Gulack v. Gulack

• Decision Date: 16 February 1993
• Docket Number: No. 10854,10854
• Citation: 620 A.2d 181,30 Conn.App. 305
• Court: Connecticut Court of Appeals
• Parties: Elaine W. GULACK v. Fay H. GULACK et al.

Page 181

620 A.2d 181

30 Conn.App. 305

Elaine W. GULACK v. Fay H. GULACK et al.

No. 10854.

Appellate Court of Connecticut.

Argued Nov. 4, 1992.

Decided Feb. 16, 1993.

Michael J. Mannion, Danbury, for appellant-appellee (named defendant).

Paul L. Bollo, Greenwich, for appellee-appellant (plaintiff).

Before DUPONT, C.J., and DALY and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant Fay H. Gulack appeals from the judgment of the trial court imposing a constructive trust on certain real property in favor of the plaintiff, Elaine W. Gulack. The issues on appeal are (1) whether the allegations of the complaint and the evidence submitted support the relief granted, (2) whether the trial court improperly drew an adverse inference against the defendant for failing to call the codefendant Howard Gulack ¹ as a witness, and (3) whether the trial court misapplied the dead man's statute, General Statutes § 52-172, when it admitted statements of George Gulack, a deceased person. The plaintiff has cross appealed, claiming that the trial court improperly awarded to the defendant the fair market value of an addition to a house on the subject land.

The trial court found certain facts. In 1976, Max Gulack, ² the uncle of the plaintiff's husband, paid all of the consideration for real property located at 21 Dick Finn Road in New Fairfield, but caused the title to the property to be placed in the name of his brother, George Gulack, the father-in-law of the plaintiff. The deed was recorded on the land records of New Fairfield. At the time of purchase, Max declared that he bought the property for the plaintiff and her husband, Howard, for use as their marital residence. Title to the property was placed in the name of George because Max felt that Howard was unstable and irresponsible. Max was also concerned about placing the property in Howard's name because Howard had a "propensity for litigation." The plaintiff has lived on this property since it was purchased in 1976. In 1978, George and the defendant, who was George's wife and the mother-in-law of the plaintiff, moved in with the plaintiff and Howard. The defendant and George then built an addition to the existing house and lived there until 1983, at which time they moved permanently to Florida. George died in Florida on July 28, 1987. Max died eleven months later on June 8, 1988. From 1976 until his death, Max paid all of the taxes and insurance on the property, and took the appropriate tax deductions. No rent was ever paid to Max. Max bequeathed $175,000 each to the plaintiff and Howard, which they received upon his death. On July 29, 1988, by a certificate of devise, the property was transferred from George's estate to the defendant and recorded on the land records of New Fairfield. After that date, the defendant paid the taxes and insurance while the plaintiff provided for most of the maintenance and upkeep. The plaintiff continued to live in the house after the deaths of both George and Max.

In 1989, Howard began selling furniture from the house and told the plaintiff that the house would be sold. Thereafter, the plaintiff commenced a divorce proceeding against Howard. Howard left the house and moved to Florida in January, 1990. In February, 1990, the defendant instituted eviction proceedings against the plaintiff. The plaintiff then commenced this action seeking the enforcement of a constructive trust and a transfer of title to the plaintiff and Howard. The trial court imposed a constructive trust on the property in favor of the plaintiff and Howard, but ordered that the plaintiff pay to the defendant the fair market value of the addition. ³

I

The defendant first claims that the plaintiff's complaint and prayer for relief were fatally deficient. Specifically, the defendant claims that the plaintiff's complaint failed to allege either a duty owed or a special or confidential relationship, an essential element necessary for establishment of a constructive trust. Additionally, the defendant claims that the prayer for relief sought enforcement of a constructive trust without first requesting that the court impose a constructive trust.

The plaintiff argues, however, that, even though the complaint did not specifically request that the court impose a constructive trust, the complaint complied with the requirements of the rules of practice. Practice Book § 131 requires that a complaint "contain a concise statement of the facts constituting the cause of action and, on a separate page ... a demand for relief...." The plaintiff asserts that the complaint contained specific facts that alleged the existence of a constructive trust in favor of the plaintiff and a demand for relief in the form of enforcement of the constructive trust. ⁴

We need not determine whether the complaint was sufficient to allege a cause of action for a constructive trust because the defendant waived such a claim. A pleading defect is waived when the case is contested on its merits without questioning such defect. Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990); see Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992). The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial. Practice Book § 152. If a motion to strike is not made, "[t]he absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike ... is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice." Tedesco v. Stamford, supra. " 'The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under our rules in the trial court.' " Id., 215 Conn. at 458, 576 A.2d 1273, quoting Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985). The defendant did not make a motion to strike the pleading and contested the case on its merits. The defendant first raised a challenge to the legal sufficiency of the complaint on appeal. Accordingly, unless the defendant was materially prejudiced by the alleged pleading defect, the defendant has waived her right to contest the alleged defect. ⁵

After reviewing the record, we conclude that the defendant was not materially prejudiced. The case was tried on the theory that a constructive trust was created and, therefore, should be imposed or enforced. The elements of a constructive trust are the intent by a grantor to benefit a third person, the transfer of property to another who stands in a confidential relationship to the grantor with the intent that the transferee will transfer the property to the third person, and the unjust enrichment of the transferee if the transferee is allowed to keep the property. A constructive trust is created by operation of law when these elements are present. The plaintiff set forth and argued the facts and elements necessary for the creation of a constructive trust, as well as the enforcement of one, and the defendant challenged the evidence, and the existence of the elements necessary for the creation and enforcement of a constructive trust.

The defendant also claims that the trial court incorrectly focused on the wrong parties in finding a special or confidential relationship between the parties as a condition precedent to the imposition of a constructive trust. The defendant asserts that the relationship that must exist for the creation or imposition of a constructive trust must be between the transferor and the transferee of the property in question, not the transferor and the beneficiary as found by the trial court. We agree that the special or confidential relationship must be between the transferor and the transferee, but conclude that despite the trial court's focus on the transferor and the beneficiary in its decision, the record and the facts found by the trial court support the existence of such a relationship between the transferor (Max) and the transferee (George).

Where a transfer of real property is made to one person and the purchase price is paid by another as an intended gift to a third person, the Statute of Frauds requires that the creation of the trust must be in writing. 2 Restatement (Second), Trusts § 453. There is, however, an exception to the requirement of a writing. "Where the owner of an interest in land transfers it inter vivos to another upon an oral trust in favor of a third person or upon an oral agreement to convey the land to a third person, and the trust or agreement is unenforceable because of the Statute of Frauds, and the transferee refuses to perform the trust or agreement, he holds the interest upon a constructive trust for the third person, if ... the transferee at the time of the transfer was in a confidential relation to the transferor...." Restatement, Restitution § 183. A constructive trust is an equitable remedy imposed to prevent unjust enrichment. " 'Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.' " (Citations omitted.) Filosi v. Hawkins, 1 Conn.App. 634, 639, 474 A.2d 1261 (1984); see also Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980).

Before a trial court finds that a constructive trust exists and should be imposed, the court must find that a confidential relationship existed between the transferor and the transferee at the time of transfer of the property. Starzec v. Kida, 183 Conn. 41, 438 A.2d 1157 (1981); Filosi v. Hawkins, supra; Downey v. Downey, 1 Conn.App. 489, 472 A.2d 1296 (1984); Restatement, Restitution § 183. The confidential or special relationship must be of a nature that generates a " 'natural inclination to repose great confidence and trust.' " Filosi v. Hawkins, supra, quoting Cohen v. Cohen, supra. "A confidential relation exists not only where there is a fiduciary...