John Hartwell v. Town of Greenwich et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (121.00, 126.00)

I. Background

The plaintiff, John Hartwell, served a complaint dated April 9, 2009 on the Town of Greenwich (Greenwich) and various Greenwich commissions, divisions and officers, i.e. the Planning and Zoning Commission, the Greenwich Town Planner, the Zoning Enforcement Officer and the Town Engineering Division.   The essence of the operative Revised Complaint (Complaint) is that the defendants were complicit in activities on real property adjacent to the plaintiff's residential property that resulted in a trespass on the Hartwell property causing the plaintiff damages.   The circumstances involve the approval of an application by AT & T Wireless PCS, LCC to erect a cell tower on property owned by Brian and Laura Kelly located at 36 Ritch Avenue, next door to the plaintiffs property at 42 Ritch Avenue.   Subsequently, during the preparation of cell tower site, AT & T allegedly installed an underground drain pipe on the plaintiff's property that connected with the plaintiff's drain pipe which ran down his driveway to Ritch Avenue.   Hartwell has stated under oath and in letters to Greenwich officials, that the town-approved plans showed the drain pipe entirely on the Kelly property and running to Ritch Avenue.   Hartwell Deposition, August 24, 2010, 37-38, 64-65, and Exhibit 5 thereto.¹

After discovering a “sink hole” in his driveway allegedly related to the AT & T-installed drainage pipe on his property, the plaintiff sued the Kellys for damages, and the Kellys made a claim for indemnification from AT & T. Hartwell v. Kelly, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 06 5002869 S. In March 2008 Hartwell, the Kellys and AT & T settled the claims by way of a written agreement signed by all the parties.   Hartwell Deposition, Exhibit 4 (Kovack Aff., Exhibit C.) The agreement states Hartwell was suing for damages in trespass.   Pursuant to the agreement, Hartwell received $18,500 from AT & T, and the Kellys received $4,000 from AT & T. In return, Hartwell gave a general release to AT & T, and the Kellys “including but not limited to, any matters concerning the condition or use of the Hartwell Property.” and it was agreed that Hartwell could take such necessary action respecting the drain pipe and any other “allegedly trespassing improvements” consistent with all applicable laws and regulations.   Id., §§ 3.0, 2.2.

During his deposition and in correspondence with the Greenwich Planning and Zoning Commission, Hartwell described the problems he believes he has encountered from the installation of the drain pipe under his property.   Essentially, he asserts that he has been told that if he removes the offending pipe or blocks it that may result in flooding Ritch Avenue, a circumstance for which he may be held responsible.   Hartwell Deposition, 55-56, 116-17, Exhibit 5.

The Complaint in this case has five counts.   The first count alleges trespass against the defendants for approving the unauthorized placement of the drain pipe on Hartwell's property.   The second count alleges negligence in providing such approval.   The third count alleges breach of contract based on alleged promises by the defendants that the plaintiff's land would not be entered.   The remaining two counts allege unjust enrichment and fraud.   Curiously, the relief sought includes “treble damages” pursuant to General Statutes § 52-564 and attorneys fees pursuant to General Statutes § 42-110a, the Connecticut Unfair Trade Practices Act (CUTPA) although no cause of action predicated on those statutes exists in the Complaint or its predecessor pleading.

The defendants have moved for summary judgment dismissing all five counts generally on the grounds that Hartwell's settlement and release of his trespass claims eliminates any basis for claims against the Town of Greenwich and its municipal bodies and officers, and that the undisputed facts show there is no viable basis for any of the five counts in the complaint.   The plaintiff opposes summary judgment generally on the grounds that unresolved material fact questions preclude that remedy.

II. Scope of Review

Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

There are a substantial number of material facts in this case which are undisputed many of which are set forth in the initial section of this memorandum.²  The plaintiff, however, contends that there remain disputed facts, that discovery remains to be done as to other facts, and the pleadings are not closed.   As to the latter two points the plaintiff filed a Certificate of Closed Pleadings on March 9, 2010 (Dkt. Entry 117.00) and Practice Book § 17-47 provides that an affidavit of a party opposing a summary judgment motion to the effect that a party “cannot, for reasons stated, present facts essential to justify opposition” the court may deny summary judgment or may order a continuance to permit the obtaining of additional affidavits or additional discovery.   No Section 17-47 affidavit has been filed by the plaintiff.   While Hartwell has filed an affidavit in opposition to the motion, that affidavit simply recites facts or asserts disputes to factual averments of the defendants.   No facts are stated as to why certain information is unavailable, or why additional discovery is required.   Dkt. Entry 132.00.   In his memorandum, the plaintiff makes a brief reference to “gathering the evidence to prove [his] claims through discovery with the defendant,” but there is no request for continuance.   Pl. Opposition, 8. Based on the above record the court will not grant a continuance.

Hartwell's memorandum contains a section entitled “Undisputed Facts” which is a somewhat confusing melange of statements of purportedly undisputed and disputed facts.   For instance, this section contains the following:

4.  Hartwell found by way of a search of the Town of Greenwich Planning and Zoning Department, that plans providing for the installation of the pipe on the Hartwell property was filed and signed by the Town of Greenwich.

5. Hartwell disputes The Defendant's, Town of Greenwich (Greenwich), assertion that he has stated that the plans approved by Greenwich did not provide for the installation of the pipe on the Hartwell property.

The statement in Paragraph 4 to the effect that Greenwich signed off on plans to put a drain pipe on Hartwell's property has no evidentiary basis whatsoever.   Neither Hartwell's affidavit nor his deposition testimony support this claimed “undisputed fact.”   In Paragraph 5, Hartwell may dispute this contention of the defendants, but as noted above his deposition testimony confirms it.   Hartwell Deposition, 29, 37-38, 64-65, and Exhibits 3 (a chart drawn by Hartwell) and 5.³

Hartwell's affidavit sets forth additional matters, some of which he contends in his memorandum are disputed material facts.   The affidavit states:

8.  I dispute all assertions of Greenwich that I entered into said agreement with the intent to receive compensation to repair the pipe.

9. From the time of my discovery of the underground drainage pipe to present time, it has been my intention to remove the pipe.

10. I dispute all assertions of Greenwich that I knew at the time of my signing the agreement that I could not remove the pipe from my property and that the Town of Greenwich would refuse my plans for the removal of the pipe.

11. I dispute all assertions of Greenwich that I knew at the time of my signing the agreement that Greenwich had approved of the AT & T plans for the installation of the pipe on my property.

12. I did not intend that the agreement would in any way release Greenwich from liability for their acts causing the installation of the pipe on my property.

13. I also dispute all assertions of Greenwich that they have not refused plans submitted by myself and my agents.

14. During the course of 2007, I have attempted on more than one occasion to submit plans to the Town of Greenwich to remove the pipe and all attempts were refused.

For the most part, these sworn statements relate to Hartwell's intent and the state of his knowledge.   They do not controvert or put at issue the undisputed facts that the defendants played no role in the claimed installation of the drain pipe on Hartwell's property or the fact and terms of the settlement agreement between Hartwell, the Kellys and AT & T. The last two paragraphs of Hartwell's affidavit are completely unsubstantiated and do not relate to the claims in this case.

The court turns now to address the legal claims in the Complaint.   The necessary elements of a trespass claim are (1) an ownership or possessory interest in real property by the plaintiff, (2) invasion, intrusion or entry by the defendant affecting the plaintiffs interest, (3) done intentionally, and (4) causing direct injury.  City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87 (2007).   Paragraph 3 of the First Count in the Complaint states AT & T “by and through its agents installed an underground drainage pipe on the land of the plaintiff.”   This judicial admission and the deposition testimony of Hartwell conclusively establish that the second, third and fourth elements of a trespass claim cannot be established against these defendants.   Indeed, Hartwell clearly recognized who the trespassers were by instituting his earlier suit against the Kellys and AT & T, and he has testified that he has no evidence that the defendants told AT & T it could trespass on his land.   Hartwell Deposition, 96-97.   The court finds, as a matter of law, that the defendants did not commit a trespass.

The second count alleges that the defendants were negligent in that they owed a duty of care to prevent the alleged trespass, and that duty of care was breached by the defendants' approval of the entry on the plaintiff's land.   There is no evidence presented by the plaintiff that the defendants approved the alleged trespass.   As noted twice before, the plaintiff has admitted under oath that the approval of the cell tower application did not authorize any intrusion on plaintiff's property.

Additionally, the plaintiff cannot prevail on a claim of negligence unless, as a matter of law the defendant breached some duty of care owed the plaintiffs.   Gomes v. Commercial Union Insurance Company, 258 Conn. 603, 614-15 (2001).   The plaintiff stated several times in his deposition that he believed the defendants should have undertaken a “field check” to insure that all the conditions of the cell tower application approval had been met;  e.g. Hartwell Deposition, 38-39;  and this appears to be the basis for the allegations of a duty owed to the plaintiff.   As a matter of law, this court determines there was no duty owed by the defendants to the plaintiff to assure that no trespass took place.   The imposition of such a duty would place the untenable burden of making the defendants the guarantors that all activities requiring a municipal approval would be accomplished properly.   Not only would this be a financial and administrative nightmare, it would unjustifiably excuse persons in Hartwell's circumstance from taking action to protect their own interests.⁴

The third count alleges a breach of contract by the defendants.   The plaintiff alleges that “[b]efore approval” [of the cell tower] the defendants “communicated with plaintiff and gave assurance to the plaintiff that plaintiff's land would not be entered onto unless plaintiff agreed to the entry.”   Complaint, Third Count, ¶ 5.   The plaintiff has not offered any evidence of any agreement or contract.   One of the necessary elements of a contract is mutual assent or a meeting of the minds, i.e. an agreement that a contract existed, and a similar understanding of its essential terms.   Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249 (1970).   Another element is consideration.   There is no evidence of the existence of either element.   Neither has the plaintiff briefed this issue in his opposition.   Moreover, Hartwell testified repeatedly there was no contract between the parties.   Hartwell Deposition, 100-03.   On this record there is no material fact at issue, and the court determines as a matter of law that no contract existed, and no contract was breached.

In his fourth count the plaintiff pleads a claim of unjust enrichment.   The required elements of this claim are (1) the defendants received a benefit, (2) unjustly did not pay the plaintiff for the benefit, and (3) the failure to pay was to the plaintiff's detriment.  Rossman v. Morasco, 115 Conn.App. 234, 248 (2009).   The complaint alleges the defendants received “a benefit from their contract with AT & T ․” which resulted from entry on to the plaintiff's land.   Complaint, Fourth Count, ¶¶ 5-6.   There is no evidentiary basis for this allegation, and the defendants, and plaintiff's opposition does not argue to the contrary.   In the absence of any factual or legal basis for it, the claim is dismissed.

In the fifth count the plaintiff alleges that the defendants committed common-law fraud as follows:

5.  All named defendant represented, in word and in writing, to the plaintiff that said defendants would not approve entry onto plaintiff's land if plaintiff did not agree to said entry.

6. The assurances of all named defendants were made to induce the plaintiff to allow said entry.

7. All named defendants had no intention of disclosing the true fact that they would approve the entry onto plaintiff's land without his authorization.

8. The plaintiff relied upon the false representations of all named defendants.

9. The plaintiff was injured thereby.

10. The foregoing conduct of all named defendants constitutecommon-law fraud.

It is well recognized that the necessary elements to prove common-law fraud are (1) a false representation made a statement of fact, (2) which was untrue and known to be untrue by the person making it, (3) made to induce the other party to act on it, and (4) the other party did act or rely on the false representation to his injury.   In addition, the party asserting a fraud claim must prove it by a higher standard of proof, that of clear and convincing evidence.  Town of Trumbull v. Palmer, 123 Conn.App. 244, 257 (2010).   At his deposition, Hartwell did not understand at least one of the allegations in the fraud claim.   Hartwell Deposition, 116.   At another point he admitted that he had no evidence that the defendants authorized AT & T to trespass on his property.  Id., 97 Finally, the allegation, assuming the truth of it, that assurances were made to induce the plaintiff to allow entry on plaintiff's land was, by Hartwell's admission in his deposition, not effective, because he did not allow AT & T to enter.   Hartwell Deposition, 115-16.   Therefore, the critical element of reliance is absent as an undisputed fact.   As a matter of law the court finds that the claim of fraud must fail.

III. Conclusion

The problem apparently facing the plaintiff, which he has noted in his deposition and his affidavit, that he is stymied in his efforts to remove the drain pipe allegedly installed by AT & T because it may cause flooding, is not a part of this lawsuit as it is not reflected in the pleadings.   Nor should it be, because it arises out of the settlement agreement with AT & T and the Kellys wherein the pipe was allowed to remain on Hartwell's property and purportedly connected to his drainage system, a settlement agreement to which the defendants were not a party.

What is set forth in the pleadings are the five counts against the defendants discussed in this memorandum.   For the reasons set forth herein, and based on there being no material facts in dispute, the defendants' motions for summary judgment are granted, and the complaint against all defendants is dismissed.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. Exhibit 5 to the Hartwell Deposition is attached as Exhibit D to the Affidavit of Attorney Kovack filed in support of the motions for summary judgment.   Dkt. Entry 122.00..  FN1. Exhibit 5 to the Hartwell Deposition is attached as Exhibit D to the Affidavit of Attorney Kovack filed in support of the motions for summary judgment.   Dkt. Entry 122.00.

FN2. For the purpose of these motions, the defendants do not dispute that AT & T installed a drain pipe on Hartwell's property or that the pipe caused a “sink hole” on the property..  FN2. For the purpose of these motions, the defendants do not dispute that AT & T installed a drain pipe on Hartwell's property or that the pipe caused a “sink hole” on the property.

FN3. These Exhibits are Exhibits B and D to the Kovack Affidavit..  FN3. These Exhibits are Exhibits B and D to the Kovack Affidavit.

FN4. In his deposition Hartwell described what he believed to be the installation of an underground pipe extending from the Kelly property to his property and joining his drain system at a manhole in the middle of his paved driveway.   All of this happened while he was residing in his house, but he claims to never have noticed anything out of the ordinary-no soil, trench, pipe nor any disruption-until much later when a “sink hole” appeared in his driveway near the manhole which he attributes to the faulty pipe.   Hartwell Deposition, 33-35..  FN4. In his deposition Hartwell described what he believed to be the installation of an underground pipe extending from the Kelly property to his property and joining his drain system at a manhole in the middle of his paved driveway.   All of this happened while he was residing in his house, but he claims to never have noticed anything out of the ordinary-no soil, trench, pipe nor any disruption-until much later when a “sink hole” appeared in his driveway near the manhole which he attributes to the faulty pipe.   Hartwell Deposition, 33-35.

Adams, Taggart D., J.