Cavanagh v. Richichi

Willis Cavanagh v. Joseph Richichi, Co-Trustee et al

No. FSTCV116009029S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

September 5, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Donna Nelson Heller, J.

The plaintiff Willis Cavanagh, also known as Willis Cavanaugh (Mr. Cavanagh), commenced this action, returnable April 26 2011, for the partition by sale of the real property located at 120 Water Street in Norwalk, Connecticut (the Water Street property), in which he holds an undivided one-third interest. The original defendants were the other co-owners of the Water Street property: Joseph Richichi (Mr. Richichi) and Leslie Miklovich (Ms. Miklovich), in their capacity as the co-trustees of the Hillard E. Bloom Revocable Trust (the Hillard Bloom Trust); Robert Bloom (Mr. Bloom) and John Gardella (Mr. Gardella), in their capacity as the co-trustees of the Norman R. Bloom Revocable Trust (the Norman Bloom Trust); and New NRB #3 Corporation (New NRB).

On June 23, 2013, Mr. Richichi and Ms. Miklovich, as co-trustees of the Hillard Bloom Trust, filed an answer to the complaint (#106.00). In their answer, they agree with Mr. Cavanagh that a partition by sale, with an equitable distribution of the proceeds, would better serve the interests of the co-owners than a partition in kind.

Mr Bloom, as co-trustee of the Norman Bloom Trust, and New NRB filed an answer, counterclaim, and cross claim on July 8 2013 (#107.00). In their counterclaim, they contend that a physical division of the Water Street property is not appropriate and a partition by sale would not be in the best interests of the owners. They allege that Mr. Cavanagh's interest in the Water Street property is minimal, and therefore, they are entitled to an order requiring Mr. Cavanagh to convey his interest to them in exchange for fair compensation. They also assert the right to set off against any fair compensation due to Mr. Cavanagh the amounts that they have spent for the upkeep, maintenance, and improvement of the Water Street property. Mr. Bloom, as co-trustee of the Norman Bloom Trust, and New NRB assert the same claims against Mr. Richichi and Ms. Miklovich, as co-trustees of the Hillard Bloom Trust, in their cross claim.

Mr. Cavanagh filed an answer with special defenses to the counterclaim on May 16, 2014 (#108.00). Mr. Bloom, as co-trustee of the Norman Bloom Trust, and New NRB filed a request to revise the special defenses on June 27, 2014 (#110.00).

Patrick D. McCabe (Mr. McCabe) succeeded Mr. Richichi as a co-trustee of the Hillard Bloom Trust following Mr. Richichi's death. On August 26, 2015, Mr. Cavanagh moved to substitute Mr. McCabe, as a successor co-trustee of the Hillard Bloom Trust, and to cite in Mr. Gardella, as co-trustee of the Norman Bloom Trust--who, although named as a defendant in the original summons and complaint, had not been effectively served with process--as defendants in this action (#121.00; #122.00). The court (Mintz, J.) granted both motions on September 29, 2015 (#121.01; #122.01).

Mr. Cavanagh submitted an amended complaint reflecting the interests of Mr. McCabe, as successor co-trustee of the Hillard Bloom Trust, and Mr. Gardella, as co-trustee of the Norman Bloom Trust, on August 26, 2015 (#123.00). On October 15, 2015, he filed the amended complaint, returnable November 3, 2015, as served (#125.00). The amended complaint is identical to the original complaint except as to the named parties.

Mr. Cavanagh filed revised special defenses to the counterclaim of Mr. Bloom and New NRB on August 16, 2016 (#137.00). The revised special defenses are enumerated First Special Defense to Eighth Special Defense and respond to the set-off claim asserted by Mr. Bloom, as co-trustee of the Norman Bloom Trust, and New NRB.

On August 17, 2016, Mr. Gardella, as co-trustee of the Norman Bloom Trust, and New NRB filed an answer, counterclaim, and cross claim (#138.00) that mirrors the allegations in the answer, counterclaim, and cross claim filed by Mr. Bloom, as co-trustee of the Norman Bloom Trust, and New NRB on July 8, 2013. Also on August 17, 2016, Mr. Bloom and Mr. Gardella, as the co-trustees of the Norman Bloom Trust co-trustees (the Norman Bloom Trust co-trustees), and New NRB replied to Mr. Cavanagh's revised special defenses (#139.00), and Mr. Cavanagh filed an answer to the counterclaim of Mr. Gardella, as co-trustee of the Norman Bloom Trust, and New NRB (#141.00).

Mr. McCabe and Ms. Miklovich, as the co-trustees of the Hillard Bloom Trust (the Hillard Bloom Trust co-trustees) filed an answer with special defenses to the cross claim of Mr. Bloom, as co-trustee of the Norman Bloom Trust, and New NRB on August 17, 2016 (#140.00), which they withdrew and replaced with an answer and special defenses to both the cross claim of Mr. Bloom, as co-trustee of the Norman Bloom Trust, and New NRB and the cross claim of Mr. Gardella, as co-trustee of the Norman Bloom Trust, and New NRB on August 19, 2016 (#143.00). On August 25, 2016, the Norman Bloom Trust co-trustees and New NRB replied to the special defenses asserted by the Hillard Bloom Trust co-trustees (#144.00).

This action was tried to the court on August 17, 2016, September 1, 2016 and January 10, 2017. All parties were represented by counsel. The court heard testimony from the following witnesses: Mr. Bloom; Michael McGuire (Mr. McGuire) of the Austin McGuire Company, a real estate appraiser retained as an expert by Mr. Cavanagh; Ronald McInerney (Mr. McInerney) of Domus Appraisals, a real estate appraiser retained as an expert by the Norman Bloom Trust co-trustees and New NRB; and Gary Wetmore (Mr. Wetmore) of G& C Marine Services, Inc. The court reviewed the exhibits that were admitted into evidence and took judicial notice of the contents of the court file.

The court set a briefing schedule at the close of the evidence. The Norman Bloom Trust co-trustees and New NRB filed a post-trial memorandum on March 3, 2017 (#147.00). Mr. Cavanagh filed a post-trial memorandum on March 23, 2017 (#148.00). The Hillard Bloom Trust co-trustees filed a post-trial memorandum on March 24, 2017 (#149.00). The Norman Bloom Trust co-trustees and New NRB submitted a post-trial reply memorandum on April 10, 2017 (#151.00).

I

The Water Street property is a .70-acre waterfront property in the South Norwalk section of Norwalk. The property has approximately 70 feet of frontage on Water Street and 150 feet of frontage on Norwalk Harbor. It is a narrow, mostly level, rectangularly shaped lot. The land portion of the Water Street property comprises about 75 percent of the parcel; the remaining 25 percent extends into Norwalk Harbor. The Water Street property is improved with a small two-story building, a bulkhead, a boat lift, a sixty-foot dock, and a sixty-foot pier that extends into the harbor. It has seven boat slips and storage space for twenty to twenty-five boats. The Water Street property is located in the Norwalk Marine Commercial zone.

Mr Cavanagh owns an undivided one-third interest in the Water Street property. The Norman Bloom Trust co-trustees own an undivided one-sixth interest in the Water Street property. New NRB, an oyster and shellfishing company operated by Mr. Bloom under the trade name " Bloom Brothers, " owns an undivided one-third interest in the Water Street property. Mr. Bloom's wife is the president of New NRB, and Mr. Bloom is the vice president of the company. The Norman Bloom Trust owns 100 percent of the stock of New NRB. Mr. Bloom is a beneficiary of the Norman Bloom Trust.^[1] The Hillard Bloom Trust co-trustees own an undivided one-sixth interest in the Water Street property.

Mr. Bloom's father, Norman Bloom (Norman Bloom) and Ms. Miklovich's father, Hillard Bloom (Hillard Bloom) were twin brothers. They were in the commercial shellfishing business together. They also had other jointly-owned commercial ventures and real estate holdings.

Norman Bloom and Hillard Bloom acquired the Water Street property in late 1962 with an individual named Wallace Bell (Mr. Bell). In a 2002 quiet title action, the court (Lewis, J.T.R.) found that Mr. Cavanagh held a one-third ownership interest in the Water Street property by virtue of a resulting trust that was created in 1963, when Mr. Cavanagh contributed half of the down payment for the purchase of the Water Street property, and a 1993 deed from the three record owners of the property that was delivered and recorded ten years later. ^[2] Cavanaugh v. Richichi, Co-Executor et al., Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-02-0189366-S, (2005), aff'd, 100 Conn.App. 466, 918 A.2d 290 (2007) (the 2002 quiet title action). The court has taken judicial notice of the trial court's findings in the 2002 quiet title action.

Mr. Bell operated a boatyard on the Water Street property under the name " Bell's Boatyard" until the late 1970s. Mr. Cavanagh was a one-third partner in the boatyard. Norman Bloom and Hillard Bloom were not involved in the day-to-day operation of the boatyard. Their company, Tallmadge Brothers, Inc. (Tallmadge Brothers) eventually acquired Mr. Bell's one-third interest in the Water Street property.^[3]

While Bell's Boatyard was in operation on the Water Street property, a marine railway, with tracks extending from the land portion of the property onto the seabed, was used to haul boats out of the water. The marine railway failed in the late 1970s, and Bell's Boatyard shut down. The Water Street property was rented to Bud Dean, a woodworker, and then to Maurice Marine, a company that hauled and maintained small pleasure boats. Maurice Marine used a 1940s vintage crane that was located on the property to lift boats from the water. At some point, Maurice...