Steven Pollansky v. Anna Pollansky et al. (2014)

Defendants' Motion for Summary Judgment # 139

I

Statement of Facts

The Defendants, Anna T. Pollansky, individually and as Administratrix of the Estate of Andrew Pollansky, Joyce Chimbole and Judy Richard filed their Motion for Summary Judgment on December 12, 2013, asserting that:  (1) the doctrines of res judicata and/or collateral estoppel preclude the Plaintiff, Steven Pollansky from re-litigating in this current lawsuit those issues and/or claims arising from an agreement or promise allegedly made by his father to devise land to him that had already been litigated and decided in a prior underlying summary process action entitled:  Anna T. Pollansky v. Steven Pollansky et al., Docket No.:  HSGTTD–CV–11–4015163–S;  wherein the Honorable Judge Cobb entered judgment in favor of the Plaintiff on May 7, 2012 [54 Conn. L. Rptr. 24], and that same judgment was affirmed by the Court of Appeals on July 16, 2013;  (2) pursuant to Conn. Gen.Stat. § 52–550, the Statute of Frauds bars Plaintiff's claim of an alleged agreement made by his father to convey interest in real estate because the agreement is not in writing, was not performed within a year, and can be interpreted as a loan for services and money which exceeds the amount of $50,000.00;  (3) Plaintiff lacked legal capacity at nine years old to enter into the alleged agreement with his father;  and (4) Conn. Gen.Stat. §§ 45a–356, 358 preclude Plaintiff from bringing his unjust enrichment claim because he failed to provide written notice to the Plaintiff–Administratrix within the time prescribed by statute.

Plaintiff has filed his objection to the Defendants' motion for summary judgment on January 6, 2014, asserting that the Defendants are not entitled to judgment as a matter of law because, among other things:  (1) the issues raised and litigated in the housing court are not identical to issues being litigated in this current suit because the Plaintiff is not seeking title to the properties in question as he did in the housing court and that the burden of proof in the housing court is different from that in a civil suit for breach of contract;  (2) Defendants are estopped from asserting a Statute of Frauds defense because he fully and/or partially performed his end of the agreement by making improvements on the properties in question in reliance on the promise his father made to him;  (3) he did not lack the legal capacity to enter into an agreement with his father because they had a meeting of the minds up until his father's death;  and (4) Conn. Gen.Stat. §§ 45a–356, 358 are not bars to the Plaintiff's suit because Defendant–Administratrix was given notice of the Plaintiff's claim in writing and the statutes do not put a time frame as to when a claim shall be filed against the fiduciary of the estate.

II

Standard of Review

The standard of review of a trial court's decision to grant a motion for summary judgment is well established.  “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 that the moving party is entitled to judgment as a matter of law.”  Practice Book Section 17–49.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ Although the party seeking summary judgment has the burden of showing the nonexistence of any material facts ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ It is not enough, however, for the opposing party merely to assert the existence of such disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact, and therefore, cannot refute evidence properly presented to the court (in support of a motion for summary judgment) ․ Requiring the nonmovant to produce such evidence does not shift the burden of proof.   Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial.”  Farrell v. Farrell, 182 Conn. 34, 39 (1980).

III

Discussion

I. Can the Defendants show that the doctrine of res judicata bars the plaintiff from re-litigating the breach of contract claim when an earlier judgment was entered on the merits in a summary process action by a court of competent jurisdiction;  when the summary process action did not involve the same parties and/or privies?

The cases below seem to agree that the doctrine of res judicata bars a later litigation if an earlier decision was:  (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties and/or their privies, and (4) involving the same cause of action.   See Jaeger v. Cello Partnership, 936 F.Sup.2d 87, 93–4 (2013);  Weiss v. Weiss, 297 Conn. 446, 459 (2010);  Himmelstein v. Bernard, 139 Conn.App. 446, 453 (2012).   Elements (1), (2) and (4) are satisfied because, in the underlying summary process action entitled:  Anna T. Pollansky v. Steven Pollansky et al., Docket No.:  TTD–CV–11–4015163–S, Judge Cobb entered judgment in favor of the Plaintiff, Anna Pollansky, on May 7, 2012 (hereinafter referred to as “summary process action”), and that same judgment was affirmed by the Court of Appeals on July 16, 2013.   The summary process action and this current lawsuit involve the same cause of action because in the summary process action Plaintiff pled that he occupied the property pursuant to an ownership interest in the premises granted by Andrew Pollansky.   However, in this lawsuit, Plaintiff asserts a breach of contract claim against the Defendants based on the alleged promise made by Andrew Pollansky.

As for the element (3) a case involving the same parties and/or privies—”the doctrine of res judicata applies as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.”  C & H Management, LLC v. City of Shelton, 140 Conn.App. 608, 613 (2013).   The Defendants, Joyce Chimbole and Judy Richard were not parties in the underlying summary process action.   However, they would still be bound by the judgment of that court if they were in privity with a party in the summary process action.   A “privity of relationship is satisfied when there exists an identification in interest of one person with another as to represent the same legal rights.”  Charlotte Hungerford Hospital v. Creed, 144 Conn.App. 100, 118 (2013).   Here, it is unlikely that the Defendants Joyce Chimbole and Judy Richard were in privity of relationship with the Defendant, Anna Pollansky in the summary process action.   Defendant, Anna Pollansky, has proffered in her fourth special defense that “the Coventry property which was the subject of the summary process action was purchased in survivorship and by operation of law, decedent's interest became hers at his death.”   If title vested in Anna Pollansky at the time of decedent's death, it did not become part of the probate estate subject to distribution amongst the heirs at law.   Thus, when Anna Pollansky litigated her interest in the property in the summary process action, she did so in her own interest and not in the interest of the Defendants, Joyce Chimbole and Judy Richard.

Notwithstanding, some courts have found that mutuality of the parties is not required where the plea of res judicata is raised by one not a party to the prior suit against one who was such a party.  Bruno v. Geller, 136 Conn.App., 707, 728 (2012).   The Bruno court reasoned that it would be against public policy to allow repeated litigation of issues already adjudicated by “a plaintiff who deliberately selects his forum and there unsuccessfully presents his proofs is bound by such adverse judgment in a second suit involving all the identity of issues already decided.”  Id. Despite the fact that Plaintiff did not initiate the summary process action, Plaintiff brought suit in November 2010 making the same allegations, which was non suited, and should be barred from re-litigating his claim in this current suit because he had a full and fair opportunity to litigate his claim and did litigate his claim in the summary process action.   He should not be allowed the opportunity to retry all of the old issues each time he can obtain a new adversary not in privity with his former one.   Because non-mutuality of the parties is applicable in this case, the Plaintiff's claim should be barred by res judicata.   Therefore, Count One of the Defendants' motion for summary judgment is hereby granted.

II. Can the Defendants show that the doctrine of collateral estoppel bars the plaintiff from re-litigating his breach of contract claim when Plaintiff has made a claim for relief for Quantum Meruit that he did not claim in the summary process action?

Collateral estoppel or issue preclusion applies when:  (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues previously litigated were necessary to support a valid and final judgment.   See Jaeger v. Cellco Partnership, supra.   Elements (2), (3), and (4) are satisfied because much of the trial in the summary process action was spent adjudicating the merits of Plaintiff's claim of a breach of promise to convey by his father and his reliance on that promise in providing services, and his claim for unjust enrichment upon the court entering judgment.   Plaintiff had a full and fair opportunity to litigate his claim in the summary process action because in addition to pleading special defenses, he presented witnesses to the court and the court would have reviewed any documents supporting his claim had he presented them.   Additionally the issues litigated in the summary process action were necessary to support the court's final judgment in deciding whether plaintiff did, in fact, have an ownership interest in the premises granted by Andrew Pollansky.

Plaintiff argues that the doctrine of collateral estoppel is inapplicable because the issues in both proceedings are not identical.   Plaintiff asserts more specifically that the standards of proof required in the housing court are legally different than the standards of proof in a breach of contract case.   In a summary process action, the court must ‘only’ decide who has a superior right of possession in making its decision, while in a breach of contract case, the court must decide whether valid consideration existed and actions were taken in reliance on an enforceable promise.   First, the central issue in the summary process action was whether Plaintiff had an ownership interest in the properties based on a promise made by Andrew Pollansky.   Plaintiff has conceded that he is attempting to re-litigate that same issue in this lawsuit, except on a different legal theory—breach of contract.

Plaintiff cited Windsor Properties, Inc. v. Great Atlantic and Pacific Tea Co., Inc., 35 Conn.Sup. 297 (1979), in support of his argument that the housing court must ‘only’ decide who has a superior right of possession.   That case does not implicitly or explicitly provide that a summary process court must ‘only’ decide who has the superior right of possession in making its decision.   Rather, “the ultimate issue [to be determined] in a summary process action is the right to possession.”  Piazza v. Piazza, 2012 WL 2163119.   In deciding the ultimate issue in a summary process action, the standard of proof is by fair preponderance of the evidence.  Bray v. Bray, 51 Conn.Sup. 133, 138 (2008).   The standard of proof required in a summary process action has always been the same standard of proof required in civil matters—a fair preponderance of the evidence.

In deciding the ultimate issue in the summary process action—whether the plaintiff had a right to possession because he occupied the subject property pursuant to an ownership interest in the premises granted by Andrew Pollansky—the trial court weighed in heavily on Plaintiff's claim that Andrew Pollansky orally promised him the property.   The record shows that much of the trial was spent adjudicating the Plaintiff's claim of a breach of promise to convey by his father, in which it heard testimony from witnesses to substantiate Plaintiff's claim that there was an actual promise made by Andrew Pollansky.   Additionally, the court would have weighed in on any evidence, including but not limited to;  written documents, including, letters, testamentary documents, deeds, contracts signed or authored by Andrew or Anna Pollansky granting him interest in the property, but the plaintiff failed to produce any documents to substantiate his claim.   Since there is no written contract, this court similarly would have to, by fair preponderance of the evidence, determine whether Andrew Pollansky did, in fact, promise Plaintiff the properties.   Based on the housing court's review of the evidence and use of the same standard of review as this court would in this matter, the issues in both proceedings are identical.

Next, the Plaintiff proffers that the issues litigated in the summary process action are not identical to the issues being litigated in this suit because the relief he is seeking in this current action is dissimilar from the relief he sought in the summary process action.   Plaintiff sought relief for unjust enrichment in the summary process action whereas in this suit, in addition to unjust enrichment, plaintiff is seeking relief for Quantum Meruit.   Firstly, Conn. Gen.Stat. § 47a–33a provides that in a summary process action, a tenant may present any affirmative legal, equitable or constitutional defense.   Quantum Meruit is an equitable defense and Plaintiff had the option to raise this defense in the summary process action and the housing court had jurisdiction to hear it.

Secondly, Plaintiff could have raised claims for Quantum Meruit in the summary process action because Quantum Meruit is one method of recovery under the legal theory of unjust enrichment.  Norling v. Anthony, 2001 WL 51672.   The Norling court reasoned that “[t]he issues of unjust enrichment ․ go hand in hand with defenses of title.”   Since the Plaintiff defended the summary process by pleading that he has an ownership interest in the property, he could have also pled Quantum Meruit.   Because the judicial doctrine of collateral estoppel is based on the public policy that a party should not be able to re-litigate a matter, which it already has had an opportunity to litigate, Plaintiff should be barred from re-litigating issues of Quantum Meruit as he had the opportunity to raise and litigate those issues in the summary process action and he did raise and litigate those issues under unjust enrichment.   Therefore, Count One of the Defendants' motion for summary judgment is hereby granted.

III. Can the Defendants show that the Plaintiff's claim of breach of contract is barred by the Statute of Frauds under Conn. Gen.Stat. § 52–550?

Conn. Gen.Stat. § 52–550(a)(4)(5)(6) precludes a party from maintaining a civil action unless the agreement or a memorandum of the agreement is made in writing and signed by the party, or the agent of the party upon any agreement for the sale of real property or any interest in or concerning real property, or upon an agreement which is not performed within one year from the making thereof, or upon agreement for a loan in that amount which exceeds $50,000.00.   Defendants assert that the statute of frauds is a bar to Plaintiff's claim for breach of contract because Andrew Pollansky's promise to convey interest in real properties to him was not made in writing;  that the alleged agreement was made over 30 years ago and Plaintiff's alleged services could not be performed within one year;  and that the alleged agreement may be interpreted as a loaning of services and money to Andrew Pollansky which exceeds $50,000.

A party may be barred from asserting the Statute of Frauds defense to the enforcement of a contract under the doctrine of equitable estoppel when one party does or says something that was intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, actually changed his position or do some act to his injury which he otherwise would not have done.  St. Germain v. St. Germain, 135 Conn.App. 329, 334–35 (2012).   When the doctrine of estoppel is applied to bar a party from asserting the statute of frauds, the party seeking to avoid the statute must demonstrate acts that constitute part performance such as:  (1) statements, acts, or omissions that lead a party to act to his detriment in reliance on the contract;  (2) knowledge or assent to the party's actions in reliance on the contract;  and (3) acts that unmistakably point to the contract.  Glazer v. Dress Barn, Inc., 274 Conn. 33, 61–62 (2005).

In the present case, there are two reasons for recognizing partial performance as a defense to the Defendants' claims of statute of frauds.   First, over the past thirty years, the plaintiff took possession of the properties and went to considerable expense to erect permanent improvements, e.g. installed and maintained drainage and culverts on and throughout properties, purchased insurance coverage, which tend to show that it is likely Plaintiff detrimentally relied on the promise his father allegedly made.   It is not likely that someone would bear such an expense without the expectation that they had acquired some interest in the property, or had a contract, which would allow them to acquire an interest in the property.   Further, the fact that the record is devoid of any objections or protests by Defendants, Anna Pollansky and Andrew Pollansky, to the Plaintiff erecting such improvements, is further evidence that there may have actually been some agreement between them.

Moreover, the Statute of Frauds was intended to avoid injustices by precluding spurious claims.   However, a mechanical reliance on such a doctrine could end up working an injustice in the case where there was actually an oral contract that both parties had relied on.   If there was partial performance by Plaintiff taking complete possession of the properties in 1992 when his father retired, and making substantial improvements to the properties, merely voiding the contract for lack of a written agreement would clearly prejudice the Plaintiff who would be out of pocket for the cost of the improvements and for maintaining the properties over the years.   But enforcing the contract under such circumstances would allow both sides at least some benefit of their bargain, i.e., the Defendant, Ann Pollansky, would get the properties with improvements and the Plaintiff would be compensated.   Because there exists a genuine issue of material fact as to whether the Plaintiff's work and improvement to the subject properties were due to his reliance on the alleged promise made to him by his father, Andrew Pollansky, the Defendants' motion for summary judgment on this basis must be denied.   Therefore, Count Two of the Defendants' motion for summary judgment is hereby denied.

IV. Can the Defendants show that Plaintiff lacked legal capacity to enter into a contract at nine years old?

“Connecticut has long recognized the common-law rule that a minor child's contracts are voidable ․ Under this rule, a minor may, upon reaching majority, choose either to ratify or to void contractual obligations entered into during his minority ․” Roe v. Gunnery, Inc., 2013 WL 1849284.   Here, Defendants assert that the alleged contract between Plaintiff and his father is to be held voidable because Plaintiff was purportedly nine years old when he contracted with his father.   However, only a minor can disavow a contract—an adult who entered into a binding contract with a minor cannot later use the defense of lack of legal capacity to void a contract.   Therefore, the Defendants cannot now assert that the contract, if any, should be held voidable because Plaintiff was nine years old when he supposedly entered into the agreement with his father.   Further, even if the Plaintiff entered in the agreement with his father at nine years old, he has now reached the age of majority and has the option to either ratify or avoid contractual obligations entered into as a minor.   Clearly, Plaintiff has asserted his right to ratify his rights under any such agreement.   Therefore, Count Three of the Defendants' motion for summary judgment is hereby denied.

V. Can the Defendant–Administratrix show that Conn. Gen.Stat. §§ 45a–356, 358 bar Plaintiff's claim for breach of contract against it?

Conn. Gen.Stat. §§ 45a–356, 358, provide respectively that:  (1) a claim must be made in writing to the fiduciary of an estate;  and (2) if a claim is not made in writing within one hundred fifty days from the date of the appointment of the fiduciary, the fiduciary is not liable for any assets it paid or distributed in good faith before such claim was presented.   Defendant–Administratrix proffered that the Plaintiff did not provide notice of his claims in writing and within the time prescribed by statute.   Defendant–Administratrix's application of §§ 45a–356 and 358 to the facts herein is misplaced.   First, §§ 45a–356 and 358 do not require claimant to present a claim to the fiduciary in writing in any particular way and neither do they require that claims be presented within in a certain time period.   The Defendant–Administratrix received written notice of Plaintiff's claim prior to the commencement of this suit in a suit he commenced against the estate on November 2, 2010.   The fact that the Administratrix did not receive notice of the Plaintiff's claim for unjust enrichment prior to the initiation of this lawsuit is of no consequence.  Conn. Gen.Stat. § 45a–356 only operates to exonerate a fiduciary from liability for paying claims in good faith that were presented to it within 150 days of appointment.   Here, there might be a question as to whether the fiduciary acted in good faith when it paid claims presented to it within the time period.   It would not be unreasonable for the fiduciary to anticipate a claim for unjust enrichment when it received written notice of the Plaintiff's claim in the November 2010 lawsuit.   Since Plaintiff made his claim to the fiduciary in writing and there is some issue as to whether the fiduciary paid claims in good faith, §§ 45a–356 and 358 are not bars to Plaintiff's claim.   Therefore, Count Four of the Defendants' motion for summary judgment is hereby denied.

IV

Conclusion

Despite the fact that Defendants, Joyce Chimbole and Judy Richard, were not parties or in privity with a party in the summary process action, the doctrine of res judicata is a bar to Plaintiff's claim because mutuality of parties is not required when it is asserted by one party not a party to a prior suit against a Plaintiff who unsuccessfully presented his proof there.   Furthermore, the doctrine of collateral estoppel is a bar to Plaintiff's claim because Plaintiff could have raised, and did raise by virtue of his unjust enrichment claim, his claim for relief for Quantum Meruit and this court would have weighed the evidence similar to the housing court.   As a result, Count One of the Defendants' motion for summary judgment shall be granted.   However, Counts Two, Three, and Four of the Defendants' motion for summary judgment shall be denied because the Statute of Frauds is not a bar to the enforcement of a contract when there is still a question as to whether the Plaintiff detrimentally relied on an alleged promise and partially/fully performed his end of the bargain.   Further, only a minor can disavow a contract and under Connecticut law, the Plaintiff, who is at the age of majority, can ratify the alleged contract.   Finally, §§ 45a–356 and 358 are not bars to Plaintiff's claim because Defendant–Administratrix received notice of Plaintiff's claim in writing and therefore it is not unreasonable to argue that the Administratrix may not be exonerated from liability since she was put on notice.

It is so ordered.

M. Nawaz Wahla

Judge, Superior Court

Wahla, M. Nawaz, J.