Lomangino v. LaChance Farms, Inc.

• Decision Date: 07 February 1989
• Docket Number: No. 6778,6778
• Citation: 553 A.2d 197,17 Conn.App. 436
• Court: Connecticut Court of Appeals
• Parties: Frank LOMANGINO et al. v. LaCHANCE FARMS, INC., et al.

Page 197

553 A.2d 197

17 Conn.App. 436

Frank LOMANGINO et al. v. LaCHANCE FARMS, INC., et al.

No. 6778.

Appellate Court of Connecticut.

Argued Dec. 7, 1988.

Decided Feb. 7, 1989.

Ronald P. Sherlock, East Hartford, for appellants (plaintiffs).

Robert J. Cathcart, Hartford, for appellee (defendant Southern New England Production Credit Ass'n).

Before SPALLONE, STOUGHTON and NORCOTT, JJ.

NORCOTT, Judge.

The plaintiffs brought this nuisance action against their former neighbor, Thomas LaChance, and against LaChance Farms, Inc., the Southern New England Production Credit Association (SNEPCA), mortgagee of the LaChance property, and Sunrise Farms, Inc., the subsequent purchaser of the property. The alleged nuisance consists of a large pile of debris, fifty feet wide, twenty feet high and 1500 feet long that defendant LaChance deposited near the boundary of his and the plaintiffs' properties in 1977.

The defendant SNEPCA moved for summary judgment which the trial court, Satter, J., granted on December 9, 1987. ¹ On January 15, 1988, the court denied the plaintiffs' motion to set aside this summary judgment order. ² The plaintiffs have appealed from these rulings.

The following facts are relevant to the ruling on the summary judgment motion. LaChance defaulted on the mortgage held by SNEPCA, and, on January 23, 1983, SNEPCA accepted a deed to the property in lieu of foreclosure. On March 21, 1983, SNEPCA entered into an agreement to sell the property to Sunrise Farms. The sale took place on June 2, 1983, and was subject to a purchase money mortgage taken back by SNEPCA.

Between 1977 and 1979, SNEPCA provided mortgage financing to the plaintiffs in conjunction with a federal program designed to assure funding to farming communities. The plaintiffs allege in their complaint that, through a series of mortgages to them and to other mortgagors, SNEPCA "financed and participated" in the development of the LaChance property from woodland to farmland, a conversion that resulted in the creation of the pile of debris. The alleged nuisance condition remained unabated during these transactions. The plaintiffs further claim that SNEPCA's mortgagor relationship with the other defendants, together with the fact that SNEPCA assumed fee simple title for a seven-week period before the sale to Sunrise Farms, vested both possession and control in SNEPCA so as to render it liable for the nuisance condition. SNEPCA denied the plaintiffs' claim and contended that it was strictly a lending institution that at no time maintained or controlled the LaChance property.

"Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384. The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The court must view the evidence in the light most favorable to the nonmovant. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430 434, 429 A.2d 908 (1980). 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. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982)." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

No Connecticut cases have addressed the specific issue of whether a mortgagee is insulated from liability for the maintenance of a nuisance on the mortgaged property. It is clear, however, that in Connecticut and other jurisdictions " '[l]iability for damage caused by [a nuisance] turns upon whether the defendant was in control, either through ownership or otherwise.' " State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987), quoting Kurtigian v. Worcester, 348 Mass. 284, 285, 203 N.E.2d 692 (1965). In the Tippetts case, our Supreme Court held that, "[w]hen circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance. Henriques v. Rockefeller, 148 Conn. 654, 658-59, 173 A.2d 596 (1961)." Id. 204 Conn. at 184, 527 A.2d 688. The plaintiffs contend that genuine issues of fact exist in this case as to whether SNEPCA controlled the property or was a substantial factor in causing or maintaining the alleged nuisance and that the court erred in its conclusion to the contrary. The trial court concluded from the pleadings and "facts established by depositions, mortgage deeds and affidavits" that: (1) "At no time did SNEPCA participate in the physical development of the former LaChance land or the creation or maintenance of the alleged nuisance"; (2) "Plaintiffs have completely failed to create an issue of fact that SNEPCA had possession and control of the LaChance property"; and (3) "Moreover, plaintiffs have not established that any of defendant's actions were a 'substantial factor in causing the damage.' Beauton v. The Connecticut Light & Power Co., 125 Conn. 76, 81 (1938)."

"Like the other elements of the tort of nuisance, the question of whether a defendant maintains control over property sufficient to subject him to nuisance liability normally is a jury question. See Peterson v. Oxford, 189 Conn. 740, 747, 459 A.2d 100 (1983); Filisko v. Bridgeport Hydraulic Co., [176 Conn. 33, 36, 404 A.2d 889 (1978) ]; Chazen v. New...