Opinion
No. TTD-CV-04-4000933-S
April 6, 2006
MEMORANDUM OF DECISION
In its four-count amended complaint against the defendant, Jennifer Long Cleaver, individually, and in her capacity as administratrix of the estate of Evelyn Pay Long (Cleaver), the plaintiff, Trinity United Methodist Church (Trinity United) alleges that in the case of Smith v. Trinity United Methodist Church of Springfield, Massachusetts, 47 Conn.Sup. 618, 821 A.2d 291 (2002), aff'd, 263 Conn. 135, 819 A.2d 225 (2003), it was determined that Trinity United was the owner of 329 and 337 Old Springfield Road in Stafford, Connecticut and that the defendant has acted in contravention of this decision with regard to the property. Specifically, Trinity United alleges that Cleaver continues to trespass on the land, has rented out the property and kept a large portion of the rental fees despite the fact that neither she nor the estate of Evelyn Pay Long owns the property. In count one, Trinity United seeks a declaratory judgment that it is the owner of the property and that the defendant has no right to exercise any dominion, control or possession over any portion thereof. In counts two, three and four, it alleges trespass, conversion and unjust enrichment, respectively.
The circumstances surrounding this matter have been in litigation in some form for approximately seven years. For a complete history of the circumstances and of the persons involved, please see Smith v. Trinity United Methodist Church of Springfield, Massachusetts, 47 Conn.Sup. 618, 821 A.2d 291 (2002), aff'd, 263 Conn. 135, 819 A.2d 225 (2003), and Trinity United Methodist Church v. Levesque, Superior Court, judicial district of Tolland, Docket Nos. CV 03 0082436 and CV 03 0082537 (May 13, 2004, Fuger, J.), aff'd sub nom. Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, 88 Conn.App. 661, 870 A.2d 1116, cert. denied, 274 Conn. 907, cert. denied, 274 Conn. 908 (2005).
In addition to filing an answer and special defenses, Cleaver filed a two-count counterclaim against Trinity United which she brought individually, and as administratrix of the estate of Evelyn Pay Long and as administratrix/trustee of the 1943 Enneking Long Resulting Trust. Therein, Cleaver alleges the following facts. In Trinity United Methodist Church v. Levesque, Superior Court, judicial district of Tolland, Docket Nos. CV 03 0082436 and CV 03 0082537 (May 13, 2004, Fuger, J.), aff'd sub nom. Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, 88 Conn.App. 661, 870 A.2d 1116, cert. denied, 274 Conn. 907, cert. denied, 274 Conn. 908 (2005), Trinity United was improperly awarded possession of the subject property because Cleaver was not part of that lawsuit and because Trinity United never had possession that it could recover in that summary process action. In addition, Cleaver claims that Trinity United has violated Connecticut's antitrust act by fraudulently claiming it has ownership of the property, by collecting rent payments from tenants of the property and otherwise exercising control of the property as if it owns the subject property.
Pending before the court is Trinity United's motion for summary judgment as to all four counts of the amended complaint and the two counts of the counterclaim. The grounds for this motion are that the property has previously been adjudicated as belonging to Trinity United and, despite this, Cleaver has continued to exercise dominion and possession of the property and indicates that she will not stop doing so.
In support of its motion for summary judgment, Trinity United claims that Cleaver is precluded from claiming that she owns the property through an oral trust based on the doctrine of res judicata. The plaintiff further argues as follows. The Levesque case is applicable to the present case despite Cleaver's assertions otherwise and she continues to raise futile claims despite previous litigation. A title search shows that Trinity United is the owner of both 329 and 337 Old Springfield Road in Stafford, Connecticut. Cleaver counters that Evelyn Pay Long never had title to the property and was merely a trustee of a resulting trust. Only the property located at 337 Old Springfield Road was at issue in the previous case involving Cleaver. The efficacy of the deed was the only issue in the Smith case and Trinity United may not now claim ownership. The Levesque case does not apply to Cleaver because she was not a party in that action. Finally, the defendant claims that Trinity United has violated Cleaver's civil rights as evidenced in her counterclaim.
The purpose of a motion for summary judgment is to resolve "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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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. To satisfy his burden the movant must make a showing that 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
I. Plaintiff's Amended Complaint, Count I: Ownership of the Subject Property
In its memorandum of law in support of the motion for summary judgment, Trinity United argues that ownership of the property has already been litigated and that the doctrine of res judicata prevents that issue from being relitigated in the present case. Cleaver counters that the decedent Evelyn Pay Long, had no title to give Trinity United since the property was held in a trust and that because Trinity United did not contest the issue of a trust in a prior case, it may not do so now.
"A declaratory judgment action is a special proceeding under General Statutes § 52-29, implemented by Connecticut Practice Book §§ 17-54, et seq. See Echo Four v. Hill, 3 Conn.App. 118, 122, 485 A.2d 926, cert. denied, 195 Conn. 801, 487 A.2d 564 (1985). `The purpose of a declaratory judgment action . . . is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties . . .' (Internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.2d 168 (1995)." Ducat v. Travelers Property Casualty Ins. Co., Superior Court, judicial district of New London, Docket No. CV03 0567333 (November 10, 2005, Hurley, J.T.R.) ( 40 Conn. L. Rptr. 260). A declaratory judgment may be used to determine title to real property. See Provenzano v. Provenzano, 88 Conn.App. 217, 870 A.2d 1085 (2005). "The sole function of a trial court in a declaratory judgment action is to ascertain the rights of the parties under existing law. See Preston v. Connecticut Siting Council, 21 Conn.App. 85, 89, 571 A.2d 157, cert. denied, 215 Conn. 805, 574 A.2d 221 (1990). `The court may address the merits of a declaratory judgment action upon a motion for summary judgment.' (Internal quotation marks omitted.) American Home Assurance v. Stamford Propane, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0149399 (March 7, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 352); see also United States Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 102 n. 3, 698 A.2d 914 (1997)." Ducat v. Travelers Property Casualty Ins. Co., supra, Superior Court, Docket No. CV 03 0567333 ( 40 Conn. L. Rptr. 260).
"A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) [t]here is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) [i]n the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." Practice Book § 17-55.
Practice Book § 17-56(b) states that "[a]ll persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof . . . The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof." "Except as provided in Sections 10-39 and 10-44, no declaratory judgment action shall be defeated by the nonjoinder of parties or the failure to give notice to interested persons. The exclusive remedy for nonjoinder or failure to give notice to interested persons is by motion to strike as provided in [§§]10-39 and 10-44." Practice Book § 17-56(c). Although Trinity United has not provided a certificate stating that all such interested persons were notified of this action, a motion to strike has not been filed on this basis. Therefore, this court will rule on the declaratory judgment even in the absence of a certificate of notice. See 37 Huntington Street v. City of Hartford, 62 Conn.App. 586, 592-93, 772 A.2d 633 (2001).
"[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993). In addition, "any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. "Because a counterclaim is a separate and distinct action . . . a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each." (Citations omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). Trinity United has sufficiently addressed this motion for summary judgment to the complaint and to Cleaver's counterclaim.
"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties . . . in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . To determine whether two claims are the same for purposes of res judicata, [the court would] compare the pleadings and judgment in the first action with the complaint in the subsequent action . . . [R]es judicata . . . is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceedings." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 671-72. Res judicata applies to "prior action[s] between the same parties or those in privity with them." Id., 671.
Trinity United has already been adjudicated to be the owner of the subject property and the defendant is now barred by res judicata from disputing ownership. In Smith, wherein Trinity United and Cleaver were parties, a four-count complaint was filed by the daughter, stepdaughter and grandson of Evelyn Pay Long, which stated, inter alia, that "Trinity United Methodist Church . . . claim[ed] an interest in the premises . . . which alleged interest and the means used to obtain the alleged interest [was] the subject matter of [that] complaint." ( Smith Complaint, dated February 25, 1998, count 1 ¶ 4.) In that complaint, Long's descendants prayed, inter alia, for the "[i]mposition of a resulting trust and/or constructive trust on any interest obtained by defendant [Trinity United] by way of [a] document recorded in Volume 326, Page 324, and an order to transfer any interest to the plaintiffs as their interests may appear." ( Smith Complaint, dated February 25, 1998, p. 9.)
Long's descendants (including the defendant herein), then moved for summary judgment on the ground that "the deed [was] as a matter of law unable to convey the right, title and interest in this land. [Long's descendants] argue[d] that a person cannot directly convey to herself a life interest when she is the owner of the fee in property." Smith v. Trinity United Methodist Church, Superior Court, judicial district of Tolland, Docket No. CV 98 0066324 (March 3, 2000, L. Paul Sullivan, J.) ( 26 Conn. L. Rptr. 263). In denying the motion, Judge Sullivan stated that "[i]t is obvious in the instant case that Evelyn [Pay] Long, as the freeholder had, and then retained seisin as the life tenant, and upon her death, the remainder, the unencumbered fee, would pass to the remainderman, the church." Id.
Subsequent to this denial of Long's descendants' motion, a decision was rendered on the merits by Judge Klaczak. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, supra, 47 Conn.Sup. 619. The issue was whether "a quitclaim deed of premises known as 337 Old [Springfield] Road in Stafford, Connecticut" from Evelyn Pay Long to Trinity United was valid. Id. More specifically, Long's descendants had claimed that the "quitclaim deed was a legal nullity, and therefore, invalid." Id. The quitclaim deed which transferred the premises known as 337 Old Springfield Road in Stafford, Connecticut was found to be valid. See id., 624. Despite Long's descendants' claim for a resulting and/or constructive trust to be instituted in that case, (Smith complaint, dated February 25, 1998, p. 9); one was never granted. Instead, the court, Klaczak J., found the subject quitclaim deed to be valid, that deed being an "executed . . . deed of premises known as 337 Old [Springfield] Road in Stafford, Connecticut." Id., 619.
This decision was later affirmed per curiam by the Connecticut Supreme Court. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, supra, 263 Conn. 135. The Supreme Court stated that it was adopting Judge Klaczak's memorandum of decision "as a proper statement of the issues and the applicable law concerning those issues." Id., 136.
"Trinity [United] thereafter went to take possession of the property, [wherein) it found there were tenants living" on the property whom had not rented the property from the church. Trinity United Methodist Church v. Levesque, supra, Superior Court, Docket Nos. CV 03 0082436, CV03 0082537 ( 26 Conn. L. Rptr. 263). Trinity United claimed "that the [tenants had] no right to occupy the property and [it sought] possession of the property." Id. In his decision, Judge Fuger made various findings of fact including: Trinity United was the record owner of 337 and 329 Old Springfield Road in Stafford, Connecticut; Trinity United "acquired title to both of these parcels by virtue of a [q]uitclaim deed executed by Evelyn Pay Long on February 28, 1995"; and that "Evelyn Pay Long became the record owner of the property by virtue of a [q]uitclaim deed executed by Enneking Waldron Long on March 30, 1943." Id. The tenants argued in that case that "Trinity [United] [could not] evict [them] because Trinity [United] [was] not the legitimate owner of the property." Id. Specifically, the tenants claimed that Evelyn Pay Long held the property in trust for the Long family and, therefore, "she never really held title to the property in her own right and could . . . never have conveyed it to Trinity [United] without breaching her fiduciary duty to the beneficiaries of the trust. Consequently, if Mrs. Long did hold the property in trust for the children, that would make the family the true owners of the property, not Trinity [United]." Id. Regarding this argument, the court found that the issue of a constructive trust [had] never been properly pled or placed before [that] court," and that even if such an issue was properly raised, it had previously been determined in Judge Klaczak's decision that Trinity United was the owner of the subject property, thereby making the issue of ownership res judicata. Id.
This decision by the court, Fuger, J., was later affirmed. See Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 661. On appeal, the defendant tenants stated that the court "incorrectly found that [Trinity United] was the owner of the subject premises." Id., 666. The court stated that "[a]s properly noted by the trial court, the Smith litigation established [Trinity United's] ownership of the property in question. Thus, the [tenants'] . . . claim that the court incorrectly found that a `mere paper chain of title' established ownership of the subject premises in [Trinity United] [was] entirely without merit. [Trinity United's] title to the property was litigated and determined previously in Smith." Id., 667.
The complaint instituted in the Smith case, a case in which Jennifer Long Cleaver was a plaintiff, claimed that one of the issues was Trinity United's "alleged interest" in the property and requested that the court create a constructive and/or resulting trust for the property in favor of Long's descendants. (See Smith complaint, dated February 25, 1998, count 1 ¶ 4.) Judge Klaczak did not put the subject property in trust for the plaintiff family members but instead concluded that the quitclaim deed to Trinity United was a valid deed. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, supra, 47 Conn.Sup. 624. In addition, the purpose of the suit, in the words of the Long's descendants, was to determine the "alleged interest" of Trinity United. (See Smith complaint, dated February 25, 1998, count 1 ¶ 4.) Based on the holding of that case, and because Jennifer Long Cleaver was a party to that action, she is barred by the doctrine of res judicata from now disputing the ownership of the property.
Moreover, in Levesque, the court found that the ownership of the property had already been litigated, the tenants were in privity with Long's descendants and, therefore, the tenants were barred by res judicata from relitigating this issue. See Trinity United Methodist Church v. Levesque, supra, Superior Court, Docket Nos. CV 03 0082436 and CV 03 0082537. On appeal, the court considered the tenants' claim that the "court incorrectly found that the [church] was the owner of the subject premises"; Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 666; and, instead, upheld the trial court's decision stating that "the Smith litigation established the [church's] ownership of the property in question." Id., 667.
It is the judgment of the trial court, if affirmed, that constitutes the final judgment for purposes of res judicata, not the decision of a higher court; see Beccia v. Waterbury, CT Page 6592 192 Conn. 127, 132, 470 A.2d 1202 (1984); as discussed above, Judge Klaczak determined Trinity United to be the owner of the subject property in the Smith litigation and Judge Fuger determined Trinity United to be the property owner in the Levesque litigation.
In her memorandum of law, Cleaver asserts that Evelyn Pay Long held the property as a trustee for the resulting trust of Enneking Long, therein disputing Trinity United's ownership of the property. This argument fails for two reasons. First, two trial courts, the Appellate Court and our state's Supreme Court have either found or upheld a finding that Trinity owns the property. Second, the issue of a trust was raised by Cleaver and other descendants of Long in Smith and the issue was raised by Cleaver's tenants in Levesque.
In Levesque, the trial court found that "the issue of a constructive trust ha[d] never been properly pled or placed before [that] court" although the issue had been raised. Trinity United Methodist Church v. Levesque, supra, Superior Court, Docket Nos. CV 03 0082436 and CV 03 0082537. On appeal, the tenants argued that the trial court had "incorrectly applied constructive trust concepts rather than those relating to a resulting trust." Trinity United Methodist Church of Springfield Massachusetts v. Levesque, supra, 88 Conn.App. 663. The Appellate Court refused to "determine whether the [trial] court misconstrued the alleged trust because, as the [trial] court noted, the [tenants] failed to offer any probative evidence at trial of the existence of any trust." Id., 670.
The Appellate Court entered into a lengthy discussion of the application of the doctrines of res judicata and collateral estoppel to the matter before it. The trial court "noted that the ownership of the property already had been the subject of litigation between [Trinity United] and those in privity with the [tenants] and, therefore, the [tenants] were barred by the doctrines of collateral estoppel and res judicata from presently asserting the existence of a trust." Id. The Appellate Court did not agree with the trial court that the tenants were collaterally estopped from asserting the existence of a trust "[b]ecause the trial court in Smith observed that Long's daughters and grandson had offered no evidence to dispute [Trinity United's] title to the property." Id. Instead, the Appellate Court determined that Trinity United could not claim collateral estoppel in that case ( Levesque) "because the issues litigated in [that] action [were] not identical to those actually litigated in the prior [ Smith] action" but that the tenants were "barred, by the doctrine of res judicata, from litigating [the issue of a trust] because the plaintiffs in Smith raised the issue and had a full opportunity to litigate it therein." Id., 671. Taking judicial notice of the complaint in Smith, which asked for the imposition of a resulting and/or constructive trust, the Appellate Court concluded that "[b]ecause the daughters and grandson of Long claimed an interest in the property through the existence of the 1943 trust in the Smith litigation and because the claim of the [tenants was] derived from the [descendants] of Long, the [tenants were] now precluded by the doctrine of res judicata from asserting the trust claim because the plaintiffs in Smith had a full and fair opportunity to litigate their trust claim." Id., 672-73.
Cleaver denies that the decision in Levesque applies to her because she was not a party to that case. "[R]es judicata precludes one from raising causes of action, facts or issues that either already were adjudicated or could have been litigated fully in a prior action between those same parties or those in privity with them." Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 671. "While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel [or res judicata] is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding . . . A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity . . ." (Citation omitted; internal quotation marks omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., supra, 236 Conn. 868.
In Levesque, the tenants asserted "that the daughters of Evelyn Pay Long . . . [were] the true owners of the property . . ." based on the Long Family trust. Trinity United Methodist Church v. Levesque, supra, Superior Court, Docket Nos. CV 03 0082436 and CV 03 0082537. The tenants in that case were: Geraldine St. Marie, Daniel Levesque, Joan Levesque and Brian Kelly. See id. In the present matter, Cleaver has admitted in her deposition that she rented the property to and collected rent from these tenants from approximately the year 2000 until the years 2004 (as to Geraldine St. Marie) and 2005 (as to the rest of the tenants). (Memorandum of law in support of plaintiff's motion for summary judgment [plaintiff's memorandum], Exhibit F, p. 20, ll. 3-13, p. 21, ll. 24-25, p. 23, ll. 15-25, p. 27, ll. 22-25.) The trial court and Appellate Court determined in Levesque that the tenants in that case were in privity with the Smith plaintiffs for the purposes of applying the doctrine of res judicata to their argument that the Long descendants through a purported trust, and not Trinity United, owned the subject property. See Trinity United Methodist Church v. Levesque, supra, Superior Court, Docket Nos. CV 03 0082436, CV 03 0082537; Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 672-73. For the purposes of applying res judicata to the present matter, this court finds that Cleaver was a party in Smith and was in privity with her tenants in Levesque and, therefore, is barred from raising the issue of ownership in this matter.
"In interpreting [the Appellate Court's] decision in Esposito v. Wethered, 4 Conn.App. 641, 496 A.2d 222 (1985), the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment . . . Since [its] decision in Esposito, [the Appellate Court has] not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment." Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, CT Page 6602 696 A.2d 340 (1997), and cases cited therein. Moreover, "[w]hile [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact" Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996).
Finally, Cleaver asserts in her affidavit attached to her memorandum of law in opposition to Trinity United's motion for summary judgment that the property at issue in Smith was only 337 Old Springfield Road and did not include 329 Old Springfield Road. This claim in her affidavit is based on the fact that Judge Klaczak's decision cites 337 Old Springfield Road and makes no mention of 329 Old Springfield Road. Trinity United asserts that the deed at issue in Smith included hot parcels of land.
Cleaver also appends a letter from Trinity United to Evelyn Pay Long, a handwritten note from someone at Trinity United, a notice from Trinity United dated June 4, 1995, and Trinity United's church bulletin to support her claim. None of these documents were authenticated in this case beyond Cleaver's assertion that these documents were put into evidence during the Smith case. "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
The transfer between Evelyn Pay Long and Trinity United was effected through a quitclaim deed dated February 28, 1995, and recorded in volume 326 at page 324 of the Stafford Land Records. (Plaintiff's reply to defendant's memorandum in opposition to plaintiff's motion for summary judgment [plaintiff's reply], Exhibit J.) The deed from Long states that the property address is 337 Old Springfield Road in Stafford, Connecticut and the property description describes two separate pieces of property. (Plaintiff's reply, Exhibit I, Exhibit J.) The first piece of land in the property description includes both Lots 15 and 16, while the second piece of land in the description is a small parcel of land to the west of Lots 15 and 16. (Plaintiff's reply, Exhibit I, Exhibit J.) Trinity United included an affidavit from a title searcher stating that the deed from Evelyn Pay Long includes Lots 16 and 15 which are 329 and 337 Old Springfield Road in Stafford. (Plaintiff's reply, Exhibit J.)
In her reply dated December 7, 2005, Cleaver asserts that 329 Old Springfield Road was quitclaimed to Robert Bruce Notman in 1949. She has attached a copy of a quitclaim deed from Evelyn Pay Long to Robert Bruce Notman. Interestingly, the plaintiffs in Smith also described that transaction in their brief submitted to the Connecticut Supreme Court in that case, but in that brief the plaintiffs indicated that "[a]bout ten years later, he conveyed the property back to [Long]." (Appellants' Brief at 5, Smith No. S.C. 16928.) That further description of the events which transpired in that transaction appears to have been omitted from discussion in the present case.
In Levesque, the Appellate Court took judicial notice of the complaint in Smith, citing to Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995), which stated: "There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties." Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 667 n. 3.
In Smith, Judge Klaczak indicated that the deed being interpreted in that case was a quitclaim deed from Evelyn Pay Long to Trinity United, dated February 28, 1995, for premises known as 337 Old Springfield Road in Stafford. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, supra, Superior Court, Docket No. CV 98 0066324. In the Smith complaint, the Long descendants wished to cancel the document recorded in volume 326 at page 324 of the Stafford land records or create a resulting or constructive trust for the property referenced in the document at that volume and page number. ( Smith complaint, dated February 25, 1998, p. 9.) As indicated above, the document recorded in volume 326 at page 324 is the deed from Evelyn Pay Long to Trinity United for, inter alia, lots numbered 15 and 16. Although the deed itself, and Judge Klaczak's decision, reference 337 Old Springfield Road, the deed description encompasses 337 and 329 Old Springfield Road and this was the property description that was before Judge Klaczak and is now presently before this court. Moreover, in Levesque, the trial court determined that both parcels were owned by Trinity United and ordered judgment of possession in favor of the church. Trinity United Methodist Church v. Levesque, supra, Superior Court, Docket Nos. CV 03 0082436, CV 03 0082537. This ownership was affirmed by the Appellate Court. Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 667. In light of these facts, Cleaver has not presented anything to this court which would raise an issue of fact as to which property was adjudicated in previous litigation.
For all the foregoing reasons, Trinity United's motion for summary judgment is granted as to count one of its amended complaint.
II. Plaintiff's Amended Complaint, Count II: Trespass
The plaintiff argues in its memorandum in support of its motion for summary judgment that Cleaver has continued to trespass on the property by going onto the property, renting out the property and by ordering Trinity United representatives off of the property, all despite Trinity United's ownership of the property. Cleaver counters that Trinity United does not own the property but, instead, the property is owned by the Long family trust.
"In order to recover on a claim for trespass under the common law, a plaintiff must show `ownership or possessory interest in property; the physical invasion, entry or intrusion by defendant which affects the plaintiff's possessory rights; intent to do that which causes the invasion and a direct injury to the plaintiff's property.' Caltabiano v. Jimmo, Superior Court, judicial district of Middlesex, Docket No. CV 93 0068929 (May 5, 1995, Higgins, J.), quoting Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916)." Zemke v. Edson, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274036 (April 28, 2005, Wiese, J.). In addition, to maintain an action for trespass, a plaintiff must allege "that it has title to and possession of [the] land." Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 838, 826 A.2d 1102 (2003). "Since trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail . . . Proof of its title and the absence of actual, exclusive possession by another are sufficient to show constructive possession in the plaintiff." Wright v. Wright, Superior Court, judicial district of New Haven, Docket No. CV 04 4000024 (May 27, 2005, Levin, J.). Direct injury to the property may come "in the form of intruding upon [a] plaintiff's use of their own property." Agnello v. Urbano, Superior Court, judicial district of New Haven, Docket No. CV 00 0273689 (October 22, 2002, Gilardi, J.).
As it has been discussed above, Trinity United was adjudicated to be the owner of the property. (See Section I.) Cleaver has also physically invaded, entered or intruded on the property, therein affecting Trinity United's possessory rights, and has shown her intent to cause such invasion. Cleaver has put "no trespassing" signs on the subject property. (Plaintiff's memorandum, Exhibit D, ¶¶ 11, 13, Exhibit F, p. 33.) Cleaver ordered two members of Trinity United off of the property and then had them removed from the property by the state police. (Plaintiff's memorandum, Exhibit D, ¶¶ 14, 16, Exhibit F, pp. 37-39.) Cleaver has promised to repeat such actions in the future should representatives from the church come onto the property again. (Plaintiff's memorandum, Exhibit F, p. 39.) Cleaver has rented the property out to tenants and has collected rent from these tenants; (see plaintiff's memorandum, Exhibit F, pp. 20-21, 23, 27, 29-30); without Trinity United's permission to do so. (Plaintiff's memorandum, Exhibit D, ¶ 5.) Cleaver states that she has gone on the property daily since 1997. (Plaintiff's memorandum, Exhibit F, p. 35.) The direct injury suffered here is the inability of Trinity United to use its property. As described above, Cleaver has had members of Trinity United removed from the property, has rented out the property thereby causing Trinity United to institute eviction proceedings to remove the tenants, has placed "no trespassing signs" on the property and has promised to continue to eject Trinity United members from the property in the future. Moreover, in response to a request for admission directed toward her, Cleaver denies that she has no right to "exercise any dominion, possession or control" of the property and denies that she has no title to the property. (Plaintiff's memorandum, Exhibit E, p. 2.)
Despite the foregoing, Trinity United's motion for summary judgment as to count two must fail because it neither asserts or shows actual or constructive possession. In its amended complaint, Trinity United states that without an injunction from the court it is "unable to take actual possession of said [p]roperty"; (amended complaint, p. 4); and it has not made any assertions as to whether it has constructive possession of the property.
For the foregoing reasons, Trinity United's motion for summary judgment is denied as to count two of its amended complaint.
III. Plaintiff's Amended Complaint, Count III: Conversion
Trinity United argues in its memorandum of law in support of its motion for summary judgment that Cleaver has committed conversion by renting out the subject property which she does not own, accepting rental payments and turning over only a fraction of what she took in as rent to Trinity United. Cleaver counters, in essence, that Trinity United does not own the property.
"Conversion 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.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 329, 825 A.2d 703 (2004). "To establish a prima facie case of conversion, the plaintiff [has] 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 (2004), aff'd, 276 Conn. 310 (2005).
As stated above, Trinity United was adjudicated to be the owner of the property in the Smith case. In her deposition, Cleaver admitted to renting out the property to various tenants and collecting rent and security deposits from these tenants. (Plaintiff's memorandum, Exhibit F, pp. 20-21, 23-30.) Cleaver also admitted that she did not give this rental income to the church, (plaintiff's memorandum, Exhibit F, p. 37); aside from the rental income Judge Fuger ordered be paid to Trinity United during the pending appeal in the Levesque case, (plaintiff's memorandum, Exhibit F, p. 22); which totaled $5,580.17. (Plaintiff's memorandum, Exhibit D, p. 3, Exhibit H.) Moreover, "Trinity United never authorized the [d]efendant to rent any portion of the [p]roperty." (Plaintiff's memorandum, Exhibit D, p. 2.) Cleaver's conduct harmed Trinity United inasmuch as she rented out the property and accepted rental income while providing Trinity United with only a fraction of what she collected. (Plaintiff's memorandum, Exhibit D, pp. 2-3, Exhibit F, pp. 20-21, 23-30, 37.)
For the foregoing reasons, Trinity United's motion for summary judgment is granted as to count three of its amended complaint.
IV. Plaintiff's Amended Complaint, Count IV: Unjust Enrichment
Trinity United argues in its memorandum in support of its motion for summary judgment that Cleaver was unjustly enriched inasmuch as she has collected rent income from renting out the subject property, which she does not own, and has turned over only a portion of the income she collected to Trinity United. Cleaver counters, in essence, that Trinity United does not own the property.
"A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 194, 880 A.2d 945 (2005). "Furthermore, the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court . . ." (Internal quotation marks omitted.) Id. "[An unjust enrichment claim] is an action in quasi contract, i.e., an obligation, arising by law, on which the same remedy is given as would be given if the obligation arose out of contract . . . Although the right of recovery is based on equitable principles, it is nevertheless an action at law, the purpose of which, is to prevent unjust enrichment . . . The only remedy is an award of money damages." (Internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn.App. 436, 441, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004).
From approximately 2000 to 2005, Cleaver collected rent from various tenants. (Plaintiff's memorandum, Exhibit F, pp. 20-21, 23-30.) Trinity United had not authorized Cleaver to rent out the property to tenants and only a portion of the money which Cleaver collected was turned over to Trinity United. (Plaintiff's memorandum, Exhibit D, pp. 2-3, Exhibit F, pp. 20-21, 23-30, 37.) Cleaver has been unjustly enriched inasmuch as she has benefited from her collection of rental income, from property that she did not own and was not authorized to rent and she has given only a portion of that income to Trinity United.
For the foregoing reasons, Trinity United's motion for summary judgment is granted as to count four of its amended complaint.
Trinity United has also requested it be awarded a monetary sum constituting the total amount of funds converted by Cleaver. This court must decline to do so at this time. Trinity United has presented an affidavit from Edward Lindberg, an active member of the church, claiming that the church is due certain exact amounts of rental income. By Cleaver's own deposition testimony, there is some uncertainty as to precisely when certain rental periods began and ended and precisely how much rental income Cleaver retained. (Plaintiff's memorandum, Exhibit F, pp. 20-21, 23-30, 37.) Therefore, there still exists an issue as to the exact amount of rental income Cleaver took in and retained.
V. Counterclaim, Count I
Cleaver argues in count one of her counterclaim that Trinity United, through its agents and attorneys, violated her fourteenth amendment due process and equal protection rights while acting under the summary process statutes of Connecticut, thereby causing the court to violate the statutes of this state and the doctrine of separation of powers because Cleaver was not a party to the summary process actions and because the church never had possession pursuant to which it could recover under General Statutes § 47a-26d. Trinity United counters in its memorandum of law in support of its motion for summary judgment that Cleaver's counterclaim has no basis in law or fact and involves issues which have already been adjudicated in Trinity United's favor.
In Levesque, the trial court found that Trinity United was the owner of the property and ordered judgment of possession in favor of Trinity United. Trinity United Methodist Church v. Levesque, Superior Court, Docket Nos. CV 03 0082436, CV 03 0082537. Thereafter, the Appellate Court stated that the trial court had properly noted that "the Smith litigation established [Trinity United's] ownership of the property in question." Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, supra, 88 Conn.App. 667. As stated above, this court has found that Trinity United is the owner of the property. Because Cleaver is not the owner of the property and had no authority to rent it out, Cleaver's claim that Trinity United violated her due process and equal protection rights is without merit.
For the foregoing reasons, Trinity United's motion for summary judgment is granted as to the first count of the counterclaim.
VI. Counterclaim, Count II
Cleaver argues in count two of her counterclaim that Trinity United has violated Connecticut's antitrust act by restraint of trade or commerce. Trinity United counters in its memorandum of law in support of its motion for summary judgment that Cleaver's counterclaim has no basis in law or fact and involves issues that have already been adjudicated in Trinity United's favor.
The second count to the counterclaim is based on the premise that Trinity United does not own the property and that the actions of its members and agents with regard to the church's own property have violated Cleaver's rights. As set forth above, it has already been determined that Trinity United, not Cleaver, has ownership of the property.
For the foregoing reasons, Trinity United's motion for summary judgment is granted as to the second count of the counterclaim, which count is based on the assumption that Cleaver is the rightful owner of the property, because Trinity United has been adjudicated to be the rightful owner of the property.
CONCLUSION
Accordingly, Trinity United's motion for summary judgment is granted as to counts one, three and four of the amended complaint and as to both counts of the counterclaim. The motion for summary judgment is denied as to count two of the amended complaint.