Pollansky v. Pollansky ( 2016 )

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STEVEN POLLANSKY v. ANNA POLLANSKY ET AL.
(AC 36954)
Beach, Prescott and Bear, Js.
Argued September 25, 2015—officially released January 26, 2016
(Appeal from Superior Court, judicial district of
Hartford, Wahla, J.)
Robert F. Cohen, with whom, on the brief, was Forest
E. Green, for the appellant (plaintiff).
Wayne C. Gerlt, for the appellees (defendants).
Opinion
BEAR, J. This appeal is the latest skirmish in the
ongoing dispute between the plaintiff, Steven Pollansky,
and his mother, the defendant Anna Pollansky,1 con-
cerning the plaintiff’s claim of entitlement to real prop-
erty allegedly promised to him by his father, Andrew
Pollansky, many years ago. Anna Pollansky previously
had initiated a summary process action against the
plaintiff and his family seeking immediate possession
of three parcels of property located in Coventry, which
they occupied. The plaintiff’s primary claim in the sum-
mary process action, raised by way of special defense,
was that he occupied the Coventry property pursuant
to an ownership interest that was orally promised to
him by Andrew Pollansky. After a trial, the court in the
summary process action rendered judgment in favor of
Anna Pollansky, and this court affirmed that judgment.
See Pollansky v. Pollansky, 144 Conn. App. 188, 71 A.3d
1267 (2013).
The plaintiff subsequently instituted the present
action against the defendants. In a four count complaint
alleging breach of contract, unjust enrichment, quantum
meruit, and adverse possession, the plaintiff claimed
an ownership interest in the Coventry property, an own-
ership interest in his father’s investment property in
Mansfield, and money damages. The trial court ren-
dered summary judgment in favor of the defendants,
ruling that the doctrines of res judicata and collateral
estoppel precluded all of the causes of action and issues
raised by the plaintiff in the present case. On appeal,
the plaintiff asserts that the court improperly rendered
summary judgment because (1) his breach of contract
claim alleging his ownership interest was not litigated
in the summary process action, thereby precluding
application of the doctrine of res judicata; and (2) many
of the issues raised in his remaining counts for unjust
enrichment, quantum meruit, and adverse possession
were not fully and fairly litigated in the summary pro-
cess action, thereby precluding application of the doc-
trine of collateral estoppel. We reverse the judgment
of the trial court in favor of the defendants on the
plaintiff’s counts of unjust enrichment and quantum
meruit. We affirm the judgment in all other respects.
Many of the relevant facts and procedural history
were set forth by this court in Pollansky v. Pollansky,
supra, 144 Conn. App. 188. ‘‘In the 1960s, [Anna Pollan-
sky] and her late husband, Andrew Pollansky, jointly
purchased three adjoining parcels of land in Coventry,
totaling 84.5 acres . . . . Andrew Pollansky operated
a sand and gravel business on the [Coventry] property
until he retired in approximately 1992. The [plaintiff],
the son of Andrew Pollansky and [Anna Pollansky],
worked in his father’s gravel business on the [Coventry]
property from his teenage years until his father retired.
After Andrew Pollansky retired, he and [Anna Pollan-
sky] permitted the [plaintiff and his family] to access
the [Coventry] property for recreational purposes and,
as to the [plaintiff and his wife], for operation of their
businesses . . . . [Anna Pollansky] and Andrew Pol-
lansky gave the [plaintiff] permission to operate [his]
businesses on the [Coventry] property, but there were
no written agreements or leases to that effect. . . .
‘‘When Andrew Pollansky died in July, 2010, [Anna
Pollansky] became the sole owner of the [Coventry]
property. [Anna Pollansky], who was in her eighties at
the time of [the summary process] trial, wished to sell
or to rent the property to subsidize her income. [Anna
Pollansky] asked the [plaintiff] to pay rent for the use
of the [Coventry] property for [his] businesses, but the
parties had not been able to come to any agreement
on rent. As a result, [Anna Pollansky] asked the [plain-
tiff] to vacate the [Coventry] property so that she could
sell or rent it to obtain additional income, but the [plain-
tiff] refused to do so.
‘‘[Anna Pollansky] brought a summary process action
against the [plaintiff] seeking immediate possession of
the [Coventry] property. [Anna Pollansky] claimed that,
although the [plaintiff] once had the right and privilege
to occupy the [Coventry] property, that right or privilege
had terminated. The [plaintiff] alleged [the following as
a special defense]: that Andrew Pollansky had granted
[the plaintiff] an ownership interest in the [Coventry]
property . . . .
‘‘The court found that [Anna Pollansky] proved her
summary process action: that she was the owner of the
[Coventry] property, that she continued to permit the
[plaintiff] to operate a business on the [Coventry] prop-
erty after her husband’s death, that she terminated her
permission when she asked the [plaintiff] to vacate the
premises and served [him] with a valid notice to quit,
and that the [plaintiff] remained in possession. The
court found that the [plaintiff] had not proven [his]
special [defense]. The court entered a judgment of
immediate possession in favor of [Anna Pollansky].’’ Id.,
189–91. This court affirmed the trial court’s judgment in
the summary process action. See id., 189.
The following additional facts are relevant to our
consideration of the issues raised in this appeal. The
trial in the summary process action took place on Janu-
ary 6, 2012, and January 27, 2012. In his special defense
in the summary process action, the plaintiff alleged that
he occupied the Coventry property ‘‘pursuant to an
ownership interest in the premises granted by Andrew
Pollansky.’’ In support of this special defense, the plain-
tiff testified that Andrew Pollansky promised to convey
the Coventry property to him in exchange for services
and improvements to the Coventry property. The plain-
tiff testified as to a variety of services he had performed
over the years, including land clearing, grading, drain-
age, and business management services. He also testi-
fied that he had assisted his parents in a number of
legal proceedings related to the Coventry property,
including a tax foreclosure, a zoning application, and
litigation with an abutting landowner. The plaintiff testi-
fied that Andrew Pollansky indicated to him on a num-
ber of occasions throughout his life that he would not
have been able to keep the property if not for the plain-
tiff’s efforts. The plaintiff’s wife, Darby Pollansky, was
called as a witness as well. Darby Pollansky testified,
among other things, that Andrew Pollansky promised
the Coventry property to the plaintiff on many occa-
sions. Finally, the plaintiff testified at length as to his
services on the Mansfield property. Specifically, he tes-
tified that the house regularly had been damaged by
tenants, and that he had repaired the walls, painted,
and performed carpentry services. The plaintiff claimed
that he was never paid for any of his services. Anna
Pollansky testified that, to her knowledge, Andrew Pol-
lansky never promised the Coventry property to the
plaintiff, but she admitted that the plaintiff worked on
the Coventry property for thirty-six years. Additionally,
she testified that she had paid the plaintiff whenever
he did work at the Mansfield property.
The court, Cobb, J., found the following facts in the
summary process action. The plaintiff worked with
Andrew Pollansky on the Coventry property from his
teenage years until his father retired in 1992. The plain-
tiff, however, did not produce any written documents,
including letters, deeds, contracts, or testamentary doc-
uments promising or granting the plaintiff an interest
in the Coventry property. The only evidence adduced
by the plaintiff concerning his father’s promise to con-
vey the Coventry property was his and Darby Pollan-
sky’s self-serving and hearsay testimony, which the
court did not credit. Conversely, the court credited
Anna Pollansky’s testimony. Accordingly, it held that
the plaintiff’s father never promised to convey an own-
ership interest to the plaintiff, and it rendered judgment
of immediate possession in favor of Anna Pollansky.
The court did not make any findings or rulings concern-
ing the Mansfield property.
The plaintiff subsequently commenced the present
action against the defendants.2 In the breach of contract
count of the complaint, the plaintiff made the following
allegations. The plaintiff worked continuously and with-
out compensation for decades at Andrew Pollansky’s
business on the Coventry property. The plaintiff also
worked without compensation for decades at the Mans-
field property. The plaintiff performed services at and
made improvements to both of these properties pursu-
ant to an oral agreement with Andrew Pollansky,
whereby in consideration of his performance of these
services, his father would convey the properties to the
plaintiff. Notwithstanding the plaintiff’s many years of
performance, the defendants failed to convey the prop-
erties to him. The unjust enrichment count of the com-
plaint incorporated many of the allegations in the
breach of contract count and contained an additional
allegation that the defendants, as Andrew Pollansky’s
heirs, were unjustly enriched by the plaintiff’s uncom-
pensated services for the benefit of and his improve-
ments to the properties. The quantum meruit count
incorporated many of the allegations of the prior counts
and contained an additional allegation that the plaintiff
was entitled to the reasonable value of his services. In
the adverse possession count, the plaintiff alleged that
he had obtained title to the Coventry and Mansfield
properties by virtue of his ‘‘open, visible, notorious,
adverse, exclusive, continuous, [and] uninterrupted’’
use of these properties for more than fifteen years.
The defendants thereafter filed special defenses to the
breach of contract, unjust enrichment, and quantum
meruit counts of the plaintiff’s complaint, alleging, inter
alia, that the doctrines of res judicata and collateral
estoppel barred the plaintiff’s claims.3
In December, 2013, the defendants filed a motion
for summary judgment, asserting, inter alia, that the
doctrines of res judicata and collateral estoppel barred
all of the plaintiff’s claims. Specifically, and with respect
to the breach of contract count, the defendants asserted
that the plaintiff raised and litigated in the summary
process action the claim of his contractual right to an
ownership interest in the Coventry property. Conse-
quently, the defendants asserted that the plaintiff was
foreclosed from raising his alleged ownership interest
in the present case. The defendants also asserted that
the plaintiff’s claims for adverse possession, unjust
enrichment, and quantum meruit could have been
raised during the summary process action but were not,
which precluded him from raising them in the present
case. In his memorandum of law in opposition to the
defendants’ motion for summary judgment, the plaintiff
claimed that neither res judicata nor collateral estoppel
applied because the issues and claims in the two cases
were not identical. Specifically, the plaintiff argued that
(1) the inquiry in the summary process action was lim-
ited to who was entitled to possession, whereas in the
present case the plaintiff alleged legal and equitable
claims for title, and he sought damages representing
the value of his services for and improvements to the
Coventry property; (2) the money damages that the
plaintiff sought in the present case were not available
to the plaintiff in the summary process action, so they
could not be adjudicated in that action; and (3) the
burdens of proof differ in civil actions and summary
process actions.
The court, Wahla, J., on May 27, 2015, granted the
defendants’ motion for summary judgment. It con-
cluded that the plaintiff’s breach of contract claim was
precluded by the doctrine of res judicata, reasoning
that the summary process court had rendered a final
judgment on the merits on the same cause of action
and between the same parties in the summary process
action. The court, Wahla, J., also concluded that the
unjust enrichment, quantum meruit, and adverse pos-
session counts were barred by the doctrine of collateral
estoppel. Specifically, the court held that the plaintiff’s
allegations of services provided for and improvements
to the Coventry and Mansfield properties were actually
litigated in the summary process action. Further, the
court held that the plaintiff could have raised his
adverse possession claim in the summary process
action, and that the plaintiff could have raised unjust
enrichment and quantum meruit as equitable defenses
in that action. On these bases, the court ruled that all
of the plaintiff’s claims relating to both the Coventry
property and the Mansfield property were precluded.4
This appeal followed.
We begin with the applicable standard of review and
legal principles. ‘‘Practice Book § 17-49 provides that
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party moving for summary judgment has the burden of
showing . . . that the party is . . . entitled to judg-
ment as a matter of law. . . . Our review of the trial
court’s decision to grant the defendant’s motion for
summary judgment is plenary. . . . In addition, the
applicability of res judicata or collateral estoppel pre-
sents a question of law over which we employ plenary
review.’’ (Citation omitted; internal quotation marks
omitted.) Bruno v. Geller, 136 Conn. App. 707, 720, 46
A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
‘‘Claim preclusion (res judicata) and issue preclusion
(collateral estoppel) have been described as related
ideas on a continuum. [C]laim preclusion prevents a
litigant from reasserting a claim that has already been
decided on the merits. . . . [I]ssue preclusion . . .
prevents a party from relitigating an issue that has been
determined in a prior suit. . . .
‘‘Both doctrines protect the finality of judicial deter-
minations, conserve the time of the court, and prevent
wasteful relitigation . . . and express no more than
the fundamental principle that once a matter has been
fully and fairly litigated, and finally decided, it comes
to rest. . . .
‘‘Res judicata, or claim preclusion, is [however] dis-
tinguishable from collateral estoppel, or issue preclu-
sion. Under the doctrine of res judicata, a final
judgment, when rendered on the merits, is an absolute
bar to a subsequent action . . . between the same par-
ties or those in privity with them, upon the same claim.
. . . In contrast, collateral estoppel precludes a party
from relitigating issues and facts actually and necessar-
ily determined in an earlier proceeding between the
same parties or those in privity with them upon a differ-
ent claim.’’ (Internal quotation marks omitted.) Rocco
v. Garrison, 268 Conn. 541, 554–55, 848 A.2d 352 (2004).
I
BREACH OF CONTRACT
The plaintiff first claims that the court improperly
held that res judicata barred his breach of contract
cause of action against the defendants. Specifically, the
plaintiff claims that res judicata does not preclude his
claim of an ownership interest in the Coventry property
because the court declined to rule on this issue during
the summary process action. The plaintiff also claims
that this case does not involve the same parties and
privies as the summary process action. We conclude
that the court properly rendered summary judgment in
favor of Anna Pollansky on the ground of res judicata.
We also conclude that the court properly rendered sum-
mary judgment in favor of Joyce Chimbole and Judy
Richard, although we hold that collateral estoppel, and
not res judicata, precludes the plaintiff’s breach of con-
tract claim against them.
The plaintiff claims that his breach of contract claim
cannot be precluded because the court explicitly
declined to determine his ownership claim in the sum-
mary process action. The plaintiff cites to the following
colloquy between the court and the parties’ counsel
during the summary process trial:
‘‘The Court: . . . Does anyone disagree that I’m not
going to decide who gets the property in this lawsuit?
Do you disagree with me, Mr. [Wayne C.] Gerlt?
‘‘[The Defendants’ Counsel]: I do not disagree with
you.
‘‘The Court: Do you disagree with me, Mr. [Robert
F.] Cohen?
‘‘[The Plaintiff’s Counsel]: I don’t, Your Honor.’’
The plaintiff claims that on the basis of this exchange,
the court did not rule on his claimed ownership interest
in the Coventry property—which is at the heart of his
causes of action in the present case—and that res judi-
cata does not apply. We reject this claim because this
colloquy, when read in context, related to the ownership
of personalty, not the realty at issue in the present case.
The transcript of the summary process trial reflects
that during the plaintiff’s direct examination in his case-
in-chief, evidence was adduced concerning his contri-
butions to the acquisition and maintenance of equip-
ment used as part of Andrew Pollansky’s business at
the Coventry property. Eventually, Anna Pollansky’s
counsel objected. The following colloquy ensued
between the court and the plaintiff’s counsel:
‘‘The Court: Okay. My question is: With respect to
the equipment, this is a summary process action. The
question is, you know, do they get to stay or do they
have to go. What do the specifics of the property have
to do with it? I’m not deciding that, who gets what in
this case.
‘‘[The Plaintiff’s Counsel]: Your Honor, I’m only
responding to what was done on direct examination.
‘‘The Court: I know, that’s fine, but I’m telling—I don’t
know why we’re spending all our time on this because
I’m not going to decide in this case who gets that
property. I’m only going to decide who gets to stay and
who’s going. So, I just don’t know what the point of all
this is. I didn’t know what it was when I heard it the
first time. Does anyone disagree that I’m not going to
decide who gets the property in this lawsuit? Do you
disagree with me, Mr. Gerlt?
‘‘[The Defendants’ Counsel]: I do not disagree with
you.
‘‘The Court: Do you disagree with me, Mr. Cohen?
‘‘[The Plaintiff’s Counsel]: I don’t, Your Honor.’’
(Emphasis added.)
On the basis of the foregoing, the court clearly
declined to determine in the summary process action
the ownership of personal property located on the Cov-
entry property. In response to a series of questions
posed during oral argument to this court, the plaintiff’s
counsel conceded that (1) the summary process court’s
statements pertained only to personal property and (2)
he was unable to locate in the record any statement
from the court refusing to decide ownership of the real
property. After conducting our own thorough review
of the record, we are unable to find any evidence that
the court refused to rule on the plaintiff’s ownership
claims to the Coventry property. Indeed, the court ruled
that the plaintiff lacked an ownership interest when it
found that the plaintiff had failed to prove the allega-
tions of his special defense. Accordingly, we reject the
plaintiff’s contention that the court refused to deter-
mine the plaintiff’s alleged ownership interest.
We conclude that res judicata bars the plaintiff’s
breach of contract claims against Anna Pollansky. ‘‘The
doctrine of res judicata holds that an existing final judg-
ment rendered upon the merits without fraud or collu-
sion, by a court of competent jurisdiction, is conclusive
of causes of action and of facts or issues thereby liti-
gated as to the parties and their privies in all other
actions in the same or any other judicial tribunal of
concurrent jurisdiction. . . . If the same cause of
action is again sued on, the judgment is a bar with
respect to any claims relating to the cause of action
which were actually made or which might have been
made.’’ (Emphasis in original; internal quotation marks
omitted.) New England Estates, LLC v. Branford, 294
Conn. 817, 842, 988 A.2d 229 (2010).
In the breach of contract count of the complaint, the
plaintiff alleged that he entered into an oral agreement
with his father by which his father would convey real
property to him in consideration of his performance of
services at and improvements to those properties. This
claim also was raised by the plaintiff in the prior sum-
mary process action by way of his special defense. In
support of this claim, at the summary process trial, the
plaintiff testified about the services he performed and
the improvements he made to the properties, and about
his father’s oral promise to convey the real property to
him. The summary process court explicitly rejected this
claim in its memorandum of decision, noting that it did
not credit any of the plaintiff’s testimony. In light of
this evidence and the principles of res judicata, we hold
that the court in the present case properly rendered
summary judgment in favor of Anna Pollansky on the
ground of res judicata.
We also conclude that the court in the present case
properly rendered summary judgment in favor of Chim-
bole and Richard, albeit on different grounds. Although
the court disposed of the plaintiff’s contract claims
against Chimbole and Richard under the doctrine of
res judicata,5 we conclude that these claims are pre-
cluded by the doctrine of collateral estoppel. ‘‘The doc-
trines of collateral estoppel and res judicata are close
cousins, but they are not alternate expressions of the
same [principle].’’ Trinity United Methodist Church of
Springfield, Massachusetts v. Levesque, 88 Conn. App.
661, 671, 870 A.2d 1116, cert. denied, 274 Conn. 907,
908, 876 A.2d 1200 (2005). ‘‘Collateral estoppel, or issue
preclusion, prohibits the relitigation of an issue when
that issue was actually litigated and necessarily deter-
mined in a prior action. . . . For an issue to be subject
to collateral estoppel, it must have been fully and fairly
litigated in the first action. It also must have been actu-
ally decided and the decision must have been necessary
to the judgment.’’ (Internal quotation marks omitted.)
Id. ‘‘[C]ollateral estoppel precludes a party from reliti-
gating issues and facts actually and necessarily deter-
mined in an earlier proceeding between the same
parties or those in privity with them upon a different
claim. . . . If an issue has been determined, but the
judgment is not dependent upon the determination of
the issue, the parties may relitigate the issue in a subse-
quent action. . . . For collateral estoppel to apply, the
issue concerning which relitigation is sought to be
estopped must be identical to the issue decided in the
prior proceeding.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) State v. Joyner,
255 Conn. 477, 489–90, 774 A.2d 927 (2001).
In the breach of contract count of the complaint, the
plaintiff alleged that (1) his father orally promised to
convey the Coventry property to him in exchange for
his services, (2) he worked continuously and without
compensation for decades on the Coventry property,
and (3) the Coventry property had not been conveyed
to him. These precise issues were actually litigated in
the summary process action. ‘‘An issue is actually liti-
gated if it is properly raised in the pleadings or other-
wise, submitted for determination, and in fact
determined.’’ (Internal quotation marks omitted.) New
England Estates, LLC v. Branford, supra, 294 Conn.
839. The plaintiff raised the issue of his ownership inter-
est in his special defense in the summary process action,
alleging that he occupied the Coventry property ‘‘pursu-
ant to an ownership interest in the premises granted
by Andrew Pollansky.’’ The issue was submitted to the
summary process court for determination: immediately
before the plaintiff called his first witness at the sum-
mary process trial, the court read his special defense
on the record and asked, ‘‘[s]o, that’s the special defense
that you’re relying on. Right?’’ The plaintiff’s counsel
responded in the affirmative. During both his direct
and cross-examinations, the plaintiff testified about his
father’s promise to convey the Coventry property to
him. The plaintiff’s wife corroborated this testimony
during her direct examination. After considering all of
the evidence, the summary process court rejected the
plaintiff’s claim to an ownership interest in the Coven-
try property.
Furthermore, the court’s ruling denying the plaintiff’s
claim of ownership of the Coventry property was neces-
sary to its judgment. ‘‘An issue is necessarily determined
if, in the absence of a determination of the issue, the
judgment could not have been validly rendered.’’
(Emphasis omitted; internal quotation marks omitted.)
Carol Management Corp. v. Board of Tax Review, 228
Conn. 23, 32–33, 633 A.2d 1368 (1993). If the plaintiff
had an ownership interest sufficient to avoid the entry
of a summary process judgment against him, he could
not have been evicted from the Coventry property. The
court found that the plaintiff lacked such an ownership
interest in the Coventry property, explaining that the
plaintiff ‘‘did not provide any written documents,
including, letters, testamentary documents, deeds, [or]
contracts . . . .’’6 Indeed, the court did not credit the
evidence proffered by the plaintiff that Andrew Pollan-
sky on several occasions orally promised to convey the
Coventry property to the plaintiff.7
The plaintiff argues on appeal that his contract claim
is not precluded against Chimbole and Richard because
they were not parties to the summary process action.
We disagree. Mutuality of parties is not a bar to the
application of collateral estoppel in Connecticut. See
Torres v. Waterbury, 249 Conn. 110, 135–36, 733 A.2d
817 (1999) (‘‘The mutuality requirement has . . . been
widely abandoned as an ironclad rule. . . . We have
held that the [mutuality] rule will no longer operate
automatically to bar the use of collateral estoppel
. . . .’’ [Citations omitted; internal quotation marks
omitted.]); Aetna Casualty & Surety Co. v. Jones, 220
Conn. 285, 302, 596 A.2d 414 (1991) (‘‘To allow a party
who has fully and fairly litigated an issue at a prior trial
to avoid the force of a ruling against him simply because
he later finds himself faced by a different opponent is
inappropriate and unnecessary. First, the mutuality of
parties rule systematically diminishes the stability of
judgments. . . . The rule allows a single party to pre-
sent antithetic claims on identical issues in separate
actions and to obtain favorable decisions in both solely
because his opponent has changed. Additionally,
increasingly important notions of judicial economy are
served by the abandonment of the doctrine of mutuality.
. . . In light of the scarcity of judicial time and
resources, the repeated litigation of issues that have
already been conclusively resolved by a court carries
a considerable price tag in both money and time. Finally,
we perceive no sound reason . . . to adhere to the
doctrine of mutuality.’’ [Citations omitted.]). To permit
the plaintiff to raise against new parties the issue of
his ownership interest in the Coventry property—which
was conclusively determined after a full trial on the
merits—would result in unnecessary and duplicative
litigation, and would undermine the important princi-
ples of finality and judicial economy identified by our
Supreme Court.
The issues and claims relating to whether the plaintiff
acquired title to the Coventry property pursuant to an
oral agreement with his father were fully and fairly
litigated, and actually and necessarily decided, in the
summary process action. Consequently, we conclude
that the court properly gave preclusive force to the
judgment in the summary process action, insofar as it
was a bar to the breach of contract count in this action.
II
REMAINING COUNTS
The plaintiff next claims that the court improperly
rendered summary judgment on the remaining counts
of his complaint. He contends that the court improperly
held that collateral estoppel bars his claims for adverse
possession, unjust enrichment, and quantum meruit
because none of these claims were pleaded during the
summary process action, none of these claims were
necessary to support the court’s decision, and the expe-
ditious nature of summary process proceedings pre-
vented a full and fair opportunity to explore these
claims. We address each count in turn.
A
Adverse Possession
‘‘[O]ne claiming title by adverse possession always
claims in derogation of the right of the true owner,
admitting that the legal title is in another. The adverse
claimant rests the claim, not on title, but on holding
adversely to the true owner for the term prescribed by
the statute of limitations.’’ (Internal quotation marks
omitted.) Caminis v. Troy, 300 Conn. 297, 309, 12 A.3d
984 (2011). ‘‘It is well established that one claiming title
to real property by adverse possession must prove by
clear and positive evidence each element of actual,
open, notorious, hostile, continuous and exclusive pos-
session for the full fifteen year statutory period.’’ Mulle
v. McCauley, 102 Conn. App. 803, 809, 927 A.2d 921,
cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).
The court, Wahla, J., concluded that collateral estop-
pel barred the plaintiff’s adverse possession claim
against the defendants. This conclusion was supported
by two salient points. First, the court noted that the
plaintiff conceded in the summary process action that
he had occupied the Coventry property pursuant to
permission granted by Andrew Pollansky, thereby
defeating the hostility element of adverse possession.
Second, the court held that the plaintiff could have
raised prescriptive claims in the summary process
action because counterclaims for adverse possession
are permitted in eviction proceedings. We agree with
the court that collateral estoppel precludes the plain-
tiff’s adverse possession claims.
In order for the plaintiff to gain title by adverse pos-
session, he would have to prove that his use of the
Coventry property was, among other things, hostile. In
other words, the plaintiff would have to prove that he
occupied the Coventry property without the permission
of Anna Pollansky and Andrew Pollansky, the joint own-
ers of each of the parcels, for a continuous fifteen year
period. Id., 813–14 (‘‘to satisfy the hostility requirement
of adverse possession, a claimant’s possession of the
disputed land, from its inception, must be without
permission, license or consent of the owner and must
continue to be so throughout the required fifteen year
period’’ [emphasis added; footnotes omitted]). The
issue of whether the plaintiff had permission to occupy
the Coventry property was addressed and resolved dur-
ing the summary process action. After the trial, the
summary process court explicitly found that Anna Pol-
lansky and Andrew Pollansky ‘‘permitted [the plaintiff]
access to the property for recreational purposes and
to operate [his] business.’’ Additionally, the court found
that ‘‘after her husband’s death, [Anna Pollansky] con-
tinued to permit the defendants to operate a business
on the property’’ but that Anna Pollansky had ‘‘termi-
nated her permission when she asked the[m] to vacate
the premises . . . .’’ Thus, the court determined that
the plaintiff and his family had permission to occupy
the Coventry property until 2011, when that permission
was revoked. The plaintiff never challenged these fac-
tual findings in his appeal from the court’s judgment.
See Pollansky v. Pollansky, supra, 144 Conn. App. 188.
Accordingly, the plaintiff’s use of the Coventry property
could not have been hostile for the necessary fifteen
year period. Because the issue of whether the plaintiff’s
occupation of the Coventry property was hostile was
resolved in the summary process action after a trial,
he is precluded from raising it in the present case.8
B
Unjust Enrichment and Quantum Meruit9
The plaintiff next claims that the court improperly
granted the defendants’ motion for summary judgment
with respect to his counts for unjust enrichment and
quantum meruit. Specifically, the plaintiff argues that
these claims could not have been actually decided in
the summary process action because claims for money
damages are not permitted in those proceedings. In the
same vein, the plaintiff notes that the court explicitly
declined to decide whether to award damages for
improvements made to the properties. The defendants
object, arguing that the plaintiff’s claims are precluded
because the issues of unjust enrichment and quantum
meruit were actually litigated in the summary process
action and actually decided in favor of Anna Pollansky.
The defendants contend that the plaintiff offered con-
siderable evidence concerning his services for the bene-
fit of the properties, that the court found in favor of
Anna Pollansky on these issues, and, therefore that he
cannot recover money damages in a subsequent action
on the same claims or facts. We agree with the plaintiff.
We begin by setting forth relevant legal principles.
‘‘Unjust enrichment is a legal doctrine to be applied
when no remedy is available pursuant to a contract.’’
(Internal quotation marks omitted.) Stratford v. Wilson,
151 Conn. App. 39, 49, 94 A.3d 644, cert. denied, 314
Conn. 911, 100 A.3d 403 (2014). ‘‘Plaintiffs seeking
recovery for unjust enrichment must prove (1) that
the defendants were benefited, (2) that the defendants
unjustly did not pay the plaintiffs for the benefits, and
(3) that the failure of payment was to the plaintiffs’
detriment.’’ (Internal quotation marks omitted.) Vertex,
Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178
(2006). ‘‘Quantum meruit is a theory of contract recov-
ery that does not depend upon the existence of a con-
tract, either express or implied in fact. . . . Rather,
quantum meruit arises out of the need to avoid unjust
enrichment to a party, even in the absence of an actual
agreement. . . . Centered on the prevention of injus-
tice, quantum meruit strikes the appropriate balance
by evaluating the equities and guaranteeing that the
party who has rendered services receives a reasonable
sum for those services.’’ (Citations omitted; internal
quotation marks omitted.) Gagne v. Vaccaro, 255 Conn.
390, 401, 766 A.2d 416 (2001).
Summary process proceedings are limited to a deter-
mination of who is entitled to possession of real prop-
erty. See Young v. Young, 249 Conn. 482, 487–88, 733
A.2d 835 (1999); Carnese v. Middleton, 27 Conn. App.
530, 535, 608 A.2d 700 (1992); General Statutes § 47a-
23 (a). The plaintiff is correct that counterclaims for
money damages are not permitted in summary process
proceedings. See Fellows v. Martin, 217 Conn. 57, 70,
584 A.2d 458 (1991) (affirming dismissal of counter-
claim claiming money damages in summary process
case because prayers for monetary relief do not impli-
cate right to possession); Webb v. Ambler, 125 Conn.
543, 551–52, 7 A.2d 228 (1939) (holding counterclaim
for money damages for partial eviction inappropriate in
eviction action). Because counterclaims and defenses
seeking money damages are not permitted in summary
process actions, the plaintiff’s claims in the present
case are not subject to preclusion.
This court’s opinion in Carnese v. Middleton, supra,
27 Conn. App. 530, is instructive to our analysis. The
plaintiff landlord in Carnese brought three summary
process actions against the defendants—two of which
were withdrawn, and the third of which was resolved
in favor of the defendants. Subsequently, the plaintiff
brought an action for rent, interest, and costs of collec-
tion pursuant to a lease with the defendants. During trial
in that action, the defendants orally moved to dismiss on
res judicata grounds, which was granted by the trial
court. Id., 534. On appeal, this court held that res judi-
cata did not bar the plaintiff’s claims for money dam-
ages, reasoning: ‘‘A summary process action is designed
solely to decide the simple question of who is entitled
to possession. . . . A claim for damages is not properly
raised in a summary process action. . . . A summary
process action, therefore, can have no res judicata
effect in a subsequent action for damages between the
same parties.’’ (Citations omitted; internal quotation
marks omitted.) Id., 535. On the basis of this authority,
we conclude that the court improperly held that res
judicata barred the plaintiff’s remaining claims for
unjust enrichment and quantum meruit.
Collateral estoppel also does not preclude the plain-
tiff’s claims. ‘‘Whenever collateral estoppel is asserted
. . . the court must make certain that there was a full
and fair opportunity to litigate. The requirement of full
and fair litigation ensures fairness, which is a crowning
consideration in collateral estoppel cases. . . . [I]f the
nature of the hearing carries procedural limitations that
would not be present at a later hearing, the party might
not have a full and fair opportunity to litigate.’’ (Internal
quotation marks omitted.) Gateway, Kelso & Co. v. West
Hartford No. 1, LLC, 126 Conn. App. 578, 584, 15 A.3d
635, cert. denied, 300 Conn. 929, 16 A.3d 703 (2011).
The limited nature of the summary process action nec-
essarily precluded the court from adjudicating the plain-
tiff’s entitlement to noncontractual money damages.
See id.; 1 Restatement (Second), Judgments § 28, com-
ment (j), p. 284 (1982) (‘‘the court in the second proceed-
ing may conclude that issue preclusion should not apply
because the party sought to be bound did not have an
adequate opportunity or incentive to obtain a full and
fair adjudication in the first proceeding’’). Although the
court in the summary process action found that the
plaintiff performed services relating to the Coventry
property for many years, its finding was not essential
to its ultimate denial of the plaintiff’s ownership special
defense.10 See Rocco v. Garrison, 268 Conn. 541, 555, 848
A.2d 352 (2004) (‘‘[t]o assert successfully the doctrine of
issue preclusion . . . a party must establish that the
issue sought to be foreclosed . . . was essential to the
decision in the prior case’’ [internal quotation marks
omitted]). The plaintiff’s entitlement to money damages
under the theories of unjust enrichment and quantum
meruit also was not actually determined by the court.
‘‘Collateral estoppel can be applied only to bar relitiga-
tion of facts that were formally put in issue and ulti-
mately determined by a valid, final judgment. . . . To
conclude otherwise would improperly infringe on a par-
ty’s right to seek a judicial determination of disputed
issues of fact.’’ (Citation omitted; emphasis added.)
Carnese v. Middleton, supra, 27 Conn. App. 542.
Although the plaintiff submitted evidence concerning
his provision of services to the Coventry property, the
court in its determination of the issue of possession
did not have to reach the quantum meruit and unjust
enrichment issues of benefit to the defendants, lack of
payment, and detriment to the plaintiff. See Vertex, Inc.
v. Waterbury, supra, 278 Conn. 573. We thus conclude
that neither res judicata nor collateral estoppel bar the
plaintiff’s unjust enrichment and quantum meruit
counts.
The judgment is reversed only with respect to the
unjust enrichment and quantum meruit counts of the
plaintiff’s complaint as to the Coventry property and
the case is remanded for further proceedings on those
counts.11 The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Anna Pollansky appears both individually and as administrator of the
estate of her deceased husband, Andrew Pollansky. All references to Anna
Pollansky are to her in both capacities. The plaintiff’s sisters, Joyce Chimbole
and Judy Richard, also are parties to this appeal. We refer to Anna Pollansky,
Chimbole, and Richard collectively as the defendants.
2
Chimbole and Richard—the plaintiff’s sisters—were not parties to the
summary process action.
3
The defendants asserted their special defenses only against the breach
of contract, unjust enrichment, and quantum meruit counts of the complaint.
The defendants did not assert them against the adverse possession count
as required by our rules of practice. See Red Buff Rita, Inc. v. Moutinho,
151 Conn. App. 549, 558, 96 A.3d 581 (2014) (‘‘[c]ollateral estoppel, like res
judicata, must be specifically pleaded by a defendant as an affirmative
defense’’ [internal quotation marks omitted]); see also Practice Book § 10-
51 (‘‘[w]here several matters of defense are pleaded, each must refer to the
cause of action which it is intended to answer, and be separately stated
and designated as a special defense’’). Because the plaintiff failed to chal-
lenge this procedural irregularity, however, it is deemed waived. See Singha-
viroj v. Board of Education, 124 Conn. App. 228, 234, 4 A.3d 851 (2010)
(‘‘[t]he defendants’ failure to file a special defense may be treated as waived
where the plaintiff fails to make appropriate objection to the evidence
and argument offered in support of that defense’’). Therefore, we also will
consider the application of the defendants’ special defenses to the adverse
possession count, as did the trial court.
4
We note that the plaintiff has made claims to both the Coventry property
and the Mansfield property in his complaint. He alleged in count one, for
example, that Andrew Pollansky promised to convey both properties to him.
He also alleged in count four that he used and possessed both properties
exclusively, openly, visibly, notoriously, and continuously for fifteen years,
thereby acquiring title to both properties by adverse possession. Although
the court in the summary process action did not make any findings or rulings
with respect to the Mansfield property, the court in the present action
rendered summary judgment against the plaintiff on all of his claims, includ-
ing those for ownership of the Mansfield property.
With the exception of a cursory reference on page four of his brief,
however, the plaintiff has neither raised nor briefed whether his claims to
the Mansfield property properly were precluded by res judicata or collateral
estoppel. ‘‘We repeatedly have stated that [w]e are not required to review
issues that have been improperly presented to this court through an inade-
quate brief. . . . Analysis, rather than mere abstract assertion, is required
in order to avoid abandoning an issue by failure to brief the issue properly.’’
(Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gil-
more, 289 Conn. 88, 124, 956 A.2d 1145 (2008). Therefore, we deem any
claim to the Mansfield property to be abandoned. See Commission on
Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263,
279–80, 25 A.3d 632 (2011) (holding claims are inadequately briefed when
parties do not develop claims with analysis); see also Electrical Contractors,
Inc. v. Dept. of Education, 303 Conn. 402, 444 n.40, 35 A.3d 188 (2012)
(‘‘[c]laims are inadequately briefed when they are merely mentioned and
not briefed beyond a bare assertion’’).
5
The court noted that Chimbole and Richard were not parties to the
summary process action, nor were they in privity with Anna Pollansky for
purposes of that action, but, nevertheless, it determined that res judicata
precluded the plaintiff’s breach of contract claim against them. The trial
court cited to this court’s opinion in Bruno v. Geller, supra, 136 Conn. App.
707, in support of the conclusion that strict mutuality of the parties was
not required for Chimbole and Richard to invoke res judicata against the
plaintiff defensively.
The plaintiff in Bruno brought claims of civil conspiracy against her
former husband and several alleged coconspirators in a number of actions.
First, she claimed in her dissolution action that her former husband and
his former employer conspired to deprive her of a fair and equitable property
division. The dissolution court rejected this claim. Id., 710–11. Second, the
plaintiff brought an action in New York against her former husband, his
former employer, a company owning a majority interest in his former
employer, and a law firm, raising the same allegations of civil conspiracy. The
New York Supreme Court held that collateral estoppel barred the plaintiff’s
claims. Id., 712. Finally, the plaintiff commenced a third action in Superior
Court raising the same allegations. The trial court rendered summary judg-
ment in favor of the defendants, giving preclusive effect to the New York
judgment. Id., 712–13. On appeal, the plaintiff argued that res judicata was
inapplicable because strict mutuality of parties was lacking. Id., 727.
This court agreed that strict mutuality of parties was lacking, but held
that, under the circumstances of that case, it was not required: ‘‘[A]ssuming
the identity of the issues, a plaintiff who deliberately selects his forum and
there unsuccessfully presents his proofs is bound by such adverse judgment
in a second suit involving all the identity issues already decided . . . . [T]o
hold otherwise would be to allow repeated litigation of identical questions
expressly adjudicated, and to allow a litigant who has lost on a question of
fact to reopen and retry all the old issues each time he can obtain a new
adversary not in privity with his former one.’’ (Internal quotation marks
omitted.) Id., 728, quoting annot., 31 A.L.R. 3d 1044, 1068 (1970).
The present case is readily distinguishable from Bruno. In Bruno, we
noted that the plaintiff had purposely ‘‘chose[n] her first forum, the dissolu-
tion court, to raise and pursue her claims of fraud against [her former
husband]. The court rejected her claims of fraud. Thereafter, she chose her
second forum, the New York Supreme Court, added defendants in addition
to [her former husband] and raised claims of fraud that were based on the
same facts that had been alleged and found unsubstantiated by the dissolu-
tion court.’’ Bruno v. Geller, supra, 136 Conn. App. 729. In contrast, the
plaintiff in the present case did not choose the summary process action as
a forum to bring claims against Chimbole and Richard: he was a defendant
in that action with respect to Anna Pollansky’s claims against him and his
family for possession of the Coventry property. Therefore, the exception to
mutuality articulated in Bruno is inapplicable in the present case. As we
will discuss, however, mutuality is not a bar to the application of collat-
eral estoppel.
6
General Statutes § 52-550, the statute of frauds, provides in relevant part:
‘‘(a) No civil action may be maintained in the following cases unless the
agreement, or a memorandum of the agreement, is made in writing and
signed by the party, or the agent of the party, to be charged . . . (4) upon
any agreement for the sale of real property or any interest in or concerning
real property . . . .’’
7
It is undisputed that at the times of Andrew Pollansky’s alleged promises
to convey the Coventry property to the plaintiff, Andrew Pollansky and Anna
Pollansky were joint tenants with a right of survivorship to the property. The
record, however, does not contain any claim by the plaintiff that Andrew
Pollansky had promised to convey to him Anna Pollansky’s undivided one-
half interest in the Coventry property, nor does the record contain any claim
by the plaintiff that Anna Pollansky separately had promised to convey her
undivided one-half interest to him. Because the defendants did not assert
any claim concerning the impact of the joint tenancy on the plaintiff’s claims,
we do not address it in this opinion.
8
We note that res judicata also bars the plaintiff’s adverse possession
claim against Anna Pollansky. ‘‘[A] judgment is final not only as to every
matter which was offered to sustain the claim, but also as to any other
admissible matter which might have been offered for that purpose. . . .
The rule of claim preclusion prevents reassertion of the same claim regard-
less of what additional or different evidence or legal theories might be
advanced in support of it.’’ (Emphasis in original; internal quotation marks
omitted.) Weiss v. Weiss, 297 Conn. 446, 463, 998 A.2d 766 (2010). As the
court correctly concluded, the plaintiff could have raised this claim against
Anna Pollansky during the summary process action because counterclaims
for adverse possession are permitted in summary process proceedings. See
Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC,
98 Conn. App. 234, 236, 907 A.2d 1274 (2006) (defendants in summary process
action counterclaimed alleging ownership of property by adverse posses-
sion); Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn.
App. 839, 842 n.2, 797 A.2d 18 (defendant in summary process proceeding
asserted counterclaim alleging ownership by virtue of, inter alia, adverse
possession and prescriptive easement), cert. denied, 261 Conn. 916, 806
A.2d 1058 (2002). Because the plaintiff could have raised this claim against
Anna Pollansky in the summary process action, he is foreclosed from raising
it in the present case.
9
Because unjust enrichment and quantum meruit are related causes of
action, we consider them together. See Gagne v. Vaccaro, 255 Conn. 390,
401, 766 A.2d 416 (2001) (analyzing quantum meruit and unjust enrichment
claims together); Sidney v. DeVries, 215 Conn. 350, 351–52 n.1, 575 A.2d
228 (1990) (noting quantum meruit and unjust enrichment are both noncon-
tractual causes of action grounded in principles of restitution); United
Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506,
511–12, 802 A.2d 901 (2002) (‘‘[q]uantum meruit and unjust enrichment are
common-law doctrines that provide restitution, or the payment of money,
when justice so requires’’).
10
The court in the summary process action also rejected the plaintiff’s
claim that he had acquired an ownership interest by virtue of General
Statutes § 47-30, which provides in relevant part: ‘‘Final judgment shall not
be rendered, in any action to recover the possession of land, against any
defendant who has, in good faith, believing his title to the land in question
absolute, made improvements on the land before the commencement of the
action . . . until the court has ascertained the present value of the improve-
ments and the amount reasonably due the plaintiff from the defendant for
the use and occupation of the land. If the value of the improvements exceeds
the amount due for use and occupation, execution shall not be issued until
the plaintiff has paid the balance to the defendant . . . .’’ The court reasoned
that this statutory provision did not apply to summary process actions,
which are concerned with possession or occupancy of land, but instead
applied to ejectment actions where title is in dispute. The court also noted
that even if § 47-30 was applicable to summary process actions, that provi-
sion only applies to a party who, ‘‘in good faith, believ[ed] his title to the
land in question is absolute . . . when he made improvements . . . .’’
(Internal quotation marks omitted.) The court found that, to the extent the
plaintiff made any improvements, he did so at a time when title to the
Coventry property was either absolutely vested in Andrew Pollansky and
Anna Pollansky or solely in Anna Pollansky by right of survivorship. This
determination did not, however, resolve whether the plaintiff was entitled
to money damages separately from his claimed ownership interest.
11
The plaintiff is not entitled to a reversal of his unjust enrichment and
quantum meruit claims with respect to the Mansfield property. See footnote
4 of this opinion.