Summary
applying parallel provision of Connecticut Rules of Professional Conduct to find attorney-client agreement for business property in exchange for legal services unenforceable in absence of writing
Summary of this case from Mursten v. CaporellaOpinion
No. CV04-400517S
August 23, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendants have filed a motion for summary judgment as to counts two and eight, count one, and counts six and seven.
Count two alleges that Frank Kolb, an attorney, established Alexandria Estates, a limited liability company, he then resigned and appointed a defendant Elizabeth Mazzucco, as a member. Paragraph 42 then states:
42. That as a consideration for the right to purchase the property being forwarded and as a bonus for legal services rendered, business planning services and for legal services rendered to the defendants the individual plaintiff, Frank J. Kolb, Jr. and/or Kolb Associates, P.C., was to receive one of the lots to be subdivided at the actual cost of said lot to Alexandria Estates for the development thereof without a house constructed thereon, more particularly described as shown on Exhibit B attached hereto.
Paragraph 43 goes on to allege that neither Attorney Kolb or Kolb Associates have received the lot and the plaintiff professional corporation has not been paid for its legal services.
Counts one and eight are related. Count one alleges that Frank and Karen Kolb each own a one-half undivided interest in 8 Erico Drive, East Haven. The three Mazzucco defendants live at 12 Erico Drive. The Kolbs acquired their interest in 8 Erico Drive on May 9, CT Page 11768-da 1997. Elizabeth Mazzucco acquired a parcel of land or strip of land which abuts the Kolb property on October 5, 1999. Dale Construction Inc. with the Mazzuccos as officers did construction and grading work on the Kolb property which included underground plumbing and the construction of a driveway. This work was done before Elizabeth Mazzucco acquired title to 12 Erico Drive. Count one goes on to allege that since May 2004 the Mazzucco defendants "caused said portion of said property to become unusable and disconnected the plumbing pipes" (apparently referring to the Kolb property), paragraph 35.
Paragraph 37 then goes on to allege the Kolbs "have been deprived of the use of their property in that portion of the land as shown on Exhibit A (attached to complaint) as well as the disturbance of the lateral support for their property and destruction of irrigation and sewer piping."
The eighth count alleges in relevant part:
39. The premises currently owned by the individual plaintiffs was formerly reserved by the individual defendants, Ronald and Elizabeth Mazzucco, for their purchase.
40. That Ronald and Elizabeth Mazzucco released their interest in the property to Grannis Lakes Estates so that Grannis Lakes Estates could sell said premises to the plaintiffs.
41. The defendants were responsible for the positioning of the individual plaintiffs' home upon said lot.
42. Said home was placed in such a position that in order to gain access to the property by safe vehicular and safe pedestrian entrance to the premises they would be required to utilize that piece of land as is shown on Exhibit A.
43. The individual plaintiffs acquired their property upon the representations of the defendants that it was recognized that across that piece of parcel of CT Page 11768-db land herein as Exhibit A.
44. The plaintiffs claim an easement in and over that piece of parcel of land herein as Exhibit A.
Counts six and seven are also related. The allegations of count two are incorporated and then several corporations, LLCs and a partnership are listed in paragraph 46 of count six. Previous allegations indicate that the sole member or members of some of these businesses is one or more of the individual defendants, or the defendants are corporate officers.
Each of the business entities are claimed to owe the plaintiffs for legal services. Paragraph 49 alleges that the defendants Elizabeth, Ronald, and Benjamin Mazzucco "have been protected from personal liability for their failure to pay the plaintiffs for services rendered by the corporate veil provided to them by their many corporate entities." Paragraph 50 alleges Attorney Kolb and his professional corporation have been damaged by the individual defendants "total control and domination of the defendant entities" to which legal services have been rendered.
Count seven then makes the following allegations revolving around the services rendered to "the defendant legal entities."
51. At all times relevant, such a unity of interest and ownership existed with respect to the defendants' Ronald Mazzucco, Elizabeth Mazzucco and Benjamin Mazzucco's legal entities herein named as defendants, that the independence of these defendant entities had never begun.
52. At all times relevant, the defendants, Ronald Mazzucco, Elizabeth Mazzucco and Benjamin Mazzucco were the sole owners and parties in interest with regard to the defendant legal entities names herein.
53. At all times relevant, the defendants Ronald Mazzucco, Elizabeth Mazzucco and Benjamin Mazzucco attempted to escape liability arising out of transactions entered into by the defendant legal entities for the benefit of their whole business enterprise.
54. At all times relevant, the plaintiffs, Frank J. Kolb, Jr. and Kolb Associates, P.C. provided legal services to the defendant legal entities named CT Page 11768-dc herein.
55. Outstanding balances for legal services rendered exist with respect to each of the defendant entities named herein.
The motion for summary judgment is directed against the foregoing counts only. The standards to be applied in deciding such a motion are well-known. Disputed issues of fact bar the granting of such a motion since parties are entitled constitutionally to a jury trial. On the other hand where no such disputed issues exist and the motion is otherwise meritorious it should be granted to avoid the expense and burden of litigation that is not merited.
Count Two
The defendants' motion argues that this count be dismissed for either of two reasons (1) the plaintiffs' claim to an interest in Alexandria Estates is barred by the Statute of Frauds § 52-550 of the General Statutes and/or (2) the claim is barred by Rule 1.8(a) of the Rules of Professional Conduct. The court will discuss each of these arguments separately.
(1.)
Section 52-550 in relevant part reads that "no civil action may be maintained in the following cases unless the agreement or a memorandum of the agreement is made in writing and signed by the party . . . to be charged . . . upon any agreement for the sale of real property or any interest in or concerning real property." The defendants quote from the case of Breen v. Phelps, 186 Conn. 86, 92 (1982). "To comply with the statute of frauds an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself without the aid of parole proof, or from a reference therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it, and the parties to it, so as to furnish evidence of a complete agreement." This comports with the very reasons we have the statute of frauds: (it is) to formalize dealings in land so as to avoid the inexactness and possible abuses in proving oral land contracts," Harris v. Sentry Title Co, Inc., 715 F.2d 941, 948 (CA5, 1983). The defendants have not submitted any affidavits or other documentation to the effect that they entered into written agreements concerning this land, cf. Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363 (1986) which held such filings are necessary under summary judgment procedure (Practice Book § 17-45); also the CT Page 11768-dd complaint makes no reference to a written agreement. Furthermore the plaintiffs' reply brief concedes there was no written agreement as will be discussed shortly. That is an admission regarding this evidentiary factor and admissions of various types are considered in summary judgment procedure, see Wason v. Myer, 2003 WL 178846 (2003), Orenstein v. Old Buckingham Corp., 205 Conn. 572 (1987); cf. Moyer v. Travelers Cos., 16 Conn. L. Rptr. 4 (1995); Live Wire Inc. v. Southwire Co., 23 Conn. L. Rptr. 644 (1998).
The plaintiffs' brief in opposition to the motion argues that "simply because there was no written contract exists" reflecting the parties' agreement as to a lot owned by Alexandria Estates "does not automatically bar the plaintiffs' claims under the statute of frauds" Jacobs v. Thomas, 26 Conn.App. 305 (1991) is cited: "An agreement for a joint enterprise in the nature of a copartnership which has for its purpose the purchase, improvement, of real estate for the profit arising therefrom . . . is not within the statute (for frauds)," id. page 309; Pohronezry v. Wilcox, 2004 WL 1832965 is also cited.
Without benefit of affidavit or other documentation the plaintiffs in their brief proceed to refer to the allegations of their complaint to argue that they fit in the requirements of Jacobs and Pohronezny and so can avoid the statute of frauds. As noted in the commentary to P.B § 17-45 by Horton Knox in the volume on Connecticut Practice "mere assertions of fact or conclusions cannot refute evidence properly presented in support of a motion for summary judgment," id. page 792. Furthermore, in their second count the plaintiffs fail to sufficiently plead a joint enterprise theory.
The question remains should summary judgment be granted on the foregoing grounds. The case of Egri v. Foisie, 83 Conn.App. 243 (2004) leads the court to believe that this statute of frauds challenge to count two should be treated as a motion to strike. Although Egri was addressing a motion to dismiss, the principle set forth there applies to a motion for summary judgment which, if granted, dismisses the action. Egri said "there is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." The same can be said here on the statute of fraud claim. The defendants are really stating the latter proposition — the plaintiffs have not stated a viable cause of action in light of the statute. On occasion in their two well-reasoned briefs it is candidly stated that the complaint fails, for example to refer to a written agreement or the complaint fails to set forth a joint enterprise exception to the statute of frauds. CT Page 11768-de
On the statute of frauds claim the court would treat this motion as a motion to strike and strike count two for the reasons stated.
(2)
But the attack on count two is not confined to a statute of frauds challenge. As noted the plaintiffs claim to an interest in the lot in Alexandria Estates is barred by Rule 1.8(a) of the Rules of Professional Conduct.
In relevant part Rule 1 .8 states that a lawyer shall not enter into a business transaction with a client unless several conditions are met:
(a) A lawyer shall not enter into a business transaction, including investment services, with a client or former client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client or former client unless:
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client or former client and are fully disclosed and transmitted in writing to the client or former client in a manner which can be reasonably understood by the client or former client;
(2) The client or former client is advised in writing that the client or former client should consider seeking the advice of independent counsel in the transaction and is given a reasonable opportunity to do so;
(3) The client or former client consents in writing thereto;
(4) With regard to a business transaction, the lawyer advises the client or former client in writing either (A) that the lawyer will provide legal services to the client or former client concerning the transaction, or (B) that the lawyer will not provide legal services to the client or former client and that the lawyer is involved as a business person only and not as a lawyer representing the client or former client and that the lawyer is not one to whom the client or former client CT Page 11768-df can turn for legal advice concerning the transaction; and
The requirement as to the client being advised in writing and giving consent in writing would appear to be mandatory rather than directory. The very purpose of these requirements is to protect the client, cf. Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 480 (1991). Our rule is basically the same as Model Rule 1.8 of the Rules of Professional Conduct. The reasons for the model rule dictate why Rule 1.8 requirements should be mandatory. In the Law of Lawyering, 3d ed. Vol. 1, Hazard Hodes § 12-4, page 12-11 commenting on the model rule it says:
Although it has been said that `there are no transactions that courts will scrutinize with more jealousy than dealings between an attorney, and his (her) client,' neither the common law nor rules of professional ethics prohibit such transactions outright. The safeguards are stringent, however, and include no fewer than three requirements of a writing.
Hazard and Hodes go on to say:
the attorney-client relationship may have put the lawyer on a unique position to understand the client's business and to be aware of special risks or opportunities as a result of his (her) familiarity with the legal context of the transaction. His unique position may lead to client claims of fraud or overreaching by the lawyer; the requirements of the Rule are designed to minimize such eventualities.
The eventualities to be avoided by requirements such as the writing requirement include not only wrongdoing by lawyers but just as importantly false claims of wrongdoing by clients. In light of these important purposes common sense dictates that the writing requirements of our rule should be interpreted as mandatory. Statewide Grievance Committee v. Botwick, 226 Conn. 299 (1993) strongly suggest this view. There, having decided the lawyer's investment of funds was a business transaction the court found a violation of Rule 1.8(a)(3) because use of the client's money for investment purposes has to be authorized in writing. A violation was found although the lawyer did not profit CT Page 11768-dg financially from the action although he did receive the benefit of good will. The court said it reached this conclusion "Even if we accept the defendant's claim that investment of the funds was no more than an attempt to obtain the highest rate of return on the complainant's money while the complainant was out of the country, the conclusion is inescapable that Rule 1.8(a)(3) requires such a use of client's money to be authorized in writing by the client," id. page 313.
The court will now try to apply these general rules to the case now before it. Here the defendants maintain Rule 1.8(a) was violated. The complaint makes clear Frank Kolb is an attorney and practices law with Kolb Associates LLC. Paragraph 42 of the Second Count and other counts in the complaint make clear that at all relevant times to the complaint, Kolb was representing the defendants and as consideration for the right to purchase property and "as a bonus for legal services rendered, planning services and for legal services rendered to the defendants the individual plaintiff Frank J. Kolb, Jr. and/or Kolb Associates was to receive one of the lots to be subdivided at the actual cost of said lot to Alexandria Estates." At all relevant times the complaint says this LLC had Elizabeth Mazzucco as the sole member, this interest being transferred to her by Kolb. (Also see paragraph 44 of Count Four and paragraph 46 of Count Six.)
Here again the defendants have submitted no affidavits, documentation responses to interrogatories, or requests to admit to support their allegation that rule 1.8(c) was not complied with by the plaintiff attorney. True, the complaint does not allege a written agreement existed between the parties but since business transactions between lawyer and client are not per se barred, failure to affirmatively plead compliance with rule would not appear to be fatal.
However, plaintiff's brief and oral argument appear to concede no written agreement complying with Rule 1.8(a)(1), (2), (3), and (4) exists. There is general reference to the fact that Attorney Kolb in any event "made full disclosure of the transaction to the defendants and also directed the defendants to consider obtaining their own counsel in connection with said transactions."
Also at argument, counsel for the plaintiffs suggested Rule 1.8(a) does not apply because these people-plaintiffs were close friends and it was a family-type relationship at the time of the transactions. But the complaint explicitly alleges that legal services were rendered for which there has been no payment. And as just noted the thrust of the plaintiffs' argument in the brief is that Rule 1.8(a) was complied because of Attorney Kolb's verbal admonitions to the defendants — but the rule is CT Page 11768-dh operative only in the context of an attorney-client relationship involving a business transaction.
It seems clear to the court that this is a situation where Rule 1.8(a) applies and that the rule was not complied with since no written agreement existed between the parties and the other written requirements of Rule 1.8(a) and its subsections were not complied with by Attorney Kolb.
It could be argued that there is nothing improper with taking an interest in property owned by the client in lieu of a fee. Here the claim is made that legal services were rendered and all that is involved is reimbursement for those services by means of a transfer of a lot owned by a legal entity under a defendant's control. Hazard Hodes address this argument in an illustration entitled "Taking an interest in a Client's Business in Lieu of a Fee." In this illustration, 12.3 at page 12-17 of § 12.5 they say:
L. Is asked to incorporate a small business and to conduct its future legal affairs. The incorporators have little capital to spare, and they suggest giving L. a 5% interest in the corporation in lieu of a fee.
In the first paragraph of the commentary Hazard Hodes say: "the proposed arrangement is not improper per se; indeed, arrangements of this sort are common. Nonetheless, even though the suggestion for the equity-for-services exchange originated with the client, the safeguards of Rule 1.8(a) (as well as Rules 1.5(a) and 1.7(a)(2) and 1.7(b)) (of the model rules) must be observed." This is necessarily true in light of the general purposes and reasons for imposing the requirements of Rule 1.8(a) in the first place.
Also apart from the issue of whether under the claims made the plaintiffs are entitled to make claim for the specific lot that is the subject of the dispute it could also be argued that failure to comply with Rule 1.8(a) should not bar a claim for monetary relief for the defendants alleged failure to pay for legal services. Count two does say in paragraph 43 that not only has the subject lot been turned over to the plaintiffs but the plaintiff has not been paid for legal services. There is no argument, for example, that apart from the failure to comply with the rule, Attorney Kolb or his firm acted in any way that was improper and unethical in rendering legal services or business advice. There is no claim either by the defendants that they even would not have entered into a legal or business relationship with the attorney if there had been an attempt to comply with the rule by the attorney. CT Page 11768-di
The court could find no cases directly on point involving this rule but Rule 1.8(a) was created to protect consumers of legal services in a legal relationship with an attorney. Its ameliorative purposes must be given a broad reading. Certainly this class of consumers is entitled to no less protection than that class of consumers engaging the services of building contractors.
Through the Home Improvement Act § 20-418 et seq. of the General Statutes the legislature sought to protect consumers by among other things requiring the contractor to provide the homeowner with a written contract, § 20-249. In Barrett Builders v. Miller, 215 Conn. 316, 320, 321 (1990) the court held that where a contractor failed to comply with § 20-249, the contractor could not sue in quantum meruit for services rendered or under any other common law theory of recovery. The court accepted the fact that this may lead to harsh results "where a contractor acted in good faith but in ignorance of the law," id. page 326. But the court said "clearly the legislature is entitled to, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the non-professional, the consumer," id.
The same could be said in this case as regards Rule 1.8(a) and the failure to comply with its explicit provisions designed by its enactors to protect clients dealing with lawyers who have the closest relations of trust and confidence with the consumers they serve. That the lawyer in failing to comply acted in good faith or even had close and friendly relationships with the client can be no bar to the application of the rule — that very type of relationship increases the need for its strict enforcement.
In light of the foregoing the court is constrained to grant the summary judgment motions as to the plaintiff Frank Kolb and Kolb Associates P.C.
If the second count is read closely it appears that the plaintiff Koren Kolb does not make a claim under this count, see paragraphs 42 and 43 of the Second Count. She is only mentioned in paragraph 26, incorporated in the Second Count by reference to the First Count. In that paragraph she is only mentioned as owning a one-half divided interest in the 8 Erico Drive property; Frank Kolb owns the other undivided interest. She merely seems to be the beneficiary of claim under the agreement in the Second Count which the court has held cannot be enforced.
To summarize the court's position, on the statute of frauds claim the court would grant it only as a motion to strike if this were the only CT Page 11768-dj claim raised by the defendants. However, in light of the claim made under Rule 1.8(a) of the Rules of Professional Conduct that observation becomes moot since the court will simply grant the motion for summary judgment as to the Second Count.
Counts One and Eight
Certain aspects of the pleadings and the briefs submitted on this motion are confusing. Counts one and eight appear to allege that the plaintiffs have a right to an implied easement. It is interesting to note that in their brief opposing summary judgment the plaintiffs do not attempt to distinguish the theories advanced in counts one and eight. Rather they characterize the defendants' attack on these counts as saying "there is no issue of material fact with respect to the plaintiffs' allegations that they are entitled to an implied easement by necessity over the defendant's property."
In any event the latter comment states the defendants' first objection to these counts; they also argue that these counts are also barred by Rule 1.8(a) of the Rules of Professional Conduct. The court will try to address both these arguments.
(a) Implied Easement
The context in which the question of whether there is an implied easement is "Where . . . an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a grant or reservation of the right to continue such use," Rischall v. Bauchmann, 132 Conn. 637, 642-43 (1946).
Here the question presented is whether the claim made by the plaintiffs in these counts meet the requirements of an implied easement by reasonable necessity. Both sides agree that this is the issue before the court. A leading case in this area is Utay v. G.S.C. Realty LLC, 72 Conn.App. 630, 638 (2002). At pages 636-37 the court said, "The two principal elements we examine in determining whether an easement by implication has arisen are (1) the intention of the parties and (2) if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate."
As to this test it is not clear to the court whether both prongs must CT Page 11768-dk be met to find an implied easement. The answer would appear to be no. In Utay itself the court found nothing in the deed or conveyance documents to indicate an intent to create an easement, but went on to discuss the second prong and whether its requirements were met. There would have been no reason to do so if both elements had to be established. Cf. D'Amato v. Weiss, 141 Conn. 713 (1954) which seemed to decide an implied easement was created solely by examining the intent of the parties as expressed in the deed, id. pages 717-18 and Friedman v. Town of Westport, 50 Conn.App. 209 (1998) which found an easement by implication had not been created by just examining the question of whether a right-of-way was reasonably necessary for the enjoyment of the property, id. page 215 without examining the conveyance documents but see Gemmell v. Lee, 59 Conn.App. 572, 576 (2000) which found an easement by implication after concluding both prongs had been established.
In fact if we look at the just quoted language of Rischall v. Bauchmann, supra, it is difficult to understand what the first prong (intention of the parties) has to do with that court's general statement of the practical reasons which determine if there is an implied easement — i.e., use of the land.
(i)
The intention of the parties prong is discussed in Utay. There the court said that: "The intent of the grantor to create an easement may be inferred from an examination of the deed, maps and recorded instruments introduced as evidence . . . A court will recognize the expressed intention of the parties to a deed or other conveyance and construe it to effectuate the intent of the parties," id. page 637. The court does say it always is permissible to consider the circumstances of the parties connected with the transaction and cited Lakeview Associates v. Woodlake Master Cond. Assin., Inc., 239 Conn. 769 (1977) but this appears to appropriate only "if the meaning of the language connected with the transaction is not clear," id. pp. 780-81. This parallels an exception to the parol evidence rule in contract cases. Parol evidence offered to "vary or contradict" contract terms is irrelevant but such evidence can be introduced "(1) to explain an ambiguity appearing in the instrument . . . (or) (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement . . ." Schilberg Integrated Metals v. Continental Cas. Co., 263 Conn. 245, 277-78 (2003).
The court has examined the deed and agrees with the defendants' observation that "A review of the property description of the servient estate as set forth in Exhibit A of plaintiff's complaint shows no reference to a driveway or right-of-way and the map referenced therein is merely a boundary description and makes no reference to a driveway or driveway easement." No ambiguity exists in the conveyance document so as to allow the court to consider the type of "extrinsic evidence" referred to in the plaintiffs' opposition brief. It is also true that this "evidence" is not established by affidavit or other documentation but just alleged in the brief so that the court could not consider it in any CT Page 11768-dl event even if it was to be considered relevant.
(ii) Reasonable Necessity
The second prong that must be examined to determine whether an easement by implication has arisen is "if the easement is reasonably necessary for the use and normal enjoyment of the dominant estate." Utay held that "the finding of an easement by implication is a question of law" citing Gemmell v. Lee, 59 Conn.App. 572, 576 (2000) (case, however, holds this only as to first prong but court must of course accept Utay's more general conclusion.
What is the test that must be applied to determine "reasonable necessity?" Utay introduced its discussion of this second prong by citing Pender v. Matranga, 58 Conn.App. 19, 26-27 (2000) which said: "An easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement's presence." But the test is not or at least has not been all that clear. In D'Amato v. Weiss, 141 Conn. 713, 717 (1954) the court said, "(I)nsofar as necessity is significant it is sufficient if the easement is `highly convenient and beneficial' for the enjoyment" (of the dominant estate), see Schultz v. Barker, 15 Conn.App. 696, 701 (1988), Friedman v. Town of Westport, 50 Conn.App. 209, 214 (1998). These cases say "absolute necessity is not essential." Utay itself quotes the D'Amato language at 141 Conn. p. 636.
Perhaps the best way to evaluate the necessity factor is to look at the situation in practical terms. In 25 Am.Jur.2d "Easements and Licenses" at § 29, page 526, it says: "Necessity cannot be established where an alternative is already in existence, on the other hand, the requirement of necessity may be met where use of an alternative would involve disproportionate expense and inconvenience." As one court put it, "The necessity should be judged by whether an alternative would involve disproportionate expense and inconvenience or whether a substitute can be furnished by reasonable labor or expense." Fourth Davis Land Co. v. Parker, 469 So.2d 516, 521 (Miss. 1985), Gulf Park Water v. First Ocean Springs Dev., 530 So.2d 1325, 1330 et seq. (Miss. 1988).
The court must now apply these observations to the facts of the case before it. Attached to the defendants' motion are several pictures of the Kolb property taken apparently from the main road. There is a steep grade from that road to the garage area. Neither side has submitted any CT Page 11768-dm affidavits, documentation, or cost estimates. The Kolb estate had a semicircular driveway, failure to find an implied easement will not permit such a driveway, one leg of it would be cut off.
The plaintiffs merely present argument in their brief in which they say: "The blocking of one side of the plaintiff's semi-circular driveway will not result in a mere inconvenience to the plaintiffs as the defendants contend. It will in effect cause the plaintiffs to undergo a monumental task. The plaintiff's would have to move their driveway and re-grade the land in front of their home. As evidenced by the pictures submitted along with the defendants' Motion for Summary Judgment, the plaintiffs' residence is raised above street level and the driveway leading to the residence is already steeply graded. If the plaintiffs are no longer allowed access to both sides of their semi-circular driveway, they are left with only one common entry and exit. The plaintiffs' existing driveway is only wide enough for one vehicle at a time to pass. The result would be a constant rotation of cars every time the plaintiffs wished to exit their driveway.
Accordingly, questions of material fact exist with respect to the parties' intentions concerning an easement over the strip of land adjacent to the plaintiffs' property and to whether the easement claimed by the plaintiffs is reasonably necessary for the normal use and enjoyment of their property."
Relying on the three photos attached to their brief, the defendants argue and the court agrees that the Kolbs have sufficient frontage on a public road. They go on to argue that "the plaintiffs are, at most, inconvenienced by the driveway obstruction and the plaintiffs have existing access to their entire property through a `partially obstructed driveway' . . ." Thus there can be no implied easement under the second prong if this argument is accepted.
In Utay itself the court found no implied easement as to a certain strip of land. There too the court found ample frontage on a public road, the plaintiff had access to the rear of his property by using "the partially obstructed driveway and the space to its immediate left." The court went on to note that "although the plaintiff argues that he has difficulty maneuvering his car into the far right portion of his garage, that inconvenience does not rise to the level of a reasonable necessity, as that phrase has been used historically." The court noted that the plaintiff "does not deny that he has access to his garage." It went on to observe that "the plaintiff conceded that nothing prevents him from using the garage, from widening the left side of the driveway or from moving the garage for improved access." Therefore the court held that "although CT Page 11768-dn an easement by implication over the defendant's land would be beneficial to the plaintiff, it is not reasonably necessary for the enjoyment of his property," id. 72 Conn.App. at pp. 638-40.
From looking at the pictures presented it does appear there is a steep grade but there is no reason presented as to why the driveway could not be widened, no engineering studies were presented to show that this would be a "monumental task" — the court cannot conclude this from looking at the pictures which the plaintiffs relied on themselves in their brief. No estimates were presented that the cost to widen the driveway would be prohibitive. The immediate area in front of the garage is level, it does not appear from the pictures or anything presented to the court that this area cannot be expanded.
For the foregoing reasons the court cannot find an implied easement and summary judgment on this basis is granted as to counts one and eight.
The court will not address the Rule 1.8 aspect of this motion as to these counts. However, it agrees with the plaintiffs that Mrs. Kolb would not be precluded from pursuing these allegations if they were otherwise viable.
Counts Six and Seven
In their motion the defendants appropriately characterize these counts as attempting to pierce the corporate veil of corporate defendants so that the plaintiffs could pursue their claim for services to the corporate entities against individual defendants. The plaintiff's basic claim is that these individuals so dominated the corporate entities that they "had no separate mind, will or existence of their own" (paragraph 44 of Count Six).
The defendants in their brief argue this attempt to pierce the corporate veil must fail because it is barred by the doctrine of unclean hands citing Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 334 (2002). Thompson v. Orcutt, 70 Conn.App. 427, 432 (2002) is cited for the proposition that to determine whether the doctrine applies a court must find that the unclean acts occurred in the ordinary course of the business relationship and that the acts benefited the party claiming equitable relief.
The defendants then proceed to catalogue, by reference to various paragraphs of the complaint, the fact that Attorney Kolb and his firm did the legal work to establish the corporate defendants and through an Exhibit that Attorney Kolb serves as agent for service of process for all but three of these entities.
The defendants cite no case law applying the doctrine of unclean hands to the concept of piercing the corporate veil. And the court could find no Connecticut or other state case doing so. It is true that the concept CT Page 11768-do of piercing the corporate veil is equitable in nature. Angelo Tomasso v. Armor Construction Paving Co., 187 Conn. 544, 555 (1982) and the doctrine of unclean hands "expresses the principle that when a plaintiff seeks equitable relief `he (she) must show this his (her) conduct has been fair, equitable, and honest as to the particular controversy in issue,'" McKeever v. Fiore, 78 Conn.App. 783, 789 (2002).
As to the particular controversy between the parties — the claim for reimbursement for services to defendant corporate entities — there is no allegation, let alone anything by way of affidavit or documentation, that the defendant attorney or his firm gave illegal or improper, or unethical advice. "The issue of whether the corporate veil should be pierced is a question of fact . . ." Morris v. CEE DEE LLC, 90 Conn.App. 403, 413 (2005), and no operative facts have been offered by the defendants to allow the court to determine this issue.
The problem the defendants have is that piercing the corporate veil involves the application of either of two tests (1) the instrumentality test and (2) the identity test, Hersey v. Lonrho Inc., 73 Conn.App. 78, 87 (2002). The instrumentality test involves as one of its elements an allegation that control of a corporation must have been used by an individual defendant to commit a fraud or wrong. The identity test, which appears to be the plaintiffs' claim here, requires in the first instance that the corporation really had no independent existence ab initio and thus the corporate structure cannot be used to avoid a debt incurred in the ordinary course of business. It cannot be presumed, at least without supporting facts, that the services rendered by the lawyer in setting up or advising such a corporation facilitated that domination of corporate affairs so as to allow piercing of the corporate veil.
The court will not grant summary judgment as to counts six and seven but as indicated will grant summary judgment as to counts one, two and eight.
Corradino, J.