Masse v. Perez
Masse v. Perez
Opinion of the Court
Opinion
The defendant, Susan Perez, appeals from the judgment of the trial court rendered in favor of the plaintiff, Richard Masse, Jr., for breach of fiduciary duty, conversion, statutory theft and unjust enrichment. On appeal, the defendant claims that the court improperly (1) awarded treble damages despite insufficient evidence and (2) precluded her from offering relevant evidence. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. The defendant is the plaintiffs mother. The plaintiffs grandmother, Velma Krestan, set up a trust in the form of three bank accounts naming the plaintiff as the sole beneficiary and the defendant as the trustee. As of May 29,1995, the trust cumulatively was valued at
On February 21, 2008, the plaintiff filed a seven count amended complaint sounding in breach of fiduciary duty, statutory theft, conversion, fraudulent concealment, fraudulent misrepresentation, unjust enrichment and negligent representation. In his complaint, the plaintiff alleged, inter alia, that the defendant “expunged and/or removed and/or spent the funds for her personal use from the [t]rust without authorization or consent from the plaintiff.” On March 17, 2008, the defendant filed an answer, which denied this allegation, and two special defenses to each count.
Following a trial to the court, held on October 6 and 7, 2010, the court rendered judgment in favor of the plaintiff on January 4, 2011, on the counts sounding in breach of fiduciary duty, statutory theft, conversion and unjust enrichment. In doing so, the court rejected the defendant’s special defenses. In its memorandum of decision, the court found that the plaintiff established that he had sustained compensatory damages in the amount of $46,522.54, and was entitled to interest of 5 percent per year pursuant to General Statutes § 37-3a, and treble damages pursuant to General Statutes § 52-564, for a final award of $206,233.35. On January 20, 2011, the defendant filed a motion to reargue, which the court denied on February 4,2011. This appeal followed.
I
The defendant first claims that the court improperly awarded treble damages for statutory theft pursuant
The following standard of review is applicable to sufficiency of the evidence claims. “[W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in fight of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn. App. 99, 113, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). “We do not examine the record to determine whether the trier of fact could have reached
“[E]vidence is not insufficient . . . because it is conflicting or inconsistent. [The trier of fact] is free to juxtapose conflicting versions of events and determine which is more credible.” (Internal quotation marks omitted.) Richards v. Richards, 82 Conn. App. 372, 376, 844 A.2d 889 (2004). In this regard, “[w]e are not in a position to question the court’s credibility finding. The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Chernick v. Johnston, 100 Conn. App. 276, 282, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).
“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. We consistently have held that [statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119. . . . A person commits larceny within the meaning of ... § 53a-119 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 an owner. An owner is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder. General Statutes § 53a-118 (a) (5). . . . Therefore, statutory theft requires a plaintiff to prove . . . intent . . . .” (Citations omitted; internal quotation marks omitted.) Rana
In the present case, the court found that the defendant withdrew $46,522.54 from the plaintiffs trust bank account. That finding is supported by the defendant’s own testimony and by the corresponding withdrawal receipt. Although the funds were not withdrawn directly from any of the three bank accounts listed in the plaintiffs amended complaint, the defendant testified that she transferred funds from the trust bank accounts into a joint checking account set up between herself and the plaintiff. The defendant acknowledged that the funds in the joint checking account were the plaintiffs funds to be used for his benefit.
With respect to these funds, the defendant testified that the plaintiff had instructed her to withdraw the funds and to put them in the names of his half brother and half sister because he needed the money out of his account so that he could receive state benefits. The defendant testified that she had been instructed to give $20,000 to the plaintiffs half brother and $20,000 to the plaintiffs half sister. The defendant further testified that the plaintiff had authorized her to spend the remaining funds for the benefit of the plaintiff and his children. The court did not credit this testimony from the defendant regarding the disbursement of the trust funds. The court found that “[t]he defendant was not able to satisfactorily explain how she used this money,” that “[s]he did
In support of these findings, the court had before it the following testimony. The plaintiff testified that he did not instruct the defendant to give any trust funds to his half brother or half sister. The plaintiff also testified that he did not ask the defendant to use any trust funds for his children. The plaintiff further testified that any items given to his children by the defendant were gifts from the defendant as opposed to authorized expenditures from the trust fund. In fact, the defendant admitted that, , at times, she spent her own funds from a separate account for the benefit of the plaintiffs children. Furthermore, Rolando Perez,
The defendant argues, however, that there was no evidence that she used any of the withdrawn funds for her own benefit. The defendant testified that she gave $20,000 to the plaintiff’s half brother, $20,000 to the plaintiffs half sister and the remainder to the plaintiff and his children. Again, the court did not credit this testimony but, rather, concluded that “[t]he defendant was not able to satisfactorily explain how she used this
Although the plaintiff arguably offered no affirmative evidence that the defendant benefited from the withdrawal of the funds, benefit on behalf of the defendant is not an element of statutory theft. A person commits statutory theft 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 an owner.” (Emphasis added; internal quotation marks omitted.) Rana v. Terdjanian, supra, 136 Conn. App. 114. There was sufficient evidence that the defendant withdrew the funds with the requisite intent.
In Suarez-Negrete v. Trotta, 47 Conn. App. 517, 521-22, 705 A.2d 215 (1998), this court concluded that evidence presented was sufficient to establish statutory theft when, inter alia, “the defendant’s conduct was unauthorized.” Likewise, in the present case, there was sufficient evidence to conclude that the defendant’s withdrawal of the plaintiffs funds was unauthorized and, therefore, constitutes an intentional deprivation of property for the purpose of establishing statutory theft. Because § 52-564 provides that any person committing statutory theft “shall pay the owner treble his damages” the court’s award of treble damages was not improper.
II
The defendant next claims that the court improperly precluded her from offering relevant evidence regarding the plaintiffs state aid eligibility applications.
The claim also concerns the court’s refusal to permit cross-examination of the plaintiff regarding the content of those records. “A trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was ... a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 304 Conn. 754, 786, 43 A.3d 567 (2012).
Prior to trial, the court considered the defendant’s motion seeking the plaintiffs authorization for disclosure of records from the department. The defendant’s counsel admitted that he was in possession of the plaintiffs state aid eligibility applications through 2007, but sought records subsequent thereto. The court reserved any decision until cross-examination of the plaintiff. During cross-examination of the plaintiff, the defendant’s counsel renewed the defendant’s motion. The plaintiffs counsel objected on the ground that the
The defendant now challenges the court’s finding that the evidence was irrelevant. “All relevant evidence is admissible, except as otherwise provided by the constitution of the United States, the constitution of this state, the Code or the General Statutes. Evidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2. “Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.” (Citation omitted; internal quotation marks omitted.) Drake v. Bingham, 131 Conn. App. 701, 708, 27 A.3d 76, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011).
“Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) Lombardi v. East Haven, 126 Conn. App. 563, 572,
In the present case, the defendant’s counsel admitted that he was in possession of the plaintiffs state aid eligibility applications through 2007. The defendant’s counsel submitted into evidence one state aid eligibility application, dated September 12, 2001. Rather than attempt to submit additional applications into evidence, the defendant’s counsel sought the plaintiffs authorization for disclosure of additional records from the department and attempted to elicit responses from the plaintiff concerning the content of those records. The defendant argues that such evidence was relevant to her claim that the plaintiff had instructed her to withdraw the funds for the purpose of his state aid eligibility because it shows that the plaintiff received an ongoing benefit from the defendant’s withdrawal of the trust funds. There was sufficient evidence in the defendant’s possession in the form of the plaintiff’s state aid eligibility applications through 2007 for this purpose. Subsequent records would be “ ‘merely cumulative.’ ” Lombardi v. East Haven, supra, 126 Conn. App. 572.
The defendant further argues that such evidence was relevant to the plaintiff’s credibility because it presents
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant’s first special defense alleged that the plaintiffs action is barred by the statute of limitations pursuant to General Statutes § 52-577. The defendant’s second special defense alleged that each of the plaintiffs claims is barred by the doctrine of unclean hands.
Although the defendant claims that the trial court improperly awarded damages generally, the entirety of her brief is directed against the court’s award of treble damages for statutory theft. To the extent that the defendant claims that the court improperly awarded damages for breach of fiduciary duty, conversion and unjust enrichment, we decline to address these claims on account of inadequate briefing. See State v. Koslik, 137 Conn. App. 855, 858-59 n.7, 49 A.3d 1067 (2012) (“It is well settled that [w]e are not required to review claims that are inadequately briefed. ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” [Emphasis in original; internal quotation marks omitted.]).
Although the trial transcript identifies him as “Orlando Perez,” evidence in the record identifies him as “Rolando Perez.”
Although there was evidence that the plaintiff tangentially may have benefited from the defendant’s withdrawal of the funds by way of qualifying for state aid, the court found that the defendant did not use the funds for the plaintiffs benefit.
The court concluded that the defendant’s withdrawal of the funds “establishes intent.” The defendant argues that withdrawal alone “is a neutral action that can be proper or improper depending on the nature of the use and circumstances.” Regardless of the propriety of this conclusion, the court made additional findings and “[w]e . . . must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment.” (Internal quotation marks omitted.) Rana v. Terdjanian, supra, 136 Conn. App. 113.
The defendant submitted into evidence one application dated September 12, 2001.
The plaintiff argues that the defendant did not preserve this claim for appeal because she had records from the department in her possession but failed to offer them into evidence. “[A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . The
The plaintiff testified that he did not believe that he had any trust funds nor did he expect to receive an inheritance because the defendant was still alive and the defendant had informed him that inheritance went from his grandmother to the defendant and then, upon the defendant’s death, to him.
At trial, the defendant’s counsel contended that the applications require the disclosure of any pending actions and, therefore, argued that additional applications may be relevant as to the plaintiffs credibility to prove whether he disclosed the existence of the present action. The defendant’s counsel also attempted to cross-examine the plaintiff on whether he disclosed the existence of the present action on subsequent applications. Such an inquiry based on speculation that the plaintiff may have provided a false statement on an application years after the events at issue in this case, is far too tenuous. Again, there was sufficient evidence in the defendant’s possession in the form of the plaintiffs state aid eligibility applications through 2007. “A trial is not an opportunity for counsel to embark on a fishing expedition or to induce fact finders to engage in speculation.” Deegan v. Simmons, 100 Conn. App. 524, 541, 918 A.2d 998, cert. denied, 282 Conn. 923, 925 A.2d 1103 (2007).
Reference
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- RICHARD MASSE, JR. v. SUSAN PEREZ
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