Jason M. Gordon et al. v. Richard Gans, Executor of the Estate of Ingrid Gans (2014)

MEMORANDUM OF DECISION

By complaint dated May 16, 2011, the plaintiffs, Jason M. Gordon and Jenna Gordon (hereinafter “Jason” or “Jenna” or “plaintiffs”), brother and sister, commenced this action against their grandmother, Ingrid Gans. The eight-count complaint alleged that their grandmother had agreed to convey real property known as 11 Fairway Green, Fairfield, CT to the plaintiffs upon the death of their mother, Marsha Gans Gordon (hereinafter “Marsha”).

On October 12, 2012, Ingrid Gans (hereinafter “Ingrid”) died testate while a domiciliary of the Bridgeport Probate district.   The plaintiffs filed a motion to substitute Richard Gans, Ingrid's son, who had been appointed executor of Ingrid's estate, as the named defendant in this action which was granted on December 27, 2012.

Thereafter, the plaintiffs filed an eight-count revised complaint dated July 19, 2013.   The estate, through Richard Gans as executor (hereinafter “defendant”) filed an answer and five special defenses on August 2, 2013.   The plaintiffs filed a reply to the special defenses on August 5, 2013.

The matter was tried to the court on August 7, August 8, and August 13, 2013 subsequent to which the parties filed post-trial briefs.

FINDINGS

Based on the testimony and exhibits introduced at trial this court makes the following findings.

Ingrid Gans died testate on October 12, 2012 and her will was admitted to probate in the Bridgeport probate district in December 2012.   Ingrid's estate included real property known as 11 Fairway Green, Fairfield, CT (hereinafter “the property”).   Prior to Ingrid's death, the plaintiffs Jason and Jenna Gordon had filed an eight-count complaint against Ingrid, dated May 16, 2011, which alleged breach of contract, specific performance, unjust enrichment, promissory estoppel, innocent misrepresentation, negligent misrepresentation, fraud and constructive trust.   All counts of the original complaint against Ingrid and the substituted complaint against the defendant as executor of Ingrid's estate, revolve around an alleged oral agreement between Ingrid and her daughter, Marsha Gans Gordon, pursuant to which Marsha would convey title to the property to Ingrid who would hold title to the property for the benefit of Marsha until her death, at which time Ingrid would convey the property to the plaintiffs.

The alleged oral agreement was not reduced to writing nor was any memorandum of the agreement reduced to writing.

In 1993, Stuart Gordon, Marsha's ex-husband, transferred his interest in the property to Marsha, who thereby owned the property exclusively.   In 1997 and 1998, Marsha was having trouble paying her bills.   Marsha sought help from Ingrid who did help her.   On October 16, 1998, Marsha quit claimed the property from herself to herself and Ingrid and mortgaged the property the same day for approximately $227,000.   By quit claim deed filed on November 13, 1998, Marsha transferred her remaining interest to Ingrid since Marsha had no money to pay the expenses and upkeep.   Thereafter, the property was a rental property with Ingrid reporting income from it in accordance with Internal Revenue Service Regulations mandating reporting of rental income not actually received because of the involvement of a related party.

Ingrid paid virtually all expenses and bills on the property.

Jenna testified to several discussions in 2000 when she was fifteen (15) years old, with Ingrid that Ingrid wanted the property to go to Marsha and then on Marsha's death to the plaintiffs.   There were no witnesses to the statements and the statements were not reduced to writing.   Those statements by Ingrid were repeated in 2010 and 2011 according to Jenna, again without witnesses or writings.   Jenna testified that Ingrid paid the bills on the property and helped Marsha from 1998 to the time of Marsha's death.

Stuart Gordon, Marsha's ex-husband and the father of the plaintiffs, testified that Ingrid had told him in a phone conversation to which there were no witnesses, that if either Ingrid or Marsha died, the children would inherit the property.

Jason Gordon, a law school graduate, testified that he was seen as a “financial guru” by Marsha and Ingrid from age 17 or 18.   Jason claims to have given small amounts of money to Marsha while a college student in California in 1998 receiving financial aid.   Jason testified to a conversation with Ingrid in 1998 in which Ingrid stated that eventually the property would go to him and Jenna.   Jason also testified that Marsha gave Ingrid money from civil settlements to hold for expenses including the house, automobile, and living expenses.   The largest of the settlements was for something less than $50,000 after expenses.   No supporting documentation was introduced.

Ingrid had created an estate plan and executed estate planning documents on June 19, 2000.   Ingrid's subsequently revoked Will of that date provided:

Article III.  Real Property.   All of my real property, together with the buildings and improvements thereon and insurance policies relating thereto, and subject to any mortgages, liens or other encumbrances existing thereon at the time of my death, shall be distributed to the then trustees of THE MARSHA GANS GORDON 2000 IRREVOCABLE DISCRETIONARY TRUST, and shall be subject to all of the terms and conditions thereof.

Article IV.  Residuary Estate.   My residuary estate shall be distributed to my decedents who survive me per stirpes;  provided, however, that the share, if any, established for my daughter, MARSHA GANS GORDON, shall not be distributed outright to her, but shall instead be distributed to the then Trustees of THE MARSHA GANS GORDON 2000 IRREVOCABLE DISCRETIONARY TRUST, and shall be subject to all of the terms and conditions thereof, provided said trust is then in existence ․

Also on June 19, 2000, THE MARSHA GANS GORDON 2000 IRREVOCABLE DISCRETIONARY TRUST was created by Ingrid.   Article I of the Trust provides, in part, as follows:

The primary purpose of this Discretionary Trust is to provide for the supplemental care, comfort, health, education, habilitation and welfare of my daughter, MARSHA GANS GORDON ․

There are no provisions in the revoked Will of June 19, 2000 concerning Marsha's predeceasing Ingrid.   The revoked Will does not incorporate nor reference a purported oral agreement between Ingrid and Marsha regarding the property.   The revoked Will also does not include a provision that upon Marsha's death Ingrid would transfer the property to the plaintiffs.

The Marsha Trust was only to be funded via the revoked Will upon Ingrid's death.   The Trust does not reference or incorporate an oral agreement allegedly entered into between Ingrid and Marsha regarding the property.   At the time of the creation of the Trust, Marsha had been dependent on Ingrid for her living expenses including food, repairs to the property, mortgage payments on the property, and utilities.

Marsha Gans Gordon died on March 26, 2011, at age 58, intestate.   On May 27, 2011, Ingrid executed a Last Will And Testament which revoked any and all Wills and Codicils previously executed by her.   Ingrid changed her Will when she realized that Jason and Jenna felt entitled to the property after she had been served with papers in the original lawsuit.   Article III of Ingrid's Will contains the following, in pertinent part:

I have deliberately made no provision herein for the benefit of Jason M. Gordon and Jenna Gordon, the children of my deceased daughter, Marsha Gordon, for reasons well known to them.

Ingrid had been very upset with Jason and Jenna for their lack of visiting their dying mother in the hospital.   Marsha, a drug addict, spent her last six months in and out of the hospital while dying of cancer.   Ingrid was very upset about the plaintiffs' conduct when their mother was dying of cancer.

Both parties, Ingrid and Marsha, to the agreement alleged by the plaintiffs are now deceased.   Marsha left nothing in writing alluding to any agreement with Ingrid although according to the complaint the agreement was reached prior to October 16, 1998, and Marsha did not die until March 26, 2011.   However, prior to her death, Ingrid did leave her handwritten notations on each count of the complaint which had been filed against her by the plaintiffs.

As to Count One which alleges breach of contract, Ingrid wrote:

Not true—Fabrications;

Never happened;

It didn't happen—I'm still alive and would like to recoup monies spent on Gordon;

Who doesn't deduct taxes paid on income tax;

No so;

She couldn't get mortgage due to her bad credit;

what was that—never happened;

never had an agreement;

* * *

I never made a contract—the house was in my name and still is.

As to the Second Count which alleges that the plaintiffs are entitled to specific performance, Ingrid wrote:

She never wanted the son to own the property because he was threatening to put her out on the street—he didn't care where she lived—threaten her Jenna was told mother was ill and didn't visit her for 2 years till the last days of her life about a week.

As to the third Count which alleges unjust enrichment Ingrid wrote:

I have never been enriched, but made poor by paying txs repair on house—painting exterior—repairing cabinets repairing plumbing—paying her bills.

As to the Fourth Count which alleges promissory estoppel Ingrid wrote:

lie;

Not true;

lie;

Not true;

Story made up by children;

Never happened;

Never happened.

As to the Fifth Count of the original complaint which alleged innocent misrepresentation to Marsha, Ingrid wrote:

not true;

she never signed it—which was to withdraw money in bank acct.   Sale of vehicle I bought for her + paid for repairs—which is in the garage to this day + I said to Jenna that it is hers to sell + keep the money derived from such sale.   It cost me $4,500 + $5,000—Tx + registration;

Lie;

Never happened;

that's a joke;

I have put a reverse mortgage on my house on Jackson Ave. to pay the mortgage at a loss to myself and the cost of $500.00 per month interest ․

As to the Sixth Count which alleges negligent misrepresentation to Gordon, Ingrid wrote:

Not true;

Not true;

Not true;

Fabricated by plaintiffs & their lawyers.

As to the Seventh Count which alleges fraudulent or false representations, Ingrid wrote:

not true lie;

not true;

false—lie.

The Eighth Count of the plaintiffs' complaint seeks the imposition of a constructive trust upon the property.   As to this court Ingrid wrote:

not true;

fantasy;

I spent my retirement money for her for 12 years.   I took my house and made a reverse mortgage and paid off her house with my equity in my home.   I had asked son Jason to help me pay for the funeral $12,000—plot $15,000—he never responded with a dime.   Never helped pay for anything connected with his mother.   Told me I'm a fool for getting involved considering her state of health and mind being a mother, I was concerned and paid all the expenses in order for her to exist in her home & not live with me as she wanted.

Other facts and background will be supplied as necessary.

LEGAL DISCUSSION

This court will find that no agreement between Ingrid Gans and Marsha Gans Gordon to convey the property ever existed.   The court bases its finding upon the credibility of the witnesses who testified at trial and on the documents submitted as full exhibits during the trial.   The court notes the lack of any written evidence of an agreement and further notes Ingrid's strong written denials of any such agreement.

Ingrid took care of Marsha up to the time of Marsha's death.   Upon Marsha's death, the Marsh Trust dissolved.   Soon after Marsha's death, Ingrid revoked the June 2000 Will and executed a new Will which omitted the plaintiffs.   There was no provision in the Trust and no provision in the Wills which evidenced intent on Ingrid's part to leave the property to the plaintiffs at any point.

The First Count of the plaintiffs' complaint alleges a breach of contract.   The elements of a breach of contract are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.  Seligson v. Brower, 109 Conn.App. 749, 753 (2008);  Keller v. Beckenstein, 117 Conn.App. 550, 558, cert. denied, 294 Conn. 913 (2009).

In the present case the plaintiffs have failed to prove by a fair preponderance of the evidence that an agreement was formed between Ingrid and Marsha with respect to the property.   This failure of proof is fatal to the plaintiffs' claim.

In the Second Count of their complaint, the plaintiffs seek specific performance of the agreement which was the subject of the first count.   The court having found, based upon all of the credible evidence, that no agreement existed, the plaintiffs' allegations in the second count likewise must fail.

The plaintiffs alternatively allege unjust enrichment in the Third Count of the complaint.   In order to recover under the alternative theory of unjust enrichment the plaintiffs had to prove:  (1) that the defendant was benefitted;  (2) that the defendant unjustly did not pay the plaintiffs for the benefits;  and (3) that the failure of payment was to the plaintiffs' detriment.  Connecticut Hospital Ass'n v. Meaney, 250 Conn. 500, 511 (1999);  Weisman v. Kaspar, 233 Conn. 531, 550 (1995).   The plaintiffs did not meet their burden of proof.   Ingrid provided many years of support of Marsha up to the time of Marsha's death, including the funeral expenses.   The evidence did not demonstrate that the transfer of the property unjustly enriched Ingrid nor did the amounts of money which Marsha may have contributed.   It is not contrary to equity and good conscience for Ingrid to have retained the property, the money from any settlements, and any tax benefits she might have received.   As Ingrid noted, which is supported by the evidence, Ingrid was made poor by paying Marsha's bills, all taxes, repairs and upkeep of the property.   The plaintiffs have failed to meet their burden of proof as to unjust enrichment.

The fourth count of the plaintiffs' complaint alleges promissory estoppel.   In order to prevail on this claim the defendants must prove that the defendant made a clear and definite promise which the defendant should have reasonably expected to induce action or forbearance on the part of the promissee or a third person and which did induce such action or forbearance, and that enforcement of that promise is the only way to avoid injustice to the plaintiffs.  Stewart v. Cendant Mobility Servs.   Corp., 267 Conn. 96, 104–05 (2003);  D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213 (1987).

Here, again the court will find that the credible evidence does not support a finding that Ingrid promised to convey the property to the plaintiffs upon Marsha's death.   There was no clear and definite promise to do so.   The property was transferred to Ingrid because Ingrid was and had been supporting Marsha.   Ingrid continued to do so for years subsequent to the transfer.   The plaintiffs' proof concerning the fourth count of promissory estoppel has failed.

As alternate theories of relief, the Plaintiffs have alleged in the fifth, sixth and seventh counts of their complaint innocent misrepresentation, negligent misrepresentation and fraud, respectively.

The elements of a cause of action sounding in innocent misrepresentation are “(1) a representation of material fact (2) made for the purpose of inducing [action], (3) the representation is untrue, and (4) there is justifiable reliance by the plaintiff on the representation by the defendant and (5) damages.”  (Citations omitted;  internal quotation marks omitted.)  Matyas v. Minck, 37 Conn.App. 321, 333 (1995).

The elements of a cause of action sounding in negligent misrepresentation are “(1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  (Citations omitted.)  Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626 (2006).

The elements of a cause of action sounding in fraud are “(1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.”  (Citations omitted;  internal quotation marks omitted.)   Capp Industries, Inc. v. Schoenberg, 104 Conn.App. 101, 116, cert. denied, 284 Conn. 941 (2007).   The first three elements must be proven by “a standard higher than the usual fair preponderance of the evidence, which [the Appellate Court has] described as clear and satisfactory or clear, precise and unequivocal.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Based upon the court's findings of fact, the court will likewise find that there has been no credible evidence submitted sufficient to support a finding of a misrepresentation of fact by Ingrid.   To the contrary, the credible evidence supports a finding that there was no misrepresentation by the defendant.   Because there was no misrepresentation made by Ingrid, the fifth, sixth and seventh counts of the complaint must fail.

The eighth count of the plaintiffs' complaint seeks the imposition of a constructive trust upon the property.

A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.   A constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form or when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.

(Citations omitted.)  Stornawaye Properties, Inc. v. O'Brien, 94 Conn.App. 170, 175–76 (2006).

It is unclear whether a constructive trust is a cause of action itself or merely an equitable remedy for the unconscionable misappropriation of property by another.  Macomber v. Travelers Property & Cas. Corp., 261 Conn. 620, 623 n.3 (2002).   However, it appears that “[c]ourts may use the equitable device of a constructive trust to remedy the unjust enrichment which results from not disposing of property as promised after the promise induced someone with whom the promisor shared a confidential relationship to transfer the property to the promisor.”  (Citations omitted.)  Riccio v. Ricco, 75 Conn.App. 556, 559 (2003).  “To conclude that a constructive trust exists, the trial court must find, in addition to the existence of a confidential relationship, that unjust enrichment of the party holding title would occur if the trust were not imposed.”  Gulack v. Gulack, 30 Conn.App. 305, 313–14 (1993).

Here, leaving aside the existence of a confidential relationship, the overwhelming credible evidence supports a finding of fair dealing by the defendant.   The evidence is clear and convincing that Ingrid at all times acted in the best interests of Marsha and was concerned about Marsha's welfare up until the time of Marsha's death.   The credible evidence does not support the imposition of a constructive trust.   The property was deeded to Ingrid so that Marsha could continue to live in the house.   The credible evidence, including that from the plaintiffs, documented that Ingrid supported and paid for Marsha, including the expenses for the property with little help from anyone else.   Ingrid's notation on this eighth count is telling:

I spent my retirement money for her for 12 years.   I took my house and made a reverse mortgage and paid off her house with my equity in my home.   I had asked son Jason to help me pay for the funeral $12,000—plot $15,000—he never responded with a dime.   Never helped pay for anything connected with his mother.   Told me I'm a fool for getting involved considering her state of health and mind being a mother, I was concerned and paid all the expenses in order for her to exist in her home & not live with me as she wanted.

The evidence does not warrant the imposition of a constructive trust.

Because of the court's findings of failure of the plaintiffs to meet their burden of proof as to each of the eight counts of the complaint, it is not necessary to address the defendant's special defenses which include a claim that all of the plaintiffs' claims are barred by the Statute of Frauds.

Judgment will enter for the defendant on each count of the revised complaint.

HARTMERE, J.T.R.

Hartmere, Michael, J.