Rissolo v. Betts Island Oyster Farms, LLC

979 A.2d 534

117 Conn.App. 344

Alexander J. RISSOLO, Jr. v. BETTS ISLAND OYSTER FARMS, LLC, et al.

Frederick A. Lovejoy v. Alexander J. Rissolo, Jr.

No. 29785.

No. 30346.

Appellate Court of Connecticut.

Argued May 21, 2009.

Decided September 29, 2009.

Frederick A. Lovejoy, pro se, the appellant (substitute defendant in the first case, plaintiff in the second case).

John A. Milici, with whom, on the brief, was Donald F. Reid, Norwalk, for the appellee (plaintiff in the first case, defendant in the second case).

DiPENTIMA, ALVORD and PELLEGRINO, Js.

PELLEGRINO, J.

This is an appeal from two matters, Rissolo v. Betts Island Oyster Farms, LLC, and Lovejoy v. Rissolo, formally consolidated by motion on the second day of trial on November 28, 2007.¹ Both cases are essentially partition actions, with the Lovejoy case seeking additional relief in a count for damages for a breach of contract. The trial court ordered a partition by sale and awarded damages to Frederick A. Lovejoy, the substitute defendant in the first case and the plaintiff in the second case, from which he now appeals. We find that the trial court was not in error as claimed by Lovejoy and affirm the trial court's judgments.

The undisputed facts are that Lovejoy and Alexander J. Rissolo, Jr., the plaintiff in the first case and the defendant in the second case, are owners as tenants in common of a small triangular island located in Norwalk Harbor, in Norwalk. The island is just over one acre in size, and there exists on it two sheds and a cottage without electricity, water or a septic system. The disputed facts concerned the value of the work performed by or at the behest of Lovejoy for the maintenance and improvement of the property and for the tax benefit that the property realized through his efforts.

The court found that the physical attributes of the parcel of land in dispute made the division of it impractical and inequitable and, therefore, ordered a partition by sale. The court found that although the parties had agreed to a fifty-fifty split on the cost of improvements, a fair allocation of the sale proceeds would be 55 percent to Lovejoy and 45 percent to Rissolo to account for the improvements provided by Lovejoy. Additionally, the court determined that Lovejoy was entitled to damages in the amount of $15,350.27 for taxes averted through his efforts. The court found that no agreement existed between the parties that Rissolo would not sell his one-half interest for ten years. Lovejoy has appealed from all of the court's orders.

I

On appeal, Lovejoy claims that the court improperly ruled with regard to all of its partition orders. Specifically, Lovejoy claims that the court improperly (1) ordered a partition by sale, (2) ordered a partition by sale of the entire island instead of only Rissolo's one-half interest, (3) ordered the partition by sale to be conducted via a real estate broker, (4) determined the percentages to be distributed to each party upon receiving the proceeds from the sale without knowing the sales price of the island and (5) awarded Lovejoy an additional 5 percent of the sale proceeds as his damages without considering the present day values of the renovation costs for work he performed on the island. We are not persuaded.

We start with our standard of review. "The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become[s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afford[s] to every owner with another relief by way of partition . . . . Fernandes v. Rodriguez, 255 Conn. 47, 55-56, 761 A.2d 1283 (2000); see also 7 R. Powell, Real Property (2005) § 50.07[3][a] (right to partition is an inherent element of the tenancy in common, designed to prevent a forced continuation of shared ownership of property). To effectuate the foregoing principle, [General Statutes §] 52-495 gives discretionary authority to courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common. . . . An action for partition at common law was equitable in nature, requiring courts to examine all relevant circumstances. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Eisenberg v. Tuchman, 94 Conn. App. 364, 375-76, 892 A.2d 1016, cert. denied, 278 Conn. 909, 899 A.2d 36 (2006). Accordingly, our review of a court's partition orders is to determine whether the court abused its discretion.

"In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court's exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . . The court's judgment will be interfered with only where the partition has been made on wrong principles, or where a clear mistake has been made, or where there is great and evident unfairness or inequality in the division. In other words, substantial injustice or inequality must clearly appear, and it must be more than can be fairly accounted for by mere difference of judgment or opinion. 68 C.J.S. 123, Partition § 137(b) (1998)." (Citation omitted; internal quotation marks omitted.) Eisenberg v. Tuchman, supra, 94 Conn.App. at 376, 892 A.2d 1016. With this standard in mind, we now turn to each of Lovejoy's claims with regard to the court's partition orders.

A

We first address Lovejoy's claims that (1) the court improperly ordered a partition by sale, (2) the partition by sale should have been limited only to Rissolo's one-half interest in the island and (3) the court improperly ordered a public sale via a real estate broker. In Fernandes v. Rodriguez, supra, 255 Conn. at 47, 761 A.2d 1283, our Supreme Court addressed the trial court's authority in a partition matter. The court held that "in a partition action, one joint tenant or tenant in common cannot dispossess another except by partition in kind or partition by sale." (Emphasis in original.) Id., at 54-55, 761 A.2d 1283. Further, the court stated that "[a] court is limited to rendering a judgment of either partition in kind or by sale of the real property . . . thus terminating the ownership relationship between the parties . . . and a court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will." (Citations omitted; internal quotation marks omitted.) Id., at 57-58, 761 A.2d 1283. Accordingly, in light of Fernandes, the court did not have the authority to order anything short of a full partition by sale or a partition in kind and, therefore, did not abuse its discretion when it did not order a partition by sale of only a one-half interest in the island.

In the present matter, the court found that the island is a triangular shape and just a little over one acre in size. On the island are two sheds and a cottage, but there is no electricity, running water, septic system, cable or telephone system. The island also has an erosion problem, and the only access to the island is by boat. Further, the court found that the relationship between the parties has deteriorated. "[I]n a partition action, the trial court must first consider the practicability of physically partitioning the property in question. If the trial court determines that, based upon the situation and location of the property, the size and area of the property, the physical structure and appurtenances on the property, and other factors, a physical partition of the property would not be feasible, it may then order a partition by sale." Id., at 59, 761 A.2d 1283. On the basis of the court's findings regarding the size of the island, the amenities of the island and the relationship of the parties, we conclude that the court did not abuse its discretion when it ordered a partition by sale.

In addition, Lovejoy claims that the court abused its discretion when it ordered the sale to be handled by a private real estate broker. Our review of the record reveals that the court ordered initially that a private sale be held, allowing either party to buy the other party's interest. The court ordered that after the appraisal had been submitted, "either side [would] have the right, but not the obligation, to buy out the other side and close within sixty days of the acceptance of the appraisal by the court." Lovejoy's argument, therefore, that the court improperly ordered a public sale by a real estate broker is misplaced. He, first, was given the option to purchase the property at a private sale between the parties. It was within the discretion of the court, thereafter, to order a public sale should the parties not come to an agreement with regard to a private sale of the island. "The policy expressed in [the presumption that partition in kind is in the best interests of the owners] seems to support a court's having discretion to order a private sale after determining that partition [in kind] is not feasible. That is because a private sale, rather than a public sale, is closer in character to a partition in kind because it gives the current owners a better chance of retaining their property, which may have value to them beyond mere economics.

"Although a judicially ordered sale generally results in a public auction, there is authority from other jurisdictions that if ...