenditures.   At some point any reasonable person would have raised a question with his domestic partner as to the source of this sudden prosperity, but Matues claims that he did not.   It may be inferred that he deliberately chose to be “not interested.”

For these reasons, there is probable cause to believe that, either by act or omission, the conduct of Robert Matues contributed to the plaintiff's injuries and losses, and thus probable cause to believe that a judgment could be rendered against him in this case.

B. Breach of Fiduciary Duty

The First and Second Counts of the plaintiff's proposed complaint assert causes of action for breach of fiduciary duty against Roy Moeckel and Robert Matues respectively.

The law governing a claim of breach of fiduciary duty is well established.  “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.   Proof of a fiduciary relationship therefore imposes a twofold burden upon the fiduciary.   Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary ․ Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.”  (Citations omitted;  internal quotation marks omitted.)  Dunham v. Dunham, 204 Conn. 303, 322–23, 528 A.2d 1123 (1987).

“Although not always expressly stated, the basis upon which the aforementioned burden shifting and enhanced burden of proof rests is, essentially, that undue influence will not be presumed ․ however ․ where a fiduciary relation exists between the parties to a transaction or contract, and where one has a dominant or controlling force or influence over the other ․ if the superior party obtains a possible benefit, equity raises a presumption against the validity of the transaction or contract, and casts upon such party the burden of proving fairness, honesty, and integrity in the transaction or contract ․ Therefore, it is only when the confidential relationship is shown together with suspicious circumstances, or where there is a transaction, contract, or transfer between persons in a confidential or fiduciary relationship, and where the dominant party is the beneficiary of the transaction, contract, or transfer, that the burden shifts to the fiduciary to prove fair dealing ․ [W]hen a breach of fiduciary duty is alleged, and the allegations concern fraud, self-dealing or a conflict of interest, the burden of proof shifts to the fiduciary to prove fair dealing by clear and convincing evidence.”   (Emphasis in original;  citations omitted;  internal quotation marks omitted.)  Cadle Co. v. D'Addario, 268 Conn. 441, 456–57, 844 A.2d 836 (2004).

In this matter the plaintiff has satisfied her initial burden of demonstrating that a confidential relationship exists.   Moeckel and Matues were appointed power of attorney for Mella Yaneczki on November 8, 2005 and July 12, 2011.   As a matter of law, a power of attorney imposes a fiduciary obligation on the defendant.  Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981).  “It is a thoroughly well-settled equitable rule that any one acting in a fiduciary relation shall not be permitted to make use of that relation to benefit his own personal interest.   This rule is strict in its requirements and in its operation.   It extends to all transactions where the individual's personal interests may be brought into conflict with his acts in the fiduciary capacity, and it works independently of the question whether there was fraud or whether there was good intention.”  Mallory v. Mallory Wheeler Co., 61 Conn. 131, 137, 23 A. 708 (1891).   See also, Lowndes v. City Nat. Bank, 82 Conn. 8, 72 A. 150 (1909) (it is a breach of fiduciary duty to use fiduciary assets to pay personal obligations).   In the present case, there is little doubt that fiduciary duties were breached.

Because of the existence of a fiduciary relationship the burden of proving fair dealing by clear and convincing evidence shifts to the fiduciary.   Dunham v. Dunham, supra, at 322.   That obligation imposes on them the burden of demonstrating by clear and convincing evidence “fairness, honesty and integrity in the transaction ․” Cadle Co. v. D'Addario, supra, at 456.

“The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.   It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.   We have stated that the clear and convincing standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.”  Harris v. Commissioner of Correction, 134 Conn.App. 44, 49–50, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).

A review of the evidence submitted at the hearing indicates that the defendants have not sustained their burden of showing probable cause that they will succeed in demonstrating by clear and convincing evidence “fairness, honesty and integrity” in their transactions with the plaintiff.   As a whole, the defendants' explanation of their conduct as fiduciaries was “loose, equivocal and contradictory,” and fell far short of what would persuade any reasonable finder of fact that in handling the plaintiff's affairs they acted honestly, diligently, and in good faith.

C. Conversion

The Third and Fourth Counts of the plaintiff's proposed complaint assert causes of action for the tort of civil conversion against Roy Moeckel and Robert Matues respectively.  “Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights.”  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418, 934 A.2d 227 (2007).  “The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believes that the item is one's own.”  Plikus v. Plikus, 26 Conn.App. 174, 180, 599 A.2d 392 (1991).   The plaintiff's burden to prove conversion is by a fair preponderance of the evidence.

“To establish a prima facie case of conversion, [a] plaintiff ha[s] to demonstrate that (1) the material at issue belonged to the plaintiff;  (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff.”  (Internal quotation marks omitted.)  Coster v. Duquette, 119 Conn.App 827, 832, 990 A.2d 362 (2010).  “There may be a conversion by a wrongful taking, by an illegal assumption of ownership, by an illegal user or misuse, or by any other form of possession wrongfully obtained.   Furthermore, a wrongful detention, even though possession was rightfully obtained, may constitute conversion.”  Bruneau v. W & W Transportation Co., 138 Conn. 179, 182–83, 82 A.2d 923 (1951).  “Under our case law, [m]oney can clearly be subject to conversion.”  (Internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).

In the present case, the plaintiff has demonstrated probable cause that she will prove by a fair preponderance of the evidence that the defendants obtained possession of;  assumed ownership over, and thereafter deprived her of significant sums of money through unauthorized means.   The plaintiff has sustained her burden of demonstrating the validity of her claim for civil conversion for purposes of this prejudgment remedy proceeding.

D. Statutory Theft

In the Fifth and Sixth Counts of the proposed complaint, the plaintiff alleges that the defendants committed statutory theft in violation of General Statutes § 52–564.  “[S]tatutory theft under ․ § 52–564 is synonymous with larceny [as defined in] General Statutes § 53a–119;  ․ and the definition of larceny includes various fraudulent methods of taking property from its owner.”  (Citation omitted;  footnote omitted, internal quotation marks omitted.)  Stuart v. Stuart, 297 Conn. 26, 41, 996 A.2d 259 (2010).   “Pursuant to § 53a–119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from [the] owner.”  (Internal quotation marks omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000).  Section 53a–119(8) provides that larceny is committed by receiving stolen property if a person, “receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner.”   Even if he did not initially commit the theft of Mella Yaneczki's money, the defendant Robert Matues would be legally responsible for statutory theft at the point in time in which he knew or believed that the checks being made payable to him and being deposited into his checking account were wrongfully taken from the plaintiff.

“Statutory theft ․ requires an element over and above what is necessary to prove conversion, namely, that the defendant intentionally deprived the complaining party of his or her property.”  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, supra, 284 Conn. 418–19.   The standard of proof applicable to statutory theft “is the preponderance of the evidence standard.”  Stuart v. Stuart, supra, 297 Conn. 44.

As discussed above, the court has found that the plaintiff has established probable cause that she will prevail on her claims of conversion.   The evidence—including the efforts to intentionally mislead the plaintiff as to monies taken from her—establishes probable cause to believe that the defendants took and withheld money from the plaintiff with the intent to permanently deprive her of that money and appropriate it for their own use.   Accordingly, the court finds that the plaintiff has demonstrated probable cause that she will also prevail on her claims of statutory theft.

The plaintiff seeks treble damages pursuant to General Statutes § 52–564 for the defendant's theft.  Section 52–564 provides, “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”   Under this mandatory language, where liability is found, the damages are to be trebled.   See Stuart v. Stuart, supra, 297 Conn. 53, n.14 (§ 52–564 contains mandatory language).

V. DISCUSSION—POSSIBLE DEFENSES, SET–OFFS AND COUNTERCLAIMS

The court is required to evaluate any potential defenses, counterclaims and setoffs that might defeat a finding of probable cause.  J.E. Robert Company, Inc. v. Signature Properties, LLC, 309 Conn. 307, 339–40 (2013).   For the reasons discussed below, the court does not believe that any of the defenses advanced in this case would overcome the court's finding that there is probable cause to believe that the plaintiff will prevail in her action against the defendants.

A. Consent/Waiver/Gift

There was much testimony from the defendants to indicate that some of the suspected payments were authorized by the plaintiff, or that some of the payments were a gift to the defendants, or that the plaintiff knew of the defendants' use of her funds and actively consented to or passively waived any right to contest that use of the funds.   Moeckel testified that on more than one occasion the plaintiff told him words to the effect of “you should be doing something for yourself.”   Moeckel also testified that the plaintiff was aware of all of the expenditures he made and the checks he wrote and never complained.   The plaintiff, according to the defendants, was fully competent and had the ability to leave her home and see lawyers and get independent advice if she felt the defendants were not acting in her best interest.   By not doing so, the defendants argue, she tacitly approved the defendants' actions.

In an ordinary relationship, the plaintiff's conduct might serve as evidence of consent or waiver.   But this is not an ordinary relationship.   As previously indicated, the court has found that the defendants are fiduciaries, and a higher standard applies.  “A fiduciary is a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires.”  Albom v. Katz Corp., 39 Conn.Sup. 533, 535–36, 466 A.2d 1206 (1983).

The Supreme Court has outlined the factors which must be shown by a fiduciary to sustain its burden of proving good faith and candor in financial transactions involving self-dealing:  1) that the fiduciary made a free and frank disclosure of all relevant information it had;  2) that the consideration was adequate;  3) that the principal had competent and independent advice before completing the transaction;  4) and the relative sophistication and bargaining power among the parties.  Konover Development Corporation v. Zeller, 228 Conn. 228, 206, 635 A.2d 798 (1994).   Based on the evidence presented to this court, there is little reason to believe that the defendants will sustain their burden of demonstrating all the factors needed for a fiduciary to establish honesty in fact, good faith and full disclosure within the meaning of the relevant case law, as to the transactions in question.

B. Periodic accountings

Although he admitted to “very sloppy bookkeeping” with respect to the checks written from the plaintiff's bank accounts, the defendant Moeckel insisted that he gave periodic verbal accountings for his transactions directly to the plaintiff.   He testified that he would go over the check register and the bank statements with the plaintiff and show her what he had done.   The plaintiff vehemently denied this.   She testified flatly that “Roy never showed me anything,” although “I begged him constantly.”   She said she continually “asked him where my money was going.”   Moeckel claimed he had generated paperwork for the occasions when he claimed to have given these updates, but it was not produced at the hearing.

However, there was testimony and documentary evidence regarding one occasion when the defendant Roy Moeckel “discussed” the plaintiff's finances with her.   Exhibit 21 was produced which both Moeckel and Yaneczki testified was a check register that he went over with her some time in 2010 to show her how the money was spent.   However, Exhibit 21 was a complete sham.   It was an artfully prepared phony check register which is completely inconsistent with what appears to be the genuine check register (Exhibit 20) and the bank statements from the same period.   It consciously omits any reference to payments which Mella Yaneczki would have immediately recognized as unauthorized and not for her benefit.

Consequently, the one documentary example that exists of Moeckel's purported “periodic accountings” does not demonstrate good faith, honesty and full disclosure with respect to the financial transactions discussed.   It demonstrates an intent to conceal an ongoing misappropriation of money.   The evidence does not suggest probable cause to believe that the defendants will successfully assert a defense based on the purported verbal accountings.

C. Laches

Laches “bars [a party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced [the other party].”   Carpenter v. Sigel, 142 Conn.App. 379, 386 (2013).  “Laches is an equitable defense that consists of two elements.  ‘First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ․ The mere lapse of time does not constitute laches ․ unless it results in prejudice to the defendant ․ as where, for example, the defendant is led to change his position with respect to the matter in question.’   (Citation omitted;  internal quotation marks omitted.)  Burrier v. Burrier, 59 Conn.App. 593, 596, 758 A.2d 373 (2000).   Thus, prejudicial delay is the principal element in establishing the defense of laches.  Id.” Cifaldi v. Cifaldi, 118 Conn.App. 325, 334–35, 983 A.2d 293 (2009).

Defendants' claim of inexcusable delay is that, by the time the action was commenced in May of 2013, any records they had that would have exonerated them were either discarded or no longer available.   This claim ignores the reality that a demand for an accounting by the fiduciaries was made as early as July 2011, putting them on notice that their handling of the plaintiff's finances was being scrutinized.   If records ever existed and they were discarded prior to July 2011, that was the result of negligence and carelessness of the fiduciaries.   If they were discarded after July 2011, the fiduciaries have no one to blame but themselves.

D. Statute of Limitation

The defendants assert that the plaintiff's claims are barred by the three-year statute of limitations for torts, General Statutes § 52–577.   The plaintiff's complaint alleges a breach of fiduciary duty and conversion by the defendants that was actively concealed by the defendants at least until the power of attorney was revoked in July of 2011 and thereafter by virtue of the defendant's continuing failure to respond to the plaintiff's demands for an accounting.   This action was commenced by service of process on May 8, 2013, which appears to be well within the statute of limitations.

E. There has been no Violation of the Terms of the Power of Attorney

Finally, the defendants claim that there is no violation of the terms of the Power of Attorney because, among other terms, the document empowers the fiduciaries to receive gifts and contains a release of liability.   The court has reviewed both power of attorney document and does not believe that either clause relieves the defendants of their fiduciary obligations of scrupulous good faith, honesty and full disclosure in carrying out their function as attorney-in-fact.   The violation of those duties gives rise to their potential liability in this action, not the violation of any particular provision of the power of attorney document.   The court is not persuaded that the defendants will be able to excuse their conduct based on provisions of the power of attorney documents.

VI. PROOF OF DAMAGES.

A plaintiff must show “probable cause that a judgment will issue in an amount equal to, or greater than, the amount of the prejudgment remedy sought.”   TES Franchising, LLC v. Feldman, 286 Conn. 132, 147, 943 A.2d 406 (2008).   “Although the likely amount of damages need not be determined with mathematical precision ․ the plaintiff bears the burden of presenting evidence [that] affords a reasonable basis for measuring her loss” [internal quotation marks omitted] ).  Id., 145–46.   During the hearing on this matter, the plaintiff presented copies of numerous cancelled checks and bank statements that detail the various unauthorized payments and misappropriations of funds that are at issue in this case.   At the close of evidence, counsel for the plaintiff thoroughly and methodically summarized and totaled those transactions for the court and represented that the amount of improper transactions in controversy was estimated at $121,000.   That summary and recitation is too lengthy to repeat here, but the court finds that it is a sufficiently accurate measure of the plaintiff's financial losses to support an award of a prejudgment remedy.

Counsel for the plaintiff argued that the figure should be trebled, pursuant to General Statutes § 52–564.   The court agrees.   The “shall pay the owner treble his damages” language in § 52–564 is mandatory, and the court has previously determined that there is probable cause to believe the plaintiff will prove the requisite intent enabling recovery for statutory theft.

VII. ORDER

Based upon the above facts and analysis, the court orders the following prejudgment remedies to secure the sum of amount of three hundred and sixty thousand dollars ($360,000.00):

a. to attach the real and personal property of the defendants Robert Matues and Roy Moeckel to secure this sum, including but not limited to, the interest of the defendants in the real property known as 30 Laurel Terrace in Manchester Connecticut and 565 Talcottville Road, Apartment 3A2 in Vernon, Connecticut.

b. to garnish any party who is the agent, trustee, debtor, bank, brokerage house, credit union or other holder of assets or funds that are the property of the defendants Robert Matues and Roy Moeckel, or is indebted to them;  and

c. the defendants Robert Matues and Roy Moeckel to disclose, under oath, any and all assets held or controlled by them.

BY THE COURT,

Sheridan, J.

Sheridan, David M., J.