2009 Ct. Sup. 3577
No. CV04-0085705SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
February 17, 2009
MEMORANDUM OF DECISION
RADCLIFFE, J.
FACTS
This action was originally instituted by Gary W. Ericson, acting in his capacity as Conservator of the Estate of his father, Donald W. Ericson. The initial complaint dated May 24, 2004, and made returnable June 14, 2004, named only Patricia Bargo and Eddie M. Bargo, Sr. as defendants.
Gary W. Ericson and Patricia Bargo are the children of Donald W. Ericson, who died on May 1, 2007, while this action was pending.
The Plaintiff, Kurt M. Ahlberg, is the Administrator of the Estate of Donald W. Ericson, by appointment of the Probate Court for the District of Milford. He was substituted as the party plaintiff on January 24, 2008. Following his substitution, a Second Amended Complaint dated August 8, 2008 was filed.
While Gary W. Ericson was Conservator of his father’s estate, and the Plaintiff in this action, Liberty Bank and People’s Bank were cited in as additional defendants Community Realty Investors, Inc. was substituted for Liberty Bank in November 2006.
In the operative complaint, that of August 8, 2008, Counts four through six are directed to Community Realty Investors, Inc. Each count claims that Community Realty may claim an interest, by virtue of its status as a mortgage holder, in real property located at 24 Cambridge Street, Fairfield.
Although a search of the pleadings reveals that a default for failure to appear was entered against People’s Bank in September of 2006, the August 8, 2008 complaint contains no reference to People’s Bank, and the Plaintiff has addressed no claim for relief to People’s Bank. CT Page 3578
Therefore, People’s Bank has been withdrawn from this case, through operation of the pleadings, and was not the subject of any claims during the trial.
The Plaintiff, Kurt M. Ahlberg, Administrator, has addressed two of the three counts in the operative pleading to Patricia S. Bargo and Eddie M. Bargo. Count one claims that the decedent, Donald W. Ericson, transferred liquid assets and real property to the defendants, when he lacked the mental capacity to do so. Count two claims that both Patricia and Eddie Bargo exercised undue influence over Donald W. Ericson.
Count three is addressed only to the defendant Patricia S. Bargo. It alleges that Patricia Bargo abused, and thereby breached a fiduciary duty owed to her father, Donald W. Ericson.
Testimony at trial revealed an environment in which the two children of Donald W. Ericson have continued to contest their right to the assets which he acquired, before his death in May of 2007. The court heard testimony for portions of two days.
The evidence revealed that in 1990, the decedent had been a widower since the death of his wife in 1976. He retired as a machinist in 1989, and continued to reside at this longtime residence, 24 Cambridge Street, Fairfield.
In 1990 Patricia and Eddie Bargo were experiencing financial difficulties. Their home in Shelton was being foreclosed, and they were forced to file for bankruptcy.
Given their precarious financial situation, Patricia and Eddie Bargo, along with their two children, moved into 24 Cambridge Lane with the decedent, Donald W. Ericson.
In order to accommodate the Bargo family, an addition to the home was built. The addition required a $50,000 mortgage.
During this time, title to the home remained exclusively in the name of Donald W. Ericson, who continued to pay the real estate taxes. Eddie and Patricia Bargo paid the mortgage as payments came due.
Patricia Bargo had been a signatory on her father’s checking account since 1976, following the death of her mother. This arrangement continued after she and her family moved to 24 Cambridge Street.
CT Page 3579 Gary Ericson was aware of the addition to the Cambridge Street home, and of the fact that his sister and her family were living with Donald W. Ericson. He assisted in the work on the addition, since Gary Ericson was a skilled workman, and union carpenter.
In 1997, Donald Ericson executed a quitclaim deed (Ex. 6), which placed title to 24 Cambridge Street, Fairfield in his name, along with Eddie Bargo, Sr. and Patricia Bargo. The deed placed the property in survivorship, meaning that title would pass upon the death of Donald Ericson outside the terms of his will, and would not be an asset of his estate, should he predecease his daughter and son-in-law.
Donald Ericson’s will (Ex. O) left his entire estate to both children, in equal shares.
In March of 2002, Donald W. Ericson conveyed his remaining interest in 24 Cambridge Street to his daughter, Patricia Bargo.
The decedent first saw Dr. Kenneth Siegel in April of 1998 (Ex. 13). Dr. Siegel, who testified at trial, diagnosed Donald Ericson as suffering from “Dementia, probably Alzheimer’s disease.”
Dr. Siegel never stated that Donald Ericson was incapable of managing his own affairs until 2003, when Gary Ericson petitioned the Fairfield Probate Court to become conservator of his father’s estate. At no time did he inform Donald Ericson that he believed him incapable of managing his financial affairs, driving a car, making health care decisions, or participating in the ordinary activities of everyday living, prior to 2003.
Following the 1997 conveyance, and the 1998 visit to Dr. Siegel, Donald W. Ericson continued to reside at 24 Cambridge Street with his daughter and her family.
Gary Ericson, and his wife Carol Brody, along with their three children, resided in Milford. Since Carol Brody was employed outside the home, Donald Ericson stayed with the children, while their parents were working. He would drive to Milford on Interstate 95 to be with the children.
The decedent also assisted his brother Edward Ericson, who also resided in Fairfield, before entering a nursing home facility in 1999. The assistance included balancing Edward Ericson’s checkbook, and performing various household chores.
CT Page 3580 Joseph Gabriel, a certified public accountant, prepared income tax returns for Donald Ericson between 1982 and 2002. Since Joseph Gabriel died prior to trial, his testimony was admitted via a deposition (Ex. A).
Gabriel prepared tax returns for every year after 1982, with the exception of 1995, 1996, 1997 and 1998. He last saw Donald W. Ericson in March or April of 2002, at which time he appeared to be competent (Ex. A, p. 29-30).
The accountant was also involved with Donald Ericson in 2001, after he acquired a one-quarter interest in a home on Concord Street, Fairfield, following the death of Donald Ericson’s mother.
The deposition of Attorney John Amarilios (Ex. 3) was also introduced at trial, and made a full exhibit. Attorney Amarilios maintained an office on Hoyt Street in Stamford in 1997, and was the attorney who represented Donald Ericson, Patricia Bargo and Eddie Bargo, when 24 Cambridge Street was refinanced in 1997, and a quitclaim deed was executed as part of the refinancing transaction (Ex. B, p. 20-21).
Attorney Amarilios believed that the decedent was legally competent at the time of the transaction.
Donald W. Ericson made a gift of $20,000 to his son Gary in 2001. He also discussed a wedding gift for his granddaughter with Patricia Bargo, but declined to advance the money for the gift, according to testimony received at trial. The requested $10,000 loan was obtained from another relative.
In March of 2002, Attorney Matthew Reale was contacted, and completed legal work for the decedent, Donald W. Ericson. Attorney Reale had previously been acquainted with Eddie Bargo.
On March 22, 2002, Donald W. Ericson deeded his remaining interest in 24 Cambridge Street, Fairfield to his daughter Patricia. (Ex. H.) With the recording of the quitclaim deed, Patricia Bargo owned a two-third interest in 24 Cambridge Street, while her husband Eddie Bargo, Sr. owned a one-third interest.
Attorney Reale testified that Donald Ericson consulted him about drafting a revised Last Will and Testament, and a power of attorney. The documents were never executed.
The proposed Will and power of attorney were sent by Attorney Reale to CT Page 3581 the decedent on March 25, 2002. (Ex. M.) A follow-up letter was mailed on May 29, 2002. (Ex. N.)
The proposed Will left everything to Donald Ericson’s son, Gary Ericson, and made no provision for his daughter, Patricia.
In early 2003, a dispute arose between Patricia Bargo and Donald Ericson concerning the payment of real estate taxes due on 24 Cambridge Street. As a result of the dispute, Donald Ericson moved out of 24 Cambridge Street, and began residing with his son and his family in Milford.
In 2003, Gary Ericson was appointed Conservator of the Estate of Donald W. Ericson by order of the Probate Court for the District of Fairfield.
Between April of 2003 and February or March of 2004, Donald W. Ericson resided with his son in Milford. At the time of his death, he was a resident of a nursing home facility and his assets had been depleted, according to the final account (Ex. 8).
CLAIMS OF LACK OF CAPACITY AND UNDUE INFLUENCE ARE NOT PROVEN
In Count one, the Administrator claims that Donald W. Ericson lacked the capacity to transfer his interest in real estate in either 1997 or 2002, and lacked capacity during that time to transfer liquid assets to third parties, while his daughter was a signatory on his checking account.
Count two involves the related claim that Patricia, and/or Eddie Bargo, Sr. exercised undue influence over Donald W. Ericson, thus causing him to deplete his assets when he otherwise would not have done so.
Undue influence is the exercise of sufficient control over the person, the validity of whose acts are in question, to constrain him to do that which he would not have done, had the control not been exercised, that the acts may be set aside. Reynolds v. Molitor, 184 Conn. 526, 528
(1981). The person exercising the undue influence must so dominate the will of another, that the person is prevented from exercising independent judgment. Bucchi v. Gleason, 137 Conn. 25, 30 (1959).
In both claims involving undue influence and lack of capacity, it must be shown that the domination of the person was such that he did not have CT Page 3582 the requisite intent to perform the act in question. Fritz v. Mazurek, 156 Conn. 555, 559 (1968).
The burden is upon the party seeking to establish undue influence or lack of capacity. The burden does not shift, because the relationship of parent and child exists between the parties. Berkowitz v. Berkowitz, 147 Conn. 474, 476 (1960).
Neither undue influence, not lack of capacity has been proven, based upon the testimony presented.
The 1997 conveyance placed 24 Cambridge Street in three names, and was accomplished following an addition to the house in order to accommodate Patricia Bargo and her family.
Patricia Bargo had been a signatory on her father’s checking account for many years, although he continued to reconcile the checkbook, and utilize the funds. The court is unable to find that any of the checks which were written were the result of undue influence, or lack of capacity on the part of Donald W. Ericson.
The 2002 conveyance must also be examined in light of all of the circumstances. Donald W. Ericson, as the father of two grown children, was apparently attempting to realize the impossible goal of “fairness” in the disposition of his worldly possessions. He had given $20,000[1]
to his son, and the proposed Last Will and Testament would have left everything to his son because adequate provision for Patricia Bargo had been made when title to 24 Cambridge Street was fully in her name, and that of Eddie M. Bargo, Sr. Although the will was never executed, it sheds light on the decedent’s intent at the time of the 2002 conveyance.
It is found that the 2002 conveyance was not the result of undue influence or lack of capacity. Although the “wisdom” of the conveyance may be questioned in hindsight, that does not provide proof of either undue influence, or lack of capacity.
Judgment may enter in favor of the Defendants as to Counts one and two.
BREACH OF FIDUCIARY DUTY HAS NOT BEEN DEMONSTRATED
A fiduciary or other 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 other. Konover Development Corp. v. Zeller, 228 Conn. 206, CT Page 3583 219 (1994). Breach of a fiduciary duty does not involve a failure to adhere to any particular standard of care. Rather, it implicates a duty of loyalty and honesty. Beverly Hills Concepts, Inc. v. Schatz, Schatz, Ribicoff Kotkin, 247 Conn. 48, 42 (1998).
Courts have been reluctant to define, or to establish hard and fast rules, concerning what constitutes a fiduciary relationship. Rather than setting forth criteria in precise detail, courts have chosen to leave the bar down for situations in which there is a justifiable trust and confidence on one side, and a resulting superiority and influence on the other. Elm City Cheese Co. v. Federico, 251 Conn. 59, 99 (1999) (Berdon, J. Concurring); Alaimo v. Royer, 188 Conn. 36, 41 (1982). The determination of whether a fiduciary relationship exists between parties is, therefore, a question of fact. Dunham v. Dunham, 204 Conn. 303, 320
(1987).
In such a relationship it is the superior position of the fiduciary, or dominant party, which affords great opportunity for abuse of the confidence reposed in him. Konover Development Corp. v. Zeller, supra, 219.
No fiduciary relationship has been demonstrated, based upon the relationship.
There is no indication that Patricia Bargo possessed superior or unique experience or expertise, beyond the knowledge or understanding of her father, in matters financial.
Although she and the decedent were parent and child, no professional relationship existed between them, and the record does not reveal the use of any unique educational or professional training by Patricia Bargo, in the management of her father’s checking account, or other affairs.
Dunham v. Dunham, supra, can be distinguished based upon the circumstances which gave rise to a fiduciary relationship, in a relationship involving two siblings. The determination of a fiduciary relationship in Dunham, revolved around the attorney/client relationship between the two parties, and the professional expertise enjoyed by one of the siblings. Dunham v. Dunham, supra, 320-21.
In the absence of additional factors, the mere relationship of parent and child is insufficient to establish a fiduciary relationship, just as it is insufficient to shift the burden of proof when claims of undue influence or lack of capacity are made. Berkowitz v. Berkowitz, supra, CT Page 3584 478.
Once a fiduciary relationship is found to exist, the burden of proving fair dealing shifts to the fiduciary. The standard of proof required in such cases to establish fair dealing is that of clear and convincing evidence. Pergament v. Green, 32 Conn.App. 644, 651 (1993).
This rule is designed to provide additional protection to one disadvantaged through lack of knowledge, expertise or confidence. However, it is also a reason why courts should not lightly find a fiduciary relationship to exist, based upon the interactions of family members.
Judgment may enter in favor of the Defendant, Patricia Bargo, as to Count three.
ATTEMPT TO SET ASIDE 1997 CONVEYANCE IS BARRED BY STATUTE OF LIMITATIONS
The Defendants claim that the 1997 conveyance by the decedent cannot be set aside, because any claim is barred by the applicable statute of limitations, § 52-577 of the General Statutes. That section reads:
No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.
This action was begun in May of 2004, more than three years following the conveyance which placed title to 24 Cambridge Street, Fairfield in the names of Donald W. Ericson, Patricia Bargo and Eddie Bargo, Sr.
§ 52-577 of the General Statutes is what is known as an “occurrence” statute of limitations, rather than a “discovery” statute. This means that the time period within which a plaintiff may commence an action begins to run at the moment the act or omission occurs. Fichera v. Mine Hill Corporation, 207 Conn. 204, 212 (1988); Rosenfeld v. Rogan, Nassau, Chaplan, Lassman Hirtle, 69 Conn.App. 151, 158-59 (2002).
When conducting an analysis of § 52-577 C.G.S., the only facts which are material to a court’s decision are 1) the date of the conduct alleged, and 2) the date on which the action is filed. Farnsworth v. O’Doherty, 85 Conn.App. 145, 150 (2004); Collum v. Chapin, 40 Conn.App. 449, 451 (1996).
CT Page 3585 The Plaintiff’s claim, as it regards the 1997 conveyance, is barred through operation of the applicable statute of limitations. Therefore, even in the absence of the 2002 conveyance, title would have passed to Eddie and Patricia Bargo upon the death of Donald W. Ericson, and 24 Cambridge Street would not have been an asset of Donald W. Ericson’s estate.
CONCLUSION
Judgment may enter for the Defendants, Patricia Bargo and Eddie Bargo, Sr., as to all counts.
Judgment may enter in favor of the Defendant, Community Realty Investors, Inc.
Although default had previously entered, judgment may enter in favor of the Defendant, People’s Bank, in light of the operative pleading, which omits any claim as to People’s Bank.
CT Page 3586