University of Vermont AAHS

Mucherino v. Newell

Superior Court of Connecticut

2005 WL 834446

November 9, 2004

 

Summary of Opinion

 

Defendant attempts to force Plaintiff off property she used for riding lessons and boarding by making property unusable for Plaintiff’s purposes.  Court holds that  dismantling stalls with horses in them, among other acts, requires reimbursement to Plaintiff for lost lesson income and income lost when boarders left.  Restoration of property also required to satidfactory condition also required.

 

 

Text of Opinion

 

I. FACTS

 

The plaintiff has brought this action claiming a violation of the Entry and Detainer Statutes (C.G.S. § 47a-43 to 47a-46 inclusive). A hearing was held on December 9, 2004 to address plaintiff's complaint seeking an injunction, a writ of restitution and other equitable relief.

Plaintiff operates a commercial enterprise known as Stoneledge Equestrian Center at 116 Main Street North, Bethlehem, Connecticut. The property upon which the business is run is owned by the defendant who also resides there. At this location the plaintiff gives horse riding lessons, trains, exercises, and boards horses. On the property are a barn, fences, gates, paddocks, stalls, and an indoor arena amongst other structures. Plaintiff has used the property for this commercial purpose since at least the summer of 2001.

 

In August 2004, the defendant (owner), filed a summary process action against the plaintiff. The entry and detainer action was filed while the summary process matter was still pending. This Court takes judicial notice of the facts and rulings in the matter of Newell v. Mucherino, (Docket # CV18-9673, Judicial District of Litchfield, Housing Session, December 14, 2004). In that case, the court entered judgment for the defendant as it was ... unable to find that the parties agreed to either an oral or a written lease. "It also concluded that the plaintiff's conduct' ... most probably adversely affected the defendant's successful and long-standing equestrian business."

 

From the testimony of the three witnesses presented by the plaintiff and the defendant's sole witness, the court finds the following additional facts specifically related to the instant complaint: On or about November 28, 2004, under the cover of darkness, the defendant removed all of the gates enclosing the fifteen pastures on the premises. Because the removal of the gates made it impossible to conduct her normal business operation, the plaintiff was forced to purchase new gates at her own expense. The next day the plaintiff found that the fences enclosing the pastures and property had been cut by a chainsaw in approximately 45 different places. These cuts left holes in the fences large enough for the horses to walk through. Again, this made it impossible for the plaintiff to conduct her business in the manner and for the purpose which was intended.

 

It is noted the conduct of the defendant occurred after the summary process trial had been completed and the parties were awaiting the court's ruling.

 

The defendant also removed panels which were used to make stalls for the horses while the horses were still in them. As to the indoor arena which was under construction, but used by the plaintiff (with the knowledge of the defendant), the power to that building was shut off by the defendant. Moreover, two tractor trailers were parked inside the arena by the defendant. Although a certificate of occupancy had not been issued for the building, the defendant's witness, Roger Nautusek, a part-time building inspector for the Town of Bethlehem, testified that a temporary or partial certificate of occupancy could have been applied for but that the defendant had not asked for one. The inspector further testified that while the original building permit (issued in September 2003) had expired, it could be extended if work was in progress and a "good effort" was being made. He noted it was "questionable" whether the defendant was making a "good effort" to complete the work.

 

Plaintiff presented testimony through herself and her witnesses that since the acts complained of, three boarders had left, others were preparing to do so and that training lessons and riding lessons had stopped altogether.

 

II. LAW

 

The Entry and Detainer Statute C.G.S. § 47a-43, is a descendant of English Law dating from 1382 and was introduced in Connecticut in 1722. [FN4] It is currently part of the Landlord and Tenant Act, 47a-1 et. seq. While sections 47a-1 to 47a-22 apply only to residential leases, the Entry and Detainer statute is applicable to commercial property. See Berlingo v. Sterling Ocean House, Inc., 5 Conn.App. 302, 504 A.2d 516, rev'd on other grounds, 203 Conn. 103, 523 A.2d 888 (1987); Karantonis v. Town of East Hartford, 71 Conn.App. 859, 804 A.2d 861 (2002).

 

"The process of entry and detainer is in its nature an action by which one in possession and enjoyment of any land, tenement or dwelling unit, who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property." Berlingo, supra, at 108. Generally, a plaintiff is considered to be in possession of land even if he or she does not have a continuous personal presence thereon, so long as "... the individual has exercised the dominion and control that owners of like property usually exercise." Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985). The Entry and Detainer statutes are designed to protect the possessor of real estate. Hovey v. Brann, Judicial District of New Haven, Housing Session, No. CVNH-8410-1111 (1986).

 

C.G.S. § 47a-43(a) sets forth four circumstances under which a defendant may be held to be in violation of the statute. Subsections (1) and (2) require a forcible entry by the defendant while subsections (3) and (4) do not. As to subsection (3), see Bourge v. Morris, 190 Conn. 364, 367-68, 460 A.2d 1251 (1983); as to subsections (3) and (4), see DiMeo v. Anastasio et ux, Judicial District of New Haven, Housing Session, No. CVNH 8505-1382 (1986).

 

From the facts established at the hearing, the Court finds the plaintiff is a possessor of the defendant's land and, that through his actions, has violated C.G.S. § 47a-43(a)(3).

 

III. REMEDIES

 

The remedies available to the plaintiff are set forth in C.G.S. 47a-45a (restoration to the premises and/or return of personal property through the issuance of a writ of restitution) and C.G.S. 47a-46 (double damages and costs).

 

At trial, the defendant argued he had not committed any violation of the statute in that he had not interfered with plaintiff's possessory interest as she was still physically able to access the land and could house the horses thereon. He also argued that none of plaintiff's personal property was taken or destroyed; that any such seizure or destruction affected only the defendant's own personal property and therefore the plaintiff suffered no harm. The defendant's arguments are unavailing and defy common sense.

 

Through his actions, the defendant clearly attempted to achieve the eviction he was hoping for in the pending summary process action. The physical and forceable detention of the property was not necessary to create a violation of the statute. Given the commercial nature of the property, there is no question he deliberately made it unuseable for its intended purpose. This effectively detains the plaintiff from her possession and enjoyment of the land. The fences, gates, barn, stalls and indoor arena were all integral parts of the plaintiff's use of the property. By damaging, removing, or making unavailable any or all of these items of personal property or other improvements upon the land (though owned by the defendant) he interfered with the plaintiff's possession and enjoyment of the land to the extent that a violation of the statute has clearly been established. The Court finds that damage has been caused to the premises by the defendant, and, that in order for the plaintiff to regain possession or enjoyment of the premises so as to allow its use as originally intended, she would necessarily have to commit a breach of peace in order to do so (e.g., removal of the tractor trailers from the arena.)

 

The Court, therefore, orders that the defendant immediately restore the premises to its condition prior to the acts complained of in plaintiff's complaint (i.e., its condition immediately prior to the removal of the gates and cutting of fences). Completion of the restoration shall be made within seven days of the date of this decision.

 

Further, testimony was offered as to the damages suffered by the plaintiff. While some of the damages were speculative and therefore cannot be considered by the Court, there was sufficient testimony regarding losses relative to riding lessons, boarding fees, and training fees to allow a review of these claims for the period November 28, 2004 to December 9, 2004. This testimony was unchallenged by the defendant. Pursuant to C.G.S. § 47a-46 an aggrieved party may recover double damages and costs if it is found 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." (Emphasis added.)

As to riding lessons, all lessons were cancelled from November 28th on. The income from such lessons was approximately $1,325 per week. The Court establishes the lost value of such lessons at $2,500.00.

 

As to the individuals boarding horses with the plaintiff, three boarders left the facility following the acts of the defendant. One left on November 28, 2004 which had paid $759.00 a month. Another left on December 5, 2004 at $750.00 a month. The third left on December 8, 2004 at $500.00 a month. The Court establishes the loss suffered by the plaintiff to be $2,000.00.

 

As to horse training lessons, all were stopped on November 29, 2004. Typically, the plaintiff provided six lessons a week at a rate of between $25.00-30.00 a lesson. The Court establishes the lost value at $165.00.

 

In summary, the plaintiff has suffered damages totaling, $4,665.00. Because of the oppressive, unethical and unscrupulous conduct of the defendant, the damage award is doubled pursuant to C.G.S. § 47a-46 for a total award of $9,330.00. Costs shall be taxed against the defendant.

 

Finally, the Court takes judicial notice of the pending matter entitled Mucherino v. Newell, CV04-400358, Judicial District of Litchfield in which plaintiff claims CUTPA violations and tortious interference by the defendant. Any claimed losses suffered by the plaintiff in this matter outside of those enumerated herein are left for consideration by the Court in that matter.

 


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