Yale University v. S.K.M. Restaurants, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 140)

FACTS

This action for trespass arises from a property dispute between the plaintiff, Yale University, and the defendants, S.K.M. Restaurants, Inc. (SKM) and EWP Realty, LLC (EWP).   On August 18, 2010, the plaintiff filed a complaint, which alleges the following facts.   EWP owns real property at 294–300 York Street in New Haven (EWP Property), which it leases to SKM. SKM owns and operates a night club, Toad's Place, on the premises of the EWP Property and the rear portion of neighboring property at 290–292 York Street (collectively Toad's Place Property).   The plaintiff owns and occupies real property (Yale Property) abutting the Toad's Place Property to the northeast and northwest.   The northeast and northwest walls of the Toad's Place Property abut the Yale Property, and there are a total of five exits from the Toad's Place Property which open directly onto the Yale Property.¹  In 1978, the plaintiff and Michael Spoerndle, the then-owner and operator of Toad's Place, entered into a revocable license agreement in which the plaintiff allowed Toad's Place to use two of the exits on the EWP Property for purposes of emergency egress.   The license was revocable by the plaintiff upon written notice of termination.   In and before 2007, the plaintiff proposed an expanded license agreement to permit the defendants continued usage of the EWP Property doors for emergency egress and also to allow other entries onto the Yale Property.   The defendants, however, refused to execute an expanded license.   On July 21, 2008, the plaintiff revoked the 1978 license.   After July 21, 2008, Toad's Place employees, customers, business invitees, and/or guests repeatedly entered the Yale Property through the aforementioned exits for “improper purposes includ [ing] ․ smoking, drinking, and littering.”  (8/18/10 Pl.'s Compl. ¶ 9.)   The defendants intentionally and deliberately allowed, or failed to prevent, these numerous unauthorized entries onto the Yale Property, which interfere with the plaintiff's right to exclusive possession of and quiet use and enjoyment of its property.   This conduct constitutes a trespass.   The plaintiff seeks a permanent injunction enjoining the defendants and their employees and agents from entering or trespassing, or allowing other persons to enter the Yale Property from the doors of the Toad's Place Property.

On November 15, 2010, the defendants filed an answer, special defenses, and a six-count counterclaim.   In the counterclaim, the defendants assert that:  (1) they have acquired title to a portion of the Yale Property by adverse possession or easement by prescription, implication, or necessity; ²  (2) they are entitled to an injunction preventing the plaintiff from stopping their use of the doorways and paths to York Street;  and (3) the plaintiff's conduct constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42–110a et seq.   On December 17, 2010, the plaintiff filed a reply to the defendants' special defenses, and an answer and special defenses to the counterclaim.   On January 6, 2011, the defendants filed a reply to the plaintiff's special defenses to the counterclaim.

On April 30, 2013, the plaintiff filed a motion for summary judgment with respect to counts one, four, and six of the defendants' counterclaim.   These counts allege theories of adverse possession, easement by necessity, and a CUTPA violation, respectively.   The motion was accompanied by a supporting memorandum of law.   In support of its motion for summary judgment, the plaintiff submits, inter alia:  (1) the deposition of Brian Phelps, the sole shareholder and president of SKM and the sole owner and managing partner of EWP, and (2) an exhibit from the Phelps deposition.   The defendants filed a memorandum in opposition to the motion on July 10, 2013.   In support of their memorandum in opposition, the defendants also rely, inter alia, on the Phelps deposition.   The plaintiff then filed a reply on July 25, 2013, and the defendants filed a surreply on September 12, 2013.   The matter was argued at short calendar on September 16, 2013, at which time the defendants conceded that they lack a factual basis for an adverse possession claim and, therefore, “don't have a problem” with the granting of summary judgment on count one.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).  “[A]ny party may move for summary judgment upon any counterclaim ․ as if it were an independent action.”  Practice Book § 17–44.  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Moreover, “[i]n 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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).  “[I]t is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “It necessarily follows that it is only [o]nce [the moving party's] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the nonmoving party] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

I.

EASEMENT BY NECESSITY

Count four of the defendants' counterclaim is premised on a theory of easement by necessity.   In count four of the counterclaim, the defendants allege that they “and their predecessors in title have used the area of property in question, from the doorways to York Street in an open, visible, exclusive and continuous manner without interruption for a period of time exceeding 15 years prior to April 7, 2008 under a claim of right.   Based on this use, and based on the deeds and maps of record, and based on the location of the property, the plaintiffs on the counterclaim have an easement by necessity.” (11/15/10, Defs.' Countercl.  Count 4, ¶ 6.)   With regard to its motion for summary judgment on this count, the plaintiff argues that the easement by necessity claim fails as a matter of law because such a claim requires that the property at issue be landlocked and there is no dispute that the Toad's Place Property is not landlocked.   In response, the defendants acknowledge that Connecticut has only recognized easements by necessity in the context of landlocked property.³  Nonetheless, the defendants cite to § 197 of the Restatement (Second) of Torts, entitled “Private Necessity,” in support of their argument that an easement by necessity may properly be found under these facts.   The defendants argue that “[t]o the extent that the doors at issue are held in contingency for use in emergencies only, this court should ultimately adopt the public policy of § 197 of the Restatement Second of Torts and find an easement by necessity for emergency exit.” (7/10/13, Defs.' Mem. Opp'n Summ. J., p. 9.)

“The requirements for an easement by necessity are rooted in our common law ․ [A]n easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee ․ [T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the right of way.   The necessity element need only be a reasonable one ․ Although the requirements for an easement by necessity once included a showing of unity of ownership ․ our Supreme Court has eliminated that requirement ․ Moreover, although it is true that [a]n easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel ․ [t]he inverse also is true;  that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means.”  (Internal quotation marks omitted.)  Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 27–28, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012).

Therefore, the creation of an easement by necessity requires the party claiming the easement to demonstrate a reasonable necessity.   Our Appellate Court has held that the “standard of reasonable necessity is not satisfied where the property is not landlocked ․ “ (Emphasis added.)  Id., 28;  see also Sanders v. Dias, 108 Conn.App. 283, 289, 947 A.2d 1026 (2008) (“an easement by necessity requires the party's parcel to be landlocked” [emphasis added;  internal quotation marks omitted] ).  “Almost every court in Connecticut which has considered an easement by necessity has done so where the moving party has absolutely no enjoyment of its property without traveling over the defendant's property.   See, e.g., Bolen v. Avalon Farms Property Owners Association, 250 Conn. 135, 137[, 735 A.2d 798] (1999);  Jackson v. Lee, 51 Conn.Sup. 399[, 996 A.2d 762] (2009);  Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 24, [48 A.3d 107] (2012);  Hollywyle Association, Inc. v. Hollister, 164 Conn. 389[, 398, 324 A.2d 247] (1973).   The court is unaware of any decision where any court in this state granted an easement by necessity for anything other than the need for ingress to and egress from the landlocked property ․” Francini v. Goodspeed Airport, LLC, Superior Court, judicial district of Middlesex, Docket No. CV–11–6006195–S (February 13, 2013, Aurigemma, J.) (55 Conn. L. Rptr. 473, 474).

In the present case, the defendants urge this court to recognize easements by necessity under circumstances where the parcel is not landlocked.  “A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to the facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent.”   Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010).   Binding appellate authority is clear that the creation of an easement by necessity requires the property of the party seeking the easement to be landlocked.   Our Appellate Court has unambiguously held that an easement by necessity may only be created in this context;  see Sanders v. Dias, supra, 108 Conn.App. 289 (“an easement by necessity requires the party's parcel to be landlocked” [emphasis added] );  and this trial court cannot disregard or overturn this binding precedent.⁴

In support of its argument for summary judgment on this count, the plaintiff submits excerpts from the aforementioned deposition of Brian Phelps.   In the deposition, Phelps testifies that the front doors from the Toad's Place Property open directly onto York Street.  (Phelps Dep., Ex. E, p. 321.)   The plaintiff also submits the aforementioned exhibit from the Phelps deposition, which is a photograph of Toad's Place.  (Phelps Dep. Ex. 6, Ex. M.) In his deposition, Phelps testifies that the exhibit is a picture from York Street of the front of Toad's Place.  (Phelps Dep., Ex. E, p. 79.)   In response, the defendants also submit excerpts from the Phelps deposition.   In these excerpts, Phelps testifies that Toad's Place requires the use of all exterior doors in an emergency, the premises have had to be evacuated in the past, and the three or four-foot strip of the Yale Property that the defendants own ⁵ would be inadequate to accommodate a crowd in case of an emergency evacuation.  (Phelps Dep. Ex. 1, pp. 183–84, 199–200, 307.)

Count four of the defendants' counterclaim is premised on a theory of easement by necessity.   Under well-established Connecticut law, an easement by necessity arises only when the property of the party seeking the easement is landlocked, and there exists a reasonable need for ingress to and egress from the landlocked property.   In the present case, the plaintiff, the movant on this motion for summary judgment, has submitted evidence indicating that the Toad's Place Property is located directly on York Street, a public street, and thus is not landlocked.   The defendants do not contest this evidence;  in fact, they rely on the same deposition submitted by the plaintiff.   Therefore, the plaintiff has met its burden of showing the absence of any genuine issue of material fact as to whether the Toad's Place Property is landlocked, and, thus, the motion for summary judgment on count four of the counterclaim is granted.

II.

CUTPA

Count six of the defendants' counterclaim alleges that the plaintiff's conduct in bringing this claim for an injunction constitutes a CUTPA violation.   More specifically, count six alleges that the plaintiff's suit is designed to terminate the use of the Toad's Place Property as a nightclub and to destroy a business that is contiguous to its property, and that such conduct violates CUTPA.⁶  With regard to its motion for summary judgment on this count, the plaintiff argues that obtaining judicial relief to enforce a legal right cannot, as a matter of law, violate or offend public policy so as to give rise to CUTPA liability.   In other words, the plaintiff argues that the defendant cannot base a CUTPA counterclaim on allegations that the pending litigation was undertaken in bad faith.⁷ (7/25/13, Pl.'s Reply Mem. Supp. Mot. Summ. J., p. 5.) In response, the defendants argue that this is a purely legal argument that does not rely on the evidence.   Furthermore, the defendants argue that these allegations of bad faith litigation would, if proven, constitute a CUTPA violation.

The plaintiff's motion for summary judgment on count six challenges the legal sufficiency of the defendants' counterclaim in that it argues that the allegations in this count do not state a valid cause of action upon which relief can be granted.  “A motion to strike [is the procedural vehicle to] [challenge] the legal sufficiency of a pleading ․” Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “Under our rules of practice, the filing of a responsive pleading waives the right to file a motion to strike.”  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009), citing Practice Book §§ 10–6 and 10–7.   Thus, in the present case, by filing its answer to the counterclaim on December 17, 2010, the plaintiff waived its right to test the legal sufficiency of that pleading by way of a motion to strike.  “[A]lthough, generally, the device used to challenge the sufficiency of the pleadings is a motion to strike ․ our case law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading [if a party has waived its right to file a motion to strike by filing a response pleading] ․ Under these circumstances, [our Supreme Court has] acknowledged that, [i]f it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed ․ [Our Supreme Court] repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried ․ [Therefore], [t]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”   (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, supra, 306 Conn. 535 n.10. Accordingly, the plaintiff may utilize a motion for summary judgment to challenge the legal sufficiency of count six of the defendants' counterclaim.   In order to prevail on its motion for summary judgment on this count, however, the plaintiff must demonstrate that:  (1) the count fails to set forth a legally sufficient cause of action, and (2) this defect could not be cured by repleading.

At the outset, it is instructive to set forth the legal standard applicable to CUTPA claims.  “[General Statutes § ]42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ․” (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350–51, 994 A.2d 153 (2010).

“[S]ome courts have held that a vexatious lawsuit or an abuse of process can constitute an unfair trade practice sufficient to state a CUTPA claim.”   Mangs v. Cowell, Superior Court, judicial district of New London, Docket No. CV–10–6004007–S (December 8, 2010, Martin, J.);   see also American International Specialty Lines Co. v. HMT Inspections, Superior Court, judicial district of Middlesex, Docket No. CV–09–5007419–S (April 13, 2011, Wiese, J.) (noting that Superior Court decisions have “recognized that CUTPA claims can be predicated on allegations of vexatious litigation”).   Of course, “[i]n order for a practice to violate CUTPA there must be a showing of either an actual deceptive practice or a practice amounting to a violation of public policy ․ There is nothing unfair or deceptive in reasonably grounded litigation ․ If [a party] prevail[s] in their action, it cannot be considered vexatious or sham litigation.   The filing of a single non-sham lawsuit cannot form the basis for a CUTPA claim.”  (Citations omitted.)  Scinto v. Mariner Health Care, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–93–0302182–S (September 21, 1993, Fuller, J.).

“[U]nder Connecticut law, a counterclaim alleging [common law] vexatious litigation may not be brought in the same action as that which the defendant claims is vexatious.”  Somers v. Chan, 110 Conn.App. 511, 542, 955 A.2d 667 (2008).  “[I]n order to prevail on a claim of vexatious suit, the claimant must prove that the previous lawsuit was instituted maliciously, without probable cause, and terminated in the claimant's favor ․ Until the claimant wins the prior suit, it cannot be considered the basis for a vexatious suit claim, and cannot be joined as a counterclaim to the alleged vexatious complaint.   As long as the action claimed to be vexatious is pending it cannot be determined whether it will be successful.”  (Citation omitted.)  Scinto v. Mariner Health Care, Inc., supra, Superior Court, Docket No. CV–93–0302182–S.

A majority of Superior Court decisions have concluded that these common-law vexatious litigation requirements also apply to CUTPA claims premised on improper, vexatious, or bad faith litigation.   See, e.g., Mangs v. Cowell, supra, Superior Court, Docket No. CV–10–6004007–S;  Wes–Garde Components Group, Inc. v. Carling Technologies, Inc., Superior Court, judicial district of Hartford, Docket No. CV–09–5028121–S (March 10, 2010, Sheldon, J.) (49 Conn. L. Rptr. 671, 677);  Scinto v. Mariner Health Care, Inc., supra, Superior Court, Docket No. CV–93–0302182–S.  “CUTPA claims based upon allegations of litigation misconduct must be subject to the same constraints as [a common law vexatious litigation claim] based upon the same misconduct.   In particular, they must be subject to the requirements that the underlying litigation in which the misconduct allegedly occurred has already been completed and, if so, that it terminated favorably to the claimant, before such claims can be maintained.”  Wes–Garde Components Group, Inc. v. Carling Technologies, Inc., supra, 49 Conn. L. Rptr. 676.   Sound public policy considerations support this rule.  “Allowing a vexatious litigation claim to be raised in the initial action would encourage such claims and impair the presentation of honest but uncertain causes of action in the courts ․ Placing a CUTPA label on what amounts to a vexatious suit claim does not avoid the problem that it is premature.”  (Citations omitted.)  Scinto v. Mariner Health Care, Inc., supra, Superior Court, Docket No. CV–93–0302182–S.   Moreover, as the court persuasively concluded in Wes–Garde Components Group, Inc. v. Carling Technologies, Inc., supra, 49 Conn. L. Rptr. 677, “[t]he bringing of ․ a CUTPA claim [alleging the bringing of groundless litigation] as a counterclaim in the same litigation whose prosecution is claimed to [be] groundless undermine[s] the ability of counsel to communicate effectively with his client because it exposes their communications to disclosure due to the relevance of such communications ․ to any defense of good-faith reliance upon the advice of counsel which the client might interpose.”   The Wes–Garde court found additional support for its conclusion that “CUTPA claims based upon the alleged bringing of groundless litigation ․ must not be brought until the underlying litigation in which misconduct allegedly occurred is terminated favorably to the CUTPA claimant” in “the obvious willingness of our Supreme Court ․ to limit the broad scope of CUTPA in order to enforce the strong public policy of ensuring that litigants have the loyal and vigorous assistance of their lawyers when prosecuting their legal claims in court ․” Id.

In the present case, count six of the defendants' counterclaim alleges that the plaintiff's conduct in bringing this complaint constitutes a violation of CUTPA.   The essence of the defendants' claim, therefore, is that this present action is improper and was undertaken in bad faith for impermissible purposes.   The defendants, however, may not file a counterclaim alleging a violation of CUTPA by asserting that the plaintiff's institution of the current, pending action is in bad faith and thus an unfair trade practice.   Count six of the CUTPA claim, therefore, is premature and cannot be asserted until and unless this litigation terminates in favor of the defendants.   For this reason, count six of the counterclaim is legally insufficient.   This finding alone, however, is not enough to grant the motion.   Because the plaintiff has raised this challenge to the legal sufficiency of the counterclaim in a motion for summary judgment, the plaintiff must also demonstrate that the defendants could not cure the defect by repleading.   At short calendar, the plaintiff argued that any attempt to replead count six would be “futile” because the only way that the defendants could cure the insufficiency is by bringing a new cause of action based on different facts.   This argument is persuasive.   Because a CUTPA action alleging bad faith, improper, or vexatious litigation may not be brought until the underlying litigation in which the misconduct allegedly occurred is terminated favorably to the CUTPA claimant, it necessarily follows that such a claim cannot be brought as a counterclaim in the underlying litigation.   Therefore, the defendants are unable to bring their CUTPA claim premised on the theory that the present action was commenced in bad faith until the present case is terminated in their favor, and, thus, such a claim may not be raised as a counterclaim in this case.   Repleading cannot cure this defect.   Because count six of the counterclaim is legally insufficient and repleading could not cure the insufficiency, the motion for summary judgment on count six is granted.

CONCLUSION

For the foregoing reasons, the court grants the motion for summary judgment on counts four and six of the counterclaim.   Additionally, in accordance with the defendants' concession that it lacks a factual basis for the adverse possession claim alleged in count one and its statement that it has “no problem” with the granting of summary judgment on that count, the court grants the motion for summary judgment on count one.

Brian T. Fischer, J.

FOOTNOTES

FN1. Specifically, the plaintiff's complaint alleges that there are two exits, a single and a double door, located along the northeast wall on the EWP Property portion of the Toad's Place Property.   Another exit, a single door, is located on the northwest wall of the EWP Property portion of the Toad's Place Property.   Two additional exits, a single and a double door, are located on the northwest wall of the Toad's Place Property from the rear 290–292 York Street portion of the property.   All of the doors at these five exits from the Toad's Place Property open directly onto the Yale Property..  FN1. Specifically, the plaintiff's complaint alleges that there are two exits, a single and a double door, located along the northeast wall on the EWP Property portion of the Toad's Place Property.   Another exit, a single door, is located on the northwest wall of the EWP Property portion of the Toad's Place Property.   Two additional exits, a single and a double door, are located on the northwest wall of the Toad's Place Property from the rear 290–292 York Street portion of the property.   All of the doors at these five exits from the Toad's Place Property open directly onto the Yale Property.

FN2. In the counterclaim, the defendants describe the portion of the Yale Property that they have allegedly acquired title to as the area “from the doorways to York Street.” (11/15/10, Defs.' Countercl.  Count 1, ¶ 6.).  FN2. In the counterclaim, the defendants describe the portion of the Yale Property that they have allegedly acquired title to as the area “from the doorways to York Street.” (11/15/10, Defs.' Countercl.  Count 1, ¶ 6.)

FN3. At short calendar on September 16, 2013, counsel for the defendants stated:  “[Opposing] [c]ounsel is correct that ․ Connecticut has only recognized landlocked property for easement by necessity.”.  FN3. At short calendar on September 16, 2013, counsel for the defendants stated:  “[Opposing] [c]ounsel is correct that ․ Connecticut has only recognized landlocked property for easement by necessity.”

FN4. In any event, the defendants' argument, which urges the court to utilize the public policy of § 197 of the Restatement (Second) of Torts as a rubric for the creation of easements by necessity, is not persuasive.   Section 197 of the Restatement (Second) of Torts provides in relevant part:  “One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor, or his land or chattels, or (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.”   1 Restatement (Second), Torts § 197, p. 355 (1965).   The comments to this section provide that this privilege “exists only where in an emergency the actor enters land for the purpose of protecting himself or the possessor of the land or a third person or the land or chattels of any such persons.   Furthermore, the privilege must be exercised at a reasonable time and in a reasonable manner.”  Id., comment (a), p. 355.   The Restatement (Second) of Torts does not contemplate that this tort concept, which grants the trespassing actor a privilege to enter and remain on another's land under certain circumstances, entitles the actor to a property right such as an easement in order to account for all possible circumstances.   The defendants cite to no cases from any jurisdiction in which an easement or other property right was created by applying the tort principles embodied in § 197.   The examples from the illustrations to § 197 are particularly instructive in demonstrating the difference between the tort concept embodied in the section and the property concept at issue in the present case.   For example, one illustration provides:  “While A is canoeing on a navigable river, he is suddenly overtaken by a violent storm.   To save himself and his canoe from destruction, A lands on B's dock and pulls his canoe up on the dock.   A is privileged to do so.”  Id., illustration (1), p. 356.   The fact that A's usage of B's dock is privileged under these circumstances does not, however, provide A with a property right, such as an easement by necessity, in B's dock.   Rather, the property remains B's. A is privileged to enter onto B's property should a necessity arise, but the property continues to belong to B. Similarly, a person walking down York Street could encounter a multitude of scenarios in which it is or reasonably appears to be necessary to enter the Yale Property or the Toad's Place Property in order to prevent serious harm.   This person may be privileged to do so, and would thus not be guilty of trespass.   The person would not, however, be entitled to an easement by necessity in order to prospectively provide for these potential scenarios..  FN4. In any event, the defendants' argument, which urges the court to utilize the public policy of § 197 of the Restatement (Second) of Torts as a rubric for the creation of easements by necessity, is not persuasive.   Section 197 of the Restatement (Second) of Torts provides in relevant part:  “One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor, or his land or chattels, or (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.”   1 Restatement (Second), Torts § 197, p. 355 (1965).   The comments to this section provide that this privilege “exists only where in an emergency the actor enters land for the purpose of protecting himself or the possessor of the land or a third person or the land or chattels of any such persons.   Furthermore, the privilege must be exercised at a reasonable time and in a reasonable manner.”  Id., comment (a), p. 355.   The Restatement (Second) of Torts does not contemplate that this tort concept, which grants the trespassing actor a privilege to enter and remain on another's land under certain circumstances, entitles the actor to a property right such as an easement in order to account for all possible circumstances.   The defendants cite to no cases from any jurisdiction in which an easement or other property right was created by applying the tort principles embodied in § 197.   The examples from the illustrations to § 197 are particularly instructive in demonstrating the difference between the tort concept embodied in the section and the property concept at issue in the present case.   For example, one illustration provides:  “While A is canoeing on a navigable river, he is suddenly overtaken by a violent storm.   To save himself and his canoe from destruction, A lands on B's dock and pulls his canoe up on the dock.   A is privileged to do so.”  Id., illustration (1), p. 356.   The fact that A's usage of B's dock is privileged under these circumstances does not, however, provide A with a property right, such as an easement by necessity, in B's dock.   Rather, the property remains B's. A is privileged to enter onto B's property should a necessity arise, but the property continues to belong to B. Similarly, a person walking down York Street could encounter a multitude of scenarios in which it is or reasonably appears to be necessary to enter the Yale Property or the Toad's Place Property in order to prevent serious harm.   This person may be privileged to do so, and would thus not be guilty of trespass.   The person would not, however, be entitled to an easement by necessity in order to prospectively provide for these potential scenarios.

FN5. In his deposition, Phelps testifies that he believes that the defendants actually own a three to four-foot strip of the Yale Property immediately adjacent to the Toad's Place Property.  (Phelps Dep. Ex. 1, pp. 300–03.)   The plaintiff calls this statement “conclusory, self-serving and mistaken” in its reply memorandum. (7/25/13, Pl.'s Reply Mem. Supp. Mot. Summ. J., p. 2.) This property line dispute, however, is not pertinent to the issues raised in this motion for summary judgment and, therefore, this memorandum does not address the issue..  FN5. In his deposition, Phelps testifies that he believes that the defendants actually own a three to four-foot strip of the Yale Property immediately adjacent to the Toad's Place Property.  (Phelps Dep. Ex. 1, pp. 300–03.)   The plaintiff calls this statement “conclusory, self-serving and mistaken” in its reply memorandum. (7/25/13, Pl.'s Reply Mem. Supp. Mot. Summ. J., p. 2.) This property line dispute, however, is not pertinent to the issues raised in this motion for summary judgment and, therefore, this memorandum does not address the issue.

FN6. Paragraph six of count six alleges:  “[The plaintiff's] claim for a permanent injunction against [the defendants], their patrons, business invitees, employees, guests or others from using the doorways in question and the paths from said doorways to York Street, besides creating a safety hazard, is designed to terminate the use of [the Toad's Place Property] as it is presently used.   Said claim also impacts on the use of [the Toad's Place Property] entirely, and renders the commercial value of same virtually worthless.” (11/15/10, Defs.' Countercl.  Count 6, ¶ 6.)   Paragraph seven this count alleges:  “[The plaintiff's] conduct in managing its real estate in a manner designed to destroy competition of a business which it does not control but which is contiguous to its property, coupled with its conduct as alleged in Paragraph 6 of this count, offends public policy, is oppressive, and will cause substantial injury to the plaintiffs by putting ․ SKM out of business and render EWP's property unusable.”   (Id., ¶ 7.)   Paragraph eight alleges that such conduct is a violation of CUTPA..  FN6. Paragraph six of count six alleges:  “[The plaintiff's] claim for a permanent injunction against [the defendants], their patrons, business invitees, employees, guests or others from using the doorways in question and the paths from said doorways to York Street, besides creating a safety hazard, is designed to terminate the use of [the Toad's Place Property] as it is presently used.   Said claim also impacts on the use of [the Toad's Place Property] entirely, and renders the commercial value of same virtually worthless.” (11/15/10, Defs.' Countercl.  Count 6, ¶ 6.)   Paragraph seven this count alleges:  “[The plaintiff's] conduct in managing its real estate in a manner designed to destroy competition of a business which it does not control but which is contiguous to its property, coupled with its conduct as alleged in Paragraph 6 of this count, offends public policy, is oppressive, and will cause substantial injury to the plaintiffs by putting ․ SKM out of business and render EWP's property unusable.”   (Id., ¶ 7.)   Paragraph eight alleges that such conduct is a violation of CUTPA.

FN7. Including this argument, the plaintiff's motion for summary judgment asserts “four independent reasons” for the granting of summary judgment on count six.   Specifically, the plaintiff's motion argues:  “[The] [d]efendants' CUTPA claim fails for four independent reasons:  (i)[the] [d]efendants have not suffered an ascertainable loss as a matter of law;  (ii) the claim is premised on [the plaintiff's] lawful assertion of its property rights by way of a lawsuit;  (iii) the parties' real property dispute is, at most, incidental to [the plaintiff's] primary trade or commerce;  and (iv)[the][d]efendants do not have a business or competitive relationship with [the plaintiff].” (4/30/13, Pl.'s Mot. Summ. J., p. 2.) This memorandum concludes that reason (ii) is sufficient for the granting of summary judgment on this count;  therefore, the memorandum does not address the merits of the plaintiff's three remaining reasons..  FN7. Including this argument, the plaintiff's motion for summary judgment asserts “four independent reasons” for the granting of summary judgment on count six.   Specifically, the plaintiff's motion argues:  “[The] [d]efendants' CUTPA claim fails for four independent reasons:  (i)[the] [d]efendants have not suffered an ascertainable loss as a matter of law;  (ii) the claim is premised on [the plaintiff's] lawful assertion of its property rights by way of a lawsuit;  (iii) the parties' real property dispute is, at most, incidental to [the plaintiff's] primary trade or commerce;  and (iv)[the][d]efendants do not have a business or competitive relationship with [the plaintiff].” (4/30/13, Pl.'s Mot. Summ. J., p. 2.) This memorandum concludes that reason (ii) is sufficient for the granting of summary judgment on this count;  therefore, the memorandum does not address the merits of the plaintiff's three remaining reasons.

Fischer, Brian T., J.