Opinion
TTDCV186015974S
02-15-2019
George M. PURTILL, Successor Administrator of the Estate of Adelma Grenier Simmons v. Edward Werner COOK
UNPUBLISHED OPINION
JENNIFER J. MACIEROWSKI, Judge
THE COMPLAINT
The plaintiff, George M. Purtill, successor administrator for the estate of Adelma Grenier Simmons, brought this summary process action by way of a complaint dated October 2, 2018, seeking possession of the premises located at 534 Silver Street, Coventry, Connecticut. The defendant, Edward Werner Cook, occupied the premises pursuant to a life tenancy granted to him by Adelma Simmons, his late wife. The defendant’s life tenancy was terminated by order of the probate court on May 8, 2018. The order became a final judgment on September 17, 2018. The plaintiff caused a notice to quit to be served on the defendant on September 19, 2018, requiring the defendant to quit the premises on or before September 30, 2018. The defendant remained in possession.
Because of the charitable intent and interests at stake, the State Attorney General’s office has been actively involved in the Probate Court proceedings.
This summary process action follows years of conflict in the Probate Court leading up to the May 8, 2018 order terminating the defendant’s life tenancy. Some of that history is set forth in the Probate Court order and recounted herein.
BACKGROUND
Underlying Probate Court Proceedings
The property at large is known as the Caprilands Herb Farm and consists of a residence, various outbuildings and approximately sixty-two acres of land. As articulated in the Probate Court order, Ms. Simmons’ will granted the defendant a life tenancy to her personal residence with the stipulation that he pay for and maintain said residence and operate the farm as a charitable entity. Following the defendant’s life tenancy, the entire property was to be operated by the charitable entity to focus on the growing and use of herbs "for the improvement of public health and human life."
The later was ostensibly filed on behalf of "Caprilands Institute, Inc." and signed and filed by the defendant, a non-lawyer officer or member of the corporation. It was dismissed on that basis. See Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 642 A.2d 62, cert. denied, 230 Conn . 915, 645 A.2d 1018 (1994) (holding that a non-attorney officer of a corporation could not file pleadings or appear on behalf of the corporation).
In support of its decision to terminate the defendant’s life tenancy, the Probate Court made the following findings:
Over the past several years this court has heard repeated testimony that the property has been allowed to deteriorate under Mr. Cook’s watch to the point where it is no longer usable as an herb farm and tourist destination as it was when the decedent died. For over twenty years it has been Mr. Cook’s charge to maintain the residence and to develop the charitable enterprise. As the sole person in charge of managing, maintaining and developing a way to sustain the farm, Mr. Cook has been an abysmal failure. To further make this state of affairs worse, Mr. Cook has been and continues to be intransigent in his beliefs and refuses to work cooperatively with the court, with the town, with the state and with the successor administrator. The evidence is clear that Mr. Cook will most likely continue to obstruct any attempt to improve the property so that it could be used as intended ...
The grant of his life tenancy under the will was not an absolute grant of either title or authority. It came to him together with the obligation both to maintain the property and to use it for charitable purposes. He has done neither. The court concludes that no one will be able to advance the charitable purpose as long as Mr. Cook is in residence ...
While Mr. Cook has had the exclusive right and enjoyment of the property for over twenty years, based on the totality of the evidence presented, he has failed to fulfill any of his obligations under the will while enjoying the benefit bestowed upon him
... The evidence has clearly proven that Mr. Cook has failed to "care for the property" in his position as both life tenant and trustee.
Therefore, this court, effective immediately, terminates Mr. Cook’s life tenancy in and to any and all portions of the property located at 534 Silver Street, Coventry, CT. The successor administrator is authorized to seek and procure whatever orders are necessary to have Mr. Cook removed from the premises.
The Probate Court order became a final judgment when the defendant’s appeal to the superior court was dismissed and no further appeal was filed in the Appellate Court. Thus, the parties came to this court with the defendant’s right to occupy the property as a life tenant terminated and the plaintiff tasked with obtaining possession of the premises from him by "whatever orders are necessary."
Procedural History In This Case
The defendant filed a motion to dismiss on October 25, 2018. The defendant’s motion to dismiss did not attack this court’s jurisdiction or allege any defect in service or process, but alleged that the probate court acted without authority in terminating his life tenancy. (Entry No. 103.) After a hearing, this court denied the motion to dismiss.
On November 13, 2018, the plaintiff filed a motion for default for failure to plead. (Entry No. 108.) On November 21, 2018, the court granted the motion and entered judgment of possession in favor of the plaintiff. On November 26, 2018, the defendant filed a motion to open the judgment (Entry No. 111) as well as an application for stay of execution (Entry No. 112), and on November 28, 2018, he filed an answer to the complaint (Entry No. 113).
After a hearing held on December 7, 2018, the court denied the defendant’s motion to open the judgment but granted his application for a stay of execution for a period of thirty days. In denying the motion to open, the court found that the defendant failed to articulate a good defense and also failed to demonstrate that he had been prevented by mistake, accident or other reasonable cause from making his defense as required by General Statutes § 52-212. Nor could the court find other reasonable cause to open the judgment.
The sole defense set forth in the defendant’s answer stated that he purportedly leased his life tenancy to the Capriland’s Institute, Inc. but this did not provide him with a good defense to this summary process action brought against him individually based upon the termination of his life tenancy. At the hearing, the defendant’s arguments once again focused on alleged errors and improprieties in the probate court proceedings. The defendant did not raise a defense or allege a right to occupy, separate from his life tenancy which was terminated by a final judgment not reviewable by this court.
The court was also not persuaded that the plaintiffs mistaken filing of both a motion for default for failure to appear and a motion for default for failure to plead, followed by a withdrawal of the former, was such an accident or mistake as to prevent the defendant from filing a timely answer. The withdrawal clearly related to only the one motion. The filing of the motions in the first instance, put the defendant on notice of his obligation to answer the complaint. Furthermore, the defendant had appeared and actively participated in pleadings, yet still failed to timely file his answer. Accordingly, the court found that the defendant had not met the standard for opening the judgment pursuant to General Statutes § 52-212.
With regard to the application for a stay of execution, the defendant acknowledged that he was no longer residing in the subject residence. Thus, leaving the court with no concern that the defendant lacked adequate housing for himself. Rather, the defendant requested more time to remove personal items, including farm equipment, and to relocate certain farm animals kept on the premises. The court’s stay gave the defendant thirty days to make such arrangements while also, in response to requests by the plaintiff, asking him to provide certain documentation regarding the condition and safety of the buildings, health of the animals, and property and liability insurance.
On December 12, 2018, the defendant filed an appeal of this court’s December 7, 2018 orders including (1) the denial of the motion to open the judgment; (2) the stay of execution; and (3) the rejection of a claim of exemption from execution.
The defendant did pursue at least four separate appeals to the Appellate Court in 2018. Two of those appeals have been disposed of. The other currently pending appeal filed by the defendant challenges the Probate Court’s December 28, 2017 decree removing him as the executor of Ms. Simmons’ estate and appointing the plaintiff successor administrator. (See AC 42198.)
On December 14, 2018, the defendant filed a motion to stay asking this court to order a stay of execution until the conclusion of his appeal in the Appellate Court (Entry No. 122). The court denied the motion, while noting that an automatic appellate stay did not appear to apply in this case, where the defendant had not appealed the judgment of possession and the time for such appeal had passed. Nevertheless, on January 16, 2019, the Appellate Court issued an order indicating that an automatic appellate stay did apply. As a result, the plaintiff filed this motion to terminate the appellate stay pursuant to General Statutes § 47a-35. The court held a hearing on the motion on February 1, 2019.
ANALYSIS
Statutory and Practice Book Criteria
General Statutes § 47a-35(b) provides in pertinent part that, if an appeal from a judgment of possession in a summary process action is taken within five days from the date of judgment, "execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken solely for the purpose of delay or unless the defendant fails to give bond, as provided in section 47a-35a." (Emphasis added.)
Practice Book § 61-11(d) allows an appellate stay to be terminated "[i]f the judge who tried the case is of the opinion that (1) the appeal is filed only for delay, or (2) the due administration of justice so requires."
In considering the due administration of justice, the court has discretion to balance the equities involved and may consider "the likely outcome of the appeal, the irreparability of harm to the applicant, and the effect of delay upon other parties and the public interest." Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 458-59, 493 A.2d 229 (1985). Trial courts are given broad discretion to determine whether a stay should be terminated. See id., 459 (stating that, "[the Supreme Court] ha[s] vested a large measure of discretion in trial judges in terminating or granting stays").
While either ground provides independent and sufficient basis for granting relief from an automatic stay, the court finds that both apply in this case. Based on the procedural history and facts of this case and having heard the parties, the court finds that the defendant has taken an appeal solely for the purpose of delay and that the due administration of justice requires that any appellate stay be terminated.
Purpose of Delay
At the hearing on the plaintiff’s motion to vacate stay, the third hearing in this case, the defendant once again complained about the probate court proceedings. The defendant argued that the court erred in terminating his life tenancy and alleged that the various parties involved in the case had conflicts of interest and "hidden agendas" that affected the proceedings. The defendant acknowledged that there is no pending appeal of the Probate Court order terminating his tenancy and, therefore, said order is a final judgment. The defendant, nevertheless, hopes the Appellate Court will choose to review that judgment in his appeal of this court’s orders.
As set forth in the Probate Court order and the plaintiff’s motion, the defendant has a history of ignoring court orders, filing repetitive motions and pleadings, and taking multiple appeals. Although, again, he did not appeal to the Appellate Court the Superior Court’s dismissal of his appeal of the Probate Court order terminating his tenancy.
In contrast, any potential harm to the defendant’s interests as a life tenant is minimal given the limited nature of his rights, his acknowledgment that he no longer resides at the premises or relies on it for housing, and his own testimony that he has spent substantial sums of money on the property with no return. It is possible that, if allowed possession of the property, the plaintiff will actually improve the property, which would only inure to the defendant’s benefit should his rights be reinstated on appeal. While the defendant did express concern that the plaintiff might sell the property during the pendency of the appeal, and the court recognizes this may cause him some harm should he prevail on appeal, the court does not believe it has the authority to prohibit the plaintiff from taking such action. However, any sale would have to be reviewed and approved by the Probate Court.
The termination of the defendant’s life tenancy followed years of litigation in the Probate Court, and failed efforts to require the defendant to fulfill his obligation as life tenant to maintain Caprilands and carry out his late wife’s charitable intent. The defendant complained at the hearing that he never had the funds, legal assistance or other support necessary to meet these obligations. The defendant testified that there were no funds available upon his wife’s death and that he has spent a considerable amount of his own money to pursue her goals. While it may be true that his mission was destined to fail in light of these circumstances, the current reality is that his right to occupy the premises has been terminated.
"Summary process is a special statutory procedure designed to provide an expeditious remedy ... Summary process statutes secure a prompt hearing and final determination." Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999), cert. denied, 258 Conn. 908, 782 A.2d 1255 (2001). "It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions ... The proceeding was not only intended to be summary, but conclusive." (Citations omitted; internal quotation marks omitted.) West Haven Housing Authority v. Simmons, 5 Conn.Cir.Ct. 282, 288-89, 250 A.2d 527 (1968).
The court is reasonably satisfied that the purpose of this appeal is to further delay summary process and to frustrate the probate court’s orders as well as the plaintiff’s efforts to obtain possession of the premises. See Heilpern v. Lattimore, Superior Court, judicial district of Hartford, Docket No. SP-H-8005-5934 (July 7, 1980, Spada, J.) (holding that where court is reasonably satisfied that main purpose of appeal is to thwart summary process, no stay shall apply and execution may issue).
Due Administration of Justice
The court is also convinced that the due administration of justice supports a termination of any appellate stay. As argued by the plaintiff at the hearing, any prolonged stay of the November 21, 2018 judgment of possession will impede efforts to secure and care for the farm and fulfill Ms. Simmons’ charitable intentions. Further delay will cause continuing harm to the estate, whose property the Probate Court found the defendant neglected and squandered over the course of twenty years, undermining the Probate Court’s order. In the present action, not only are the interests of the estate at risk, but there is a public interest as well. As noted in the Probate Court order, "the state of Connecticut, Attorney General’s Public Charity Unit has remained tenaciously involved throughout these proceedings. Its client is the general public who, over the preceding twenty years, has been deprived of the ability to enjoy the work of Ms Simmons, as preserved in the charitable enterprise she envisioned." Accordingly, the court finds that an appellate stay would cause substantial harm to the plaintiff as well as to the public interest in this case and would contradict the clear intent and directive of the Probate Court order.
The defendant’s appeal of the Probate Court order to the Superior Court was dismissed on August 27, 2018, and the defendant took no further appeal. See Docket No. TTD-CV-18-5010386-S.
The court also finds the defendant’s likelihood of success on appeal to be small given that his only defense in this case has been to collaterally attack the Probate Court order, which he failed to properly appeal and is a final judgment against him. (See Huessner v. Day, Berry and Howard, LLP, 94 Conn.App. 569, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006) (holding that Probate Court decrees are final judgments for the purposes of res judicata and collateral estoppel such that a party is barred from relitigating claims and issues that were actually litigated and decided in a separate prior Probate Court proceeding). In the present case, the defendant’s rights as a life tenant under Ms. Simmons’ will were actually litigated and decided by the Probate Court which terminated those rights, and he has identified no other legal basis for his right to occupy the property.
Based on the totality of the circumstances, the court finds that the defendant’s appeal in this case was taken for the purposes of delay and that the due administration of justice requires any automatic appellate stay that applies in this case to be terminated so that the plaintiff may begin to secure and care for the property and plan for its future use consistent with Ms. Simmons’ charitable intent.
Security Requirement
Alternatively, the plaintiff argues that an appellate stay does not apply in this case because the defendant failed to post a bond as required by General Statute 47a-35(b). Pursuant to said statute, an automatic stay of execution shall apply if an appeal from a judgment of possession is taken within five days of such judgment "unless the defendant fails to give bond, as provided in section 47a-35a." Section 47a-35a requires that, in any appeal of a residential eviction, the defendant "shall, within the period allowed for taking such appeal, give a bond with surety to the adverse party to guarantee payment for all rents that may accrue during the pendency of such appeal, or where no lease had existed, for the reasonable value for such use and occupancy ..." As an alternative to providing a bond, the defendant may move to make monthly use and occupancy payments.
The purpose of the bond requirement is to provide security for property owners who may be deprived of the use of their property after judgment of possession has entered in their favor, while that judgment is on appeal. Compliance with Section 47a-35a is mandatory. The statute imposes upon the defendant "an affirmative duty to initiate the security process." City of Norwich v. Shelby-Posello, 140 Conn.App. 383, 392, 59 A.3d 239 (2012). Failure of a defendant to either (1) post a bond, (2) file a motion to set bond, or (3) move for use and occupancy payments, within the time allowed voids an appeal. See id.
In the present case, the defendant failed to post a bond and also failed to move to set a bond or to make use and occupancy payments. Having failed to comply with the "affirmative duty" to provide security, as set forth in § 47a-35a, the stay of execution provided for in § 47a-35 does not apply.
For all of the foregoing reasons, the court grants the plaintiff’s motion to terminate any automatic stay that applies in this case and execution may issue.
1 Said order was attached to the complaint as Exhibit A.