Edward Closs v. City of Hartford (2013)

MEMORANDUM OF DECISION

I

NATURE AND PROCEDURAL CONTEXT

On May 2, 2011, Edward L. Closs, hereinafter referred to as the (“plaintiff”) filed a four-count complaint against the City of Hartford, hereinafter referred to as the (“defendant”).   Count one sounds in bailment, count two alleges conversion, count three asserts breach of warehouseman's duty of care as per General Statute § 42a–7–204 and count four alleges negligence.

Paragraphs 1 through 8 of the complaint lays out the broad premise relevant to the entire claim.   On September 14, 2010, the plaintiff was evicted from his residence at 58 Goshen Street Hartford, Connecticut, because said residence was being foreclosed upon.   At the time of plaintiff's eviction, his personal property was removed from the residence to the City of Hartford Public Works Department, located at 40 Jennings Road in Hartford, by the evicting Marshal Timothy J. Bennett.   The plaintiff alleges that amongst the personal property which was removed was furniture valued in excess of twenty-five thousand dollars ($25,000.00).   At the time the plaintiff's furniture and other personal property was removed to 40 Jennings Road, the evicting Marshall allegedly served and explained to the plaintiff the Execution of Ejectment, which indicated the plaintiff had fifteen (15) days to retrieve his property from the public works facility at the Jennings Road. Thirteen days later, on September 27, 2010, the plaintiff alleges that when he went to retrieve his furniture and personal property, he was informed by the Senior Project Manager, Rhonda Carroll, and James Paggiolli, Survey Supervisor, that most of his personal property including all of his furniture was no longer there and had been discarded.

On November 17, 2011, the defendant filed an answer and special defenses.   The defendant denied the material allegations of the complaint.   The matter came before the court on April 9, 2013, for a trial on the merits.

II

FACTUAL FINDINGS

1. The defendant, the City of Hartford is a municipal corporation duly organized under the laws of the State of Connecticut.

2. In the month of September 2010, the plaintiff was the resident of Hartford, Connecticut.   His residence was located at 58 Goshen Street, Hartford, Connecticut.   This residence was subject of the foreclosure action.   The Connecticut Housing Finance Authority initiated a foreclosure action against Edward Closs (plaintiff in the present case) in 2008.   A judgment was entered against Edward Closs on May 3, 2010.   The title of the subject property was transferred to the Connecticut Housing Authority on June 12, 2010, but Edward Closs continued to reside at the subject property.  (See Plaintiff's Exhibit–1.)

3. The Application and Execution for Ejectment was filed and granted by the Hartford Superior Court on August 8, 2010.   The plaintiff was properly served with the Execution for Ejectment on September 6, 2010.

4. On September 14, 2010, the plaintiff was evicted from 58 Goshen Street, Hartford, Connecticut.   The plaintiff's personal property and furniture were removed to the City of Hartford Public Works Department located at 40 Jennings Road in Hartford by State Marshall, Timothy J. Bennett.   However, there is no documentary evidence as to the nature of items removed.

5. On September 27, 2010, when plaintiff along with wife and friends came to retrieve his personal property and furniture from the Hartford Public Works Department, he became aware that some of property was missing or had been discarded.

6. Upon learning that some of his personal property was missing or had been discarded, the plaintiff contacted the Hartford police who came to the Hartford Public Works Department, located at 40 Jennings Road and wrote an incident report.  (See Plaintiff's Exhibit–3.)

7. The plaintiff submitted an invoice from “MOE'S Furniture.”   The invoice is dated 9/29/2010, thirteen days after the service of the ejectment.   The total amount of the invoice is shown as $28,333.44.   The payment is shown as $0.00 and the balance is listed as $28,333.44.   The invoice further indicates the ship date as 9/29/2010 and due date is also 9/29/2010.  (See Plaintiff's Exhibit–6.)

8. The plaintiff filed a notice of claim/damage with the defendant City of Hartford on September 30, 2013.  (See Plaintiff's Exhibit–8.)

9. General Statute § 49–22 provides guidance to the disposition of property upon the execution of ejectment on foreclosure judgment.   The period to retrieve the person's belongings after removal is 15 days.  (See Plaintiff's Exhibit–9.)

10. The primary dispatcher at the Public Works Department, Gary Hill was responsible for the plaintiff's transaction, who unfortunately, has passed away since.¹  (See Transcripts dated April 9, 2013 at page 128.)

11. The evicting Marshall did not provide a list of personal property which was taken from the plaintiff's residence on September 14, 2010.   Though, the plaintiff purportedly prepared a list after the fact.

The additional facts will be provided as deemed necessary.

III

Legal Standard as to Credibility

The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct.  Christie v. Eager, 129 Conn. 62, 64–65, 26 A.2d 352 (1942).  “[T]he trier of fact's assessment of the credibility of ․ witnesses ․ is made on the basis of its firsthand observation of their conduct, demeanor and attitude ․ The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact.”  (Internal quotation marks omitted.)   Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006).  “It is well established that [t]he trier of fact may accept or reject the testimony of any witness ․ The trier can, as well, decide what—all, none, or some—of a witness' testimony to accept or reject.”  (Citation omitted;  internal quotation marks omitted.)  Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

“The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint.”  Gulycz v. Stop & Shop Companies, Inc., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).   The defendant has the burden of proving its special defenses.   See Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 230, 975 A.2d 1266 (2009).

IV

ANALYSIS

The plaintiff contends that he was waiting for the evicting Marshall and remained present during the entire time while the items were being removed from his place of residence.   The plaintiff asserts that evicting Marshall prepared a list of items removed from his residence.   The evicting Marshall allegedly promised to furnish a copy of the subject list to the plaintiff.   As noted above, the plaintiff did not present Marshall's list at trial to prove what items were taken away from his residence at the time of ejectment.   There is only plaintiff's testimony that ejecting Marshall prepared a list and allegedly promised to provide him the list, but never did.   The court did not hear testimony from Marshall.   It is note worthy that the plaintiff issued subpoena to almost all of the witnesses who appeared at trial, but not to the evicting Marshall, who allegedly had the list of items removed from the residence.

The plaintiff attempted to prove the home furnishings and furniture present at time of eviction by furnishing a receipt from Moe's Furniture store.   The plaintiff's testimony in part contains the following:

Q. Did you ever go to Moe's Furniture?

A. I went to get a copy of everything that I bought before all this happened.

Q. Okay;  so you went to Moe's Furniture?

A. Yes.

Q. Why did you go to Moe's?

A. I wanted to get a copy of everything that I bought a year before to show that ․ what I had in the house and everything.

Q. Okay;  so when you say a year before we are ․ talking about in September 2010;  so approximately in September of 2009 you had bought some items at Moe's?

A. Yes. What happened is I had got the money from when I got married.   It was a wedding present so ․ and then my income tax so then me and my wife decided to go ahead and fix the house since it this was our first house so we fixed it and bought all new furniture for the house.

Q. So this furniture you had bought in Moe's in September 2009?

A. Yes.

Q. Okay;  And was the furniture you purchased at Moe's the furniture you testified earlier that was in your house prior to September 2010.

A. Yes.

Q. All right;  so looking at Exhibit 6, if you turn to the second page down the bottom there's a line that says total, and it says $28,333.44.

A. Yes.

Q. Is that how much you paid for these goods?

A. Yes, I did.

Q ․ from Moe's?

A. Yes, because we gotten money from wedding and my income tax, and we saved, and my wife got hers, and we put our money together, and we bought all new furniture.

Q. Okay, And did you pay that money up front?

A. Yes. I paid them half and then I paid them the other half.

(See Transcripts, dated April 9, 2013, pp. 47–51.)

The court finds that plaintiff's testimony is totally contradictory to his own exhibit 6. Moe's furniture store is a used furniture store, it does not sell new furniture.   The store is no longer in business and had been shut down due to consumer complaints.   The plaintiff testified that he paid half of purchase price i.e., ($15,000.00) up front.   When asked during cross examination whether he made these payments in equal amounts, he answered that he did not remember.   When further asked if he ever drew money from his account to make the payment, he answered some of it.   But he did not provide a copy of any bank withdrawal.   The invoice, which is obtained one year later, shows payment as $0.00.   The plaintiff testified that he has received money as wedding gifts, income tax and had savings to buy the furnishing for his residence.   He testifies that he was married about five years ago, i.e., approximately in 2008.   The court notes that foreclosure proceedings were initiated against him in 2008.  (CV–08–5015756–S.)

It defies logic that someone would buy new furniture while his house is being foreclosed upon.   The court finds the testimony of Police officer Bojka, James Paggioli and Rhonda Carroll to be credible.   The testimony of Edward Closs is totally lacking in credibility and the court attaches no weight to it.   The court has reviewed and considered the testimony, the exhibits and the parties' memoranda of the law to the facts and enters judgment for the defendant, City of Hartford.

VI.

CONCLUSION

For the foregoing reasons, judgment will enter for the defendant on all counts.   Judgment may enter accordingly.

BY THE COURT,

M. Nawaz Wahla, J.

FOOTNOTES

FN1. The dispatcher of Department of Public Works is contacted by the evicting State Marshall, either by phone or fax 24 hour in advance of any potential ejectment.   The dispatcher waits on the call and upon delivery, if any, allots the bin where the personal belongings of the evicted persons are stored.   See Transcripts dated April 9, 2013..  FN1. The dispatcher of Department of Public Works is contacted by the evicting State Marshall, either by phone or fax 24 hour in advance of any potential ejectment.   The dispatcher waits on the call and upon delivery, if any, allots the bin where the personal belongings of the evicted persons are stored.   See Transcripts dated April 9, 2013.

Wahla, M. Nawaz, J.