Opinion
No. CV 05 4002572
February 9, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On June 2, 2005, the plaintiffs, Dale C. Roberson. and Cynthia B. Roberson filed a four-count complaint against the defendants, Werner O. Kunzli, Gott, LLC (Gott), The Hideout Trust Association, Inc. (Hideout), and Donald R. Bunce alleging breach of contract (count one); trespass (count two); conversion (count three); and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count four). Pending before the court is the defendants' motion to strike all four counts of the complaint on the grounds that they each fail to state a claim upon which relief may be granted.
The complaint alleges the following facts. Between January and April 2000, the plaintiffs negotiated the purchase of a 3.93-acre parcel of land from Gott, which was adjacent to the plaintiffs' residence. The plaintiffs purchased the property for a sum of $25,000, subject to a reservation of rights in favor of Gott which was outlined in the warranty deed. In further consideration of the conveyance, the plaintiffs agreed to waive certain claims then pending against Gott. Gott conveyed the property to the plaintiffs on April 11, 2000. On December 15, 2000, Gott conveyed its easements to Hideout. On May 13, 2003, pursuant to the direction of the other defendants, Bunce and his employees entered the plaintiffs' parcel and cut down fifty-six trees and other vegetation.
Gott reserved: "The right enter upon the Premises, with equipment and men, to trim trees, bushes, plantings and other vegetation in order to create, maintain and protect the vistas and views from adjacent land now or formerly of Grantor; The right to enter upon the Premises, with equipment and men, to install and maintain a walking path on the Premises, in locations mutually agreeable to Grantor and Grantees; The right to enter upon the Premises, with equipment and men, to maintain and landscape the Premises, in an aesthetically pleasing manner consistent with landscaping on adjacent land now or formerly of Grantor . . ."
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005).
Count One: Breach of Contract
The defendants move to strike count one on the following grounds: (1) a warranty deed is a conveyance of real property and is not a contract; (2) defendants Kunzli and Hideout were not parties to the warranty deed and therefore, cannot be liable for a breach of that contract; (3) the defendant, Gott, conveyed the property to the plaintiffs and thus, fully performed its obligation under the warranty deed, the purported contract; and (4) the defendants had express permission to enter upon the plaintiffs' property to remove trees and other vegetation for the purpose of creating, maintaining, and/or protecting the vistas and views from the adjacent property, subject to the warranty deed. (Defendants' Memorandum of Law in Support of its Motion to Strike, pp. 5-8.)
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). In order to establish a breach of contract claim, a plaintiff must allege facts showing that the defendant has breached their agreement. As set forth in count one, Gott agreed to sell and the plaintiffs agreed to buy a 3.93-acre parcel of land in Ellington in consideration for $25,000 and the plaintiffs' waiver of certain pending claims against Gott. Gott's only obligation pursuant to their agreement was to convey the property. While the plaintiffs allege that Gott entered the property without permission and cut down trees, they have not alleged any contractual promise by Gott not to do so. Since there is no sufficient allegation of breach of an agreement between the plaintiffs and Gott, the motion to strike count one is granted on this ground and the other grounds need not be addressed.
Count Two: Trespass
The defendants move to strike count two on the ground that the warranty deed gave the defendants express permission to enter the property "with men and equipment for the purposes of creating, maintaining, and/or protecting the vistas and views from the adjacent land" and for landscaping the property and thus, the defendants cannot be held liable for trespass. The defendants argue that the plaintiffs do not have an exclusive possessory interest in the property and therefore, cannot state a claim for trespass because the defendants retained the right to enter upon the parcel and were merely exercising this right. The plaintiffs counter that the defendants went beyond the scope of the easement and committed a trespass when Bunce entered the plaintiffs' property and cut down fifty-six trees and other vegetation.
"In order to recover on a common-law trespass action, a plaintiff must show [1] ownership or possessory interest in property; [2] the physical invasion, entry or intrusion by defendant which affects the plaintiff's possessory rights; [3] intent to do that which causes the invasion; and [4] a direct injury to the plaintiff's property." Bongiovanni v. Saxon, Superior Court, judicial district of Tolland, Docket No. CV 02 0079540 (June 4, 2003, Scholl, J.) ( 34 Conn. L. Rptr. 659); see also Day v. Gabriele, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0196802 (August 10, 2005, Tobin, J.). Although the defendants argue that the plaintiffs do not have an exclusive possessory interest in the property and thus, defendant Bunce's entry pursuant to the terms of the warranty deed cannot constitute a trespass, the Supreme Court in Campbell v. Rankin, 99 U.S. 261, 262, 25 L.Ed. 435 (1878), has stated that possession does not have to be exclusive. Actual possession of real estate is always sufficient to sustain an action of trespass to real property against an individual who does not have a superior right.
While it is sometimes true that "[I]f a person has a right to enter upon the property, there can be no trespass;" Zanoni v. Hudon, 42 Conn.App. 70, 76, 678 A.2d 12 (1996); it is also true that when the consent to enter is restricted and the defendant exceeds the scope of its privilege to enter the land, it can be liable for trespass. Section 168 of the Restatement (Second) of Torts (1965) states, "[a] conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with." 1 Restatement (Second), Torts § 168, p. 307 (1965). The Restatement also provides the following illustration: "A, the owner of Blackacre, licenses B to drive his cow through Blackacre to B's pasture, lot X. B enters Blackacre to draw gravel from lot X, or to go to lot Y. In either case B's entry is a trespass." 1 Restatement (Second), supra § 168, illustration (1).
In Ventres v. Goodspeed Airport, Superior Court, judicial district of Tolland, Docket No. CV 01 0076812 (May 21, 2004, Sferrazza, J.) ( 37 Conn. L. Rptr. 197), aff'd, 275 Conn. 105, 881 A.2d 937 (2005), the defendant, who possessed a prescriptive easement to cut several trees on the plaintiff's property every few years, went upon the plaintiff's property and clear cut "every tree and woody-stemmed bush in the 2.5 acres site." Under the circumstances, the court found that this conduct went above and beyond the defendants' use under its prescriptive easement and thus, the defendants were liable to the plaintiff for trespass. Id. See also Sgrignari v. Vallone, Superior Court, judicial district of New Haven, Docket No. CV 97 0404191 (May 25, 1999, Downey, J.) ("Misusing [an] easement is a form of trespass in that it interferes with the land's owners' possessory rights").
In the present case, the plaintiffs allege that they hold title to the property in question, pursuant to a warranty deed (Complaint, Count 1, ¶ 8); the defendant, Bunce, entered the plaintiffs' property under the direction of the other defendants and clear cut and removed fifty-six trees and other vegetation belonging to the plaintiffs (Complaint, Count 2, ¶ 18); "The defendants knew, or should have known, that they were trespassing" on the plaintiffs' property (Complaint, Count 2, ¶ 17); and, the defendants' actions caused a direct injury to the plaintiffs including making "the property more susceptible to erosion . . . a visual nuisance . . . and . . . [destroying] the habitat for wildlife that were on the plaintiffs' property" (Complaint, Count 2, ¶ 18). Because the plaintiffs have sufficiently stated a cause of action for trespass, the defendants' motion to strike count two is denied.
Count Three: Conversion
The defendants move to strike count three on the grounds that: (1) the defendants maintained the right, pursuant to the warranty deed, to remove trees and vegetation from the plaintiffs' property to create and/or maintain their view and to landscape the property and therefore, cannot be held liable for conversion, and; (2) severing plants and trees from the land cannot be considered conversion because the plants growing on the plaintiffs' land are considered real property, not personal property. The defendants argue that "as plaintiffs agree in their complaint that the purpose of defendants' action was to create views for the adjacent property, defendants' actions were clearly within the confines of their rights as set forth in the warranty deed." (Defendants' Memorandum of Law in Support of their Motion to Strike, p. 11.) In addition, the defendants argue that conversion does not apply to the removal of trees.
"To establish a prima facie case of conversion the Plaintiff must demonstrate that: 1) the property converted belonged to him; 2) the Defendants deprived him of his property; (3) the Defendants' conduct was unauthorized; and (4) that the Defendants' conduct harmed him." Bongiovanni v. Saxon, supra, Superior Court, Docket No. CV 02 0079540. "Conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." Polivy v. Air One, Inc., 46 Conn. App. 573, 577, 700 A.2d 71 (1997). The tort of conversion applies to personal property. Unigard Ins. Co. v. Tremont, 37 Conn.Sup. 596, 599, 430 A.2d 30 (App.Sess. 1981). Trees and other vegetation, when attached to the land, are considered real property. Once the trees and vegetation have been removed from the land, they become personal property; thus, conversion applies. 18 Am.Jur.2d, Conversion § 18 (2004); Ventres v. Goodspeed Airport, supra, 275 Conn. 159 (defining trees as chattels after they had been severed from the soil); see Bongiovanni v. Saxon, supra, Superior Court, Docket No. CV 02 0079540 (denying defendant's motion to strike plaintiff's claim for conversion when defendant allegedly entered upon plaintiff's land and cut down and removed twenty-one trees standing on plaintiff's property).
In Count Three, the plaintiffs alleged that they owned the fifty-six trees and other vegetation that the defendants clear cut (Complaint, Count 3, ¶ 8); they were deprived of this property when it was cut down (Complaint, Count 3, ¶ 14); the defendants were not authorized to remove the trees and vegetation from the plaintiffs' property (Complaint, Count 3, ¶ 15); and, they were harmed in that the trees and vegetation had significant monetary value of which they were deprived by the defendants (Complaint, Count 3, ¶ 16-17). Based on the foregoing allegations, the plaintiffs have sufficiently stated a cause of action for common-law conversion. Therefore, the motion to strike count three is denied.
Count Four: CUTPA CT Page 2845
The defendants move to strike count four on the ground that the plaintiffs are not within the class of people who may bring a claim under CUTPA. The defendants argue that "CUTPA is designed to give redress to wronged consumers, competitors and business persons, not the world at large." (Defendants' Memorandum of Law in Support of their Motion to Strike, p. 11-12.) They reason that, because the plaintiffs are neither consumers nor competitors of the defendants, they cannot bring a CUTPA cause of action against the defendants. In opposition, the plaintiffs argue that they, as homeowners, stand in a consumer relationship to the defendants, who are in the business of real estate development. In addition, the plaintiffs argue that because they purchased land from Gott in its "regular line and course of business," CUTPA applies to this relationship between the parties.CUTPA is a statute "remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit . . . The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce." (Internal citations omitted; internal quotation marks omitted.) Elder Bros., Inc. v. Wine Merchants of Connecticut, 275 Conn. 363, 379-80, 880 A.2d 138 (2005). It "gives protection to wronged competitors and consumers but not to the world at large or any individual who might be injured by the activities of a business entity no matter what relationship the individual had with that business, even no relationship at all." Timber Trails Associates v. Connecticut Light and Power Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195573 (February 11, 2004, Hiller, J.) ( 36 Conn. L. Rptr. 552).
The plaintiffs in the present case are homeowners who purchased a parcel of land from Gott, subject to a reservation of rights. Read in a light most favorable to the plaintiffs, the allegations indicate that they essentially engaged in a one-time real estate transaction with Kunzli and Gott. The easements reserved in the warranty deed were then transferred to Hideout. Bunce was then hired by one or more of the other defendants and had no direct contact with the plaintiffs. Based on the facts, as alleged, the plaintiffs were not in a consumer, competitor, or business relationship with the defendants which gives rise to protection of CUPTA. See Ventres v. Goodspeed Airport, supra, 275 Conn. 105, 158 (where defendants held a prescriptive easement to cut a few trees every few years, entered plaintiff's land and clear cut 2.5 acres of the plaintiff's property, Supreme Court held that the plaintiff landowner and the defendant trespasser were not in the type of relationship protected by CUTPA); Timber Trails Associates v. Connecticut Light and Power Co., supra, Superior Court, Docket No. CV 03 0195573 (where defendant "entered upon a portion of plaintiff's property . . . and clear-cut a strip of the plaintiff's property, destroying and carrying away trees, timber and shrubbery," the court held that the "plaintiff was not in the class of consumers, competitors, or other business persons whose interest CUTPA was enacted to protect"). Accordingly, the defendants' motion to strike count four is granted.
Prayer for Relief: Reformation
Because the plaintiffs' breach of contract claim is stricken and reformation is not an appropriate remedy for trespass or conversion, the prayer for relief of reformation is also stricken. See Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998); Practice Book § 10-39.
Conclusion
For all the foregoing reasons, the defendants' motion to strike counts two and three is denied, the defendants' motion to strike counts one and four and the plaintiffs' prayer for relief seeking reformation is granted.