Opinion
HHBCV136023306S
03-23-2016
Barbara McLoughlin v. Jerome Martin et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Robert E. Young, J.
FACTS AND PROCEDURAL HISTORY
In her amended complaint dated August 13, 2014, the plaintiff, Barbara McLoughlin, asserts ten causes of action against three defendants. The first four counts are directed to defendant Jerome Martin. McLoughlin alleges that her home was subject to a foreclosure and that Martin, a state marshal, was engaged to perform an ejectment pursuant to General Statutes § 49-22, gave access to third persons, did not store McLoughlin's possessions and gave her possessions " to others."
In the first count, entitled " Count One, " McLoughlin asserts a negligence claim, and alleges the following facts in the operative complaint and in her submissions in opposition to the motion for summary judgment. Prior to the October 2012 foreclosure, McLoughlin was a property owner of a home at 89 Swanson Drive, in Bristol, Connecticut. Martin was ordered to perform an ejectment, pursuant to General Statutes § 49-22, and pursuant to a court order. Martin, as a state marshal, had the duty to follow Connecticut state law, as well as orders promulgated by the Connecticut Superior Court. On October 26, 2012, Martin also assumed a duty to protect McLoughlin's property, pursuant to a court order that required him to notify her where the property was to be stored. Martin represented that the property would be stored " with the Town of Bristol."
The amended complaint does not comply with Practice Book § 10-26.
Despite these duties, Martin testified that he found McLoughlin's personal property to be infested with fleas and thus likely to be refused at the Town of Bristol's storage facility. He also determined McLoughlin's personal property to be abandoned. Martin never moved the property to storage with the Town of Bristol, as he had represented on the court order, and he never informed McLoughlin that the property was not going to be stored. Martin never notified McLoughlin that he had declared the property infested or abandoned and left no number where he could be reached.
The parties have attached to their submissions uncertified and unauthenticated documents. Although each party has failed to comply with Practice Book § 17-45, at oral argument on the motion, each agreed that the court should consider the other's submissions. Therefore, the court will consider these submissions as if they were properly certified and authenticated. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006); but see Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974 , cert. denied, 306 Conn. 905, 52 A.3d 372 (2012).
Later in the same day Martin performed the ejectment. When McLoughlin arrived at the property, Martin was no longer at the property even though he had given third parties access. McLoughlin learned at that time that her property was not in storage and was missing.
Martin was negligent in the following ways: (1) on October 26, 2012, Martin failed to secure McLoughlin's property for storage; (2) Martin failed to follow the court order's instructions that had been issued to notify McLoughlin where her property would be stored; (3) Martin breached his assumed duty to store McLoughlin's property when, without authorization, he declared McLoughlin's property abandoned; (4) Martin permitted others to take McLoughlin's property; (5) Martin failed to give reasonable notice that others were taking McLoughlin's property without compensation to McLoughlin; and (6) after being made aware that McLoughlin's property had been taken, Martin took no action to assist her in locating her property.
The second count, " Count Two, " is a claim for conversion, and it incorporates the allegations in the first count, and further alleges that, with reckless indifference to McLoughlin's rights, Martin appropriated, without legal authority, McLoughlin's property for the benefit of another. The second count also alleges that McLoughlin has been permanently deprived of her property.
The third count, entitled " Count Three, " is labeled " civil theft, " and it incorporates the allegations of the first count. The third count further alleges that Martin's acts of making declarations and giving McLoughlin's property away were intentional and served to permanently deprive McLoughlin of her property.
The fourth count, entitled, " Count Four, " alleges breach of fiduciary duty, and it incorporates the allegations of the first count. The fourth count further alleges, in part, that a fiduciary relationship existed between Martin and McLoughlin.
Martin moves for summary judgment as to all four counts against him on the following grounds: (1) the negligence claim fails because Martin owed no duty to McLoughlin, relating to her alleged loss of personal property during the execution of ejectment, that derived from either the ejectment statute, General Statutes § 49-22, or from the court order of ejectment; (2) the claims for both conversion and civil theft fail because Martin did not exercise unauthorized possession and dominion over McLoughlin's alleged lost personal property; (3) the claim for breach of fiduciary duty fails because McLoughlin failed to establish facts demonstrating that a fiduciary relationship existed between herself and Martin.
McLoughlin counters that: (1) as demonstrated by the statute's legislative history, § 49-22 confers an affirmative duty upon Martin to move McLoughlin's personal property to a storage location designated by the municipality; (2) even if there is not duty imposed by statute, Martin assumed such a duty by representing to McLoughlin on the order of ejectment that her personal property would be stored in a designated facility; (3) McLoughlin's claims for conversion and civil theft should survive summary judgment on the ground that Martin exercised dominion and control over McLoughlin's personal property, as Martin testified that he executed " a release" proffered by the co-defendants at the premises during ejectment; (4) Martin owed McLoughlin a fiduciary duty based on the trust inherent in his office, based on the duty under § 49-22, and the language in the court's order of ejectment; and (5) there exist miscellaneous issues of material fact with respect to all of the causes of action.
Both parties have filed serial briefing. The other defendants also filed replies to McLoughlin's objection to the motion for summary judgment. The parties were heard at oral argument on January 19, 2016.
LEGAL STANDARD
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 381 [now § 17-46].
ANALYSIS
I " Count One" (Negligence)
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . [T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139-40, 2 A.3d 859 (2010).
McLoughlin claims that the duty of care arises from a statutory duty, from the duty to follow court orders and/or from an assumption of a duty when Martin left notice that McLoughlin's personal property would be moved to storage. Thus, there are three issues to be considered as to this negligence count. The first issue is whether, under the circumstances presented, Martin owes a duty to McLoughlin to move property to the storage location designated by the municipality and to provide notice, pursuant to General Statutes § 49-22. The second issue is whether Martin owes a duty to McLoughlin to move property to storage and to provide notice, pursuant to the court order. Finally, the third issue is whether Martin owes a duty to McLaughlin to move property to storage because he assumed such a duty. These appear to be issues of first impression.
A
Duty of Care Pursuant to General Statutes § 49-22
" When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010). In addition, " [i]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 422, 908 A.2d 1033 (2006).
General Statutes § 49-22 relates to the execution of ejectment on foreclosure judgment, and subsection (a) of the statute states, in relevant part: " The officer shall eject the person or persons in possession and may remove such person's possessions and personal effects and deliver such possessions and effects to the place of storage designated by the chief executive officer of the town for such purposes." (Emphasis added.)
Based on the relevant language in the statute, the first consideration is whether delivery of McLoughlin's possessions to a municipal storage facility is mandatory or directory. As our Supreme Court has noted, " [d]efinitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature . . . As we recently noted, the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb." (Citation omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 101, 989 A.2d 1027 (2010). Furthermore, " [w]e have consistently held that may is directory rather than mandatory . . . The word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion." (Citation omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000). " The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings. Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981) (use of different terms within same sentence of statute plainly implies different meanings intended), aff'd, 192 Conn. 252, 470 A.2d 1216 (1984) . . ." (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 122.
Here, the relevant language in § 49-22(a) is unambiguous, and provides that " [t]he officer . . . may remove such person's possessions and personal effects and deliver such possessions and effects to the place of storage designated by the chief executive officer of the town for such purposes." (Emphasis added.) In construing this provision, the word " may" is to be given its ordinary meaning as is consistent with common usage. As discussed in the preceding paragraph, our Supreme Court has held that the word " may" is usually discretionary rather than mandatory, and generally refers to permissive conduct. Furthermore, although the use of the word " may" does not always and invariably refer to discretionary conduct, here the word " shall" appears in the same sentence as " may, " as the provision also states that the " officer shall eject the person or persons in possession . . ." As the Supreme Court has noted, the use of both words in a statute, especially where they appear in the same sentence, shows that the legislature was aware of the different meanings and, more importantly, intended the terms to have different meanings. In interpreting a statute, it is presumed that no part of a statute is superfluous, and here the legislature inserted the word " may" in order to confer discretion.
Thus, the language in § 49-22(a) is unambiguous, and provides the marshal with discretion to remove the personal property of the person subject to ejection to storage. Nevertheless, pursuant to subsections (b) and (c) of § 49-22, the marshal has statutory obligations to the person subject to ejection once he has exercised such discretion. Specifically, subsection (b) and (c) describe the procedures that the marshal must follow to remove the property of a person subject to ejectment to a storage facility, and to provide notice to such person.
In fact, McLoughlin concedes that the alternative interpretation, that the marshal must always remove property into storage, creates absurd and unworkable results. Specifically, McLoughlin contends that " there could never be a statute crafted that would mandate in all instances a [m]arshal must move the property left behind in storage." Thus, the language in § 49-22(a) is plain and unambiguous, and it does not lead to absurd and unworkable results. McLoughlin argues, in the alternative, that a broad discretionary interpretation of the statute would lead to absurd and unworkable results because it would create a situation where no reasonable marshal would ever move the property to storage. McLoughlin's argument is not persuasive. As argued by Martin, the present version of § 49-22 was enacted in 2010, and " in an era of widespread foreclosures (and presumably ejectments), the parade of horribles anticipated by [the plaintiff] appears not to have materialized."
General Statutes § 49-22(b) states: " Before any such removal, the state marshal charged with executing upon the ejectment shall give the chief executive officer of the town twenty-four hours notice of the ejectment, stating the date, time and location of such ejectment as well as a general description, if known, of the types and amount of property to be removed from the land and delivered to the designated place of storage. Before giving such notice to the chief executive officer of the town, the state marshal shall use reasonable efforts to locate and notify the person or persons in possession of the date and time such ejectment is to take place and of the possibility of a sale pursuant to subsection (c) of this section and shall provide clear instructions as to how and where such person or persons may reclaim any possessions and personal effects removed and stored pursuant to this section, including a telephone number that such person or persons may call to arrange release of such possessions and personal effects ." (Emphasis added.)
General Statutes § 49-22(c) provides, in relevant part: " Whenever a mortgage or lien upon land has been foreclosed and execution of ejectment issued, and the possessions and personal effects of the person in possession thereof are removed by a state marshal under this section, such possessions and effects shall be delivered by such marshal to the designated place of storage. Such removal, delivery and storage shall be at the expense of such person." (Emphasis added.)
Subsection (b) and (c) of § 49-22 presuppose that the marshal has first exercised his discretion to store the property in a municipal storage facility. Subsection (b) requires the marshal to send notice " before any such removal, " which implies that the marshal has decided to remove the property. Similarly, subsection (c) described certain procedures the marshal must follow " [w]henever . . . the possessions and personal effects of the person in possession thereof are removed by a state marshal under this section . . ." Thus, subsection (c) also assumes that the marshal has decided to remove the personal property. These subsections do, however, create a mandatory duty once the marshal has exercised his discretion to store McLoughlin's personal property in a municipal storage.
As discussed, the word " shall" creates a mandatory duty when it is juxtaposed with a substantive action verb.
In the present case, McLoughlin has presented evidence that Martin exercised his discretion to store the property in a designated facility. Most importantly, McLoughlin has submitted the ejectment order, which is Plaintiff's Exhibit K. The ejectment order has two sections. The first section is addressed to a " Proper Officer, " and as previously described, it requires that the marshal follow certain procedures that are consistent with § 49-22. The second section is labeled " Notice to Persons in Possession of Premises Subject to Ejectment, " and applies to McLoughlin in the present case. Presumably, this section serves to assure that the marshal complies with the provisions in § 49-22, including the notice provisions, should the marshal choose to remove the personal property of a person subject to ejectment.
Paragraph 3 of the second section provides space for the marshal to fill in the place of storage, and the telephone number the person subject to ejectment may call to arrange the release of personal property. In the present case, Martin wrote that McLoughlin's possessions and personal effects would be stored with the " Town of Bristol, " but Martin did not leave a telephone number. Paragraph 5 states that if McLoughlin does not remove her personal property by a certain date and time (these fields are left blank for the marshal to fill in), the marshal " will return to remove [McLoughlin's] possessions and personal effects and store them." (Emphasis added.) Martin filled in October 26, 2012, as the date, and 9:00 a.m., as the time. The notice section of the ejectment order was signed at the bottom by Martin.
Martin testified that he placed the notice on McLoughin's door on the morning of October 22, 2012. (Defendant's Exhibit C, Affidavit of Martin, ¶ 4; Plaintiff's Exhibit C, Deposition of Martin, pp. 53-54.) McLoughlin also submitted Martin's " Responses to Plaintiff's First Request for Admissions." In the response, Martin admitted that he " provided the plaintiff with notice that if she did not remove her possessions from the Home that any and all possessions were to be stored with the Town of Bristol." (Plaintiff's Exhibit L, ¶ 10.)
Based on the foregoing evidence, there is a genuine issue of material fact as to whether Martin exercised his discretion to store McLoughlin's personal property in a municipal storage by filling in the notice provision on the order of ejectment and by posting notice of the same. As such, there is a genuine issue of material fact as to whether Martin owed a duty of care to McLoughlin to properly store her property, pursuant to subsection (c), and to provide proper notice to McLoughlin, including a telephone number that McLoughlin could call to arrange the release of her personal property, pursuant to subsection (b). Therefore, it is for the factfinder to determine whether, under the present circumstances, Martin owed a duty of care and whether Martin breached his statutory duty of care to McLoughiin.
Despite the evidence that Martin later determined that he would not store McLoughlin's property, Martin was required to follow the instructions in subsection (b) and (c) after he initially exercised his discretion to remove McLoughlin's personal property. Furthermore, viewing the evidence in the light most favorable to McLoughlin, Martin's testimony implies that he never attempted to notify McLoughlin of his later declarations and decisions. At the very least, a genuine issue of material fact remains as to whether such notice was provided to McLoughlin. Therefore, although Martin may have been relieved of his duty to store McLoughlin's personal property had Martin provided McLoughlin with timely notice that her property would not be placed in storage, there is a genuine issue of material fact as to whether Martin provided such notice. Martin counters, in part, that the duties under subsection (b) and (c) of § 49-22 are predicated on the exercise of Martin's discretion, and that Martin ultimately decided not to store McLoughlin's property. The parties have presented evidence that Martin later decided not to store McLoughlin's property with the Town of Bristol. Specifically, Martin testified that, on October 26, 2012, at the home, he made two declarations: (1) that the property was abandoned; and (2) that the property was flea infested. (Plaintiff's Exhibit C, Deposition of Martin, pp. 66-67, 76.) Martin further testified that he notified, or at least attempted to notify, the office of the foreclosing party's attorney and the Town of Bristol of his decision to not move the property to the Town of Bristol. (Defendant's Exhibit C, Affidavit of Martin, ¶ ¶ 13, 15; Plaintiff's Exhibit C, Deposition of Martin, pp. 66-67.)
B
Duty of Care Pursuant to Order of Ejectment
McLoughlin's complaint refers to the order of ejectment as a basis for a duty of care to store McLoughlin's personal property. The portion of the order of ejectment that is addressed to " Any Proper Officer" states, in relevant part: " By the authority of the State of Connecticut, you are commanded to cause the said person(s) entitled to possession to have the seizin and peaceable possession of the premises described herein, and to put and eject the said person(s) in possession, out of possession thereof . . . If said person(s) in possession have not removed all their possessions and personal effects, then you may remove them and deliver them to the place of storage designated by the chief executive officer of the town for such purposes. Prior to removal . . . [and] [p]rior to giving notice to the chief executive officer, you must use reasonable efforts to locate and notify the person(s) in possession of the date and time the removal is to take place and the possibility of a sale of their possessions pursuant to General Statute[s] [§ ]49-22 and you must provide clear instructions as to how and where such person or person[s] may reclaim any possessions and personal effects removed and stored, including a telephone number that such person may call to arrange release of such possessions and personal effects ." (Emphasis added.) (Plaintiff's Exhibit K.)
The part of the order that is addressed to Martin is consistent with the language in § 49-22. The plain and unambiguous language in the order " commands" Martin to remove McLoughlin from the premises, but states that Martin " may, " in his discretion, remove McLoughlin's property to storage. Nevertheless, as with § 49-22, Martin is obligated to store McLoughlin's property and provide proper notice if he exercises his discretion to remove McLoughlin's property.
In the present case, because McLoughlin has presented evidence that Martin filled out and posted the notice to McLoughlin that her personal property will be stored with the Town of Bristol, there is a genuine issue of material fact as to whether Martin had exercised his discretion and thus, as to whether he was bound to follow the commands of the order regarding storage and notice. As such, pursuant to the order of ejectment, there is a genuine issue of material fact as to whether Martin owed a duty of care to McLoughlin to store McLoughlin's property and provide proper notice.
C
Duty of Care Based on Assumed Duty
" One who gratuitously undertakes a service that he has no duty to perform must act with reasonable care in completing the task assumed . . . If one undertakes to perform an act and performs it negligently . . . it makes no difference whether . . . the act was performed gratuitously . . . One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 547, 51 A.3d 367 (2012), citing 2 Restatement (Second), Torts § 323 (1965).
As described in the preceding section regarding the statutory duty of care, McLoughlin has submitted evidence that Martin filled out the notice portion of the order of ejectment and that he gave McLoughlin notice that her personal property would be stored with the Town of Bristol. As such, based on the submitted evidence, there is a genuine issue of material fact as to whether Martin undertook to render services to McLoughlin which he should recognize as necessary for the protection of McLoughlin's personal property.
Thus, Martin is not entitled to summary judgment, as a matter of law, because there is a genuine issue of material fact as to whether Martin undertook to provide McLoughlin with a service by leaving notice that he would store her personal property with the Town of Bristol. The motion for summary judgment is denied as to the first count of the complaint.
II. " Count Two" (Conversion)
" The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006). " Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Id.
" To establish a prima facie case of conversion, the plaintiff had to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff." News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837, aff'd, 276 Conn. 310, 885 A.2d 758 (2005). As such, " [a]s previously stated, an essential element of the tort of conversion is the unauthorized use of another's property." (Emphasis in original.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 47, 761 A.2d 1268 (2000).
A plaintiff does not have a viable claim for conversion based on the unauthorized taking of property where the defendant acted with legal authority, pursuant to a statute or pursuant to a court order. See The Patterson Collection v. Sullivan, United States District Court, Docket No. 3:07CV0592 (WWE), (D.Conn. April 21, 2010) (" plaintiff cannot establish that defendants were involved in an unauthorized taking of property since the attachment was executed pursuant to a valid court order"); International Motorcars, LLC v. Sullivan, Superior Court, judicial district of New Britain, Docket No. CV-05-4005168-S (June 20, 2006, Shaban, J.) (41 Conn. L. Rptr. 559) (holding that plaintiff failed to state valid claim for conversion, in part because " it cannot be stated that the defendant's attempt to seize the vehicle was done pursuant to anything other than a valid court order"); Restatement (Second), Torts § 265 (1965) (" [o]ne is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if he is acting in discharge of a duty or authority created by law to preserve the public safety, health, peace, or other public interest, and his act is reasonably necessary to the performance of his duty or the exercise of his authority"); Restatement (Second), Torts § 266 (1965) (" [o]ne is privileged to commit acts which would otherwise be a trespass to a chattel or a conversion when he acts pursuant to a court order which is valid or fair on its face").
The comments to the Restatement (Second) further clarify: " The rule stated in this Section is applicable to the seizure of goods by a sheriff or other officer pursuant to a writ of execution, replevin, attachment, or any other legal process issued by the court of which the sheriff or other person is an officer. Such process will protect the officer only when it authorizes him to seize the chattel in question. If the writ directs the officer to take and hold in the custody of the law a definite and particular chattel, it is sufficient to protect him against an action for the seizure of the chattel thus described. If the writ merely authorizes the officer to seize the goods of A, it will protect him only when the goods seized belong to A. The officer takes the wrong goods or the goods of the wrong person at his peril." Id., comment (d). Furthermore, " [t]he rule stated in this Section protects the officer not only in the seizure of the chattel under legal process, but also in any sale or other disposal of the chattel which the court order directs or authorizes him to make." Id., comment (e).
In the present case, as discussed in the preceding sections, § 49-22 and the court order both command the marshal to eject the person subject to ejectment and allow the marshal to remove that person's personal property to the place of storage designated by the chief executive officer of the town for such purposes. As such, both § 49-22 and the court order allow the marshal to store the property of the person subject to ejectment in a designated facility, but do not authorize the marshal to otherwise dispose of or sell that person's personal property.
Furthermore, § 49-22(a) also states, in relevant part: " In any action brought for the foreclosure of a mortgage or lien upon land, or for any equitable relief in relation to land, the plaintiff may, in his complaint, demand possession of the land, and the court may, if it renders judgment in his favor and finds that he is entitled to the possession of the land, issue execution of ejectment, commanding the officer to eject the person or persons in possession of the land and to put in possession thereof the plaintiff or the party to the foreclosure entitled to the possession by the provisions of the decree of said court . . ." (Emphasis added.) Similarly, the court order, in the section addressed to the marshal, states in relevant part: " By the authority of the State of Connecticut, you are commanded to cause the said person(s) entitled to possession to have the seizin and peaceable possession of the premises described herein, and to put and eject the said person(s) in possession, out of possession thereof, and to put the person(s) entitled to possession into the peaceable and quiet possession thereof . . ." (Emphasis added.)
Martin argues that the undisputed fact is that " the lawful holder of title . . . was taking possession of the premises pursuant to the court's order of ejectment, and that Marshal Martin's role was to effectuate the lawful holder of title's possession of premises that it already owned, in accordance with the language of the order and . . . § 49-22, which so commanded him." Although Martin's argument is a correct statement of the law, it is not the situation presented in this case. The statute and court order give Martin the authority to put the rightful owner in possession of the premises but not the authority to dispose of the personal property of the person subject to ejectment other than to store it in a designated facility.
McLoughlin has submitted evidence that Martin had acted beyond the scope of the statute and the court order, and thus without authority, in depriving McLoughlin of her property. Specifically, McLoughlin has submitted excerpts from the deposition of Martin. These establish evidence that McLoughlin's property was either turned over or released to another party, although the evidence also shows that there is a dispute as to who was present when Martin allegedly turned the property over.
In Martin's affidavit, co-defendant Five Brothers Default Management Solutions (Five Brothers) has been identified as the " owner's representatives, " and Martin states that he turned the premises over to the owner's representative. (Defendant's Exhibit C, Affidavit of Martin, ¶ ¶ 8, 14.) In Martin's deposition, however, Martin acknowledged that there is some confusion as to who was present. Martin initially stated that he was not sure whether the people there were from Connecticut Housing Finance Authority (CHFA), McCue Mortgage, or Five Brothers. (Plaintiff's Exhibit C, pp. 60-61.) Later in the deposition, Martin states that he turned the property over to two representatives of McCue Mortgage. (Plaintiff's Exhibit C, p. 76.) At other points during the deposition, Martin claims that the property was either turned over or " released" to Five Brothers. (Plaintiff's Exhibit C, pp. 76-77, 97-99.) Although the plaintiff's attorney clarifies that Five Brothers is the property preservation firm, Martin did not know who retained them. (Plaintiff's Exhibit C, p. 98.) To add to the confusion, McLoughlin's affidavit states that co-defendant Three Brothers Building Services LLC (Three Brothers) was present at the relevant times, and that it was Three Brothers who took her property. (Plaintiff's Exhibit A, Affidavit of McLoughlin, ¶ ¶ 30-34.) The deposition of Douglas Henriksen, an employee of Three Brothers, supports McLoughlin's claim. Henriksen states that he was present when Martin signed off on a form provided by Five Brothers, essentially declaring the property present at the home to be debris. (Defendant's Exhibit F, Deposition of Henriksen, pp. 119-20.)
At times during the deposition, both counsel and the deponent referred to the defendant Five Brothers as " Five Guys."
More importantly, regardless of the entity to which the property was turned over, the deposition excerpts provide evidence that Martin turned over McLoughlin's personal property, not just the premises. In particular, during the deposition, McLoughlin's attorney asks who received the " benefit of $15,000 worth of goods . . ." (Plaintiff's Exhibit C, p. 96.) Even though Martin appears to deny that he himself benefited, in a response to a follow-up question from McLoughlin's attorney, Martin states " that the property was turned over to [Five Brothers]." (Plaintiff's Exhibit C, p. 97.) Moreover, Martin testifies that he " signed a release to [Five Brothers] that the property is-they could take over the property." (Plaintiff's Exhibit C, p. 97.)
The statute and the order of ejectment do not permit Martin to turn McLoughlin's personal property over to another person or entity. The discussion in the deposition about McLoughlin's " goods" creates a genuine issue of material fact as to whether the release was limited to the premises, or whether the release included McLoughlin's personal property. As such, McLoughlin's evidence raises a genuine issue of material fact as to whether Martin deprived McLoughlin of her property without authorization.
Martin argues, in the alternative, that he never exercised or assumed ownership over McLoughlin's property. McLoughlin correctly counters that there is evidence that Martin released her personal property, and that one must necessarily have dominion over property in order to release it. The relevant definition for " release, " according to Merriam-Webster, is " to give up in favor of another." Merriam-Webster's Collegiate Dictionary (10th Ed. 1993). One must assume some form of ownership or possession of the property in order to " give up" the property.
A copy of the alleged release form has not been produced in discovery and is not before the court. The existence of the release is a genuine issue of material fact. Additionally, the deposition of Martin, as quoted in the preceding paragraphs, shows that there is a genuine issue of material fact as to whether Martin released McLoughlin's personal property to another person or entity.
Thus, the evidence shows that there is a genuine issue of material fact as to whether Martin exercised or assumed control and dominion over McLoughlin's property and as to whether the personal property was turned over or released to another person or entity without authority. The motion for summary judgment is denied as to the second count of the complaint.
III. " Count Three" (Civil Theft)
A claim for " civil theft, " sometimes called " statutory theft, " is similar to a claim for conversion. General Statutes § 52-564, the civil theft statute, provides: " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." " A person commits statutory theft when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." (Emphasis omitted; internal quotation marks omitted.) Masse v. Perez, 139 Conn.App. 794, 801, 58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61 A.3d 1098 (2013). The elements of a cause of action for civil theft are: (1) that the property belonged to the plaintiff; (2) that the defendant intentionally deprived the plaintiff of its property; and (3) that the defendant's conduct was unauthorized. See Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993). As such, " [c]onversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn.App. 99, 114, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).
" In order to distinguish the tort claim of statutory theft from its criminal cousin in the Penal Code, statutory theft is also sometimes referred to as 'civil theft.' " Health Communications, Inc. v. Chicken Soup for the Soul Publishing, LLC, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X05-CV-08-4014539-S (June 14, 2011, Blawie, J.) (52 Conn. L. Rptr. 127).
The legal distinctions between a civil theft claim and a claim for conversion are not relevant to the present motion. As discussed in the preceding section regarding conversion, there is a genuine issue of material fact as to whether Martin exercised or assumed dominion over the plaintiff's personal property, and there is a genuine issue of material fact as to whether the personal property was turned over or released to another person or entity without authority. Therefore, the motion for summary judgment is denied as to the third count of the complaint.
IV. " Count Four" (Breach of Fiduciary Duty)
" It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them." Biller Associates v. Peterken, 269 Conn. 716, 723, 849 A.2d 847 (2004). " [I]n many cases, the existence of a fiduciary duty may turn on the unique facts presented in the record. The fact driven nature of a question of law does not, however, transform it into a question of fact." Iacurci v. Sax, 313 Conn 786, 796, 99 A.3d 1145 (2014). " [W]hen the resolution of a question of law, such as the existence of a fiduciary duty, depends on underlying facts that are in dispute, that question becomes, in essence, a mixed question of fact and law." Id., 797 n.12.
(May 9, 2013, Brazzel-Massaro, J.)." The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut case law are: (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; (2) [T]hat the defendant advances his own interests to the detriment of the plaintiff; (3) That the plaintiff sustained damages; (4) That the damages were proximately caused by the fiduciary breach of his or her fiduciary duty." (Internal quotation marks omitted.) Stone v. Pattis, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5011515-S,
" The law does not provide a bright line test for determining whether a fiduciary relationship exists, yet courts look to well established principles that are the hallmark of such relationships. Our Supreme Court has stated that [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 . . . We have not, however, defined that relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other . . . [U]nder our case law, the fiduciary relationship is not singular. The relationship between sophisticated partners in a business venture may differ from the relationship involving lay people who are wholly dependent upon the expertise of a fiduciary. Fiduciaries appear in a variety of forms, including agents, partners, lawyers, directors, trustees, executors, receivers, bailees and guardians. [E]quity has carefully refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations." (Internal quotation marks omitted.) Iacurci v. Sax, 139 Conn.App. 386, 401, 57 A.3d 736 (2012), cert. granted, 308 Conn. 910, 61 A.3d 1100 (2013), aff'd, 313 Conn. 786, 99 A.3d 1145 (2014).
" Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." (Internal quotation marks omitted.) Id. " The fact that one party trusts another is not dispositive of whether a fiduciary relationship exists . . . rather, proof of a fiduciary duty requires an evidentiary showing of a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff." (Citation omitted; internal quotation marks omitted.) Golek v. Saint Mary's Hospital, Inc., 133 Conn.App. 182, 197, 34 A.3d 452 (2012). " All fiduciary relationships, to some degree, [require] confidence of one in another and a certain inequity or dependence arising from weakness of age, mental strength, business intelligence, knowledge of facts involved, or other conditions which give one an advantage over the other." (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 407, 721 A.2d 1181 (1998).
Whether a state marshal owes a fiduciary duty to a person subject to ejectment appears to be one of first impression. Our Appellate Court has recently held that, " under Connecticut law, municipal officers . . . do not owe a fiduciary duty to the public whom they serve except as may be imposed by statute under specific circumstances." Candlewood Hills Tax District v. Medina, 143 Conn.App. 230, 245, 74 A.3d 421, cert. denied, 310 Conn. 929, 78 A.3d 856 (2013). As, arguably, a state officer is entitled to greater immunity than a municipal officer, the court's holding appears applicable to a state marshal as well. Therefore, Martin, as a state marshal, does not owe a general duty to a member of the public, such as McLoughlin.
Nevertheless, § 49-22 and the order of ejectment both impose a fiduciary duty under specific circumstances. In this case, once Martin has exercised his discretion to store McLoughlin's property in a designated facility, he has assumed a duty to McLoughlin.
Here, as previously discussed, there is a genuine issue of material fact as to whether Martin exercised his discretion to store McLoughlin's property, and thus, there is a genuine issue of material fact as to whether Martin assumed a duty to remove McLoughlin's personal property to storage with the Town of Bristol. Furthermore, by notifying McLoughlin that he will remove her personal property to storage, Martin undertook to act for the benefit of McLoughlin, and he created a relationship with a unique degree of trust.
Thus, based on the evidence submitted by McLoughlin, Martin owed a fiduciary duty to her. At the very least, there is a mixed question of fact and law that cannot be resolved on summary judgment as to whether such a duty existed, making summary judgment inappropriate. The motion for summary judgment as to the fourth count is denied.
ORDER
The motion for summary judgment is denied.