Arabelle Rowe v. Karen Rubin (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 104.00

The plaintiff, Arabelle Rowe, and the defendant, Karen Rubin, own adjacent condominium units in the common interest community known as One Old Church Road Townhouse Condominiums located in Greenwich, Connecticut.   The plaintiff alleges that over both units is an attic area.   The plaintiff further alleges that this attic is a common area appurtenant to both units.   The plaintiff, who is the owner of Unit 10, Old Church Road Townhouse Condominiums, alleges that the defendant, who is the owner of Unit 9, Old Church Road Townhouse Condominiums, nailed shut a hatchway in the ceiling of the plaintiff's unit, thus preventing her from gaining access to the attic which she, as owner of Unit 10, has a right to use.   The plaintiff alleges in the Fifth Count of her five-count Complaint that the defendant is liable to her for damages and other relief because the defendant “trespassed” on her unit, claiming that the “hatchway from Unit 10 to the Attic is part of Unit 10.”   The defendant moves to strike the Fifth Count of plaintiff's Complaint on the grounds that the plaintiff has failed to set forth a cause of action in this count upon which relief may be granted.   The defendant claims that the Fifth Count is legally insufficient because it fails to assert that the plaintiff is the exclusive owner of the hatchway and/or attic, a requirement for a cause of action for trespass.¹

Analysis

“Whenever a party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39.  “The proper procedural vehicle to challenge legal sufficiency of a proposed pleading is a motion to strike ․” Rizzuto v. Davidson Ladders, 280 Conn. 225, 256, 905 A.2d 1165 (2006).   A motion to strike for failure to state a claim under Practice Book Section 10–39 will be granted unless the “facts provable in the complaint would support a cause of action.”  Waters v. Autori, 236 Conn. 820, 826, 676 A.2d 357 (1996).  “In ruling on a motion to strike the court must assume that all well-stated allegations of fact, and any reasonable inferences that can be drawn therefrom, are true.”   Parker v. Colgate–Palmolive Co., 2003 Conn.Super. LEXIS 2487 at 2 (Conn.Super.Ct. Aug. 8, 2003).  “[H]owever, opinions and legal conclusions in the pleading, unsupported by alleged facts, are not grounds to deny a motion to strike.”  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  Faulkner v. United Techs.   Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “Although we are mindful that our jurisprudence requires us to interpret pleadings broadly, we must construe them reasonably to contain all that they mean but not in such a way as to ‘strain the bounds of rational comprehension.’  “ Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619, 629, 910 A.2d 209 (2006).

In the present case, the defendant argues that the Fifth Count lacks an assertion by the plaintiff that she is the exclusive owner of the attic, and her claim of trespass is therefore legally insufficient.   This court agrees with the defendant that a cause of action for trespass requires interference with an exclusive right over the area over which a trespass is claimed.   In Boyne v. Glastonbury, 110 Conn.App. 591, cert. denied, 289 Conn. 947 (2008), the Appellate Court discussed claims of trespass and nuisance as follows:

We begin our analysis with brief discussion of the difference between trespass and nuisance claims.   Historically, trespass and nuisance were two distinct common-law classes of injury involving real property.   A defendant who invaded a plaintiff's possession was a trespasser;  a defendant who interfered with a plaintiff's use and enjoyment of his property by acts done elsewhere than on the plaintiff's land was subject to a claim of nuisance.

Thus, the ancient distinction between trespass and nuisance, on the basis of whether an invasion of a plaintiff's land was direct or indirect, is not followed by more recent cases.   Instead, recent case law treats trespass cases as involving acts that interfere with a plaintiff's exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiff's use and enjoyment of real property.   In other words, the distinction no longer rests on the means by which the invasion is effected, but, instead, on the nature of the right with which the tortfeasor interferes ․ The two actions, trespass and private nuisance, are thus not entirely exclusive or inconsistent, and in a proper case in which the elements of both actions are fully present, the plaintiff may have his choice of one or the other, or may proceed upon both.  (Internal citations omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 599–600.

“Accordingly, in Connecticut, the essentials of an action for trespass are:  (1) ownership or possessory interest in land by the plaintiff;  (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest;  (3) done intentionally;  and (4) causing direct injury ․ [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter.   Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land.”  Boyne, supra, at 601.

With this authority in mind, and viewing the pleading in the light most favorable to sustaining its legal sufficiency, this court is not persuaded that the Fifth Count fails to set forth adequately a cause of action for trespass.   The plaintiff incorporates all prior paragraphs of her Complaint which, when read as a whole and proven to be true, would establish (1) that she is the sole and exclusive owner of the hatchway, (2) that there was an entry and/or intrusion upon the hatchway in the act of nailing it shut that adversely affected her possessory interest in it, and (3) that this action caused direct injury to her.   The plaintiff pleads trespass in her fifth count by virtue of the defendant's actions in sealing the hatchway, which she states is part of Unit 10 and therefore exclusive to her unit; ²  she does not allege trespass by actions related directly to the attic, which is a common or limited common element.   Thus, the defendant's reliance on Baldwin v. Village Walk Condominium, Inc., J.D. of Stamford/Norwalk at Stamford, D.N. CV 085007925, 2010 WL 50952319 (Nov. 19, 2010, Tobin, J.), which denied a claim for trespass for a purported entry onto common elements of a common interest community, is misplaced.

Therefore, the court finds the plaintiff's Fifth Count claiming trespass by the defendant sufficient as a matter of law.

Conclusion

For the reasons set forth above the defendant's Motion to Strike the Fifth Count of plaintiff's Complaint is denied.

By the Court,

Anthony D. Truglia, Jr. J.

FOOTNOTES

FN1. In her Motion to Strike, No. 104.00, the defendant also asks the court to strike the plaintiff's Prayer for Relief for punitive damages.   However, counsel for both parties agreed at oral argument that defendant did not intend to proceed with that part of her Motion, so the court will not address it in this Memorandum..  FN1. In her Motion to Strike, No. 104.00, the defendant also asks the court to strike the plaintiff's Prayer for Relief for punitive damages.   However, counsel for both parties agreed at oral argument that defendant did not intend to proceed with that part of her Motion, so the court will not address it in this Memorandum.

FN2. The court notes that the plaintiff refers to the hatchway both as part of the floor of the attic and as “part of Unit 10” but finds nevertheless that the Fifth Count sets forth a valid action and adequately apprises the defendant thereof..  FN2. The court notes that the plaintiff refers to the hatchway both as part of the floor of the attic and as “part of Unit 10” but finds nevertheless that the Fifth Count sets forth a valid action and adequately apprises the defendant thereof.

Truglia, Anthony D., J.