Opinion
No. CV 03 0400970 S
March 12, 2004
MEMORANDUM OF LAW ON THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
I STATEMENT OF THE CASE
This action was commenced by the plaintiff, Myrna LaBow, in 2003, against the defendants Robert Rubin and Ronald LaBow. Ronald LaBow has been sued in his personal capacity and as trustee. In May 22, 2003, the plaintiff filed a revised, three-count complaint. The first count of the revised complaint is an action to quiet title to properties located in Fairfield and Weston, Connecticut pursuant to General Statutes § 47-31. In this count, the plaintiff alleges that these properties were fraudulently conveyed and that she, not Rubin, is the sole and rightful owner of the properties. The second count asserts a claim of intentional infliction of emotional distress against the defendants. The third count alleges that the defendants conspired to defraud Myrna LaBow.
General Statutes § 47-31(a) states in relevant part, "[a]n action may be brought by any person claiming title to, or any interest in, real or personal property . . . against any person who may claim to own the property, or any part of it, or to have any estate in it . . . or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property."
On May 12, 2003, Ronald LaBow filed a motion for summary judgment on the ground that all three counts are barred by the doctrines of res judicata and collateral estoppel and by the statute of limitations. In support of his motion, Ronald LaBow submitted a memorandum of law and numerous exhibits. On May 21, 2003, Myrna LaBow filed a memorandum of law in opposition to Ronald LaBow's motion. She filed an affidavit in support of her position on May 22, 2003. Thereafter, Myrna LaBow filed a supplemental memorandum and a supplemental affidavit.
On August 28, 2003, Rubin filed a motion for summary judgment on the ground that the first count is barred by the doctrines of res judicata and collateral estoppel and the equitable doctrine of laches. Rubin also moves for summary judgment on counts two and three on the ground that both claims are barred by the statute of limitations. In support of his motion, Rubin submitted a memorandum of law, and excerpts of transcripts of various court hearings involving the property. On October 15, 2003, Myrna LaBow filed a memorandum of law in opposition to Rubin's motion and a supplemental affidavit. Thereafter, Rubin and Myrna LaBow both filed reply memoranda.
The history of these parties' relationships has been described previously in numerous cases. See, e.g., LaBow v. LaBow, 69 Conn. App. 760, 762, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002); LaBow v. LaBow, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 820210394 (March 15, 1999; Stevens, J.), aff'd, 65 Conn. App. 210 (2001); Rubin v. LaBow, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 79 0178886 (February 17, 1994, Fuller, J.). The plaintiff, Myrna LaBow, married Ronald LaBow in 1960. During the course of the marriage, the LaBows acquired adjacent parcels of property in Weston and Fairfield. The following facts, as set forth by the court in a separate partition action, are undisputed for purposes of the present motion. "Both parcels were originally owned jointly in survivorship by Myrna LaBow and Ronald LaBow. Myrna LaBow commenced a dissolution action in 1974. On November 5, 1975, while that action was pending, Ronald LaBow transferred his interest in the 22 acres in Weston to Richard H. Valentine, trustee. There [was] an ongoing dispute between the LaBows as to the validity of that trust, which was set up by Ronald LaBow as settlor. At the time the dissolution decree was issued by the court (Testo, J.) on August 28, 1978, the 22 acres in Weston [were] in the trust but Ronald LaBow still had record title to the seven acres in Fairfield. The dissolution decree made numerous orders, but did not transfer title to or direct the conveyance of either parcel to Myrna LaBow. On September 18, 1978, after the dissolution, Ronald LaBow transferred the Fairfield property to DeVita, who in turn later sold it to [Robert] Rubin [on] January 16, 1985. Ronald LaBow was later appointed successor trustee under the trust. Rubin acquired the 22 acres in Weston from LaBow as trustee on January 5, 1985. At that time there was no outstanding court order prohibiting transfer of either the Weston or the Fairfield property." Rubin v. LaBow, supra, Superior Court, Docket No. CV 790178886 (February 17, 1994, Fuller, J.).
Meanwhile, Valentine had commenced an action for partition of the property on July 5, 1979. "On November 1, 1985, Rubin filed a motion for permission to join as a plaintiff because he had purchased the subject property, and that motion was later granted by the court. [Subsequently] a series of special defenses and counterclaims [were] filed by Myrna LaBow. The original counterclaim filed on January 9, 1986 to the partition complaint of Rubin claim[ed] that he [was] not the real party in interest but purchased the property for less than its actual value in order to assist and benefit Ronald LaBow. A motion to strike that counterclaim was denied in July 1986, but a revised complaint containing seven counts against Rubin was not filed by [Myrna LaBow] until March 24, 1987. The seven-count revised complaint allege[d]: (1) a fraudulent conveyance from Ronald LaBow to Rubin; (2) conspiracy between them; (3) malice; (4) deceit which misled [Myrna LaBow]; (5) greed and payment of less than the fair market value for the property; (6) infliction of emotional distress; and (7) that Rubin took charge of the subject property in disregard for the interest of [Myrna LaBow] in the property. The counterclaim was later amended twice to add an equitable claim that Rubin proceeded with unclean hands in purchasing the subject property, and a request for such other relief as the court deem[ed] proper." Id.
Rubin "filed a motion for summary judgment on both the complaint and the counterclaim. As to the complaint, he claim[ed] that he ha[d] a right to partition pursuant to § 52-495 of the General Statutes and that there [was] no valid defense to a partition in [the partition] case. Secondly, he claim[ed] that the counterclaims of the defendant [were] barred by: (1) the statute of limitations, § 52-577 . . . (2) laches; (3) res judicata, (4) collateral estoppel; and that (5) awarding the subject property to the defendant would be an illegal modification of a property distribution in violation of § 46b-86 of the General Statutes." Id.
In 1994, the court, Fuller, J., granted summary judgment in favor of Rubin as to the complaint for partition, as well as to Myrna LaBow's defenses and counterclaims. Id. Myrna LaBow filed numerous motions to reargue and to reconsider Judge Fuller's decisions. The last such motion for reconsideration was denied in May 2003. Rubin v. LaBow, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 79 0178886 (May 20, 2003, Stevens, J.). Partition by sale was granted on July 14, 2003. Myrna LaBow has appealed that decision.
In the action LaBow v. LaBow, supra, Superior Court, Docket No. CV 82 0120394 (March 15, 1999; Stevens, J.), a trial was held on counterclaims filed by Myrna LaBow against Ronald LaBow alleging fraud, intentional infliction of emotional distress, vexatious litigation, and negligence. The court found in favor of Myrna LaBow on the fraud count, awarding her damages, and against her on all other claims.
II DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
A COLLATERAL ESTOPPEL RES JUDICATA
Rubin and Ronald LaBow argue that the first count of Myrna LaBow's revised complaint, which seeks to quiet title to the land, is barred by the doctrines of res judicata and collateral estoppel. "Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim." (Emphasis in original; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1 (2001). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn. App. 180, 187, 834 A.2d 744 (2003).
"The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. [A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand . . . Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made." (Emphasis in original; internal quotation marks omitted.) Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 741-42 n. 6, 826 A.2d 170 (2003).
The allegations of Myrna LaBow's revised complaint clearly demonstrate that her action is premised upon her assertion that she is the sole rightful owner of both properties. The issue of title was fully addressed and litigated in the partition as part of the court's granting of Rubin's motion for summary judgment. Thus, the doctrine of collateral estoppel bars Myrna LaBow from maintaining this action to quiet title. Myrna LaBow argues that because she has not filed an action to quiet title before, she cannot be barred from maintaining the claim by previous judgments. This argument misapprehends the doctrine of collateral estoppel.
Myrna LaBow raised the issue of title in her pleadings in the partition action. "In response to the partition complaint she filed special defenses and a multiple count counterclaim in which she challenged the validity of Rubin's ownership interest in the real property." LaBow v. LaBow, supra, 69 Conn. App. 763. An examination of the pleadings in the partition action reveals that Myrna LaBow specifically alleged that "Myna LaBow is the rightful owner of the entire property . . ." (Revised Counterclaim and Cross Complaint by Myrna LaBow against Ronald LaBow, Individual and Alleged Trustee, Count One, Paragraph 59.) She also alleged that "Myrna LaBow is entitled to the entire property as part of her alimony award as the money ordered to Myrna LaBow is for the purpose of having and caring for the property in total . . ." (Revised Counterclaim and Cross Complaint by Myrna LaBow against Ronald LaBow, Individual and Alleged Trustee, Count One, Paragraph 64.) Myrna LaBow further pleaded as a special defense that "the sale of Ronald LaBow's one-half interest in the property known as 85 Old Easton Turnpike, Weston, Connecticut, 21 acres in Weston and 7 acres [in] Fairfield, to Robert Rubin, is fraudulent and invalid." (Revised Consolidated Special Defenses, Fifth Special Defense.) She also pleaded that "Robert Rubin is not a true owner and does not have the right to sue Myrna LaBow." (Revised Consolidated Special Defenses, Sixth Special Defense.)
This document was submitted by Myrna LaBow as part of Exhibit A to her Supplemental Memorandum of Law in Opposition to Motion for Summary Judgment dated August 18, 2003.
This document was submitted by Myrna LaBow as part of Exhibit A to her Supplemental Memorandum of Law in Opposition to Motion for Summary Judgment dated August 18, 2003.
In granting summary judgment in the partition action, Judge Fuller considered Myrna LaBow's claims that she was the sole owner of the Fairfield and Weston properties. With regard to the Fairfield property, Judge Fuller noted that Ronald LaBow owned a one-half interest at the commencement of the dissolution action, and that Myrna LaBow therefore could have obtained Ronald LaBow's interest in the course of those proceedings only if the dissolution court had transferred that interest to her in accordance with its equitable jurisdiction. Judge Fuller noted, however, that the dissolution court did not award Myrna LaBow that interest as part of the dissolution decree and that Myrna LaBow made no attempt to modify that decree within the statutorily permitted period. Judge Fuller stated that "Ronald LaBow then sold the Fairfield property to . . . DeVita for $40,000. This asset was known to the defendant at the time of the divorce, and the [dissolution] decree eliminated any legal claim of [Myrna LaBow] to it. There is also nothing in the record to indicate that DeVita was anything other than a bona fide purchaser [for] value, and even if he paid less than the fair market value of the property at that time, that is not [Myrna LaBow's] concern. Accordingly, Rubin's purchase of the Fairfield property from DeVita in 1985 was free and clear of any claims of the defendant." (Emphasis added.) Id.
With regard to the Weston property, Judge Fuller again began from the premise that Ronald LaBow owned a one-half interest at the commencement of the dissolution action. Judge Fuller then went on to consider the effect of Ronald LaBow's conveyance of his interest in the property to the trust in 1975. He noted that if the transfer was valid, the interest ceased to be a marital asset and could not have been awarded to Myrna LaBow in the dissolution action, and thus, she could make no claim to that interest in the property. On the other hand, Judge Fuller noted that if the transfer was invalid, Myrna LaBow could have attempted to obtain title by bringing a claim to set aside the transfer as fraudulent and then seeking to have the interest awarded to her in the dissolution action. Judge Fuller observed that Myrna LaBow could have sought to have the conveyance set aside either in the course of the dissolution proceedings or by bringing a separate tort action alleging a fraudulent conveyance. Id.
Judge Fuller further examined Myrna LaBow's specific opportunities to have the conveyance set aside and to have the interest in the property awarded to her. First, the court noted that it was unclear whether the court considered a claim of fraudulent conveyance when entering the dissolution decree in 1978, but that if Myrna LaBow had raised the claim at that time, the court could have considered it. Second, Judge Fuller addressed the prior modification proceedings between the LaBows, in which the court concluded that the trust was a sham. Judge Fuller pointed out that the modification court nevertheless did not award Ronald LaBow's former one-half interest in the property to Myrna LaBow, and that she did not appeal that decision. Third, Judge Fuller determined that Myrna LaBow failed to bring a separate proceeding to set aside the transfer to the trust as fraudulent within the three-year limitation period set forth in General Statutes § 52-577 for bringing such an action. Accordingly, Judge Fuller concluded that Myrna LaBow had been unsuccessful in obtaining Ronald LaBow's former one-half interest in the Weston property, and that she would not be able to obtain that interest because any action to set aside the conveyance had become time barred. Id.
Thus, the issue of title was actually litigated and decided in the partition action. Furthermore, this issue was necessarily determined because in order to conclude that Rubin was entitled to summary judgment in the partition action, the court had to rule on Myrna LaBow's special defenses and. counterclaims. "[A]ny person holding real property as a joint tenant, tenant in common, coparcener or tenant in tail has a right to partition pursuant to § 52-495." Fernandes v. Rodriguez, 255 Conn. 47, 56, 761 A.2d 1283 (2000). Thus, absent a finding that Rubin did indeed hold title as a tenant in common with Myrna LaBow, the court could not have determined that he was entitled to partition of the property. As the court did grant summary judgment to Rubin in the partition action, the issue of whether Myrna LaBow can maintain a claim to the other one-half interest in the Weston and Fairfield properties has been definitively resolved and the doctrine of collateral estoppel prevents Myrna LaBow from litigating this action to quiet title.
As previously stated, numerous motions to reargue or to reconsider Judge Fuller's ruling in the partition action were denied. See Rubin v. LaBow, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 79 0178886 (May 20, 2003, Stevens, J.). A final judgment of partition by sale entered on July 14, 2003. The fact that Myrna LaBow has appealed that judgment does not prevent this court from applying the doctrine of collateral estoppel to her claim. "For res judicata purposes, a judgment is `final' if no further judicial action by [the] court rendering judgment is required to determine [the] matter litigated . . . A final award is [o]ne which conclusively determines the matter submitted and leaves nothing to be done except to execute and carry out the terms of [the] award." (Citation omitted; internal quotation marks omitted.) Marone v. Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998). "[The Supreme Court] has held the judgment of a trial court to be final, despite a pending appeal, when the issue was . . . the applicability of the rules of res judicata." (Citations omitted.) Enfield Federal Savings Loan Assn. v. Bissell, 184 Conn. 569, 573, 440 A.2d 220 (1981). The same principle applies to the issue of collateral estoppel. Carnemolla v. Walsh, 75 Conn. App. 319, 327-28, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003). Thus, the decision in the partition action is a final judgment for the purposes of the doctrine of collateral estoppel, despite the plaintiff's appeal.
The court also agrees with Ronald LaBow that the plaintiff's claims under the second and third counts of her complaint are barred by the doctrines of res judicata and collateral estoppel. Little discussion is required for this issue. In count two, in support of her claim for intentional infliction of emotional distress, Myrna LaBow alleges that the defendants' actions deny her the reasonable use of her properly. (Revised Complaint, Count Two, Paragraph 17.) As for count three, she alleges that the defendants acted jointly and in conspiracy to defraud her of her property. (Revised Complaint, Count Three, Paragraph 20.) In the partition action, Rubin v. LaBow, supra, Superior Court, Docket No. CV 79 0178886 (February 17, 1994, Fuller, J.), Myrna LaBow asserted these same claims of intentional infliction of emotional distress and conspiracy. Judge Fuller found that these claims were meritless as a matter of law and granted Rubin's motion for summary judgment. In the case, LaBow v. LaBow, supra, Superior Court, Docket No. CV 82 0210394 (March 15, 1999; Stevens, J.), Myrna LaBow asserted claims of intentional infliction of emotional distress against Ronald LaBow. In that case, the undersigned, after a trial, entered judgment against her on these claims. Myrna LaBow is dissatisfied with these dispositions, and in this case she has attempted to recast the same claims which were litigated or which reasonably should have been litigated in these prior actions. See Ammirata v. Zoning Board of Appeals, supra, 264 Conn. 741-42 n. 6 (the doctrine of claim preclusion bars relitigation of any claims "which were actually made or which might have been made" in the prior litigation). This case exemplifies the exact type of repetitious litigation by a disgruntled or dissatisfied litigant that estoppel principals are designed to preclude.
Although Judge Fuller granted Rubin's motion of summary judgment, the nature of the claims against Rubin and LaBow and Judge Fuller's disposition of them would necessarily mean that this ruling also operates to collaterally estop further litigation of these claims against Ronald LaBow. See also, Zanoni v. Lynch, 79 Conn. App. 325, 338, 830 A.2d 314, cert. denied, 266 Conn. 928, 837 A.2d 803 (2003) (the doctrine of res judicata "is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand").
Therefore, the court concludes that summary judgment should be granted in favor of the defendants as to count one based on the doctrine of collateral estoppel. As to counts two and three, summary judgment is granted in favor of Ronald LaBow based on the doctrines of collateral estoppel and res judicata.
Rubin also moved for summary judgment on count one on the ground that it is barred by the doctrine of laches. As summary judgment is being entered in his favor under the doctrine of collateral estoppel, this argument need not be addressed. Rubin did not move for summary judgment as to counts two and three on the grounds of collateral estoppel and res judicata.
Ronald LaBow also moves for summary judgment on the first count on the ground that an action to quiet title is barred by the statute of limitations. In light of the above disposition, the court does not reach this issue.
B STATUTE OF LIMITATIONS
Ronald LaBow and Rubin also move for summary judgment on the second and third counts of Myrna LaBow's complaint on the ground that they are tort claims that are barred by the three-year statute of limitations of General Statutes § 52-577.
General Statutes § 52-577 states in relevant part that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"The applicable statute of limitations period for a claim of intentional infliction of emotional distress is three years. General Statutes § 52-577." DeCorso v. Watchtower Bible Tract Society of New York Inc., 78 Conn. App. 865, 873, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003). Civil conspiracy is also an intentional tort to which the three-year statute of limitation prescribed in § 52-577 applies. Estra v. Estra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0357846 (April 19, 1999, Nadeau, J.). The court agrees that the plaintiff's claims for intentional infliction of emotional distress and civil conspiracy are based on actions occurring more than three years prior to the institution, and therefore, are barred by General Statutes § 52-577.
Myrna LaBow's argument that § 52-577 does not apply to an action to quiet title is irrelevant to the application of this limitation period to her claims based on intentional infliction of emotional distress and civil conspiracy. See generally Perzanowski v. New Britain, 183 Conn. 504, 506, 440 A.2d 763 (1981) ("[w]here two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it").
Alternatively, Myrna LaBow argues that the statute of limitations is tolled because of the continuing course of conduct doctrine, as the defendants continue to deprive her of the full use and enjoyment of her property, and in turn, they continue to cause her emotional distress. For example, the plaintiff claims that Rubin continues to engage in actions as a possessor or owner of the property, such as cutting trees and "trespassing" on the property. There is no merit to this "continuing course of conduct" claim. The statute of limitations is not tolled simply because the harm or the consequences of the tort continue after the alleged wrongful conduct has occurred.
Moreover, these claims of trespass and nuisance are not based on facts alleged in any of the plaintiff's pleadings, and therefore, they are insufficient to defeat summary judgment. In Collum v. Chapin, 40 Conn. App. 449, 453, 671 A.2d 1329 (1996), the Appellate Court held that the trial court properly discounted a continuing course of conduct claim because "[a] summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period . . . Affidavits are not pleadings . . . and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of a counter-affidavit . . . The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) Id., 453.
III CONCLUSION
Therefore, for the foregoing reasons the defendants' motions for summary judgment are hereby granted.
So ordered this 12th day of March 2004.
STEVENS, J.