Berty v. Gorelick

59 Conn. App. 62

756 A.2d 856

ELLEN BERTY v. DENNIS GORELICK ET AL.

DENNIS GORELICK ET AL. v. EMILY MONTANARO

(AC 16455)

Appellate Court of Connecticut.

Argued May 2, 2000.

Officially released July 25, 2000.

Lavery, C. J., and Foti and Pellegrino, Js. Mark M. Kratter, for the appellant (named defendant in the first case, named plaintiff in the second case).

Carolyn R. Linsey, with whom, on the brief, was Susan E. Stauder, for the appellee (substitute plaintiff in the first case, defendant in the second case).

Opinion

LAVERY, C. J.

Dennis Gorelick, the named defendant in the first case, the named plaintiff in the second case,¹ appeals from the judgment of the trial court in these consolidated cases² in which the substitute plaintiff in the first case, the defendant in the second case, Emily Montanaro, executrix of the estate of the named plaintiff in the first case, Ellen Berty,³ was awarded $147,712.06 plus costs in connection with her claims of conversion, breach of fiduciary duty and undue influence. On appeal, Dennis Gorelick claims that the court improperly (1) found that he owed a fiduciary duty to Berty, (2) placed the burden of proof on him to show that he did not breach his fiduciary duties to Berty and (3) failed to credit certain evidence presented at trial. We affirm the judgment of the trial court. The following facts are relevant to this appeal. Glen Gorelick and Dennis Gorelick are the grandsons of the original plaintiff in the first case, Ellen Berty, now deceased. Montanaro is the daughter of Berty. In its memorandum of decision, the trial court stated: "On April 19, 1976, Berty conveyed 487-491 Grand Street in Bridgeport to Dennis Gorelick, retaining a life estate in the property for herself. At the same time, Dennis Gorelick executed a deed conveying a half interest in the property to Glen Gorelick, which deed was never recorded. Berty resided on the first floor of her property until the illness in October, 1993, resulting in her death. The second floor was occupied by tenants. On May 28, 1993, Dennis Gorelick transferred his interest in the property to himself as trustee for his children and to Glen Gorelick in trust for his children. From 1987 to 1993, Dennis Gorelick assisted Berty in her financial transactions, and was a joint account holder with Berty on savings accounts, checking accounts, money market accounts and certificates of deposit. Between 1990 and 1993, Dennis Gorelick withdrew approximately $147,712.06 from Berty's bank accounts for the personal use of himself and Glen Gorelick.

"On December 17, 1992, Berty wrote a blank check to Montanaro, which Montanaro used to withdraw the $41,133.98 contained in [a checking] account. Montanaro set up a joint account with Berty at another bank, and the same day Berty wrote two checks to Montanaro from the account totaling $25,000. On March 5, 1993, Montanaro and Dennis Gorelick were appointed co-attorneys-in-fact for Berty."

On September 23, 1993, Berty filed a four count complaint against the Gorelicks, alleging two counts of conversion, one count of breach of fiduciary duty against Dennis Gorelick individually, and one count of fraudulent conveyance against Dennis Gorelick and Glen Gorelick as trustees. On October 19, 1993, Berty died and Montanaro was appointed executrix of her estate. On February 14, 1994, Glen Gorelick and Dennis Gorelick filed a two count amended complaint against Montanaro. The first count alleged that Montanaro had used undue influence to induce Berty to transfer to Montanaro money that Dennis Gorelick claimed rightfully was his. The second count alleged that Montanaro had wrongfully induced Berty to file a frivolous lawsuit against the Gorelicks.

On August 9, 1996, the court rendered judgment in the first case in favor of Montanaro in the amount of $147,712.06 plus costs on her claims of conversion, breach of fiduciary duty and undue influence, and in favor of the Gorelicks on Montanaro's claim of fraudulent conveyance.⁴ The court rendered judgment in the second case in favor of Montanaro on the Gorelicks' claims against her of undue influence. This appeal followed.

I

Dennis Gorelick (Gorelick) contends on appeal that the court improperly concluded that he had a fiduciary relationship with Berty. We need not address this claim on its merits because in his answer to Montanaro's amended complaint, Gorelick admitted without qualification the allegation that he "owed a duty to Ellen Berty to represent her interests, financial and otherwise, as a fiduciary." This admission ends the matter. "An admission in a defendant's answer to an allegation in a complaint is binding as a judicial admission. ... An admission in pleading dispenses with proof, and is equivalent to proof.... It is the full equivalent of uncontradicted proof of these facts by credible witnesses... and is conclusive on the pleader." (Citations omitted; internal quotation marks omitted.) Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 126, 739 A.2d 280 (1999); see Connecticut Hospital for the Insane v. Brookfield, 69 Conn. 1, 4, 36 A. 1017 (1897).

Gorelick contends that because other paragraphs in the amended complaint refer to him as attorney-in-fact and grandson, his admission of a fiduciary relationship with Berty applied only when both conditions existed. Neither the allegation in the amended complaint discussed previously nor its corresponding answer, however, stated any limitation.

"Pleadings should be direct, precise and specific.... The court should not have to mathematically dissect the pleadings in order to understand them." (Citation omitted.) Vigue v. John Hancock Mutual Life Ins. Co., 147 Conn. 305, 306, 160 A.2d 484 (1960). An admission by answer carries all reasonable implications of fact and legal conclusions arising from it. Guiel v. Barnes, 100 Conn. 737, 743, 125 A. 91 (1924). We will not torture the ordinary meaning of pleadings to reach the result a party wants and do not accept the limitations the defendant attempts to place on his admission. Accordingly, the court correctly determined that Gorelick owed a duty to represent Berty's interests as a fiduciary.

II

Gorelick next contends that the court improperly placed on him the burden of proof to show that he did not breach Berty's trust and confidence in dealing with her as a fiduciary. We disagree.

When issues on appeal involve questions of law, this court reviews those claims de novo. Miles v. Foley, 54 Conn. App. 645, 648, 736 A.2d 180 (1999), aff'd, 253 Conn. 381, 752 A.2d 503 (2000). Our de novo review reveals that the court properly followed our case law by placing the burden on Gorelick to show that he did not breach his fiduciary duties to Berty. "[A] fiduciary or 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 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.... Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary." (Citation omitted; emphasis added; internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994).

In other words, Gorelick had the burden to prove that he dealt fairly with Berty. See id. The court properly determined that he owed a fiduciary duty to Berty. Accordingly, the court also properly placed the burden on Gorelick to show that fair dealing occurred between him and Berty. We therefore agree with the court's allocation of the burden of proof.

III

Gorelick also argues that the court improperly failed to give appropriate weight to evidence he submitted. We disagree.

"If the factual basis of the court's decision is challenged, our review includes determining whether the facts set out in the memorandum...