Opinion
NNHCV176070695S
10-25-2019
Richard Lee v. Edgar Contreras et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Richards, Sybil V., J.
ORDER
SYBIL V. RICHARDS, Judge.
The following order is entered in the above matter:
ORDER:
MEMORANDUM OF DECISION
On June 4, 2019, the parties appeared before the court for a hearing in damages. The court admitted full exhibits and heard testimony from the witnesses. At the conclusion of the hearing, each the party made a motion for a directed verdict and the court reserved its ruling on the motions pending this decision. Based upon the credible and relevant evidence in the record, and the court’s observation of the demeanor and credibility of the witnesses, the court makes the following factual findings and such other findings of fact as it may deem necessary or appropriate.
Facts
The plaintiff, Richard Lee, filed a nine-count complaint against the defendant Edgar Contreras, a former friend and contractor to whom he allegedly loaned seventy-five thousand forty-nine dollars and zero cents ($75,049.00) (loan) and Contreras’ wife, Sonia Contreras (individually as Sonia), as well as the defendant Romullo Cabrera (Cabrera), who was the subsequently purchaser of a house acquired by the Contreras with the proceeds of said loan. According to the plaintiff, he and Contreras formed a professional and personal friendship over the course of 15 years when they met while Contreras was a subcontractor managing properties for third parties and the plaintiff was a contractor rehabilitating and constructing properties. The plaintiff retired in 2014 and, through one of his LLCs, paid Contreras under $10,000 as a subcontractor for small jobs performed for said LLC in 2015. The plaintiff further testified that their bond was so close that Contreras had the keys to the plaintiff’s house, charged materials to the plaintiff’s Home Depot account and had keys to the plaintiff’s warehouse. On occasion, the plaintiff assisted Contreras and his family members financially by lending him money. When Contreras went to purchase a house located at 77 Crest Avenue in East Haven, Connecticut (property) in November of 2014 and needed a deposit and a bridge loan in order to consummate the deal, the plaintiff wrote a $1,000 check to Contreras for the downpayment and a blank check in the amount of $74,049.80, respectively, at the time of the closing so Contreras would close the deal and acquire title to the property. The evidence reflects that blank check’s amount was payable to a law firm on the same day. Subsequently, title to the property was conveyed to the Contreras on May 20, 2016 via a warranty deed for consideration of eighty-five thousand dollars and zero cents ($85,000.00). The plaintiff further testified that the monies were a bridge loan and were not a gift and that Contreras agreed to repay the loan. The plaintiff admitted that Contreras repaid $2,000 to him sometime several months later but also acknowledged that Contreras’ contracting business started to decline when he bid too low on a job and the next lowest bidder filed an OSHA complaint against Contreras. In addition, the plaintiff testified that Contreras repeatedly informed him that he was no longer getting enough work as a contractor to repay the plaintiff. The last time the plaintiff saw Contreras was in August of 2016 and then later he learned that the Contreras sold their interests in the property to the defendant Cabrera. He testified that he never benefitted from the proceeds of the sale transferring title in the property from the Contreras to Cabrera.
Discussion
Citing from the case of Kosiorek v. Smigelski, 318 Conn.App. 695, 54 A.3d 564 (2012), the court provides the applicable legal principles provided therein that one germane to the instant action. "A party alleging a fraudulent transfer or conveyance under the common law bears the burden of proving either: that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations or (2) that the conveyance was made with a fraudulent intent in which the grantee participated ... The party seeking to set aside a fraudulent conveyance need not satisfy both of these tests ... These are also elements of an action brought pursuant to General Statutes § § 52-552e(a) and 52-552f(a)." (Citations omitted; internal quotation marks omitted.) Certain Underwriters at Lloyd’s London v. Cooperman, 289 Conn. 383, 394-95, 957 A.2d 836 (2008); see also Wieselman v. Hoeniger, 103 Conn.App. 591, 596, 930 A.2d 768, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007); Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140-41, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002); see generally M. Taylor & D. Krisch, supra pp. 20, at 112-13.
"At this point, we address the differences between the common-law cause of action for a fraudulent transfer and the statutory action under § 52-552e. In Robinson v. Coughlin, 266 Conn. 1, 9, 830 A.2d 1114 (2003), our Supreme Court noted that although the statute is largely an adoption and clarification of the standards of the common law of fraudulent conveyances, it is not a wholesale codification. See also Hamrah v. Emerson, Superior Court, judicial district of Fairfield, Docket No. CV- 05-4012872, 2009 WL 2963281 (August 20, 2009) (noting subtle differences in remedies between statutory and common-law actions).
In Wieselman v. Hoeniger, supra, 103 Conn.App. At 591, 930 A.2d 768, this court identified a distinction between the statutory and common-law cause of action for fraudulent conveyance significant to this appeal. "[Section] 52-552e(a) provides in relevant part that [a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor ... if the debtor made the transfer or incurred the obligation: (1) with actual intent to hinder, delay or defraud any creditor of the debtor ... Prior to the adoption of the act the plaintiff had to prove (1) that the transferor had intent to defraud the creditor and that the transferee shared in the transferor’s fraudulent intent ... The plain language in § 52-552e addresses the fraudulent intent of the debtor and makes no mention of the fraudulent intent of the transferee." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 598-99, 930 A.2d 768."
The court begins by addressing, in reverse order, the defendant Cabrera’s motion to dismiss pursuant to Practice Book § 10-50. The court denies the motion on the grounds that Cabrera is not propounding in his motion that the court lacks jurisdiction, personal and/or subject matter, or that service of process is insufficient, but rather that the plaintiff failed to sustain his burden of proof on an evidentiary showing that the defendant Contreras had fraudulent intent when he transferred title to his house to the defendant Cabrera in violation of General Statutes § 52-552e(b) or that the transfer lacked consideration and was with the intent of avoiding the plaintiff’s debt or hindering its collection. Now the court next turns to the plaintiff’s motion and memorandum for a directed verdict.
Procedurally, the court is unaware of any authority that allows for the plaintiff to make an oral motion or file a written motion for a directed verdict after it rested in a matter tried to the court. Notwithstanding the foregoing, the proper motion, if permissible, would have been a motion for a dismissal pursuant to Practice Book § 15-8, which applies to bench trials, and not § 16-37, which pertains to jury trials. Moreover, on this point, the plaintiff cited no authority for this assertion. Therefore, the court denies this motion.
In light of the defendants’ Contreras’ default, the court will address the merits of the main thrusts of the plaintiff’s complaint beginning with the plaintiff’s allegations against the defendants Contreras.
"[C]ase law makes clear ... that once the defendants had been defaulted and had failed to file a notice of intent to present defenses, they, by operation of law, were deemed to have admitted to all the essential elements in the claim and would not be allowed to contest liability at the hearing in damages ... A default admits the material facts that constitute a cause of action ... and entry of default, when appropriately made, conclusively determines the liability of a defendant ... Following the entry of a default, all that remains is for the plaintiff to prove the amount of damages to which it is entitled ... At a minimum, the plaintiff in such instances is entitled to nominal damages." (Citations omitted; internal quotation marks omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 545-46, 39 A.3d 1207 (2012).
Because the Contreras have been defaulted for their failure to file an answer to the plaintiff’s complaint, they are unable to challenge the liability to the plaintiff and the default operates as an admission of the truth of the material facts pled. See Gaynor v. Hi-Tech Homeo, 149 Conn.App. 267, 89 A.3d 373 (2014) ("The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive" (emphasis added; internal quotation marks omitted)). Catatina v. Nicolelli, 90 Conn.App. 219, 221, 876 A.2d 588 (2005).
"[T]he trial court has broad discretion in determining damages ... The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous ... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Argentinis v. Fortuna, supra, 134 Conn.App. At 548, 39 A.3d 1207. And given that their whereabouts are in parts unknown, they did not appear to contest the measure of damages proven by the plaintiff at trial, and meet their evidentiary burden of proof, which the court finds to be in the amount of seventy-three thousand forty-nine dollars and zero cents ($73,049.00). However with respect to the defendant Cabrera, the court finds that the plaintiff, however, failed to establish his burden of proof. The plaintiff’s evidence was insufficient to establish that Cabrera knew that Contreras was indebted to the plaintiff for the loan, aided and abetted Contreras and/or conspired with Contreras with the intent to help Contreras avoid the plaintiff’s debt and hinder collection and/or that the transfer of title from the Contreras to Cabrera was without consideration.
Conclusion
For the foregoing reason the court enters judgment for the plaintiff against the Contreras in the amount of seventy-three thousand forty-nine dollars and zero cents ($73,049.00) plus court costs. Any and all other requests for relief made by the parties are hereby denied by the court.