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Micek-Holt v. Papageorge

Court of Appeals of Connecticut

March 27, 2018


          Argued January 16

         Procedural History

         Action, in the first case, for, inter alia, breach of contract, and for other relief, and action, in the second case, for breach of contract, and for other relief, brought to the Superior Court in the judicial district of Windham at Putnam, where the named defendant et al. in the first case filed a counterclaim; thereafter, the court, Calmar, J., granted the motion to consolidate filed by the defendants in the first case; subsequently, the matters were tried to the court, Boland, J.; thereafter, the complaint in the second case was withdrawn in part; subsequently, the court, Boland, J., granted the motions to dismiss filed by the defendant Jamie Davis et al. in the second case; judgments for the plaintiff in the first case on the complaint and counterclaim, and for the named defendant in the second case, from which the named defendant et al. in the first case and the plaintiff in the second case appealed to this court; thereafter, the court, Boland, J., issued an articulation of its decision. Affirmed.

          Mathew Olkin, for the appellants (named defendant et al. in the first case, plaintiff in the second case).

          Beth A. Steele, for the appellee (plaintiff in the first case, named defendant in the second case).

          Sheldon, Elgo and Eveleigh, Js.


          PER CURIAM.

         This appeal arises from two cases, which were consolidated for trial, involving a contract for the purchase of certain real property located in Thompson. Mary Papageorge and George Papageorge appeal from the judgments of the trial court, rendered after a court trial, in favor of Andrea Micek-Holt, executrix of the estate of Edward W. Micek. We affirm the judgments of the trial court.

         In 2010, the plaintiff's decedent entered into a lease agreement with Kalami Corporation, which was owned by the family of Mary and George Papageorge (Papa-georges). Pursuant to the lease agreement, the Papa-georges, along with their two children, were permitted to rent a home owned by the plaintiff's decedent. The term of the lease ran from August 1, 2010 to September 1, 2011. The plaintiff's decedent and Mary Papageorge also executed a purchase and sale agreement, pursuant to which Mary Papageorge agreed to purchase the home once the term of the lease had expired. A closing was scheduled for August 31, 2011. The closing never occurred, yet the Papageorges continued to reside in the subject property.

         On October 28, 2014, Micek-Holt, as executrix of the estate of Edward W. Micek, commenced one of the two underlying actions.[1] See Micek-Holt v. Papageorge, Superior Court, judicial district of Windham at Putnam, Docket No. CV-14-6008881-S (September 26, 2016) (first action). Micek-Holt pleaded seven claims in her complaint sounding in breach of contract, unjust enrichment, declaratory judgment, quiet title, foreclosure of equitable title, enforcement of the purchase and sale agreement, and eviction. On December 18, 2014, the Papageorges, along with Angelina Papageorge, filed an answer, special defenses and a counterclaim directed to Micek-Holt, both individually and in her capacity as the executrix of her decedent's estate.

         On August 25, 2015, Mary Papageorge commenced the second of the two underlying consolidated actions. See Papageorge v. Micek-Holt, Superior Court, judicial district of Windham at Putnam, Docket No. CV-15-5006173-S (September 26, 2016) (second action). Mary Papageorge raised six counts in her complaint sounding in breach of contract, fraud, unjust enrichment, abuse of process, intentional infliction of emotional distress and negligent infliction of emotional distress. The claims were directed to Micek-Holt in her individual capacity, in her capacity as executrix of her decedent's estate, and in her capacity as a beneficiary of her decedent's estate.[2] As relief, Mary Papageorge sought $5.5 million in damages, a determination that she was the equitable owner of the subject property, and an order requiring Micek-Holt to convey legal title to the subject property to her without contingencies and without a mortgage. On March 23, 2016, Micek-Holt, in all of her capacities, filed an answer and special defenses.

         On August 1, 2016, the first action filed by Micek-Holt and the second action filed by Mary Papageorge were consolidated. Over the course of two days, the consolidated cases were tried to the court.

         On September 26, 2016, the trial court issued a memorandum of decision rendering judgments in Micek-Holt's favor on all counts in her complaint and on all counts in the Papageorges' counterclaim in the first action, and in Micek-Holt's favor on all counts in Mary Papageorge's complaint in the second action. By way of relief, the court ordered the parties to meet for a closing on October 24, 2016, at which, inter alia: (1) Micek-Holt would convey to Mary Papageorge legal title to the property; (2) Mary Papageorge would convey a check to Micek-Holt in the amount of $78, 336.40; and (3) Mary Papageorge would deliver to Micek-Holt a note secured by a mortgage. In addition, the court ordered Mary Papageorge to pay Micek-Holt the sum of $17, 401.50, to reimburse her for taxes that Micek-Holt had paid for her on the subject property, plus attorney's fees. The court further ordered that, if the closing did not occur as ordered, then, inter alia: (1) the Papa-georges would either have to vacate the property by October 26, 2016, or be required to pay $150 in daily use and occupancy payments and be subject to the execution of an eviction order; (2) Mary Papageorge's interest in the property would be extinguished; and (3) a judgment quieting title in favor of Micek-Holt would enter. On September 29, 2016, the Papageorges appealed.[3]

         On appeal, the Papageorges challenge the trial court's decision on several grounds. After examination of the record on appeal and the parties' briefs and arguments, we conclude that the judgments of the trial court should be affirmed. Because the trial court thoroughly addressed the arguments raised in this appeal, we adopt its well reasoned decision as a statement of the facts and the applicable law on the issues. See Micek-Holt v. Papageorge, Superior Court, judicial district of Wind-ham at Putnam, Docket No. CV-14-6008881-S (September 26, 2016), and Papageorge v. Micek-Holt, Superior Court, judicial district of Windham at Putnam, Docket No. CV-15-5006173-S (September 26, 2016) (reprinted at 180 Conn.App. 545). Any further discussion by this court would serve nouseful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010); Brander v. Stoddard, 173 Conn.App. 730, 732, 164 A.3d 889, cert. denied, 327 Conn. 928, 171 A.3d 456 (2017).

         The judgments are affirmed.








         Superior Court, Judicial District of Windham at Putnam File Nos. CV-14-6008881-S and CV-15-5006173-S

         Memorandum filed September 26, 2016


         Memorandum of decision in actions for, inter alia, breach of contract. Judgments for the plaintiff in the first case and for the named defendant et al. in the second case.


          BOLAND, J.

         Over a period of two days, this court tried these two matters, which involve conflicting claims of the same parties. These pending suits are actually numbers three and four between them, having been preceded by a2011 summary process action in the Superior Court, geographical area number eleven, captioned, ‘‘Edward Micek v. George Papageorge, '' Docket No. 11-8151. That case went to judgment, the terms of which have a bearing upon the matters before me, as will be discussed below. Edward Micek filed a later action of the same nature in the same venue, and with the same caption, bearing Docket No. 11-9324, but he died during its pendency and it was dismissed for inactivity. Given the lengthy and increasingly acrimonious tone of this dispute, it is the intent of this jurist that this decision resolve all the issues outstanding between these parties so as to obviate the need for any later lawsuits.



         At the heart of the parties' dispute is a single-family home located at 361 Thompson Road in the town of Thompson. The home was built almost two hundred years ago, but photographs submitted depict it as a stately residence in overall good condition. At all relevant times until his death in 2014, Edward Micek was the land-record owner of the home. Andrea Micek-Holt is his daughter and the executrix of his estate. The decedent resided at 366 Thompson Road, immediately across the street from number 361. His daughter resides there today.

         At some point in 2010, the decedent decided to sell number 361. He was acquainted with Mary Papageorge and George Papageorge, a married couple, as they owned a business which supplied his premises with heating oil. The deal which ensued from their negotiations provided that the Papageorges would take occupancy under a lease from Augustof2010 through August 31, 2011. At the same time, they entered into a contract of purchase and sale. Only Ms. Papageorge was named as a buyer. That contract provided for a closing at the end of the lease term. The lease specifically incorporates the provisions of that contract, even though, oddly, certain of their provisions are contradictory.

         In addition to Mary and George, two of their children also occupied the home. One of them, Angelina, is now an adult and remains a resident. Named as a defendant in the 2014 case, she has appeared but has not asserted any separate defenses onher own behalf. She has joined her parents as a counterclaim plaintiff on two of their counts. She did not attend the trial. The orders which are set forth below are applicable to her to the same extent as to her parents.

         Under the lease, the actual lessee was Kalami Corporation, an entity named as an additional defendant in the 2014 case. Ms. Papageorge testified that the corporation was owned by her family and engaged in real estate holdings. The corporation was a party only to the lease, and not to the sales agreement. Like Angelina, the corporation has appeared and has not asserted any separate defenses on its own behalf. Also, it has not asserted any additional claims on its behalf.

         The difficulties outlined below commenced in mid-August of 2011, a few weeks preceding the anticipated closing date.


         Micek-Holt Claims

         Alleging that by means of a variety of ruses and subterfuges the Papageorges have frustrated every reasonable effort to complete the title conveyance and pay the agreed upon consideration, Ms. Micek-Holt sues on behalf of the estate in seven counts. These include claims for (1) breach of contract; (2) unjust enrichment; (4) to quiet title; (5) to foreclose defendants' equitable claims to the property; (6) to specifically enforce the terms of the 2010 contract; and (7) to evict them. Her third count seeks a declaratory judgment in terms generally tracking the material in the other six counts.

         The Papageorges deny all material allegations of each count. They also plead seven separate special defenses. Two of these can be disposed of summarily. Number six asserts that the complaint should be dismissed in its entirety, as plaintiff has failed to allege any facts or assert any legal basis upon which relief can be granted. This is an improper special defense, and it is contradictory to the findings this court sets forth below. Number seven of the Papageorge special defenses asserts that Kalami Corporation was dissolved and therefore no legal claims may be asserted against it. Whether true or not, this pleading is one Ms. Papageorge, who is not an attorney, is not permitted to make on behalf of this corporation. As indicated above, the court views the corporation as playing no role in this trial. The remaining special defenses will be discussed more fully momentarily.


         Papageorge Claims

         In the 2014 action, Mary Papageorge filed on her own behalf claims for breach of contract, fraud, unjust enrichment, and abuse of process against Ms. Micek-Holt both individually and as a representative of her father's estate. Both George and Angelina join her in asserting additional claims for intentional and negligent infliction of emotional distress. The relief she seeks is an order that the estate convey title to 361 Thompson Road to her without further payment by her, and dam- ages of $2, 500, 000.

         In the 2015 action, Ms. Papageorge is the sole plaintiff, in six counts which are essentially restatements of the material just described.[1] In each count she sues Ms. Micek-Holt in each of her two capacities. She seeks, again, a conveyance of clear title, but her demand for damages has risen to $5, 500, 000.

         Ms. Micek-Holt, individually and in her representative capacity, denies all claims. In addition, she sets forth a series of special defenses, including unclean hands, fraud, waiver, reliance upon advice of counsel, failure to meet statutory limits for making these claims, a defense relating to her status as a defendant, and to any claims on the lease, as the lessee, Kalami Corporation, has been dissolved with no apparent successor to its interests.



         The parties stipulated to the following facts:

         1. On August 15, 2010, Edward W. Micek was the owner of property known as 361 Thompson Road, Thompson, Connecticut.

         2. On that date, he entered into a written lease with Kalami Corporation for the use and occupancy of 361 Thompson Road, Thompson, CT. The lease term was from August 1, 2010, to September 1, 2011. The lease provided that the Papageorges and their two children would occupy the property.

         3. Simultaneously with that lease, he entered into a purchase and sale agreement for that property with Mary Papageorge. The agreement called for a closing on August 31, 2011.

         4. Such closing never occurred.

         5. Micek filed a summary process action, which resulted in an April 15, 2013 judgment by the Honorable Leeland J. Cole-Chu.

         They stipulated also that they have been unable to agree upon the extent of the res judicata and, or, collateral estoppel effect of that decision.




         Findings and Orders of the Court

         This court has carefully scrutinized Judge Cole-Chu's decision. It followed a trial of several days duration in January of 2013, and it makes apparent that the parties had the opportunity to air all of the grievances they held against each other at that time.

         The court found that Kalami Corporation had fulfilled all of its obligations as tenant (or sublessor) under the one year lease. Also, it found that Mary Papageorge had been ready, able and willing to consummate the real estate closing on September 1, 2011.[2] What had impeded closing was an argument as to the amount of cash which the buyer would have to pay. The contract stated the purchase price to be $250, 000, and provided that it would be paid in the form of three deposits totaling $20, 000 plus a note from buyers to seller for $229, 000, with the note to be secured by a mortgage upon the subject premises. The $1000 discrepancy between the express purchase price and the payment schedule is in the original. In the 2013 trial, the parties differed as to how much the deposits actually totaled, and what credits and offsets buyer was entitled to in consideration of work done upon the premises. Judge Cole-Chu resolved their disputes as well as the addition error by crediting buyer with effective down payments exceeding $21, 000, thus recognizing $229, 000 as the proper amount remaining to be paid by the note. Given that finding, he ruled that aside from normal and customary closing adjustments, the buyer had to bring no additional cash to the closing.

         Additionally, he heard and adjudicated their claims as to the amount and value of the buyer's preclosing work. His decision refers specifically to her having remediated mold, replaced a water heater, sanded and varnished parts of the flooring, and removed approximately seven trees. He made no separate calculation of any offset attributable to this work. In that case, as in this one, she produced no evidence of the cost of any of that work. Also, the work could be viewed as an aspect of the purchase and sale agreement, which provided that the premises were to be conveyed as is, with any improvements the duty of the buyer.

         Beyond calculating the appropriate remainder of the purchase price, the decision also resolves an issue relating to Ms. Papageorge's status with respect to the subject property. Edward Micek had described her and the rest of her family as tenants. Instead, the court held, Ms. Papageorge became the equitable owner of the property when she entered into the purchase and sale agreement in August of 2010. This holding was consistent with precedent summarized just recently in Southport Congregational Church-United Church of Christ v. Hadley, 320 Conn. 103, 128 A.3d 478 (2016): ‘‘[e]quitable conversion is a settled principle under which a contract for the sale of land vests equitable title in the [buyer]. . . . Under the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor's lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser. . . . The vendor's interest thereafter in equity is in the unpaid purchase price, and is treated as personalty . . . while the purchaser's interest is in the land and is treated as realty.'' (Citation omitted; internal quotation marks omitted.) Id., 111.

         Neither party filed any appeal of that judgment.


         Impact of that Decision upon Present Cases

         Ms. Papageorge pleads res judicata as a special defense applicable to Ms. Micek-Holt's counts sounding in breach of contract and for possession of the property. Via a pretrial motion in limine as well as in a motion for summary judgment[3] filed two days before trial, she claimed that the 2013 ...

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