January 7, 2019
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.
J. Williams, Jr., for the appellant (defendant).
L. Weiss, for the appellee (plaintiff).
Sheldon, Keller and Flynn, Js.
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.
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.
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. 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.
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.
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.
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 ...