143 Conn. App. 745
Conn. App. Ct.2013Background
- Plaintiff Elizabeth Baillergeau sued Benet McMillan (attorney/administrator of his mother Kathryn’s estate) and his wife Doloures, alleging they diverted the plaintiff’s bequest and that Benet used estate funds to buy property (722 School Drive) and otherwise failed to account or pay distributions.
- Kathryn had named Benet on bank accounts and given him power of attorney while abroad; Benet admitted taking substantial sums and used $20,000 toward 722 School Drive.
- After Kathryn’s death, Benet (as administrator) sold estate realty, failed to provide an accounting or distributions, and later filed a false statement about distributions; plaintiff sued for conversion/constructive trust and related relief.
- At trial, the court found insufficient evidence of a constructive trust for 722 School Drive but concluded a December 31, 2009 quitclaim conveying Benet’s interest in 716 School Drive to Doloures and her son for “$10 and other valuable consideration” was a fraudulent transfer to avoid plaintiff’s claim; it set that transfer aside and entered money judgment against Benet.
- Defendants moved to open/reargue, proffering additional documents about the “other valuable consideration”; the trial court declined to reopen, and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether transfer of Benet’s interest in 716 School Drive was fraudulent and should be set aside | Baillergeau argued transfer was a sham to avoid creditor claim and should be voided | Defendants argued deed recites “other valuable consideration,” and testimony/documents show bona fide consideration and legitimate motive | Court’s factual finding of fraudulent transfer affirmed; transfer set aside and title restored to Benet as factfinder’s credibility determinations upheld |
| Whether trial court abused discretion by denying motions to open and reargue | Baillergeau opposed reopening; argued trial court had sufficient record to decide | Defendants sought to present additional documents to show consideration and claimed misapprehension of facts | Denial affirmed — movants offered no newly discovered evidence and sought a second bite; no abuse of discretion |
| Whether General Statutes § 52-552b(2) precludes finding fraudulent conveyance of tenancy-by-entireties interest | Plaintiff relied on common-law/fraudulent transfer principles applied by trial court | Defendants argued § 52-552b(2) excludes tenancy-by-entireties interest from being treated as asset reachable by single-creditor claim | Issue not distinctly raised below (only cursory mention); appellate court declined to review it |
| Whether court could order title restored though a transferee (Simeon) was not a party | Plaintiff sought restoration of title to remedy fraudulent transfer | Defendants argued court lacked jurisdiction over nonparty transferee, so cannot enforce restoration against him | Argument not raised below; appellate court declined to review; court noted resulting title would be Benet and Simeon as joint tenants after restoration |
Key Cases Cited
- Eremita v. Morello, 111 Conn. App. 103 (discretionary review of denial to open judgment)
- Fortin v. Hartford Underwriters Ins. Co., 139 Conn. App. 826 (motion to reargue reviewed for abuse of discretion; not a vehicle for second bite)
- Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640 (refusal to consider new evidence on reargument affirmed)
- Cadle Co. v. D’Addario, 268 Conn. 441 (trial court is sole arbiter of witness credibility and weight of evidence)
- Remillard v. Remillard, 297 Conn. 345 (issues not distinctly raised at trial are not reviewable on appeal)
- U.S. Bank National Assn. v. Iaquessa, 132 Conn. App. 812 (definition of “distinctly raised” requirement at trial)
- Lawrence v. State Board of Education, 140 Conn. App. 773 (appellate courts need not consider arguments first raised in reply brief)