Anthony Nuzzo, Jr. v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 102)

FACTS

The present case comes before the court by way of a seven-count, second amended complaint filed by the plaintiff, Anthony Nuzzo, Jr., against the defendants, Robert G. Bartner, M. Beverly Bartner, Nicole S. Bartner, Jennifer M. Bartner Indeck, Arabella Higgins, and Bartner Group, LLC (Bartner Group),¹ on September 18, 2013.²  In his complaint, the plaintiff alleges the following facts.

The plaintiff is the owner of property located at 1114 Main Street and 1116–1122 Main Street in Branford (Nuzzo Property).   The Bartner Trustees are the current owners of property located at 1156 Main Street (Bartner Property).   The Bartner Trustees obtained the Bartner Property from the Bartners by way of a quitclaim deed dated December 18, 2012, and recorded in the Branford land records on December 20, 2012.   The Bartners, in turn, had obtained the property from Bartner Group, which conveyed it to them by quitclaim deed, also dated December 18, 2012, and recorded in the Branford land records December 20, 2012.

The Nuzzo Property and Bartner Property are commercial fishing lots fronting Main Street in Branford and have contiguous rear parking lots.   In April 1998, the plaintiff was approached by Robert Bartner for the purpose of obtaining an easement over the Nuzzo Property as a means of egress from the Bartner Property.   At the time, Robert Bartner was a representative of RGB Group, Ltd. (RGB Group), the owner of the Bartner Property prior to Bartner Group.

The plaintiff agreed to the requested easement in return for parking rights on the Bartner Property.   On July 17, 1998, the parties executed reciprocal easements granting RGB Group a right-of-way across a portion of the Nuzzo Property, and the plaintiff the right to park in designated parking spaces on the Bartner Property.   Since that time, the plaintiff has complied with the terms of the easements and has not interfered with the defendant's use of his property.   The defendants, however, have denied the plaintiff access to the designated parking spaces on the Bartner Property.

All of the plaintiff's claims stem, in large part, from the defendants' interference with his easement rights.   Count one of the plaintiff's amended complaint seeks a declaratory judgment pursuant to General Statutes § 52–29,³ and injunctive relief pursuant to General Statutes § 52–471 et seq.⁴  Count two asks the court to settle titles to the Bartner and Nuzzo properties.   Counts three, four, five, six, and seven allege breach of contract, unfair trade practices under General Statutes § 42–110g,⁵ breach of the covenant of good faith and fair dealing, promissory estoppel, and unjust enrichment, respectively.

On July 11, 2013, the defendants moved for summary judgment, arguing that the Bartners were incorrectly identified as the owners of the Bartner Property.   In support of their motion, the defendants attached two quitclaim deeds, which they claim demonstrate that twenty-seven seconds after recording their rights to the Bartner Property, the Bartners conveyed that property to the Bartner Trustees.   The defendants contend that because the Bartners have no present legal nexus to the Bartner Property, their motion for summary judgment should be granted.

The plaintiff objected to the defendants' motion for summary judgment on August 16, 2013, arguing, essentially, that even if the plaintiff incorrectly identified the Bartners as the current owners of the property, that fact was not material to his claims.   Additionally, the plaintiff argued that a motion to implead ⁶ the Bartner Trustees was pending before the court, and that it would be premature to grant summary judgment before determining if they would be joined as party defendants.   The matter was argued at short calendar on August 19, 2013.

DISCUSSION

“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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).

“[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;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The defendants argue that the Bartners possessed the Bartner Property for a mere twenty-seven seconds before conveying it to the Bartner Trustees.   Consequently, they contend that the Bartners have no current legal nexus to the Bartner Property and, thus, are entitled to summary judgment.   The plaintiff responds that whether the Bartners are the current owners of the Bartner Property is not a material fact.   He further argues that it would be premature to grant summary judgment without first adjudicating all legal and factual claims against the recently-joined Bartner Trustees.

“On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint.”  (Emphasis in original;  internal quotation marks omitted.)  Rickel v. Komaromi, 144 Conn.App. 775, 780, 73 A.3d 851 (2013).   Here, the plaintiff's complaint alleges that the defendants have interfered with his easement rights since the reciprocal easements were exchanged on July 17, 1998.⁷  Thus, to prevail on their motion for summary judgment, the defendants must demonstrate that there is no genuine issue of material fact that they did not interfere with the plaintiff's easement rights during that period.   The defendants have failed to meet that burden.   Their evidence establishes only that they did not own the Bartner Property after December 18, 2012.   It fails to account for the period of time prior to that during which Bartner Group is alleged to have owned the property.   Consequently, a triable issue of material fact remains and the defendants' motion for summary judgment must be denied.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. Robert G. Bartner, M. Beverly Bartner, and Bartner Group are the movants on the motion for summary judgment before the court.   Hereafter, Robert G. Bartner and M. Beverly Bartner shall be referred to collectively as the Bartners, and all three parties shall be referred to collectively as the defendants..  FN1. Robert G. Bartner, M. Beverly Bartner, and Bartner Group are the movants on the motion for summary judgment before the court.   Hereafter, Robert G. Bartner and M. Beverly Bartner shall be referred to collectively as the Bartners, and all three parties shall be referred to collectively as the defendants.

FN2. The plaintiff's initial complaint named only the Bartners and Bartner Group as defendants.   On August 16, 2013, the plaintiff moved to cite-in Nicole S. Bartner, Jennifer M. Bartner Indeck, and Arabella Higgins as co-trustees of the Bartner 2012 Grandchildren's Trust.   The court granted the plaintiff's motion on August 19, 2013, without objection from the defendants, and on September 5, 2013, the plaintiff served the additional defendants with the present amended complaint.   Hereafter, Nicole S. Bartner, Jennifer M. Bartner Indeck, and Arabella Higgins shall be referred to collectively as the Bartner Trustees..  FN2. The plaintiff's initial complaint named only the Bartners and Bartner Group as defendants.   On August 16, 2013, the plaintiff moved to cite-in Nicole S. Bartner, Jennifer M. Bartner Indeck, and Arabella Higgins as co-trustees of the Bartner 2012 Grandchildren's Trust.   The court granted the plaintiff's motion on August 19, 2013, without objection from the defendants, and on September 5, 2013, the plaintiff served the additional defendants with the present amended complaint.   Hereafter, Nicole S. Bartner, Jennifer M. Bartner Indeck, and Arabella Higgins shall be referred to collectively as the Bartner Trustees.

FN3. General Statutes § 52–29 provides:  “(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment. (b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”.  FN3. General Statutes § 52–29 provides:  “(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment. (b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

FN4. General Statutes § 52–471 provides:  “(a) Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable, returnable to any court, when the court is not in session.   Upon granting of the writ, the writ shall be of force until the sitting of the court and its further order thereon unless sooner lawfully dissolved. (b) No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness.”.  FN4. General Statutes § 52–471 provides:  “(a) Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable, returnable to any court, when the court is not in session.   Upon granting of the writ, the writ shall be of force until the sitting of the court and its further order thereon unless sooner lawfully dissolved. (b) No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness.”

FN5. General Statutes § 42–110g provides, in relevant part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages.   Proof of public interest or public injury shall not be required in any action brought under this section.   The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”.  FN5. General Statutes § 42–110g provides, in relevant part:  “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42–110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages.   Proof of public interest or public injury shall not be required in any action brought under this section.   The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”

FN6. The plaintiff entitled his motion, “Motion to Implead and Join Party Defendants,” and in it, cited to the impleader statute, General Statutes § 52–102a.   Section § 52–102a applies, however, to defendants—not plaintiffs—who wish to join additional party defendants to an action.   See General Statutes § 52–102a(a) (“[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him” [emphasis added] ).   Accordingly, the plaintiff's motion was more properly considered a motion to cite-in additional party defendants pursuant to General Statutes § 52–102 and Practice Book §§ 9–6 and 9–18..  FN6. The plaintiff entitled his motion, “Motion to Implead and Join Party Defendants,” and in it, cited to the impleader statute, General Statutes § 52–102a.   Section § 52–102a applies, however, to defendants—not plaintiffs—who wish to join additional party defendants to an action.   See General Statutes § 52–102a(a) (“[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him” [emphasis added] ).   Accordingly, the plaintiff's motion was more properly considered a motion to cite-in additional party defendants pursuant to General Statutes § 52–102 and Practice Book §§ 9–6 and 9–18.

FN7. The plaintiff's amended complaint is not a model of clarity.   Paragraph 18 alleges that “[t]he Parking Easement and Access Easement were executed, witnessed and acknowledged on July 17, 1998.”   Paragraph 19 alleges that “[s]ince the time that the cross-easements were exchanged, the Bartner Defendants have had the unrestricted use of the Access Easement over plaintiff's property for the benefit of themselves, their lessees and their business invitees without interference by the Plaintiff.”   Paragraph 20 alleges that “the Bartner Defendants have denied the plaintiff access to the parking spaces described in the Parking Easement, in violation of the terms of the Parking Easement in violation of the agreement of the parties.”   Unlike paragraph 19, paragraph 20 alleges no facts defining the time period during which the defendants are alleged to have interfered with the plaintiff's easement rights.   Nevertheless, “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012).   Because it can be reasonably inferred that the time limitation set forth in paragraph 19 was also intended to apply to paragraph 20, the plaintiff's complaint is crafted broadly enough to survive the defendants' motion for summary judgment.   In any event, should the defendants desire more specific allegations, “the proper way to cure any confusion [regarding a complaint] is to file a [request] to revise ․” Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988)..  FN7. The plaintiff's amended complaint is not a model of clarity.   Paragraph 18 alleges that “[t]he Parking Easement and Access Easement were executed, witnessed and acknowledged on July 17, 1998.”   Paragraph 19 alleges that “[s]ince the time that the cross-easements were exchanged, the Bartner Defendants have had the unrestricted use of the Access Easement over plaintiff's property for the benefit of themselves, their lessees and their business invitees without interference by the Plaintiff.”   Paragraph 20 alleges that “the Bartner Defendants have denied the plaintiff access to the parking spaces described in the Parking Easement, in violation of the terms of the Parking Easement in violation of the agreement of the parties.”   Unlike paragraph 19, paragraph 20 alleges no facts defining the time period during which the defendants are alleged to have interfered with the plaintiff's easement rights.   Nevertheless, “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012).   Because it can be reasonably inferred that the time limitation set forth in paragraph 19 was also intended to apply to paragraph 20, the plaintiff's complaint is crafted broadly enough to survive the defendants' motion for summary judgment.   In any event, should the defendants desire more specific allegations, “the proper way to cure any confusion [regarding a complaint] is to file a [request] to revise ․” Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).

Wilson, Robin L., J.