Culhane v. Culhane

Filing 69

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Clerk of the Court will enter judgment in favor of defendant on Counts 2 and 3 of the Amended Complaint and in favor of plaintiff on Count 2 of the Counterclaim. The Court orders that $109,762.73 of the escrow proceeds be distributed to plaintiff and $96,525.11 be distributed to defendant. Signed by Judge Holly B. Fitzsimmons on 8/27/2013. (Attachments: # 1 Appendix)(Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FLOYD CULHANE,
Plaintiff,
vs.
JANICE CULHANE.
Defendant.

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CIVIL ACTION NO.
3:11-CV-1799 (HBF)

BENCH RULING
Plaintiff Floyd Culhane filed this diversity action on
November 18, 2011, against defendant Janice Culhane. It arises
from a long-drawn and bitter dispute between brother and sister
over a residential property inherited from their deceased
mother.

Plaintiff seeks a statutory accounting and distribution

pursuant to Conn. Gen. Stat. §52-404(b), and alleges unjust
enrichment, and breach of fiduciary responsibility by defendant.
Plaintiff also seeks compensatory damages.
Defendant asserts two counterclaims, for statutory
accounting and distribution pursuant to Conn. Gen. Stat. §52404(b) and for unjust enrichment.
A court trial was held on February 5 and 6, 2013, during
which the following witnesses testified: Floyd Culhane; Janice
Culhane; attorney Steven Colarassi; and Susan Arnold.
exhibits were entered pursuant to agreement.

All

At the conclusion

of plaintiff‟s case, the defendant moved for a “directed
verdict” to strike allegations of damages which the defendant
believed to be speculative in nature and/or not supported by
evidence presented by plaintiff, such as rent owed by defendant
to the co-owner plaintiff, and any damages caused by defendant‟s
alleged neglect of the property.

The Court reserved ruling on

defendant‟s motion.1 The testimony and evidence adduced at the
trial are summarized below as necessary to explain the Court‟s
findings and conclusions.
I.

Findings of Fact2
A. The Property
1.

At issue is a residential property located at 16 High

Street in Bethel, Connecticut (the “property” or the “home”),

1

The Court construes defendant‟s motion as a motion for judgment on
partial findings under Federal Rule of Civil Procedure 52(c), “which
allows the court to enter judgment as a matter of law in the moving
party‟s favor at any point in the proceedings when the non-moving
party has been fully heard on an issue during a non-jury trial and the
court finds against the party.” Fabricated Wall Sys., Inc. v. Herman
Miller, Inc., No. 3:08-cv-01313 (SRU), 2011 WL 5374130, at *1 (D.
Conn. Nov. 8, 2011) (citing Fed. R. Civ. P. 52(c); AmBase Corp. v. SDG
Inc., No. 3:00CV1694(DJS), 2005 WL 1860260, at *2 (D. Conn. Aug. 3,
2005)). “A Rule 52(c) motion made by a defendant may be granted where
the plaintiff has failed to make out a prima facie case or where the
plaintiff has made out a prima facie case but the court determines
that a preponderance of the evidence goes against the plaintiff‟s
claim.” Fabricated Wall Sys., 2011 WL 5374130, at *1 (citation and
internal quotations omitted. Defendant‟s motion [Doc. #57] is DENIED
AS MOOT, in light of the Court‟s ruling set forth below.
2
For jurisdictional purposes, the Court finds that plaintiff is a
citizen of Maryland and Massachusetts, and that defendant is a citizen
of Connecticut. The Court, moreover, finds that the amount in
controversy exceeds $75,000.

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which was previously owned by the parties‟ mother, Edith
Culhane.
2.

[Def. Exs. 549, 549A, 550, 550A, 551, 551A].
In 1982, Edith Culhane equally devised her interest in

the property among herself and her three children: plaintiff,
defendant, and Michael C. Culhane. [Def. Exs. 549, 549A].
3.

In 1996, Michael C. Culhane devised his interest in

the property to plaintiff. [Def. Exs. 550, 550A].
4.

On November 10, 1999, Edith Culhane quitclaimed her

interest in the property to defendant, making the parties fifty
percent co-owners. [Def. Exs. 551, 551A].
5.

The property consists of a single-family home, with

an attached one-bedroom rental apartment (the “apartment”).
[Def. Ex. 514].

The home was built in 1900 and has 2,970 square

feet of living area. [Def. Ex. 537Z35].
6.

The parties‟ mother died in March 2000. [Jt. Pre-Trial

Mem., Doc. #45, at 13].

Prior thereto, defendant acted as a

live-in caretaker for her mother from approximately February
1999 until October 1999, when Edith Culhane entered a nursing
home.

During this time, Edith Culhane required twenty-four hour

care, which defendant provided while residing in the home with
her mother.3

3

Defendant also resided in the home prior to 1999. However, at the
pretrial conference on January 29, 2013, the parties agreed to limit
their claims to February 1999 through June 2010.

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7.

The parties are brother and sister, but have been

estranged since their mother‟s death.

The atmosphere between

the parties since this time has been acrimonious and rife with
dispute.
8.

Defendant resided in the home exclusively from

approximately 1999 through January 2007.

Defendant did not pay

plaintiff rent for her use of the home during this time.
9.

Plaintiff testified on cross-examination that he

expected to receive rent for defendant‟s use of the property.
Plaintiff did not raise this issue with defendant, or the issue
of rent from the apartment, until July 2005. [See also Pl. Ex.
6].
10.

Plaintiff did not reside in the home at any point from

1999 to 2010.
11.

Plaintiff testified that he did not visit the property

until April 2008.
12.

During the time period at issue, defendant rented the

apartment for one year beginning on April 1, 2002, at a rate of
$1,150 per month, for a total of $13,800 annually. [Def. Ex.
544].

Defendant did not share these rental proceeds with

plaintiff, but testified that she applied these proceeds to
delinquent property taxes.
13.

Plaintiff admitted at trial that he did not make any

attempts to rent the apartment.
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14.

The Court credits defendant‟s testimony that she

attempted to rent the apartment at other times without success.
15.

The Court further credits defendant‟s testimony that

after she vacated the property, she did not attempt to rent the
main house because it did not have heat, as a result of her
“winterizing” the home.
16.

Both plaintiff and defendant testified at length

regarding the condition of the property.

Pictures taken by

realtor Jay Streaman depict the home in a general condition of
disrepair.

[Pl. Ex. 2].

However, the Court credits defendant‟s

testimony that these pictures do not fairly and accurately
represent the overall condition of the home.

Indeed, pictures

in a real estate advertisement depict the home in better
condition, which defendant testified is a fair and accurate
depiction of the home in early May 2007. [See Def. Ex. 514,
514A].

The Court further credits defendant‟s testimony that

damage depicted in plaintiff‟s exhibit 2 either existed at the
time the parties inherited the property and/or occurred as a
result of winterizing the home.

The Court gives more weight to

defendant‟s testimony, given that she continuously lived at the
home from 2000 through 2007, and because plaintiff testified he
did not inspect the property until April 2008.
17.

Testimony of an uninvolved witness, Susan Arnold,

lends further credence to defendant‟s testimony concerning the
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condition of the home.

Ms. Arnold, who lives next door to the

property and has known defendant since 1949, testified that she
visited the home in early 2007 and that the home resembled the
pictures in defendant‟s exhibits 14 and 14A.

Ms. Arnold further

testified that defendant maintained the home, and was working
room by room to repair or rehabilitate the home to its former
condition.
B. 1999 Mortgage
18.

In February 1999, the parties obtained a $70,000

mortgage for the purposes of making repairs to the home,
including replacing the roof (the “1999 loan”).
19.

The proceeds from the 1999 loan were placed in a joint

account held by the parties.

Defendant drew on this account to

make repairs to the property. The Court credits plaintiff‟s
testimony that he did not receive any disbursements from, or
personal use of, the 1999 loan proceeds.
20.

Defendant testified that she applied the 1999 loan

proceeds to property repairs, and that the loan proceeds were
exhausted by 2000.
21.

Defendant paid the monthly mortgage payments on the

1999 loan from April 2, 1999 through February 13, 2004, in the
amount of $648.65 per month. [Def. Exs. 542, 542A-N].

Plaintiff

did not contribute to the mortgage payments during this time.
C. 2004 Mortgage
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22.

In February 2004, the parties refinanced the property

with GMAC Mortgage, LLC in the amount of $110,000 to take
advantage of lower interest rates (the “2004 loan”). [Pl. Ex.
24].
23.

Plaintiff executed the mortgage instrument, but

testified that he did not execute the related promissory note.
[Id.].4
24.

The proceeds of the 2004 loan were distributed as

follows: $56,000 to Chase Bank to satisfy the 1999 loan;
$14,239.52 to the Town of Bethel for property taxes; $2,000 to
Sears to satisfy a lien for financed kitchen cabinets; and
$22,481.33 to pay off defendant‟s car loan. [See Def. Ex. 556].
25.

After deducting the settlement costs and disbursements

to third parties, $14,477.31 was disbursed directly to defendant
from the 2004 loan proceeds. [Id.]

The Court credits

plaintiff‟s testimony that he did not receive any disbursements
from, or personal use of, the 2004 loan proceeds.
26.

The parties agreed that defendant would make the

monthly mortgage payments on the 2004 loan.
27.

Defendant made the monthly mortgage payments on the

2004 loan from March 2004 through June 2008, in the amount of
4

Plaintiff‟s exhibits 4 and 5 are partial copies of the 2004
promissory note, and do not have a signature page. However, the first
page of each exhibit reflects defendant‟s initials, “JHC”. [See Pl.
Exs. 4-5].

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$650.70 per month. [See Def. Exs. 539, 539A-D; 543, 543A-C; Pl.
Ex. 10].

Defendant testified that she ceased making these

mortgage payments due to her inability to pay.

Defendant did

not advise plaintiff that she had ceased paying the 2004 loan.
28.

The parties understood that defendant would eventually

repay the 2004 loan in its entirety.

The Court further credits

defendant‟s testimony that she applied part of the 2004 loan
proceeds to repay her car loan because it was her understanding
that she would eventually acquire plaintiff‟s share of the
property.5
D. Foreclosure Actions and Reinstatement of the 2004 Loan
29.

On or about July 2008, the parties defaulted on the

2004 loan as a result of non-payment. [See Pl. Ex. 10].
30.

On October 10, 2008, GMAC Mortgage sued the parties in

Connecticut Superior Court to foreclose the 2004 mortgage. [Def.
Exs. 552, 552A-L].
31.

In November 2008, plaintiff reinstated the 2004 loan

by making payment to GMAC Mortgage in the amount of $6,123.42,
for past-due payments, interest, attorney‟s fees, and other
incurred costs.

[Pl. Ex. 10].

5

The parties testified as to some discussions regarding the disposal
of the property prior to its sale. Plaintiff offered his living
rights in the property to defendant, with the remainder to plaintiff‟s
daughter, while defendant presented an offer to plaintiff to buy out
his share of the property. The parties failed to reach any agreement.

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32.

On or about March 2009, the bank sued to foreclose the

property a second time.

Plaintiff testified that he stopped

paying the 2004 loan on the basis that defendant solely executed
the promissory note.

Plaintiff hired Attorney Jerome Mayer to

defend against the second foreclosure action on this basis, and
paid his attorney‟s fees.

Defendant did not contribute towards

Attorney Mayer‟s fees.
33.

Plaintiff testified that Attorney Mayer successfully

defended against the second foreclosure action, and reached a
settlement with GMAC Mortgage wherein the 2004 Loan was, inter
alia, reinstated without penalties. [See Def. Ex. 515].
E. Sale of the Property
34.

Sometime in May 2007, the parties listed the property

for sale with a realtor, Mary Nagle, at $485,000. [See Def. Exs.
506, 506A-D, 514].

The property did not sell during Ms. Nagle‟s

listing period.
35.

On August 1, 2007, a prospective buyer offered to

purchase the property for $405,000, but this offer fell through.
[Def. Ex. 527, 527A-D].

Sometime thereafter, a second

prospective buyer offered to purchase the property for
“$440,000”, but this deal likewise did not close.
36.

In November 2007, the parties listed the property with

a new realtor, Jay Streaman, at the offering price of $439,900.
[Def. Ex. 526A].
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37.

Sometime in 2008, the parties removed the property

from the market for thirty (30) days to repair damage to the
home.
38.

On June 29, 2010, the property ultimately sold for

$337,500. [Pl. Ex. 14].
39.

The proceeds of the sale were distributed as follows:

$110,617.29 to satisfy the 2004 loan; $16,875 in brokers‟
commission fees; $2,531.25 in conveyance tax; $90 to the title
insurance company; and $1,030 to the parties‟ attorney. [Pl. Ex.
14].
40.

The remaining $206,287.84 in sale proceeds has yet to

be disbursed from escrow as a result of the parties‟ failure to
agree on its allocation. [Id.].
F. The Parties’ Expenses
Uncontested Expenses
41.

Defendant does not contest the following expenses

incurred by plaintiff in connection with the property:
a. $6,124.42 paid to reinstate the 2004 Loan. [Pl. Ex.
10; Def. Post-Evid. Trial Mem., Doc. #65, at 8];
b. $14,150.00 paid to DeMarco Construction to make
repairs to the home in anticipation of its sale. [Pl.
Ex. 11; Def. Post-Evid. Trial Mem., Doc. #65, at 8];

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c. $15,000 paid to DeMarco Construction to make repairs
to the home in anticipation of its sale. [Pl. Ex. 11;
Def. Post-Evid. Trial Mem., Doc. #65, at 8];
d. $21,857.43 total paid for real property taxes
($20,291.08) and public utility charges ($1,566.33).
[Pl. Ex. 15; Def. Post-Evid. Trial Mem., Doc. #65, at
8];
e. $28,438.046 paid to Handyman Connection to make the
home saleable. [Pl. Ex. 16; Def. Post-Evid. Trial
Mem., Doc. #65, at 8]; and
f. $6,591.197 paid to “other contractors” to make the home
saleable. [Pl. Ex. 15; Def. Post-Evid. Trial Mem.,
Doc. #65, at 8].

6

Although defendant agrees to the amount of $28,438.04 paid to
Handyman Connection, the Court finds defendant‟s calculations flawed.
Although defendant is correct that plaintiff duplicates the charges to
Handyman Connection in his exhibits 15 and 16, a review of these bills
indicates that the correct amount paid to Handyman Connection is
$32,833.04. This total reflects the addition of $5,000 paid to
Handyman Connection on September 24, 2010, and the subtraction of
$605, which was a payment to an insurance company. Accordingly, the
Court finds that plaintiff paid $32,833.04 to Handyman Connection for
the purpose of preparing the home for sale. [See Pl. Exs. 15-16; Def.
Post-Evid. Trial Mem., Doc. #65, at Chart One].
7
The Court has carefully reviewed plaintiff‟s exhibits in support of
his claims for payments made to repair the home in anticipation of its
sale. After such review, the Court finds that the plaintiff paid
$6,240.06 to “other contractors” and not $6,591.19, as alleged by
defendant. Because defendant fails to explain how it arrived at this
number, the Court cannot explain why these calculations differ.

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Plaintiff’s Expenses
42.

On December 20, 1999, plaintiff paid $120 for garbage

disposal. [See Pl. Ex. 25].
43.

On July 26, 1999, plaintiff paid $130.35 for Orkin to

provide termite treatment to the property. [See id.].
44.

Plaintiff paid for general upkeep and repair of the

property from sometime in 2008 until the property was sold in
2010.8
45.

On September 2, 2008, plaintiff paid $61.99 to Gulf

Oil for home heating oil. [Pl. Ex. 15].
46.

On April 21, 2009, plaintiff paid $38.79 to

Connecticut Light and Power for the property‟s electric bill.
[Pl. Ex. 15].
47.

From approximately March 2009 through May 2010,

plaintiff paid $6,882.87 in homeowner‟s insurance premiums. [Pl.
Ex. 15].
48.

Plaintiff paid Attorney Jerome Mayer $5,493 to defend

against the second foreclosure action. [Pl. Ex. 18].

8

See, e.g., paragraphs 41a-f, supra.

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Defendant’s expenses9
49.

Defendant generally paid the property taxes and

household expenses from 2000 through 2007, until she could no
longer afford to do so.
50.

From 2000 through 2007, defendant paid $43,831 in

property taxes for the home. [Def. Exs. 532, 532A-G; 540],10 of
which $14,239.52 was paid from the 2004 Loan Proceeds. [Def. Ex.
556]. Accordingly, the Court finds that defendant paid a net
total of $25,591.48 on property taxes for the home.
51.

From 2000 through 2008, defendant paid $9,961 total

for property insurance premiums. [Def. Exs. 541, 541A-H].11
52.

In 1999, defendant incurred $55,511.35 in expenses

related to the property. See Appendix A.
53.

In 2000, defendant incurred $10,494.62 in expenses

related to the property. See Appendix B.

9

Defendant submitted a post-evidence trial memorandum in support of
her claims. (Doc. #65). Defendant‟s exhibits are rife with duplicate
entries for the same expenses. Although defendant attempted to direct
the Court‟s attention to items that should be “deleted” or ignored,
the Court‟s review of defendant‟s Schedule One still reveals a
multitude of errors. The Court has carefully reviewed defendant‟s
claimed expenses in Schedule One to ensure that none are double
counted. It troubles the Court that neither defendant, nor the
plaintiff, took note of, or issue with, such duplicate claimed
expenses.
10
Plaintiff‟s proposed findings of fact state that, “[defendant] is
due credits for real estate taxes she paid from 2000 to 2007 totaling
$43,831[. . .]” [Pl. Prop. Findings of Fact, Doc. #53, at ¶38].
11
Plaintiff‟s proposed findings of fact state that, “[defendant] is
due credits for… house insurance she paid from 2000 to 2007 totaling
$9,961[. . .]” [Id.].

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54.

The Court credits defendant‟s testimony that she

personally painted and wallpapered the interior of the home in
2000 or 2001. See also Def. Ex. 537Z34.
55.

In 2001, defendant paid $4,954.40 toward the

property‟s expenses. See Appendix C.
56.

In 2002, defendant paid $3,582.64 toward the

property‟s expenses. See Appendix D.
57.

In 2003, defendant paid $11,309.15 toward the

property‟s expenses. See Appendix E.
58.

In 2004, defendant paid $4,295.24 toward the

property‟s expenses. See Appendix F.
59.

In 2005, defendant paid $4,013.90 toward the

property‟s expenses. See Appendix G.
60.

In 2006, defendant paid $1,589.75 toward the

property‟s expenses. See Appendix H.
61.

After vacating the home, defendant paid $9,353.48

toward the property‟s expenses. See Appendix I.
II.

Conclusions of Law

A. Jurisdiction and Choice of Law
1.

The Court has jurisdiction over this matter pursuant

to 28 U.S.C. § 1332, because the parties are citizens of
different states and the matter in controversy exceeds $75,000.

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2.

Because the Court sits in diversity, the substantive

law of the forum state, here Connecticut, applies.

Stephens v.

Norwalk Hosp., 162 F. Supp. 2d 36, 39 (D. Conn. 2001) (noting
the “undisputed principle that a federal court sitting in
diversity applies the substantive law of the forum state.”).
B. Plaintiff’s Claims
Count One – Action for Accounting and Distribution
3.

Plaintiff seeks an accounting pursuant to Conn. Gen.

Stat. §52-404(b) and distribution of the property‟s sale
proceeds.
4.

Section 52-404(b) provides that,
When two or more persons hold property as joint
tenants [. . .], if one of them occupies,
receives, uses or takes benefit of the property
in greater proportion than the amount of his
interest in the property, any other party and
his executors or administrators may bring an
action for accounting or for use and occupation
against such person and recover such sum or
value as is in excess of his proportion.

Conn. Gen. Stat. §52-404(b).
5.

Section 52-404(b) incorporates the “complete array of

equitable principles.”

See Lerman v. Levine, 14 Conn. App.

402, 410-13 (App. Ct. 1988) (Borden, J., concurring and
dissenting); see also Crowell v. Danforth, 222 Conn. 150, 163
(1992) (Borden, J., dissenting in part).

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6.

“A cotenant‟s „due proportion‟ under General Statutes

§ 52-404(b) „cannot be determined without a consideration of all
the equities between the parties, arising out of the dealings
with respect to the land in question.

Of critical importance in

considering those equities is whether there was an intent or
understanding between the cotenants that a payment or
contribution would be due.”

Crowell, 222 Conn. at 163 (Borden,

J., dissenting in part) (quoting Lerman, 14 Conn. App. at 41112).
7.

“It is not always true that each tenant in common or

joint tenant is entitled to equal shares in real estate. . . The
trial court may distribute the proceeds of the sale in
accordance with the equitable interest of each party.”

DiCerto

v. Jones, 108 Conn. App. 184, 190 (App. Ct. 2008) (quoting
Fernandes v. Rodriguez, 90 Conn. App. 601, 610 (App. Ct. 2005));
but see Nelson v. Catalano, No. CV030824431, 2007 WL 2081205, at
*2 (Conn. Super. Ct. April 3, 2007) (quoting Am. Jur. 2d, CoTenancy and Joint Ownership, § 58) (“[W]hen one co-tenant has
paid a debt or obligation for the benefit of the common
property, he is entitled as a matter of right to have his cotenants refund to him their proportionate shares of the amounts
paid.”).
8.

Plaintiff carries the burden of proof with regard to

the amount of damages to be awarded.
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Plaintiff has the burden

of proving damages to a reasonable certainty.

Leisure Resort

Tech., Inc. v. Trading Cove Assoc., 277 Conn. 21, 35 (2006).
9.

As a general matter, the Court declines to award

credit for duplicate expenses, expenses incurred prior to
February 1999, and expenses that are not properly supported by
either the plaintiff‟s credible testimony or documentary
evidence. Bearing these principles in mind, the Court makes the
following conclusions as to plaintiff‟s credits, and defendant‟s
reductions, from the escrowed sale proceeds.12
10.

Absent defendant‟s objection, the Court finds that

plaintiff is entitled to the following credits, and defendant,
the following reductions:
Purpose
2004 Loan Reinstatement
DeMarco Construction
Real Property Taxes
Public Utility Charges
Handyman Connection
Other Contractors
UNCONTESTED TOTAL:

11.

Credit to Plaintiff Reduction from Defendant
$3,062.21
($3,062.21)
$14,575
($14,575)
$10,145.54
($10,145.54)
$783.17
($783.17)
$16,416.52
($16,416.52)
$3,120.03
($3,120.03)
$48,102.47
($48,102.47)

The Court further finds that plaintiff is entitled to

the following credits for amounts paid in connection with the
property, and defendant the following reductions:

12

This section will only address the accounting sought by plaintiff.

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Purpose
Garbage Disposal
Orkin
Gulf Oil
CT Light and Power
Property Insurance
TOTAL:

12.

Credit to Plaintiff Reduction from Defendant
$60
($60)
$65.18
($65.18)
$30.99
($30.99)
$19.39
($19.39)
$3,441.43
($3,441.43)
$3,617
($3,617)

Plaintiff seeks credit for half of the $5,493 in

attorney‟s fees he incurred defending the property against the
second foreclosure.

Although defendant admits that the defense

of the foreclosure “collaterally benefitted” her, she argues
that plaintiff should not be entitled to a credit because
plaintiff “could have made the [monthly mortgage] payments [. .
.] but instead consciously chose not to make the monthly
payments.”

[Def. Post-Evid. Trial Memo., Doc. #65, at IIIA].

The Court finds defendant‟s argument unavailing.

The issue of

whether plaintiff could have paid the mortgage is irrelevant to
whether he is entitled to a credit for defending the property
against a second foreclosure.

Because plaintiff incurred this

expense for the benefit of both parties, i.e., preventing the
loss of the property, equity dictates that plaintiff receive
credit for half of the attorney‟s fees expended in defending the
foreclosure.

See Nelson, 2007 WL 2081205, at *3 (noting that

“[t]he Appellate Court has recently affirmed the award of
attorney[‟]s fees on equitable grounds.”).

Moreover, defendant

does not take issue with the reasonableness of the amount of
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attorney‟s fees plaintiff incurred.

Accordingly, the Court

awards plaintiff credit in the amount of $2,746.50, and reduces
defendant‟s account by the same figure.
13.

Plaintiff claims a $151 credit for a motel bill he

incurred while attending his mother‟s funeral in Connecticut.
Plaintiff testified that defendant refused to allow plaintiff
and his family to stay at the home during the funeral.

Although

co-tenants are entitled to equal use of the property, based on
equitable principles discussed above, the Court declines to
award plaintiff credit for this item.
App. at 190
14.

See DiCerto, 108 Conn.

(quoting Fernandes, 90 Conn. App. at 610)

Plaintiff seeks credit for half of $1,475 allegedly

incurred for “yard cleanup”.

The Court declines to award this

credit, as plaintiff has failed to meet his burden of proving
this expense.

Indeed, other than plaintiff‟s self-created chart

listing this expense [Pl. Ex. 23], there is no competent
evidence to support the award of this cost. See Leisure Resort,
277 Conn. at 35.
15.

Plaintiff next seeks credit for half the amount of the

property‟s alleged market loss.

Plaintiff claims the property

was valued at $600,000 before the housing decline in 2006.

He

seeks half of $120,000, which plaintiff claims is the difference
between his alleged market value ($600,000), and the initial
listing price of the property ($480,000).
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[Pl. Post Trial

Summ., Doc. #66, at K].
for this item.

The Court declines to credit plaintiff

Plaintiff has failed to present any evidence of

the property‟s value in 2006, except for his own testimony.
Plaintiff is not a property appraiser, nor an expert on property
values.

Accordingly, the Court does not credit plaintiff‟s

testimony, and finds that he has failed to sustain his burden to
prove this damage.

Although damages may be based on reasonable

and probable estimates, the Court may not award damages on the
basis of guess, speculation or conjecture.

See Leisure Resort,

277 Conn. at 35.
16.

Plaintiff also seeks credit for attorneys‟ fees he has

incurred as a result of “recreational litigation” threatened by
defendant for partition of the property.

Plaintiff additionally

seeks credit for attorneys‟ fees incurred in this action.
Pl. Ex. 23].

[See

As is well established in Connecticut, “attorney‟s

fees and ordinary expenses and burdens of litigation are not
allowed to the successful party absent a contractual or
statutory exception...”

Comm‟r of Envir. Protection v. Mellon,

286 Conn. 687, 695 (2008).

Plaintiff has failed to point to any

contractual provision or statutory exception that would here
permit the award of attorneys‟ fees.

Accordingly, the Court

declines to credit plaintiff for these items.
17.

Plaintiff next seeks credit for half of the $13,800

collected by defendant from the rental of the apartment.
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Although defendant failed to remit half of the collected rent to
plaintiff, the Court credits defendant‟s testimony that the
rental proceeds were applied to delinquent property taxes.
Accordingly, because the rental proceeds jointly benefitted the
parties, and based on equitable principles discussed above, the
Court declines to award plaintiff credit for one half of the
rental proceeds.
18.

Plaintiff also seeks credit for half of the

uncollected rent as a result of the apartment sitting vacant for
seventy two (72) months. Plaintiff alleges a rental value of
$1,150 per month for a total of $82,800 in uncollected rent.
The Court declines to award plaintiff this credit for several
reasons.

First, although plaintiff resided out of state during

the time in question, he made absolutely no efforts to rent the
apartment.

Although defendant and plaintiff were estranged, and

defendant controlled the heat to the apartment, the plaintiff
cannot now complain of a vacant apartment that he made no
efforts to rent.

Additionally, plaintiff claims a monthly

rental rate of $1,150.

Ostensibly, plaintiff obtains this value

from the apartment‟s 2002 lease.

The Court is not satisfied

that the rental rate for the apartment remained consistent from
the year 2000 through the year 2010.

Plaintiff has failed to

present any other evidence of the rental value of the apartment,
and therefore has not sustained his burden of proving this
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damage.

See Leisure Resort, 277 Conn. at 35.

Finally, the

Court credits defendant‟s testimony that she attempted, without
success, to rent the apartment.

It goes against equity to

reward plaintiff for making no efforts to rent the apartment,
and punish defendant for attempting to rent the apartment
without success.

Accordingly, the Court declines to award

plaintiff uncollected rent for the apartment.
19.

Plaintiff next seeks credit for defendant‟s use and

occupancy of the home from 2000 through 2006.

Plaintiff seeks

payment of $1,150 per month for eighty four (84) months.
Court also declines to award plaintiff this sum.

The

As an initial

matter, plaintiff failed to present any evidence of the main
home‟s rental value, and accordingly has failed to meet his
burden of proving this damage.

Indeed, although plaintiff

claims $1,150 per month as the home‟s rental value, other
exhibits provide opinions of the entire property‟s rental value
ranging from $2,000 [Pl. Ex. 1], to $5,000 [Pl. Ex. 6] per
month. Accordingly, the Court cannot, within reason, determine
the proper rental value for the main home.
277 Conn. at 35.

See Leisure Resort,

Moreover, the Court cannot equitably award

plaintiff use and occupancy payments where defendant essentially
acted as the main caretaker of the property for the benefit of
both parties.

Defendant testified at length as to the time,

effort, and money she contributed to the home‟s upkeep and
-22-

repair.

Given the figurative blood, sweat, and tears defendant

poured into the property, while plaintiff conveniently ignored
the property during this time, it would be inequitable to award
plaintiff use and occupancy payments. Additionally, it bears
noting that plaintiff failed to raise the issue of rent with
defendant until the summer of 2005.13
20.

Plaintiff also seeks credit for uncollected rent from

the main home from 2007 to 2010.

As previously stated,

plaintiff has failed to meet his burden proving this damage, as
he has failed to present competent evidence of the fair rental
value of the home.

Moreover, plaintiff could have made efforts

to rent the home, yet failed to do so.

As such, the Court

declines to award plaintiff credit for this item.
21.

Plaintiff finally contends that defendant‟s account

should be reduced by $110,617.29, the amount of the 2004
mortgage payoff drawn from the property‟s sale proceeds.

13

Plaintiff points to the case of Lerman v. Levine, 14 Conn. App. 402
(App. Ct. 1988) as “dispositive of the issues before the court.” [Pl.
Post Trial Summ., Doc. #66, at 1]. Lerman involves a partition and
sale of residential property. Although plaintiff claims this case is
dispositive, he ignores that “the equities in partition actions are
balanced by trial courts on a case-by-case basis. The fact that other
trial courts may have ruled differently in the ultimate division of
sale proceeds in a partition action does not require, in itself, a
similar result in the present case. „The determination of what equity
requires is a matter for the discretion of the trial court.‟” DiCerto
v. Jones, 108 Conn. App. 184, 188 n. 3 (App. Ct. 2008) (quoting Segal
v. Segal, 86 Conn. App. 617, 630 (App. Ct. 2004)). Similarly, the
accounting statute invoked by plaintiff encompasses a complete array
of equitable principles. Accordingly, the division of sale proceeds
in Lerman does not require a similar result here.

-23-

Plaintiff submits that this is an amount defendant “already
got”. [See Pl. Ex. 23].
this sum.

The Court declines to award plaintiff

As was well established through the testimony of the

parties, and the documentary evidence, plaintiff consented to
defendant obtaining the 1999 and 2004 loans, and encumbering the
property.

Indeed, there is no evidence contradicting

plaintiff‟s consent.

Moreover, the Court finds that defendant

largely used the 1999 and 2004 loan proceeds to finance repairs
to the home.

Although there was a vague understanding between

the parties that defendant would repay the 2004 loan, because
the loan proceeds financed property repairs and expenses that
benefitted both parties, the Court declines to award plaintiff
credit for this item.14
22.

In sum, the Court credits plaintiff‟s account in the

total amount of $54,465.97, and deducts from defendant‟s account
the same total.15

14

The Court shall address the issue of defendant applying loan
proceeds to a personal car loan in a subsequent section.

15

Uncontested Expenses
Other Expenses
Foreclosure Attorney's Fees
Total

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$48,102.47
$3,617
$2,746.50
$54,465.97

Count Two – Unjust Enrichment
23.

Plaintiff seeks damages for defendant‟s alleged

unjust enrichment as a result of her residing in the home rentfree, and by applying $22,481.33 of the 2004 Loan proceeds to
pay-off her personal car loan.

Defendant denies that she was

unjustly enriched.
24.

“Unjust enrichment is, consistent with the principles

of equity, a broad and flexible remedy. . . Plaintiffs seeking
recovery for unjust enrichment must prove (1) that the
defendants were benefitted, (2) that the defendants unjustly did
not pay the plaintiffs for the benefits, and (3) that the
failure of payment was to the plaintiff‟s detriment.”

Trenwick

American Reinsurance Corp. v. W.R. Berkley Corp., 138 Conn. App.
741, 754 (App. Ct. 2012) (quoting Hartford Whalers Hockey Club
v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-3 (1994)).
25.

“It is the plaintiff‟s burden to prove the elements of

a claim of unjust enrichment, including that the defendant was
benefitted.”

Trenwick, 138 Conn. App. at 754 (citing See New

Hartford v. Conn. Resources Recovery Auth., 291 Conn. 433, 54152 (2009)).
26.

It is undisputed that defendant used $22,481.33 of

the 2004 loan proceeds to pay-off her personal car loan. [See
Def. Ex. 556C]. However, the Court finds that plaintiff failed
to prove that defendant unjustly did not pay plaintiff for that
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benefit.

Indeed, the Court credits defendant‟s testimony that

it was her understanding that she would eventually acquire
plaintiff‟s interest in the home.

With that in mind, the Court

further credits defendant‟s testimony that she would not have
applied the loan proceeds to her car loan, had defendant
believed she would not acquire the entire property.

Moreover,

the parties testified that plaintiff encouraged defendant to use
the 2004 loan proceeds to pay for her car loan.

Plaintiff may

not claim unjust enrichment on this basis.16
27.

With respect to the issue of defendant failing to pay rent

for her use and occupancy of the home, the defendant benefitted
by living in the home from 2000 through the end of 2006 without
paying rent.

However, plaintiff failed to prove that defendant

unjustly did not pay plaintiff for her use and occupancy of the
home.

As defendant testified at length, and as corroborated by

Ms. Arnold‟s testimony, for well over seven years defendant
personally worked to maintain and repair the home, for both of
the parties‟ benefit.

Not only did defendant expend copious

amounts of hands-on labor, but she also paid for all household
expenses for the time that she occupied the property.

Simply,

it would be inequitable to find defendant was unjustly enriched
16

Nevertheless, and as will be discussed in addressing defendant‟s
counterclaim for accounting and distribution, the Court will reduce
defendant‟s account by $22,481.33, i.e., the benefit she personally
received from the 2004 loan proceeds.

-26-

by living in the home rent free, when she invested a great deal
of time and money in the property.

See Binder v. Windmill

Mgmt., LLC, No. FSTX08CV106004435S, 2013 WL 593936, at *12
(Conn. Super. Ct. Jan 17, 2013) (quoting Fitzpatrick v. Scalzi,
72 Conn. App. 779, 786 (App. Ct. 2002)) (“With no other test
than what, under a given set of circumstances, is just or
unjust, equitable or inequitable, conscionable or
unconscionable, it becomes necessary in any case where the
benefit of the doctrine is claimed to, to examine the
circumstances and the conduct of the parties[...]”).
28.

Accordingly, the Court finds for defendant on count

two of the Amended Complaint.
Count Three – Breach of Fiduciary Responsibility
29.

Plaintiff seeks damages for defendant‟s alleged breach

of her fiduciary duties as a result of defendant alleged failure
to maintain the property, rent the upstairs apartment, and to
provide plaintiff with half of the collected rental proceeds.
30.

To establish a breach of fiduciary duty, the plaintiff

must prove by a preponderance of the evidence:
(1) That a fiduciary relationship existed which gave rise
to (a) a duty of loyalty on the part of the defendant to
the plaintiff, (b) an obligation on the part of the
defendant to act in the best interests of the plaintiff,
and (c) an obligation on the part of the defendant to act
in good faith in any matter relating to the plaintiff; (2)
That the defendant advanced his or her own interests to the
detriment of the plaintiff; (3) That the plaintiff
sustained damages; (4) That the damages were proximately
-27-

caused by the fiduciary's breach of his or her fiduciary
duty.
Stedman v. Stedman, No. HHDCV106008073S, 2012 WL 6122487, at *3
(Ct. Super. Ct. Nov. 14, 2012) (citation omitted).
31.

Notwithstanding the above, Connecticut law broadly

defines a fiduciary relationship as a relationship that 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.” Dunham v. Dunham, 204 Conn. 303, 322
(1987) (internal citations omitted), overruled in part by
Santopietro v. New Haven, 239 Conn. 207, 213 n. 8 (1996).
32.

“In the seminal cases in which [the Connecticut

Supreme Court] recognized the existence of a fiduciary
relationship, the fiduciary was either in a dominant position,
thereby creating a relationship of dependency, or was under a
specific duty to act for the benefit of another.”
Inc. v. Com–Tronics, Inc., 255 Conn. 20, 38 (2000).

Hi–Ho Tower,
Conversely,

where no such relationship was found, “the parties were either
dealing at arms length, thereby lacking a relationship of
dominance and dependence, or the parties were not engaged in a
relationship of special trust and confidence.”
-28-

Id. at 39.

33.

With that being said, at least one Connecticut court

has recognized that, “A fiduciary relationship, strictly
speaking, does not exist between tenants in common by reason of
the mere fact that they are such.”
103684,

Beebee v. Beebee, No.

1995 WL 617392, at *11 (Conn. Super. Ct. Oct. 12, 1995)

(citing 86 C.J.S., Tenancy in Common, Section 17, p. 377).
34.

As an initial matter, based on the testimony of the

parties, the Court finds that the parties were in a fiduciary
relationship.

Because defendant lived in the home while

plaintiff resided out of state, and where defendant essentially
controlled the property, the Court finds that defendant was in a
dominant position as compared to that of the plaintiff until the
time she vacated the home.

See Binder, 2013 WL 593936, at *10

(“The law will imply fiduciary responsibilities only where one
party has a high degree of control over the property or subject
matter of another and the unsuspecting party has placed its
trust and confidence in the other.”) (quoting Hi-Ho Tower, 255
Conn. at 41).
35.

“Once a fiduciary relationship is found to exist, the

burden of proving fair dealing properly shifts to the
fiduciary.”

Binder, 2013 WL 593936, at *10 (citing Konover Dev.

Corp. v. Zeller, 228 Conn. 206 (1994)).
36.

Plaintiff first claims that defendant breached her

fiduciary duties by failing to maintain the property.
-29-

The Court

finds plaintiff‟s claim without merit.

The defendant testified

at length as to her efforts to maintain, repair, and
rehabilitate the home.

Moreover, the testimony of Ms. Arnold,

her long-time friend and neighbor, further corroborates
defendant‟s testimony concerning her efforts.

Additionally, the

Court finds that defendant did not place her own self-interest
before plaintiff‟s.

In fact, she contributed countless hours of

labor to the maintenance of the home, which undoubtedly
benefitted both parties.

This is further bolstered by

defendant‟s documentary evidence, reflecting hundreds of
invoices and checks for home repairs.

Additionally, even when

plaintiff vacated the home, rather than leaving the home vacant
and exposed to the perils of a New England winter, defendant
paid to have the home winterized.

The Court further credits

defendant‟s testimony that she did not cause the damage to the
home shown in plaintiff‟s exhibit 2, and that much of the damage
was present in 2000.

The Court credits her testimony over

plaintiff‟s because she lived in the home at this time, and was
a constant presence until 2007.

Plaintiff, on the other hand,

did not once visit the property from the time of the parties‟
mother‟s funeral, until at least April 2008.

As such, the Court

finds plaintiff has met her burden of proving fair dealing with
respect to maintenance of the home.

-30-

37.

Plaintiff next claims defendant breached her fiduciary

responsibilities for her failure to rent the apartment.
Court also finds this claim without merit.

The

The defendant

testified that she attempted to rent the apartment “for a long
time” and that no one would rent it.

Although defendant

testified that she had to be at the home to regulate the heat
for a tenant, the Court does not find that this influenced
defendant with respect to renting the apartment.

Indeed, given

that any rental income would have benefitted her and defendant,
the Court finds that defendant acted in good faith and in the
best interests of both parties by at least attempting to rent
the apartment.

Moreover, even if defendant had not acted in

good faith, plaintiff has failed to sustain his burden of
proving his damages where there is no competent evidence of the
apartment‟s rental value for the time in question.
38.

Finally, plaintiff claims defendant breached her

fiduciary duties by failing to remit to plaintiff one half of
the rental proceeds collected from the apartment.

Although

defendant admittedly failed to remit plaintiff‟s portion of the
rental proceeds, the Court credits plaintiff‟s testimony that
these proceeds were used to pay delinquent property taxes.
Because this sum was used for the benefit of the property, and
ultimately in the parties‟ best interests, the Court again finds
plaintiff‟s claim without merit.
-31-

39.

Accordingly, for the foregoing reasons, the Court

finds for defendant on count three of the Amended Complaint.
C. Defendant’s Counterclaims
Count I – Action for Accounting and Distribution
40.

Defendant likewise seeks an accounting pursuant to

Conn. Gen. Stat. §52-404(b) and distribution of the property‟s
sale proceeds.

The Court need not repeat the guiding principles

of law, which are recited above.
41.

Defendant seeks credit for the payments made on the

1999 and 2004 mortgages.

Plaintiff argues that the Court should

not award plaintiff credit for both her mortgage payments and
property related expenses, where the defendant financed much of
the property related expenses with the loan proceeds.

Plaintiff

contends that crediting defendant with both mortgage payments
and property related expenses is an unfair “double counting”.
The Court declines to award defendant credit for her mortgage
payments on the equitable grounds that she was residing in the
home rent-free during the period in question, and that there was
some understanding that she would repay this loan.

Indeed,

because the Court declined to provide credit to plaintiff for
use and occupancy payments, it would be inequitable to now award
defendant credit for her mortgage payments.
42.

Defendant next seeks credit for real property taxes

she paid from 2000 to 2007, totaling $25,591.48.
-32-

In plaintiff‟s

proposed findings of fact, he concedes defendant is entitled to
credit for payment of real property taxes. [See Pl. Prop.
Findings of Fact and Conclusions of Law, Doc. #53, at 38].
Accordingly, defendant is entitled to credit for half of the
real property tax payments in the amount of $12,795.74.
Likewise, plaintiff‟s account must be reduced by the same
amount.
43.

Defendant also seeks credit for home insurance

payments she incurred from 2000 to 2007 totaling $9,961.
Plaintiff concedes that defendant is entitled to credit for
payment of home insurance payments.

[See id.].

Accordingly,

defendant is entitled to credit for half of the home insurance
payments in the amount of $4,980.50.

Likewise, plaintiff‟s

account must be reduced by the same amount.
44.

Defendant seeks credit for monies spent to repair and

improve the home from 2000 through 2010.

The Court declines to

award credit for duplicated expenses, expenses incurred prior to
February 1999, expenses that do not bear a date, and expenses
that are not otherwise properly supported by either the
defendant‟s credible testimony or legible documentary evidence.
The Court credits defendant‟s testimony that the invoices and
checks presented in evidence reflect expenses incurred, and
paid, in connection with the property.

Bearing this in mind,

the Court finds that defendant is entitled to the following
-33-

credits for amounts paid in connection with the property, and
plaintiff the following reductions:
Year
1999
2000
2001
2002
2003
2004
2005
2006
2007-08
TOTAL:

45.

Credit to Defendant
$27,755.67
$5,247.31
$2,477.20
$1,791.32
$5,654.57
$2,147.62
$2,006.95
$794.87
$4,676.74
$52,552.25

Reduction to Plaintiff
($27,755.67)
($5,247.31)
($2,477.20)
($1,791.32)
($5,654.57)
($2,147.62)
($2,006.95)
($794.87)
($4,676.74)
($52,552.25)

Defendant next seeks credit for her attorneys‟ fees

allegedly incurred to hire an attorney for partition of the
property.

[See Def. Exs. 501, 504, 547B-C,E,G-I; Def. Post-

Evid. Trial Mem., Doc. #65, at Sched. 3]. Defendant claims such
action was necessary to compel plaintiff to sell the property,
and to assist her with the property expenses.

However, like

plaintiff, defendant has failed to point to any contractual
provision or statutory exception that would here permit the
award of attorneys‟ fees.

See Mellon, 286 Conn. at 695.

Accordingly, the Court declines to credit defendant for these
items.
46.

Defendant also seeks credit for time spent painting

and wallpapering the interior of the home.
$7,000 for her labor.

Defendant claims

Although the Court credits defendant‟s

testimony that she provided these services, it declines to award
-34-

her $7,000 for her time spent.

Given that plaintiff lived in

the home rent-free, and the Court declined to award plaintiff
use and occupancy payments, it would be inequitable to now
compensate defendant for time spent working to improve the home.
Although defendant‟s work benefitted both parties by benefitting
the property, the Court concludes that any such time spent
painting and wallpapering the home should be figuratively “setoff” against the time that she lived in the home free of charge.
Accordingly, the Court declines to credit the defendant for this
item.
47.

Defendant admitted at trial that she applied

$22,481.33 of the 2004 loan proceeds to satisfy a personal car
loan.

Plaintiff did not receive any benefit from this portion

of the loan proceeds.

Accordingly, the Court finds defendant‟s

account should be reduced by $22,481.33, and plaintiff‟s
credited in this same total.
48.

In sum, the Court credits defendant‟s account in the

total amount of $70,328.49, and deducts from plaintiff‟s account
the same total.17

The Court shall additionally deduct $22,481.33

from defendant‟s account for repayment of her car loan from the

17

Real Property Taxes
Home Insurance Payments
Property Expenses
Total

$12,795.74
$4,980.50
$52,552.25
$70,328.49

-35-

2004 Loan proceeds, and credit plaintiff‟s account in this same
amount.
Count II – Unjust Enrichment
49.

Defendant alleges plaintiff will be unjustly enriched

if he is “reimbursed for money he allegedly spent on the Bethel
property in 2009 and 2010 without giving full credit for the
years of monetary contributions [defendant] spent on the
property[. . .]” [Def. Second Counterclaim, Doc. #10].
50.
merit.

The defendant‟s unjust enrichment claim is without
Indeed, defendant‟s claim appears entirely contingent on

the Court‟s ruling in this action.

Defendant failed to present

any evidence that plaintiff benefitted, that plaintiff unjustly
did not pay defendant for the benefits, and that the failure of
payment was to the defendant‟s detriment.

Accordingly, the

Court finds for plaintiff on count two of the counterclaim.
III. Order of Distribution
Based on the foregoing findings of fact and conclusions of
law, the Court orders that the $206,287.84 held in escrow, be
distributed to the parties as follows:
Item
Plaintiff
Escrow Balance
$103,143.92
Plaintiff's Expenses
$54,465.97
Defendant's Expenses
($70,328.49)
Defendant's Car Payment
$22,481.33
TOTAL TO BE DISTRIBUTED: $109,762.73

-36-

Defendant
$103,143.92
($54,465.97)
$70,328.49
($22,481.33)
$96,525.11

IV.

Conclusion
For the reasons stated, judgment shall enter in favor of

defendant on counts two and three of the Amended Complaint for
unjust enrichment and breach of fiduciary duties, respectively.
Judgment shall also enter in favor of plaintiff on count two of
the Counterclaim for unjust enrichment.
As set forth in Section III of this ruling, after carefully
reviewing the evidence and balancing the equities, the Court
orders that $109,762.73 of the escrow proceeds be distributed to
plaintiff, Floyd Culhane and $96,525.11 to defendant, Janice
Culhane.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [Doc. #40] on
October 12, 2012 with appeal to the Court of Appeals.

Fed. R.

Civ. P. 73(b)-(c).
ENTERED at Bridgeport this 27th day of August 2013.

_/s/_________________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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