Opinion
X04HHDCV146049524S
01-08-2016
Anthea Mendez et al. v. JPMorgan Chase Bank, N.A. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#438, #440, #443, #444)
David M. Sheridan, J.
This action arises from a series of events that occurred after the public sale of a foreclosed residential property in Windsor, Connecticut. The plaintiffs are the owner and mortgagor of the foreclosed property, Anthea Mendez, and her two sons who had resided with her at that location, Jordan Williams and DeNiro Edwards.
The defendants are JPMorgan Chase Bank, N.A. (" JPMC"), the holder of the note and mortgage and plaintiff in the foreclosure proceeding; Federal National Mortgage Association (" Fannie Mae"), which was to take possession of and eventually re-sell the foreclosed property; Asset Management Services, Inc. (" AMSI"), a provider of property management services that was retained to prepare the foreclosed property for re-sale; Re/Max Hometown (" Re/Max"), a real estate broker retained to prepare and list the property for re-sale; Debra Colli, a licensed real estate broker retained by Re/Max; Premier Property Preservation, LLC (" PPP"), a property preservation service that, among other things, was retained to clear the property of any belongings left behind or other debris; and David Karat, the principal of PPP.
Pursuant to the court's scheduling order, several of the parties have filed dispositive motions in advance of the trial of this matter.
By their motion filed August 31, 2105 [#444], the plaintiffs have moved for partial summary judgment as to liability only with respect to Count One (Trespass and Conversion), Count Eleven (Tortious Interference with Contract vs. JPMC), and Count Twelve (Tortious Interference with Contract vs. Fannie Mae).
By its motion filed August 28, 2015 [#440] JPMC has moved for summary judgment as to Count One (Trespass and Conversion), Count Two (Statutory Theft), Count Three (Negligence), Count Nine (Intentional Infliction of Emotional Distress), Count Ten (Negligent Infliction of Emotional Distress) and Count Eleven (Tortious Interference with Contract).
By its motion filed August 28, 2015 [#438] Fannie Mae has moved for summary judgment as to Count One (Trespass and Conversion), Count Two (Statutory Theft), Count Four (Negligence), Count Nine (Intentional Infliction of Emotional Distress), Count Ten (Negligent Infliction of Emotional Distress), and Count Twelve (Tortious Interference with Contract).
By its motion filed August 28, 2015 [#443] AMSI has moved for summary judgment as to Count One (Trespass and Conversion), Count Two (Statutory Theft), Count Six (Negligence), Count Nine (Intentional Infliction of Emotional Distress), and Count Ten (Negligent Infliction of Emotional Distress).
Although the defendants Re/Max, Colli, PPP and Karat did not file for summary judgment, they have filed memoranda in opposition to the plaintiffs' motion for summary judgment. [#495 and #498.]
All of the parties appeared and were heard at oral argument on October 19, 2015. Jury selection is scheduled to commence on February 3, 2016.
I. STANDARD OF REVIEW
The court begins by recognizing the well-known concept that " summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" The party moving 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 . . . 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 " Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). In reviewing the evidence offered, the court must " view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).
" In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). A material fact is one that would alter the outcome of the case. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14, 728 A.2d 1114 (1999) (citing Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)).
II. FACTS NOT IN DISPUTE
The following facts are not in genuine dispute and are necessary to the resolution of these motions.
On October 4, 2004, the plaintiff Anthea Mendez executed a promissory note in favor of Century 21 Mortgage in the principal amount of $296,000. The note was secured by a mortgage deed to Century 21 Mortgage on property located at 45 Derek Lane in Windsor. The mortgage was subsequently assigned to JPMC, which was also the holder of the note. After its purchase in 2004, Anthea Mendez resided at the 45 Derek Lane premises continuously through August 2013, along with the other plaintiffs, Jordan Williams and DeNiro Edwards.
On April 19, 2013, JPMC commenced a foreclosure action against the plaintiff Anthea Mendez as to the 45 Derek Lane property, captioned JPMorgan Chase Bank, N.A. v. Anthea Mendez, Judicial District of Hartford, Docket No. HHD-CV-13-6041076-S.
In August 2013, the plaintiffs vacated the 45 Derek Lane residence due to a flea infestation and moved to a rental property in South Windsor. The plaintiff Anthea Mendez entered into a one-year apartment lease and the plaintiff Jordan Williams enrolled in the South Windsor public school system. It appears undisputed that from August 2013 through the end of January 2014, the plaintiffs maintained their household and dwelling in South Windsor and did not reside at the 45 Derek Lane property.
On September 19, 2013, the trial court in the foreclosure action entered a default against Anthea Mendez for her failure to appear. JPMC thereafter moved for and was granted a judgment of foreclosure by sale on September 30, 2013, with a sale date set for January 11, 2014.
Pursuant to the trial court's judgment, a public sale of the defendant's property was held on January 11, 2014. JPMC was the sole bidder present at the sale and placed the winning bid. On January 14, 2014, Anthea Mendez retained legal counsel and filed a motion to open and vacate the judgment of foreclosure by sale. On January 29, 2014, the motion was denied.
Anthea Mendez appealed from the trial court's denial of her motion to open and vacate the judgment of foreclosure by sale. The appeal was dismissed. JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1 (2015).
On January 15, 2014, JPMC reported the results of the foreclosure sale to Fannie Mae, and Fannie Mae initiated its process of preparing the property for resale. Fannie Mae assigned AMSI as its field service vendor for property restoration and preservation services to be performed at the 45 Derek Lane property. AMS in turn retained PPP for cleaning and debris removal services--commonly referred to (by the plaintiffs and other parties to this matter) as a " trash out." Fannie Mae also retained Re/Max to assess, list and sell the property. Re/Max in turn contracted with Debra Colli, a licensed real estate broker, to post the property, inspect the property, determine the condition and occupancy of the premises, secure the property, and report back on her findings.
Colli first visited the 45 Derek Lane property on January 16, 2014, and taped a " Know Your Rights" notice to the door of the residence. The following day, January 17, 2014, Colli entered the residence, inspected the premises, and took photographs. Based on her observations, Colli reported to Fannie Mae that the property was not occupied.
On January 18, 2014 Colli returned to the 45 Derek Lane property with a locksmith and discovered the back door to the property was unlocked. She interviewed the neighbors, who told her that no one was living at the property and that there had not been anyone living there for quite some time.
Commencing on January 22 and continuing through January 24, 2014, workers from PPP conducted cleaning and debris removal services at the 45 Derek Lane property. They removed rubbish and remaining personal property from the home and discarded it, performed interior cleaning, winterization and snow removal.
In January of 2014, Massachusetts Homeland Insurance Company provided combined home and automobile insurance coverage for the 45 Derek Lane property as well as the plaintiffs' automobiles. On January 29, 2014 JPMC sent a letter to that insurer with reference to the Mendez policy, stating: " Please cancel the policy listed above. Since the foreclosure process has been completed, the insured no longer has an insurable interest in the property." On or around April 7, 2014, the plaintiffs received a notice of cancellation from Massachusetts Homeland Insurance Company, with the cancellation to become effective on May 28, 2014 at 12:01 A.M. The reason given by the insurer for the cancellation was: " We have been notified by J.P. Morgan Chase Bank that the home has been foreclosed."
The plaintiffs learned of the trash out when they inspected the property on February 1, 2014. Through their counsel they demanded that all activities at the property immediately cease.
The plaintiffs commenced this lawsuit by writ summons and verified complaint dated March 17, 2014. The operative complaint for purpose of this motion is the Plaintiffs' Third Amended Complaint dated August 5, 2015. [#420.]
III. ANALYSIS
A. Count One--Trespass and Conversion
1. Trespass and Conversion, Generally
" The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." Caciopoli v. Lebowitz, 131 Conn.App. 306, 316, 26 A.3d 136, 143 (2011) aff'd, 309 Conn. 62, 68 A.3d 1150 (2013). It is the right of the owner in possession to exclusive possession that is protected by an action for trespass. Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007). At common law, rights in real property--including the right to exclusive possession--can be abandoned. Compare, Glotzer v. Keyes, 125 Conn. 227, 232, 5 A.2d 1, 3 (1939), and cases cited therein. " To constitute abandonment, there must be an intention to abandon or relinquish accompanied by some act or omission to act by which such an intention is manifested." Brierley v. Johnson, 131 Conn. 675, 678, 42 A.2d 34 (1945). Proof of abandonment by a defendant would be inconsistent with any right in the plaintiff to exclusive possession of real property and would thus preclude liability for trespass.
" The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another to the exclusion of the owner's rights. Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 770, 905 A.2d 623 (2006). To establish a prima facie case of conversion, a plaintiff must demonstrate that (1) the material at issue belonged to the plaintiff, (2) that the defendant wrongfully 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 Am. Mktg. In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837, 848 (2004) aff'd, 276 Conn. 310, 885 A.2d 758 (2005). Abandonment of personal property by the owner is a complete defense to an action for damages for its conversion. See 18 Am. Jur.2d Conversion § 102, see also Sharkiewicz v. Lepone, 139 Conn. 706, 707-08, 96 A.2d 796, 797 (1953) (" most of the cases . . . concern the abandonment of [real] property rights, but personal property may also be abandoned"); Sullivan v. Delisa, 101 Conn.App. 605, 620-21, 923 A.2d 760, 771 (2007).
2. Plaintiffs' Motion for Summary Judgment as to Count One
The plaintiffs' motion for summary judgment as to Count One is denied. There are genuine issues of material fact as to the plaintiffs' claim of actual or constructive possession. The defendants contend that the plaintiffs abandoned the property, and support that contention with admissible evidence as to the circumstances surrounding the plaintiffs' leaving the property in August of 2013 and failure to return prior to the events of January 2014.
Abandonment is a question of fact to be decided in light of all the attendant circumstances. R.F. Daddario & Sons, Inc. v. Shelansky, 123 Conn.App. 725, 735, 3 A.3d 957, 964 (2010) . " While mere nonuse and lapse of time alone are not enough to constitute abandonment, they are competent evidence of an intent to abandon, and as such may be entitled to great weight when considered with other circumstances, and abandonment may be inferred from circumstances, such as failure by acts or otherwise to assert any claim to the right alleged to have been abandoned, or may be presumed from long continued neglect . . . The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances." Glotzer v. Keyes, 125 Conn. 227, 232, 5 A.2d 1, 3 (1939).
In the present case, the evidence on the question of abandonment is such that honest and reasonable persons could fairly reach different conclusions as to whether there was, or was not, an intention on the part of the plaintiffs to abandon the 45 Derek Lane residence and/or the items of personal property within. Therefore, the issue cannot be resolved by means of summary judgment and should properly be decided by the jury.
3. Defendants' Motions for Summary Judgment as to Count One
The motions for summary judgment as to Count One made by the defendants Fannie Mae, JPMC and AMSI are all based on three arguments: 1) the undisputed evidence shows that none of those defendants physically entered the property; 2) to the extent that other defendants (i.e., Re/Max and PPP) may have entered the property or converted personal property, they did so in the capacity of independent contractors and, as a general rule an employer is not liable for the torts of its independent contractors; and 3) the plaintiffs cannot establish ownership of the property allegedly converted.
Having considered the arguments of the parties and reviewed the materials submitted, summary judgment in favor of the defendants is denied as to Count One for the following reasons.
First, the mere fact that the moving defendants did not themselves physically enter the property does not preclude a finding of liability for trespass. See 75 Am.Jur.2d Trespass § 55 (" [a] person may be liable for causing someone else to commit a trespass. All persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid, or abet the commission of a trespass, or who approve of it after it is done, if done for their benefit, are co-trespassers with the person committing the trespass, and are liable as principals to the same extent and in the same manner as if they had performed the wrongful act themselves. Thus, although entry is a requisite of a trespass, one is also liable for causing a third person to do so, and a trespasser who did not personally and physically invade still may be liable for having caused or directed another person to trespass"); see also Munson v. Mallory, 36 Conn. 165 (1869) (in an action for trespass, " where a highway surveyor agreed to pay a person living on the road a certain sum for repairing it, and the person employed told the surveyor at the time that he should widen the road-bed at the point in question, and the surveyor assented to its being done, it was held that the act of the person widening the road was to be regarded as the act of the surveyor").
Within the intricate chain of contracts, communications, and authorizations leading up to and following the physical entry at the 45 Derek Lane property are multiple, genuine issues of material fact as to whether the moving defendants commanded, instigated, promoted, encouraged, advised, countenanced, cooperated in, aided, or abetted the entry, or approved of it after it was done, such that they might be deemed co-trespassers under the common law.
Second, while it is true that our Supreme Court has recognized as a general rule that the employer is not liable for the negligence of its independent contractor when the employer lacks control of the manner in which the independent contractor did the work, Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 825 A.2d 72 (2003), it has also acknowledged that there are exceptions to this general rule when an employer retains control of or supervises the work. Mozeleski v. Thomas, 76 Conn.App. 287, 292, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
There are genuine issues of material fact as to the nature and extent of control and supervision Fannie Mae, JPMC and AMSI exerted over the manner of doing the work at 45 Derek Lane. Under such circumstances, summary judgment is not appropriate. Pelletier v. Sordoni/Skanska Construction Co., supra, 517-18 (2003).
Finally, the court will not--indeed, cannot--evaluate the quality of plaintiffs' proof of ownership of the allegedly converted property. The plaintiffs' evidence may be, as the defendants JPMC and Fannie Mae suggest, " vague and ambiguous, " but weighing that evidence and concluding that it fails to satisfy the requisite burden of proof is not the function of a motion for summary judgment. The court's task is to determine the absence or presence of material issues of fact, not resolve them. " A judge's function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried." Mott v. Wal-Mart Stores E., LP, 139 Conn.App. 618, 631, 57 A.3d 391, 398 (2012).
B. Count Two--Statutory Theft
The defendants Fannie Mae and JPMC move for summary judgment on Count Two, repeating some of the arguments advanced in opposition to the claim of conversion in Count One, and adding the argument that the plaintiffs " have yet to establish facts which demonstrate that [the defendants] acted with an intent deprive them of the alleged personal property." (Fannie Mae's Memorandum [#439], p. 20; JPMC's Memorandum [#441], p. 18.)
" Intent may be inferred from the conduct of the parties. It is well established that the question of intent is purely a question of fact . . . Intent may be, and usually is, inferred from the defendant's verbal or physical conduct . . . Intent may also be inferred from the surrounding circumstances . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident . . ." (Citations omitted) Valencis v. Nyberg, 160 Conn.App. 777, 793, 125 A.3d 1026 (2015).
" A question of intent raises an issue of material fact, which cannot be decided on a motion for summary judgment." Picataggio v. Romeo, 36 Conn.App. 791, 794, 654 A.2d 382 (1995). An issue of fact " encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The defendants have failed to sustain their burden of showing the nonexistence of any disputed issue of fact as to the question of intent. The motions of Fannie Mae and JPMC for summary judgment as to the statutory theft claims in Count Two are therefore denied.
AMSI has also moved for summary judgment as to Count Two, contending that the undisputed fact that AMSI contracted out the trash-out services to PPP cannot be deemed as " evidence of intent to take control over plaintiffs' personal property. Since the plaintiffs have no evidence that AMSI took possession or control over their property, they certainly have no evidence of an intent by AMSI to deprive them of their property." (AMSI's Memorandum [#443], p. 8.) The court disagrees. Whether the facts and circumstances surrounding AMSI assigning the trash out services to PPP do, or do not, constitute evidence of an intent by AMSI to deprive the plaintiffs of property is a question of fact, to be decided by the jury. The AMSI motion for summary judgment as to the statutory theft claim in Count Two is therefore denied.
C. Counts Three and Four--Negligence against IPMC and Fannie Mae
JPMC's motion for summary judgment [#440] seeks summary judgment as to Count Three, while its memorandum in support of its motion for summary judgment [#441] refers to JPMC seeking " summary judgment as to Plaintiffs' negligence claim in Count Six" (see pp. 19-23). In a similar fashion, Fannie Mae's motion for summary judgment [#438] seeks summary judgment as to Count Four, while its memorandum in support of its motion for summary judgment [#439] refers to Fannie Mae seeking " summary judgment as to Plaintiffs' negligence claim in Count Seven" (see pp. 21-25). Both motions state that the operative complaint is dated August 5, 2015. [#420.] But Count Six of that complaint is a claim in negligence against defendant AMSI and Count Seven is a claim in negligence against defendants PPP and Karat. The court necessarily assumes this is an error and has applied the arguments to Count Three and Count Four of the August 5, 2015 complaint, which assert claims for negligence against JPMC and Fannie Mae, respectively.
JPMC and Fannie Mae move for summary judgment in their favor on the plaintiffs' negligence claims against them, supported by virtually identical arguments. Fannie Mae and JPMC maintain that the plaintiffs have failed to establish that they owed the plaintiffs a duty, or that they breached that duty, or that their conduct caused the plaintiff any injury. Specifically, they contend that " the Plaintiffs have failed to come forward with any specific facts or supportive evidence to establish who exactly caused that damage, an exact timeline of events, or how they occurred." (JPMC Memorandum [#441], p. 22, Fannie Mae Memorandum [#439], p. 24.)
Regarding the existence of a duty, the defendants Fannie Mae and JPMC were in the position of a party seeking to gain possession of mortgaged property by means of a foreclosure by sale with the intent to eventually re-sell that property. The plaintiffs were in the position of a mortgagor of the property being foreclosed as well as the presumed owners of personal property within the mortgaged premises. The plaintiffs contend, and have offered evidence to support that contention--that the relationship between the plaintiffs and the defendants Fannie Mae and JPMC created a duty on the part of the defendants, which was owed to the plaintiffs, to exercise reasonable care to " ascertain the lawful status of the property" before initiating a trash-out, and to use reasonable care in the handling and disposition of the plaintiffs' property. Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached. Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328-29, 107 A.3d 381 (2015). The ultimate test of any duty of care is found in the reasonable foreseeability of harm resulting from a failure to exercise care. Attardo v. Ambriscoe, 147 Conn. 708, 712, 166 A.2d 458 (1960).
In the context of this particular relationship between the parties, it seems self-evident that an ordinary person in JPMC or Fannie Mae's position, knowing what those defendants knew or should have known, would anticipate that harm of the general nature alleged (trespass, loss of personal property) was likely to result if care was not taken to first determine that the defendants possessed a legal right to enter the residence and remove or dispose of personal property. And clearly the public policy of this state would encourage the imposition of such a duty in order to encourage suitable respect for property rights and promote the peaceful, orderly repossession of foreclosed properties.
For these reasons, the court finds that a legally cognizable duty of care existed in connection with the conduct described in Counts Three and Four of the complaint. Sufficient evidence has been offered to present a jury question as to whether that duty was breached.
As to the question of causation, the defendants contend that there is no material question of fact as to causation because: 1) they did not physically enter the property; 2) they did not hire the vendors that conducted the trash-out; 3) they adhered to " well-established guidelines" in all their dealings with the property; and 4) evidence suggests that a back door to the residence was unlocked at the time Debra Colli first inspected the property.
These are factual arguments which, like virtually all of the questions of fact in this case, are disputed and cannot be resolved on a motion for summary judgment. " The question of proximate causation . . . belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Sapko v. State, 305 Conn. 360, 373, 44 A.3d 827 (2012). The defendants have failed to meet their burden of showing that a fair and reasonable finder of fact could reach only one conclusion and there is no room whatsoever for reasonable disagreement as to questions of causation. " The courts hold [the party moving for summary judgment] to a strict standard. 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." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
The motions for summary of Fannie Mae and JPMC as to the plaintiffs' negligence claims in Count Three and Four are denied.
D. Count Six--Negligence against AMSI
AMSI moves for summary judgment as to the plaintiffs' negligence claim in Count Six. The plaintiffs allege that AMSI, inter alia, owed a duty to the plaintiffs " to make reasonable efforts to (a) ascertain the status of the lawful ownership of the property [and] ascertain who was lawfully entitled to possession, (b) obtain confirmation that the foreclosure had been completed prior to taking any steps toward causing a trash out of the property to occur." (Complaint, Count Six, ¶ 87.)
AMSI maintains that it did not owe a duty to the plaintiffs. As an alternative argument, AMSI argues that if a duty was owed, AMSI cannot be liable for the tortious conduct of its independent subcontractors who actually performed the trash out. (AMSI's Memorandum, [#443], pp. 12-15.)
Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached. Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191-92, 74 A.3d 1278 (2013). " [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328-29, 107 A.3d 381 (2015).
Focusing on the facts in this particular case, AMS notes that Debra Colli reported the property as vacant and rekeyed and contends that " the harm alleged by the plaintiff is not foreseeable when AMS receives a work order for a property with no occupants and assigns that work order to a local company . . . Nobody from Premier contacted AMS to report an excess of $500 in personal property present at the property during the trash out . . . It is thus similarly not foreseeable to AMS that the plaintiffs' claims of losing hundreds of thousands of dollars in possessions would result from its assignment of the work order to an independent contractor." (AMSI's Memorandum [#443], p. 10.)
At the outset, the analysis of foreseeability does not focus on the specific set of facts actually known or not known by a particular defendant in a given situation. The test is not whether " one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 615, 783 A.2d 462, 470 (2001).
Moreover, these fact-based arguments cannot be resolved on a motion for summary judgment. Whether the injury is reasonably foreseeable ordinarily " becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." Ruiz v. Victory Properties. LLC, supra, 315 Conn. 330 (2015). This court cannot say with certainty that no fair and reasonable person would entertain the idea that the general harm alleged by the plaintiff's (trespass and loss of personal property) is reasonably foreseeable if a contractor hired to enter and perform work at a residential property does not first make efforts to ascertain the status of the ownership of the property.
Finally, as previously discussed in connection with the torts of trespass and conversion, liability for tortious conduct may be imposed upon an employer even if the alleged injury came as a result of the work of an independent contractor, if the employer retains control of or supervises the work. There are genuine issues of material fact as to the nature and extent of control and supervision AMSI exerted over PPP with regard to the entry and the trash-out at 45 Derek Lane. Under such circumstances, summary judgment is not appropriate. Pelletier v. Sordoni/Skanska Construction Co., supra, 517-18 (2003). The motion for summary of AMSI as to the plaintiffs' negligence claims in Count Six is denied.
E. Count Eight--CUTPA
The defendant JPMC moves for summary judgment as to the CUTPA claim in Count Eight. The arguments advanced in support of summary judgment are purely factual and would require the court to adopt JPMC's view of the evidence, rather than that of the plaintiffs. On a motion for summary judgment, the burden on the moving party is not to show that it has the better case, but rather that there are not, under any interpretation of the facts (plaintiffs' or defendants') any genuine disputes of any sort as to any material facts related to the claim as framed by the plaintiffs' complaint. See Mott v. Wal-Mart Stores E., LP, 139 Conn.App. 618, 626-27, 57 A.3d 391, 396 (2012). The defendant has not met this burden.
JPMC's motion for summary judgment is denied as to Count Eight.
F. Count Nine--Intentional Infliction of Emotional Distress
The defendants Fannie Mae, JPMC and AMSI all move for summary judgment as to the plaintiffs' claims for intentional infliction of emotional distress made in Count Nine. Essentially, the defendants argue: 1) that the plaintiffs cannot establish that the defendants intended to inflict emotional distress or that they knew or should have known that emotional distress was the likely result of their conduct; and 2) the conduct which the plaintiffs have alleged is not extreme and outrageous.
Extreme and outrageous conduct is an essential element in the tort of intentional infliction of emotional distress. " The threshold inquiry in an intentional infliction of emotional distress action is . . . whether the alleged behavior is sufficiently extreme and outrageous. This high bar for distasteful behavior has been described as requiring conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 86-87, 63 A.3d 1011 (2013). The standard in Connecticut to demonstrate extreme and outrageous conduct is " stringent." Gleason v. Smolinski, 319 Conn. 394, 494, n.14, 125 A.3d 920 (2015).
The wrongful conduct by the defendants which the plaintiff's claim is the cause of their emotional distress does not consist of particularly heinous, intentional acts. Rather, the plaintiff asserts that the defendants' ineptitude and failure to act led to the loss of many irreplaceable items of intrinsic personal value, and resulting emotional distress. (See, e.g., Plaintiffs' Memorandum [#504] at p. 32: JPMC " never took any action to correct its error"; Fannie Mae " did nothing to stop its contractors' work").
Many trial courts in Connecticut have found that such nonfeasance does not constitute extreme and outrageous conduct for the purposes of an intentional infliction of emotional distress claim. See Estate of Jackson v. Kos, No. NNHCV116019945S, 2012 WL 3641812, at *11 (Conn.Super.Ct. July 27, 2012) , and cases cited therein. The evidence produced by the plaintiff reveals nothing more than nonfeasance and careless disregard of the plaintiffs' property rights in the wake of the foreclosure sale. In general terms, the conduct that is alleged to have caused emotional distress is that the defendants and their contractors behaved as if the plaintiffs no longer owned the 45 Derek Lane property. Specifically, the plaintiffs' evidence, if believed, would establish that the defendants erroneously communicated to others (including the plaintiffs' insurance carrier) that the plaintiffs no longer owned the property, inadequately inquired or investigated as to occupancy of the property, entered the residence while it was unoccupied, changed the locks on the residence, failed to properly hire and supervise the contractors that conducted the trash-out, mishandled and possibly converted the plaintiffs' personal property, and then refused to disclose the identity of the persons removing the personal property or information regarding its disposition. This conduct, while it may form the basis for recovery under other tort theories, does not rise to the level of extreme or outrageous conduct as that concept has been articulated in the relevant case authority. Hence, it cannot be considered so atrocious as to trigger liability for intentional infliction of emotional distress.
Consequently, the motion for summary judgment is granted as to Count Nine.
Although not specifically argued by any of the defendants in connection with Count Nine, the fact that the plaintiffs seek recovery for emotional distress arising from the loss of personal property, a claim not recognizable under Connecticut law (discussed in connection with Count Ten), would provide an alternate ground for summary judgment as to Count Nine.
G. Count Ten--Negligent Infliction of Emotional Distress
The defendants Fannie Mae, JPMC and AMSI all move for summary judgment as to the plaintiffs' claim for negligent infliction of emotional distress on the basis that the plaintiffs seek recovery for emotional distress arising from loss of personal property, a claim not recognizable under Connecticut law.
In Myers v. Hartford, 84 Conn.App. 395, 402, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), the Appellate Court recognized that Connecticut law does not permit a cause of action for recovery for either negligent or intentional infliction of emotional distress based solely on damage to or loss of personal property. The Court stated, " [o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet. Therefore, by pleading only claims for intentional and negligent infliction of emotional distress, the plaintiff has not set forth a colorable common-law claim . . ." Id., 84 Conn.App. 402. The fundamental holding of Myers is that damage or destruction to property alone, no matter the extent of sentimental attachment to the property, cannot be the basis of recovery for emotional distress.
In Goldstein v. Rapp, No. CV104010224, 2010 WL 4353474 (Conn.Super.Ct. Oct. 15, 2010), the trial court, relying on Myers, struck a claim for negligent infliction of emotional distress based on facts similar to those in the present case. In Goldstein, the plaintiffs were lessees of an apartment that became the subject of a foreclosure action. The plaintiffs alleged that while the foreclosure action was pending, and thus while they still had the right to possession of the apartment, the defendant mortgagee and its agents locked them out of the apartment and removed or caused to be removed the plaintiffs' personal property. Among the items removed were family photographs, mementos, and a jar containing the cremated remains of the plaintiffs' father. The plaintiffs asserted a number of causes of action against the defendants, including a count for negligent infliction of emotional distress. The defendants moved to strike this count on the ground that Connecticut does not recognize a cause of action for negligent infliction of emotional distress arising from the damage or destruction of personal property. The court in Goldstein granted the motion, noting that " every Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property . . . These courts have reasoned that where the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress, and that distress, if it were caused, might result in illness or bodily harm." [WL] *5.
To avoid the effect of this general rule, the plaintiff's attempt to invoke an exception recognized in Huber v. Bakewell, No. DBDCV146015023S, 2015 WL 3973881 (Conn.Super.Ct. June 3, 2015) . Huber is easily distinguished. Huber, as well as the two cases it cites as precedent, Ginsberg v. Manchester Memorial Hospital, No. CV095030482S, 2010 WL 796841 (Conn.Super.Ct. Feb. 2, 2010), and Reich v. Spencer, No. HHDCV075012682S, 2010 WL 5573735 (Conn.Super.Ct. Dec. 10, 2010), all are based in factual situations where there was a " special relationship" and " vulnerable" plaintiffs which would make it foreseeable to the defendant that its conduct could cause emotional distress, and that distress, if it were caused, might result in illness or bodily harm. In Ginsberg and Reich, the defendants were charged with the care and custody of a deceased's remains. In Huber, the defendant was a conservator of the estate and person of appointed pursuant to a voluntary petition. There are no facts alleged here that would create any similar " special relationship" such that the exception recognized in Huber might apply.
The plaintiffs also suggest that the defendants' unauthorized entry into the 45 Derek Lane residence created a fear for the plaintiffs' health and safety and, hence, their negligent infliction of emotional distress claim has a dimension apart from the loss of property. The allegations of the complaint shape the court's inquiry on summary judgment. Vaccaro v. Shell Beach Condo., Inc., No. CV094050314S, 2015 WL 897294, at *14 (Conn.Super.Ct. Feb. 9, 2015). There are no factual allegations in the complaint that any plaintiff experienced " fear for health and safety" as a result of the defendants' conduct. The complaint alleges that the defendants conduct ultimately " resulted in the loss to the Plaintiffs of almost all of the Plaintiffs' personal possessions" (Complaint, ¶ 74), and nothing more.
Moreover, it appears to be undisputed that the plaintiffs had not resided in the 45 Derek Lane property for more than four months and were residing at an apartment in South Windsor at the time of the alleged unauthorized entry. Based on the established facts, for this court to infer that the alleged unauthorized entry was the cause of any " fear" on the part of the plaintiffs would be unreasonable and unwarranted, and would be little more than pure speculation. " Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . ." Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).
On this issue there are no genuine issues of fact in dispute: the plaintiffs' cause of action for negligent infliction of emotional distress is based solely on damage to property. Therefore, the defendants are entitled to judgment as a matter of law and summary judgment is granted as to Count Ten.
H. Counts Eleven and Twelve--Tortious Interference with Contract by JPMC and Fannie Mae
The plaintiffs move for summary judgment in their favor on their claims of tortious interference with contract in Counts Eleven and Twelve. Simultaneously, JPMC and Fannie Mae move for summary judgment in their favor on the claims in Counts Eleven and Twelve.
The claim for tortious interference with contract arises from a January 29, 2014 JPMC communication to Anthea Mendez's homeowners and automobile insurance carrier stating: " Please cancel the policy listed above. Since the foreclosure process has been completed, the insured no longer has an insurable interest in the property." Apparently as a result of that communication, on or about April 7, 2014, the plaintiffs received a notice from their insurer that the policy would be cancelled, effective May 28, 2014 at 12:01 A.M. The reason given by the insurer for the cancellation was: " We have been notified by J.P. Morgan Chase Bank that the home has been foreclosed."
The plaintiffs' memorandum is noticeably circumspect and bereft of details about the actual losses that occurred as a result of JPMC's communication. " Plaintiffs received a notice of cancellation from the Insurance Company, which would have been effective on 5/28/2014 at 12:01 A.M. EX. CCC (AM0532-0533)." (Plaintiffs' August 28, 2015 Memorandum [#459], Section C.ii, emphasis added). " Ms. Mendez suffered a loss in that she was unable to access and utilize the insurance proceeds to which she was entitled and she was forced to incur a substantial expenditure of time, effort and legal fees to get said policy reinstated." (Plaintiffs' August 28, 2015 Memorandum [#459], Section C.iii.) Exhibit CCC, the cancellation letter, indicates on its face that it was mailed on April 7, 2014 and that the cancellation was to occur on May 28, 2014. The plaintiffs have not offered any evidence to suggest that the policy was actually cancelled on May 28, 2014 (the wording of their memorandum to the effect that the cancellation " would have been effective" tends to suggest otherwise), nor have they made any effort to document any actual loss that resulted from the January 29, 2014 JPMC letter.
The pages of plaintiffs' August 28, 2015 " Memorandum of Law in Support of Motion for Partial Summary Judgment" [#459], are not numbered, as required by Practice Book Sec. 4-1(a), an omission which the court chooses to overlook.
The plaintiffs have failed to show any actual loss that they suffered as a result of the alleged " interference" by JPMC and Fannie Mae. The absence of any actual loss is fatal to their claim for tortious interference with contractual relations. See Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 214, 757 A.2d 1059, 1064 (2000).
For this reason, the plaintiffs' motion for summary judgment as to Counts Eleven and Twelve is denied. The motions for summary judgment by defendants JPMC and Fannie Mae as to Counts Eleven and Twelve respectively, are granted.
IV. CONCLUSION
The plaintiffs' motion for summary judgment [#444] is denied in its entirety.
The defendant JPMC's motion for summary judgment [#440] is granted as to Count Nine, Count Ten and Count Eleven, and denied as to all remaining counts.
The defendant Fannie Mae's motion for summary judgment [#438] is granted as to Count Nine, Count Ten, and Count Twelve, and denied as to all remaining counts.
The defendant AMSI's motion for summary judgment [#443] is granted as to Count Nine and Count Ten, and denied as to all other counts.