Summary
In Yarbrough v. Demirjian, 17 Conn. App. 1 (1988), by comparison, a second action sounding in summary process was not dismissed, where the relief sought in the first case was specific performance of a bond for deed. Although Pepe and Yarbrough are factually similar, a distinction seems to lie in the magnitude of the differences in the remedies sought in the two cases.
Summary of this case from Ofshay v. Christy's Market, Inc.Opinion
(6311)
The plaintiff sought, by way of a summary process action, to recover possession of certain property occupied by the defendant. The defendant claimed that he occupied the premises under a bond for deed he had entered into with the plaintiff and was, therefore, by statute ( 47a-2), not subject to a summary process action. The trial court rendered judgment in favor of the plaintiff, and the defendant appealed to this court. Held that the trial court's determination that the defendant's possession of the subject premises was not pursuant to the bond for deed was supported by the evidence and was not clearly erroneous.
Argued September 20, 1988
Decision released November 1, 1988
Summary process action, brought to the Superior Court in the judicial district of Middlesex, geographical area number nine, and tried to the court, Koletsky, J.; judgment for the plaintiff, from which the defendant appealed to this court. No error.
Alfred J. Onorato, with whom, on the brief, was Vincent J. Dooley, for the appellant (defendant).
Jean M. D'Aquila, with whom, on the brief, was Michael J. Gustafson, for the appellee (plaintiff).
The plaintiff instituted a summary process action to recover possession of her residence which the defendant had been occupying. The defendant appeals from a judgment rendered in favor of the plaintiff. The dispositive issue is whether the trial court erred in concluding that an oral lease existed between the parties. We find no error.
The trial court found the following facts. The parties had been close friends for a number of years. On June 27, 1980, the parties executed a bond for deed providing for the sale of premises owned by the plaintiff in Middletown. The purchase price was $70,000; the defendant paid $39,000 as a downpayment, leaving a balance of $31,000 due at the time of the transfer of title. The bond for deed provided that the closing would take place on or before January 1, 1982. The closing, however, never occurred. After execution of the bond for deed, the plaintiff returned to Texas and her two children occupied the premises from June, 1980, to November, 1983. During that time, the plaintiff's children paid the mortgage, interest and taxes on the property in lieu of paying rent. The defendant moved onto the premises in November, 1983, pursuant to an oral agreement with the plaintiff. During his possession of the premises, the defendant also paid the mortgage, interest and taxes.
On December 10, 1986, the defendant was served with a notice to quit possession. In his special defenses to the action, the defendant maintained that he had entered the premises pursuant to the bond for deed, thereby precluding a summary process action under General Statutes 47a-2. In addition, the defendant argued that the summary process action was barred due to the pendency of his suit against the plaintiff for specific performance of the bond for deed. This argument relies on the principle that two suits should not be brought for the determination of a matter between the same parties when that determination can be properly and effectually made in one suit. See Cahill v. Cahill, 76 Conn. 542, 548, 57 A. 284 (1904).
General Statutes 47a-2 provides in pertinent part: "[T]he following arrangements are not governed by this chapter and sections . . . 47a-23 to 47a-23b . . . (2) occupancy under a contract of sale of a dwelling unit or the property of which such unit is a part, if the occupant is the purchaser or a person who succeeds to his interest . . . ."
The trial court's finding that the defendant's occupancy of the premises was pursuant to an oral lease, rather than under the bond for deed, is dispositive of this appeal.
"Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ." Davis v. Naugatuck, 15 Conn. App. 185, 188, 543 A.2d 785 (1988); see also Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Our review of the record indicates that the trial court's determination that a landlord-tenant relationship existed between the parties is sufficiently supported by the evidence and is not clearly erroneous. Accordingly, the trial court did not err in rendering judgment for the plaintiff.
Because the relationship between the parties was one of landlord and tenant, the plaintiff was correct to bring a summary process action to recover possession of the premises. Scinto v. Bridgeport Cash Carry, Inc., 38 Conn. Sup. 514, 516, 452 A.2d 940 (1980). Summary process is aimed at deciding the simple question of who is entitled to possession. Urban v. Prims, 35 Conn. Sup. 233, 236, 406 A.2d 11 (1979). In seeking specific performance of the bond for deed, the defendant claims that he has an enforceable right to the title to the premises. The two suits clearly did not seek a determination of the same issue.