CT v. Ivamarie Dunbar et al. (2010)

MEMORANDUM OF DECISION REGARDING ON LOCKOUT COMPLAINT

Findings of Fact:

1. On September 23, 2010 the plaintiff instituted the instant action, a single-count complaint alleging a cause of action under C.G.S. 47a-43,¹ against the defendants alleging forcible detainer of property known as 6 Gramar Avenue, Prospect CT., hereinafter the “premises.”

2. The parties, through counsel, agreed that the plaintiff, fka Concrete Crafters, Inc., hereinafter “CC,” had possessory interest in said premises from 2007 through May 17, 2010 by virtue of being the lessee of the premises pursuant to a written commercial lease, with Concrete Crafters Reality, LLC, hereinafter “CCR,” being the landlord, with that lease term running from May 17, 2007 through May 16, 2014.

3. On May 17, 2010 the plaintiff sublet the entire premises, all plaintiff's leasehold from the lease described in paragraph 2 above, to the Original Curb People, LLC, hereinafter “OCP,” for a term running from May 17, 2010 to May 16, 2011 subject to OCP performing all the obligations of the lease between plaintiff and CCR.

4. OCP is not a party to the instant case.

5. CC was renamed Lost Cause, Inc. in September 2010.

6. In May 2010 Leon Burch owned the capital stock in CC, later known as Lost Cause, Inc.

7. Leon Burch filed a voluntary petition for bankruptcy in April 2010.   The bankruptcy discharge reportedly occurred in September 2010.

8. On September 17, 2010 Edmond Crumb acquired 100% of the capital stock of Lost Cause Inc, fka CC, pursuant to the order of the Bankruptcy Court and a Bill of Sale signed by the bankruptcy trustee.

9. On September 17, 2010 Edmond Crumb removed all former officers and directors of Lost Cause fka CC and the shareholders elected Edmond Crumb as president of Lost Cause and Kimberly Crumb as secretary of Lost Cause.

10. On September 17, 2010 Kimberly Crumb attempted to enter the premises.

11. The defendants refused her entry.

12. The defendant Dunbar is the owner/member of OCP. The defendant Burch is an employee of OCP.

13. The defendants, in their capacities as owner/member and employee of OCP refused to admit Kimberly Crumb because OCP claims an exclusive right of possession of the premises based on the sublease described in paragraph 3 above.

14. OCP is in possession of the subject premises since May 17, 2010 to this date.

15. Plaintiff claims to also be in possession of the subject property since May 17, 2010 to this date concurrently with OCP.

16. Plaintiffs offered evidence in support of its claimed continued possession of the property following the May 17, 2010 sublease:  photocopies of photographs showing the plaintiff's business name and mark/logo appeared on signs on the doors and windows of the premises, that the plaintiff's business name and mark/logo appeared on the doors/side of motor vehicles that were parked in the parking area of the subject premises and that various computer listings, including the listing provided to the CT Secretary of State, listed the plaintiff's business address as the same as the subject premises:  i.e. 6 Gramar Avenue, Prospect CT.

17. Plaintiff failed to prove that since May 17, 2010 any personal property located within the building located at 6 Gramar Ave was owned by plaintiffs.

18. Plaintiff failed to prove that vehicles located at the subject property since May 17, 2010, with or without plaintiff's name and mark/logo appearing on the vehicle, were owned by the plaintiff.

19. Plaintiff did prove that a variety of computer listings of the plaintiff's business address, including a filing with the Secretary of State done in September 2010, showing the subject premises, 6 Gramar Ave., Prospect CT, as the plaintiff's place of business.   However, there is no proof offered describing of whom, acting in what capacity, made the computer listings-including the aforementioned report to the CT Secretary of State.   The listing of an address on a computer website and/or the filing of an address with the Secretary of State, without more, is insufficient proof to sustain a finding that the lister/filer had a possessory interest in the address so listed.

20. Plaintiff did provide a one-page typewritten document, unsigned and with no indication of its author or source, dated October 14, 2010, indicating that it was:  “List of property removed after September 17, 2010 of Lost Cause of CT, Inc. Kept by Leon A. Burch and Ivamarie Dunbar (defendants herein, ed.) to preserve for Chase Bank's Blanket UCC.,” Plaintiff's Exhibit 3.

21. Additionally, Plaintiff's Exhibit 3 included two typewritten pages describing various items of personal property and vehicles, none of which were identified as property owned by plaintiff and/or located within the subject premises after May 17, 2010.   No testimony was offered to establish that the any items of property owned by the plaintiff were stored at the subject property after May 17, 2010.

22. Additionally, Plaintiff's Exhibit 3 included 22 pages of copies of documents entitled Concrete Crafters of CT, Inc. Aged Payables August 1, 2010 and October 14, 2010 as well as 4 pages of invoices submitted to Concrete Crafters of CT Inc and 5 pages of invoices submitted to Concrete Crafters NE. All invoices were dated after 5-17-10 and were addressed to the subject premises.

Applicable Legal Standards:

The plaintiff has chosen to proceed under C.G.S. 47a-43(4) ² which provides in pertinent part:

(a) When any person ․

(4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.

“The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property.   This process is for the purpose of restoring one to a possession which has been kept from him by force ․ For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry ․ [General Statutes § ]47a-43 was made to protect a person in such possession ․ from disturbance by any but lawful and orderly means.”  (Citations omitted;  internal quotation marks omitted.)  Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).

The starting point of the inquiry in this case is whether the plaintiff was in actual peaceable possession, as-contemplated by the subject statute, of the subject property after the May 17, 2010 sublease of the subject property from the plaintiff to OCP.

“This court previously has explained:  For a plaintiff to prevail [under § 47a-43 ], it must be shown that he was in actual possession at the time of the defendant's entry ․ Section 47a-43 was made to protect a person in such possession, although a trespasser, from disturbance by any but lawful and orderly means.  Berlingo v. Sterlin Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).   The question of actual possession is a question of fact.  Communiter Break Co. v. Scinto, 196 Conn. 390, 394 493 A.2d 182 (1985).   The inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise.   Continuous presence is not required, but there must be evidence of actual physical control, with the intent and apparent purpose of asserting dominion.”  (Internal quotation marks omitted, ed.), Fleming v. City of Bridgeport, 284 Conn. 502, 512-13, 935 A.2d 126 (2007).

The plaintiff failed to offer sufficient evidence of actual physical control, with the intent and apparent purpose of asserting dominion, of any portion of the subject property after the May 17, 2010 sublease was executed in favor of the Original Curb People, LLC. In order for this court to find the plaintiff was in actual peaceable possession of the subject premises.

Plaintiff had possession of the subject premises, by virtue of its position as lessee of the same, until May 17, 2010 when plaintiff sublet, with the permission of the landlord, the entire premises to OCP. On May 17, 2010 plaintiff voluntarily, and with permission of the landlord, gave its right to possession to its sublessee, OCP, retaining no continued rights of occupancy or possession, in the sublease, during the period of the sublease.   The term of the sublease is from May 2010 to May 2011.

Conclusion:

Plaintiff is unable to establish that after May 17, 2010 it was in actual possession of the subject premises either as of right or in fact.

Therefore, the plaintiff is unable to establish the first element of this statutory right of action:  one in possession of any “land, tenement or dwelling unit.”

Wherefore, judgment for the defendant must enter.

Zemetis, J.

FOOTNOTES

FN1. Plaintiff's counsel identified this statute as the basis for her clients claims during presentation of the instant matter..  FN1. Plaintiff's counsel identified this statute as the basis for her clients claims during presentation of the instant matter.

FN2. Sec. 47a-43.  (Formerly Sec. 52-462.)   Complaint and procedure:  Forcible entry and detainer;  entry and detainer. (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present..  FN2. Sec. 47a-43.  (Formerly Sec. 52-462.)   Complaint and procedure:  Forcible entry and detainer;  entry and detainer. (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.

Zemetis, Terence A., J.