Anna Messina v. Andrew Buzzi, Executor of the Estate of John V. Valluzzo (2013)

MEMORANDUM OF DECISION

This action was commenced by the plaintiff, Anna Messina, against the defendant, Andrew Buzzi, Executor of the Estate of John V. Valluzzo, pursuant to § 47a–43 et seq., of the General Statutes.   In her complaint, the plaintiff alleges that on or about May 25, 2013, the defendant entered onto the property located at 423 Ridgebury Road in the town of Ridgefield where she had been residing in peaceable possession since 2009 and changed the gate code locking her out and making it impossible for her to regain possession without causing damage to the premises or committing a breach of peace.

The defendant had taken that action after having been appointed executor of Valluzzo's estate by the Ridgefield Probate Court.

The matter was assigned for a hearing and the parties appeared through counsel and offered evidence and testimony regarding the allegations in the plaintiff's complaint.   After hearing the evidence and testimony, the court reserved decision.   The defendant filed a motion to dismiss on July 29, 2013 in which he argued that this court lacked the requisite jurisdiction to hear the matter as it was more properly a claim against the decedent's estate and returnable to the Ridgefield Probate Court.   This court denied the motion to dismiss in a memorandum of decision dated August 28, 2013.

Section 47a–43(a) provides, in relevant part, “[w]hen any person ․ (3) enters into any land, tenement or dwelling unit and causes ․ the ․ 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 the Superior Court.”

Section 47a–45a(a) states that “[i]f it is found ․ (3) that damage has been caused to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) that the party put out of possession would be required to cause damage to the premises or commit a breach of peace in order to regain possession, as complained of, the judge shall render judgment that the complainant be restored to, and reseized of, the premises or that the personal property removed or detained be returned to the complainant, and shall award a writ of restitution accordingly.”

As the plaintiff noted in her memorandum in opposition to the defendant's motion to dismiss, “The right of action for forcible entry and detainer is a creature of statute.”  Communiter Break Co. v. Scinto, 196 Conn. 390, 392 (1985).  “A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed.”  Id., 393.

At the hearing, the plaintiff offered substantial evidence of her actual possession of the premises including her testimony as to her use of the premises as her residence and as her business office for several years.   She further evidenced her actual possession by way of exhibits including bank statements from the Savings Bank of Danbury and People's United Bank showing her address as 423 Ridgebury Road, Ridgefield and a copy of a flood insurance policy from Middlesex Mutual Assurance Company insuring property owned by the plaintiff in Danbury, but listing the residence of the plaintiff as 423 Ridgebury Road, Ridgefield.

The defendant did not offer any evidence or testimony to refute the plaintiff's claim that she had resided in the subject premises.   The defendant offered no testimony that he ever asked her if she wanted to return to the residence after having left under such extraordinary circumstances ¹ nor did the plaintiff ever state to the defendant that she no longer wished to continue to reside there.

By his action, the defendant prevented the plaintiff from returning to the residence and detained all of her possessions in the residence including her clothes, her furniture including a piano, her jewelry, her business records, her books and all of other personal property she had in the residence including an automobile.

The defendant raised the argument that by her conduct in leaving the residence on May 24, 2013 and by entering into negotiations with the defendant to obey his instruction that she obtain a moving van to remove personalty which she owned, the plaintiff abandoned her right to remain in the residence.   “ ‘Abandonment’ is a question of fact which implies a voluntary and intentional renunciation ․ The mere discontinuance of a use where there is no intent to abandon is not enough ․ To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the ․ use.”  (Internal quotation marks omitted.)  Cummings v. Tripp, 204 Conn. 67, 93 (1987).   As the plaintiff notes in her memorandum of law, the defendant has the burden of proving abandonment, citing Davis v. Gleeson, 5 Conn.Sup. 325 (1937).   The evidence before the court does not permit a finding that the defendant met his burden of proving abandonment by the plaintiff.

The plaintiff has established by the evidence and testimony presented that she had enjoyed peaceable possession of the premises for several years and had used it as her residence with the approval and consent of Valluzzo until his death on May 24, 2013, and there is no sufficient evidence to find that she intended to permanently vacate the residence upon his death or that she abandoned her use of the premises, as that term is defined by statute.

The plaintiff has proven that she was dispossessed by the actions of the defendant on May 25, 2013 in violation of § 47a–43(a), C.G.S., and that she is entitled to a judgment restoring her to the premises and reseizing of her personalty and, for that reason, a writ of restitution is to enter in her favor.   The plaintiff is entitled to remain in residence together with her personal effects unless and until the defendant, in his capacity as fiduciary of the Estate of John V. Valluzzo, obtains a writ of ejectment as provided by statute.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

FOOTNOTES

FN1. The plaintiff left the premises after Valluzzo was shot and killed at the residence and in her presence by an officer of the Ridgefield Police Department on May 24, 2013.   The plaintiff was locked out by the defendant on May 25, 2013..  FN1. The plaintiff left the premises after Valluzzo was shot and killed at the residence and in her presence by an officer of the Ridgefield Police Department on May 24, 2013.   The plaintiff was locked out by the defendant on May 25, 2013.

Doherty, Joseph W., J.