Opinion
No. CVM-NNI CV06-4006614
April 20, 2007
MEMORANDUM OF DECISION
This memorandum of decision addresses the issues raised through the action for entry and detainer brought by Imperial Tents, Inc. (plaintiff-tenant) against Imperial Shows, LLC (defendant-landlord) pursuant to General Statutes § 47a-43(a). For the reasons stated herein, the court finds this matter in favor of the plaintiff-tenant, and grants the relief requested. See Wilcox v. Ferraina, 100 Conn.App. 541 (April 17, 2007).
General Statutes § 47a-43(a) provides as follows: (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."
In this action involving access to commercial property, a pivotal question before the court is whether the plaintiff-tenant was in "actual possession" of the premises at issue when the defendant-landlord caused his personalty to be ejected. See Murphy, Inc. v. Remodeling, Etc., 62 Conn.App. 517, 519, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001) (in an entry and detainer connection, the "dispositive issue" is whether the tenant was in actual possession of the premises). In the present contest, proof of the element of possession is critical both to the plaintiff-tenant's claims of unlawful entry and detainer and to the defendant-landlord's arguments in opposition. The parties each focused upon the element of possession in their vigorous direct and cross examination of the witnesses at trial; and in their closing arguments; and in their comprehensive, detailed and analytical post-trial briefs.
The plaintiff-tenant would have the court find the issue of "possession" to be simple both substantively and procedurally. However, a close review of the appellate-level decisions addressing the subject of whether a party in the position of the plaintiff-tenant could be found to have "possession" of the premises sufficient to allow him to utilize § 47a-43 indicates that this area of the law is neither simple, nor resolved by modern opinions of our highest court. The case at bar instead presents the trial court with a conundrum, as the fundamental issue of "possession," under the circumstances of or forcible entry and detainer statute, § 47a-43, is presently subject to the consideration of the Connecticut Supreme Court in the matter of Fleming v. Bridgeport, 92 Conn.App. 400, 886 A.2d 1220 (2005), cert. granted, 277 Conn. 922, 895 A.2d 795 (2006). Significantly relevant to the pending litigation, the facts of Fleming v. Bridgeport involved a plaintiff who had used real property without a written or informal lease, without the owner's express permission, and who may have occupied the status of an illegal, although an actual, possessor. In that opinion, which is unfavorable to a defendant-landlord, the appellate court specifically determined, among other things, that a broad category of "possessor[s] may be in actual possession of property and [thus may lawfully] commence an action in entry and detainer." Fleming v. Bridgeport, supra, 92 Conn.App. 404 n. 5.
Initially, the Supreme Court had denied certification with regard to any of the issues presented in the plaintiff's appeal of that matter, leaving in place the Appellate Court's construction of the nature and extent of "possession" predicate to an action brought for relief pursuant to § 47a-43(a) in landlord-tenant matters. See Fleming v. City of Bridgeport, 277 Conn. 904, 894 A.2d 987 (2006). Subsequently however, the Supreme Court reconsidered its denial of additional review, and granted certification on March 7, 2006. See Fleming v. City of Bridgeport, 277 Conn. 922, 895 A.2d 795 (2006). In relevant part, that certified appeal will provide resolution of the following issue: "Did the Appellate Court properly conclude that the private defendants did not violate the entry and detainer statute?" Id. As further discussed below, the critical issue of the plaintiff-tenant's possessory interest in the real property involved in Fleming v. City of Bridgeport remains to be examined and explicated by the Supreme Court.
As of the date of this memorandum of decision, then, as the Supreme Court has not yet published its opinion in the matter of Fleming v. City of Bridgeport, the law of this state supports the position espoused by the plaintiff-tenant herein. On April 17, 2007, the Appellate Court reaffirmed its previously stated opinion concerning the nature and extent of possession necessary to establish the basis for an entry and detainer action, through the publication of Wilcox v. Ferraina, supra, 100 Conn.App. 541. Notwithstanding the vigor and sincerity of the defendant-landlord's opposition to the plaintiff-tenant's pursuit of the pending action, and while the notion of "judicial independence" remains inherent in the role of the trial judge in all cases, "[i]t is axiomatic that a trial court is bound by Supreme Court precedent . . . This principle is inherent in a hierarchical judicial system." (Citations omitted.) Jolly, Inc. v. Zoning Board of Appeals of Bridgeport, 237 Conn. 284, 195, 676 A.2d 831 (1996). Thus, judges of the Superior Court are "bound by the language of the Appellate Court" if relevant case law is available. Kelly v. Camillo, Superior Court, judicial district of Danbury, Docket No. CV 05 4004458 (September 13, 2006, Mintz, J.) (n. 2 citing Jolly, Inc. v. Zoning Board of Appeals of Bridgeport, 237 Conn. 284, 195, 676 A.2d 831 (1996).
Wilcox v. Ferraina, 100 Conn.App. 541 (2007) addresses and resolves in favor of the plaintiff-tenant nearly all the legal arguments presented by the defendant-landlord in his comprehensive and inclusive Defendant's Post-Trial Reply Brief including the issues of entry and detainer, actual possession and license for use of the premises. The Defendant's Post-Trial Reply Brief also raises the issue of abandonment, which the court addresses in this memorandum of decision.
Therefore, in resolving the controversy between present parties, while awaiting the Supreme Court's contemporary attention to the issue of "possession" relative to the landlord-tenant legislation in general and to the entry and detainer statute in specific part, this court is bound to apply the applicable analyses found in such appellate-level opinions as Berlingo v. Sterling Ocean House, Inc., 5 Conn.App. 302, 306-07, 504 A.2d 516 (1986), reversed on other grounds, Berlingo v. Sterling Ocean House, Inc., 203 Conn. 108, 523 A.2d 888 (1987); Fleming v. Bridgeport, supra, 92 Conn.App. 400; and the most-recently published Wilcox v. Ferraina, 100 Conn.App. 541. Using these applicable measures, for the reasons stated below, the court finds that there is sufficient evidence from which it can properly find that the plaintiff-tenant had "actual possession" of the premises at issue when the defendant-landlord took action to preclude the plaintiff-tenant's entry. Wilcox v. Ferraina, supra, 100 Conn. 554.
Accordingly, the issues in favor of the plaintiff-tenant, enters judgment in his favor pursuant to § 47a-43(a), and hereby orders the defendant-landlord to restore the plaintiff-tenant to possession of the premises at issue, herein identified as Unit D-1, at 180 State Street including 174 State Street, in Meriden, CT, and further orders the defendant-landlord to immediately restore the possessions of the plaintiff-tenant, which the defendant-landlord had previously removed from those premises, back to those premises previously occupied by the plaintiff-tenant.
I. PROCEDURAL HISTORY
The complaint filed October 10, 2006 was brought forth pursuant to § 47a-43 using Form JD-HM-24 entitled "Verified Lockout Complaint and Application for Temporary Injunction." The original complaint presents the following pertinent allegations: that since September 1, 2004, the plaintiff-tenant has been the "actual possessor" of the dwelling unit located at 180 State Street, Meriden, CT; that on or about September 13, 2006, the defendant-landlord entered the dwelling unit and "with strong hand locked the plaintiff out by . . . changing the locks"; and that the defendant-landlord has prevented the plaintiff-tenant from occupying the dwelling since September 13, 2006. As relief, as explained at trial, the plaintiff-tenant requested the court to enter orders enjoining the defendant-landlord from depriving Imperial Tents, Inc. of the dwelling unit and personal property set forth on Schedule A, attached to the complaint and restoring the plaintiff-tenant to the premises and to use of the personalty owned by Imperial Tents, Inc.
The original complaint does not specifically allege that the defendant-landlord "caused damage" to the plaintiff-tenant's property; however, the complaint had appended a list of personalty, some of which was the subject of evidence presented at trial.
The evidentiary portion of the trial upon the plaintiff-tenant's complaint was held on October 13, 2006; argument was presented to the court on December 8, 2006. Also on December 8, 2006, without objection, the plaintiff-tenant amended the complaint to reflect claims: that the plaintiff-tenant has been the actual possessor of the property at issue since September 1, 2004; that in violation of § 47a-43a, the defendant-landlord entered onto that property on or about September 13, 2006 and with a "strong hand locked the plaintiff out by changing the locks," prevented the plaintiff-tenant from occupying the property, and "caused damages to the premises . . . or removed, damaged or took possession and control of personal property of the Plaintiff" and that the defendant-landlord "or its agents" thereby caused irreparable loss or damage to the plaintiff-tenant, in that Imperial Tents, Inc. was "deprived of its business and possessions contained therein." Through the amended complaint, the plaintiff-tenant requested the same relief as that requested through the original pleading.
In the interim, the defendant-landlord ostensibly wrote to counsel for the plaintiff-tenant concerning cooperative removal of the Imperial Tents, Inc. personalty. See Motion for Order, #101. On November 30, 2006, the plaintiff-tenant filed a Motion for Order requesting the court to enjoin the defendant-landlord "from removing the Plaintiff's property that is the subject of this action during the pendency of this action." (#101.)
As the basis for his cause of action in entry and detainer, the plaintiff-tenant generally contends that the defendant-landlord's conduct in changing the locks to the office and storage space at the warehouse unit occupied by Imperial Tents, Inc., and in removing and retaining its personalty, implicates the relief and protections provided to occupants through the entry and detainer statute, § 47-43(a). As support for his position, the plaintiff relies in part upon the reasoning presented in a trial court decision, Forbotnick v. Kalinowski, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 5967 (January 11, 2000, Tanzer, J.) [ 26 Conn. L. Rptr. 517] (finding that the landlord had violated certain provisions of § 47a-43 when he changed the locks to and removed the tenant's property from a leased apartment after the tenant had been absent from the premises for approximately six weeks).
There is no indication, in evidence nor in the court file, from which the court could reasonably and logically conclude that the defendant-landlord or any other person has ever initiated a summary process action seeking eviction of the plaintiff-tenant and repossession of the portion of Unit D-1 at which the plaintiff-tenant maintained office space or upon which he had stored his tents and related equipment, as contemplated by General Statutes § 47a-23 (notice to quit possession or occupancy of premises) or § 47a-23a (complaint for possession or occupancy of nonresidential property). The defendant-landlord admits that he, himself, never commenced an action for summary process against the plaintiff-tenant. (Testimony of Reid.)
"`Summary process is a statutory remedy that enables a landlord to recover possession from a tenant upon the termination of the lease.' Sullivan v. Nameaug Walk-in Medical Center, P.C., 35 Conn.App. 185, 188, 644 A.2d 398 (1994), appeal dismissed, 233 Conn. 213, 657 A.2d 639 (1995). `The purpose of summary process proceedings is to permit the landlord to recover possession of the premises upon termination of a lease without experiencing the delay, loss, and expense to which he might be subjected under a common law cause of action. The process is intended to be summary and is designed to provide an expeditious remedy to a landlord seeking possession . . . We have recognized the principle that, because of the summary nature of its remedy, the summary process statute must be narrowly construed and strictly followed.' (Citations omitted; internal quotation marks omitted.) Bridgeport v. Barbour-Daniel Electronics, Inc., supra, 16 Conn.App. 581-82. See also Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993); Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988)." (Quotation marks and internal citations omitted; emphasis added.) Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 42, 726 A.2d 600 (1999).
At trial, the plaintiff-tenant specifically limited his requests for relief to the following: first, Imperial Tents, Inc. requests an order permitting entry into Unit D-1 to ascertain what, if any, of its personal property remains on the premises; second, it requests an order that the defendant-landlord restore Imperial Tents, Inc.'s personal property onto the premises it previously occupied at Unit D-1.
II. FACTUAL FINDINGS
In reaching its determination in this matter, the court has thoroughly reviewed the documents submitted in evidence which included an agreement of a sale, a diagram of the premises at issue, and photographs of a semi-sheltered storage area into which the plaintiff-tenant's personal property has been moved by the defendant-landlord. The court also has carefully reviewed the testimony of witnesses who included: the plaintiff-tenant, the defendant-landlord, a subcontractor who performed work for the plaintiff-tenant, and a representative of the entity which owns the warehouse premises at issue. The court has utilized the applicable legal standards in considering the totality of the evidence presented at the hearing of this matter. Upon deliberation, and utilizing the appropriate legal standards, the court finds the following facts to have been proved by a preponderance of the evidence.
"It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court . . ." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . .'[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67.
Additional facts will be found herein, as necessary.
At all times relevant to these proceedings, Charles Reid was a member of the business known as Imperial Shows, LLC; Eric Hoff was the president of the business known as Imperial Tents, Inc. Imperial Shows, LLC, the defendant-landlord, owned, operated and received fees for the use of the amusement equipment and/or carnival rides that were delivered to various locations at the request of customers; Reid himself operates the carnival business. From November through April of each year, the amusement equipment and/or carnival rides related to the business of Imperial Shows, LLC, were stored inside a large warehouse complex located at 180 State Street and including 174 State St. in Meriden Connecticut; the carnival business was operated from office space within Unit D-1 upon those premises. The real property at issue was owned by a limited liability corporation managed by Charles Raup (property owner). (Testimony of Hoff, Reid, Raup, Exhibit 2.)
From time to time, the court has used the denominative terms "plaintiff-tenant" and "defendant-landlord" for clarity, not to designate any particular legal status for the parties.
At all times relevant to these proceedings, Imperial Tents, Inc. owned, installed, and received fees for the use of tents and related equipment that the plaintiff-tenant delivered to and provided for the use of customers at various locations. (Testimony of Hoff, Reid.) On October 21, 2004, the plaintiff-tenant contracted to purchase the rights to operate Imperial Tents, Inc. from Imperial Shows, LLC, and these entities entered into an Agreement of Sale (agreement). (Exhibit 1.) Among other things, the agreement provided the plaintiff-tenant with the opportunity to use office space within Unit D-1 located at 180 State Street and encompassing 174 State Street in Meriden. Unit D-1 consisted of space sufficient to accommodate offices for the businesses operated by both Imperial Shows, LLC and Imperial Tents, Inc., and sufficient to house the storage of the tents and related equipment utilized by the plaintiff-tenant, including assembly structures and large-sized tents themselves. By specific but unwritten accord between the plaintiff-tenant and the defendant-landlord, Imperial Tents was permitted to store the tents and related equipment in a space within Unit D-1 outside of but adjacent to the office space described in Paragraph II. of the agreement; the plaintiff-tenant utilized both the office space and the storage space within Unit D-1 as agreed to by the parties. There was a common entry into the space used both by Imperial Shows, LLC and Imperial Tents, Inc. at Unit D-1. The agreement expressly allowed the plaintiff-tenant to use this space, without payment of rent, for one year. (Testimony of Hoff, Reid; Exhibits 1, 2.)
In addition, the agreement established the plaintiff-tenant's purchase of tents and related equipment from the defendant-landlord. To this inventory, from time to time, the plaintiff added other new tents with related equipment, and seven amusement items known as moonwalks. (Testimony of Hoff.)
After the expiration of this one-year, rent-free period, in October of 2005, the defendant-landlord and the plaintiff-tenant orally agreed that for an additional one-year period, Imperial Tents, Inc. could utilize the previously-assigned space at Unit D-1 according to a barter arrangement. Pursuant to this arrangement, in lieu of paying $500 per month in rent to the defendant-landlord, the plaintiff-tenant agreed to provide certain services to the defendant-landlord such as hauling the carnival and amusement rides to various locations, and performing electrical and repair work for the defendant-landlord, without charge. The plaintiff-tenant continued to utilize the office space at Unit D-1 from time to time; when not in use by the plaintiff-tenant, the tents and related equipment remained in place, stored adjacent to that office, throughout the remainder of 2005 and until September 13, 2006. (Testimony of Hoff; Exhibit 2.)
In reaching the determination that the parties utilized a barter arrangement in lieu of a formal rental agreement concerning the plaintiff-tenant's use of space within Unit D-1 for a period following the expiration of the permissive period set forth in the Agreement of Sale, the court has considered, but declines to credit, the defendant-landlord's testimony that no such arrangement had ever existed. The court accepts the plaintiff-tenant's testimony on this subject, in part, due to the relative degree of detail with which he recounted the electrical and other work he had performed upon the defendant-landlord's amusement and carnival equipment. The court has further acknowledged the continuing discord between the parties to this litigation. (Testimony of Hoff, Reid.)
In compliance with this barter arrangement, in addition to conducting the work of Imperial Tents, Inc., the plaintiff-tenant performed some electrical work upon the defendant-landlord's rides at various carnival locations, including Lyme, Essex and Ellington, CT, during the first month following, the expiration of the Agreement of Sale. The plaintiff-tenant provided insufficient evidence from which the court could reasonably and logically conclude that following November 2005, however, he performed any work upon the defendant-landlord's rides or other equipment. (Testimony of Hoff, Reid.) This conclusion is consistent with the plaintiff-tenant's testimony asserting on the one hand that from October 2005 through May 2006 his primary business was conducting the work of Imperial Tents, Inc., but also maintaining that from November 2005 through March 2006 he worked in and traveled back and forth to Louisiana, where he was installing trailers on blocks as a part of hurricane-relief related projects. (Testimony of Hoff.) During November and December 2005, the defendant-landlord worked with the plaintiff-tenant in Louisiana on the trailer installation assignments. The defendant-landlord, however, returned to Connecticut in December, and thereafter remained in this state. (Testimony of Reid.) The plaintiff-tenant thus provided insufficient evidence from which the court could reasonably and logically conclude that he had, in fact, performed any barter-work in exchange for rent at Unit D-1 between December 2005 through July 2006. Nonetheless, the plaintiff-tenant maintained his office space and stored the tents and related equipment upon those premises without interference from the defendant-landlord, and without being charged with specific rental fees, for that entire time, continuing to September 13, 2006. (Testimony of Hoff, Reid.)
In reaching this determination, the court does credit the plaintiff-tenant's candid testimony indicating that no records were kept to record or reflect any work conducted by him personally, or by others on behalf of Imperial Tents, following expiration of the one-year extension of the written agreement represented by Exhibit 1. (Testimony of Hoff, Reid.) Accordingly, notwithstanding the vigor of his contest concerning his right to obtain access to the premises at issue, the plaintiff-tenant does not stand before the court with "clean hands" as contemplated by our jurisprudence. See, e.g., Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 804, 896 A.2d 814 (2006).
On or about July 4, 2006, while the defendant-landlord had returned to Connecticut, the plaintiff-tenant again was temporarily relocated in Louisiana. While he was in that state, an unidentified person or persons, without permission, removed from Unit D-1 approximately one half of the plaintiff-tenant's then-existing inventory, including some new tents and five moonwalks. (Testimony of Hoff, Reid, Raup.) During the period prior to removal of a portion of the plaintiff-tenant's tents and related equipment from Unit D-1, he had provided keys to the premises to at least two other individuals, his brother and Steven McGuire (McGuire), who served as a subcontractor for Imperial Tents, Inc. from time to time. (Testimony of Hoff, McGuire.) Commencing in mid-June 2006, the plaintiff-tenant allowed McGuire not only to access the space at issue within Unit D-1, but also to store McGuire's personalty at that location, all without expressly charging him. (Testimony of Hoff, McGuire.) The plaintiff-tenant returned to Unit D-1 on one occasion in July 2006, following this incident. Thereafter, the plaintiff-tenant maintained the records and office of Imperial Tents, Inc. at his home. (Testimony of Hoff.)
On July 7, 2006, the plaintiff-tenant reported this incident to the defendant-landlord, who indicated that security would be increased at Unit D-1; the plaintiff-tenant also reported this incident to the police who have continued their investigation without apparent resolution of the matter, and without attributing the removal of the plaintiff-tenant's inventory to either the defendant-landlord or to the permissive keyholders. (Testimony of Hoff, McQuire.)
The defendant-landlord effectively admits that although the plaintiff-tenant provided neither barter work nor rent to him from December 2005 through early September 2006, the plaintiff-tenant was permitted to maintain a presence at Unit D-1 through extension of the described office space, and through the storage of that portion of his tent and related equipment inventory that existed following the July 2006 incident. Nonetheless, over the passage of time, the relationship between the parties deteriorated. In May of 2006, the plaintiff-tenant and the defendant-landlord had a disagreement over a piece of equipment known as a "climbing wall." At that time, the plaintiff-tenant indicated his intention to remove the operations of Imperial Tents, Inc. from Unit D-1; however, he never specified a particular date on which this move would take place. (Testimony of Hoff, Reid, Raup.) Nonetheless, in the opinion of the defendant-landlord, the plaintiff-tenant did not move out fast enough. (Testimony of Reid.)
On September 9, 2006, the plaintiff-tenant commenced employment in New York state as a facility manager, engaged in building maintenance. In preparation for diminishing his work with Imperial Tents, Inc., the plaintiff-tenant informed the property owner, in late summer of 2006, that he would move his tents and related equipment to another part of the warehouse complex; again, however, the plaintiff-tenant did not specify a particular date on which this move would occur. (Testimony of Hoff, Raup.) In August 2006, the plaintiff-tenant returned to Unit D-1, gaining access with his own keys which still functioned. With the express permission of the property owner, the plaintiff-tenant then moved a portion of his tents and related equipment, approximately thirty percent of the remaining inventory consisting of four or five of the remaining moonwalks and two large tents, to this new location. The property owner charged the plaintiff-tenant no rent for the privilege of this storage. (Testimony of Hoff, Raup.) After this move, approximately seventy per cent of the tents and related equipment remained at Unit D-1. (Testimony of Hoff.)
On September 13, 2006, the plaintiff-tenant considered himself to be still conducting business from the location at Unit D-1 although, as previously noted, business records were no longer stored in the office after July 2006. (Testimony of Hoff.) The remaining tents and related equipment were still stored, openly and notoriously, on those premises. Just prior to that date, the property owner orally advised the plaintiff-tenant to remove the remaining tents and related equipment from Unit D-1; the property owner orally informed the plaintiff-tenant that if that inventory was not voluntarily removed from Unit D-1, the defendant-landlord and his agents perform the task. (Testimony of Hoff, Reid, Raup.) On several occasions in early September 2006, the property owner orally informed the plaintiff-tenant that the locks would be changed so as to deny further access to the premises. (Testimony of Raup.)
In crediting this, as some other, aspects of the property owner's testimony, the court has acknowledged, weighed and balanced the evidence relating to the nature and extent of his past and continuing nature business relationship with the defendant-landlord. (Testimony of Raup.)
On September 14, 2006, without the plaintiff-tenant's permission, the defendant-landlord removed the remainder of Imperial Tents, Inc.'s inventory from Unit D-1; these items, including tents and related equipment, were placed outside the warehouse building that housed Unit D-1, but in a semi-covered structured area, somewhat exposed to the elements yet largely covered with tarps. The defendant-landlord performed this task at the direction of the property owner. As at the time of trial, the plaintiff-tenant had returned to the warehouse storage area to inspect the property that remained covered by the tarps on only one occasion. (Testimony of Hoff, Reid, Raup; Exhibit 3.) During the time period placed at issue by the pending litigation, no specific accounting was ever conducted to establish the exact nature, quantity, or quality of the tents and related equipment maintained for the operation of Imperial Tents, Inc. (Testimony of McGuire.) The court received insufficient evidence from which it could reasonably assess the financial loss, if any, suffered by the plaintiff-tenant as the result of the ejection of his personalty from Unit D-1 and/or from the lock out, itself.
On or about September 13, 2006, as well, without the consent of the plaintiff-tenant, the locks permitting entry to Unit D-1 were changed by the defendant-landlord, so that the plaintiff-tenant was unable to enter onto the premises to obtain access to the inventory that remained in this location. (Testimony of Hoff, Reid.) The plaintiff-tenant never contacted the defendant-landlord in an effort to obtain new keys that would permit entry into Unit D-1. (Testimony of Hoff, Reid.)
III. JURISDICTION
The defendant-landlord would have the court dismiss the pending statutory action based on lack of subject matter jurisdiction. The plaintiff-tenant objects to dismissal on two grounds: first, that the request for dismissal was brought forth in improper form; and second, that the court maintains effective jurisdiction sufficient to continue the cause. The court finds this issue in favor of the plaintiff-tenant, and accordingly denies the defendant-landlord's request for dismissal.
In objecting to the claimed lack of subject matter jurisdiction, the plaintiff-tenant has made much of the form in which the issue was brought before the court. In his Memorandum of Law, he has carefully and scholarly cited a number of Practice Book provisions establishing the protocol for use in bringing forward a written motion to dismiss based on lack of subject matter jurisdiction. See, e.g., Practice Book § § 10-30, 10-31, and § 11-1. However, notwithstanding the general accuracy of the plaintiff-tenant's arguments on this issue, our case law clearly implicates the court's obligation to a subject matter jurisdiction related claim even if the issues is raised orally by one party or the other, or sua sponte. It is axiomatic that "once the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted; emphasis added.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). In Federal Deposit Insurance Corp. v. Peabody NE, Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), the Supreme Court addressed the pattern and schedule of proposed pleadings submitted while subject matter jurisdictional issues had been raised by a defendant, in a civil procedural. Effectively affirmed by Federal Deposit Insurance Corp. v. Peabody, the rule in this state is that once subject matter jurisdiction has been raised either through a formal, written motion to dismiss, or through a less-formal submission during the course of a hearing, it is plain error for the court to attend to any other dispositional issues prior to deciding the fundamental jurisdictional issues at hand. See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003). Thus, this court is compelled to address the issue of jurisdiction as a preliminary matter.
"The trial court may raise sua sponte the issue of subject matter jurisdiction. See Bittle v. Commissioner of Social Services, 249 Conn. 503, 504-05, 734 A.2d 551 (1999); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 443, 685 A.2d 670 (1996)." Greco v. Commissioner of Motor Vehicles, 61 Conn.App. 137, 143, 762 A.2d 926 (2000). Moreover, the court is obligated to address the issue of subject matter jurisdiction "even when the parties stipulate to the court's jurisdiction; see Rayhall v. Akim Co., 263 Conn. 328, 337, 819 A.2d 803 (2003)." Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 287 n. 8, 828 A.2d 52 (2003).
Brought forward in any form, "[a] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a . . . motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
The defendant-landlord first claims that the court lacks subject matter jurisdiction because there was no landlord-tenant relationship between the parties at the time the entry and detainer action was brought to court. Specifically, the defendant-landlord argues that any action brought under § 47-43 "requires a specific allegation of entry upon land or dwelling without the consent of the possessor and a showing or threat of force in order to obtain relief. See Zdanis v. Sekeret, Super.Court, Litchfield J.D., No. CV-1888494 (June 14, 2002, Moraghan, JTR); New England Astro Optics, Inc. v. Betaman, Super.Court, Hartford J.D., No. CVH 5626 (Feb. 24, 1999, Tanzer, J.)." Defendant's Post-Trial Brief. The defendant-landlord further argues that there is insufficient evidence from which the court could reasonably and logically conclude that at the time of the events in question, Imperial Tents, LLC was not a "tenant" as contemplated by General Statutes § 47a-1(l). Id. As the defendant-landlord correctly points out, that statute, applicable to § 47a-43, defines a tenant as "the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law." Without citation to common law or statutory authority, however, the defendant-landlord claims that "[s]ince the plaintiff and the defendant did not have a landlord tenant relationship, the plaintiff is not entitled to the protections provided by the summary process Statutes and in particular to the protection of § 47a-43, entitled `Forcible Entry and Detainer.'" Defendant's Post-Trial Brief.
The court declines to this aspect of the defendant-landlord's claims as to lack of subject matter jurisdiction, finding that the pleadings and evidence presented at trial clearly demonstrate that the plaintiff-tenant has met its jurisdictional burden. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12. Even if, at the time in question, the plaintiff-tenant was not a formal "lessee, sublessee or person entitled under a rental agreement to occupy . . . [the] premises to the exclusion of others" as contemplated by the first terms of § 47a-1(l), the defendant-landlord has provided inadequate basis upon which the court must forego application of the remainder of the statutory definition. The plaintiff-tenant's status with regard to accessing the relief provided by § 47a-43 may be governed by operation of the final clause of § 47a-1(l), which identifies a tenant as one with rights to an interest in the premises "as is otherwise defined by law." That phrase from § 47a-1(l) is fully consistent with the Appellate Court's determination, in Fleming v. Bridgeport, supra, that even one who unlawfully or without permission maintains occupancy of or possession upon another's property may bring forth an action sounding in entry and detainer under § 47a-43. Fleming v. Bridgeport, supra, 92 Conn.App. 404 n. 5. See also Karantonis v. East Hartford, 71 Conn.App. 859, 861, 804 A.2d 861, cert. denied, 261 Conn. 944, 808 A.2d 1137 (2002); see generally Wilcox v. Ferraina, supra, 100 Conn. 550-51, 554. Thus in the present action, not withstanding the absence of a written lease or other written agreement for his use of the property after October 2005, the court has subject matter jurisdiction such that evidence on the merits may be presented in an effort to establish that he has such a possessory interest in the property at issue that he falls within the extended category of "possessor" who may access the relief offered by § 47a-43. See Fleming v. Bridgeport, supra, 92 Conn.App. 404 n. 5; Karantonis v. East Hartford, 71 Conn.App. 861; Wilcox v. Ferraina, supra, 100 Conn. 550-51, 554.
The defendant-landlord also asserts that the court must dismiss the plaintiff-tenant's entry and detainer claims because the very nature of the statutory action requires a strict application of the text of § 47a-43. Defendant's Post-Trial Brief. The court concurs with the defendant-landlord's submission that "Forcible entry and detainer is a creature of statute and is in derogation of the common law. As such, the statute must be strictly followed and narrowly construed in order to confer jurisdiction upon a court over such action." Id. However, the defendant-landlord would have the court utilizes this otherwise stalwart argument to support a tenuous claim that the court lacks subject matter jurisdiction because the premises for which the plaintiff-tenant claims a possessory interest are commercial in nature, and not residential. As the plaintiff-tenant has aptly pointed out, notwithstanding the reference to a "dwelling unit" in portions of § 47a-43, our courts have determined that the remedy for entry and detainer is available to one with a possessory interest in commercial as well as in residential property. Thus, principles of Connecticut's entry and detainer statute, § 47a-43, "are just as applicable to commercial as they are to noncommercial properties." Berlingo v. Sterling Ocean House, Inc., supra, 5 Conn.App. 306-07; see also Karantonis v. East Hartford, supra, 71 Conn.App. 861-62. Moreover, subsections (2), (3) and (4) of § 47a-43 do not limit the nature of the premises or property to which damage would be caused, or for which a breach of peace must be committed, in order to regain possession. See Bourque v. Morris, 190 Conn. 364, 367, 460 A.2d 1251 (1983). This subsection, therefore, would not fail to provide an adequate base from which the plaintiff-tenant could bring forth his cause of action sounding in entry and detainer.
For the foregoing reasons, as well as for the reasons set forth in Part IV. A., B. and C., below, the court maintains subject matter jurisdiction over the plaintiff-tenant's claims; the defendant-landlord's request for dismissal is denied.
IV. ENTRY AND DETAINER CT Page 6188
"`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 for 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; emphasis added.) Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987)." Wilcox v. Ferraina, supra, 100 Conn.App. 549.A. POSSESSION
The defendant-landlord argues that even if the court has jurisdiction in this matter, the plaintiff-tenant is not entitled to the remedies contemplated by § 47a-43 because, in his view, no entry and detainer can be shown as the element of "actual possession" has not been sufficiently established by the evidence adduced at trial. The court disagrees and finds, based on application of the appellate-level law related to the issue of "actual possession," that the plaintiff-tenant has met the applicable burden of proof on this issue.
In determining whether the plaintiff-tenant was in "actual possession" at the time the defendant-landlord entered onto the property and removed the tents and related equipment at issue, the court has adhered to the legal tenets as determined by the cases referenced above, including Berlingo v. Sterling Ocean House, Inc., supra, 203 Conn. 103; Murphy, Inc. v. Remodeling, Etc., supra, 62 Conn.App. 517; Fleming v. Bridgeport, 92 Conn.App. 400; and the most-recently published Wilcox v. Ferraina, supra, 100 Conn.App. 544. A review of the rules established by these opinions will place in context the court's decision in favor of the plaintiff-tenant in this matter.
The defendant in Berlingo v. Sterling Ocean House, Inc., had leased space upon premises owned by the Stamford Golf Authority (SGA). In turn, the defendant leased those premises to the plaintiff, who there intended to conduct two businesses, a restaurant and snack bar. Berlingo v. Sterling Ocean House, Inc., supra, 203 Conn. 106. "Almost from the beginning a controversy existed between the plaintiff and the defendant as to their rights and liabilities and the management agreement." Id. In May 1983, SGA terminated its lease with the defendant, but entered into a month-to-month lease permitting the plaintiff to operate the snack bar upon the SGA property. The plaintiff vacated the snack bar in November 1983; however, he continued his month-to-month tenancy, "and he continued to keep some of his personal property there until April 20, 1984." Id., 107. A close reading of the Supreme Court's opinion in Berlingo v. Sterling Ocean House, Inc. further establishes the existence of the critical fact, in that case, that the SGA had "recovered possession [of the property at issue] by resort to summary process" prior to the plaintiff's filing of the entry and detainer action. (Emphasis added.) Id., 108.
Prior thereto, in February 1984, the defendant had written to the plaintiff requesting him to remove his personal property from the snack bar area. On the day he sent that letter, the defendant padlocked the entrance to the snack bar; two days later, SGA, the property owner, removed the defendant's padlock and placed its own padlock upon the premises; this action was consistent with SGA's perfected possessory interest in the property, obtained through the summary process action. Id., 108. "During that two period in which [the snack bar] was padlocked by the defendant, the plaintiff did not attempt to enter the premises. It does not appear that he was even aware that the lock was placed on the door." Id., 107. "Several weeks later, SGA sent a letter to the plaintiff advising him that his tenancy at the snack bar was terminated; the plaintiff removed his personal belongings from the snack bar area and quit possession on April 20, 1984." Id.
After removing his personalty from the premises, the Berlingo plaintiff brought an action alleging forcible entry and detainer against the defendant. The trial court entered judgment for the plaintiff and restored him to possession of the snack bar; that decision was upheld by the Appellate Court in Berlingo v. Sterling Ocean House, Inc., supra, 5 Conn.App. 302. Upon certification, the Supreme Court reversed the Appellate Court, concluding that the presented facts "show that the plaintiff, on April 27, 1984, did not have the right to possession of [the snack bar] which entitles him to maintain this action . . . The utmost that the evidence shows is that the plaintiff still had a month-to-month lease from SGA on February 13, 1984, and at the time continued to maintain certain personal property in [the snack bar]." Id., 108-09. The opinion concedes that the defendant approached violation of § 47a-43 by padlocking the door to the premises for two days; however, as the subsequent padlocking was done after the summary process result, and as it was done under the authority of the property owner was never made a party to the entry and detainer action, the Berlingo plaintiff was not in any way an occupant of the snack bar when he brought the § 47a-43 action, and simply "not entitled to the demand of premises as to the non-owning defendant." Id., 109. Relevant to the pending litigation, Berlingo v. Sterling Ocean House, Inc. stands for the proposition that for a plaintiff-tenant to succeed in an action brought under the entry and detainer statute, he must, at the very least, demonstrate possession of the premises at issue. As the Berlingo plaintiff had quit possession at the written request of the property owner "on April 20, 1984[, t]hereafter he was not entitled to the demanded premises against the defendant." Id. The result in Berlingo v. Sterling Ocean House, Inc. is clearly dependent upon the fact that the plaintiff had left the property at issue at the written request of the owner, unlike the present case, where the plaintiff-tenant received no written demand, and did not quit the premises before the lock out, but openly and notoriously maintained its presence in and occupancy of Unit D-1. Thus, despite the oral entreaties of the property owner who sought to have the plaintiff-tenant leave Unit D-1, without the property having been subjected to a summary process action, the defendant-landlord's action is not saved by application of the rule in Berlingo v. Sterling Ocean House, Inc. Fleming v. Bridgeport, supra, establishing in part our appellate courts' current explication of the element of "possession" in the context of the present case, arose from a claim of unlawful entry and detainer brought by a plaintiff who had resided at the defendant-landlord's property without permission. 92 Conn.App. 403. In Fleming v. Bridgeport, the plaintiff's father was a tenant of an apartment building owned by the defendants; from 1993 to 1997, the plaintiff occasionally stayed in the apartment as a guest. In November 1997, the plaintiff moved into the apartment full-time without the landlord's permission; although her father moved to a nursing home in early 1998, the plaintiff continued to live in the apartment with her father's cotenant. Id., 403. On May 7 and again on May 8, 1998, finding the plaintiff to be intoxicated, the landlord had her removed from the premises with the assistance of the local police department. Id. Claiming that the entry and detainer statute had been properly used to eject the non-tenant, the trial court entered judgment in favor of the landlord. In relevant part, the trial court denied relief under § 47a-43 having concluded that tenant in the matter "had failed to prove that she was in `lawful or peaceable possession'" at the time the landlord caused her removal from the premises. Id., 405.
While the Supreme Court's opinion emphasizes the importance of commencing trial in the landlord-tenant matters only after appropriate pleadings have been submitted, the court notes the absence of an answer filed by the defendant-landlord to the original or amended complaints. See Berlingo v. Sterling Ocean House, Inc., 203 Conn. 106. However, at trial, through its brief and at oral argument, the defendant-landlord clearly indicated its denial of each of the plaintiff-tenant's operative allegations, and clearly expressed the defenses upon which it relies in opposition to the pending entry and detainer action. Thus, due notice of the defendant-landlord's positions was provided, even as would have been accomplished though the submission of pleadings.
In addition to her action under § 47a-43, the Fleming plaintiff brought suit against the police alleging, among other things, violation of her civil rights in their implementation of the landlord's ejection activities. Fleming v. Bridgeport, supra, 92 Conn.App. 403-04.
Upon review, the Appellate Court reversed that conclusion, reiterating the applicable rules for determining whether a tenant is in possession of a property in the context of § 47a-43: "In an action commenced under the entry and detainer statute, § 47a-43, the plaintiff must show that he was in actual possession of the premises at the time of the defendant's entry . . . Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land . . . 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 . . ." (Emphasis added; footnote and external citation omitted.) Id., 404.
Using this measure, under the facts there presented, the Appellate Court concluded "that the [trial] court's failure to find that the plaintiff was in actual possession on May 7 and 8, 1998, was clearly erroneous." Fleming v. Bridgeport, supra, 92 Conn.App. 405. As the basis for this determination, the Appellate Court stated that "although the plaintiff was an illegal possessor, she nonetheless was in actual possession on May 7 and 8, 1998, when the police defendants removed her from the apartment." Id.
The test for possession as enunciated in Fleming v. Bridgeport, supra, establishes the basis for generous treatment of an occupant who maintains a presence upon property without the express permission of the landlord, in the absence of a summary process judgment, notwithstanding the lack of ultimate determination of this issue by the Supreme Court. Such a conclusion is, however, consistent with other recent Appellate Court decisions which have focused upon the principle that "although the [tenant] need not demonstrate continuous control over the premises to prove possession, the [tenant] must show that it `exercised at least some actual physical control, with the intent and apparent purpose of the asserting dominion'" in order to establish sufficient right of access to the property to defeat a landlord's entry and detainer. (Emphasis added.) Murphy, Inc. v. Remodeling, Inc., supra, 62 Conn.App. 521 (reversing trial court's judgment in favor of the plaintiff-tenant who had claimed illegal entry and detainer by a putative lessor-landlord).
In Murphy, Inc. v. Remodeling, Inc., supra, the plaintiff had leased certain signs and supporting structures located on a building owned by the defendant; the defendant agreed to permit the plaintiff "the right of entry onto and across [his] Premises in order to gain access to the Signs and a right to use that portion of the Premises immediately adjacent to the Signs as is necessary in order to alter, maintain, paint and post the Signs and post advertising thereon . . ." Id., 518-19. The plaintiff allegedly failed to pay the tariff for this access and use where upon the defendant-owner prevented him from accessing the premises. Id., 519. The trial court's judgment sustaining the plaintiff's suit for unlawful entry and detainer was reversed because the Appellate Court effectively found, under those circumstances, insufficient evidence that the plaintiff maintained, in any form, contact with the property that could be characterized as possessory in nature. Id., 521-22. Possession, or physical control of the premises, was not shown by a tenant who merely holds keys to certain property, who parks his vehicles on the premises on occasion but not overnight, and who visits the property "every other month for periods ranging from 15 minutes to three hours." (Emphasis added.) Id., 521-22. Specifically, the Appellate Court concluded "that the plaintiff failed to make the requisite showing [of possession as [there is no evidence in the record to indicate that the plaintiff exhibited any physical control over the premises." (Emphasis added.) Id., 522. Unlike the Murphy matter, the evidence in the present record clearly and unequivocally reflects that the defendant-landlord knew, allowed, and permitted the plaintiff-tenant to maintain an active, nearly continuous physical presence at Unit D-1 from the entry into the agreement until the changing of the locks in September 2006. The trial record reveals that the presence of the plaintiff-tenant's personalty, in the storage space clearly identified upon Exhibit 2, was continuous and without interruption, save when the tents and related equipment were used in the course of the business of Imperial Tents, LLC. This continuous presence is clearly sufficient to exhibit "physical control over the premises" as contemplated by Murphy, Inc. v. Remodeling, Inc., supra, 62 Conn.App. 522.
In Wilcox v. Ferraina, supra, the Appellate Court again addressed circumstances in which a landholder contested another's claim to a possessory interest in the property. In that matter, the landholder first alleged that the plaintiff was not entitled to pursue an action under § 47a-43 because the plaintiff was vested only with "a license to use the property [at issue] but not a possessory interest in the property." 100 Conn.App. 550. The landholder next alleged that the plaintiff failed to provide sufficient evidence that he had "exercised `dominion and control' over the property within the meaning of § 47a-43." Id. The Appellate Court rejected both arguments, as must the court in the present action.
Wilcox v. Ferraina, supra, again states that "`[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)." Wilcox v. Ferraina, supra, 100 Conn.App. 550-51. Moreover, this newly-published Appellate Court opinion reaffirms a number of other legal principles that are applicable to the case at bar: "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 v. Ferraina, supra, 100 Conn.App. 551-52.
The facts of Wilcox v. Ferraina indicating evidence of "a sufficient degree of dominion and control over the property" are not precisely mirrored by the circumstances of the present case. Wilcox v. Ferraina, supra, 100 Conn.App. 553. In Wilcox, "the evidence before the court included [the plaintiff's] physical presence on the property five or six days a week for approximately ten hours per day, the housing of [the plaintiff's] excavation equipment on the property for `several years' and [the plaintiff's] construction of three roads and an antitracking pad on the property," among other things. Id. In the present case, however, the plaintiff-tenant's maintenance of an office on the premises, from which he could conduct the business of Imperial Tents, Inc. should he have elected to do so following the events of July 2006, plus the relatively continuous, open and notorious presence of his tents and related equipment within Unit D-1, is sufficiently factually similar to provide adequate basis for determining that, thereby, he "exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion," over the premises at issue. Id., 554. Thus, the rule of Wilcox v. Ferraina, supra, implicates the applicability of the provisions of § 47a-43 to the case at bar. Id., 550-51. Unlike the facts presented in Murphy Inc. v. Remodeling, Inc., where that plaintiff's personalty was "never left on the property overnight," the plaintiff-tenant in the instant case openly demonstrated his intention to assert continuous dominion over at least the storage space allocated to him, as a matter of practice, by the defendant-landlord within Unit D-1, represented on Exhibit 2. Wilcox v. Ferraina, supra, 100 Conn.App. 554. Thus, in the present matter as in Wilcox v. Ferraina, there is ample "evidence in the record to indicate that the plaintiff exhibited . . . physical control over the premises" sufficient to establish his possessory interest. Murphy, Inc. v. Remodeling, Inc., supra, 62 Conn.App. 522.
Using the legal principles described above, the court finds that the plaintiff-tenant was, at least, a permissive-user of the premises from the period of October 2005 through September 13, 2006, when he was locked out of Unit D-1, thereby losing access to the personal property owned by Imperial Tents, Inc. At best, the plaintiff-tenant had, through the payment of rent-qua-barter, been a lawful occupant of those premises during the month of November 2005, when the evidence sufficiently establishes that he performed some electrical work upon the defendant-landlord's amusement rides as an agreed-upon method of paying rent. Thereafter, as the court has previously concluded, the defendant-landlord allowed and permitted the plaintiff-tenant to remain in "actual possession" of the premises, without having pursued a summary process action to secure possession for himself. As the plaintiff-tenant has compellingly observed at oral argument after trial, by ejecting the tents and related equipment, from Unit D-1, the defendant-landlord has effectively conceded that the plaintiff-tenant maintained continued, actual, presence upon and possession of the property, with an overt intent to exercise dominion and control over the space where his personalty had so long been peaceably stored. Under all these circumstances, the plaintiff-tenant is entitled to the protections offered him by § 47a-43. See Wilcox v. Ferraina, supra, 100 Conn.App., 550-51, 554.
B. FORCIBLE ENTRY
The defendant-landlord further submits that the plaintiff-tenant cannot prevail in this action, and that the court lacks subject matter jurisdiction, because there has been no demonstration that a particular degree of force was used to enter and detain the premises and personalty at issue, such that the remedies of § 47a-43 do not apply. The court declines to accept this aspect of the defendant-landlord's argument, which is apparently founded upon the submission that the statute applies only when "Forcible entry and detainer," has been employed against an occupant. Such an argument distracts attention from the multiple subsections of § 47a-43(a) which effectively permit an action in entry and detainer to lie even in the absence of forcible entry.
In addressing this aspect of the defendant-landlord's argument, the court first finds that the plaintiff-tenant's complaint is factually sufficient to establish the elements of § 47a-43(a)(3) and/or (4), two of the multiple subsections of that legislation entitled, in the alternative, "Complaint and procedure: Forcible entry and detainer; entry and detainer." (Emphasis added.) Section 47a-43(a)(3) is applicable when "any person . . . enters into any land . . . and causes . . . removal of or detention of the personal property of the possessor." Section 47a-43(a)(4) is applicable "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." As the plaintiff-tenant correctly notes in his Memorandum of Law, while the text of § 47a-43(a)(1) and (2) address circumstances in which force and/or a "strong hand" is used to enter upon property in which another has a possessory interest, such elements are not requisite to the application of subsection § 47a-43(a)(3) or (4), and are thus not necessary predicates to the proceedings brought by the plaintiff-tenant, notwithstanding the defendant-landlord's vigorous argument to the contrary. See Bourque v. Morris, 190 Conn. 364, 367, 460 A.2d 1251 (1983).
The court has already concluded, in Part IV. A., that at the time in question, the plaintiff-tenant was a "possessor" of Unit D-1 as that status is currently defined by the common law of this state. Moreover, the court has already concluded, in Part III., that the entry and detainer statute is equally applicable to commercial, as it is to residential, property. Accordingly, either § 47a-43(a)(3) or (4) provides a lawful basis for the plaintiff-tenant's cause of action. As found in Part II, above, the defendant-landlord removed and detained, from the portion of Unit D-1 possessed by Imperial Tents, Inc., described in Exhibit 1, the plaintiff-tenant's tents and related equipment without consent of the "possessor," as contemplated by § 47a-43(3). Furthermore, as found in Part II., the defendant-landlord changed the locks to preclude the plaintiff-tenant's entry into Unit D-1 where the tents and related equipment had long been stored. Under these circumstances, the plaintiff-tenant "would be required to cause damage to the premises or commit a breach of the peace to regain possession" of the space and personalty within Unit D-1, as contemplated by § 47a-43(4). As such, the defendant-landlord has violated at least one applicable subsection of the entry and detainer statute.
Moreover, even if forcible entry is requisite to the plaintiff's success in this entry and detainer action, the facts of this case show that the defendant-landlord engaged in conduct that amounted to such force as is contemplated by the statute. While appellate-level definition of the degree of "force or threat of force" or of the nature of the "strong hand" contemplated by the statute remains somewhat elusive, some guidance can be found in Freeman v. Alamo Management Co., 24 Conn.App. 124, 130, 586 A.2d 619 (1991). That opinion indicates that, "based on the origins of entry and detainer, it is clear that its violation involves willful, wrongful and unlawful acts" by one claiming a superior possessors' interest. Such "willful, wrongful and unlawful acts" may occur through the undertaking of measures such as changing locks or otherwise preventing an individual from obtaining lawful access to the real property at issue. See, e.g., Catropa v. Bargas, 17 Conn.App. 285, 286, 551 A.2d 1282 (1989). It is uncontroverted that the locks were changed by the defendant-landlord in this case, thus implicating the "force" element of the entry and detainer statute as established by Catropa v. Bargas, supra, 17 Conn.App. 286; thereby, making the remedies of § 47a-43 available to the plaintiff-tenant. Moreover, such forcible acts may occur through the defendant-landlord's entry onto a possessor's property through any conduct which is not executed in "a peaceable and easy manner." (Internal quotation marks omitted; external citation omitted.) Berlingo v. Sterling Ocean House, Inc., 5 Conn.App. 305. Here, the court finds that the defendant-landlord's changing of the locks to Unit D-1, and the ejection of the plaintiff-tenant's tents and related equipment, was neither peaceable nor easy, particularly when the remedy of summary process was readily available. Alternatively, and most logically, such forcible acts as are contemplated by § 47a-43 may occur through any non-item consensual entry upon property that is the subject of dispute between the parties, exactly as occurred in the present case, so as to provide access to the relief extended by the statute. Bowman v. Williams, 5 Conn.App. 235, 238, 497 A.2d 1015 (1985).
In reaching this conclusion, the court acknowledges that the general annotations to § 47a-43 include the comment that "a showing of force or threat of force is required for relief under this section." (Emphasis added.)
In short, absent statutory or common-law authority requiring a particular degree of hostile or oppressive action, it is reasonable to apply the provisions of § 47a-43 in any case where there has been non-consensual entry upon premises, such as is established by the proof presented by the plaintiff-tenant in this action. The court's conclusion on this subject is supported by both the facts and the dicta in Bourque v. Morris, supra, 190 Conn. 366. In that matter, the plaintiff was an occupant of a room at a hotel for which the local municipality paid rent, "because the plaintiff was a welfare recipient." Id., 366. After a three-month period, these rental payments ceased the plaintiff fell into arrears on his rent. The landlord's agent changed the locks so that the plaintiff could no longer enter his room independently, although he was enabled to enter for the purposes of regaining his possessions. Id. Finding that the plaintiff-tenant was a transient occupant of the premises, and that he was therefore not entitled to utilize the protections afforded tenants pursuant to § 47a-43, the Appellate Court affirmed the judgment in favor of the landlord. Id., 368. In so ruling, however, the court emphasized that to prevail under the entry and detainer statute, a plaintiff-tenant must show some evidence that force or "strong hand" has been used "as the means of entering or detained the premises" only if subsections (1) or (2) of § 47a-43(a) are used. Subsection (4) of the entry and detainer statute requires no evidence of force, threat of force come or use of such "strong hand" as contemplated by the statute; rather, § 47a-43(a)(4) "requires a finding only that possession could not be regained without causing damage to the premises or committing a breach of the peace." While affirming the judgment in Bourque, therefore, the Appellate court found that "the trial court, which effectively read the force and `strong hand' requirement of subsections (1) and (2) into subsection (4), was clearly erroneous" in so doing. Id., 367-68. Under the circumstances of the present case, it is clear that the plaintiff-tenant could not regain access to Unit D-1 without damaging the locks that had been changed by the defendant-landlord. Accordingly, this aspect of the defendant-landlord's argument must also fail.
C. ABANDONMENT
In his written argument after trial, consistent with the oral arguments presented to the court, the defendant-landlord additionally asserts that he was entitled to enter into the area at Unit D-1 where the plaintiff-tenant stored the tents and related equipment, and that he was entitled to dispose of this inventory, because, among other things, "these items were abandoned by the plaintiff." Defendant's Post-Trial Reply Brief. The court finds insufficient evidence to establish abandonment in this case, as contemplated by General Statutes § 47a-11b. Therefore, the court declines to accept this aspect of the defendant-landlord's argument in opposition to the plaintiff-tenant's pending claims.
Section § 47a-11b provides remedies for a landlord when an occupant has abandoned personalty and left it within the landlord's property, as follows: "(a) For the purposes of this section, `abandonment' means the occupants have vacated the premises without notice to the landlord and do not intend to return, which intention may be evidenced by the removal by the occupants or their agent of substantially all of their possessions and personal effects from the premises and either (1) nonpayment of rent for more than two months or (2) an express statement by the occupants that they do not intend to occupy the premises after a specified date."
While the defendant-landlord predicates his defense on the claim that he is exempt from sanctions under § 47a-43 because the plaintiff-tenant had abandoned the premises at issue, as the court has previously determined, the evidence is instead sufficient to establish actual possession, and that the plaintiff-tenant intended to retain dominion and control over the area within Unit D-1 where his tents and related equipment were stored. Although the plaintiff-tenant spent periods of time in Louisiana during the period following expiration of the written lease, he did not vacate Unit D-1 "without notice to the landlord" as contemplated by § 47a-11b(a); rather, the testimony clearly establishes that the defendant-landlord knew the temporary nature of the plaintiff-tenant's work in that distant state, as the defendant-landlord himself had similarly engaged in the process of installing trailers during the hurricane relief process. Moreover, the evidence does not support a finding that the plaintiff-tenant had vacated the premises without intention to return, within the meaning of § 47a-11b(a), as he had not removed "substantially all of [Imperial Tents, Inc.'s] possessions and personal effects from the premises." Instead, the evidence indicates that following the July 2006 removal of a portion of the plaintiff-tenant's inventory by unidentified individuals, and after the transport of thirty percent of the tents and related equipment to another location within the warehouse during August of 2006, seventy per cent of that personalty remained within Unit D-1. Thus, "substantially all" of the plaintiff-tenant's "personal possessions and effects remained upon the premises at issue," making the abandonment defense inapposite to the case at bar pursuant to § 47a-11b.
In reaching the determination that the defendant-landlord cannot avail himself of the protections afforded by § 47a-11b, the court has carefully considered the evidence that, taken as a whole, supports the conclusion that at some time, the plaintiff-tenant did, in fact, intend to end his relationship with Unit D-1. However, there was insufficient evidence from which the court could ascertain that the plaintiff-tenant had made an "express statement" that he did "not intend to occupy the premises after a specified date," as required before a landlord can utilize the protections extended through § 47a-11b(a)(2). As previously found, the plaintiff-tenant did indicate his future intention to move the operations of Imperial Tents, Inc. from the premises; however, he never "specified" the date on which this move would take place, rendering the succor of the abandonment statute unavailing to the defendant-landlord in this case.
As another Superior Court decision has so cogently explained: "The defendant has the burden of proving abandonment. Davis v. Gleeson, 5 Conn.Super.Court. 325 (1937) . . . The test for determining abandonment under the statutory definition cannot be met. Nor for that matter can the defendant prove abandonment under the common law. Our Supreme Court has long held that abandonment implies a voluntary and intentional relinquishment of a known right. Cummings v. Tripp, 204 Conn. 67, 93 (1987); Bianco v. Darien, 157 Conn. 548, 556 (1969). Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243 (1988). Compare Gnandt v. DaCruz, 1994 Ct.Super.Court 4702 (1994) [ 11 Conn. L. Rptr. 500]. The . . . evidence indicates that [the plaintiff-tenant] did not intend to relinquish his right to possession. There was no basis for [the defendant-landlord] to think otherwise. Substantially all of [Imperial Tents, Inc.'s] possessions and personal effects had been left in the apartment. Moreover, even if the [defendant-landlord] assumed, as he stated to the police, that [the plaintiff-tenant] had abandoned the property, the defendant took not one [timely] step to comply with the statutory procedures set forth in General Statutes 47a-11b such as sending statutory notices pursuant to section 47a-11b(b) or preparing an inventory of the property removed by him from the premises pursuant to section 47a-11b(d)." Forbotnick v. Kalinowski, supra, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 5967.
D. DAMAGES
In addressing the subject of damages to which the prevailing party may be entitled in an action for entry and detainer, the court has paid close heed to the language of General Statutes § 47a-45(a), establishing the opportunity for recovery of costs in an action brought under § 47a-43. The court has further considered the implications of General Statutes § 47a-46, allowing the entry of an award of monetary damages, for the reasons set forth below.
Section 47-45(a) provides: "If it is found (1) that a forcible entry has been made into the land, tenement or dwelling unit, or (2) that the same are detained with force and strong hand, or (3) that damage has been caused to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) that 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, as complained of, the judge shall render judgment that the complainant be restored to, and reseized of, the premises or that the personal property removed or detained be returned to the complainant, and shall award a writ of restitution accordingly. The complainant shall recover costs from the person complained of. Execution shall be granted against the person complained of."
Section 47a-46 provides that: "The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under section 47a-43 that he entered into the land, tenement or dwelling unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in section 47a-43."
As has aptly been stated, "[i]n Freeman v. Alamo Management Co., [ supra,] 221 Conn. 674, the Supreme Court held that double damages may be awarded where the illegal entry and detainer has been established by a fair preponderance of the evidence and where the court finds that such an award is appropriate . . . It is the court's determination, after examining the facts of this case, that the defendant's acts come within the purview of General Statutes § 47a-46 in that the defendant injured the plaintiff by entering the dwelling unit and caused damage to, removal of and detention of various items of personal property of the plaintiff and that double damages [would here be] appropriate." Forbotnick v. Kalinowski, supra, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 5967.
In the case at bar, although claiming damage to his property through the amended complaint, the plaintiff-tenant has provided insufficient evidence from which the court could reasonably conclude that Imperial Tents, Inc. has suffered a particular amount of economic damages as a result of the defendant-landlord's unlawful entry and detainer. This lack of evidence renders the award of damages, contemplated by § 47a-46, a matter of speculation, and thus outside the purview of the court. In reaching this determination, the court credits the evidence establishing that while a roster of personalty was transferred from Imperial Shows, LLC to Imperial Tents, Inc. through the Agreement for Sale, no reliable inventory was ever maintained to identify the tents or related equipment stored at Unit D-1 during any of the months in question. (Exhibit 1; Testimony of McGuire.)
Taken as a whole however, the plaintiff-tenant has proved, by a preponderance of the evidence, that he sustained inconvenience and disruption of his usual activities due to the objection of his property from the premises where it had long been in place and his obligation to pursue this action in entry and detainer. Under such circumstances, it would be improper for the court to conclude that the plaintiff-tenant had suffered no damages, whatsoever. To the contrary, in a case such as this, the current and applicable law establishes that a plaintiff-tenant "is entitled to nominal damages. See Reader v. Cassarino, 51 Conn. Page 406 App. 292, 297-98, 721 A.2d 911 (1998); 35A Am.Jur.2d 1078, Forcible Entry and Detainer § 58 (2001) (when claim for compensatory damages not supported, judgment for nominal damages only may be rendered)." (Footnote omitted.) Fleming v. Bridgeport, supra, 92 Conn.App. 405. Here, as in Fleming v. Bridgeport, supra, the court thus renders judgment awarding $1 to the plaintiff." (Footnote omitted.) Id.
In rendering this award, the court notes that the plaintiff-tenant in Fleming v. Bridgeport, supra, had, in fact, requested attorneys fees. In response, the Appellate Court observed that: "Because General Statutes § § 47a-45a(a) and 47a-46 do not contain any express language authorizing an award of attorneys fees, we will not presume that the legislature intended those provisions to operate in derogation of our long-standing common-law rule disfavoring the award of attorneys fees to the prevailing party. See Czaplicki v. Ogren, 87 Conn.App. 779, 790, 868 A.2d 61 (2005)." Id., 406.
V. CONCLUSION
Having reviewed the pleadings and considered the evidence in this case, having heard and read the arguments of counsel and having applied the extant law on the issues raised herein, the court concludes that the plaintiff-tenant has met his burden of proving the requisite elements of § 47a-43(a)(3) and (4). The court further concludes that the plaintiff-tenant has met his burden of proving the elements of § 47a-43(a)(2). Accordingly, as contemplated by § 47-45a(a) the court "shall render judgment that the complainant be restored to, and reseized of, the premises or that the personal property removed or detained be returned to the complainant, and shall award a writ of restitution accordingly. The complainant shall recover costs from the person complained of. Execution shall be granted against the person complained of."
"The lesson to be learned from this case is that where the landlord acts to dispossess a tenant without the benefit of summary proceedings and without actually knowing that the tenant has abandoned the premises, he acts imprudently. If he acts precipitously, as the defendant did in this case, he acts at his peril unless an abandonment has in fact taken place before dispossession . . . 47a-11b rewards prudence and importunes against such risks as the defendant took. Gnandt v. Dacruz, supra, 4707-08." Forbotnick v. Kalinowski, supra, Superior Court judicial district of Hartford, Housing Session, Docket No. CVH 5967.
WHEREFORE, the plaintiff's verified complaint and application for an order of restoration and further orders having been presented to the court; and said application having been heard; and it appearing that an order of restoration ought to issue for good cause shown, and the court hereby therefore entering judgment in favor of the plaintiff, Imperial Tents, Inc., it is hereby
ORDERED:
That the defendant, Imperial Shows, LLC is enjoined to immediately restore to the plaintiff, Imperial Tents, Inc., possession of the premises at Unit D-1 of 180 State Street including 174 State Street in Meriden, Connecticut, limited to the portion of those premises identified as "Tent Office," "Tent tops" and "Tent frames, staging tables, Chairs" as set forth on Exhibit 2, a copy of which is incorporated into and made a part of this judgment, until further order of the court;
That the defendant, Imperial Shows, LLC, is enjoined to immediately restore to the plaintiff, Imperial Tents, Inc., to enter onto and exit from those premises as described above, until further order of the court;
That the defendant, Imperial Shows, LLC is enjoined to immediately restore the personalty of the plaintiff, Imperial Tents, Inc., already removed from those premises, to that portion of the premises described above, until further order of the court;
That the defendant, Imperial Shows, LLC, is enjoined to wholly and absolutely desist from further removing from the premises any of the personalty owned by Imperial Tents, Inc., until further order of the court;
That execution is granted against the defendant, Imperial Shows, LLC, as contemplated by § 47a-45a; and
That the defendant, Imperial Shows, LLC, is enjoined to pay to the plaintiff, Imperial Tents, Inc., nominal damages in the amount of one dollar.