Opinion
No. CV-07-5004001S
July 15, 2008
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT
FACTS
This is a claim brought by the plaintiff, Gail Decorso (hereinafter DeCorso), alleging that the defendant landlord, Jamal Calderaro (hereinafter Calderaro), wrongfully or illegally evicted her. Furthermore, in connection to the eviction, DeCorso alleges that the defendant marshal who served process upon her, Neil Longobardi (hereinafter Longobardi), negligently inflicted emotional distress by serving her an allegedly invalid and illegal notice, and alleges that Calderaro's bankruptcy attorney, defendant Alfred Zullo (hereinafter Zullo), violated the Connecticut Unfair Trade Practice Act ("CUTPA"), engaged in wrongful lockout and detainer, and inflicted intentional and negligent emotional distress upon her. The following circumstances and dates are relevant to the court's finding and are included as findings of fact within this decision.
DeCorso signed a written commercial lease to rent two rooms at 4 Summit Road in Prospect, Connecticut, for the purposes of maintaining a massage and networking business from the previous owner of the property who preceded the present owner, Calderaro, who purchased the property in the early months of 2004. DeCorso fell in arrears on her rent payments and became subject to a housing court action in the Superior Court at Waterbury. After a trial in the housing court, a judgment of eviction was entered on September 1, 2004, in favor of Calderaro. An original execution was issued on September 15, 2004, whereupon DeCorso filed for Chapter 13 bankruptcy and received a stay of all proceedings. Calderaro retained Attorney Zullo's services to represent her in federal bankruptcy court, and on November 3, 2004, a motion for relief from stay was filed in bankruptcy court. However, a day before Calderaro filed her motion, November 2, 2004, the bankruptcy court dismissed DeCorso's claim for failure to file schedules and failure to make post petition payments.
DeCorso filed another Chapter 13 bankruptcy claim on October 29, 2004, which did not name Calderaro as a creditor and thus, Calderaro received no notice of the action. Through Attorney Zullo, Calderaro discovered this second bankruptcy claim and again, filed a motion for relief from stay. On December 23, 2004, the bankruptcy court granted Calderaro's motion, but denied Calderaro's request to execute the relief of stay immediately and allowed the stay to remain in effect for ten additional days, as dictated by the Rules of Bankruptcy.
On January 3, 2005, Calderaro obtained a second execution of the eviction judgment of DeCorso from said premises, and notice was issued to DeCorso which advised her that the premises must be vacated by February 12, 2005. DeCorso sought further relief by way of the federal bankruptcy court again, and through the housing court, appealing the original housing court judgment against her and filing a motion in bankruptcy court to extend the stay pending the housing appeal. DeCorso's attempt to stay the eviction resulted in a federal court order granting DeCorso a temporary stay on January 28, 2005, and the stay would be in effect until February 10, 2005. The stay expired without any resolution, and the eviction was carried out two days later, on February 12, 2005, by Marshal Longobardi, acting within the authority of the Superior Court, and pursuant to General Statutes § 6-38a.
DISCUSSION
"The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment should be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case." (Internal quotation marks omitted.) Gold v. East Haddam, 103 Conn.App. 369, 372 (2007). "To satisfy his burden [of showing the nonexistence of any issue of fact] the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Id., 373. "In ruling on a motion for summary judgment, the court is not to decide issues of fact; its function is to determine whether there are genuine issues of material fact." Id.
"Summary judgment is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial . . . One of the goals advanced by the summary judgment process is judicial efficiency." (Internal quotation marks omitted.) Provencher v. Enfield, 98 Conn.App. 271, 273 n. 3, 908 A.2d 1126 (2006), rev'd on other grounds, 284 Conn. 772, CT Page 11815 936 A.2d 625 (2007).
In the present case, DeCorso filed a multi-count complaint against Calderaro, Longobardi, and Zullo, who had represented Calderaro for limited purposes in the bankruptcy court to lift a federal bankruptcy stay as well as other proceeding that were necessary in that court. Each of the three defendants filed a motion for summary judgment against this complaint as to the particular counts that were directed towards each of them. The complaint contains numerous counts directed at the three defendants, not in any particular sequence. Therefore, for purposes of clarity, the court addresses each count seriatim to determine whether the said July 12, 2007 complaint should survive the three summary judgment motions that have been filed against it.
The relevant pleading that controls DeCorso's claim is the "Substitute Revised Complaint" dated July 12, 2007, and it is this pleading against which the summary judgment motions have been filed.
In all, DeCorso has filed a complaint that contains sixteen counts, two of which, Count 12 and Count 16, have previously been stricken relating to Calderaro and Longobardi respectively.
COUNT ONE
As to Count One of the complaint, the court finds that DeCorso has minimally met the legal sufficiency required to demonstrate that there is a dispute between the parties over an issue of material fact, which is the condition and possible damage of DeCorso's personal property that was either secured on the premises at 4 Summit Road in Prospect, or that was subsequently removed by DeCorso. A dispute remains as to whether such personalty was damaged, and thus, Calderaro's motion for summary judgment as to Count One is denied.
COUNT TWO
In Count Two of the complaint, DeCorso alleges conversion of personal property against Calderaro based on various charges of improper service of process and execution by Marshal Longobardi. "General Statutes § 52-57(a) provides: Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 855-56, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007). "[I]t is well established in Connecticut that if a writ appears to be [valid] on its face, appears to have been issued by a competent authority, and has been issued with legal regularity, a [marshal] has a duty to serve it and will be protected in making such service. Watson v. Watson, 9 Conn. 140, 147 (1832)." (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 252, (2008) 939 A.2d 1122 (2008).
Therefore, as to Count Two, the court finds that a genuine dispute of material fact does exist as to whether Calderaro had committed conversion of DeCorso's personalty and, therefore, the defendant's motion for summary judgment as to Count Two is denied.
Furthermore, for the purposes of all summary judgment motions herein, the court finds that it has sufficient jurisdiction to hear these motions regardless of any ambiguity concerning service of process and the timeliness of service or lack thereof by the state marshal who received and subsequently served the three defendants, without prejudice to any such defendant.
COUNT THREE
As to Count Three relating to allegations of "civil theft" against Calderaro, the court finds that there is no genuine dispute of material facts, and, as a matter of law, there is no evidence of "civil theft" pursuant to Section 52-564, nor any basis for treble damages. Thus, the motion for summary judgment as to Count Three is granted.
COUNT FOUR
In Count Four of her complaint, DeCorso alleges that Calderaro illegally entered the leased premises without her consent in violation of Section 47a-16, and the court should grant her relief pursuant to Section 47a-18a. Section 47a-16(d)(3) provides: "A landlord may not enter the dwelling unit without the consent of the tenant except pursuant to a court order." (Emphasis added.) General Statutes § 47a-16(d)(3). "A landlord may not enter the tenancy of the tenant without the tenant's permission except . . . pursuant to a court order, General Statutes § 47a-18." Calder v. Lufikin, Superior Court, housing session at judicial district of New London at Norwich, Docket No. 14872 (February 7, 2006, Foley, J.). Section 47a-18 provides: "If the tenant refuses to allow entry pursuant to section 47a-16 or section 47a-16a, the landlord may obtain a declaratory judgment or injunctive relief to compel access or terminate the rental agreement. In either case the landlord may recover actual damages and reasonable attorneys fees. (Emphasis added.) General Statutes § 47a-18.
Hence, as to Count Four the court finds that there is no genuine dispute of material fact. As a matter of law, the court finds there are no material issues because Calderaro rightfully entered the leased premises pursuant to a court order for eviction. The motion for summary judgment as to Count Four is granted.
COUNT FIVE CT Page 11817
In Count Five of the complaint, DeCorso alleges that Calderaro violated the Connecticut Unfair Trade Practices Act ("CUTPA"), codified under Section 42-110g et seq. "[General Statutes §] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008). "Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 19, quoting Glazer v. Dress Barn, Inc., 274 Conn. 33, 82-83, 873 A.2d 929 (2005). "In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 19, quoting Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213-14, 932 A.2d 401 (2007).Based on the credible evidence before the court and the applicable law, the court finds that DeCorso has failed to raise any issues of material fact concerning the elements of a CUTPA claim as defined by statute and copious case law. As such, the court finds, as a matter of law, that the motion for summary judgment relating to Count Five against Calderaro is granted.
COUNT SIX
As to Count Six of the complaint relating to allegations against Calderaro's bankruptcy attorney, Alfred Zullo, the court finds that DeCorso has failed to establish and substantiate with any credible evidence that Zullo engaged in any unfair trade practices to violate CUTPA. DeCorso did not offer any credible proof as to how Zullo's limited representation of Calderaro in the bankruptcy proceeding initiated by DeCorso violated any of the elements of CUTPA. Thus, the motion for summary judgment on Count Six is granted as a matter of law.
COUNT SEVEN
As to Count Seven relating to allegations against Longobardi, the court finds that he was operating within the parameters of his authority as a civil officer and in his official capacity, and his service of process was protected pursuant to Section 6-38a(b). As mentioned previously in the discussion of Count Two, "[I]t is well established in Connecticut that if a writ appears to be [valid] on its face, appears to have been issued by a competent authority, and has been issued with legal regularity . . ." Watson v. Watson, 9 Conn. 140, 147 (1832)." (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, supra, 285 Conn. 252. "When we speak of process `valid on its face,' in considering whether it is sufficient to protect an officer, we do not mean that its validity is to be determined upon the basis of scrutiny by a trained legal mind; nor is it to be judged in the light of facts outside its provisions which the officer may know . . . Unless there is a clear absence of jurisdiction on the part of the [authority] issuing the process, it is sufficient if upon its face it appears to be valid in the judgment of an ordinarily intelligent and informed layman. To hold otherwise would mean that an officer must often act at his peril or delay until he has had an opportunity to search out legal niceties of procedure . . . A result subjecting him to constant danger of liability would be an intolerable hardship to him, and inevitably detract from the prompt and efficient performance of his public duty." (Internal quotation marks omitted.) Id., 252-53.
Therefore, as a matter of law, the motion for summary judgment as to Count Seven concerning Longobardi is granted because DeCorso failed to establish any credible factual or legal basis for her allegations and, therefore, no issue of material fact remains.
COUNT EIGHT
As to Count Eight of the complaint, the court finds as in Count Five that there is no credible factual or legal issue that Calderaro's acts or failures to act were willful or wanton as to justify punitive damages pursuant to CUTPA. Hence, as a matter of law, the motion for summary judgment as to Count Eight is granted.
CT Page 11819
COUNT NINE
As to Count Nine of the complaint, the court finds as in Count Six that the alleged improper acts allegedly committed by defendant Zullo did not violate any of the elements of a CUTPA claim, and therefore, the motion for summary judgment as to Count Nine is granted.COUNT TEN
As to Count Ten of the complaint as to defendant Longobardi, the court finds as in Count Seven that there is no credible factual or legal basis for punitive damages pursuant to CUTPA because there is no basis for a violation of CUTPA. Thus, the motion for summary judgment as to Count Ten is granted.
COUNT ELEVEN
As to Count Eleven of the complaint relating to defendant Calderaro, the court finds there may be a genuine dispute on the material facts concerning negligent infliction of emotional distress suffered by DeCorso. DeCorso has sufficiently alleged and offered some evidence that would raise a material dispute of fact that can be resolved only at trial and is not proper for summary judgment. Therefore, the motion for summary judgment as to Count Eleven is denied in favor of DeCorso.
COUNT THIRTEEN AND COUNT FOURTEEN
As to Count Thirteen, the court finds that there is no credible factual or legal issues raised by the allegations or offers of proof against defendant Zullo for negligent infliction of emotional distress, and hence, the motion for summary judgment for Count Thirteen is granted.
Based on the same premises, the motion for summary judgment for Count Fourteen is granted based on the insufficient offers of proof against defendant Zullo for intentional infliction of emotional distress.
COUNT FIFTEEN
As to Count Fifteen the court finds that DeCorso has failed to raise any credible issue of material fact as to the allegations of negligent infliction of emotional distress against defendant Longobardi. Thus, as a matter of law, the motion for summary judgment as to Count Fifteen is granted.
CT Page 11820
CONCLUSION
Based on the finding of the existence of material issues of fact, the court denies the motion for summary judgment as to Count One, Count Two, and Count Eleven, all relating to the defendant, Calderaro. As for the remaining counts in the subject complaint of July 12, 2007, excluding the two counts that have already been stricken, i.e. Count Twelve and Count Sixteen, the court finds there are no material issues of fact as a matter of law and therefore, grants the motions for summary judgment for each of those remaining Counts relating to each respective defendant.