Opinion
No. CV03 0285506-S
August 10, 2004
MEMORANDUM OF DECISION
This is a summary process action brought by the executrix of the estate of Mary C. Artkop, Diane Pasieka (plaintiff), against Richard Artkop, Jared Artkop and Diane Kirkendall. Based on the credible evidence, including, in large part, the testimony of the plaintiff and the documentary evidence submitted by her, the court makes the following findings: Mary C. Artkop died on February 14, 2003. She died testate and her will, dated November 4, 1992, was approved and admitted to probate as her last will and testament on March 25, 2003. In her will, Mary Artkop named her daughter, Diane Pasieka, the plaintiff herein, executrix. Diane Pasieka was issued letters testamentary on March 25, 2003.
At the time of her death, Mary Artkop owned and lived in a two-family home at 160 South Colony Street in Meriden, Connecticut (premises). Also residing in the premises were Mary Artkop's son, Richard Artkop, his son Jared Artkop, Donna Kirkendall, and her son, Samuel.
In February 2003, after services for Mary Artkop, the plaintiff went to the premises to get the will. She had been told by her mother where the will was located. At that time, Richard Artkop asked the plaintiff if it was all right for him to continue to pay the same amount that he was paying their mother for rent. The plaintiff knew that her mother had an agreement with Richard Artkop but she did not know the amount. Richard Artkop told the plaintiff that he would like to continue to pay $300.00 per month plus utility bills. Richard Artkop also told the plaintiff that he intended to leave the premises in June 2003. Although the plaintiff felt that $300.00 was not a fair rental for the two-family home, she agreed to accept Richard Artkop's offer because he was her brother and because he would be vacating in June.
Mary Artkop's checkbook registers reflect that she allocated utility charges to "Donna." (Exhibits 11 and 12.) There are also deposits recorded that are consistent with monthly, albeit irregular, payments of $300.00. (Exhibit 11.)
Rent payments in the amount of $300.00 in cash or by check were made monthly, beginning in April 2003, by Richard Artkop or Donna Kirkendall. Utility bills were also paid monthly in cash or by check by Richard Artkop or Donna Kirkendall. A landlord-tenant relationship existed between Richard Artkop and Diane Pasieka when the defendant's offer to pay $300.00 monthly plus utilities was accepted by the plaintiff.
Mary Artkop, in Article VI of her last will and testament, directed the "Executrix to sell at public or private sale any real property I may own at the time of my death and to distribute the net proceeds of such sale or sales, in equal shares," to her children, including the defendant, Richard Artkop.
One child was not included in the distribution for reasons of no moment here.
On August 25, 2003, the plaintiff entered into a contract to sell the premises. In August 2003, the plaintiff and a real estate agent met with Richard Artkop to tell him that the premises had been sold and that be would have to relocate. He was told that the closing date was October 15, 2003.
By August 2003, divisiveness and antagonism had developed between Richard Artkop and the plaintiff. On August 29, 2003, a notice to quit was served on Richard Artkop, Jared Artkop and Donna Kirkendall. The reasons stated in the notice were "lapse of time," "the right or privilege to occupy such premises has terminated," and "permanent removal of the dwelling unit . . . from the housing market." The notice informed the defendants that they were required to vacate the premises on or before September 5, 2003.
When the defendants remained in possession after the quit date, this sad, rancorous and prolonged summary process action was filed on September 16, 2003. Initially, all three defendants were represented by counsel who filed a motion to dismiss the summary process complaint. After the motion to dismiss was denied, each defendant filed a pro se appearance in lieu of counsel.
Trial commenced in this matter on January 9, 2004, and continued on January 16, 20, 23 and 30, 2004. During the course of the trial, the plaintiff moved the court to enter a default against Donna Kirkendall for failure to appear at trial. Donna Kirkendall was defaulted. On March 30, 2004, after the defendant had rested, the plaintiff commenced to put on rebuttal evidence. Trial was to continue on the next day, March 31, 2004; however, none of the defendants appeared. It was reported to the court that the clerk's office had received a message from Jared Artkop that he had taken his father, Richard Artkop, to the emergency room in Hartford. On that date, the plaintiff asked the court to enter a default against Richard Artkop and Jared Artkop. The court denied the motion for default without prejudice and ordered that "Richard Artkop submit to the Court certified hospital record from Hartford Hospital indicating the date and time of admittance and reasons for seeking immediate medical attention. Submit by 5 p.m. Thursday April 8, 2001." The matter was continued pending further order of the court. When there was no compliance with the court's order, a hearing was scheduled for April 16, 2004. The plaintiff and her counsel appeared; none of the defendants appeared. The defendants were defaulted and judgment for immediate possession was entered against Richard Artkop, Jared Artkop and Donna Kirkendall.
On April 21, 2004, Richard Artkop filed a motion to open the default judgment. After a hearing on April 30, 2004, the motion to open the judgment as to Richard Artkop was granted, and the trial proceeded on that date to conclusion.
I THE COMPLAINT
Based on the credible evidence, in particular the testimonial and documentary evidence of the plaintiff, I find the allegations of the complaint proven. Specifically, I find as follows:
On or about April 1, 2003, the plaintiff as lessor and the defendant Richard Artkop as lessee entered into an oral month-to-month lease for use and occupancy of 160 South Colony Street, Meriden, Connecticut. Richard Artkop agreed to pay monthly rental of $300.00 on the first day of each month. He had been in possession of the premises pursuant to an oral agreement with the decedent and remained in possession pursuant to an oral lease with the plaintiff. He still occupies the premises. The lease has terminated by lapse of time. On August 29, 2003, the plaintiff caused a notice to quit possession to be served on the defendant to vacate the premises on or before September 5, 2003. Although the time given in the notice to quit possession of the premises has passed, the defendant still continues in possession.
Judgment for immediate possession will enter in favor of the plaintiff unless Richard Artkop prevails on one of his special defenses.
II THE SPECIAL DEFENSES
Richard Artkop has raised four special defenses in this summary process action. "[E]quitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding." Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 777 (1993), citing Fellows v. Martin, 217 Conn. 57, 62-63, 584 A.2d 458 (1991).
A First Special Defense
Richard Artkop claims that "no landlord tenant relationship existed or exists between the Plaintiff and the Defendant, and therefore, Summary Process is unavailable as a remedy to the Plaintiff." During the trial, Richard Artkop argued that no landlord tenant relationship existed because he is a co-owner of the home and because his mother would never have wanted to put her children and grandchildren out on the street. Although not precisely articulated, the court construes these arguments to be an assertion of rights pursuant to General Statutes § 45a-321. Section 45a-321(b) provides that "[t]he family of the decedent shall be allowed to remain in the dwelling house occupied by him at the time of his death, and may occupy such land and buildings connected therewith as the court considers necessary for their convenience and comfort until the same is sold, distributed or otherwise disposed of according to law."
General Statutes § 45a-321 provides: "CUSTODY OF REAL PROPERTY, PRODUCT AND INCOME OF REAL PROPERTY. FAMILY MAY OCCUPY HOMESTEAD. (a) The fiduciary of a decedent's estate shall, during settlement, have the possession, care and control of the decedent's real property, and all the products and income of such real property during such time shall vest in the fiduciary as personal property, unless such real property has been specifically devised or directions have been given by the decedent's will which are inconsistent with this section; but the court may order surrender of the possession and control of such real property to the heirs or devisees, or may, during settlement, order distribution of such real property. (b) The family of the decedent shall be allowed to remain in the dwelling house occupied by him at the time of his death, and may occupy such land and buildings connected therewith as the court considers necessary for their convenience and comfort until the same is sold, distributed or otherwise disposed of according to law."
In Hall v. Meriden Trust Safe Deposit Co., 103 Conn. 226, 130 A. 157 (1925), our Supreme Court had occasion to construe the word "family" as used in the same provision of a predecessor statute, Section § 5027. In Hall, two heirs of the decedent, two daughters, described as living with her at her death and apparently not dependent upon her, were permitted to occupy her dwelling-house rent-free from 1907, the date of the decedent's death, until 1923, while the estate remained unsettled. Hall v. Meriden Trust Safe Deposit Co., supra, 228-29. One of the claims of error on appeal was whether the trial court erred in surcharging the debit side of the account submitted by the administrator of the estate with the reasonable rental value of the house occupied by the two daughters of the intestate. Id., 232. The question in that case was whether the executor had a duty to lease the real estate entrusted to his care, "ever bearing in mind that his primary duty is to effect as speedy a settlement of the estate as is reasonably possible." Id., 227. The court held "that these daughters could not be held to be members of the `family' within the meaning of § 5027." Id., 228. "The two daughters might under some circumstances come within the description of the family of the decedent, but used as it is in this statute in contradistinction to the words `heirs or devisees,' whose occupancy is only allowable under authority of the Court of Probate, the word `family' must be given a narrower meaning than mere relationship, and be taken to designate the collective body of relatives by blood or marriage who together form the household of the decedent; . . . and to imply a degree of permanency in their association together." (Citations omitted.) Id., 236.
Based on the credible evidence, I find that Richard Artkop lived at the premises with his family, consisting of his son Jared Artkop, Donna Kirkendall and her son, Samuel. They left the premises off and on, moving to Montana for a year in 2000. They left again in September 2001, intending to move west but returned because they had an automobile accident. Richard Artkop, Jared Artkop, Donna Kirkendall and Samuel were a household unto themselves. Richard Artkop and his family did not form the household of the decedent and the facts indicate a lack of permanency in their association. Richard Artkop was not "family" within the meaning of or protection of § 45a-321(b).
Richard Artkop cannot prevail on this special defense.
B Second Special Defense
Richard Artkop alleges that he "has occupied said premises for a long period of time and has rendered services and materials to the premises without paying rent and Defendant has done so under a Constructive Trust, and thus is not a tenant who can be evicted." Based on the credible evidence, the following findings are made: Richard Artkop paid rent to Mary Artkop. Mary Artkop paid for repairs to the premises as well as payments for taxes, utilities and insurance related to the premises. At times during the years that Richard Artkop lived at the premises, he did yard work and made some repairs and improvements to the premises. Mary Artkop always offered to pay Richard Artkop for repairs and improvements made by him. No evidence was offered and none can be inferred that Mary Artkop made promises to Richard Artkop that she would transfer the premises to him.
"[A] constructive trust arises . . . against one who, by . . . abuse of confidence either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy." (Internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680 A.2d 1314 (1996). "Courts may use the equitable device of a constructive trust to remedy the unjust enrichment which results from not disposing of property as promised after the promise induced someone with whom the promisor shared a confidential relationship to transfer the property to the promisor. Starzec v. Kida, 183 Conn. 41, 49, 438 A.2d 1157 (1981)." (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 860, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).
The plaintiff has not sustained his burden to prove the elements of constructive trust.
C Third Special Defense
Richard Artkop maintains that "[t]he Plaintiff, her agent, servants and or employees have interfered with the Defendants' right to quiet enjoyment of said premises." "Whether there has been such interference with the tenant's peaceful enjoyment of the premises . . . cannot be determined by general principles but depends instead on an inquiry in every instance [into] the facts of the particular case. By this is meant the situation of the parties to a lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant's use of the premises is interfered with by the injury claimed." (Internal quotation marks omitted.) Conference Center LTD v. TRC, 189 Conn. 212, 221, 455 A.2d 857 (1983). There is a "requirement that the tenant demonstrate actual and serious deprivation of the use contemplated by the parties to the lease . . ." Id.
"The covenant of quiet enjoyment is that the grantee shall have legal quiet and peaceful possession and is broken only by an entry on and an expulsion from the land or from an actual disturbance of possession by virtue of some paramount title or right." Net Realty Holding Trust v. Nelson, 33 Conn.Sup. 22, 25, 358 A.2d 365 (1976). "A constructive eviction arises where a landlord, while not actually depriving the tenant of the leased premises, has done or suffered some act which renders the premises untenable." (Emphasis in original; internal quotation marks omitted.) Thomas v. Roper, 162 Conn. 343, 349, 294 A.2d 321 (1972). In order to claim constructive eviction, the tenant must abandon the property within a reasonable tine. Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295 (1950); see also Thomas v. Roper, supra, 349.
The defendant relies on evidence of incidents that occurred in August 2003, when the plaintiff and other siblings came to the premises in order to distribute items of personal property left to them as directed by their mother. The plaintiff had requested Jared Artkop, Donna Kirkendall and Samuel to leave the premises. When an argument ensued between the plaintiff and Richard Artkop, the police were called. Although requested to do so by the plaintiff, none of the defendants were required to leave the premises. Richard Artkop has not shown that the defendants were required to leave or did leave the premises during the month-to-month lease.
The defendant has not shown the facts necessary to support a claim for breach of possession and quiet enjoyment.
D Fourth Special Defense
Richard Artkop alleges that "any claim by Plaintiff that Defendants agreed to pay monies on a monthly basis is unenforceable because of misrepresentations made by the Plaintiff as to the character and nature of said sums claimed to have been agreed upon."
The credible testimony of the plaintiff and the receipts and copies of checks in evidence indicating monthly payments by Richard Artkop and Donna Kirkendall for $300.00 and for utility charges belie this claim. The court has found the allegations of the complaint proven by a fair preponderance of the evidence.
Richard Artkop cannot prevail on this special defense.
III CONCLUSION
Judgment for immediate possession may enter in favor of the plaintiff.
BY THE COURT
Tanzer, Judge