59 Conn. App. 62 | Conn. App. Ct. | 2000
Opinion
Dennis Gorelick, the named defendant in the first case, the named plaintiff in the second case,
“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. Mon-tanaro 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-attomeys-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 Gor-elick as trustees. On October 19, 1993, Berty died and
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.
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
Gorelick contends that because other paragraphs in the amended complaint refer to him as attomey-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 Gore-lick 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
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.
Ill
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 of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). “The court’s findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the
Ample evidence existed before the court that supports its conclusion that Gorelick breached his fiduciary duties to Berty. The court found that from 1987 until 1993, Gorelick assisted Berty with her financial transactions, and was a joint account holder with Berty on savings accounts, checking accounts, money market accounts and certificates of deposit. The court further found that between 1990 and 1993, Gorelick withdrew $147,712.06 without Berty’s authorization.
Other testimony at trial, not explicitly mentioned in the court’s memorandum of decision but contained in the trial transcript, pertains as well to Gorelick’s misuse of Berty’s funds.
As the court stated in its memorandum of decision: “The evidence demonstrates that because of the control exercised by Dennis Gorelick over Berty’s financial affairs, because her various accounts were also in Den
We need go no further. The function of our appellate courts is not to examine the record and see if the trier of fact could have reached a contrary conclusion. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995). “Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999). The court’s factual findings were not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
Dennis Gorelielc is a party to this appeal in both his personal capacity and his capacity as trustee. Glen Gorelick, the other defendant in the first case and plaintiff in the second case, is not a party to this appeal.
On September 23, 1993, Ellen Berty, the late grandmother of Dennis Gorelick and Glen Gorelick, filed a four count complaint against the Gore-licks. Berty alleged 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 February 14, 1994, Glen Gorelick and Dennis Gorelick filed a two count amended complaint against Emily Montanaro, the executrix of Berty’s estate, who thereafter was substituted as the plaintiff in the other action after Berty’s death. In the first count, the Gorelicks claimed that Montanaro had used undue influence to induce Berty to transfer to Montanaro money that Dennis Gorelick claimed rightfully was his. In the second count, the Gorelicks alleged that Montanaro had wrongfully induced Berty to file a frivolous lawsuit against the Gorelicks. At the conclusion of the trial, the Gorelicks withdrew count two of their amended complaint.
When Berty died, Montanaro moved to substitute herself as the plaintiff in the first case. The motion was granted by agreement on September 5,1995.
Montanaro has not appealed from the judgment in favor of the Gorelicks on her claim of fraudulent conveyance.
Dennis Gorelick filed a motion for articulation, which was denied on August 26, 1996. On appeal, Gorelick’s counsel conceded that he did not file a motion for review of the trial court’s denial of the motion for articulation. See Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 259, 576 A.2d 589 (1990) (burden of ensuring record sufficient for review rests with appellant).