Opinion
No. HHD CV 11 5035275S
July 28, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 106)
FACTS
The plaintiffs, Kathleen Tarro and Victorian Elegance, LLC, initiated this action, a writ of replevin, by service of process on January 27, 2011. The complaint alleges that the defendants, Mastriani Realty, LLC, James D. Mastriani and James V. Mastriani are wrongfully in possession of the plaintiffs' belongings and the possessions she held as a bailee of her consignors, and demands the return the same.
The plaintiffs allege the following facts. The plaintiff, Tarro, owns Victorian Elegance, LLC, which operates an antique store and business located at 156 Broad Street, Windsor, named Victorian Elegance. Victorian Elegance is in the business of retail sales and consignment of antiques. The defendants own the shopping center in which that business is located. The plaintiffs allege that they were subtenants of Prudential Realty, and upon the latter's failure to pay rent, Mastriani Realty, LLC initiated eviction proceedings against Victorian Elegance, LLC. A stipulated judgment was entered in July 2010, which granted the defendants possession of the premises on October 1, 2010, or, if payment of $2,000 was made to the defendants, a stay of execution until November 1, 2010. Victorian Elegance, LLC filed a motion to open and vacate that judgment in September; the defendants filed an objection, which was sustained by the housing court.
On October 1, 2010, the defendants sought and received a summary process non-residential execution. The execution stated that the defendants could take possession of the premises on October 8, 2010. The plaintiffs were, however, granted a stay of the execution until November 1 at 12 p.m. and ordered to pay $2,000.
The plaintiffs allege that arrangements were made with a rental company to have trucks available on November 1 and November 2, 2010 to remove personal property from the premises. However, on November 1 at 9:30 a.m., the defendant, James D. Mastriani, arrived at the store, accompanied by a locksmith, and claimed that he was going to throw Tarro off the property. Tarro removed the execution from her records in the office to demonstrate that the execution could not occur until 12 p.m. Thereafter, Mastriani informed her that once the doors were locked she could only return on November 15, 2010 to remove her assets.
The plaintiffs allege that Tarro then left the premises and filed bankruptcy with the United States Bankruptcy Court on behalf of Victorian Elegance, LLC. The defendants were notified of the filing at 11:50 a.m. on November 1, 2010. Thereafter, the defendants arrived at the premises at 1:30 p.m. with a locksmith and a sheriff. Tarro called the Windsor police department to enforce the bankruptcy stay and prevent the defendants from locking the property. By 3:30 p.m., the defendants physically removed Tarro from the property and from that day forward prevented her from any further access to the premises.
Thereafter, it is alleged that the bankruptcy trustee informed the parties that no one was to remove any assets from the premises as long as the bankruptcy was pending. The defendants, however, on November 10, 2010, represented to Tarro that they would give minimal access on one day to remove assets from the premises. On November 18, 2010, the defendants insisted that the only manner in which they would allow the plaintiff to reclaim their assets would be after signing a general release of liability.
On November 23, 2010, the bankruptcy was voluntarily dismissed. It is alleged that the defendants acknowleged that based on the fourteen day appeal period, neither the plaintiffs nor the defendants could take possession of the assets until after December 6, 2010. The plaintiffs allege that on December 7, 2010, the defendants continued to frustrate the plaintiffs' attempts to claim possession of the assets by demanding that the plaintiffs sign a general release of liability.
The plaintiffs allege that on a subsequent, unidentified date, Tarro arrived with consignors and bailors in order to remove assets from the property, but they were denied access by the defendants. Tarro proposed a number of days on which they could remove the property. The defendants, through counsel, notified her that they would only allow the property to be removed after the plaintiffs signed a release. The defendants set January 11, 2011 as the date for pickup, so long as she signed a release.
On December 22, 2010, Tarro went to the premises and found the defendants removing property. The defendants called the Windsor police department and notified the police that should Tarro come on the property again she should be arrested for trespassing. On January 11, 2011, Tarro was once again turned away by the defendants. Since that time, the defendants have removed nearly all of the possessions to an auction house where they are to be sold. The plaintiffs allege that at no time were they given an adequate opportunity to remove their possessions from the property.
The motion presently before the court is the defendants' motion for summary judgment, filed on March 3, 2011. The motion is accompanied by a memorandum of law, attached to which, as exhibits, are: the stipulated agreement of the parties and the summary process non-residential execution. The plaintiffs filed a memorandum in opposition, attached to which, as exhibits, are: the affidavit of Kathleen B. Tarro; a notice of judgment after stipulation, dated July 13, 2010; a summary process non-residential eviction, dated October 1, 2010; an order granting Victorian Elegance, LLC's motion for temporary injunction in the housing matter, dated October 7, 2010; a receipt of bond payment to the clerk of the housing court, dated October 7, 2010; order of the housing court denying Victorian Elegance, LLC's motion to quash and granting a stay of execution until November 1, 2010, dated October 15, 2010; a facsimile from the bankruptcy trustee's office to Victorian Elegance, LLC's counsel noting that no one was to remove any property from the premises, dated November 5, 2010; a proposed general release of liability; an email from defendants' counsel to plaintiffs' counsel dated November 24, 2010; the stipulated agreement of the parties, dated July 13, 2010; and the notice of bankruptcy filing dated November 1, 2010. The plaintiffs filed a supplemental opposition to the motion, followed by the defendants filing a supplemental memorandum in support of the motion, to which they attached, as exhibits: an email from defendants' counsel to plaintiffs' counsel dated November 18, 2010; Victorian Elegance, LLC's motion to extend time to remove property from the premises, filed November 29, 2010 with the housing court, including an inventory of the possessions contained on the premises; Mastriani Realty, LLC's opposition to Victorian Elegance, LLC's motion to extend time to remove property, dated December 2, 2010; the housing court order denying Victorian Elegance, LLC's motion to extend time to remove property, dated December 7, 2011; an email from defendants' counsel to plaintiffs' counsel dated December 2, 2010; a draft of a general release of liability to be signed by the plaintiffs; an email from defendants' counsel to plaintiffs' counsel dated December 8, 2010; an email exchange between plaintiffs' and defendants' counsel dated December 20-21, 2010; a letter from defendants' counsel to plaintiffs' counsel dated December 21, 2010 with a certified mail receipt; a print out from the Judicial Branch website, noting that Tarro was arrested for criminal trespass on January 20, 2011; and a letter from defendants' counsel to plaintiffs' counsel, dated December 23, 2010. The plaintiffs' filed a supplemental memorandum prior to the hearing at short calendar.
DISCUSSION
"Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 823, 14 A.3d 982 (2011). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 it 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In the present case, the defendants argue that there are no genuine issues of material fact and judgment should enter in their favor because all issues in this case were previously raised or could have been raised in the housing court proceeding, and have received a final judgment on the merits in that court. The defendants argue that because the plaintiffs failed to appeal the judgment entered in the housing court action, there are no issues to be litigated in this matter.
The plaintiffs counter that the issues present case are not barred by the doctrine of res judicata or collateral estoppel because the plaintiffs' claims have been brought in the housing court; these claims arise from separate transactions involving separate and distinct issues and facts; the claims extend beyond the scope of the stipulated judgment; and the execution lapsed on December 1, 2010, and thus the defendants were required to seek a second execution in order to take possession of the premises and property and the claims are not barred by res judicata or collateral estoppel because the plaintiffs were defendants in the prior matter and thus were not required to pursue them in the previous action.
I RES JUDICATA AND CLAIM PRECLUSION
"It is well established that the party asserting the affirmative defense of res judicata bears the burden of establishing its applicability . . . Claim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved . . . The concepts of issue preclusion and claim preclusion are simply related ideas on a continuum, differentiated, perhaps by their breadth, and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest . . .
"The subtle difference between claim preclusion and issue preclusion has been so described: [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit . . . Under claim preclusion analysis, a claim — that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made . . . In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding . . . [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 301 Conn. 194, CT Page 17113 205-06 (2011). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment may be appropriate." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 461, 897 A.2d 136 (2006).
II ANALYSIS
In the present case, the defendants argue that the plaintiffs' claims arise from the same transaction as the housing matter. The defendants have presented evidence that they claim demonstrates that the matter was previously adjudicated. The first of these documents is the stipulated agreement of the parties, dated July 13, 2010, which states, "Judgment for possession may enter in favor of [Mastriani Realty, LLC] with a stay of execution through Oct. 1, 2010 at 12:00 p.m. . . ." The stipulated agreement further states that the document represents a "final stay of execution," except that if Victorian Elegance, LLC paid $2,000 for use and occupancy the execution would be stayed through November 1, 2010 at 12 p.m. The defendants further submitted the execution, dated October 1, 2010, which states on its face: "If you do not claim your possessions and personal effects and pay the removal and storage costs within 15 days after the date listed below, your possessions and personal effects will be forfeited to the landlord." There is no dispute that the execution was stayed until November 1, 2010.
In further support of their argument, the defendants point to General Statutes § 47a-42a, which states, in relevant part: "Eviction of tenant and occupants from commercial property. Disposition of unclaimed possessions and personal effects. (a) Whenever a judgment is entered against a defendant . . . for the possession or occupancy of nonresidential property, such defendant and any other occupant bound by the judgment . . . shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects unless execution has been stayed . . . If the defendant or occupant has not so removed himself or herself upon entry of a judgment . . . the plaintiff may obtain an execution upon such summary process judgment and the defendant or other occupant bound by the judgment . . . and the possessions and personal effects of such defendant or other occupant may be removed as provided in this section." (Emphasis added.) General Statutes § 47a-42a. Thus, the defendants argue that the claims were previously litigated or could have been. The plaintiffs, however, present several arguments to refute this point.
The first is that the plaintiffs' claims could not have been brought in the housing court action. The plaintiffs argue that the doctrines of res judicata and collateral estoppel are to be flexible. In the present case, the plaintiffs argue that they had no incentive to litigate this claim or issue in the housing court action, and the matters in this case are not based on the same underlying matters as that case. The plaintiffs cite the matters over which the housing court has jurisdiction, which, they claim, do not include actions for replevin. The plaintiffs also note that the facts giving rise to the replevin action arose after the housing court's ruling.
While it is true that many of the alleged facts took place after the stipulated judgment and the issuance of the execution, it is not true that this was the end of the housing court's jurisdiction in this case. The defendants have submitted, and the plaintiffs have not challenged, Victorian Elegance, LLC's motion to extend time to recover possessions, dated November 29, 2010 and filed with the housing court, Mastriani Realty, LLC's opposition to that motion, dated December 2, 2010, and the housing court's order denying the motion to extend time, dated December 7, 2010. It was at this time that the plaintiffs could have raised the arguments raised in this complaint. All of the acts alleged to have been committed by the defendants in November occurred before that motion to extend time, and all of the actions subsequent occurred after the court denied the motion to extend, at which point the defendants were under no obligation to return the plaintiffs' belongings.
Further, the plaintiffs' claim that the housing court did not have jurisdiction over this matter must fail. The plaintiffs state that the housing court has jurisdiction as defined by General Statutes § 47a-68 as "summary process; appeals from the decisions of the fair rent commission; actions concerning administrative appeal involving discrimination in the sale or rental of residential property; actions involving violation of municipal codes; and actions for back rent, damages, return of security deposits and other relief arising out of the parties' relationship as landlord and tenant or owner and occupant." However, the Supreme Court has ruled that this statute does not define jurisdiction, but rather is intended to create administrative efficiency. In Savage v. Aronson, 214 Conn. 256, 571 A.2d 696 (1990), the Supreme Court stated: "Despite the familiar reference to the judicial district courtroom where the judge assigned to hear housing matters presides as the `housing court,' our statutes create no such special jurisdictional entity. `Housing matters' are included within the jurisdiction of the Superior Court, just as family relations matters, small claims matters and juvenile matters are so included. General Statutes § 51-164s. The Superior Court, pursuant to General Statutes § 51-164t and Practice Book § 2, has been divided into four divisions: family, civil, criminal and housing. The family, civil and criminal divisions have been subdivided into `parts,' but not the housing division. Practice Book §§ 3, 4, 5 and 5A. The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department. The Superior Court judges assigned to each division or part thereof are authorized by Practice Book § 212 to transfer cases to different court locations as well as between judicial district and geographical area courts. A judge assigned to the housing division at a particular judicial district is authorized by § 47a-70(a), after a case has first been placed on the housing docket, to `transfer such matter to the regular docket for a geographical area or judicial district if he determines that such matter is not a housing matter or that such docket is more suitable for the disposition of the case.'
"Even if it were clear that the complaint fails to allege circumstances constituting a housing matter as defined by § 47a-68, it is plain that such a deficiency did not deprive the trial court of jurisdiction over the action. A judge of the Superior Court assigned to hear housing matters does not lose his general authority to hear any cause of action pending in that court. Since the plaintiffs' action was properly brought to the Superior Court, the trial judge, as a member of that court, did not lack jurisdiction to decide it." Id., 262-63. Therefore, even if the matter asserted was not within the statutory boundaries set forth by the plaintiffs, the court would not have been without jurisdiction to entertain it.
Further, if the plaintiffs disagreed with the housing court's decision on that matter they were within their rights to appeal the decision. They did not do so.
For the foregoing reasons, the court finds that the issues could have been raised, and in fact were raised, in the housing court action and thus the plaintiffs' first argument fails.
The plaintiffs second claim is that this action arises from separate transactions involving separate and distinct facts and issues. The plaintiffs argue that the only thing decided in the prior action is the right to possess the premises and thus the defendants wrongfully took possession of the assets during the period in which they could be recovered. As stated above, these issues were determined in the housing court. The execution explicitly states that Victorian Elegance, LLC's possessions would become those of the landlord if not claimed within 15 days. And while it is true that the housing court's ruling does not foresee that the landlord may take improper action to prevent the evicted tenant from claiming its possessions; it is also true that the plaintiffs could have raised these points when they brought their motion to extend time to claim possessions. Those arguments were either not made or rejected by that court and the plaintiffs failed to appeal that decision. Any subsequent action taken by the defendants were after the housing court foreclosed on the plaintiffs' rights to recover their possessions. For those reasons, the plaintiffs' second argument fails as well.
The plaintiffs third argument is that the issues posed in this complaint extend beyond those covered by the stipulated judgment. While the stipulated judgment deals with possession of the premises, it is enforced by an execution, which does cover the possessions inside of the premises if they are not recovered in a timely fashion. This is further evidenced by the fact that the plaintiffs attempted to extend the time to recover the possessions in the housing court. For the foregoing reasons, this argument fails.
The plaintiffs further argue that the defendants' execution lapsed on December 1, 2010 because they had not properly returned it to the court. As noted by the defendants in their reply memorandum, there is no authority to support this theory.
Finally, the plaintiffs argue, in a supplemental memorandum, that because they were hailed into court to defend the prior action, they were not required to bring this claim at that time. In support of their argument, they cite Battista v. DeNegris, Superior Court, judicial district of Hartford, Docket No. 93-0525774 (September 16, 1994, Corradino, J.). In that case a lawyer previously brought a suit against his former client for an unpaid fee. Id. In a later suit, the client alleged malpractice. Id. The court ruled that the claim was not barred by res judicata or collateral estoppel. Id. The present case is distinguishable. The issues as the possession of the items were dealt with by the court. They are not separate issues in the way that a claim for unpaid fees is dissimilar to a claim of malpractice. This is evidenced by the fact that Victorian Elegance, LLC filed a motion to extend time to recover their possessions in that case. That motion was denied and not appealed. Thus, the plaintiff is barred from relitigating this matter.
CONCLUSION
For the foregoing reasons, the court finds that the issues raised in this case were capable of being litigated in the previous action, and were in fact directly addressed by the court at that time. Therefore, this action is barred by res judicata and collateral estoppel. Because there are no genuine issues of material fact, and the defendants are entitled to judgment as a matter of law, the motion for summary judgment is hereby granted.