Micek-Holt v. Papageorge , 180 Conn. App. 540 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
APPENDIX
ANDREA MICEK-HOLT, EXECUTRIX (ESTATE
OF EDWARD F. MICEK) v. MARY
PAPAGEORGE ET AL.*
MARY PAPAGEORGE v. ANDREA
MICEK-HOLT ET AL.
Superior Court, Judicial District of Windham at Putnam
File Nos. CV-14-6008881-S and CV-15-5006173-S
Memorandum filed September 26, 2016
Proceedings
Memorandum of decision in actions for, inter alia,
breach of contract. Judgments for the plaintiff in the
first case and for the named defendant et al. in the
second case.
Mathew Olkin, for the defendants in the first case,
plaintiff in the second case.
Beth A. Steele, for the plaintiff in the first case, named
defendant et al. in the second case.
Opinion
BOLAND, J. Over a period of two days, this court tried
these two matters, which involve conflicting claims of
the same parties. These pending suits are actually num-
bers three and four between them, having been pre-
ceded by a 2011 summary process action in the Superior
Court, geographical area number eleven, captioned,
‘‘Edward Micek v. George Papageorge,’’ Docket No. 11-
8151. That case went to judgment, the terms of which
have a bearing upon the matters before me, as will be
discussed below. Edward Micek filed a later action of
the same nature in the same venue, and with the same
caption, bearing Docket No. 11-9324, but he died during
its pendency and it was dismissed for inactivity. Given
the lengthy and increasingly acrimonious tone of this
dispute, it is the intent of this jurist that this decision
resolve all the issues outstanding between these parties
so as to obviate the need for any later lawsuits.
I
INTRODUCTION
At the heart of the parties’ dispute is a single-family
home located at 361 Thompson Road in the town of
Thompson. The home was built almost two hundred
years ago, but photographs submitted depict it as a
stately residence in overall good condition. At all rele-
vant times until his death in 2014, Edward Micek was
the land-record owner of the home. Andrea Micek-Holt
is his daughter and the executrix of his estate. The
decedent resided at 366 Thompson Road, immediately
across the street from number 361. His daughter resides
there today.
At some point in 2010, the decedent decided to sell
number 361. He was acquainted with Mary Papageorge
and George Papageorge, a married couple, as they
owned a business which supplied his premises with
heating oil. The deal which ensued from their negotia-
tions provided that the Papageorges would take occu-
pancy under a lease from August of 2010 through August
31, 2011. At the same time, they entered into a contract
of purchase and sale. Only Ms. Papageorge was named
as a buyer. That contract provided for a closing at the
end of the lease term. The lease specifically incorpo-
rates the provisions of that contract, even though,
oddly, certain of their provisions are contradictory.
In addition to Mary and George, two of their children
also occupied the home. One of them, Angelina, is now
an adult and remains a resident. Named as a defendant
in the 2014 case, she has appeared but has not asserted
any separate defenses on her own behalf. She has joined
her parents as a counterclaim plaintiff on two of their
counts. She did not attend the trial. The orders which
are set forth below are applicable to her to the same
extent as to her parents.
Under the lease, the actual lessee was Kalami Corpo-
ration, an entity named as an additional defendant in the
2014 case. Ms. Papageorge testified that the corporation
was owned by her family and engaged in real estate
holdings. The corporation was a party only to the lease,
and not to the sales agreement. Like Angelina, the cor-
poration has appeared and has not asserted any sepa-
rate defenses on its own behalf. Also, it has not asserted
any additional claims on its behalf.
The difficulties outlined below commenced in mid-
August of 2011, a few weeks preceding the anticipated
closing date.
A
Micek-Holt Claims
Alleging that by means of a variety of ruses and sub-
terfuges the Papageorges have frustrated every reason-
able effort to complete the title conveyance and pay
the agreed upon consideration, Ms. Micek-Holt sues on
behalf of the estate in seven counts. These include
claims for (1) breach of contract; (2) unjust enrichment;
(4) to quiet title; (5) to foreclose defendants’ equitable
claims to the property; (6) to specifically enforce the
terms of the 2010 contract; and (7) to evict them. Her
third count seeks a declaratory judgment in terms gen-
erally tracking the material in the other six counts.
The Papageorges deny all material allegations of each
count. They also plead seven separate special defenses.
Two of these can be disposed of summarily. Number
six asserts that the complaint should be dismissed in
its entirety, as plaintiff has failed to allege any facts or
assert any legal basis upon which relief can be granted.
This is an improper special defense, and it is contradic-
tory to the findings this court sets forth below. Number
seven of the Papageorge special defenses asserts that
Kalami Corporation was dissolved and therefore no
legal claims may be asserted against it. Whether true
or not, this pleading is one Ms. Papageorge, who is not
an attorney, is not permitted to make on behalf of this
corporation. As indicated above, the court views the
corporation as playing no role in this trial. The
remaining special defenses will be discussed more
fully momentarily.
B
Papageorge Claims
In the 2014 action, Mary Papageorge filed on her
own behalf claims for breach of contract, fraud, unjust
enrichment, and abuse of process against Ms. Micek-
Holt both individually and as a representative of her
father’s estate. Both George and Angelina join her in
asserting additional claims for intentional and negligent
infliction of emotional distress. The relief she seeks is
an order that the estate convey title to 361 Thompson
Road to her without further payment by her, and dam-
ages of $2,500,000.
In the 2015 action, Ms. Papageorge is the sole plaintiff,
in six counts which are essentially restatements of the
material just described.1 In each count she sues Ms.
Micek-Holt in each of her two capacities. She seeks,
again, a conveyance of clear title, but her demand for
damages has risen to $5,500,000.
Ms. Micek-Holt, individually and in her representative
capacity, denies all claims. In addition, she sets forth
a series of special defenses, including unclean hands,
fraud, waiver, reliance upon advice of counsel, failure to
meet statutory limits for making these claims, a defense
relating to her status as a defendant, and to any claims
on the lease, as the lessee, Kalami Corporation, has been
dissolved with no apparent successor to its interests.
II
STIPULATED FACTS
The parties stipulated to the following facts:
1. On August 15, 2010, Edward W. Micek was the
owner of property known as 361 Thompson Road,
Thompson, Connecticut.
2. On that date, he entered into a written lease with
Kalami Corporation for the use and occupancy of 361
Thompson Road, Thompson, CT. The lease term was
from August 1, 2010, to September 1, 2011. The lease
provided that the Papageorges and their two children
would occupy the property.
3. Simultaneously with that lease, he entered into a
purchase and sale agreement for that property with
Mary Papageorge. The agreement called for a closing
on August 31, 2011.
4. Such closing never occurred.
5. Micek filed a summary process action, which
resulted in an April 15, 2013 judgment by the Honorable
Leeland J. Cole-Chu.
They stipulated also that they have been unable to
agree upon the extent of the res judicata and, or, collat-
eral estoppel effect of that decision.
III
ISSUES DECIDED IN FIRST SUMMARY
PROCESS CASE
A
Findings and Orders of the Court
This court has carefully scrutinized Judge Cole-Chu’s
decision. It followed a trial of several days duration in
January of 2013, and it makes apparent that the parties
had the opportunity to air all of the grievances they
held against each other at that time.
The court found that Kalami Corporation had fulfilled
all of its obligations as tenant (or sublessor) under the
one year lease. Also, it found that Mary Papageorge had
been ready, able and willing to consummate the real
estate closing on September 1, 2011.2 What had impeded
closing was an argument as to the amount of cash which
the buyer would have to pay. The contract stated the
purchase price to be $250,000, and provided that it
would be paid in the form of three deposits totaling
$20,000 plus a note from buyers to seller for $229,000,
with the note to be secured by a mortgage upon the
subject premises. The $1000 discrepancy between the
express purchase price and the payment schedule is in
the original. In the 2013 trial, the parties differed as to
how much the deposits actually totaled, and what cred-
its and offsets buyer was entitled to in consideration of
work done upon the premises. Judge Cole-Chu resolved
their disputes as well as the addition error by crediting
buyer with effective down payments exceeding $21,000,
thus recognizing $229,000 as the proper amount
remaining to be paid by the note. Given that finding,
he ruled that aside from normal and customary closing
adjustments, the buyer had to bring no additional cash
to the closing.
Additionally, he heard and adjudicated their claims
as to the amount and value of the buyer’s preclosing
work. His decision refers specifically to her having
remediated mold, replaced a water heater, sanded and
varnished parts of the flooring, and removed approxi-
mately seven trees. He made no separate calculation
of any offset attributable to this work. In that case, as
in this one, she produced no evidence of the cost of
any of that work. Also, the work could be viewed as
an aspect of the purchase and sale agreement, which
provided that the premises were to be conveyed as is,
with any improvements the duty of the buyer.
Beyond calculating the appropriate remainder of the
purchase price, the decision also resolves an issue relat-
ing to Ms. Papageorge’s status with respect to the sub-
ject property. Edward Micek had described her and the
rest of her family as tenants. Instead, the court held, Ms.
Papageorge became the equitable owner of the property
when she entered into the purchase and sale agreement
in August of 2010. This holding was consistent with
precedent summarized just recently in Southport Con-
gregational Church-United Church of Christ v. Hadley,
320 Conn. 103, 128 A.3d 478 (2016): ‘‘[e]quitable conver-
sion is a settled principle under which a contract for
the sale of land vests equitable title in the [buyer]. . . .
Under the doctrine of equitable conversion . . . the
purchaser of land under an executory contract is
regarded as the owner, subject to the vendor’s lien for
the unpaid purchase price, and the vendor holds the
legal title in trust for the purchaser. . . . The vendor’s
interest thereafter in equity is in the unpaid purchase
price, and is treated as personalty . . . while the pur-
chaser’s interest is in the land and is treated as realty.’’
(Citation omitted; internal quotation marks omitted.)
Id., 111.
Neither party filed any appeal of that judgment.
B
Impact of that Decision upon Present Cases
Ms. Papageorge pleads res judicata as a special
defense applicable to Ms. Micek-Holt’s counts sounding
in breach of contract and for possession of the property.
Via a pretrial motion in limine as well as in a motion
for summary judgment3 filed two days before trial, she
claimed that the 2013 decision served to collaterally
estop the estate from raising these issues in the pre-
sent cases.
Collateral estoppel is the appropriate concept by
which to measure the parties’ present dispute over the
construction of the lease and purchase and sale
agreement, and the precise amount of the purchase
price. ‘‘The common-law doctrine of collateral estoppel,
or issue preclusion, embodies a judicial policy in favor
of judicial economy, the stability of former judgments
and finality. . . . Collateral estoppel, or issue preclu-
sion, is that aspect of res judicata which prohibits the
relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action
between the same parties upon a different claim. . . .
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 actually decided and the decision
must have been necessary to the judgment.’’ (Internal
quotation marks omitted.) Lighthouse Landings, Inc.
v. Connecticut Light & Power Co., 300 Conn. 325, 343–
44, 15 A.3d 601 (2011).
Res judicata, in contrast, precludes the litigation in
later actions of claims which existed at the time of a
prior action but which were not raised therein. ‘‘Gener-
ally, for res judicata to apply, four elements must be
met: (1) the judgment must have been rendered on the
merits by a court of competent jurisdiction; (2) the
parties to the prior and subsequent actions must be the
same or in privity; (3) there must have been an adequate
opportunity to litigate the matter fully; and (4) the same
underlying claim must be at issue. . . . Public policy
supports the principle that a party should not be allowed
to relitigate a matter which it already has had an oppor-
tunity to litigate.’’ (Citations omitted; internal quotation
marks omitted.) Wheeler v. Beachcroft, LLC, 320 Conn.
146, 156–57, 129 A.3d 677 (2016).
Applying those measures, this court determines that
the 2013 judgment squarely answered all of the parties’
questions on lease construction and the enforceability
of the purchase and sale agreement, and collateral
estoppel thus precludes the parties from litigating those
issues a second time in this case. Therefore, the court
accepts that the equitable owner of the real estate is
Ms. Papageorge, subject to her obligation to pay the
remainder of the purchase price. Likewise, the court
will give no weight to Ms. Papageorge’s references
(sketchy as they were) to the lease-term troubles she
incurred with tree removal, or floor repair or replace-
ment, or installing a new water heater, or mold remedia-
tion. Judge Cole-Chu decided them unambiguously.
The decision obviously contemplated further perfor-
mance on the part of each side as to details which
remained executory at that time; these included deliv-
ery of a deed transferring title and payment in the form
of the note and mortgage. Judge Cole-Chu could not
have anticipated whether the parties’ performance of
those details would provide any additional circum-
stances amounting to a breach subsequent to April 15,
2013, and so the third prong of the Wheeler test cannot
be found to have been met as to events following his
decision. In Weiss v. Weiss, 297 Conn. 446, 998 A.2d
766 (2010), the court indicated that whether an action
involves the same claim as a prior action such that it
triggers the doctrine of res judicata requires a transac-
tional analysis. A court must determine pragmatically
whether a connected series of transactions form a con-
venient trial unit, and whether their treatment as a unit
conforms to the parties’ expectations or business under-
standing or usage. Events which occur after a decision
is rendered cannot easily be immunized from scrutiny
by a later court.
Thus, neither collateral estoppel nor res judicata bar
Ms. Micek-Holt from seeking a ruling on the actions
taken or avoided by Ms. Papageorge to complete the
contract’s provisions after April 15, 2013. In so ruling,
the court is also rejecting the conclusory allegations of
the first special defense filed by Ms. Papageorge claim-
ing res judicata, and the conclusory allegations of her
fourth special defense alleging collateral estoppel,
except to the limited extent set forth in this memo-
randum.
Ms. Papageorge’s counterclaims in the present cases
themselves raise a question of preclusion. Her breach
of contract count, in particular, is heavily dependent
upon proof of circumstances which took place in
August and September of 2011 and their consequences
to her. She frames that count so as to include both
contract and tort elements. As to the tort elements, at
least, they could not have been litigated in the summary
process action. As stated in Pollansky v. Pollansky,
162 Conn. App. 635, 133 A.3d 167 (2016), ‘‘[s]ummary
process proceedings are limited to a determination of
who is entitled to possession of real property. . . . The
plaintiff is correct that counterclaims for money dam-
ages are not permitted . . . .’’ (Citations omitted.)
Id., 658.
Additionally, she charges Ms. Micek-Holt and the
estate with fraud. ‘‘[F]raud is an exception to res judi-
cata’’; Weiss v. Weiss, supra, 297 Conn. 459; and thus
her fraud count cannot be deemed precluded by the
2013 decision.
Finally, her counts alleging both intentional and negli-
gent infliction of emotional distress arise from events
which occurred after the decision. Like the postdecision
breach of contract claims, they cannot be said to have
been decided by Judge Cole-Chu.Accordingly, this court
will evaluate her claims on these causes of action on
their merits.
C
What Was Supposed to Happen After April 15, 2013?
The 2013 decision neither rewrote the parties’
agreement nor directed how and when a closing should
take place, but it was issued with a clear implication
that Edward Micek, then still living, had an obligation
to convey title by deed to Ms. Papageorge. Reciprocally,
it indicated she was obliged to sign a note in the amount
of $229,000, secured by a mortgage in his favor. The
court left it to the parties to work out the time and
place of a closing and resolve what it viewed as the
ministerial duties attendant upon transferring title to a
parcel of real estate.
IV
WHAT ACTUALLY HAPPENED FOLLOWING
APRIL 15, 2013
A
2013 Closing Preparation
On May 13, 2013, Attorney Nicholas Longo, represent-
ing Mr. Micek, wrote to Ms. Papageorge, inquiring who
her attorney was and attempting to arrange a closing.
On May 20, he transmitted a draft note to her attorney,
and on May 23, sent to her a draft deed, mortgage, and
note. The tenor of his letters was civil and professional.
Ms. Papageorge’s first written reply is an e-mail dated
May 29, in which she indicated that the documents
appeared to be in order. She went on, however, to
demand (1) a doctor’s letter stating that Edward Micek
was competent to close; (2) interest of almost a thou-
sand dollars on the money paid as a deposit under the
purchase and sale agreement; (3) damages for trees
brought down by Hurricane Katrina (sic); (4) and
unspecified compensation for landscaping and painting
she claimed was owed to her as a result of undocu-
mented verbal understandings reached with Mr. Micek
or Ms. Micek-Holt.
On June 4, Attorney Longo communicated that the
demands were unacceptable, but that his client was
still ready to close. He repeated that message on June
18, obviously not having heard from her in the interim.
By e-mail on June 21 she stated that ‘‘I want everything’’
denoted in her earlier e-mail, and added new items to
that list. First, she refused to be responsible for taxes
on the grand list of October 1, 2012, as the documents
specified, as she claimed that language exposed her to
payment of ‘‘back taxes’’ owed by Mr. Micek. Secondly,
she expanded upon the demand for the seller to com-
plete landscaping work on the property. She concluded
by saying that she would not hire an attorney4 until her
demands were met, that the seller was stalling and
game-playing, and that she had no doubt that she would
succeed if either party took this case back to court.
No closing occurred in 2013.
B
Second Summary Process Claim
In the middle of July of 2013, the parties’ dispute
escalated. Observing activity at 361, which he believed
violated the spirit and terms of their agreement, Edward
Micek demanded to be allowed to inspect the property.
Almost simultaneously, the town of Thompson sent him
a cease and desist order demanding that he put an end
to allegedly illegal auto sales at 361 Thompson Road.
While he was the addressee because title to that parcel
remained in his name in the land records, he believed
that any illegal activity was the doing of the Papa-
georges.
Ms. Papageorge’s quick reply was to refuse him
access and threaten that she would call the state police
if he or anyone representing him set foot on her
property.
Edward Micek died on March 11, 2014. For reasons
as to which one may only speculate, he had filed a
second summary process action in geographical area
number eleven of this court in December of 2013. That
case was pending at the time of his death and was
ultimately dismissed as dormant. The court held no
meaningful proceedings in that case.
C
2014 Closing Preparation
Ms. Micek-Holt was appointed executrix of his estate
shortly following her father’s death.
On April 17, 2014, Attorney Harold Cummings wrote
to Ms. Papageorge, identifying himself as the estate’s
attorney and proposing that a closing be held on May
15. On April 30, he wrote to her again, including copies
of a proposed deed, note, and mortgage, and inquiring
who her attorney would be. In these and in all other
written communications with her, the tenor of his writ-
ings was civil and professional.
Ms. Papageorge rejected these documents, and indi-
cated that she would not be hiring an attorney until the
documents conformed to her demands, and until the
estate had agreed to compensate her for the items listed
in her earlier communications with Attorney Longo.
She complained that the instruments submitted now
recited that she would be responsible for taxes on the
grand list of October 1, 2013, which, again, she rejected
as being the responsibility of the estate. She quibbled
about the credits she believed the Cole-Chu decision
entitled her to. In a telephone conversation memorial-
ized in his e-mail to her of April 30, it appears that she
had also objected to the deed’s recital of $250,000 as
the purchase price, contending that she only owed at
most $229,000, minus adjustments she believed she was
entitled to.
Over the next several weeks, Attorney Cummings
attempted to address her complaints about the docu-
ments and requested copies of invoices for any work she
had commissioned on the property without conceding
liability for those items. Ultimately, Attorney Cummings
informed her that he and Ms. Micek-Holt would be pre-
sent at the Thompson town hall on June 30, 2014, to
complete the closing.
She did not attend. Shortly thereafter, Ms. Micek-Holt
filed the 2014 case.
D
Conclusions as to Breach of Contract
After the 2011 breach of contract by Edward Micek,
Ms. Papageorge has remained in possession of 361
Thompson Road. With the exception of some homeown-
er’s insurance paid recently, she has paid nothing to
Mr. Micek or his estate.
In her response both to Attorney Longo and to Attor-
ney Cummings, she has overplayed the hand Judge
Cole-Chu dealt her in his decision. His decision did not
leave her the option of attaching a bill for additional
claims relating to the physical condition of the property.
His decision did not even by implication suggest that
she was entitled to interest on the deposits paid to the
seller. The decision indicated that she was obligated to
sign a note for $229,000, without further discounts or
further ado.
Nor did the decision empower her to ignore Connecti-
cut law and local closing customs while serving as her
own attorney in preparing for a closing. Our law, for
instance in chapter 223 of the General Statutes, imposes
a conveyance tax on the sale of real estate calculated
on the full purchase price without regard to the timing
of payments between the parties. Thus the deed’s recital
of a $250,000 price was entirely correct and proper.
Similarly, the closing customs of the Windham
County Bar Association provide that real estate tax
adjustments at closing operate on the premise that
‘‘taxes assessed upon the List of the preceding October
1st shall be considered to be applicable to the following
fiscal year.’’ It is the rule applicable to all real property
in this state that a property owner pays taxes assessed
on one year’s grand list in two installments in the follow-
ing fiscal year, one due in July nine months after the
grand list is published, and the second in January of
the succeeding year. The county customs5 provide that
closing attorneys adjust taxes to the date upon which
the closing occurs. Thus, at a closing held on July 1,
for instance, the seller would be liable for payment of
all taxes up to June 30, all of which were assessed on
the grand list published twenty-one months previously.
The buyer would be liable for all taxes due as a result
of the assessment made on October 1, of the year pre-
ceding the closing, as all of the latter are only prospec-
tively due as of the beginning of the fiscal year. That
allocation of the property tax burden is exactly what
both Attorneys Longo and Cummings attempted to
achieve by including in their draft instruments the refer-
ence to the last grand list, as opposed to the next one,
as Ms. Papageorge insisted.
Ms. Papageorge’s persistence in making demands not
allowed by her earlier court victory, together with her
stubborn refusal to retain an attorney who might help
her overcome her ignorance of standard provisions as
to the form of a deed and the propriety of closing adjust-
ments, combine to qualify as objectively unreasonable
her claim that it was the estate or Mr. Micek and not
she herself who breached the purchase and sale
agreement as it stood as of April 15, 2013. This is then
the appropriate moment to reject her second and third
special defenses, which, under the respective labels
of ‘‘accord and satisfaction’’ and ‘‘payment,’’ allege in
identical terms that she has paid all sums due under
the two 2010 agreements. Each is patently false.
Furthermore, these unsubstantiated claims of full
payment, together with her resistance for over five
years to complete the closing while all along enjoying
the benefit of the bargain by remaining in undisturbed
possession of the real estate, provide solid support for
a finding that she has not shown good faith in this
transaction. ‘‘Bad faith has been defined in our jurispru-
dence in various ways. Bad faith in general implies
. . . a neglect or refusal to fulfill some duty or some
contractual obligation, not prompted by an honest mis-
take as to one’s rights or duties, but by some interested
or sinister motive. . . . [B]ad faith may be overt or
may consist of inaction, and it may include evasion of
the spirit of the bargain . . . .’’ (Internal quotation
marks omitted.) Brennan Associates v. OBGYN Spe-
cialty Group, P.C., 127 Conn. App. 746, 759–60, 15 A.3d
1094, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011).
In light of these findings, the court finds for the plain-
tiff Micek-Holt on the first count of the 2014 complaint.
Her remaining six counts are all derivatives of that
count and depend upon the finding that I have reached.
Each additional count essentially proposes a different
remedy, and each will be examined, below, in the dis-
cussion of the equitable response to the present circum-
stances which this court should direct.
V
PAPAGEORGE TORT CLAIMS
As indicated, Ms. Papageorge and her family have
asserted a present total of six claims against the estate
and Ms. Micek-Holt, individually.
A
Breach of Contract
Ms. Papageorge has an expansive claim for damages
flowing from what she believes to be the multiple con-
tract breaches committed by the defendants. As to
events occurring after April 15, 2013, this court finds
that her own actions and omissions are the source of
any distress she may have suffered.
Left to be resolved are her claims that the seller’s
2011 breach caused her damages warranting compensa-
tion at this time. In her direct testimony, she stated that
the earlier breach had ruined her life. What happened,
in her words, was a cascading series of calamities,
which led to her loss of her business, to adverse civil
consequences in the state of Massachusetts, to Bank-
ruptcy Court, and to untold pain and suffering.
Briefly summarized, she testified that she and her
husband were in the home heating oil business as they
negotiated with Mr. Micek. The business did between
four and five million dollars a year in sales, and was
subject to the vagaries of weather and international oil
prices to an extent unusual for other industries but
likely common in this one. Critical to the business’
success, she maintained, was the ability to obtain a line
of credit secured by the owners’ home. By virtue of
that, the business could borrow to cover today’s pur-
chases until customers sent in their payments. Mr.
Micek’s default made placement of such a lien upon
361 Thompson Road impossible. No line of credit meant
no available cash, meant no ability to continue the oil
business, meant bankruptcy and all of its ugly sequelae.
Credibility is always a critical concern in a trial, and
unfortunately for Ms. Papageorge, her own husband’s
testimony contradicted hers on this theory. He testified
that the line of credit was only a marginal concern.
Instead, he opined, their ability to describe themselves
as homeowners would have been the sufficient remedy
to their credit problems. As such, they would appear
to their creditors to be people of substance who could
be trusted for payments a day or a week later to their
wholesale suppliers. Additionally, he conceded that the
available equity in the property of about $20,0006 was
not adequate to the volume of their cash needs.
Even before her husband spoke, information elicited
on cross-examination by Ms. Micek-Holt’s counsel pro-
vided additional reason for doubting her direct testi-
mony. In 2012, she was a party to at least three lawsuits
brought by business creditors for amounts totaling in
the six figures on debts that she had guaranteed for
her business. More seriously, the state of Massachusetts
had obtained a court order freezing assets belonging
to both the Papageorges and their business in that state,
and garnishing the business’ bank accounts to the
extent of some $200,000 for behavior constituting a
retail variation on a Ponzi scheme. The company’s prac-
tice was to accept prepayment from customers in the
summer to be applied to deliveries in the fall and winter.
When that time came, however, the Papageorges had
used the cash to pay other bills. What oil they were
able to obtain would be allocated first to new customers
on a C.O.D. basis, and the summer customers given
fifty or one hundred gallons to silence their complaints
until the Papageorges raised enough cash to induce
their trade creditors to supply them with more oil—or
until the weather improved.
Eventually, enough of those customers complained
to the Massachusetts Department of Consumer Affairs
that it initiated the proceedings described—prior to
August 31, 2011, when the Micek breach occurred. Bor-
rowing against the Thompson property was thus not a
component of a sound business plan frustrated by Mr.
Micek, but a desperate attempt to borrow from Peter
to pay Paul. The Massachusetts proceedings dwarf in
magnitude those involved in this action and make
absurd her claim that the fiscal house of cards she
and her husband had erected before the Micek breach
tumbled because they were not in a position to place
a junior mortgage on 361 Thompson Road, or to hold
themselves out as homeowners.7
Those details illustrate why this court is unpersuaded
that the Miceks have any liability to Ms. Papageorge
for the 2011 breach. That breach was not the cause of
her business debacle. Her claim that bankruptcy and
other negative consequences were caused by Mr. Micek
has no basis in fact or logic. She was likely in deep
financial trouble before she moved to Thompson Road
and was certainly in such straits before the expected
closing date. Moreover, she offered no evidence of dam-
ages such a breach might have occasioned, whether
that be doctor bills, counseling costs, lost-income pro-
jections, or anything upon which to calculate a fair
damage award.
On her breach of contract claim, the court finds that
she has proven neither liability nor damages to her as
a consequence of the 2011 breach, and thus has failed
to prove that either Ms. Micek-Holt or the estate is liable
to her as a result of that breach.
B
Fraud
After incorporating by reference the ninety-four8
paragraphs of the breach of contract count, Ms. Papa-
george adds that in concealing cash payments prior to
August 31, 2011, Ms. Micek-Holt and her father created
a false accounting. In what really amounts to a different
theory for including this cause of action, she adds an
additional charge relating to how they induced her to
enter into the ‘‘Lease/Contract’’ in the first place, that
is, behavior on their part in August of 2010. She labels
all of these actions as fraudulent.
‘‘The essential elements of an action in common law
fraud . . . are that: (1) a false representation was made
as a statement of fact; (2) it was untrue and known to
be untrue by the party making it; (3) it was made to
induce the other party to act upon it; and (4) the other
party did so act upon that false representation to his
injury. . . . [T]he party to whom the false representa-
tion was made [must claim] to have relied on that repre-
sentation and to have suffered harm as a result of the
reliance.’’ (Internal quotation marks omitted.) Simms
v. Seaman, 308 Conn. 523, 548, 69 A.3d 880 (2013). As
to the accounting—and even assuming that Judge Cole-
Chu’s memorandum did not definitively resolve that
issue—fraud cannot be found in the details of the Micek
deposit reckoning. As soon as the number was pre-
sented to Ms. Papageorge she disputed it, and thus
cannot establish the prong of this test requiring proof
that she acted upon the false representation to her
detriment. There’s not a shred of evidence to suggest
that she believed the Micek accounting for a minute.
With respect to the claim that fraud tainted the 2010
negotiations, it must be noted that her burden of proof
is one of clear and convincing evidence. Reville v.
Reville, 312 Conn. 428, 469, 93 A.3d 1076 (2014). Her
claim of fraudulent inducement suffers from a distinct
lack of pleading specificity; in fact, it is a bald conclu-
sion divorced from any factual allegations which a trier
of fact could look to in order to discern whether the
elements of fraud had been proven. That pleading defect
is perhaps not germane at this time, and potentially
curable, but what is not curable is that Ms. Papageorge
adduced no evidence indicating that when the parties
entered into the various documents in August of 2010
either Mr. Micek or his daughter possessed any intent
of doing anything but conveying the property to her in
2011. It’s not that her evidence on this point is not clear
and convincing, but that, concerning this claim, she has
offered no evidence whatsoever.
As to the fraud count in the counterclaim, and its
reiteration in the 2015 complaint, the court finds for
Ms. Micek-Holt. The court further rejects the fifth Papa-
george special defense alleging that the sellers engaged
in fraud in their dealings with her.
C
Abuse of Process
The focus of this count is upon Mr. Micek’s filing
of the second summary process action in December
of 2013.
In the recent case of Rogan v. Rungee, 165 Conn.
App. 209, 140 A.3d 979 (2016), the court explained that
‘‘[a]n action for abuse of process lies against any person
using a legal process against another in an improper
manner or to accomplish a purpose for which it was
not designed. . . . Because the tort arises out of the
accomplishment of a result that could not be achieved
by the proper and successful use of process, the
Restatement Second (1977) of Torts, § 682, emphasizes
that the gravamen of the action for abuse of process
is the use of a legal process . . . against another pri-
marily to accomplish a purpose for which it is not
designed . . . .’’ (Internal quotation marks omitted.)
Id., 220.
Ms. Papageorge claims there are three respects in
which Mr. Micek committed this tort: (1) he filed an
eviction knowing of an automatic stay under the Bank-
ruptcy Code entered for her and her husband’s benefit;
(2) he filed two additional eviction proceedings after
Judge Cole-Chu’s decision in the 2011 case; and (3) he
failed to attach the entire Lease/Contract to his
pleadings.
If one, for the sake of argument, accepts all three of
these premises as proven and true, one cannot then
conclude that his actions amount to the abuse of pro-
cess. If there was a bankruptcy stay in effect, the remedy
would be sought in a contempt proceeding in the Bank-
ruptcy Court. If he filed two additional actions aimed
at getting back possession of 361 Thompson Road, he
availed himself of a statutory proceeding ostensibly
designed for that very purpose. Finally, his omission of
the cited documents could easily be cured by a request
to revise the complaint, or by the defendant therein
producing them on her own behalf.
This imaginative exercise is unnecessary, however,
because in spite of participating in a two day trial in
which the court afforded her sufficient latitude to prove
her case, she offered no evidence on the timing of her
(apparently multiple) bankruptcy filings and whether
any stay was in effect during the three month pendency
of the second summary process case. Nor did she offer
any evidence of a third summary process case (which
might explain her claim that Mr. Micek filed two cases
after April 15, 2013); the only evidence presented is that
he only brought one such action. Finally, the omission
of the attachments to the complaint he filed is a defect
of form only. His complaint, which she presented as an
exhibit, makes frequent reference to the earlier lease
and the purchase and sale agreement, as well as to
Judge Cole-Chu’s earlier decision. Its omissions, if any,
do not transmute it into a means by which he sought
to deceive the court or achieve any improper end.
On the counts claiming abuse of process, the court
finds for Ms. Micek-Holt and the estate.
D
Unjust Enrichment
Ms. Papageorge claims that the Miceks’ retention of
deposit moneys and their acceptance of the substantial
repairs and improvements made to 361 Thompson Road
have unjustly enriched them.
‘‘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). That enumeration of the elements
of this tort follows immediately upon the court’s discus-
sion of the nature of the doctrine and the criteria by
which a court might determine if it has been correctly
raised. ‘‘A right of recovery under the doctrine of unjust
enrichment is essentially equitable, its basis being that
in a given situation it is contrary to equity and good
conscience for one to retain a benefit which has come
to him at the expense of another. . . . With no other
test than what, under a given set of circumstances, is
just or unjust, equitable or inequitable, conscionable or
unconscionable, it becomes necessary in any case
where the benefit of the doctrine is claimed, to examine
the circumstances and the conduct of the parties and
apply this standard. . . . Unjust enrichment is, consis-
tent with the principles of equity, a broad and flexible
remedy.’’ (Internal quotation marks omitted.) Id., 573.
It is a remedy reserved for those who have acted
with equity themselves.
At no time since April 15, 2013, have Ms. Micek-
Holt or her father attempted to retain the moneys Ms.
Papageorge tendered as deposit payments. Both in 2013
and in 2014, their efforts to comply with Judge Cole-
Chu’s expectations included giving her full credit for
the total $21,000 he found that she had deposited.
How the repairs and improvements inure to the sell-
ers’ benefit is unclear. If Ms. Papageorge had completed
her performance under the contract, those improve-
ments would be a part of her own home. On the other
hand, if by default she put herself in a position of being
dispossessed of the property, she can have no expecta-
tion that she is entitled to compensation for work she
did on the property in the more than five years of her
posttenancy occupation.
It should be noted, moreover, that she offered no
evidence as to what work was done, when and by whom,
what it cost, etc. Thus, even if she had a valid claim
against her defendants on this count, she has inade-
quately proven any damages flowing from their breach.
As to the counts alleging unjust enrichment, the court
finds for Ms. Micek-Holt and the estate.
E
Infliction of Emotional Distress
To succeed in a claim for intentional infliction of
emotional distress, ‘‘four elements must be established.
It must be shown: (1) that the actor intended to inflict
emotional distress or that he knew or should have
known that emotional distress was the likely result of
his conduct; (2) that the conduct was extreme and out-
rageous; (3) that the defendant’s conduct was the cause
of the plaintiff’s distress; and (4) that the emotional
distress sustained by the plaintiff was severe.’’ (Internal
quotation marks omitted.) Watts v. Chittenden, 301
Conn. 575, 586, 22 A.3d 1214 (2011). To prevail on a
claim of negligent infliction of emotional distress, ‘‘the
plaintiff must prove: (1) the defendant’s conduct cre-
ated an unreasonable risk of causing the plaintiff emo-
tional distress; (2) the plaintiff’s distress was
foreseeable; (3) the emotional distress was severe
enough that it might result in illness or bodily harm;
and (4) the defendant’s conduct was the cause of the
plaintiff’s distress.’’ (Internal quotation marks omitted.)
Grasso v. Connecticut Hospice, Inc., 138 Conn. App.
759, 771, 54 A.3d 221 (2012).
The specific acts cited by Ms. Papageorge in support
of these claims are that Ms. Micek-Holt on more than
one occasion took photographs of 361 Thompson Road,
from a vantage point on a neighbor’s property; on
another occasion, she told a Papageorge visitor that
her hostess was paying no rent; and that at another
time Ms. Micek-Holt had ‘‘given her the finger.’’ Clearly,
none of these acts alone or in tandem amount to
extreme or outrageous conduct as our case law defines
that term. In Petyan v. Ellis, 200 Conn. 243, 510 A.2d
1337 (1986), such conduct was described as ‘‘conduct
exceeding all bounds usually tolerated by decent soci-
ety, of a nature which is especially calculated to cause,
and does cause, mental distress of a very serious kind.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 254 n.5. In Appleton v. Board of Education, 254
Conn. 205, 757 A.2d 1059 (2000), the court determined
that ‘‘[c]onduct on the part of the defendant that is
merely insulting or displays bad manners or results in
hurt feelings is insufficient to form the basis for an
action based upon intentional infliction of emotional
distress.’’ (Internal quotation marks omitted.) Id., 211.
On the intentional infliction count, the Papageorges’
claim must fail.
While the articulation of the elements of an action
for negligent infliction of emotional distress does not
employ the adjectives ‘‘extreme’’ or ‘‘outrageous,’’ the
requirement that any emotional distress complained of
must be ‘‘severe enough that it might result in illness
or bodily harm’’ establishes a standard against which
the scope of this tort might be measured. One is hard-
pressed to conceive that people as sophisticated in the
rough-and-tumble of the oil business as were the Papa-
georges would suffer illness or bodily harm as a result
of Ms. Micek-Holt’s minor incivilities. If their daughter,
Angelina, who is reported to now be twenty-one years
of age, has her own injuries resulting from these
encounters, it was incumbent upon her to appear at
the trial to supply some evidence upon which the court
could evaluate her claims.
On the negligent infliction count, too, the Papa-
georges’ claim must fail.
VI
CONTEMPT ISSUES
In the course of the progress of these cases before
the Superior Court, orders have been entered, which,
in turn, have prompted contempt proceedings. As trial
commenced, the parties remain divided as to the resolu-
tion of these issues.
A
Rental Payment Order
At a short calendar on November 2, 2015, I heard a
‘‘motion for escrow’’ filed by Ms. Micek-Holt. The
motion claimed that the parties had previously agreed
upon monthly rental of $1600, that Ms. Papageorge was
not making those payments, and that the underlying suit
involved their lease and ancillary matters. The motion
sought an order that she make payments each month
in that amount to be paid into court and held in escrow
pending final judgment. I granted that motion.
B
Tax Payment Order
At a subsequent short calendar on June 27, 2016, Ms.
Micek-Holt presented to the court a motion for an order
that Ms. Papageorge make tax payments stemming from
ownership of 361 Thompson Road. The court (Calmar,
J.), granted that motion and ordered her to refund to
Ms. Micek-Holt taxes which she had paid to the town
of Thompson to forestall a foreclosure of tax liens upon
the property.
C
Motion for Contempt
On the short calendar of July 18, the court (Riley,
J.) heard Ms. Micek-Holt’s motion seeking a finding that
Ms. Papageorge was in contempt for failure to abide
by the prior orders described above. Judge Riley
granted that motion, found that the total of unpaid taxes
was then $16,201.50, and ordered that Ms. Papageorge
pay that amount within thirty days, plus attorney fees
of $1200.
D
Papageorge Response
After counsel appeared herein for Ms. Papageorge
on August 12, he moved to vacate the November 2 and
June 27 orders, as well as Judge Riley’s contempt finding
of July 18, on due process grounds. Judge Calmar denied
that motion on September 14. Ms. Papageorge has not
represented that she has paid the $17,401.50 ordered
by Judge Riley.
E
Disposition
Ms. Micek-Holt requests that this court refer Ms.
Papageorge to the state’s attorney’s office to be prose-
cuted for her continued contempt of court orders.
First, this court will vacate its own order of November
2. Part of the argument made at that time was that the
monthly payment was needed to allow the estate to
cover taxes on the property. The motion Judge Calmar
granted on June 27 dealt with taxes, and there is there-
fore redundancy between the two orders in an unknown
amount. The value of the use and occupancy of the
premises throughout this litigation is something I have
taken into account in the final orders entered today,
and thus the earlier, interlocutory order is unnecessary
as well as confusing.
The tax payment order, however, was authorized and
equitable, and it remains ignored. The final orders
entered today will direct that this be paid, an order that
Ms. Papageorge may satisfy. If she fails to do so, Ms.
Micek-Holt may pursue any remedies available to her.
If that includes a civil sanction for contempt of the
court’s pendente lite orders, Ms. Papageorge will have
to answer when she is summoned to court. The dispute,
however, is civil, not criminal, and this court therefore
declines to refer the matter to the state’s attorney’s
office for prosecution as requested.
VII
CONCLUSION AND ORDERS
‘‘[T]he 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.) Independence One Mortgage Corp. v.
Katsaros, 43 Conn. App. 71, 75–76, 681 A.2d 1005 (1996).
In the exercise of that discretion, ‘‘[in] an equitable
proceeding, the trial court may consider all relevant
circumstances to ensure that complete justice is done.’’
(Internal quotation marks omitted.) Id., 75. The court
indicated in Home Owners’ Loan Corp. v. Sears, Roe-
buck & Co., 123 Conn. 232, 242, 193 A. 769 (1937), that
an equitable result ‘‘depends to a large extent upon the
circumstances of the particular case.’’
The particular circumstances of this case are suffi-
ciently involved as to make the court’s task somewhat
more difficult than usual. Each side accuses the other
of unclean hands. Each is correct. Mr. Micek’s abrupt
2011 decision to declare the sales agreement in default
needs no further discussion. Ms. Papageorge’s pro-
longed refusal to compensate the estate for the real
property she occupies, or to satisfy Ms. Micek-Holt’s
reasonable demand that she be repaid for the taxes she
paid, eclipses the wrong done to her in 2011.
The court is mindful of the maxims ‘‘equity abhors
a forfeiture,’’ and ‘‘equity views as done that which
ought to have been done.’’ The first conduces toward
an award leaving Ms. Papageorge in ownership of the
real estate, as she had made deposit payments and done
some work upon the property before becoming the
initial victim in this long-running saga. In the orders
entered below, functionally, the court is averting a for-
feiture by granting the relief requested in the sixth count
of the Micek-Holt complaint where she demands an
order of specific performance of the original purchase
and sale agreement.
At the same time, Ms. Papageorge’s indifference to
the obligations of that bargain over more than three
years cannot go unrecognized and cannot be allowed
to persist. The second equitable maxim cited authorizes
orders that require her to make good upon her multiple
failures to hold up her end of that bargain dating back
to June of 2013. Ms. Papageorge has shown this court
no valid reason why the closing did not occur in that
month, nor presented the court with any valid reason
for discounting the payments she agreed to make and
ought to have made since then. Without revising the
terms upon which the parties agreed in 2010, the court
will apply the provisions of that agreement with adjust-
ments for the passage of time and the performance or
lack thereof by the parties in the interim.
In calibrating the extent of the performance Ms. Papa-
george must make up at this time, the court has utilized
June 24, 2013, as the date upon which the closing
ordered by Judge Cole-Chu ought to have taken place.
The note upon whose terms the parties agreed provided
that interest of 4.85 percent would be added to a princi-
pal of $229,000, and amortized via monthly payments
of $1208.41, augmented by three annual principal reduc-
tion payments of $10,000 each. If the closing had
occurred in June of 2013, and Ms. Papageorge complied
with the contract terms, she would by October 24, 2016,
have made forty monthly payments of $1208.41, plus
$30,000 in the annual payments, for a total of $78,336.40.
She must make that payment now to preserve the oppor-
tunity to retain ownership of the property.
The present payment of $78,336.40 would reduce the
amount remaining to be paid in coming years, as it
includes a substantial reduction of the principal amount
of her debt to the estate. The note promising to pay
the balance due will thus no longer be in the amount
of $229,000, as it must be adjusted downward to account
for the portion of that amount representing payment
on the principal.9
Additionally, with ownership came the responsibility
to pay the taxes upon the tract. Ms. Micek-Holt’s second
count claims damages for unjust enrichment. She has
proven that she incurred expenses amounting to
$17,401.50 for tax payments required to save 361
Thompson Road from foreclosure, including attorney
fees. Those tax payments were the legal liability of Ms.
Papageorge. She cannot claim the benefits of that status
unless she acknowledges the responsibilities that flow
from it. The court finds for Ms. Micek-Holt, individually,
on that count, and orders that Ms. Papageorge reim-
burse her without further delay.
This judgment disallows any further Papageorge
demands for discounts relating to work she has done
on the property. Those items were covered by Judge
Cole-Chu’s decision. Furthermore, she provided this
court with no evidence upon which to determine the
true value of her demands in that regard.
Because this court is concerned that Ms. Papageorge
lacks either the will or the ability to complete this pur-
chase, the court will also provisionally grant Ms. Micek-
Holt the relief she requests in her fourth, fifth, and
seventh counts. These demand the extinction of any
equitable claims Ms. Papageorge may have to 361
Thompson Road, an order quieting title to that parcel
in favor of the estate, and the eviction of the Papa-
georges from the property. In the event that Ms. Papa-
george fails to complete the closing as hereafter
ordered, this judgment contains orders responsive to
that eventuality.
Lastly, the court considers that Ms. Papageorge does
owe the estate use and occupancy payments if she fails
to pay the amounts owed on the note as indicated above.
The original lease allocated one thousand dollars per
month to the value of the property, and six hundred to
tax and insurance costs. This decision has treated the
tax issue separately, as indicated, and thus adopts one
thousand as the reasonable value for use of the premises
since June 24, 2013. Note, this element of the judgment
is only reached in the event that Ms. Papageorge fails
to pay the accrued principal and interest payments
described.
Time is of the essence as to the performance of
these orders.
In light of the foregoing it is, therefore, ORDERED:
1. Judgment on all counts of the complaint in CV-15-
5006173-S shall enter in favor of Andrea Micek-Holt in
her individual and representative capacities, and
against Mary Papageorge.
2. On the counterclaim in CV-14-6008881-S, judgment
on all counts shall enter in favor of Andrea Micek-Holt,
and against Mary Papageorge.
3. On the complaint in CV-14-6008881-S, judgment on
the first count shall enter in favor of the plaintiff.
4. At a time and place of the parties’ choosing up to
October 24, but, absent agreement, then at the Thomp-
son Town Hall at 2 p.m. on October 24, 2016, the parties
will meet for the following purposes:
(a) Andrea Micek-Holt will convey to Mary Papa-
george all the right, title and interest held by the estate
of Edward Micek (seller) in and to premises known as
361 Thompson Road in Thompson, more fully described
in the Executor’s Deed submitted to this court as plain-
tiff’s exhibit 1, to which reference may be had. The
deed shall be in the form prepared by Harold Cummings,
Esq., and attached to plaintiff’s exhibit 32. The date
of the grand list referred to therein shall be October
1, 2015.
(b) Seller shall be responsible for payment of its own
attorney fees, and for the town and state conveyance
taxes required by statute.
(c) In consideration therefor, Mary Papageorge
(buyer) shall:
(i) Deliver to seller by bank or cashier’s check the
amount of $78,336.40;
(ii) Execute and deliver to seller a promissory note
in the principal amount of $229,000, less that portion
of the sum set forth in the preceding subparagraph,
which represents payments of principal on the note
between June 24, 2013, and October 24, 2016, had the
note been signed on the 2013 date. Prospectively, inter-
est on the note shall be paid at the rate of 4.85 percent
per annum. Monthly payments on the note shall com-
mence on November 24, 2016, in the amount of $1208.41
each, until the debt memorialized thereby has been
fully amortized;
(iii) As security for that note, buyer shall execute
and deliver to seller a first mortgage encumbering the
361 Thompson Road property, and shall provide a
release for any encumbrances placed upon her interest
in the property on or after August 1, 2010;
(iv) Buyer shall be liable for the cost of recording
the deed and the mortgage, and for her own attorney’s
fees, including title insurance, if required;
(v) Buyer shall also provide the seller with proof of
insurance upon the premises, naming the seller as an
additional protected party, in an amount at least equal
to the amount of the note, and such insurance shall be
kept in effect until the note is paid in full.
(d) There will be no adjustments or demands for
adjustments relating to the condition of the premises
now or at any earlier time, nor for repairs done to it
by either party.
(e) No tax adjustment shall be owed to buyer for any
period following June 24, 2013.
(f) Not later than the conclusion of that closing, buyer
shall reimburse Andrea Micek-Holt personally for taxes
she paid to the town, and attorney fees previously
ordered in this action, in the amount of $17,401.50.
(g) Pending that closing, plaintiff shall not go upon
that property, except by invitation of defendant or in
the event of true emergency.
(h) Under no circumstances shall buyer, or George
Papageorge, or any agent of theirs, including, but not
limited to, other family members, cause any damage to
the premises by intent or negligence, including omission
of necessary maintenance of the property, prior to the
closing, or, if they fail to close, at any time following
the entry of this judgment.
5. By 5 p.m. on October 26, 2016, counsel for the
parties shall file affidavits with the clerk of this court
attesting that the closing ordered by paragraph 4 has
occurred, and all of the terms set forth in that paragraph
have been fulfilled. Upon the receipt of those affidavits,
the clerk shall indicate on the file that the judgment in
this matter has been satisfied, and the orders numbered
6 and 7, below, shall be vacated.
6. In the absence of the filing of such affidavits:
(a) Mary Papageorge, George Papageorge, and
Angelina Papageorge are ordered to vacate 361 Thomp-
son Road not later than 5 p.m. on October 26, 2016,
together with all their possessions, and along with any
other persons whom they might have permitted to
occupy said premises. In the event that they hold over
after that date, they shall make use and occupancy
payments to the estate at the rate of $150 per day. The
clerk of this court may issue an execution of eviction
order if requested by plaintiff at any time after Octo-
ber 26;
(b) The interests of Mary Papageorge in the property
located at 361 Thompson Road, Thompson, Connecti-
cut, whether arising from lease, contract, or whatever
source, are hereby extinguished;
(c) The clerk shall issue a judgment file quieting title
to the premises in favor of the estate of Edward Micek;
(d) Judgment shall enter in favor of the estate against
Mary Papageorge in the amount of $40,000, on the sec-
ond count of the complaint.
7. Judgment enters in favor of Andrea Micek-Holt
against Mary Papageorge in the amount of $17,401.50.
8. No costs are taxed to either party.
* Affirmed. Micek-Holt v. Papageorge, 180 Conn. App. 540, A.3d
(2018).
1
Her complaint has a seventh count captioned, ‘‘Misconduct.’’ At trial,
her counsel withdrew this count.
2
Testimony in this case indicates that Hurricane Irene had buffeted Con-
necticut on August 29, 2011, and that as of September 1 all of Thompson Road
was without power and the site of numerous downed trees. Accordingly, a
closing on the first would have likely been impossible. However, time was
not of the essence of the agreement, and the marginal delay caused by this
weather event was not the cause of the parties’ dispute; the storm did,
however, drop trees at 361 Thompson Road, and the cost of their removal
did become a sticking point.
3
These filings came to the attention of this court at a trial management
conference held just prior to the trial. The court denied the motion in limine
as the full import of the 2013 decision was unclear in light of subsequent
events. Ms. Papageorge accompanied her motion for summary judgment
with a request for leave to file, which this court denied; proceedings on
that motion likely would have delayed a resolution of the parties’ claims
for several additional months, an unacceptable delay in a case of this nature,
which has already passed its fifth anniversary. However, the court indicated
that it was not deciding the merits of either motion.
4
Note that on May 20 Attorney Longo had communicated with an attorney
he believed was representing her; she appears, instead, to have continued
to represent herself, at least in a cocounsel arrangement.
5
This court is unaware of any local custom in any other region of the
state which would direct a result different from that outlined herein.
6
I.e., sale price of $250,000 minus mortgage of $229,000, rounded down.
It must be noted that whatever equity inhered in the property, there was
no evidence that any bank’s post–2008 loan standards would permit a loan to
the Papageorges given the credit problems they obviously were afflicted by.
7
Additionally, in approximately March of 2012, Mr. Papageorge lost title
through a foreclosure proceeding to real estate in Massachusetts which he
or his family had owned for half a century. Thus, he was, prior to that date,
already a homeowner.
8
There are ninety-four paragraphs in the breach of contract count as Ms.
Papageorge expressed the same in her counterclaim to Ms. Micek-Holt’s
2014 action. By the time of her own 2015 complaint, her expression of
that count had grown to one hundred and twenty-one paragraphs. The
observations as to the substance of the fraud count are accurate as to both
of these pleadings.
9
The court has not calculated the exact principal balance that would
therefore be due. It is not so simple as subtracting $78,336.40 from $229,000,
as the payments are a combination of both principal and interest and only
the amount of each payment attributable to principal reduces the note
amount. The parties must prepare an amortization table to show the amount
of the principal remaining due on October 24, 2016; that is the appropriate
amount of the note that Ms. Papageorge must sign and deliver.