Repton Angol v. 710 LLC (2013)

MEMORANDUM OF DECISION RE ENTRY AND DETAINER

This is an Entry and Detainer action brought by the Plaintiff, Repton Angol, against the Defendants, 710 Windsor, LLC (hereinafter “Windsor LLC”) and Michael Reiner (hereinafter “Reiner”), seeking monetary damages after the defendants allegedly prevented the plaintiff from accessing his personal property located at 710C Windsor Street, Hartford, CT (hereinafter the “premises”).   On April 12, 2013, the parties appeared before the Court for trial on the lockout complaint, with the court hearing testimony and reviewing exhibits.   Counsel subsequently filed post-trial briefs on April 26, 2013 concerning the relevant issues.

I. SUMMARY OF LEGAL ARGUMENTS

The Lockout Complaint filed by the plaintiff alleges that on or about May 30, 2011, the defendants violated Connecticut General Statutes section 47a–43, by changing the locks at the subject premises, and removing “vehicles including dump truck, 1967 Jaguar, Ford F–250 pick-up, various tools including tire machine, spin balancer, car lift, generators [and] other hand tools.'  “ ¹ At trial and in its brief, the plaintiff contends that he was a tenant, in actual possession of the subject premises, from 1994 until the time the defendants locked him out and removed his property.   Further, the plaintiff claims the defendants failed to follow proper legal procedure concerning notice and service of an Execution of Ejectment, after defendant, Windsor LLC became the record owner of the premises.   As a result of defendants' actions, the plaintiff seeks damages in excess of $100,000.00.

At trial and in their brief, the defendants contend that the plaintiff failed to establish the elements of a lock out, pursuant to section 47a–43.   Specifically, the defendants assert that the plaintiff did not prove, (1) actual possession of the subject premises at the time of the alleged lock out, and (2) forcible dispossession by the defendants.   Additionally, the defendants argue that the plaintiff was merely a caretaker of the property for the former owner, Dexter Chappell;  that plaintiff was fully aware of the ongoing ejectment action;  that no evidence was presented establishing individual liability as to defendant Michael Reiner;  and, that plaintiff failed to provide the court with evidence of his alleged damages, aside from speculative testimony at trial.

II. FINDINGS OF FACT

The court has weighed all the evidence and assessed the testimony and credibility of the witnesses, and reaches the conclusions set forth herein by a fair preponderance of the evidence.

On or about June 18, 2005, the plaintiff, Repton Angol, signed a lease agreement with Dexter Chappell, then owner of 710C Windsor Street, Hartford, Connecticut (hereinafter the “premises”).   The lease commenced on July 1, 2005, for a period of ten years with a monthly rent of two hundred dollars.   The plaintiff also performed maintenance services on the premises in exchange for a reduced rent.

The plaintiff, along with his brother, operated a construction business out of the subject premises.   Equipment, tools and vehicles used in connection with the business, as well as some personal property, were stored on the premises.

Defendant, Michael Reiner (hereinafter “Reiner”) is the sole member of defendant 710 Windsor LLC, and is also a Connecticut licensed attorney at law.

Sometime before the lockout took place, defendant, 710 Windsor, LLC (hereinafter “Windsor LLC”), became the record owner of the premises, after a tax lien foreclosure action was commenced against Mr. Chappell (City of Hartford v. Dexter E. Chappell et al., HHD–CV–07–5015221–S).  American Tax Funding, LLC, the substitute plaintiff in the foreclosure action, transferred the property to REOCO, LLC, who in turn conveyed the premises to defendant, Windsor LLC.

On or about May 3, 2011, the foreclosure court issued an Execution of Ejectment, naming “American Tax Funding, LLC,” as the person entitled to possession, and “Dexter E. Chappell,” as the person currently in possession.²

On May 10, 2011, Defendant Reiner requested the assistance of Whitey's Towing Company to remove a piece of construction equipment, belonging to the plaintiff, from the premises.   Sometime thereafter, the plaintiff became aware that his property was being removed from the premises.   When the plaintiff went to the property, he was prevented from accessing the premises, and any property stored therein.

Subsequently, on June 10, 2011, the plaintiff filed this entry and detainer action against the defendants, alleging the locks had been changed since May 30, 2011.

III. DISCUSSION

A. Burden of Proof

“While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it.”  Lukas v. New Haven, 184 Conn. 205, 211 (1981).   The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence.  Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923 (1982).   Failure to do so results in judgment for the defendant.  Id. “ ․ [W]hat is necessarily implied [in an allegation] need not be expressly alleged.”  Pamela B. v. Ment, 244 Conn. 296, 308 (1998).

B. Standard of Proof

The standard of proof in civil actions, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).

C. The Proceedings

“The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties.”  (Internal quotation marks omitted.)  Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005).  “It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ it is the quintessential function of the factfinder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].”  Smith v. Smith, 183 Conn. 121, 123 (1981).

“[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony.”  (Citation omitted;  internal quotation marks omitted.)   Toffolon v. Avon, 173 Conn. 525, 530 (1977).  “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.”   Smith v. Smith, supra, 183 Conn. at 123.  “The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.”  In re Christine F., 6 Conn.App. 360, 366, cert. denied, 199 Conn. 808 (1986).

D. Entry and Detainer:  C.G.S. § 47a–43

In support of his complaint, the plaintiff relies on C.G.S. Section 47a–43(a), which provides, “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.”

“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 Supreme Court] previously has identified a specific public policy underlying the entry and detainer statute—to prevent self-help on the part of landlords seeking to recover possession of the premises and to avoid the costs of the disturbances to the public that can result therefrom ․ There are several reasons why the law cannot suffer a forcible entry upon a peaceable possession, even though it be in the assertion of a valid title against a mere intruder:  First, whoever assumes to make such an entry makes himself judge in his own cause, and enforces his own judgment.   Second, he does this by the employment of force against a peaceable party.   Third, as the other party must have an equal right to judge his own cause, and to employ force in giving effect to his judgment, a breach of the public peace would be invited, and any wrong, if redressed at all, would be redressed at the cost of a public disturbance, and perhaps of serious bodily injury to the parties.”  (Citations omitted;  internal quotation marks omitted.)  Fleming v. Bridgeport, 284 Conn. 502, 512–13 (2007).   The entry and detainer statute does not protect “a possessor from being removed from the premises by the police in accordance with the criminal law for breach of the peace.”  Id., at 515.

“Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land ․ The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact.”  (Internal quotation marks omitted.   Internal citations omitted.)  Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn.App. 517, 520, 772 A.2d 154 (2001).   “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).

1. Plaintiff's Claim against Defendant Michael Reiner

In the case at bar, the plaintiff filed suit against 710 Windsor, LLC and Michael Reiner, as an individual.   Before addressing the elements of plaintiff's lockout claim, the Court must first address whether defendant Michael Reiner can be held personally liable for his actions as the sole member of the defendant LLC. Connecticut law describes when a member of an LLC cannot be held liable, “Except as provided in subsection (b) of this section, a person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.”  C.G.S., Section 34–133(a), “Liability of members and managers to third parties” (emphasis added).   State law further provides that “[a] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member's or manager's right against or liability to the limited liability company or as otherwise provided in an operating agreement.”  C.G.S. Section 34–134, “Members and managers as parties to actions” (emphasis added).

The plaintiff fails to provide any law within his post-trial brief to support the claim that Mr. Reiner, as the sole member of the LLC, should be held personally liable for his actions.   The plaintiff argues that Mr. Reiner's “actions were the individual acts of the Defendant as an attorney, and not the action of the Defendant LLC, which merely held title to the subject property.”   However, the evidence adduced at trial demonstrates that Mr. Reiner was in fact acting on behalf of 710 Windsor LLC, the new owner of the premises, when he sought to clear out the premises.   Although a towing slip indicates that “Michael Reiner” requested the removal of a vehicle from the premises, it would only make sense that the sole member of the LLC would be the person to make such a request.

Mr. Reiner cannot be held personally liable solely because he is the member of 710 Windsor, LLC. His actions were on behalf of the LLC, which owned the premises.   Therefore, this Court finds no individual liability against defendant Reiner for the alleged lockout.

2. Actual Possession by the Plaintiff

The plaintiff established he was in actual possession of the subject premises at the time of entry by defendant Windsor LLC. Although the plaintiff may not have been continuously present on the premises, he exercised the necessary dominion and control to establish actual possession.   The plaintiff signed a lease agreement with the previous owner, Dexter Chappell, which was to terminate in 2015, well after the lockout took place in 2011.   Mr. Chappell also testified that he had a landlord-tenant relationship with the plaintiff, who was a tenant and part-time caretaker of the property.   Furthermore, the plaintiff used the premises to store personal and business property.   Possessors of outdoor/indoor storage or warehouse space, like the plaintiff in this case, are not expected to be present on the property at all times, even though the items being stored remain there.

Defendants claim that Mr. Angol had no possessory interest in the premises, since he was, at most, a caretaker for the property.   However, “[m]any who have no right of possession to land or property are nonetheless in actual possession” within the meaning of § 47a–43.   A prime example would be a squatter in an apartment building ․ or a person currently in the actual, hostile, notorious and continuous possession of land.   In both circumstances, the party seeking relief under the entry and detainer statute lacked a legally cognizable possessory interest in the property, at least vis-a-vis its real owner.   Yet, neither party was precluded from recovering under § 47a–43 for failure to satisfy the standard of actual possession.”  Wilcox v. Ferraina, 920 A.2d 316, 100 Conn.App. 541, at 552 (2007) (internal quotations and citations omitted).

In its totality, the evidence shows that the plaintiff exercised sufficient dominion and control to constitute actual possession of the premises.

3. Entry by Defendant Windsor LLC

Beyond the element of actual possession, Section 47a–43 requires certain action on the part of the defendant, although not necessarily violent action.   Bourque v. Morris, 190 Conn. 364, 367 (1983).   Here, defendant Windsor LLC made forcible entry onto the premises without the consent of the plaintiff.   The defendant hired a moving company to remove plaintiff's property, which in fact happened, and barred the plaintiff's ingress and egress from the property, either by changing the locks or preventing access through other means.   Such conduct clearly falls within the ambit of the entry and detainer statute.

Defendant Windsor LLC also failed to utilize lawful and orderly means to remove the plaintiff's possessions from the premises.   Such a failure is something the entry and detainer statute was created to prevent.   The plaintiff was neither notified of the foreclosure action, nor served with the execution of ejectment.   In addition, a summary process action was not initiated by defendant Windsor LLC, seeking lawful possession of the premises from Mr. Angol.   Defendant Reiner testified that he thought the remaining property on the premises was garbage, and therefore could be discarded.   Regardless of how the property is characterized, the defendant failed to follow proper legal procedure in order to gain possession of, and clean out, the premises.

Based on the foregoing, the Court finds that defendant Windsor LLC forcibly entered the premises, in violation of § 47a–43.

4. Entry and Detainer Damages

The plaintiff has proven his lockout claim that entry and detainer occurred in violation of § 47a–43.   Therefore, the plaintiff is entitled to recover damages for losses he suffered as a result.

“It is axiomatic that a claimant seeking damages bears the burden of proving, with reasonable certainty, those damages sustained as a result of his injury.”  Fox v. Mason, 189 Conn. 484, 488 (1983).  “The owner of property is competent to testify to its value.”  Shane v. Tabor, 5 Conn.App. 363 (1985).  “Mere difficulty in the assessment of damages is not a sufficient reason for refusing them where the right to them has been established.”   Grant v. West Haven Gardens Co., 181 Conn. 379, 388 (1980), citing Crowell v. Palmer, 134 Conn. 502, 511 (1948).  “Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.”   Haskins v. Brown, CVH–5988, Superior Court of Connecticut, Hartford Housing Session (June 23, 2003), citing 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 309 (1996).

During the trial, plaintiff Angol testified as to the various tools, vehicles, construction equipment, and personal items that were removed from the premises, and their estimated values.   The plaintiff also submitted a single exhibit showing how much he had to pay to retrieve one vehicle that was towed away and stored by a moving company.³  The plaintiff alleges his damages total over $100,000.

The defendants contend that the plaintiff's testimony is self-serving, since the possessions and their values cannot be substantiated by any tangible proof, other than the plaintiff's own testimony.   At trial, Mr. Reiner testified he saw a Jaguar that had no engine in it, a dump truck and two boats that were on the outside of the fenced-in premises, and “garbage.”   Mr. Reiner admitted that the defendants spent several thousand dollars to have everything removed.

Aside from his own testimony and Exhibit 3, the plaintiff failed to provide the Court with any receipts, pictures, registrations or any other supportive documentary evidence to corroborate the date the items were acquired by the plaintiff.   Further, the plaintiff did not provide evidence of what was actually removed from the premises by the defendant, and the value for each item.   The Court notes that plaintiff testified that all of his records concerning his belongings were located in a file cabinet on the premises, which was removed by the defendant.   The plaintiff did not provide any testimonial evidence from any other witnesses to support his claim of damages.

Based on testimony alone, it is difficult for the Court to account for depreciation and current value of the items lost or damaged.   For the Court to hold a party liable for damages in excess of $100,000, there must be sufficient evidence set forth at trial to permit the Court to find such an amount.   Because the plaintiff did not provide sufficient evidence for the Court to make a more precise determination of damages, the Court was required to provide nominal amounts for items for which little or no proof of value was demonstrated.   Accordingly, the damages awarded by the Court will reflect a fair and reasonable estimate of the damages suffered by the plaintiff.

Having considered the evidence regarding damages caused by the improper actions of defendant Windsor LLC, the court finds that the plaintiff sustained the following damages:

1. Retrieval of “Dynahoe 200” $1,150.00 (Exhibit 3)

2. Lost Tools

Six (6) cordless drills at $25 each $150

Two (2) table saws at $30 each $60

Six (6) circular saws at $25 each $150

Four (4) nail guns at $25 each $100

Four (4) small air compressors at $25 each $100

One (1) large air compressor $125

One (1) tire machine $150

One (1) forty-foot ladder $100

One (1) twelve-foot ladder $40

One (1) six-foot ladder $25

One (1) four-foot ladder $20

3. Lost Vehicles

One (1) Jeep $250

Three (3) Dump Trucks at $350 each $1,050

One (1) Jaguar $200

Two (2) Boats at $300 each $600

Subtotal of Lost Tools and Vehicles $3,120.00

Total Damages:  $4,270.00, plus costs

JUDGMENT

Judgment enters for the plaintiff against the defendant, 710 Windsor, LLC, in the amount of $4,270.00, plus costs, as it is found that the defendant violated C.G.S. Section 47a–43.

By The Court,

Hon. Glenn A. Woods

FOOTNOTES

FN1. Verified Lockout Complaint, filed on June 10, 2011..  FN1. Verified Lockout Complaint, filed on June 10, 2011.

FN2. See City of Hartford v. Dexter E. Chappell et al., HHD–CV–07–5015221–S..  FN2. See City of Hartford v. Dexter E. Chappell et al., HHD–CV–07–5015221–S.

FN3. Whitey's Towing Receipt and Storage Slip. Plaintiff's Exhibit 3..  FN3. Whitey's Towing Receipt and Storage Slip. Plaintiff's Exhibit 3.

Woods, Glenn A., J.