Sullivan v. Delisa

• Decision Date: 05 June 2007
• Docket Number: No. 25730.,25730.
• Citation: 101 Conn.App. 605,923 A.2d 760
• Court: Connecticut Court of Appeals
• Parties: Philip SULLIVAN et al. v. Maryanne DELISA, Trustee of the Mary E. Crowell Family Home Trust, et al.

923 A.2d 760

101 Conn.App. 605

Philip SULLIVAN et al. v. Maryanne DELISA, Trustee of the Mary E. Crowell Family Home Trust, et al.

No. 25730.

Appellate Court of Connecticut.

Argued January 10, 2007.

Decided June 5, 2007.

Philip Sullivan, pro se, and Charlotte Sullivan, pro se, the appellants (plaintiffs).

Edward G. McAnaney, Suffield, for the appellees (defendants).

SCHALLER, McLACHLAN and STOUGHTON, Js.

STOUGHTON, J.

The pro se plaintiffs, Philip Sullivan and Charlotte Sullivan, appeal from the judgment in favor of the defendants, Maryanne Delisa and Kathryn Hyland, trustees of the Mary E. Crowell family home trust, and Mary E. Crowell,¹ settlor of the Mary E. Crowell family home trust, rendered after a trial to the court, on an entry and detainer action and related claims. The plaintiffs claim that the court improperly determined that (1) they were not in possession of the premises at issue on September 7, 2000, pursuant to General Statutes § 47a-43 et seq., the entry and detainer statutes, (2) they were not tenants of the defendants on September 7, 2000, (3) they were not entitled to the equitable remedy of a constructive trust imposed on the disputed premises, (4) the defendants did not take the plaintiffs' personal property in violation of General Statutes § 52-564, the civil theft statute, and (5) the defendants did not breach a stipulation providing the plaintiffs access to their personal property located on the premises.² We affirm the judgment of the trial court.

The court found the following facts relevant to the plaintiffs' appeal. Philip Sullivan is the son of the defendant Crowell. Sullivan and his wife, Charlotte Sullivan, moved into Crowell's home in Farmington, on a temporary basis, on September 1, 1970. The court stated in its memorandum of decision: "The plaintiffs intended to stay for a few months but ended up staying for thirty years." The plaintiffs primarily used the master bedroom and the family room, but their possession of these rooms was not exclusive, and Crowell and others had access to them. The plaintiffs brought items of their own into the home while there, and Philip Sullivan parked an old bulldozer he owned in the yard, where it resided for about fifteen years. Over the course of the thirty year occupancy, the plaintiffs made a few repairs and improvements to the premises. Crowell paid for the materials, though the plaintiffs appear to have supplied the labor. The plaintiffs made periodic payments to Crowell in order to assist with household expenses, as did other family members when they stayed in the house.

On June 27, 2000, Delisa, a daughter of Crowell and sister of Philip Sullivan, told the plaintiffs that Crowell had decided to move to a retirement center. She further informed the plaintiffs that they could purchase the premises if they wanted to do so. Otherwise, it would be sold. Philip Sullivan testified that the price offered by the defendants was below the fair market value. The plaintiffs declined the offer on July 6, 2000. A dispute erupted between the plaintiffs and Delisa and Hyland, who is also a sister of Philip Sullivan. The argument between the parties resumed the following day, this time joined by Crowell. The defendants informed the plaintiffs that they must move out of the premises. On July 7, 2000, the plaintiffs left the premises and temporarily resided with other relatives. They left some of their personal belongings at the premises, including Philip Sullivan's bulldozer. After staying at several locations, the plaintiffs entered into a lease for an apartment in Newington on August 1, 2000, where they still lived at the time of the trial. Although the plaintiffs went to the premises on several occasions after July 7, 2000 they never again stayed there. On July 20, 2000, Crowell instructed the plaintiffs to remove their personal property by August 6, 2000, because she had rented the premises. The plaintiffs refused to remove their property. On July 31, 2000, Crowell again told the plaintiffs to remove their personal belongings and informed them that she intended to change the locks after August 6, 2000. On September 7, 2000, the plaintiffs returned to the premises and found that the locks had indeed been changed. Most of the plaintiffs' personal belongings had been removed to the garage, except for Philip Sullivan's bulldozer, which had been sold at Crowell's direction. The plaintiffs brought a five count complaint against the defendants on September 18, 2000. They later amended their complaint and added an additional three counts. The trial court rendered judgment in favor of the defendants on all counts on September 14, 2004.

"It is well established that [o]ur review of questions of fact is limited to the determination of whether the findings were clearly erroneous. . . . The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... We cannot retry the facts or pass on the credibility of the witnesses.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Wagner & Wagner Auto Sales, Inc. v. Tarro, 93 Conn.App. 376, 383-84, 889 A.2d 875, cert. granted on other grounds, 277 Conn. 932, 896 A.2d 103 (2006).

I

The plaintiffs first claim that the court improperly determined that they did not have actual possession of the premises on September 7, 2000, as required to prevail on a forcible entry and detainer claim brought pursuant to § 47a-43 et seq.³ Specifically, they argue that the court used an incorrect legal standard to determine that they had "abandoned" the premises and reached a conclusion that was against the weight of the evidence.⁴

A determination of actual possession pursuant to the entry and detainer statutes; § 47a-43 et seq.; is a determination of fact and, thus, our review is limited to determining whether the court's finding was clearly erroneous. Fleming v. Bridgeport, 92 Conn.App. 400, 404, 886 A.2d 1220 (2005), cert. granted on other grounds, 277 Conn. 922, 895 A.2d 795 (2006).

"A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed." Communiter Break Co. v. Scinto, 196 Conn. 390, 393, 493 A.2d 182 (1985). The traditional rule in Connecticut is that the proper inquiry is whether the plaintiff exercised actual possession of the premises in question and that the legal right of the parties to possess the premises is not dispositive. Bliss v. Bange, 6 Conn. 78, 80 (1826) ("[t]he statute designedly excludes the examination and decision of the question of title"); Carrier v. Carrier, 85 Conn. 203, 206-207, 82 A. 187 (1912) ("[t]he statute against forcible entry and detainer . . . makes it unlawful for the owner, or one having the right of possession of land, to forcibly and with strong hand enter and dispossess a person who has the actual, peaceable possession of such land, although the latter has no right of possession" [citation omitted]); Fleming v. Bridgeport, supra, 92 Conn.App. at 404 n. 5, 886 A.2d 1220 ("[w]e note that an illegal possessor may be in actual possession of property and may commence an action in entry and detainer"). "Generally, the inquiry [of actual possession] is whether the individual has exercised the dominion and control that owners of like property usually exercise.... [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion." (Citations omitted.) Communiter Break Co. v. Scinto, supra, at 394, 493 A.2d 182.

First, the plaintiffs argue that the court used an improper legal standard to determine that they had "abandoned" the premises by September 7, 2000. They argue that the facts found by the court do not satisfy the statutory definition of abandonment pursuant to General Statutes § 47a-11b or pursuant to case law. The plaintiffs cite Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 550 A.2d 1061 (1988); Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 523 A.2d 888 (1987); Communiter Break Co. v. Scinto, supra, 196 Conn. at 390, 493 A.2d 182; and McManus v. Roggi, 78 Conn. App. 288, 826 A.2d 1275 (2003).

The plaintiffs' argument rests on a faulty premise. As stated previously, the plaintiffs, under the entry and detainer statute, had the burden to prove actual possession of the premises at the relevant time. The abandonment statute cited by the plaintiffs governs circumstances when the defendant bears the burden to prove abandonment of some legal right, specifically, when a landlord defendant must prove, as a special defense, that a former tenant has abandoned a tenancy held pursuant to a valid lease. See, e.g., Calder v. Lufkin, Superior Court, judicial district of New London at Norwich, Housing Session, Docket No. 14872, 2006 WL 416274 (February 7, 2006). Two of the cases cited by the plaintiff are similarly inapplicable because they involve the abandonment of a legal right. In McManus v. Roggi, supra, 78 Conn.App. at 288, 826 A.2d 1275, and Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. at 243, 550 A.2d 1061, the defendants had the burden to demonstrate that the plaintiffs had abandoned their legal rights to an easement and to ownership of a mobile home, respectively. It is not clear for what proposition the plaintiffs cite Berlingo v. Sterling Ocean House, Inc., supra, 203 Conn. at 103, 523 A.2d 888, and they have provided no analysis in support thereof.

Communiter Break Co. is also not dispositive. In that case,...