Cavanagh v. Richichi
| Decision Date | 10 May 2022 |
| Docket Number | AC 44344 |
| Citation | 212 Conn.App. 402,275 A.3d 701 |
| Parties | Willis CAVANAGH v. Joseph RICHICHI, Cotrustee, et al. |
| Court | Connecticut Court of Appeals |
Douglas J. Varga, Bridgeport, for the appellant (plaintiff).
Joseph DaSilva, Jr., with whom, on the brief, was Marc J. Grenier, Norwalk, for the appellees (defendant New NRB #3 Corporation et al.).
Bright, C.J., and Clark and DiPentima, Js.
In this partition action, the plaintiff and counterclaim defendant, Willis Cavanagh (plaintiff), appeals from the judgment of the trial court ordering an equitable distribution of the property located at 120 Water Street in Norwalk (property). The trial court found that the plaintiff's interest in the property was minimal and ordered him to quitclaim his undivided one-third stake in the property to the defendants and counterclaim plaintiffs Robert Bloom and John Gardella, in their capacity as cotrustees of the Norman R. Bloom Revocable Trust, and to New NRB #3 Corporation (New NRB) (collectively, defendants), for just compensation.1 On appeal, the plaintiff claims that the trial court erred in calculating the just compensation owed to him by (1) finding that the defendants were entitled to a credit of one third of the amount that they paid for improvements to the property, and (2) failing to award him any compensation for the defendants’ use and occupancy of the property. We affirm the judgment of the trial court.
We begin by setting forth the relevant facts, as found by the trial court, in addition to the procedural history in this matter. The property is a 0.7 acre waterfront property located in the Norwalk Marine Commercial zone in Norwalk. The property has approximately 70 feet of frontage on Water Street and 150 feet of frontage on Norwalk Harbor. It is a narrow, mostly level, rectangular shaped lot. The land component of the property comprises about 75 percent of the parcel; the remaining 25 percent stretches into Norwalk Harbor. The property is improved with a small two-story building, a bulkhead, a boat lift, a sixty foot dock, and a sixty foot pier that extends into the harbor.
In 2011, the plaintiff, who owns a one-third interest in the property, commenced an action for a partition by sale of the subject property. At that time, Joseph Richichi and Leslie Miklovich, as cotrustees of the Hillard E. Bloom Revocable Trust (Hillard Bloom Trust), and the defendants, were named as defendants in light of their ownership interests in the property.
On June 26, 2013, Richichi and Miklovich filed an answer to the complaint, agreeing with the plaintiff that a partition by sale, with an equitable distribution of the proceeds, would better serve the interests of the co-owners than a partition in kind. On July 8, 2013, however, the defendants filed an answer, counterclaim, and cross claim in which they argued that a physical division of the property was not appropriate and that a partition by sale would not be in the interest of the owners. They alleged that the plaintiff's interest in the property was minimal, and, therefore, they were entitled to an order requiring the plaintiff to convey his interest in the property to them in exchange for fair compensation. The defendants also asserted the right to a set off against any fair compensation due to the plaintiff for the amounts that they had spent for the upkeep, maintenance, and improvement of the property. The defendants asserted the same claims as cross claims against Richichi and Miklovich.
On December 22, 2014, Patrick D. McCabe filed a notice of death of Richichi, and McCabe thereafter succeeded Richichi as a cotrustee of the Hillard Bloom Trust.2 On October 15, 2015, an amended complaint was served and filed to reflect this new interest, in addition to correcting a service issue as to Gardella, as cotrustee of the Norman Bloom Trust. Various counterclaims, answers, special defenses, and replies were filed. Of relevance to this appeal, the plaintiff filed revised special defenses to the defendants’ operative counterclaim on August 16, 2016, which included, among other special defenses, that the defendants failed and refused to pay reasonable rents or use and occupancy to him, which amounts equal or exceed the value of any improvements to the property.
The action was tried to the court on August 17 and September 1, 2016, and January 10, 2017, and the court set a briefing schedule at the close of evidence. In a memorandum of decision dated September 5, 2017, the trial court, Heller, J. , evaluated whether a partition by sale or an equitable distribution, pursuant to General Statutes § 52-500 (a),3 was appropriate. With respect to the plaintiff, the court found that, despite his ownership of "an undivided one-third—or 33.33 percent—interest in the ... property," he had "a minimal interest in the ... property" because, among other things, he failed "to contribute to the cost of the cleaning up [of] the ... property and constructing and installing the improvements"; he failed "to pay any portion of the real estate taxes or the insurance premiums for the property"; he failed "to contribute to the cost of maintaining the ... property"; and he "never sought access to the property." The court found that,
In regard to the Hillard Bloom Trust cotrustees, the court found that they own "an undivided one-sixth—or 16.67 percent—interest in the ... property." The court stated that McCabe or Miklovich, "individually or in their capacity as cotrustees of the Hillard Bloom Trust, have not had anything to do with the ... property." The court stated that, like the plaintiff, "they did not testify at trial or offer any evidence to show that they are not merely passive owners." The court found that they, too, had "a minimal interest in the ... property."
With respect to the defendants, the court found that the Norman Bloom Trust cotrustees owned an undivided one-sixth interest in the property and that New NRB, an oyster and shellfishing company operated by Bloom, owned an undivided one-third interest in the property. Having found that the plaintiff and the Hillard Bloom Trust cotrustees had minimal interests in the property, the court had to determine, in accordance with § 52-500 (a), whether a sale would promote the interests of the defendants. If a sale did not promote their interests, the court could order an equitable distribution of such property. If a sale would promote their interests, an equitable distribution would not be appropriate. The court ultimately concluded that, pursuant to § 52-500 (a), the sale of the property would not promote the interests of the defendants, and it accordingly found that "the equitable distribution of the minimal interests of [the plaintiff] and the Hillard Bloom Trust cotrustees to the [the defendants] in return for just compensation [would] better promote the interests of the owners of the ... property than would a partition by sale."
Instead of determining just compensation at that time, the court's memorandum of decision "direct[ed] the [defendants] to provide a current appraisal of the ... property, prepared by ... [Ronald] McInerney, for the consideration of the court and all parties within sixty days of the date of [its] memorandum of decision."4
The court indicated that the parties would then be heard with respect to the just compensation to be paid to the plaintiff and to the Hillard Bloom Trust cotrustees for their interests in the property.
On October 27, 2017, the defendants filed an updated appraisal completed by McInerney dated October 25, 2017, which the trial court, Hon. Kevin Tierney , judge trial referee, accepted on December 20, 2017. The October 25 appraisal valued the property at $1,325,000. On March 16, 2018, before the hearing on just compensation was held, the Hillard Bloom Trust cotrustees entered into a stipulation with the defendants to resolve their claim to just compensation.
On October 8, 2019, the court held a hearing on the just compensation to be paid to the plaintiff, the defendants’ claim that they were entitled to contributions for the amounts that they had spent for the upkeep, maintenance, and improvement of the property, and the plaintiff's claim that he should be compensated for the defendants’ use and occupancy of the property. The court reserved decision at the conclusion of the hearing and set a posthearing briefing schedule.
In a memorandum of decision dated October 6, 2020, the trial court, Heller, J. , accepted the updated October, 2017 appraisal completed by McInerney and found that the property had a fair market value of $1,325,000. The court stated: "Absent any credit, setoff or other equitable adjustment in favor of the [defendants], the value of [the plaintiff's] undivided one-third interest would be $441,667." However, the court explained that its "role in this partition action does not end with a simple mathematical calculation." It recognized that "[a] partition action requires that the court balance the equities between the parties." (Internal quotation marks omitted.)
With respect to whether the defendants were entitled to a setoff of the amounts that they spent for the upkeep, maintenance, and improvement of the property, including real estate taxes, the court explained that the defendants introduced evidence that they had spent $893,900 in labor and out-of-pocket expenses between 2000 and 2019, to restore and improve the property so that it could support a marine based business. The court found that Bloom had prepared invoices from Tallmadge Sea and Land, Bloom's marine...
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