A1Z7, LLC v. Dombek

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A1Z7, LLC v. KIMBERLY DOMBEK
(AC 41198)
Sheldon, Keller and Flynn, Js.

Syllabus

The defendant, the previous owner of certain real property that was pur-
chased by the plaintiff in a tax sale, appealed to this court from the
judgment of the trial court granting the plaintiff’s application for a
prejudgment remedy, which was filed in connection with an action
brought by the plaintiff for unjust enrichment against the defendant.
After the plaintiff had purchased the premises, it brought a summary
process action in which it sought to dispossess the defendant from the
premises, and to recover use and occupancy payments. The trial court
ordered prospective use and occupancy payments commencing in Octo-
ber, 2017, which did not cover the time period that had elapsed from
the time the plaintiff took title to the premises until the date the defen-
dant was required to make payments in accordance with the court’s
order. In its application for a prejudgment remedy, the plaintiff claimed
that the defendant had been unjustly enriched because she had used
the premises from January to October, 2017, without making use and
occupancy payments. The defendant claimed that the statute (§ 47a-
26b) governing orders for use and occupancy payments in summary
process actions was the exclusive remedy by which the plaintiff could
seek such payments and that use and occupancy payments are obtain-
able only through a summary process action. Held:
1. The trial court properly concluded that § 47a-26b did not prohibit the
plaintiff from recovering retroactive use and occupancy payments in
the present action; § 47a-26b does not contain an exclusivity provision,
nor did the defendant point to any language in that statute stating that
it provides an exclusive remedy, and because the plaintiff sought to
recover the reasonable value of the premises occupied for a past time
period for which § 47a-26b, which awards use and occupancy payments
prospectively from the date of a court order, would not permit an award,
permitting the plaintiff to recover for the fair value of the occupancy
not covered by the statute that has unjustly enriched the party occupying
the premises in a separate action and to obtain security for any judgment
obtained in the form of an attachment or garnishment did not in any
way frustrate the purpose of the summary process statute to provide
an expeditious process for the recovery of possession of a premises.
2. The defendant could not prevail on her claim that the prior pending action
doctrine warranted dismissal of the plaintiff’s unjust enrichment action;
in this unjust enrichment action, the plaintiff sought security and a
judgment for use and occupancy from the date of taking title to the
premises to the date that the court ordered use and occupancy payments
under the summary process statute, which was a different claim from
the one brought in the summary process action, in which the plaintiff
could not recover the amount sought between January and October,
2017, and, therefore, there was a necessity for bringing this second
action.
3. The trial court properly rejected the defendant’s claim that the doctrines
of res judicata and collateral estoppel barred the court from granting
the plaintiff’s application for a prejudgment remedy; given that the claims
the plaintiff made in this unjust enrichment action were not litigated in
the summary process action because the summary process statute did
not permit them to be brought for retroactive use and occupancy pay-
ments, and that the hearing on an application for a prejudgment remedy
did not require the court to conduct a full scale trial on the merits of
the plaintiff’s claim, the doctrine of res judicata, which prevents a litigant
from reasserting a claim that has already been decided on the merits,
did not bar litigation of the plaintiff’s claim, nor did the doctrine of
collateral estoppel, which cannot be invoked to bar a claim unless the
same issue was fully and finally litigated to a final judgment.
Argued January 7—officially released March 26, 2019
Procedural History

Action to recover damages for unjust enrichment,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, Housing Session, where
the court, Moukawsher, J., granted the plaintiff’s appli-
cation for a prejudgment remedy, and the defendant
appealed to this court. Affirmed.
Robert J. Williams, Jr., for the appellant (defendant).
David L. Weiss, for the appellee (plaintiff).
Opinion

FLYNN, J. General Statutes § 47a-26b permits a prop-
erty owner in a summary process action to seek the
fair rental value of the premises occupied by a defen-
dant during the pendency of a summary process action.
The central issue in this case is whether § 47a-26b pro-
vides the exclusive remedy and, therefore, preempts an
owner’s ability to seek payment from the occupier for
unjust enrichment for the reasonable value of the prem-
ises occupied for a time period for which § 47a-26b
would not permit an order of use and occupancy pay-
ments. Because the language of the statute does not
plainly and unambiguously foreclose other common-
law remedies such as unjust enrichment and an exercise
of that common-law remedy would not conflict with
the purpose of the statute, we conclude that it is not
foreclosed.
The defendant, Kimberly Dombek, appeals from the
judgment of the trial court granting a prejudgment rem-
edy in favor of the plaintiff, A1Z7, LLC. On appeal, the
defendant claims that the court erred in granting the
plaintiff’s application for a prejudgment remedy
because (1) § 47a-26b prohibits the recovery of use and
occupancy payments in this action, (2) the prior pend-
ing action doctrine is a bar, and (3) res judicata and
collateral estoppel warranted dismissal of the applica-
tion. We disagree and, accordingly, affirm the judgment
of the trial court.
The following facts are undisputed. The plaintiff pur-
chased real property located at 802 Meadowview Drive
in East Windsor (premises), which previously had been
owned by the defendant, in a tax sale conducted by
the tax collector of East Windsor.1 The plaintiff filed a
summary process action in which it sought to dispos-
sess the defendant from the premises due to the defen-
dant’s failure to vacate the premises following service
of a notice to quit. In that action, the plaintiff filed a
motion for use and occupancy payments on March 3,
2017, but the motion was not scheduled for a hearing
by the Housing Court until October 4, 2017. On October
4, 2017, the court then ordered prospective use and
occupancy payments commencing on October 10, 2017,
which did not cover the time period that had elapsed
from the time the plaintiff took title to the premises
on January 24, 2017, until the date the defendant was
required to make use and occupancy payments in accor-
dance with the court’s October 4, 2017 order.
On October 23, 2017, in a separate action, the plaintiff
filed this application for a prejudgment remedy. The
plaintiff claimed that the defendant had been unjustly
enriched because she had used the premises from Janu-
ary 24, 2017, when the tax collector’s deed for the prem-
ises was recorded, through October 9, 2017, without
making use and occupancy payments.
The court granted the plaintiff’s application, reason-
ing that probable cause had been established for pay-
ments for the use and occupancy of the plaintiff’s
premises by the defendant from the date the plaintiff
acquired the property in January, 2017, through Octo-
ber, 2017, when the defendant began making use and
occupancy payments in response to a summary process
action. The court rejected the defendant’s arguments
that § 47a-26b was the exclusive remedy for use and
occupancy, as well as her additional contentions that
this action was barred by the pending action doctrine,
res judicata and collateral estoppel. The court granted
the plaintiff a prejudgment remedy in the amount of
$13,500. This appeal followed.
I
The defendant first claims that the court improperly
granted the plaintiff’s application for a prejudgment
remedy for use and occupancy payments because the
present action is not a summary process action and use
and occupancy payments are only obtainable through
a summary process action. The defendant’s claim neces-
sarily raises the question of whether the legislature, by
providing a use and occupancy remedy in a summary
process action, manifested an intention to occupy the
field by providing an exclusive remedy for such actions,
and whether recognition of a common-law remedy for
unjust enrichment would conflict with or frustrate the
purpose of the statute. We conclude that the defendant
cannot prevail on her claim.
‘‘Ordinarily, we review a trial court’s actions with
respect to an application for a prejudgment remedy for
abuse of discretion.’’ Feldmann v. Sebastian, 261 Conn.
721, 724, 805 A.2d 713 (2002). In this case, however,
the issue raised by the defendant presents a question
of statutory interpretation requiring plenary review. See
Caciopoli v. Lebowitz, 309 Conn. 62, 69, 68 A.3d 1150
(2013). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Id.
In Caciopoli v. Lebowitz, supra, 309 Conn. 62, which
concerned whether the tree cutting statute, General
Statutes § 52-560, abrogated common-law remedies,
Justice Eveleigh, writing for a unanimous Supreme
Court, cogently set forth principles of statutory inter-
pretation that guide our review. As our Supreme Court
did in Caciopoli, we will examine the language of the
relevant statute to determine whether it provides an
exclusive remedy and determine if the purpose of the
statute is frustrated by or conflicts with the recognition
of a common-law remedy. Id., 69.
Section 47a-26b (a) provides in relevant part: ‘‘If the
defendant appears, the court shall, upon motion and
without hearing, unless the defendant files an objection
within five days of the filing of the motion, order the
defendant to deposit with the court within ten days of
the filing of the motion payments for use and occupancy
in an amount equal to the last agreed-upon rent or, in
the absence of a prior agreed-upon rent, in an amount
equal to the fair rental value of the premises during the
pendency of such action accruing from the date of such
order. . . .’’ (Emphasis added.)
Section 47a-26b does not contain an exclusivity provi-
sion. The defendant does not point us to any language
in that section or in Title 47a of the General Statutes
that states that § 47a-26b provides an exclusive remedy.
‘‘Although the legislature may eliminate a common-law
right by statute, the presumption that the legislature
does not have such a purpose can be overcome only if
the legislative intent is clearly and plainly expressed.
. . . We recognize only those alterations of the com-
mon law that are clearly expressed in the language of
the statute because the traditional principles of justice
upon which the common law is founded should be
perpetuated. The rule that statutes in derogation of the
common law are strictly construed can be seen to serve
the same policy of continuity and stability in the legal
system as the doctrine of stare decisis in relation to
case law. . . . In the absence of explicit language indi-
cating that the statute is the exclusive remedy, we will
not presume that the legislature intended to occupy
the field and preempt a common-law cause of action.’’
(Citations omitted; internal quotation marks omitted.)
Caciopoli v. Lebowitz, supra, 309 Conn. 70–72.
We must next consider whether the purpose of the
summary process statute would be frustrated by the
application of the common-law remedy of unjust enrich-
ment. The plaintiff seeks to recover the reasonable
value of the premises occupied for a past time period
for which § 47a-26b would not permit an award of use
and occupancy payments. That statute’s purpose is
designed to provide a quick and effective remedy to
dispossess a tenant, and for that reason does not permit
a plaintiff landowner to claim money damages in that
action except for use and occupancy within the time
limits set within § 47a-26b. Section 47a-26b permits use
and occupancy payments to be awarded only from the
date of the order prospectively and not retroactively.
Permitting a plaintiff to recover for the fair value of the
occupancy not covered by § 47a-26b that has unjustly
enriched the party occupying the premises in a separate
action and to obtain security for any judgment obtained
in the form of an attachment or garnishment does not in
any way frustrate the purposes of the summary process
statute to provide an expeditious process for the recov-
ery of possession of a premises. We, therefore, conclude
that the court properly concluded that § 47a-26b did
not prohibit the plaintiff from recovering in the present
action retroactive use and occupancy payments.
II
The defendant next claims that the court improperly
concluded that the prior pending action doctrine did
not require dismissal of the action. We disagree.
‘‘It has long been the rule that when two separate
lawsuits are ‘virtually alike’ the second action is amena-
ble to dismissal by the court.’’ Solomon v. Aberman,
196 Conn. 359, 382, 493 A.2d 193 (1985). ‘‘[T]he prior
pending action doctrine permits the court to dismiss a
second case that raises issues currently pending before
the court. The pendency of a prior suit of the same
character, between the same parties, brought to obtain
the same end or object, is, at common law, good cause
for abatement. It is so, because there cannot be any
reason or necessity for bringing the second, and, there-
fore, it must be oppressive and vexatious. This is a rule
of justice and equity, generally applicable, and always,
where the two suits are virtually alike, and in the same
jurisdiction. . . . The policy behind the doctrine is to
prevent unnecessary litigation that places a burden on
crowded court dockets. . . .
‘‘[T]he trial court must determine in the first instance
whether the two actions are: (1) exactly alike, i.e., for
the same matter, cause and thing, or seeking the same
remedy, and in the same jurisdiction; (2) virtually alike,
i.e., brought to adjudicate the same underlying rights
of the parties, but perhaps seeking different remedies;
or (3) insufficiently similar to warrant the doctrine’s
application. In order to determine whether the actions
are virtually alike, we must examine the pleadings . . .
to ascertain whether the actions are brought to adjudi-
cate the same underlying rights of the parties. . . . The
trial court’s conclusion on the similarities between the
cases is subject to our plenary review.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Kleinman v. Chapnick, 140 Conn. App. 500, 505,
59 A.3d 373 (2013).
In her objection to the plaintiff’s motion for a prejudg-
ment remedy, the defendant claimed that the present
case and the pending summary process case involved
the same parties and concerned the same issue, that
of use and occupancy payments.2 The court rejected her
claim and determined that ‘‘[t]he prior pending action
doctrine might apply if the defendant conceded that the
purchaser could collect the amounts covering January
through October in that case. But . . . § 46a-27b pro-
hibits the plaintiff from ordering retroactive use and
occupancy payments, so it can’t be done there.’’
In this unjust enrichment action, the plaintiff sought
security for and ultimately a judgment for use and occu-
pancy from the date of taking title to the premises to
the date that the court ordered use and occupancy
payments under the summary process statute. In short,
these are two different claims. The plaintiff could not
recover the amount sought between January and Octo-
ber, 2017, in the summary process action. There was,
therefore, a necessity for bringing this second action.
This action and the summary process action are not
virtually alike. We, therefore, reject the defendant’s
claim that the prior pending action doctrine war-
ranted dismissal.
III
The defendant last claims that the court improperly
failed to conclude that the doctrines of res judicata and
collateral estoppel barred the court from granting the
plaintiff’s application for a prejudgment remedy. We
reject this claim.
‘‘The applicability of the doctrines of res judicata
and collateral estoppel presents a question of law over
which our review . . . is plenary. . . . Claim preclu-
sion (res judicata) and issue preclusion (collateral
estoppel) have been described as related ideas on a
continuum. . . . The doctrine of res judicata holds that
an existing final judgment rendered upon the merits
without fraud or collusion, by a court of competent
jurisdiction, is conclusive of causes of action and of
facts or issues thereby litigated as to the parties and
their privies in all other actions in the same or any
other judicial tribunal of concurrent jurisdiction. . . .
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 neces-
sarily determined in a prior action between the same
parties upon a different claim.’’ (Citations omitted;
internal quotation marks omitted.) State v. Bacon Con-
struction Co., 160 Conn. App. 75, 85–86, 124 A.3d 941,
cert. denied, 319 Conn. 953, 125 A.3d 532 (2015).
In this case, the court determined that ‘‘it is undis-
puted that there is no final judgment in the summary
process case and . . . the doctrines of res judicata and
collateral estoppel only spring from a final judgment.’’
As the court stated and as we have previously pointed
out in part I of this opinion, the claims the plaintiff
made in this lawsuit were not litigated in the summary
process action because the summary process statute
did not permit them to be brought for retroactive use
and occupancy payments.
The hearing on an application for a prejudgment rem-
edy requires the court to determine whether there is
probable cause to sustain the validity of the plaintiff’s
claim, not to conduct a full scale trial on the merits of
the plaintiff’s claim.3 See New England Land Co., Ltd.
v. DeMarkey, 213 Conn. 612, 619–20, 569 A.2d 1098
(1990). Res judicata bars relitigation of such judgments
or matters that could have been litigated in the prior
action. ‘‘[C]laim preclusion prevents a litigant from reas-
serting a claim that has already been decided on the
merits.’’ (Internal quotation marks omitted.) LaSalla v.
Doctor’s Associates, Inc., 278 Conn. 578, 590, 898 A.2d
803 (2006). Collateral estoppel also cannot be invoked
to bar a claim unless the same issue was fully and
finally litigated to a final judgment. See State v. Bacon
Construction Co., 300 Conn. 476, 484–85, 15 A.3d 147
(2011) (ruling precluding collateral estoppel defense to
application of prejudgment remedy not appealable prior
to final ruling on application itself). Accordingly, we
conclude that the court properly rejected the defen-
dant’s claim that the doctrines of res judicata and collat-
eral estoppel require dismissal of the plaintiff’s
application for a prejudgment remedy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant challenges the deed issued as a result of the tax sale in
a separate legal action pending in the Hartford Superior Court.
2
We note that ‘‘a motion to dismiss is the proper vehicle to raise the issue
of a prior pending action . . . .’’ Bayer v. Showmotion, Inc., 292 Conn. 381,
403, 973 A.2d 1229 (2009).
3
We note, however, that ‘‘[p]ursuant to General Statutes § 52-278l (a), the
granting of a prejudgment remedy is a final judgment for purposes of appeal.’’
Kendall v. Amster, 108 Conn. App. 319, 324 n.8, 948 A.2d 1041 (2008).