18 BREWER ASSOCIATES, LLC. v. MORMINO.

2007 Ct. Sup. 19740
No. CVH-01-6792Connecticut Superior Court Judicial District of Hartford at Hartford.
December 5, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT
PETER EMMETT WIESE, JUDGE.

I PROCEDURAL HISTORY
The plaintiffs, 18 Brewer Associates, LLC and Charles Burke,[1]
filed a nine count complaint against the defendants, Frank Mormino, Robert Kenary, Mark Sirois and the town of East Hartford (the town) on November 5, 2001.[2] This action arises out of the defendants alleged negligent, reckless and unlawful conduct when the defendants arrested Burke on July 30, 2001, for allegedly violating Connecticut’s criminal lockout statute, General Statutes § 53a-214[3] and committing larceny. Although this case has an extensive procedural history, only portions that are relevant to this motion for summary judgment will be included. The plaintiffs filed an amended nine count complaint on December 6, 2001. The counts are as follows: count one alleges negligence; count two alleges recklessness; count three alleges intentional interference with contractual business relations; count four alleges trespass; count five alleges false imprisonment; count six alleges numerous state constitutional claims[4] ; count seven alleges conversion; count eight alleges statutory theft in violation of General Statutes §§ 52-564 and 53a-119; and count nine seeks a declaratory judgment and injunctive relief.

The plaintiffs allege in count one that the defendants were negligent by not following the town’s ad hoc ninety-day policy. Allegedly, that policy sets forth a “safe harbor period,” during which rooming house occupants are considered transients, not tenants, therefore shielding innkeepers, like the plaintiffs, from liability for criminal lockout. Further, the plaintiffs allege that the defendants were negligent in their arrest of Burke, in breaking down the door to room fourteen after arresting Burke, allowing Willie Bridges access to the room and for threatening the plaintiff and the plaintiffs’ agent with arrest if they bothered Bridges.[5] The plaintiffs allege in count two that the CT Page 19741 defendants were reckless because they continue to harass the plaintiffs and their agents, threatening them with arrest for the lawful operation of the rooming house and for not abiding by the towns 90-day ad hoc policy. In count three, the plaintiffs allege that the defendants interfered with their contractual/business relations with Bridges. Count four alleges trespass against the defendants, for ordering the East Hartford fire department to break down the door to room fourteen, allowing Bridges back into the room, affecting the plaintiffs’ exclusive possessory interest in the premises. Count six alleges that the defendants violated their rights against unlawful search and seizure when Mormino ordered the fire department to break down the door to room fourteen.[6] The plaintiffs also allege in count six that their due process rights were violated, and that the defendants unlawfully took room fourteen when the defendants broke down the door, allowing Bridges to remain, without just compensation. Specifically, the plaintiffs allege they have suffered financial loss as Bridges lived in the room without paying rooming fees. Count seven and count eight allege conversion and statutory theft, respectively, alleging that Mormino jointly agreed and conspired with Bridges, as well as town officials, to intentionally deprive the plaintiffs of property and services without just compensation.

On December 14, 2004, the defendants filed a motion for summary judgment, arguing that there are no genuine issues of material fact. The defendants filed a memorandum of law in support of their motion for summary judgment. Briefly, they argued that they are entitled to governmental immunity pursuant to General Statutes § 52-557n for the negligence count, the claim for recklessness only incorporates by reference what was pleaded in the negligence count, the defendants did not interfere with any contractual relations, a police officer performing his duties is not a trespasser and there are no genuine issues of material fact as to all of the claims. The plaintiffs filed a memorandum in opposition to the defendants’ motion on April 26, 2005, claiming that the issues need to be resolved at trial, not by way of a motion for summary judgment.

Before the motion for summary judgment could be heard, the case was stayed, as the issue of whether the arrest of plaintiff Burke was lawful was litigated in the United States District Court, District of Connecticut. The District Court held that Mormino had probable cause to arrest Burke for both the lockout and larceny charges. Burke v. Mormino, United States District Court, Docket No. 3:04CV771 (PCD) (D. Conn. August 22, 2005). The court further held that “the information proven would also suffice to constitute a basis for qualified immunity as information on the basis of which an officer, acting reasonably, CT Page 19742 could have believed that probable cause existed for the two charges or at least one of them.” Id.

On April 19, 2006, the defendants filed a supplemental memorandum in support of their motion for summary judgment, arguing that the plaintiffs’ claims are foreclosed by the doctrine of collateral estoppel because of the District Court’s finding that Mormino had probable cause to arrest Burke. The stay in this matter was lifted on May 3, 2006, allowing the parties to resubmit their memoranda in support or opposition to the motion for summary judgment. The plaintiffs then filed an additional memorandum on June 2, 2006, arguing that their claims are not barred by issue preclusion, and that genuine issues of material fact still remain. In that memorandum, the plaintiffs abandoned their claims for unlawful arrest, equal protection and false imprisonment.

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.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207
(2006).

“The courts hold the [summary judgment] movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must CT Page 19743 present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.” (Internal quotation marks omitted.) Id., 318-19.

The defendants argue that the District Court’s finding of probable cause collaterally estops the plaintiffs from bringing any of their claims. Although the district courts holding is binding on this court, it does not foreclose all of the plaintiffs present claims. “Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. . . . [C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim. . . . 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.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Efthimio v. Smith, 268 Conn. 499, 506-507, 846 A.2d 222
(2004).

The plaintiffs are collaterally estopped from claiming that the defendants did not have probable cause to arrest him.[7] As a result, this court will not address any issues relating to probable cause, including any claims in the plaintiffs’ amended complaint that refer to any illegality on the part of the defendants in the arrest of Burke.[8]

Count One: Negligence
Even though the issue of probable cause is precluded, related claims still remain. As to count one, the defendants argue that they are entitled to summary judgment because municipalities are entitled to governmental immunity from liability for negligence. They argue that the police officers’ acts were discretionary and therefore, governmental immunity should apply. The plaintiffs argue that the defendants are not entitled to governmental immunity because the defendants’ acts fall within the exceptions to governmental immunity.

“The [common law] doctrines that determine the tort liability of municipal employees are well established. . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. . . . CT Page 19744 Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Internal quotation marks omitted.) Violano v Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

“Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.” (Internal quotation marks omitted.) Id. 318-19.

“The tort liability of a municipality has been codified in § 52-557n. Section 52-557n (a) (1) provides that `[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties. . . .’ Section 52-557n (a) (2) (B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” (Internal quotation marks omitted.) Id. 320.

“The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint.” (Citations omitted; internal quotation marks omitted.) Lombard v. Edwards J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). The Supreme Court “has approved the practice of deciding the issue of governmental immunity as a matter of law.” (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 613, 903 A.2d 191 (2006).

CT Page 19745 The plaintiffs allege that there was a ninety-day policy, as well as established protocol outlining specific procedures that police officers were to follow before arresting an individual for criminal lockout, which the defendants did not follow. The plaintiffs argue that the police officers’ acts were ministerial, not discretionary. “It is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality.”(Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988). “While it is so that statutes, regulations, and policies can create ministerial duties, when they relate to fire, police, or other public safety services, they are most often held to create discretionary duties. . . . The Superior Court has consistently held that the [a]cts and omissions of police officers in the exercise of their duties are discretionary in nature.” (Citation omitted; internal quotation marks omitted.) Soderlund v Merrigan, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4002396 (July 13, 2007, Holzberg, J.). The defendants’ actions, therefore, were discretionary, not ministerial.

In order for the plaintiffs to succeed, the plaintiffs negligence claims must fall within one of the three prescribed discretionary act exceptions to governmental immunity. “There are three exceptions to discretionary act immunity. First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.” (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 319-20.

The plaintiffs argue that they fall within the imminent harm to an identifiable person exception. “By its own terms, [the imminent harm] test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.” Doe v Petersen, supra, 279 Conn. 616. The Supreme Court has stated that “this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.” (Citation omitted; internal quotations omitted.) Violano v. Fernandez, supra, CT Page 19746 280 Conn. 329.

“[T]he criteria of `identifiable person’ and `imminent harm’ must be evaluated with reference to each other. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person.” Doe v. Petersen, supra, 279 Conn. 620-21. “For the purposes of the `imminent harm’ exception, however, it is impossible to be an identifiable person in the absence of any corresponding imminent harm.” Id., 621. The plaintiffs’ claim that then defendants were negligent in not training their employees to abide by the alleged ninety day policy and in calling the fire department to break down the door to room fourteen, allowing Bridges access. Further, the plaintiffs allege that the defendants were negligent in allowing police officers to harass them regarding rooming house guests, which is their principle business.

The plaintiffs are identifiable victims because they are in the business of running a rooming house and on the day that Burke was arrested, they allege the defendants failed to follow their own policies and directives, the very directives the plaintiffs allege they were abiding by. The harm that the plaintiffs allege is that they were, and continue to be, harassed and threatened by the defendants with arrest for abiding by a ninety day policy that the defendants were allegedly supposed to follow and did not. Further, the plaintiffs are identifiable victims subject to imminent harm because, as they allege in their complaint, they had notified the defendants about past and ongoing harassment by East Hartford police officers and, despite the notification, the defendants failed to prevent police misconduct. Allegedly, this has resulted financial and personal losses to the plaintiffs.

As the plaintiffs have satisfied the first two prongs of the imminent harm/identifiable person exception, it is necessary to determine whether the apparentness prong is satisfied. “The `apparentness’ requirement is grounded in the policy goal underlying all discretionary act immunity, that is, keeping public officials unafraid to exercise judgment . . . It surely would ill serve this goal to respond adequately to a harm that was not apparent to him or her.” (Citation omitted.) Doe v. Petersen, supra, 279 Conn. 616-17.

The evidence submitted by the defendants does not establish whether it was apparent to the defendants that a ninety day policy was in place. The defendants, in support of their motion for summary judgment, submit hearing testimony from Mormino, in which he states that there were no CT Page 19747 policies in place regarding lockouts, and the plaintiffs’ agent was incorrect in his understanding that there was such a policy. (Defendants’ brief, exhibit B, pp. 35-36). They also submit various letters and documents from the chief of police and different attorneys regarding the law on transient tenants. (Defendants’ brief, exhibit A). They further submit testimony from the plaintiffs’ agent in which he states that he tried to show Mormino information regarding certain policies that he believed to be in place, and Mormino did not look at them. (Defendants’ brief, exhibit C, pp. 202-204). This evidence does not establish the absence of a genuine issue of material fact as to whether a ninety policy was in place, but rather, indicates that there is a dispute that remains as to the existence of such a policy.

Further, as to the issue of harassment and threatening, the defendants argue that exhibit 4A, submitted by the plaintiffs, bolsters their argument that there was no threatening made by the police.[9] Exhibit 4A is an East Hartford police department complaint that details the events of an incident that occurred September 24, 2001.[10] No where in this police report is there any indication that the police officer involved had threatened the plaintiffs or the plaintiffs’ agent in any way. In fact, the plaintiffs’ agent stated to the police that he would not “bother Bridges anymore.” (Plaintiffs’ brief, exhibit 4A.) In addition, the defendants have submitted into evidence a police report dated July 29, 2001, the day before the alleged incident, regarding a noise complaint filed by the plaintiffs’ agent.[11] This evidence is not sufficient to meet the defendants burden. The police reports do not speak to whether it was apparent to the defendants that the plaintiffs had been harassed. The plaintiffs specifically allege that the defendants were notified of police misconduct and did nothing to stop the alleged harassment. The defendants evidence does not establish the absence of a genuine issue of material fact as to this issue. Accordingly, the defendants have failed to meet their burden of proof and summary judgment is denied as to count one.

Count Two: Recklessness
The defendants argue that the recklessness claim in count two merely incorporates by reference those facts set forth in the negligence count, without offering any additional allegations as to why the defendants’ conduct constitutes recklessness.

Further, the defendants argue that the record is devoid of evidence to show that the police officers had the requisite state of mind for recklessness.

CT Page 19748 “To determine whether the plaintiffs’ amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence. . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.” Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).

“While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.” Id. 342-43.

“Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to an action for wilful and wanton conduct . . . If the plaintiff merely reiterates the facts from the negligence count and inserts the word `reckless,’ a motion to strike is properly granted . . . If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied . . . To state a claim of recklessness . . . the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind.” (Internal quotation marks omitted.) Colangelo v Holgerson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5004291 (October 11, 2007, Robinson, J.).

The plaintiffs’ recklessness count incorporates paragraphs one through twenty-eight from count one, and adds additional paragraphs. The incorporated paragraphs from count one alleges that police officers from the East Hartford police department threatened and continue to harass the plaintiffs with arrest, and the defendants have done nothing to stop this harassment, despite written and verbal notices to the defendants CT Page 19749 from the plaintiffs. In the additional paragraphs, the plaintiffs allege that the defendants’ actions constituted recklessness in that they ignored the towns ninety day ad hoc policy and they failed to train or instruct town police officers with regards to the ninety day policy. The factual allegations alleged by the plaintiffs are detailed and specific enough to support a claim for recklessness, and therefore, the defendants’ motion for summary judgment is denied as to count two.[12]

Count Three: Intentional Interference with BusinessRelations
The defendants next argument is that they are entitled to summary judgment as to count three because the plaintiffs must prove that there was a contractual relationship in existence and that the defendants’ conduct was tortious. They argue that there was no contract between the plaintiffs and Jamie Lofgren, a friend of Bridges who was staying with him in his room, and therefore, the defendants did not interfere with any business relationship between Lofgren and the plaintiffs.[13] The defendants further argue that the contract that did exist between the plaintiffs and Bridges was void and barred by collateral estoppel.

In support of their argument, the defendants cite prior cases in which Burke was the defendant. Those cases are Murphy v. Burke, Superior Court, judicial district of Hartford, Docket No. CV 5285 (August 17, 1995, DiPentima, J.) (16 Conn. L. Rptr. 200); and Webster v Burke, Superior Court, judicial district of Hartford, Docket No. CVH 6388 (December 14, 1999, Satter, J.T.R.). The defendants argue that in those prior cases the court found that Burke’s agreements between the rooming occupants and his company were void, and therefore, the present contract between the plaintiffs and Bridges is void. However, the defendants have not submitted the contracts that were at issue in th Murphy v. Burke and Webster v. Burke cases for the court to analyze and compare to the contract in this matter. Further, although the defendants argue that the plaintiffs “special agreement” with Bridges is an attempt to circumvent summary process procedures, they did not submit any evidence to that effect. Count three is therefore not barred by collateral estoppel, and the issue of whether the contract between the plaintiffs and Bridges is void is properly left for the fact finder to determine. The defendants, therefore, did not meet their burden of establishing the absence of any genuine issue of material fact, and, accordingly, summary judgment is denied as to count three.

Count Four: Trespass
The defendants claim that summary judgment should be granted as to CT Page 19750 count four because a police officer does not commit trespass while acting in the course of his or her duties. “[I]t has long been held that a police officer who makes such an entry onto private property, in the course of performing his official duties, is not a trespasser but a licensee.” Wroniak v. Ayala, Superior Court, judicial district of Hartford, Docket No. 94 0544499 (June 13, 1995, Sheldon, J.) (14 Conn. L. Rptr. 328). The plaintiffs, however, allege that a trespass did not occur when they called the police to their place of business, but when the police entered room fourteen after ordering the fire department to break down the door to the room. The plaintiffs further allege that the defendants conspired, knowingly and intentionally, with Bridges “to trespass upon the plaintiff’s property and interfere with their exclusive possessory interest therein.” (Amended Complaint, ¶ 36.)

Although the evidence submitted by the defendants indicates that the plaintiffs’ agent called the police to the rooming house; (Defendants brief, Exhibit C, p. 197); the evidence does not show the absence of a genuine issue of material fact as to whether the defendants conspired with Bridges to commit trespass, after Burke was arrested. A genuine issue of material fact exists as to whether the defendants conspired with Bridges to trespass upon the plaintiffs’ property, and therefore, summary judgment is denied as to count four.

Count Six: State Constitutional Claims
The defendants further claim that the plaintiffs’ remaining state constitutional claims[14] are barred by collateral estoppel. Nevertheless, the remaining constitutional issues were not “fully and fairly litigated” in the federal court, they are not barred by collateral estoppel, and therefore it must be determined if the defendants have met their burden as to each claim.

The defendants argue that the plaintiffs cannot maintain a claim for damages against them for depriving the plaintiffs of liberty and property without due process of law because the Connecticut constitution does not recognize such claims. In support of that argument, the defendants cite Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993). In Kelley Property Development, Inc. v Lebanon, supra, 226 Conn. 339, the Supreme Court held that the court “should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy.” See also Williams v. Hartford Public Schools, Superior Court, judicial district of Hartford, Docket No. CV 05 4009112 (April 5, 2007, Elgo, J.). Kelley Property Development, Inc., holds that where an adequate CT Page 19751 statutory remedy has been established by the legislature, the judiciary cannot create an alternate remedy based on the constitution without violating the separation of powers. In this matter, the plaintiffs have claimed other statutory relief, specifically statutory theft in count eight. This claim, therefore, indicates the existence of an adequate statutory remedy. The issue that remains, however, is whether summary judgment is appropriate on this ground because this argument only speaks to one portion of count six.

The Superior Courts have delineated in what circumstances summary judgment is appropriate. “First, summary judgment cannot be entered as to an entire count when the count contains multiple causes of action and all of them are not addressed as part of the judgment. Second, summary judgment is unavailable as to particular allegations in a count when such an adjudication does not dispose of an entire cause of action. Third, summary judgment may be entered as to a single cause of action within a count containing multiple claims when the allegations are sufficiently distinct and discrete so that this cause of action can be severed from the remaining claims. Thus, in this last situation, it must be practical to enter final judgment with respect to that part of the claim for which summary judgment is sought and sever it from the remainder of the claim.” (Internal quotation marks omitted.)Bridgeport Harbor Place, I, LLC v. Ganim, Superior Court, judicial district of Waterbury, Docket No. CV 04 0184523 (October 5, 2007 Stevens, J.).

“At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment. . . . Some trial courts have found . . . that the language of Practice Book § 17-51 . . . authorizes the entry of summary judgment on a part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim.” (Citation omitted; internal quotation marks omitted.) Walker Manor Environmental Trust v. Oyster Landing Condominium Ass’n, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 4006038 (December 22, 2006, Esposito, J.). The plaintiffs claim numerous state constitutional violations against the defendants in count six, allegedly resulting in financial loss to the plaintiffs. The plaintiffs also allege in count eight that the defendants have committed statutory theft, also resulting in similar damages to the plaintiffs. This court finds that the plaintiffs’ claim that the defendants violated their rights of liberty and property without due process of law is separate and distinct from the rest of count six and that the plaintiffs’ claim CT Page 19752 for statutory theft in count eight is an adequate statutory remedy, as the plaintiffs in count eight seek the same damages as in count six. Summary judgment, therefore, is granted as to the violation of due process cause of action in count six.

The defendants also argue that summary judgment should enter as to the plaintiffs’ undue taking of property claim because there was no `taking’ under the constitution. A `taking’ requires the exclusion of the owner from his private use and possession, and the plaintiffs cannot prove their property was taken because they are still in possession of the boarding house and may operate the business as they see fit. “The fifth amendment to the United States constitution, as applied to the states through the due process clause of the fourteenth amendment . . . provides that `private property [shall not] be taken for public use, without just compensation.’ U.S. Const., amend. V. Article first, § 11, of the Connecticut constitution similarly provides that `[t]he property of no person shall be taken for public use, without just compensation therefor.'” (Internal quotation marks omitted.) New London v Foss, 85 Conn. App. 275, 278, 857 A.2d 379 (2004), appeal dismissed, 276 Conn. 522, 886 A.2d 1217 (2005).

The plaintiffs allege that the defendants have taken their property, specifically room fourteen, without just compensation. The defendants have not met their burden of establishing the absence of a genuine issue of material fact as to this issue. Accordingly, summary judgment not granted on this ground.

The last claim in count six that the defendants address is the plaintiffs’ search and seizure claim. Article First, § 7 of the Connecticut constitution provides that people shall be secure in their persons “from unreasonable searches and seizures.” “The federal law of search and seizure in this area is well settled. The fourth amendment to the federal constitution, made applicable to the states through the due process clause of the fourteenth amendment, provides in relevant part that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .’ Precedent reveals that certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.” (Internal quotation marks omitted.) State v. Burroughs, 99 Conn. App. 413, 422-23, 914 A.2d 592, cert. granted on other grounds, 282 Conn. 909, 922 A.2d 1099 (2007).

“[I]t is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per CT Page 19753 se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” (Internal quotation marks omitted.)State v. Edman, 281 Conn. 444, 454, 915 A.2d 857 (2007). “It is well established . . . that a warrant is not required when a search is conducted incident to a lawful custodial arrest.” (Internal quotation marks omitted.) State v. Days, 89 Conn. App. 789, 803, 875 A.2d 59, cert. denied, 275 Conn. 909, 882 A.2d 677 (2005).

The issue of probable cause is barred by collateral estoppel as already discussed. The issue, however, that remains is whether Mormino exceeded the scope of a reasonable search and seizure incident to a warrantless, lawful arrest when he ordered the East Hartford fire department to break down the door to room fourteen. Since the defendants have provided no evidence to meet their burden of demonstrating the nonexistence of a genuine issue of material fact as to this issue, the defendants’ motion for summary judgment is not granted as to this claim.

Count Seven: Conversion
The defendants next argue that they are entitled to summary judgment as to the plaintiffs’ conversion claim in count seven. Specifically, they argue that the plaintiffs must demonstrate that the defendants, without authorization, assumed and exercised the right of ownership over property belonging to the plaintiffs, to the exclusion of their rights.

In support of their motion for summary judgment, the defendants argue that the plaintiffs actually tried to convert their occupants’ belongings in violation of Connecticut’s criminal lockout statute. The plaintiffs allege that the defendants conspired with Bridges to exclude the plaintiffs from using room fourteen. In support of their proposition, the defendants submitted testimony from the plaintiffs’ agent, who stated that he and Burke took property from Bridges’ room and placed it in the office in order to effectuate a lien on the property. (Defendants’ brief, exhibit C, p. 204.) In the very same testimony, the plaintiffs’ agent states that he had a lawful lien on the occupants’ belongings and that Mormino made him give the property back. (Defendants’ brief, exhibit C, pp. 206-207.) Mormino confirms that he ordered the property to be returned to the occupants of room fourteen in his trial testimony from December 7, 2001. (Defendants’ brief, exhibit B, pp. 78-79.) Although the parties agree that the plaintiffs took the occupants’ property and the defendants ordered that the property be returned, a genuine issues of fact remain as to whether the plaintiffs had a proper lien and whether the defendants did or did not interfere with such a lien.

CT Page 19754 Further, the plaintiffs allege that Mormino jointly agreed and conspired with Bridges, and town officials, to exclude the plaintiffs from ownership and exclusive use of room fourteen at the rooming house. In his testimony, the plaintiffs’ agent stated that the door to room fourteen was broken down in order to allow the occupants access to the room, per the defendants’ orders. (Defendants’ brief, exhibit C, pp. 206-208.) The evidence submitted by the defendants does not show the absence of a genuine issue of material fact as to whether Mormino and town officials conspired with Bridges to convert the use of room fourteen. Since the defendants have not met their burden, summary judgment as to count seven is denied.

Count Eight: Statutory Theft
The defendants’ last argument is that summary judgment should be granted as to statutory theft in count eight. The plaintiffs allege that the defendants violated General Statutes §§ 52-564[15] and 53a-119[16] when they intentionally and unlawfully, and through the actual and threatened use of force took, obtained and withheld the plaintiffs’ property and services without compensation. More specifically, the plaintiffs argue that “the defendants intentionally deprived the plaintiffs of the services of the rooming house without pay, to benefit Bridges. The defendants actions — particularly preventing the plaintiffs from taking action to recover room fees by threatening to arrest the plaintiffs should they bother Bridges again — have resulted in the plaintiffs’ loss of property.” (Plaintiffs’ supplemental brief, 11.) Further, the plaintiffs allege that the “defendants `stole’ the plaintiffs’ services when they prevented the plaintiff[s] from obtaining payment for services by threatening further arrest.” Id.

As to this count, the defendants did not submit any evidence to show the absence of a genuine issue of material fact as to whether the defendants conspired with Bridges to deprive the plaintiffs of property and services without compensation. Having not met their burden, the motion for summary judgment is denied as to count eight.

III CONCLUSION
For the reasons discussed below, the defendants’ motion for summary judgment is denied as to counts one, two, three, four, seven and eight. Summary judgment shall enter as to the plaintiffs’ claim that the defendants violated their rights of liberty and property without due CT Page 19755 process of law in count six, however, summary judgment is denied as to the rest of count six.

[1] According to his complaint, the plaintiff, Charles Burke is the operating manager and president of 18 Brewer Associates, LLC. 18 Brewer Associates, LLC, is a business that operates a rooming house in East Hartford.
[2] According to the complaint, at the time the plaintiff brought this action, all named defendants worked for the East Hartford police department. Frank Mormino was a patrol sergeant, Robert Kenary was a commander and Mark Sirois was the chief of police.
[3] General Statutes § 53a-214 states in relevant part that “(a) A landlord of a dwelling unit subject to the provisions of chapter 830, an owner of such a unit, or the agent of such landlord or owner is guilty of criminal lockout when, without benefit of a court order, he deprives a tenant, as defined in subsection (1) of section 47a-1, of access to his dwelling unit or his personal possessions.”
[4] The plaintiffs allege that the defendants violated the plaintiffs’ rights against unreasonable search and seizure, due process of law, equal protection, unlawful arrest and undue taking of property in violation of §§ 7 9 of the Connecticut constitution.
[5] This action arose over a situation concerning Willie Bridges. Allegedly Bridges was a “transient” who the plaintiffs had entered into a contract with to rent a room at the rooming house. Willie Bridges had allegedly defaulted in his payments and the plaintiff had placed a lien on his property by taking his belongings out of room fourteen and placing them in the office at the rooming house. The plaintiffs’ agent, Joe Raimondo, then changed the lock on the door to Willie Bridges’ room, room fourteen, barring him from re-entering.
[6] Count five is not addressed in this memorandum because the plaintiffs have abandoned that claim, as well as their claims in count six for unlawful arrest and equal protection violations.
[7] “Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment may be appropriate. . . . Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum.” LaBow v Rubin, 95 Conn. App. 454, 461, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

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[8] The defendants also argue that the Superior Court has already found that there is no ninety day policy, and that the issue is barred by collateral estoppel. There are two prior decisions from the Superior Court with regard to this matter. In one of the decisions, 18 Brewer Associates, L.L.C. v. Mormino, Superior Court, judicial district of Hartford, Docket No. CVH 01-6792 (May 8, 2002, Crawford, J.), the court held that the plaintiffs were not entitled to a temporary injunction. Under a section labeled “Likelihood to Prevail on the Merits,” the court stated that “[o]n July 30, 2001, the police department did not have a ninety day policy on criminal lockout.” Id. “Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment. . . . Thus, the issue must have been fully and fairly litigated in the first action. . . . Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. . . . 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.” (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn. App. 454, 461-62, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

In a temporary injunction matter, “[t]o demonstrate that [a plaintiff] is likely to prevail on the merits, the plaintiff must present enough evidence to make [his or] her right clear, but need not put on a full trial on the merits. . . . [A] hearing on a preliminary injunction is not a forum for a full investigation into the merits of the plaintiffs’ claims.” Vegliante v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 06 4021562 (March 29, 2007, Skolnick, J.T.R.). In this matter, since the plaintiff was not required to present all of the evidence or have a full investigation into the merits of the case at the preliminary injunction stage, and collateral estoppel requires a prior judgment that was fully and fairly litigated, the issue of whether there is a ninety day policy is not barred by collateral estoppel and is properly left for the fact finder to determine at trial.

[9] The name of the officer who filled out the complaint is unknown as the handwriting is illegible.
[10] The police officer wrote the following: “I was dispatched to 18 CT Page 19757 Brewer St Room 14 on a tenant/landlord dispute. Complainant Bridges stated Raimondo came to his door this morning and gave him a Procedure For Late Payment Form. Bridges stated on the form it demanded a key. Bridges stated, `I’m not giving any money or keys to anyone until this case is over in court.’ Bridges stated, `I don’t want Raimondo bothering me.’ I spoke with Raimondo by phone. Raimondo stated he spoke with Bridges last week and thought that Bridges was going to pay his rent. Raimondo stated he went to Bridges door and knocked on it. Raimondo stated he gave Bridges a procedure for late payment form because he thought he was going to pay rent. Raimondo stated he wouldn’t bother with Bridges anymore. No further action was taken.” (Plaintiffs’ brief, Exhibit 4A.)
[11] The police report indicates that an officer went to 18 Brewer Street, spoke with the plaintiffs’ agent who told the officer about a loud radio coming from Bridges room. The officer knocked on Bridge’s door, and when he got no answer, called a supervisor, who allowed the plaintiffs’ agent to open the door and turn down the radio. The police officer took no other action, and the door was locked before the officer left the scene. While leaving, the officer ran into Bridges and advised him about the radio. (Defendants’ brief, Exhibit A.)
[12] In addition, the defendants argue that the plaintiffs have not presented any evidence regarding the police officers’ state of mind as to recklessness. “[S]ummary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated.” (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn. App. 527, 539, 906 A.2d 14 (2006). As reasonable minds could differ as to whether the defendants’ actions on the videotape were in fact reckless, the matter is not proper for summary disposition.
[13] In Burke v. Mormino, United States District Court, Docket No. 3:04CV771 (PCD) (D. Conn. August 22, 2005), the court found that Jamie Lofgren was permitted by Bridges to occupy Bridges’ room with him at the plaintiffs’ rooming house. Lofgren never executed a document, nor did she have a contract with the plaintiffs to stay at the property. The plaintiffs’ agent knew of her presence on the property, nevertheless, Burke was personally unaware. When Bridges had failed to pay his rooming fees, the plaintiffs’ agent changed the lock on the door, angering Bridges. The police were called to the scene, and Mormino instructed the plaintiffs’ agent to allow Bridges and Lofgren back in the room. The plaintiffs’ agent complied, Mormino left, and officer Estes remained at the scene while the locks were being changed. During this time, Burke arrived, prompting officer Estes to call Mormino back to the scene. Upon arriving, Mormino was advised by Lofgren that Burke had come into her CT Page 19758 room and advised her that he was taking her things. She stated she disagreed, but was shoved aside by Burke, who removed her belongings and placed them in Burke’s office. Burke also ordered that the lock be changed and asked Lofgren to leave the premises. Officer Estes confirmed this series of events, and when Mormino asked Burke about this, Burke refused to return her property. Mormino then arrested Burke for criminal lockout and larceny. Burke v. Mormino, supra.

The plaintiffs allege that the defendants interfered with their contractual relations with Bridges, not Lofgren. Therefore, the defendants argument that they did not interfere with the plaintiffs’ contract with Lofgren, as there was no contract, is correct. However, the plaintiffs do not allege that the defendants interfered with their contractual relations with Lofgren, rather they allege that the defendants interfered with their contractual rights with Bridges.

[14] The claims that remain are that the defendants continue to deprive the plaintiffs of liberty and property without due process of law, undue taking of property and unlawful search and seizure.
[15] General Statutes § 52-564 provides in relevant part: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”
[16] General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (7) Theft of services. A person is guilty of theft of services when (A) With intent to avoid payment for restaurant services rendered, or for services rendered to him as a transient guest at a hotel, motel, inn, tourist cabin, rooming house or comparable establishment, he avoids such payment by unjustifiable failure or refusal to pay, by stealth, or be any misrepresentation of fact which he knows to be false.”

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