83-85 RAILROAD AVENUE, LIMITED PARTNERSHIP ET AL. v. SAMUEL L. JUDICE, JR. ET AL.

2005 Ct. Sup. 11738-jo
No. FST CV 01 0186514Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
August 29, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
WILLIAM B. LEWIS, JUDGE TRIAL REFEREE.

The plaintiffs, 83-85 Railroad Avenue Limited Partnership, 83-85 Railroad Avenue General, LLC and James F. Perna, II, Trustee of the Rocco R.P. Perna Revocable Trust,[1] have brought this declaratory judgment action, which was tried to the court, in order to quiet title to premises located at 83-85 Railroad Avenue in Greenwich. The defendants are Samuel L. Judice, Jr., Charles Judice, and Janet Hordiski, who claim an interest in the Railroad Avenue premises, which consists of a two-story office building and approximately 2,500 square feet of land area.

This quiet title action is authorized by General Statutes § 47-31, which provides in subsection (f) that: “[t]he court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.” The relief afforded by a quiet title action is a full determination of the rights of the parties in and to the land in dispute. Lake Garda Improvement Association v. Battistoni et al., 155 Conn. 287, 293, 231 A.2d 276 (1967); DeVita v. Esposito, 13 Conn.App. 101, 110-11, 535 A.2d 364, cert. denied, 207 Conn. 807, 540 A.2d 375 (1988).

The inquiry to determine record title to the subject premises begins on January 31, 1947, when Rocco R.P. Perna purchased the premises from the Estate of Alfonso CT Page 11738-jp Franco, deceased. Two years later, on February 15, 1949, Rocco Perna quit claimed the subject premises to his father, James F. Perna, and to his uncle, Joseph E. Perna, as tenants in common. During that same year, on July 26, 1949, James F. Perna reconveyed, by quit claim deed, his one-half interest in the premises to his son, Rocco, but reserved a life interest (“for and during my natural life”) therein for himself. James F. Perna died on October 30, 1966, extinguishing and terminating his life estate, and making Rocco Perna the fee owner of a one-half interest of the subject premises. Leydon v. Greenwich, 257 Conn. 318, 324, 777 A.2d 552 (2001).

After the death of Joseph E. Perna, Rocco’s uncle, a certificate of devise from the Greenwich Probate Court, dated July 24, 1970, was issued, which indicated that Joseph E. Perna’s one-half interest in the subject premises was distributed in equal shares to his three sons, Alfred R. Perna, Albert A. Perna and Joseph E. Perna, Jr. Joseph E. Perna’s oldest son, Alfred R. Perna, died on May 18,1992, owning a one-sixth (1/6th) interest in the premises, which he devised in equal shares to his three children, Alfred R. Perna, Jr., Karen M. Beeman and Kevin J. Perna.

On December 29, 1998, Albert A. Perna and Joseph E. Perna, Jr., the Sons of Joseph E. Perna, together with Alfred R. Perna, Jr., Karen M. Beeman and Kevin J. Perna, the children of Alfred R. Perna, deceased, all conveyed their respective interests in the subject premises by quit claim deed to 83-85 Railroad Avenue Limited Partnership and to Rocco Perna, Trustee,[2] as tenants in common. Thus, as of December 29, 1998, Rocco Perna held the entire record title ownership of the subject premises in his name, or as a trustee, or in an entity which he owned and controlled.

Rocco Perna died on April 15, 2001, and his son, James F. Perna, II, was appointed as executor of his estate and is a plaintiff in this action. The plaintiffs seek to quiet title to the subject premises in the LLC, the limited partnership and James himself as successor trustee to his deceased father.

The defendants are Samuel L. Judice, Jr., Charles CT Page 11738-jq Judice and Janet Hordiski, children of Rocco Perna’s sister, Virginia Perna Judice, who died on January 27, 1966. The defendants contend that their mother owned a 1/9th share of the Railroad Avenue premises, and they each claim a one-third interest in and to their mother’s share. They also request that a constructive trust be placed on the subject premises to ensure their ownership rights.

The defendants do not dispute the accuracy of the above recitation of the various deeds by which the plaintiffs claim record title to the premises. In their brief the defendants write that they “do not contest the validity of the record title as it stood when James [F. Perna] died.” They allege, however, in their answer to the complaint that their interest in the subject premises is based on a “share and share alike” agreement entered into on November 5, 1966, after the death of their grandfather, James F. Perna, on October 30, 1966. This agreement was signed by all the children of James F. Perna, except for Floyd Perna, including the defendants’ mother, Virginia Perna Judice. The agreement was not produced at trial because it could not be located.

The defendants, however, did produce a memorandum dated May 8, 1976, prepared about ten years after the share and share alike agreement and at or about the time of the death of their grandmother, Anna. The 1976 memorandum stated that the children of James and Anna had met in 1996, after their father died, and agreed to divide his estate among themselves in equal shares, notwithstanding that their father’s will made different provisions for the various children.[3] It is claimed by the defendants that the share and share alike agreement included the Railroad Avenue property, the subject premises.

The issue in this proceedings is whether or not the subject premises on Railroad Avenue are part of the share and share alike agreement. James F. Perna did not refer to the premises in his will dated April 26, 1952. It is also a fact that the premises were not part of the inventory of his estate, except for “tax purposes only” as representing a taxable transfer intended to take CT Page 11738-jr effect at the death of the grantor or transferor, James F. Perna, in this case. General Statutes § 12-341b. Moreover, the administration accounting of the decedent’s estate filed May 5, 1976, does not include or refer to the subject premises as being distributed to anyone nor does said accounting include the distribution of any rental income from the subject premises.

Notwithstanding those facts, the defendants contend that James F. Perna “considered [the subject premises] to be part of his estate as did his children.” The defendants advance two principal reasons why the subject premises were part of this share and share alike agreement. If true, their uncle, Rocco Perna, did not own full title to the premises and the defendants would be entitled to their mother, Virgina’s, share of the property.

The first claim by the defendants is that Rocco Perna recognized that Railroad Avenue was part of the share and share alike agreement because he made a number of payments to his siblings during the period from approximately 1970 to 1998, including rent from the office building on the subject premises. Rocco only stopped making any such payments because, according to the defendants, he needed the money to finance his purchase of the other one-half of the premises from the children and grandchildren of Joseph E. Perna, Rocco’s uncle.

Testifying very credibly on this subject were two sisters of Rocco Perna, Catherine Perna Tesei and Florence Ann Perna, who both said they considered the money sent them by Rocco to be gifts from him and that such funds were not reported on their income tax returns because they denied ever having an ownership interest in Railroad Avenue. They also testified that, at the time of his death, their father, James F. Perna, did not own any interest in the Railroad Avenue premises. Admitted into evidence at the trial was an affidavit by Charles L. Perna, who was residing in Florida, which stated: “My brother, Rocco R.P. Perna, and only Rocco among our siblings, owns the said property and building at 83-85 Railroad Avenue.” Moreover, when Floyd Perna filed a petition under Chapter 13 of Title 11 of the United CT Page 11738-js States Code he did not refer to the subject premises as one of his assets.

The defendants also raise the point that when their uncle, Francis J. Perna, died in 1991, his will, which was executed in 1987, referred to the Railroad Avenue premises as if he owned a share thereof. He devised this share equally to his siblings, except for Floyd Perna. Yet, Francis’ daughter, Kathryn, testified very plausibly that she and her father often talked about the extent of his property holdings, but that Francis never mentioned or indicated that he had any interest in Railroad Avenue. The plaintiffs speculate that Francis intended to purchase an interest in the subject premises at some point in the future, which possibility was foreclosed by his death. There was no evidence submitted on this point, and, why Francis J. Perna included the premises in his will remains a mystery. In any event, the Railroad Avenue property was not part of his father’s estate and hence Francis’ devise is a moot point.

The defendants also claim that they had a fiduciary relationship with their uncle, Rocco, who was the only lawyer among the family. Yet if “[t]he relationship between parent and child is not per se a fiduciary one;”Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980); it is difficult to understand why an uncle and his nephews and niece, his sister Virginia’s children, would have such a relationship. See also Bunting v. Bunting, 60 Conn.App. 665, 680, 760 A.2d 989 (2000). Although he may well have represented their mother, Virginia, as an attorney, there was no evidence that Rocco Perna ever represented these defendants. “It is well settled that 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.” (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Prop. Cas Corp., 261 Conn. 620, 640, 804 A.2d 180 (2002). A fiduciary relationship between Rocco and his sister’s children, the defendants in this present case, was not established. Hence, the burden of proof remains with the defendants with respect to their special defense invoking the share and share alike agreement. CT Page 11738-jt

The defendants’ claim for a constructive trust is not persuasive. “[A] constructive trust arises . . . against one who, by . . . abuse of confidence . . . either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy . . . Courts 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 . . . In Connecticut, there are two types of confidential relationships in the context of constructive trusts: (1) where one party is under the domination of another and (2) where circumstances justify a party’s belief that his or her welfare or instructions will guide the other’s actions.” (Citations omitted; internal quotation marks omitted.) Riccio v. Riccio, 75 Conn.App. 556, 558-59, 816 A.2d 733
(2003).

Rocco Perna received title to the subject premises from his father and his uncle’s children and grandchildren. Until the defendants filed their claim, the other family members, including Virginia, Rocco’s sister, and mother of the defendants, did not contend that Rocco dealt unfairly with them or used undue influence. The only exception is Floyd Perna, who made some representations to the contrary.

The plaintiffs’ application to quiet title in their favor is granted. The defendants did not demonstrate by the requisite level of proof that the subject premises were included in the share and share alike agreement. Rocco Perna held fee simple title to the subject premises on his death. The premises were not and could not have been included in the share and share alike agreement because, at the time of his death, Rocco’s father, James F. Perna, did not own any part of the Railroad Avenue premises. That means in turn that his daughter, Virginia, did not have any such interest either, and the claim of the defendants relates solely to their mother’s purported interest in the subject premises. CT Page 11738-ju

Costs are taxed in favor of the plaintiffs.

William B. Lewis, Judge T.R.

[1] The LLC is the general partner of the Limited Partnership. James F. Perna, II, is the successor trustee of a revocable trust dated May 30, 1998, created by his father, Rocco R.P. Perna, who was also the trustee. This trust owns both the LLC and the Limited Partnership, and is for the benefit of Rocco and his son, James.
[2] Rocco Perna established a trust on May 30, 1998, with himself as both grantor and trustee. However, on September 25, 1991, Rocco Perna conveyed his one-half interest in the subject premises to himself as trustee but did not get around to memorializing the trust until seven years later. The Limited Partnership and the Limited Liability Corporation were both formed in 2001.
[3] James F. Perna and his wife, Anna, had nine children: Rocco, Virginia, Francis, Catherine, Floyd, Charles, Carmela, Florence and Thomas.

CT Page 11738-jv