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Isenburg v. Isenburg

Court of Appeals of Connecticut

December 19, 2017


          Argued September 25, 2017

          Elizabeth Isenburg, self-represented, the appellant (plaintiff).

          Andrew W. Krevolin, with whom was Denise Luc-chio, for the appellee (defendant).

          DiPentima, C. J., and Sheldon and Harper, Js.


          SHELDON, J.

         The plaintiff, Elizabeth Isenburg, [1]appeals from the judgment of the trial court, rendered after a trial to the court, awarding her limited damages and other relief against the defendant, Matthew Isenburg, on multiple claims against him.[2] The following facts, as found by the trial court, are relevant to this appeal. The plaintiff and the defendant were in a relationship for fourteen years, from 1998 to 2012. During that period, the plaintiff lived in the defendant's home. Long before the parties' relationship began, the defendant owned an extensive collection of early photographs and photographic ephemera (photographic collection), which he ultimately sold in 2012 for fifteen million dollars. Several months after the sale of the photographic collection, the parties' relationship ended, and the plaintiff moved out of the defendant's home.

         At trial, the plaintiff claimed that the defendant had breached express and implied contracts he had entered into with her, under which they had agreed that she would contribute her time, efforts, talents and resources to the defendant's household, businesses, and investment and collection ventures, in exchange for which he would share equally with her both the income from such businesses and other ventures and the ownership of all assets he acquired after the formation of the contract. The plaintiff further claimed that: the defendant had fraudulently misrepresented to her his intentions concerning the foregoing agreement in order to induce her to devote herself completely to him, and that she had relied on those fraudulent misrepresentations to her injury, loss and damage; the defendant had defrauded her by taking great pains to gain her undivided trust and loyalty, causing her to enter into a confidential and/or special relationship with him, in which she became wholly dependent upon him for her support and sustenance and he assumed a fiduciary duty to her to provide for her material needs; the defendant breached his fiduciary duty to her by unilaterally closing several joint bank accounts that he had opened in order to provide for her support and causing her to move out of his home without compensation for the services she had provided to the defendant and his businesses and other ventures; the defendant had been unjustly enriched because the plaintiff's contributions to his home and business and other ventures had spared him substantial expenses, for which he had failed to pay her; the defendant had converted certain items of her personal property by selling such items, without her knowledge or consent, as part of his photographic collection; and finally, the defendant's conduct in repudiating their agreement by causing her to vacate his home, then denying her claim to having a financial interest in his real or personal property, had given rise to a constructive and/or resulting trust in her favor with respect to such property.

         The court rejected all of the foregoing claims, finding that the plaintiff and the defendant had always had only a social, not a business, relationship, and that all of the defendant's promises to the plaintiff concerning the future had always been conditioned upon the continuation of their social relationship. The court agreed with the plaintiff that the defendant had given her certain specific items[3] during the course of their relationship, and thus ordered the defendant to return those items to the plaintiff. The court also ordered the defendant to return to the plaintiff certain items of her personal property that were still in his or his agent's control, including: the contents of a storage unit; items that the plaintiff brought with her when she moved into the defendant's home; and all of the plaintiff's clothing that she had left in his home when she moved out. Finally, the court ordered the defendant to pay the plaintiff $900 to replace certain items of her personal property that were broken while they were being stored in the storage unit. The court ruled, however, that the plaintiff was not entitled to, and thus it did not award her, any proceeds from the sale of the defendant's photographic collection, any of the money that had been in any joint banking accounts that the defendant had opened and maintained in the course of their relationship, or any funds compensating her for her claimed one-half interest in the defendant's home.

         On appeal, the plaintiff claims that the trial court erred by: (1) excluding large portions of certain exhibits she had offered into evidence at trial; (2) not recusing itself, sua sponte, from the case; (3) finding that there was no express or implied contract between her and the defendant; (4) finding that the defendant did not owe her any fiduciary duty, much less breach such a duty to her; and (5) failing to award her certain other specific damages and property.[4] We affirm the judgment of the trial court.


         As her first claim of error, the plaintiff challenges the trial court's alleged exclusion of certain exhibits which she offered into evidence at trial. The plaintiff claims, more particularly, that the trial court erred by excluding large portions of a compendium of documents that she had attempted to introduce, admitting from it only three poems that the defendant had written to her. The excluded evidence allegedly included: documents concerning the establishment of a U.S. Trust wealth management account;[5] two certificates of deposit opened in the names of the plaintiff and the defendant; a commercial promissory note in the principal amount of $317, 690.41, payable to the plaintiff and the defendant, which was held by the attorney for the defendant's estate, Theodore N. Phillips; and documents establishing a joint checking account for the plaintiff and the defendant with Bank of America.

         ‘‘The trial court's decision to admit or preclude evidence, and its determination as to whether evidence is relevant and probative, are subject to review for an abuse of discretion.'' Fleming v. Dionisio, 317 Conn. 498, 512, 119 A.3d 531 (2015). Here, however, we have no occasion to review whether the trial court abused its discretion in ruling as the plaintiff claims because the court never made the challenged ruling. In fact, each of the allegedly excluded documents was actually admitted into evidence.[6] For that reason, the plaintiff's first claim of error must obviously be rejected.


         As her second claim of error, the plaintiff argues that the trial judge should have recused himself from her case because he, as a married man, was biased against her because her claims arose at a time when she and the defendant were living together as an unmarried couple. Although the plaintiff never raised that concern at trial, much less moved for the judge's recusal on that or any other basis, she now asserts that the court erred by failing to recuse itself from this case sua sponte.

         Pursuant to Practice Book § 1-22 (a), ‘‘[a] judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Rule 2.11 of the Code of Judicial Conduct . . . .'' Pursuant to Practice Book § 1-23, ‘‘[a] motion to disqualify a judicial authority . . . shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.'' Our Supreme Court recently has held, however, that there is no ‘‘per se rule that noncompliance with the . . . procedural requirements [of Practice Book § 1-23] is fatal to review.'' State v. Milner, 325 Conn. 1, 5, 155 A.3d 730 (2017). ‘‘Indeed, such review is authorized in part because a judge has an independent obligation to recuse herself or himself from a matter . . . sua sponte . . . if such judicial authority is disqualified from acting therein pursuant to [c]anon 3 (c) [now rule 2.11] of the Code of Judicial Conduct . . . . Practice Book § 1-22 (a).'' (Internal quotation marks omitted.) Id., 7-8.

         We review the plaintiff's claim for abuse of discretion. ‘‘Pursuant to our rules of practice; see Practice Book § 1-22; a judge should disqualify himself from acting in a matter if it is required by rule 2.11 of the Code of Judicial Conduct, which provides in relevant part that [a] judge shall disqualify himself . . . in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to, the following circumstances . . . [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding. Code of Judicial [Conduct, Rule] 2.11 (a) (1). . . . In applying this rule, [t]he reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge's impartiality on the basis of all the circumstances. . . . Moreover, it is well established that [e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority. . . . Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of ...

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