Michael Bandlow et al. v. LLC (2016)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT DANIELLE LACOURSE

This wrongful death action arises out of a fire that occurred on January 22, 2013 in Putnam, Connecticut in which two children died, then three-year-old Alexis Auger and ten-month-old Ava Auger.  On January 8, 2015, the plaintiffs, Michael Bandlow and Michelle Palulis, administrators of the estate of Ava Auger, and Michelle Palulis, administrix of the estate of Alexis Auger, filed a complaint, alleging, inter alia, negligence against:  (1) Eastern Connecticut Contractors, LLC, the owner of the property, (2) Stephen J. Adams, individually and in his capacity as receiver for the town of Putnam water pollution control authority, and (3) Danielle LaCourse, the holder of a mortgage on the property.  The plaintiffs allege that each of the defendants ¹ was in possession and control of the premises, failed to properly maintain the premises, failed to properly inspect the premises for smoke detectors, and failed to install and maintain smoke detectors in violation of the state and local building and fire codes.

On June 29, 2015, the defendant, Danielle LaCourse, filed a motion for summary judgment and a supporting memorandum of law.  She submitted the following evidence:  (1) her signed and sworn affidavit, (2) a signed and sworn witness statement of John Newsom, a tenant who occupied the apartment with the two decedents, (3) a signed and sworn witness statement of the owner's agent, Bernard Burgess, (4) a certified copy of a promissory note on the property, (5) a certified copy of a mortgage deed on the property, (6) a certified copy of a judgment of strict foreclosure on the property, (7) a certified copy of a court's order appointing a receiver, and (8) a certified copy of the judgment, which rescinded the insurance policy on the property, issued to the defendant.

On November 30, 2015, the plaintiffs filed a memorandum in opposition to the motion.  They submitted the following additional evidence:  (1) the same defendant's signed and sworn affidavit;  (2) excerpts of the defendant's deposition transcript;  and (3) a certified copy of the insurance policy on the premises, which was issued to the defendant and later rescinded.

On December 22, 2015, the defendant filed a reply memorandum to the plaintiff's opposition to the motion, which included (1) an additional signed and sworn witness statement of John Newsom;  (2) a signed and sworn witness statement of Lauren Auger, the mother of the two decedents and a tenant;  and (3) the same signed and sworn witness statement of Bernard Burgess.  The motion was argued at the short calendar on January 4, 2016.

ANALYSIS

“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).  “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.)  Stuart v. Freiberg, 316 Conn. 809, 820–21, 116 A.3d 1195 (2015).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  (Internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319–20, 77 A.3d 726 (2013).

“Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ferri v. Powell–Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).  “A party opposing a motion for 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.”  (Internal quotation marks omitted.)  Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829–30, 92 A.3d 1025 (2014).

“[T]he party moving for summary judgment ․ is required to support its motion with supporting documentation, including affidavits.”  (Internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 324 n.12. “Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632–33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014).  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).

The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment.  See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012).  Where both parties have submitted identical copies of the same document as evidence to be considered by the court in support of their respective positions on a party's motion for summary judgment, “both can be understood to have admitted by their references to it in their affidavits, briefs and arguments that the [document] before the court was in fact authentic.”  Id., 506–07.

In the present case, the parties did not object to any of the submitted evidence and, moreover, relied on some of the same evidence in their arguments.  Because the witness statements submitted have been sworn to and signed and the defendant's deposition and the copies of all the documentary evidence were certified, this evidence is admissible as well.

In the memorandum of law in support of her motion, the defendant, Danielle LaCourse, claims that as a mortgagee she was at all relevant times not in physical possession and control of the property, and therefore, she submits she did not owe a legal duty to the plaintiffs and is entitled to judgment as a matter of law.  In opposition to the motion, the plaintiffs allege that the defendant's application for liability insurance on the property, combined with her filing for foreclosure on the property and her authority under the mortgage deed to procure insurance and do such acts necessary to protect the security of the property, are indicia of control.  Therefore, the plaintiffs maintain, there is a genuine issue of material fact as to whether the defendant was in control of the premises, and the motion should be denied.

“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Citation omitted;  internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290–91, 818 A.2d 893 (2003).  “The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control ․” (Internal quotation marks omitted.)  Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).  “Liability for injuries caused by defective premises ․ does not depend on who holds legal title, but rather on who has possession and control of the property ․ Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ․ Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ․ The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee.”  (Citations omitted;  internal quotation marks omitted.)  Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 50, 58 A.3d 293 (2013).

When the issue of control over the premises is raised between a mortgagor and mortgagee, courts rely on the evidence submitted with the motion for summary judgment and on the facts, namely, the dates of the judgment of strict foreclosure, the plaintiff's injury and the law day, in order to establish the absence of a genuine issue regarding possession and control.  Doty v. Shawmut Bank, 58 Conn.App. 427, 433, 755 A.2d 219 (2000).  The relationship between the mortgagor and mortgagee after foreclosure but before the law date and how this relationship determines possession and control of the premises on the date of the plaintiff's injuries are addressed in Hardy v. Shepard, Superior Court, judicial district of Hartford–New Britain, Docket No. CV–94–0541387–S (July 31, 1995, Corradino, J.) (14 Conn. L. Rptr. 515).  In Hardy, the plaintiff slipped and fell on the ice and snow that had not been removed from the premises.  The accident occurred after the judgment of strict foreclosure on the subject premises was entered but prior to the law day.  In the absence of any affidavits, depositions or other documents to support the allegations that the mortgagee was in actual possession or control of the premises, the court found the mortgagor-owner's admission that “he made sure the snow was removed” indicated the owner's control over the premises.  Id., 517.  The plaintiff made an uncorroborated allegation that prior to the accident the mortgagee insured the property but she offered no supporting materials and did not specify the type of insurance.  The court concluded:  “[T]hat without more [the plaintiff] could not establish control ․” (on the part of the mortgagee).  Id., 516.  Thus, the court found that the plaintiff had not produced sufficient evidence to create a material dispute as to the mortgagee's possession or control of the premises and, consequently, granted the mortgagee's motion for summary judgment in favor of the mortgagee.  Id., 516–17.

The court in Hardy stated that “[i]f the mortgagee wants possession or control before the law day he can take steps to secure it ․ [Nonetheless] since there is a law day with the absolute right to redeem before that date, the mortgagor should be regarded as being in possession and control if the mortgagee hasn't assumed such possession and control.”  Id., 517.  Additionally, in Hardy, like the present case, the mortgage agreement provided that upon default by the owner, the mortgagee had the right to assume possession.  The court in Hardy, however, found the evidence submitted by the plaintiff insufficient “to indicate that on the date of the injury the [mortgagee] was in possession or control of this property.”  Id., 516.  Thus, both “the right to assume possession over the premises” provided by a mortgage agreement and “the right to take steps to secure possession or control” provided by a judgment of strict foreclosure are not sufficient to establish possession and control unless there is evidence that the mortgagee actually exercised those rights.  The court relied in its decision on the fact that the owner-mortgagor “made sure the snow was removed” as the indicia of the continued actual possession and control of the premises on the part of the mortgagor.

Just like in Hardy, the exercise of actual possession and control of the premises was the crucial fact for the court's determination in Doty v. Shawmut Bank, supra, 58 Conn.App. 427.  The plaintiff's accident in Doty occurred, similarly to injury in Hardy, after the mortgagee secured the judgment of strict foreclosure but prior to the law day.  The plaintiff attested that the mortgagee obtained a liability insurance policy for the premises and argued that by doing so the mortgagee “recognized its dominion and control over the premises, and its potential liability as a mortgagee.”  Id., 434.  The court, however, did not find it necessary to address that argument because it found other evidence sufficient to present a genuine issue of material fact.  “The plaintiff in Hardy offered no evidence, as the plaintiff did here, that the court had issued a detailed order appointing a receiver of rents to oversee the premises, and that the defendant's permission was required before expensive repairs and other activities affecting the premises could be performed.”  Id., 435.  The court order that enjoined the owner from interfering in any manner with the premises or its possession and obligated a court-appointed receiver to secure the mortgagee's permission before undertaking repairs, maintenance and other activities affecting the premises established, for the court in Doty, the existence of a material dispute as to the possession and control of the premises on the date of the accident.  Accordingly, the motion for judgment in that case was denied.

Also, a genuine issue of material fact can be demonstrated when the mortgagee enforces his or her ownership right to exercise control of the property.  Knagel v. North Park Mortgage Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV–94–0363557–S (December 1, 1997, Licani, J.) (21 Conn. L. Rptr. 76).  In Knagel, after obtaining title by foreclosure, the mortgagee “moved for an order of ejectment against the occupants whereupon the agreement was reached allowing the occupants to remain until a date after the plaintiff's fall.”  The court found this evidence sufficient to defeat summary judgment and concluded that whether after foreclosure the defendant mortgagee had exercised the requisite control for a duty of care “remains a mixed question of intent and fact for the jury.”  Id.;  accord Beckford v. Eastern Savings Bank, Superior Court, judicial district of New Haven, Docket No. CV- 10–6013333–S (May 25, 2012, Wilson, J.) (54 Conn. L. Rptr. 113) (whether mortgagee, who obtained title by foreclosure and commenced eviction action against tenant, exercised requisite control over premises for existence of duty of care is issue of fact for jury);  Craig v. Mohyde, Superior Court, judicial district of Fairfield, Docket No. CV- 94–0316056–S (April 18, 1997, Moran, J.) (granting summary judgment to mortgagee who had not foreclosed or exercised its right to take possession of property).

A genuine issue of material fact regarding the mortgagee's possession and control of the property was found where the mortgagee reserved a contractual right to exercise control over the premises in Lomangino v. LaChance Farms, Inc., 17 Conn.App. 436, 553 A.2d 197 (1989).  In that case, the mortgagee regained the title, held it for a seven-week period, and then resold the property to a subsequent purchaser.  The mortgagee “contended that it was strictly a lending institution that at no time maintained or controlled” the subject property.  Id., 438.  The court, however, relied on the mortgage deeds, containing specific covenants as to the property's maintenance, and on the sales agreement, requiring the mortgagee's written consent for modifications of the ordinary maintenance, in reaching its conclusion that “the plaintiffs raised sufficient, genuine issues as to the material facts regarding [the mortgagee's] actions and its control and possession of the ․ property to warrant reversal of the granting of summary judgment.”  Id., 440.  See also Zuccani v. Antares, Superior Court, judicial district Stamford–Norwalk, Docket No. CV–06–5002096–S (July 22, 2008, Jennings, J.) (46 Conn. L. Rptr. 87) (power to implement or manage repairs is essence of control over property necessary to impose liability).  Just like in Doty, the court in Lomangino found the requirement of the mortgagee's consent for repairs and maintenance to be crucial evidence in the denial of summary judgment.

Thus, in order to raise a genuine issue of material fact regarding the mortgagee's possession and control of the property, it must be established that the mortgagee has legal control of the premises, as was the case in Doty, or takes action to enforce an ownership or contractual right.  See Knagel v. North Park Mortgage Services, Inc., supra, 21 Conn. L. Rptr. 76;  Beckford v. Eastern Savings Bank, supra, 54 Conn. L. Rptr. 113;  or Lomangino v. LaChance Farms, Inc., supra, 17 Conn.App. 436.

In the present case, although under the mortgage deed the defendant had a right upon default by the owner to provide the maintenance of and engage in other activities affecting the premises, it is uncontested that the defendant never exercised that right.  In her affidavit, the defendant affirmed that since she sold the premises, she did not enter upon them, did not have keys to them, did not collect rents and did not perform inspections, repairs or maintenance of the premises, and no tenant ever complained to her about the condition of the premises.

The facts of the present case are opposite to the facts in Doty, where the mortgagee was under a legal obligation to oversee the premises and the owner was enjoined from any interference with the premises.  Here, the court order appointing a receiver, issued on March 30, 2012 provided that “[t]he owner shall be liable for all [costs of repairs and maintenance].”  Although the owner defaulted on the payments of the mortgage, it never stopped providing the maintenance of and repairs to the premises.  Bernard Burgess, the owner's agent, admitted in his affidavit on the day of the fire that he was responsible for conducting maintenance and repairs of the premises:  “Last week ․ I replaced one of the wall mounted heaters in the first floor rear apartment ․ After installing the heater I purchased and installed a [carbon monoxide] detector in the first floor rear apartment against the wall that leads to the stairway to the second floor apartments.  I then went from apartment to apartment checking all of the natural gas appliances in the building ․ The furnace checked out ok ․ I then went into both of the second floor apartments and checked the wall mounted heaters ․ I also checked the gas stoves ․ I also checked the smoke detectors in the entire house.”  Burgess also affirmed that tenants were expected to ask the owner's permission to conduct repairs and to file maintenance requests with the owner:  “[A] tenant ․ had a broken pipe in the apartment that leaked for a long time and he never told me [A tenant] had asked me recently if he could change out the breaker in the apartment ․ but I told him no.”

John Newsom, a tenant who resided with the two decedents on the premises, testified in his affidavits on the day of the fire:  “Last week ․ [Burgess] came over and checked all the apartments [for a] propane [leak] ․ I could smell the propane smell in my apartment.  Mike and I called [Burgess] and he came out that day to check it.”  Lauren Auger, another tenant and the mother of the two decedents, testified:  “Last Friday January 18, 2013 the land lord [Burgess] came to the apartment.  We were smelling what we thought was gas in the apartment ․ John then pointed out the ceiling mounted smoke detector.  [Burgess] then explained that the detector didn't work.  [Burgess] said it didn't even have a battery in it.”

Thus, the tenants were expected to ask the owner's permission to conduct repairs and to file maintenance requests with the owner.  The owner's agent conducted an inspection of the premises four days before the fire, again indicating that the owner was in actual possession and control of the premises.  Therefore, the court finds the defendant has met her burden of bringing forward substantial evidence outside the pleadings to establish the absence of a material dispute as to the actual possession or control of the premises on the date of the fire.  The burden then shifts to the plaintiffs to establish facts which contradict the lack of possession and control on the part of the mortgagee.

The plaintiffs do not contest the fact that the owner had actual dominion and control over the premises on the day of the fire.  Rather, they claim that mortgagee's apparent intent to obtain control over the property is sufficient to demonstrate the existence of a genuine issue as to the possession or control of the premises.  The defendant admitted in her deposition:  “I was in the process of taking back the [subject] property.  Taking back title.  I was clearly the mortgage holder ․ I retained the insurance before the law day ․ When I found out [Burgess] wasn't [carrying insurance], that's when I called [the insurance agent] ․ immediately made attempts to insure the property.”

Effective September 25, 2012, the insurance company added the subject property to the defendant's existing insurance policy for her other properties.  It did so, however, because the defendant, as found by federal court in a proceeding challenging coverage, “erroneously had represented to her insurance agent that she was the primary owner of the property when in fact ․ she was a mortgagee of the property and foreclosure proceedings were pending.”  Vermont Mutual Insurance Co. v. Lacourse, United States District Court, Docket No. 3:13CV664 (JGM) (D.Conn. April 29, 2015).  After the insurance company learned that at the time of the issuance of the policy the defendant merely held the interest as a mortgagee, it rescinded the policy.  As a result, although the defendant did attempt to procure owner's liability insurance policy on the premises, as a mortgagee she was not entitled to it because she was not an owner.  Furthermore, while the judgment of strict foreclosure was entered on November 19, 2012, the law day was set for January 22, 2013, the night of the fire.  Legally, the ownership interest vested in the mortgagee essentially simultaneously with the fire and she never had an opportunity before the fire to exercise rights of control and possession in the capacity as an owner.

Although the defendant may have been preparing to obtain and exercise control over the property in the future, there is no evidence that on the day of the fire she had actual possession and control over the premises.  Nor is there any evidence that she had time to exercise such possession and control, even if she theoretically possessed the right for a brief period of time, due to the coincidence of the law day and the fire.  Accordingly, after the burden shifted to the plaintiffs, they have not met their burden of demonstrating the existence of a genuine issue of material fact as to the possession or control of the premises, and therefore, the defendant is entitled to judgment as a matter of law.

CONCLUSION

While the loss of life in this case is tragic, there is no proof that as of the day of the fire, the defendant/mortgagee had taken any actions of actual possession or control over the property involved, and therefore, the court grants the defendant's, Danielle LaCourse's, motion for summary judgment.

Bates, J.

FOOTNOTES

FN1. Eastern Connecticut Contractors, LLC did not enter an appearance.  On May 27, 2015, the court granted the plaintiffs' motion for default against that defendant.  On October 20, 2015, this court dismissed the claims against Adams for lack of subject matter jurisdiction [61 Conn. L. Rptr. 85].  Throughout this memo, LaCourse will be referred to as the defendant..  FN1. Eastern Connecticut Contractors, LLC did not enter an appearance.  On May 27, 2015, the court granted the plaintiffs' motion for default against that defendant.  On October 20, 2015, this court dismissed the claims against Adams for lack of subject matter jurisdiction [61 Conn. L. Rptr. 85].  Throughout this memo, LaCourse will be referred to as the defendant.

Bates, Timothy D., J.