Opinion
No. LLI-CV-09-4008201-S
October 5, 2010
RULING ON DEFENDANT CHESTER LICHAJ'S MOTION FOR SUMMARY JUDGMENT (#120)
On September 20, 2010, the court heard a motion for summary judgment from one of the defendants, Chester Lichaj. The court has considered Chester Lichaj's July 16, 2010 memorandum of law in support of his motion for summary judgment (#121), along with the August 26, 2010 objection (#126.01) that was filed by the plaintiffs, David Welles and Lori Welles, and two of Chester Lichaj's supplemental memoranda of law, one dated September 9, 2010 (#127), and another dated September 17, 2010 (#131). The court has also considered the parties' arguments in support of their relative positions. For the following reasons, the court denies Chester Lichaj's motion for summary judgment.
The defendants in the present matter are Chester Lichaj and Nicole Lichaj. On August 30, 2010, the parties argued a similar motion for summary judgment, which was filed on behalf of Nicole Lichaj (#117). Nicole Lichaj's motion for summary judgment was denied on September 8, 2010, but that denial was erroneously entered on the record as applying to the instant motion for summary judgment. On September 20, 2010, in the course of oral argument, the coding error was brought to the attention of the court. The court corrected the coding error, ordering the withdrawal of its ruling as to Chester Lichaj's motion for summary judgment and denying Nicole Lichaj's motion for summary judgment.
FACTUAL BACKGROUND
The plaintiffs filed their complaint on February 27, 2009, alleging that the defendants have a right of way across their property and that they have made use of the right of way in a manner that is inconsistent with the deed. The plaintiffs also claim that the defendants have failed to make right of way maintenance payments to them, as provided in the deed, and that the manner in which the defendants have made use of the right of way has damaged their property and resulted in harassment to them. The plaintiffs further claim that Chester Lichaj's conduct has deprived them of the full use and enjoyment of their property and that he has expressed an intention to continue his current course of conduct in the future. The plaintiffs seek a determination of the rights and duties of the parties with respect to the right of way, a permanent injunction barring the defendants from their current course of conduct, monetary damages and other appropriate relief in law or equity.
The complaint was brought against Chester Lichaj and Nicole Lichaj because, according to the complaint and the plaintiffs' memoranda of law, both individuals own the right of way that runs across the plaintiffs' property. See General Statutes § 47-32.
Chester Lichaj contends that the plaintiffs have not alleged a cognizable cause of action. He also claims that since the plaintiffs have not incurred expenses beyond attorneys fees, no relief can be granted. Additionally, he contends that his conduct with regard to the right of way is permitted by the terms of the applicable deed which, he claims, provides him with an unrestricted right of way that is fifty feet in width. He dismisses the plaintiffs' claim of harassment as "specious."
The gravamen of the complaint appears to involve Chester Lichaj's belief that he, himself, is entitled to use a tractor to plow the right of way following snowfalls and that the deed does not grant the plaintiffs "the right to limit, restrict, or otherwise control the defendant's duty or right to maintain or enjoy the use of the right of way." Indeed, a page from a deposition transcript, in which Chester Lichaj appears to be the deponent, includes his position that it can take him up to forty-five minutes to plow the driveway, and that, in his view, the plaintiffs cannot use the driveway while he is plowing it.
The deposition page is attached to the plaintiffs' objection to the motion for summary judgment.
The plaintiffs, in response to the motion, point to language in the deed that appears to contemplate that the right of way be professionally maintained, calling for the "right of way and its continuation . . . to be maintained in their present condition, which may require periodic grading, re-graveling, cleaning or repairs of culverts and snowplowing . . . Responsibility for payment for said maintenance shall be shared equally by the owners of Lot 1 and Lot 2 shown on said map. If the right of way is damaged by either party . . . then the party or parties responsible for the damage shall bear the cost of restoring the right of way to its present condition." (Emphasis added.)
It appears to be undisputed that the plaintiffs own Lot 1 and that the defendants own Lot 2.
The plaintiffs contend that the defendants have never contributed to the cost of maintenance or repair at any time and that Chester Lichaj has damaged the property and driven his tractor beyond the bounds of the right of way. They allege that his actions have caused drainage problems and sight-line issues, and that by doing the work himself, in a manner that is far slower than a professional using appropriate equipment, he blocks the plaintiffs from using their own driveway, over which the right of way passes. Finally, the plaintiffs claim that Chester Lichaj's harassment of Lori Welles has made her fearful and has deprived her of the full use and enjoyment of her own property. The plaintiffs' claims are supported by a relevant map of the property (exhibit A to the plaintiffs' memorandum), the affidavit of plaintiff David Welles (exhibit B), the affidavit of Lori Welles (exhibit C), a copy of an easement extended to the Connecticut Light and Power Company (exhibit D), a warranty deed (exhibit E), and a page from a deposition transcript.
The court notes that Chester Lichaj's memorandum includes, as an attachment identified as exhibit 2, what appears to be a portion of the same map that was submitted by the plaintiffs. Chester Lichaj's attachment appears to include two parallel lines, apparently showing the right of way, that do not appear on the plaintiffs' version of the same map. The court is hopeful that neither party intended to mislead the court, a practice that is of course prohibited; Practice Book § 17-48; and the court further presumes that there is an acceptable explanation for the fact that the two proffered maps differ in this important respect.
DISCUSSION
The plaintiffs' complaint seeks relief at law and in equity. The plaintiffs' claim for relief asks the court to determine "the rights and duties of the parties with respect to the right of way the defendants have by virtue of their deed," and the plaintiffs seek a permanent injunction, as well as monetary damages. This court has jurisdiction over actions brought by any person claiming any interest in real property against any other person who claims to have any interest in the property. The court is empowered, in such an action, to clear up all doubts and disputes and to quiet and settle the title to the property. See General Statutes §§ 47-31.
Since an action to quiet title is brought pursuant to the authority provided in General Statutes §§ 47-31 and 47-32, the normal course would have been for the plaintiffs to have included the statutory citation in their complaint. Practice Book § 10-3(a). Despite this absence, the defendants did not file a request that the plaintiffs revise their complaint in this regard. Instead, the defendants answered the complaint, and thus waived their right to file a request to revise. Practice Book § 10-7. The addition of the statutory citation, at this point, would not materially alter the case. The complaint, as written, has fairly put the defendants on notice of the claims against them.
Claims for damages and appropriate equitable relief can be included in an action to quiet title. See Loewenberg v. Wallace, 147 Conn. 689, 692, 197 A.2d 634 (1960); Blow v. Konetchy, 107 Conn.App. 777, 946 A.2d 943 (2008) (plaintiff enjoined from using driveway, which was obtained through a grant of easement and which ran over a part of defendant's property, in a manner that interfered with the defendant's use of his property); Dream Homes, Inc. v. Conn. South Development, Inc., Superior Court, Judicial District of Ansonia-Milford, Docket No. 88 027050 (May 10, 1990, Fuller, J.) (defendant alleged to have disturbed areas on either side of a driveway by cutting trees, excavating and grading in the area of a disputed easement, and the court was asked to quiet title, award damages, and issue injunction). An action to quiet title can be brought to resolve ambiguities in a deed. Faiola v. Faiola, 156 Conn. 12, 18, 238 A.2d 405 (1968); Mandes v. Godiksen, 57 Conn.App. 79, 83, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000) (the nature and extent of an easement "usually must be decided by a trial court . . ."). Such an action is also an appropriate vehicle to address questions relating to the creation of a right of way. See Blow v. Konetchy, supra, 107 Conn.App. 777.
Summary judgment is inappropriate if the pleadings, affidavits, and other proof submitted reveal genuine issues as to material fact. Furthermore, summary judgment is inappropriate if the pleadings, affidavits, and other proof submitted do not show that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. Here, Chester Lichaj has clearly failed to meet his burden. Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006).
Chester Lichaj insists that he is free to continue on the path he has chosen, despite the clear statement in the deed that the parties share " payment for said maintenance . . ." (Emphasis added.) The latter language militates more in favor of the plaintiffs than Chester Lichaj on the question of who is entitled to summary judgment. The deed does not appear to contemplate that either party may undertake to carry out, personally, the maintenance described in the deed. In fact, the plaintiffs assert that Chester Lichaj has carried out maintenance tasks in a ponderous and inept manner, resulting in destruction to their property and limitations on their use of it. If these assertions are proven to be true, they support an interpretation of the deed that calls for a third party, which would be paid for its services, to do the maintenance work expeditiously and professionally. Furthermore, there is a serious question regarding the validity of Chester Lichaj's apparent interpretation of the deed insofar as he believes that he is free to block the plaintiffs from the use of the right of way whenever he chooses to "maintain" the right of way following a snow storm.
Chester Lichaj mistakenly believes that because the plaintiffs have not yet expended funds to repair damage, they have not suffered damage. The plaintiffs have asserted specific damage claims. One need not advance the funds to repair the damage caused by a defendant as a condition precedent to seeking recovery for the damage that the defendant allegedly caused.
Chester Lichaj asserts that "a cause of action is complete only when a party suffers injury as a result of the lawful actions of others. Otherwise, no damages may be recovered by virtue of the principle of law known as `damnum absque injuria.'" In support, Chester Lichaj cites Mazzucco v. Krall Coal Oil Co., 172 Conn. 355, 374 A.2d 1047 (1977). Chester Lichaj's reliance on Mazzucco is misplaced. In Mazzucco, a personal injury action, the plaintiff was unable to provide sufficient evidence of his lost earning capacity. The court found that when the issue of lost earning capacity is overly speculative, it cannot be submitted to the jury. Id., 359-61.
The court also notes that Chester Lichaj claims that there are no restrictions on his right to plow the right of way and the type of equipment that may be used for the plowing and that the right of way is fifty feet in width. Despite these claims, the deed proffered by Chester Lichaj provides that the right of way is to be maintained in its present condition and that it shall not be substantially increased in width. Thus, there appears to be a material question as to whether the manner in which Chester Lichaj has used the right of way has been consistent with the deed.
Finally, there is a clear dispute as to Chester Lichaj's alleged harassment of the plaintiffs. The plaintiffs claim that such harassment has made them fearful and deprived them of the use of their property. Chester Lichaj blames Lori Welles for the confrontations and argues that her claims are "specious."
The foregoing recitation of disputed issues is not intended to be comprehensive. Other material issues of fact exist, which are apparent in the pleadings, and all such issues must be resolved at trial. Thus, Chester Lichaj's motion does not begin to meet the standard necessary to prevail on a motion for summary judgment. There are genuine issues of material fact to be resolved, and there are serious questions as to whether Chester Lichaj is entitled to judgment as a matter of law. As a result, Chester Lichaj's motion for summary judgment is denied.
CT Page 18848