Cheryl Valadez v. Edward Peruta et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Pursuant to Practice Book § 17–49, the defendants Edward Peruta, Lois Peruta and Jeffrey Harris have moved for summary judgment on all counts of the complaint.

For the reasons set forth herein, summary judgment enters in favor of the defendant Lois Peruta as to all counts.   Summary judgment enters in favor of the defendants Edward Peruta and Jeffrey Harris as to the Second Count (recklessness), the Third Count (trespass to land), and the Eighth Count (intentional infliction of emotional distress).

As to the remainder of the plaintiff's claims, there are genuine issues of material fact which must be decided at trial.

I. FACTS AND PROCEDURAL BACKGROUND

In October of 2007, the plaintiff Cheryl Valadez resided at 29A Carillon Drive in Rocky Hill, a condominium unit owned by the defendant, Jeffery Harris.   Harris and Valadez had been in a relationship for approximately ten years.   The plaintiff did not make any rent or mortgage payments, and she did not have a lease arrangement with Harris.   She was allowed to enter, use and remain in the condominium unit as a house guest of Jeffrey Harris.

On October 28, 2007, Harris had a heated argument with Valadez, after which he left the condominium unit and decided to sleep elsewhere for the night.   Through a series of circumstances not material to the resolution of this motion, the defendant Jeffrey Harris became hospitalized and on October 30, 2007, executed a General Power of Attorney designating the defendant Edward Peruta as his attorney-in-fact.   The power of attorney granted Peruta power over Harris' real estate, including “the right to remove tenants and to recover possession.”   Harris requested that Peruta go to the condominium unit occupied by plaintiff Valadez, and instruct her to vacate the property.

Later on October 30, 2007, Peruta undertook to carry out the instruction.   He went to the Rocky Hill Police Department and requested that police officers accompany him to the condominium unit.   Upon arrival at the condominium, Peruta went to the rear of the unit and shouted up to Valadez (inside the unit) that there were two men downstairs that wanted to speak to her.

Valadez met the three men at the front of the unit and an altercation ensued when the plaintiff attempted to prevent Peruta from entering the condominium unit.   Officers were required to restrain the plaintiff by taking hold of her arms.   Peruta advised Valadez that she was no longer permitted to reside at the premises and demanded that she pack up her belongings and leave the unit by 8:00 a.m. the next day.   Peruta entered the condominium unit and, after he did so, Valadez left the area.   She did not return to the condominium unit that night.

The next morning, October 31, 2007, Valadez returned to the parking lot outside the condominium unit in the company of a friend, Sharon Hartstein.   She remained in the car with her friend and they both observed the defendant Edward Peruta, accompanied by defendant Lois Peruta, a Rocky Hill police officer and possibly other unidentified individuals (the evidence as to other persons is unclear) entering the condominium unit.   Later, they observed “men” taking black plastic garbage bags to the trash dumpster.   While the defendants were inside the condominium, the Rocky Hill Police informed Edward Peruta that they had been advised by the Housing Court that Peruta was not legally authorized to remove Valadez's possessions from the unit, and requested that he stop what he was doing.   Peruta ceased his activities and left the area.   Later on October 31, 2007, Valadez re-entered the condominium unit and found that some of her possessions were missing and that others had been indiscriminately packed into black plastic bags.   In one of the bags a bottle of bleach had leaked, damaging the clothing within.

This action was commenced in May of 2010.   The complaint is in eight counts:  negligence, recklessness, trespass to land, trespass to chattels and conversion, assault and battery, false imprisonment, negligent infliction of emotional distress, and intentional infliction of emotional distress.

The defendants now move for summary judgment as to the entirety of the complaint.

II. ANALYSIS

A. Summary Judgment, Generally

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.   The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “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, 260 A.2d 596 (1969).

In reviewing the evidence offered, the trial court must “view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted).  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).   When deciding a summary judgment motion, the trial court may not decide issues of material fact, but only determine whether such genuine issues exist.   Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

B. Discussion:  Lois Peruta

In her opposition papers, the plaintiff represents that she does not pursue claims of assault, battery and false imprisonment against Lois Peruta (Plaintiff's March 23, 2012 Response to Motion for Summary Judgment, Section E.).   Indeed, the complaint does reflect that the Fifth Count (assault and battery) and the Sixth Count (false imprisonment) are pled only against defendants Edward Peruta and Jeffrey Harris.

There does not appear to be any dispute that the defendant Lois Peruta was not present for or involved in the events which occurred at the condominium unit on October 30, 2007.   Lois Peruta was present at the condominium unit on the morning of October 31, 2007.   But, after close scrutiny of the deposition testimony and affidavit of the plaintiff Cheryl Valadez (Exhibit A to the defendants' motion for summary judgment and Exhibit 5 to the plaintiff's opposition to summary judgment) and the deposition testimony and affidavit of the fact witness Sharon Hartstein (Exhibit G to the defendants' motion for summary judgment and Exhibit 11 to the plaintiff's opposition to summary judgment), the court finds that the plaintiff has not brought forth evidence which would create a genuine issue of material fact as to the central allegation of tortious conduct of Lois Peruta on the morning of October 31, 2007:  that she “personally handled and disposed of the plaintiff's property.”  (Complaint, ¶ 31.)   Aside from that allegation, there is no other conduct in the plaintiff's complaint attributed to Lois Peruta.

The court finds that there is no genuine issue of material fact as to the absence of acts or omissions of the defendant Lois Peruta on either October 30, 2007 or October 31, 2007 which proximately caused harm or loss to the plaintiff, whether caused by negligence (First Count), recklessness (Second Count), trespass to chattels and conversion (Fourth Count), negligent infliction of emotional distress (Seventh Count), or intentional infliction of emotional distress (Eighth Count).   Summary judgment is therefore granted in favor of the defendant Lois Peruta as to all counts of the complaint.

C. Discussion:  Second Count, Recklessness

The Appellate Court recently summarized the elements of the common law action for reckless conduct:

In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.   It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention ․

(Citations omitted;  internal quotation marks omitted.)  Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 90 (2013).

In the present case, the plaintiff's recklessness cause of action in the Second Count is based completely on her allegations of negligent conduct.   There is no conduct that is specifically alleged to be reckless or wanton.   Merely using the term “recklessness” to describe conduct previously alleged as negligence is insufficient as a matter of law.  Di Teresi v. Stamford Health System, supra, 142 Conn.App. 91.   Having reviewed the complaint and the documentary evidence, this court cannot characterize the defendants' conduct described in the second court as “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).   Summary judgment is granted in favor of all defendants as to the Second Count.

D. Discussion:  Third Count, Trespass to Land

In order for the plaintiff to establish a cause of action for trespass to land, she must prove 1) ownership or a possessory interest in the land in question, 2) an invasion, intrusion or entry by the defendant which affects the plaintiff's exclusive possessory interest, 3) an intentional act, and 4) a direct injury.  Szekeres v. Szekeres, 126 Conn.App. 829, 850, 16 A.3d 237 (2011).   A defendant need not intend the injury.   He must merely intend the act which produces the intrusion or entry.  City of Bristol v. Tilcon Materials, Inc., 284 Conn. 55, 88, 931 A.2d 237 (2007).

The defendants argue that there is no genuine issue of material fact as to the plaintiff's inability to prove the first element of the trespass cause of action.   The plaintiff claims that she has presented evidence sufficient to raise a triable issue of fact as to her exclusive possessory interest in the property, based on theories of implied contract between unmarried cohabitants.   The plaintiff provides no legal authority for the proposition that an unmarried cohabitant's equitable interest in real property can ripen to a possessory interest sufficient to exclude others, much less to exclude the record title owner of the property or his designated representative.   The court is aware of none.

In addition, the plaintiff disputes the validity of the power of attorney under which Edward Peruta was acting.   But the plaintiff has failed to provide evidence sufficient to create a genuine material dispute as to that issue.

In this case the plaintiff did not have an exclusive possessory interest in the property.   The court finds, as a matter of law, that the defendants did not commit a trespass.   Summary judgment is granted in favor of all defendants as to the Third Count.

E. Discussion:  Eighth Count, Intentional Infliction of Emotional Distress

Liability for intentional infliction of emotional distress must involve conduct which exceeds all bounds usually tolerated by a decent society.   Bombalicki v. Pastore, 71 Conn.App. 835, 839–40, 804 A.2d 856 (2002).   The question is whether the allegations in the complaint set forth behavior which a reasonable fact finder could find to be extreme and outrageous—meaning atrocious and utterly intolerable in a civilized society.   Conduct which is merely insulting, or displays bad manners, or results in hurt feelings, is insufficient to create liability based upon intentional infliction of emotional distress.  Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court.  Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999).

In summary form, the conduct of the defendants which forms the basis for the claim of intentional infliction of emotional distress is 1) an allegedly unlawful eviction;  2) some shouting;  3) attempting to enter the residence by force;  4) detaining the plaintiff and physically restraining her, causing pain;  5) ordering the plaintiff to leave the residence;  and 6) attempting to pack the plaintiff's belongings and, in the process, damaging or destroying some of those belongings.   That conduct, even when examined in a light most favorable to the plaintiff, cannot be fairly characterized as extreme and outrageous as those concepts have been repeatedly described and explained in the relevant case law.   Summary judgment is granted in favor of all defendants as to the Eighth Count.

F. Discussion:  Material Disputes of Fact as to Claims in the First Count (Negligence), the Fourth Count (Trespass to Chattels), the Fifth Count (Assault and Battery) and the Sixth Count (False Imprisonment)

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

An “ ‘[i]ssue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).   “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The First Count of the complaint sounds in negligence and alleges that the defendants owed the plaintiff Valadez “a duty of reasonable care not to evict the plaintiff, exclude her from her residence, or disturb, damage or destroy her personal property.”  (Complaint, ¶ 31.)   It is further alleged that the defendants breached that duty in conducting an unlawful eviction and in the handling of the plaintiff's personal possessions.

“Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).   The court finds that the questions of the nature of the defendants' duty and the breach of that duty in this particular fact situation are neither simple nor distinct;  they invoke considerations of reasonableness and credibility that are the exclusive province of the trier of fact.   Summary judgment as to the negligence claim is denied.

The Fourth Count of the complaint states a cause of action for trespass to chattels and conversion.   Our Supreme Court has defined trespass to chattels as “intentionally [a] dispossessing another of the chattel, or [b] using or intermeddling with a chattel in the possession of another.”  (Internal quotation marks omitted.)  Simms v. Chiasson, 277 Conn. 331, 890 A.2d 548 (2006).   The defendants assert that since Peruta was operating under a legal right on behalf of the rightful property owner, he cannot be liable for trespass to chattels.   Secondly, the defendants argue that the plaintiff cannot prove that “the defendants touched or damaged any items within the condominium.”   The court disagrees with both arguments.   Regardless of the status of the plaintiff with respect to her presence within the condominium unit, she still had a legally protected interest in her possessions that would support an action for trespass to chattels.   See 1 Restatement (Second), Torts § 218 (1965).   Factually, the plaintiff has presented sufficient circumstantial evidence as to damage, destruction or conversion of her possessions to create a triable issue of fact and withstand summary judgment.

The Fifth Count of the complaint is an action for assault and battery.   Liability for assault arises “if a person acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and [b] the other is thereby put in such imminent apprehension.”   Liability for battery arises “if a person acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and [b] a harmful contact with the person of the other directly or indirectly results.”   See Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006);  1 Restatement (Second), Torts §§ 13, 21 (1965).   Applying these elements to the facts at hand, the court cannot conclude that the defendants have met their burden of showing the nonexistence of any issue of fact.   The various descriptions by the persons present on the evening of October 31, 2007 indicate that situation was tense and dramatic.   The intent with which various persons acted in that situation, whether those actions were objectively harmful or offensive, and whether the plaintiff was genuinely in apprehension of harmful contact, are all questions to be answered by a jury, and not by this court on summary judgment.

The Sixth Count states a claim for false imprisonment.  “False imprisonment ․ is the unlawful restraint by one person of the physical liberty of another.”  Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982).   To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly.”  (Citations omitted;  internal quotation marks omitted.)  Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992).

The defendants have sought summary judgment on the Sixth Count without specifically arguing the basis and support for summary judgment.

The Seventh Count asserts a claim of negligent infliction of emotional distress.   The Connecticut Supreme Court has expressly limited emotional distress claims to those claims in which the “conduct [of the defendant(s) ] involved an unreasonable risk of causing emotional distress and that distress, if it were caused might result in bodily harm.”  Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997) ․ [T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress ․ [which] might result in illness or bodily harm.”  (Citations omitted;  internal quotation marks omitted.)   Giovanelli v. Cantor, Floman, Gross, Kelly & Sacramone, Superior Court, judicial district of New Haven, Docket No. 07 5010641 (January 30, 2008, Robinson, J.) [44 Conn. L. Rptr. 802].

The defendants have sought summary judgment on the Seventh Count without specifically arguing the basis and support for summary judgment.   They assert that because the plaintiff's claims for the common law torts of assault and battery, false imprisonment and trespass fail, any claims for emotional distress must also fail.   That is a logical connection that the court fails to grasp.   Examining the evidence, the question of whether the defendants' conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused might result in bodily harm is in dispute and is a genuine issue of material fact.   Summary judgment as to that claim is therefore not proper.

This court has carefully reviewed the documentary exhibits and deposition testimony, identifying therein the evidentiary facts and the inferences and conclusions that can reasonably be drawn from them in the light most favorable to the plaintiff.   Having considered the parties' evidence and memoranda of law, the court cannot conclude that the defendants Edward Peruta and Jeffrey Harris have met their burden of showing the nonexistence of any issue of fact on the plaintiff's causes of action for negligence, trespass to chattels, assault and battery, false imprisonment and negligent infliction of emotional distress.

Summary judgment is therefore denied as to the defendants Edward Peruta and Jeffrey Harris on the claims in the First, Fourth, Fifth, Sixth and Seventh Counts.

III. CONCLUSION

Summary judgment is granted in favor of the defendant Lois Peruta on all counts of the complaint.

Summary judgment is granted as to the defendants Edward Peruta and Jeffrey Harris on the Second, Third, and Eighth counts of the complaint.

Summary judgment is denied as to the defendants Edward Peruta and Jeffrey Harris on the First, Fourth, Fifth, Sixth and Seventh Counts of the Complaint.

BY THE COURT,

Sheridan, J.

Sheridan, David M., J.