Opinion
CV 07 4021689S
November 15, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (MOTION 104)
The defendant has filed a Motion to Strike (Motion #104) seeking to have the court strike the Seventh Count of the plaintiff's First Amended Verified Complaint dated September 13, 2007, as well as the plaintiff's claims for double damages, treble damages and attorneys fees. The defendant claims that the Seventh Count, as to entry and detainer, is legally insufficient and inapplicable to the facts alleged in the Complaint inasmuch as the plaintiffs allege that they own the subject property and pursuant to applicable law, an action for entry and detainer is not an action that can properly be maintained by a property owner against the illegal peaceful possessor. The defendant also claims that the plaintiff failed to state a claim upon which double or treble damages or attorneys fees may be awarded. The plaintiff objects to the defendant's Motion to Strike claiming that they have alleged the essential elements of an entry and detainer, that an action in unlawful entry and detainer supports the claim for double damages and further that their claim for attorneys fees is supported by the allegations charging the defendant with willful, wanton and intentional conduct, if not directly, then implied.
STANDARD OF REVIEW — MOTION TO STRIKE
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
A motion to strike is an appropriate means of presenting to the court legal issues at the onset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "Whenever a party wishes to contest . . . the legal sufficiency of any such complaint . . . or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleading or part thereof." George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980).
ISSUES
The issues presented to the court are as follow. The plaintiffs are the owners of property located at 56 Fox Run Road, Norwalk. The defendant is the owner of 54 Fox Run Road, Norwalk. Pursuant to an easement (recorded at Volume 3532 at Page 93 of the Norwalk Land Records) the defendant has an easement across the land of the plaintiffs for the purpose of ingress and egress to and from her property, that a portion of her driveway is located within the easement area. The plaintiffs claim that a portion of the defendant's driveway, as well as a wall, encroach outside of the easement area into or onto the plaintiff's property. They further claim that a retaining wall also encroaches from inside the easement to outside of the easement, onto their property. They claim that the defendant has ordered them to refrain from entering their own property, both in and out of the easement area, has erected barriers that make it difficult to access, occupy and use their own property.
ENTRY AND DETAINER
The entry and detainer statute is 47a-43. It reads as follows:
Sec. 47a-43. (Formerly Sec. 52-462). Complaint and procedure:
Forcible entry and detainer; entry and detainer.
(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.
"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.) Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).
"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 . . . The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact . . . Generally, the inquiry 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; emphasis in original.) Communiter Break Co. v. Scinto, 196 Conn. 390, 393-94, 493 A.2d 182 (1985). See also Wilcox v. Ferraina, 100 Conn.App. 541, 550-51, 920 A.2d 316 (2007).
The main inquiry of entry and detainer law is the issue of "actual possession." Many who have no right of possession to land or property are nonetheless in "actual possession" within the meaning of § 47a-43. A prime example would be a squatter in an apartment building; see Fleming v. Bridgeport, 92 Conn.App. 400, 886 A.2d 1220 (2005), cert. granted, 277 Conn. 922, 895 A.2d 795 (2006), or a person currently "in the actual, hostile, notorious and continuous possession" of land. (Internal quotation marks omitted.) Orentlicherman v. Matarese, 99 Conn. 122, 125, 121 A. 275 (1923). In both circumstances, the party seeking relief under the entry and detainer statute lacked a legally cognizable possessory interest in the property, at least vis-a-vis its real owner. Yet, neither party was precluded from recovering under § 47a-43 for failure to satisfy the standard of "actual possession." Wilcox, p. 551-52.
An examination of the goals underlying the entry and detainer statute further emphasizes the reasons why actual possession, rather than right of possession, must remain the ultimate inquiry. The statute was intended to prevent "the employment of force against a peaceable party"; (internal quotation marks omitted) Orentlicherman, 126-27; and more fundamentally, the temptation for one to "[make] himself judge in his own cause, and [enforce] his own judgment." (Internal quotation marks omitted.) Id., 126. Were such behavior allowed, "a breach of the public peace would be invited, and any wrong, if redressed at all, would be redressed at the cost of a public disturbance, and perhaps of serious bodily injury to the parties." (Internal quotation marks omitted.) Id., 127.
In Evans v. Weissberg, 87 Conn.App. 180, 866 A.2d 667 (2005), a dispute arose between the parties as to the ownership of the strip of land. An action was brought by the plaintiff pursuant to 47a-43. "Some time between November 13, 2001, and March 23, 2002, the defendants erected a fence on the strip of land, approximately one foot from the plaintiff's house, which interfered with the plaintiff's access to the power line, propane tank, shower and plants. The installation of the defendants' fence also resulted in the removal of the privacy fence surrounding the plaintiff's shower." Id., 181. The court found that the defendants
dispossessed the plaintiff of the strip of land. There was ample evidence to support the court's findings. The court heard testimony that in order for the plaintiff to access the northeast side of her property, she was required to cross over the disputed strip of land and that when the defendants erected the fence on the strip of land, they interfered with the plaintiff's access to that part of her property. The court also heard testimony that the plaintiff had exercised dominion and control over the strip of land prior to the installation of the fence. The plaintiff testified that she believed that the strip of land was part of her property and that she protested when the defendants had the fence installed. She also testified that she used the land to access her shower and plants, and that the company that serviced her propane tank used the land to access the tank. Furthermore, the plaintiff's husband testified that he maintained the strip of land. As we have noted, it is for the trial court, not this court, to assess the credibility of witnesses. Accordingly, we cannot conclude that the court was clearly erroneous in finding that the plaintiff was in actual possession of the disputed property and that, by erecting the fence, the defendants dispossessed her of the property."
Id., 183.
CONCLUSION
Accordingly, for all of the above reasons, this court denies the Motion to Strike as to the Seventh count and therefore denies the Motion to Strike the claim for relief since under C.G.S. 47a-46 the plaintiff would be entitled to double damages and costs if they prevail on the Seventh Count.