188 Conn. App. 714
Conn. App. Ct.2019Background
- A1Z7, LLC purchased real property at 802 Meadowview Drive at a tax sale; Kimberly Dombek was the prior owner and remained in possession.
- A1Z7 filed a summary process action and moved for use and occupancy payments; the Housing Court ordered prospective payments beginning October 10, 2017.
- The tax deed to A1Z7 was recorded January 24, 2017; no use and occupancy was ordered retroactively for January–October 2017 in the summary process action.
- A1Z7 separately filed an unjust enrichment action and an application for a prejudgment remedy seeking recovery and security for the reasonable value of occupancy from the date of title (Jan 24, 2017) through October 9, 2017.
- The trial court granted the prejudgment remedy (~$13,500); Dombek appealed, arguing the summary process statute (§ 47a-26b) is exclusive and that the claim was barred by prior pending action doctrine, res judicata, and collateral estoppel.
- The Appellate Court affirmed, concluding § 47a-26b does not preclude common-law unjust enrichment claims for retroactive occupancy, and preclusion doctrines did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 47a-26b precludes recovery of retroactive use and occupancy through a separate unjust enrichment action | A1Z7: § 47a-26b does not expressly bar common-law remedies; unjust enrichment can compensate for pre-order occupancy value | Dombek: Use and occupancy is available only via summary process; statute is the exclusive remedy | Held: § 47a-26b contains no exclusivity language; unjust enrichment for retroactive occupancy is available and does not frustrate statute's purpose |
| Whether the prior pending action doctrine requires dismissal of the unjust enrichment action | A1Z7: Summary process cannot provide retroactive relief; different claim necessitates separate action | Dombek: Two actions involve same parties and same subject (use and occupancy), so second action should be dismissed | Held: Actions are not virtually alike; summary process could not award retroactive relief, so prior pending doctrine does not bar the unjust enrichment claim |
| Whether res judicata bars the prejudgment remedy because of the summary process action | A1Z7: No final judgment on these retroactive claims existed in the summary process case | Dombek: Claims could have been litigated and are effectively the same, so claim preclusion applies | Held: No final judgment existed and the retroactive claim was not litigable in the summary process action; res judicata does not apply |
| Whether collateral estoppel prevents the prejudgment remedy | A1Z7: Issues were not actually litigated and decided previously | Dombek: Issues overlap and were before the court already | Held: Collateral estoppel requires an issue actually and necessarily decided by a final judgment; that did not occur, so estoppel does not apply |
Key Cases Cited
- Feldmann v. Sebastian, 261 Conn. 721 (discussing standard of review for prejudgment remedy)
- Caciopoli v. Lebowitz, 309 Conn. 62 (statutory abrogation of common-law remedies and exclusivity analysis)
- Kleinman v. Chapnick, 140 Conn. App. 500 (prior pending action doctrine framework)
- Solomon v. Aberman, 196 Conn. 359 (doctrine allowing dismissal when two suits are virtually alike)
- New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612 (prejudgment remedy hearing scope — probable cause, not full merits trial)
- LaSalla v. Doctor’s Associates, Inc., 278 Conn. 578 (claim preclusion principles)
- State v. Bacon Construction Co., 300 Conn. 476 (collateral estoppel requires final judgment)
- Bayer v. Showmotion, Inc., 292 Conn. 381 (motion to dismiss is proper vehicle to raise prior pending action)
- Kendall v. Amster, 108 Conn. App. 319 (appealability of prejudgment remedy rulings)