LLC v. Vincent Cimino (2010)

MEMORANDUM OF DECISION

The motion for use and occupancy presently before the court arises out of a summary process action that commenced on November 3, 2009, when the plaintiff, Drucas Builders, LLC, served the defendant, Vincent A. Cimino, with process.   On October 21, 2009, the plaintiff served the defendant with a notice to quit possession of the premises located at 159-61 East Main Street, Clinton, CT (the subject premises) on or before October 28, 2009 on the grounds of lapse of time and that the defendant had no right or privilege to occupy the premises.   On November 9, 2009, the plaintiff filed the summary process complaint and therein alleged the following facts.   On September 30, 2009, the plaintiff and the defendant “executed a[w]arranty [d]eed for the exchange of the property known as 159/161 East Main Street in Clinton, Connecticut.”   Following the transfer of the property, the defendant did not vacate the subject premises, and had no permission, right or privilege to occupy the subject premises.   As a result, the plaintiff properly served the defendant with a notice to quit possession.   Although the time given in the notice to quit possession has passed, the defendant continues to reside in the subject premises.   On November 18, 2009, the defendant filed his answer and therein the defendant admits that the plaintiff properly served him with a notice to quit possession and that he continues to reside in the premises, but denies the plaintiff's remaining allegations.

The parties disagree on the underlying facts of the case.   According to the plaintiff, on September 24, 2009 the defendant contacted Richard Ciardiello (Ciardiello), an owner of the plaintiff to inquire about a loan.   The defendant stated that he owned the subject premises and needed a loan to avoid losing it to his mortgage lender, The Savings Institute (SI).   The plaintiff agreed to loan the defendant $1.4 million to pay off the lender and the town of Clinton for unpaid property taxes, and the defendant agreed to secure the loan by executing a deed in lieu of foreclosure to the subject premises to be held in escrow in the event that the defendant defaulted on the loan.   The parties agreed to close the transaction on September 30, 2009.

On September 29, 2009, the plaintiff ran a title search and discovered that the defendant did not own the subject premises.   Rather, the plaintiff learned that on January 24, 2009, SI had taken title to the subject premises through its subsidiary, SI Realty Co., Inc. (SI Realty).   As part of the settlement of the foreclosure action, SI Realty granted the defendant the option to purchase the subject premises for $1.2 million, so long as the defendant exercised the option by no later than 5:00 p.m. on September 30, 2009, at which time the option would expire.   Furthermore, on the morning of September 30, 2009, the plaintiff learned that the amount of property tax owed on the subject premises was higher than expected and, as a result, the $1.4 million was insufficient to cover the cost of the option price, taxes and other fees and expenses.

Later that morning, the defendant and his attorney, Donald Brown, arrived at the office of the plaintiff's attorney, Steven Ciardiello (Attorney Ciardiello), the brother of Richard Ciardiello, to close the transaction.   Attorney Ciardiello informed the defendant that the $1.4 million would not cover the cost of the closing.   The defendant then asked the plaintiff if it would increase the loan amount to $1.5 million, but the plaintiff refused.   Thereafter, Brown asked Attorney Ciardiello if the plaintiff would be interested in purchasing the subject premises outright.   Attorney Ciardiello informed Ciardiello of the defendant's offer, and the plaintiff agreed to purchase the subject premises.   Brown subsequently drafted an agreement which terms provided that the defendant would convey all of his right, title and interest in the subject premises to the plaintiff in exchange for $1.2 million.   Later that day, the plaintiff paid $1.2 million to SI in exchange for the subject premises.   As a result, SI Realty conveyed a quitclaim deed for the subject premises to the defendant who simultaneously conveyed a warranty deed for the subject premises to the plaintiff.   The next morning, the plaintiff recorded the quitclaim deed and the warranty deed with the town of Clinton land records clerk.

By contrast, the defendant offers a significantly different version of the underlying facts.   According to the defendant, the plaintiff agreed to loan him $1.4 million to pay the debt owed to SI, and the parties agreed to execute the loan documents on September 30, 2009.   On that day, when the defendant and Brown arrived at Attorney Ciardiello's office to complete the transaction, Attorney Ciardiello stated that Ciardiello was away on business and would return the following day.   Attorney Ciardiello offered, however, to timely exercise the option by wiring $1.2 million to SI if the defendant agreed to execute a deed in lieu of foreclosure to the subject premises to be held in escrow by Attorney Ciardiello pending the execution of the loan documents on October 1, 2009.   With the 5:00 p.m. deadline to exercise the option looming, the defendant agreed to these terms and signed the deed.   The plaintiff subsequently wired the money to SI who in turn conveyed a quitclaim deed to the defendant.   On the morning of October 1, 2009, the defendant called Attorney Ciardiello's office to schedule a time to execute the loan documents, but was told that Attorney Ciardiello would not be available the entire day.   The defendant subsequently learned that on the morning of October 1, 2009, Attorney Ciardiello recorded the quitclaim deed and the warranty deed on the town of Clinton land records.   A few days later, the defendant claims the plaintiff attempted to extort three hundred thousand dollars from him.

On November 13, 2009, the defendant filed a six-count complaint against the plaintiff, Cimino v. Drucas Builders, LLC, Docket No. MMXCV095007828S, alleging, inter alia, that the defendant Cimino owns the subject premises, and that the plaintiff Drucas Builders unlawfully acquired the deed by misrepresenting to the defendant that it would be held in escrow pending a mortgage financing loan.   On January 6, 2010, the court, Holzberg, J., granted the defendant's motion to transfer the present case to the regular session of the Superior Court and consolidate the two cases.

On February 11, 2010, the plaintiff filed the instant motion for use and occupancy.   The plaintiff filed a memorandum of law in support of the motion along with documentary evidence on April 5, 2010.   The defendant filed a memorandum in opposition supported by documentary evidence on April 16, 2010.   The court heard the matter on April 26, 2010.

DISCUSSION

General Statutes § 47a-26b(a) provides in relevant part:  “If the defendant appears, the court shall, upon motion and without hearing, unless the defendant files an objection within five days of the filing of the motion, order the defendant to deposit with the court within ten days of the filing of the motion payments for use and occupancy ․ in an amount equal to the fair rental value of the premises during the pendency of such action accruing from the date of such order.”  “Under General Statutes § 47a-26b, the defendant may be directed to make payments for the use and occupancy of the premises during the pendency of a summary process action.”  Udolf v. West Hartford Spirit Shop, Inc., 20 Conn.App. 733, 735, 570 A.2d 240 (1990).   Additionally, “[u]se and occupancy can only be ordered as to appearing defendants and is intended to protect the landlord from loss of rental income while the tenant files such motions as [his or her] counsel may deem appropriate.”  (Internal quotation marks omitted.)   Inland US. Management, LLC v. University Suds, Inc., Superior Court, judicial district of New Britain, Docket No. NBSP 053207 (January 25, 2010, Gilligan, J.) (49 Conn. L. Rptr. 497, 498-99).

The plaintiff argues that the defendant is not the owner of the subject premises because he conveyed by warranty deed any and all rights and ownership interest in the subject premises to the plaintiff.   Accordingly, the plaintiff contends, it is entitled to use and occupancy payments because the defendant “wrongfully refused to relinquish possession of [the subject premises] and in doing so is preventing [the plaintiff] from using [the subject premises] for its own use and benefits.”   In support of its motion, the plaintiff attached a copy of the title report summary, a copy of the notice of option to purchase, a copy of the sales agreement in which the defendant agrees to convey the subject premises to the plaintiff in exchange for $1.2 million, an uncertified copy of the quitclaim deed, an uncertified copy of the warranty deed, and a copy of the notice to quit possession.   The plaintiff requests use and occupancy payments in the amount of $1,500 retroactive to October 1, 2009 and continuing until the resolution of this action.   The plaintiff submitted no evidence showing the fair rental value of the subject premises.   In response, the defendant counters that ownership is the thrust of the pending companion case and that the plaintiff is not entitled to use and occupancy payments until the issue of ownership of the subject premises has been resolved.   The defendant also contends that use and occupancy payments cannot be retroactive.   The defendant attached a copy of an unsigned escrow agreement to its memorandum.

General Statutes § 47a-23(a) provides in relevant part:  “When the owner ․ desires to obtain possession or occupancy of any land ․ and ․ when one originally had the right or privilege to occupy such premises but such right or privilege has terminated ․ such owner ․ shall give notice to each ․, occupant to quit possession or occupancy of such land ․ before the time specified in the notice for the lessee or occupant to quit possession or occupancy.”  General Statute § 47a-1(e) provides:  “ ‘Owner’ means one or more persons, jointly or severally, in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and includes a mortgagee in possession.”  (Emphasis added.)   Further, “[w]hen we have construed ‘owner’ in the context of real estate, we have defined the term with reference to title.   When we say, a [person] has the title to ․ [property], we mean, he [or she] is the owner of it;  and vice versa ․ Ownership is an essential incident of title and according to the commonly approved usage of the language ․ an owner is one that owns;  one that has the legal or rightful title whether the possessor or not.”  (Citations omitted;  internal quotation marks omitted.)   Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 372, 743 A.2d 653 (2000).   Moreover, “when the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)   Socha v. Bordeau, 277 Conn. 579, 587, 893 A.2d 422 (2006).

Further, “[t]he landlord bears the burden to prove the fair market value of an apartment in determining use and occupancy” Brewster Park, LLC v. Berger, Superior Court, judicial district of Fairfield, Housing Session, Docket No. CV1007720 (March 5, 2009, Moore, J.).   See also Anne W. La Farge Qualified Personal Residence Trust v. La Farge, Superior Court, judicial district of Middlesex, Housing Session, Docket No. CV916702 (February 9, 2009, Rubinow, J.) (party moving for use and occupancy payments required to prove amount due from occupant and court not permitted to speculate on amount of fair rental value of premises);  Livolsi v. Pylypchuk, Superior Court, judicial district of New Haven, Housing Session, Docket No. CVNH91 104747 (June 25, 1992, Vertefeuille, J.) (7 Conn. L. Rptr. 722, 723) (party moving for use and occupancy payments must offer evidence to establish fair rental value of premises).

Here, the plaintiff has produced an uncertified warranty deed showing that the defendant conveyed the subject premises to the plaintiff.   Pursuant to Socha, however, the plaintiff is required to produce a certified copy of the deed from the record in order to establish title to the subject premises.   Here, the deed produced by the plaintiff is uncertified and, therefore, the plaintiff has failed to meet its burden of establishing title to the subject premises.   See Stein v. Hillebrand, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0133644 (November 1, 1994, Lewis, J.) (plaintiff failed to meet his burden of establishing title to property because deeds attached to complaint were uncertified).   Furthermore, the plaintiff has not proffered any evidence showing that the fair rental value of the subject premises is $1,500 per month.

Accordingly, the court plaintiff's motion for use and occupancy is denied.¹

BURGDORFF, JUDGE

FOOTNOTES

FN1. Because the plaintiff's motion is denied, it is not necessary to address the plaintiff's request for retroactive use and occupancy payments.   It should be noted, however, that pursuant to § 47a-26b use and occupancy payments are prospective and not retrospective, and, therefore, a landlord is not entitled to use and occupancy payments for months prior to the hearing.   See Brownstein v. Fioretti, Superior Court, judicial district of Hartford, Docket No. HDSP 128808, CV 04 4001354 (February 6, 2006, Satter, J.) (40 Conn.L.Rptr. 759, 761)..  FN1. Because the plaintiff's motion is denied, it is not necessary to address the plaintiff's request for retroactive use and occupancy payments.   It should be noted, however, that pursuant to § 47a-26b use and occupancy payments are prospective and not retrospective, and, therefore, a landlord is not entitled to use and occupancy payments for months prior to the hearing.   See Brownstein v. Fioretti, Superior Court, judicial district of Hartford, Docket No. HDSP 128808, CV 04 4001354 (February 6, 2006, Satter, J.) (40 Conn.L.Rptr. 759, 761).

Burgdorff, Mary-Margaret D., J.