Fernandes v. Rodriguez

• Decision Date: 12 December 2000
• Docket Number: (SC 16198)
• Citation: 761 A.2d 1283,255 Conn. 47
• Court: Connecticut Supreme Court
• Parties: MARIA FERNANDES v. EYVIND RODRIGUEZ ET AL.

255 Conn. 47

761 A.2d 1283

MARIA FERNANDES v. EYVIND RODRIGUEZ ET AL.

(SC 16198)

Supreme Court of Connecticut.

Argued September 26, 2000.

Officially released December 12, 2000.

McDonald, C. J., and Borden, Katz, Palmer and Vertefeuille, Js. Eyvind Rodriguez, pro se, the appellant (named defendant).

Lois J. Lawrence, for the appellee (plaintiff).

Opinion

KATZ, J.

The sole issue in this certified appeal is whether the Appellate Court properly determined that in an action for the partition of real property the trial court could order, as relief, the payment of money to the named defendant, Eyvind Rodriguez,¹ by the plaintiff, Maria Fernandes, and order the defendant to execute and deliver to the plaintiff a quitclaim deed to the subject property. The defendant claimed that the trial court had no statutory authority to render such a judgment because the court was limited to ordering either a partition in kind or a sale of the property. The Appellate Court held that the trial court in this case properly could render a judgment requiring the execution of the quitclaim deed conveying the property to the plaintiff and the payment of money damages to the defendant. Fernandes v. Rodriguez, 54 Conn. App. 444, 445, 735 A.2d 871 (1999). We disagree and reverse the judgment accordingly.

The Appellate Court opinion sets forth the following pertinent facts. "The plaintiff alleged in her complaint that she and the defendant hold title to certain real estate as joint tenants and that G.E. Capital Mortgage Services, Inc., has a thirty year mortgage on the real estate in the original amount of $36,000. The plaintiff sought a partition of the real estate or [i]f a sale would better promote the interests of the coowners, then a sale of the premises and a division of the proceeds, after the payment of the expenses of the sale, between the parties according to their respective rights in the real estate.' In his answer, the defendant admitted that there was a mortgage and agreed to the plaintiffs claims for relief, stating that the defendant agrees to a partition or sale of said property.' The complaint does not allege nor does the record indicate whether the defendant signed a promissory note in connection with his execution of the mortgage deed.²

"The defendant counterclaimed, alleging that the plaintiff was living rent free in one of the property's three apartments, and that the plaintiff kept the net rental income of the remaining two apartments. He sought a money judgment in the amount of one half of the net rental income and one half of what should have been the rental of the apartment in which the plaintiff lived.

"Certain facts are undisputed by the parties or were found by the trial court. The real estate was purchased by the parties as an investment in July, 1994, for $45,900. The parties intended to live together in one of the three apartments of the house located on the premises. The trial court found that the amount of the down payment plus closing costs equalled $14,892, and that the defendant's net contribution to the closing costs and down payment was $1000. The court further found that the rental value of the apartment in which the plaintiff was living was $500, that the plaintiff kept detailed records of rents and expenses from the date of purchase to the date of the trial that showed a net profit for that period of $1556, that the defendant contributed little or nothing by way of repairs or management or upkeep of the building over the years, that the plaintiff did extensive clean up and repairs and has managed the property since the purchase, and that, of the net profit of $1556, the plaintiff had paid the defendant $479. Because the trial court found that the defendant could have lived in the apartment where the plaintiff resided for a three year period, the court concluded he was not entitled to be paid anything for the rental value of that apartment. The court stated that it did not find the defendant's testimony credible and that it believed the testimony of the plaintiff.

"The trial court, after making its findings, determined that the defendant should recover $1077 as his net share of the rental proceeds, be reimbursed the $1000 he paid toward the closing costs and receive 10 percent of the equity in the property. The trial court found 10 percent of the equity to be more than a fair share for the defendant because the $1000 paid toward the closing expenses was less than 10 percent of the total down payment and the closing expenses. In determining the amount of equity, the court found the value of the property to be $61,000 and the mortgage balance to be $25,282.40.³ The trial court concluded, on the basis of the facts found, that the defendant's interest in the real estate was minimal and that, therefore, the defendant was not entitled to the remedy of a sale of the property. The trial court did not discuss partition in kind as a remedy. The court's judgment was that the plaintiff pay the defendant $4605 and that the defendant execute and deliver to the plaintiff a quitclaim deed relinquishing all his right, title and interest in the property." Id., 445-47.

In his appeal to the Appellate Court, the defendant claimed that the trial court had: (1) exceeded its authority in ordering a partition by payment of money; (2) abused its discretion in accepting the opinion testimony of the plaintiffs real estate appraiser; and (3) improperly found certain material facts.

The defendant's second and third claims related to his counterclaim for one half of the rental value of the plaintiffs apartment and to his claim that his interest in the real estate was not minimal. The Appellate Court concluded that the trial court properly had relied on the testimony of a real estate appraiser called as a witness by the plaintiff in finding the fair rental value of the premises in which the plaintiff lived to be $500 per month. Id., 454. Additionally, on the basis of its review of the trial exhibits and the transcript, the Appellate Court concluded that the trial court properly had determined that the defendant's contribution to the purchase price and renovation of the premises was minimal. Id., 453. Based upon the trial court's conclusion that the defendant had no more than a minimal interest in the subject property, the Appellate Court determined that the judgment in the partition action requiring the payment of money in exchange for a conveyance of title was proper. Id.

The Appellate Court did conclude, however, that the trial court improperly had determined that the defendant was not entitled to one half of the rental value of the apartment occupied by the plaintiff. Id., 454. That determination had been predicated on its finding that the defendant could have lived on the premises in that same apartment. In light of the fact that the plaintiff had obtained an ex parte restraining order preventing the defendant from entering the premises, coupled with evidence of police involvement with the parties at the premises, the Appellate Court concluded that the trial court's finding had been improper. Id. Accordingly, the Appellate Court reversed the judgment only as to the amount to be paid to the defendant by the plaintiff and remanded the case to the trial court for further proceedings to determine the amount, in addition to the $4605 award, due the defendant for one half of the fair rental value of the apartment occupied by the plaintiff from the time she began her residency to the date judgment ultimately is rendered. Id., 454-55.

Thereafter, the defendant petitioned this court for certification, which we granted, limited to the following issue: "In this partition action, did the Appellate Court properly conclude that the trial court had the equitable power to order the [defendant] to convey his interest in the property to the plaintiff and the plaintiff to pay the [defendant] money damages?" Fernandes v. Rodriguez, 251 Conn. 907, 739 A.2d 264 (1999).⁴ We conclude that the trial court did not have such equitable power. The principal issue in the present case is whether, in a partition action, when terminating the ownership relationship between the parties, a court is limited to rendering a judgment of either a partition in kind or partition by sale of the real property; that is, whether there exists authority to order relief other than a partition in kind or a partition by sale pursuant to General Statutes §§ 52-495 and 52-500.⁵ We conclude that in a partition action, one joint tenant or tenant in common cannot dispossess another except by partition in kind or partition by sale. We therefore disagree with the Appellate Court's conclusion that §§ 52-495 and 52-500 authorize a trial court to order a remedy other than partition in kind or partition by sale. The text of these statutes, as well as our previous discussion of the remedies, establish that the trial court did not have the authority to order the defendant to execute a quitclaim deed to the plaintiff in exchange for the payment of money.

The right to partition is well settled and its history has been documented thoroughly. Our most recent discussion can be found in Geib v. McKinney, 224 Conn. 219, 224, 617 A.2d 1377 (1992), wherein we reiterated: "The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become [s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afford[s] to every owner with another relief by way of partition...." (Internal quotation marks omitted.) Through the right to partition, "it was intended that the undivided possession...