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LLC v. Dombek

Court of Appeals of Connecticut

March 26, 2019

A1Z7, LLC
v.
KIMBERLY DOMBEK

          Argued January 7, 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 application for a prejudgment remedy, and the defendant appealed to this court.

          Robert J. Williams, Jr., for the appellant (defendant).

          David L. Weiss, for the appellee (plaintiff).

          Sheldon, Keller and Flynn, Js.

          OPINION

          FLYNN, J.

         General Statutes § 47a-26b permits a property owner in a summary process action to seek the fair rental value of the premises occupied by a defendant during the pendency of a summary process action. The central issue in this case is whether § 47a-26b provides 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 premises occupied for a time period for which § 47a-26b would not permit an order of use and occupancy payments. 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 remedy 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 pending action doctrine is a bar, and (3) res judicata and collateral estoppel warranted dismissal of the application. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts are undisputed. The plaintiff purchased 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 dispossess the defendant from the premises due to the defendant'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 paymentsin accordance 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 January 24, 2017, when the tax collector's deed for the premises was recorded, through October 9, 2017, without making use and occupancy payments.

         The court granted the plaintiff's application, reasoning that probable cause had been established for payments 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 October, 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 necessarily 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 ...


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