Wilcox v. Ferraina

• Citation: 100 Conn.App. 541,920 A.2d 316
• Decision Date: 17 April 2007
• Docket Number: No. 26015.,26015.
• Court: Appellate Court of Connecticut
• Parties: David R. WILCOX et al. v. Daniel J. FERRAINA et al.

920 A.2d 316

100 Conn.App. 541

David R. WILCOX et al. v. Daniel J. FERRAINA et al.

No. 26015.

Appellate Court of Connecticut.

Argued September 18, 2006.

Decided April 17, 2007.

Bruce G. MacDermid, Hartford, for the appellants (defendants).

Jonathan M. Starble, for the appellee (named plaintiff).

Matthew K. Beatman, receiver for the plaintiff American Crushing and Recycling, LLC.

SCHALLER, McLACHLAN and HARPER, Js.

HARPER, J.

In this entry and detainer action, the defendants, Daniel J. Ferraina and Thomas DeFranzo, brought this appeal challenging the trial court's judgment in favor of one of the plaintiffs,¹ David R. Wilcox. The defendants argue that the court improperly found that Wilcox was in actual possession of the property at issue within the meaning of the entry and detainer statute, General Statutes § 47a-43.² In addition, the defendants dispute the court's finding that they dispossessed Wilcox "with force and strong hand" in violation of § 47a-43. We disagree with both of the defendants' claims, and therefore affirm the judgment of the trial court.

The following facts are relevant to the defendants' appeal. Wilcox is the owner and managing member of the plaintiff American Crushing and Recycling, LLC (American Crushing), a construction company. Ferraina is the owner of a parcel of land located in Windsor (property).

On January 13, 2004, Wilcox and Ferraina entered into an agreement in which Wilcox paid Ferraina $100,000 for "the exclusive right" to excavate and to remove earthen material from the property, to screen topsoil on the property and to fill and to grade its north slope with clean fill. The agreement also gave Wilcox the right to bring onto the property all equipment that would be "necessary or useful" to accomplish those tasks. Furthermore, a clause in the agreement permitted Wilcox to nominate any entity to exercise his rights under the agreement. Pursuant to that clause, Wilcox nominated American Crushing.

Beginning in April, 2004, the plaintiffs moved large equipment such as excavators, trucks and payloaders onto the property and commenced operations. By its terms, the agreement commenced on April 15, 2004, and remained effective until the material was removed "to an elevation of 158 feet" or December 31, 2005, whichever occurred first.

On August 3, 2004, the plaintiffs instituted this entry and detainer action against the defendants pursuant to § 47a-43. The verified complaint and application for temporary injunction alleged that beginning on July 10, 2004, the defendants unlawfully had blocked the plaintiffs' entrance to the property and taken possession of the plaintiffs' construction equipment and saleable products. The plaintiffs further alleged that the defendants had used the plaintiffs' equipment and products without their permission and informed their customers that the property was not open for business thereby interfering with the plaintiffs' business relationships.

The court held two hearings before issuing a memorandum of decision on November 3, 2004. The court found that, on July 10, 2004, DeFranzo used two pickup trucks to bar the plaintiffs' ingress and egress from the property and called the police when the plaintiffs protested. The court also found that, in taking those measures, DeFranzo acted both in his individual capacity and as Ferraina's agent.

The court further found that a few days after the incident on July 10, 2004, Ferraina constructed a berm of sand across the entrance to the property from Old Iron Ore Road. Because of the plaintiffs' need to move heavy trucks onto the property, the court noted, Old Iron Ore Road was the plaintiffs' only practical means of accessing the property.

On the basis of those findings, the court concluded that the plaintiffs were in actual possession of the property within the meaning of § 47a-43 and that the defendants dispossessed them "with force and strong hand."³ Accordingly, the court rendered judgment in favor of the plaintiffs and issued an injunction "prohibiting the defendants from blocking the plaintiffs' entry or exit from the subject site." The defendants promptly filed this appeal.

Thereafter, on June 6, 2005, the plaintiffs filed a request for leave to amend their complaint to include a claim for monetary damages and a request for "double damages" under General Statutes § 47a-46.⁴ As the defendants did not file a timely objection to the request, the complaint was amended automatically in accordance with the provisions of Practice Book § 10-60(a).⁵ The plaintiffs later filed a demand for a jury trial on the damages claim, which is still pending before the trial court.⁶

I

Before reaching the merits of the defendants' appeal, we first must determine whether the case has been rendered moot by events that have occurred since the issuance of the final judgment.

The following additional facts are necessary to our consideration of this issue. The defendants filed this appeal on November 22, 2004, and the case was originally scheduled for argument in October, 2005. In the interim, the plaintiffs filed a motion to terminate the stay of execution pursuant to Practice Book § 61-11(d), which the court granted on January 5, 2005.

Prior to argument before this court, however, on July 29, 2005, one of American Crushing's trucks was involved in an accident that resulted in the death of four people and the injury of several others. Later, a wrongful death action was filed against the company, leading to its eventual placement in receivership.

Since then, virtually all of American Crushing's vehicles, equipment and other assets have been liquidated, and American Crushing has ceased all business operations. By agreement between the parties, American Crushing has withdrawn its portion of the complaint, and the defendants have withdrawn the part of their appeal relating to American Crushing.

Given these recent developments and the expiration of the original agreement on December 31, 2005, we questioned whether this appeal should be dismissed as moot. Accordingly, we ordered all involved parties to submit supplemental briefs to this court addressing this issue.

"Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) Smith-Lawler v. Lawler, 97 Conn.App. 376, 378-79, 904 A.2d 1235 (2006).

The defendants concede that the appeal has become moot as to any claims relating solely to American Crushing. They contend, however, that the appeal is not completely moot due to Wilcox' assertion of an individual claim for damages. The continuation of this appeal, the defendants argue, would "underscore that the damage claims of Mr. Wilcox are without merit," and "preclude any future concocted damages claims . . . ."

The expiration of the parties' agreement on December 31, 2005, eviscerated the court's earlier order of injunctive relief. Therefore, to the extent that the plaintiffs originally sought injunctive relief, including restoration to the premises, the case indeed has become moot. Similarly, even if the court improperly enjoined the defendants from "blocking the plaintiffs' entry or exit from the subject site," we no longer could offer any practical relief because of the termination of the plaintiffs' contractual right to enter onto the property.

Our Supreme Court, however, has allowed us to retain jurisdiction "where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot." Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n. 3, 685 A.2d 670 (1996). After conducting a careful review of the record, we conclude that the case is not moot because of the prejudicial collateral consequences that could befall the defendants if we failed to address the merits of this appeal. Specifically, the validity of the earlier finding of unlawful entry and detainer will govern the disposition of the damages claim currently pending before the trial court. If the court's finding of liability was ill-founded, as the defendants maintain, then there would be no basis in law for awarding damages to Wilcox.

Given that meaningful, practical consequences could result from our resolution of the claims relating to Wilcox, we conclude that the appeal is not moot. Having reached that conclusion, we now turn to the merits of the defendants' appeal.

II

The defendants claim that the court improperly found that Wilcox was in actual possession of the property within the meaning of the forcible entry and detainer statute. They also challenge the court's finding of dispossession "with force and strong hand."

"The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry." (Citation omitted....