Vitkovsky v. Nero

• Decision Date: 27 April 2017
• Docket Number: CV146050901S
• Court: Connecticut Superior Court
• Parties: Joann Vitkovsky v. Gerardo Nero

Joann Vitkovsky v. Gerardo Nero

No. CV146050901S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

April 27, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Thomas J. Corradino, Judge Trial Referee.

In the plaintiff's complaint there are two requests for relief. The court will briefly describe the claims made in the complaint and give a brief factual background relevant to the claims being made. It will then try to discuss the legal principles it should apply to the facts and finally discuss the facts in more detail as they relate to the legal issues that the court must decide.

Paragraph 3 and 4 of the complaint state as follows:

3. From on or about May 9, 2007 to on or about July 8, 2008 the plaintiff loaned money to the defendant and paid bills and obligations on the defendant's behalf and at his request, totaling approximately Thirty Eight Thousand Eight Hundred Seventy-Five and 02/100 ($38, 875.02) Dollars.

4. The defendant agreed to repay those sums within a reasonable period of time.

In 2006 the defendant and Richard Botega opened a restaurant called the Family Grill and it was registered under the name Hemingway Investments, LLC. Monies expended by the plaintiff involved paying off debts incurred by the restaurant.

The claim being made is based on the existence of the foregoing alleged oral contract; there is no claim that the agreement between the parties was reduced to writing. Pursuant to the oral agreement alleged by the plaintiff, the post-trial memorandum she submitted through counsel further states that " on or about May 8, 2007, the plaintiff (at the defendant's request) obtained a Credit Line from Citizen's Bank, in the amount of $58, 600.00 . . . The evidence further shows that the plaintiff paid various credit card debt on behalf of the defendant, paid various other bills and debts of the defendant's business, and loaned him various sums of money totaling the $38, 872.05 amount alleged in the complaint (Exhibit 1-11)."

The complaint goes on to allege that on or about May 7, 2012 the defendant made one payment on the debt but on various occasions communicated with the plaintiff acknowledging the debt and made " further promises of repayment of said debt, " par 5. As of the date of the complaint, however it is claimed " the defendant is in default of the terms of his promise of repayment, " par 6.

In addition to these contract claims paragraph 7 alleges that " the defendant wrongfully removed an antique shotgun belonging to the defendant's Father from the plaintiff's home."

The answer denies all the allegations made in the contract including denying that the plaintiff made claimed payments in the defendant's behalf and at his request. The defendant also denies the allegations regarding the antique gun.

In his post-trial brief the defendant argues that (1) the evidence fails to establish that the plaintiff and defendant entered into an oral contract (2) the plaintiff failed to prove the balance of the unpaid debt. Any damage award would necessarily rest on speculation. The credit card bills she paid were not shown to be the defendant's obligations. After Botega was removed from the LLC, the plaintiff and defendant were engaged in a joint venture thus any monies paid on behalf of the LLC were also the plaintiff's obligation. (3) The defendant cannot be held personally liable for loans and payments made to the LLC. No allegations regarding piercing the corporate veil were made and the evidence, in any event does not support such an argument. (4) The plaintiff's claims are barred by the statute of frauds (5) the shotgun was a gift to the defendant (6) plaintiff's claims are varied by Sections 52-581, 52-576 CGSA. (7) The plaintiff failed to mitigate her damages.

A court trial was held on October 27, 2016.

The court will attempt to discuss the legal concepts raised by this case and then apply that discussion to the facts of the case which it will address in more detail.

I

(a)

The defendant argues that assuming an oral contract existed which is not conceded, it is not enforceable as a result of the statute of frauds, Section 52-550 of the General Statutes. In relevant part the statute reads as follows " (a) No civil action may be maintained in the following cases unless the agreement, or memorandum of the agreement is made in writing and signed by the party or agent of the party, to be charged: . . . (5) upon any agreement that is not to be performed within one year from the making there of . . ."

What is the purpose of the statute of frauds? Applying Connecticut law the court in Lee v. Yardley, 156 F.Supp. 858 862 (1957), said of our statute: " The statute was enacted to prevent perjury and the enforcement of claims based upon memories made faulty by the lapse of time." In Lynch v. Davis, 181 Conn. 434, 440-41, 435 A.2d 977 (1980), the court said that " the function of the statute is evidentiary, to prevent the enforcement through fraud or perjury of contracts never in fact made." In Electrical Wholesalers Inc. et al. v. M.J.B Corporation, 99 Conn.App. 294, 302, 912 A.2d 1117 (2007), cited an earlier case which said that " The primary purpose of the statute of frauds is to provide reliable evidence of the existence and the terms of the contract . . ."

On the other hand it is also true that as said in Willow Funding Company, L.P. v. Grencom Associates, 63 Conn.App. 832, 848-49, 779 A.2d 174 (2001), with citation to case law that " Our courts have been assiduous to prevent the statute of frauds from becoming an instrument of fraud." As said in Lynch v. Davis, supra, the record before it " sparse as it is, illustrates the wisdom of restricting spurious reliance on the statute of frauds." Id. at page 441. To put it simply as Judge Bordon said in Baum v. Sundstrom, 14 Conn.Supp. 426, 427 (1946), the statute of frauds is " . . . intended to relieve against fraud and not to be invoked as an instrument in aid of perpetrating wrong."

As noted subsection (a)(5) of Section 52-550 provides that the statute of frauds would bar an action upon an oral contract " that is not to be performed within one year of the making of the agreement. The leading Connecticut case on this matter is C.R. Klewin, Inc. v. Flagship Properties, Inc. et al., 220 Conn. 569, 600 A.2d 772 (1991), most recently cited in 111 Whitney Avenue, Inc. et al. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 706, 802 A.2d 117 (2002). In C.R. Klewin the court addressed a question certified to our Supreme Court by the Second Circuit Court of Appeals. The court said that the issue upon certification:

. . . can be framed as follows: in the exclusion from the statute of frauds of all contracts except those " whose performance cannot possibly be completed within a year"; (emphasis omitted) Finley v. Aetna Life & Casualty Co., supra, 197; what meaning should be attributed to the word " possibly" ? One construction of " possibly" would encompass only contracts whose completion within a year would be inconsistent with the express terms of the contract. An alternate construction would include as well contracts such as the one involved in this case, in which, while no time period is expressly specified, it is (as the district court found) realistically impossible for performance to be completed within a year. We now hold that the former and not the latter is the correct interpretation. " The critical test . . . is whether 'by its terms' the agreement is not to be performed within a year, " so that the statute will not apply where " the alleged agreement contain[s] [no] provision which directly or indirectly regulated the time for performance." Freedman v. Chemical Construction Corporation, 43 N.Y.2d 260, 265, 372 N.E.2d 12, 401 N.Y.S.2d 176 (1977). " It is the law of this state, as it is elsewhere, that a contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year." (Emphasis added.) Burkle v. Superflow Mfg. Co., supra 492. Id., p. 580.

The court gave its reasons for the position it took at pages 582-83 where it said:

Because the one-year provision " is an anachronism in modern life . . . we are not disposed to expand its destructive force." Farmer v. Arabian American Oil Co., 277 F.2d 46, 51 (2d Cir. 1960). When a contract contains no express terms about the time for performance, no sound reason of policy commends judicial pursuit of a collateral inquiry into whether, at the time of the making of the contract, it was realistically possible that performance of the contract would be completed within a year. Such a collateral inquiry would only expand the " destructive force" of the statute " by extending it to contracts not plainly within its terms, but would also inevitably waste judicial resources on the resolution of an issue that has nothing to do with the merits of the case or the attainment of a just outcome." See 2 A. Corbin, supra, § 275, p. 14 (the statute " has been in part the cause of an immense amount of litigation as to whether a promise is within the statute or can by any remote possibility be taken out of it. This latter fact is fully evidenced by the space necessary to be devoted to the subject in this volume and by the vast number of cases to be cited").

The court explicitly then ruled as follows: " We therefore hold that an oral contract that does not say in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration such a contract is enforceable because it is outside the proscriptive force of the statute regardless...