Lenore Hoss v Stephanie Alexander Hoss

• Jurisdiction: Trinidad & Tobago
• Judge: Madam Justice Eleanor Joye Donaldson-Honeywell
• Judgment Date: 19 July 2021
• Neutral Citation: TT 2021 HC 159
• Docket Number: Claim No. CV2017-01254
• Year: 2021
• Court: High Court (Trinidad and Tobago)

IN THE HIGH COURT OF JUSTICE

San Fernando Sub-Registry (Virtual Hearing)

Before

the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell

Claim No. CV2017-01254

Between

Lenore Hoss

1 ^st Claimant

Clayton Hoss

2 ^nd Claimant

and

Stephanie Alexander Hoss

(Appointed Administrator Ad Litem of the Estate of the deceased Wilhelm Lothar Hoss Pursuant to Order dated 7 ^th March, 2017)

1 ^st Defendant

and

Stephanie Alexander Hoss

2 ^nd Defendant

Dario Hoss

(By his next friend Carol Alexander appointed pursuant to Order dated 9 April 2019)

3 ^rd Defendant

Appearances

Mr. Shivan Seunarine, Attorney-at-Law for the Claimants

Mr. Carl Mattis, Attorney-at-Law for the Defendants

A. Introduction

1 The passing of Wilhelm Hoss (“the 1 ^st Defendant”) at age 84 left his widow Stephanie Hoss (“the 2 ^nd Defendant”) and their infant son Dario (“the 3 ^rd Defendant”) residing with his ex-wife Lenore Hoss (“the 1 ^st Claimant”) in the home at 77 Forres Avenue, Cocoyea (“the property”) they first shared as a married couple. Prior to Wilhelm's death, they all lived in this same home with Wilhelm, his new wife Stephanie and son Dario occupying downstairs and his ex-wife Lenore upstairs.

2 After Wilhelm's death in 2016, the 1 ^st Claimant found the living arrangements to be untenable. She filed this Claim with her adult son Clayton Hoss (“the 2 ^nd Claimant”), who resides in Germany. They seek, based on Deeds and a Consent Order entered into between Lenore and Wilhelm, to dispossess Stephanie and Dario and to have the property transferred from the 1 ^st Defendant's estate to Clayton. The documents referred to (“the Agreements”) are as follows:

• a. 2003 Deed of Agreement – DE 200304221043 executed on 8 December 2003 by Wilhelm and Lenore around the time of construction of their home. This Deed of Agreement acknowledged that Wilhelm financed purchase and construction of the property held in Lenore's sole name in fee simple and “settled their rights and entitlements” in relation to same. This addressed what should happen on their death and in the event of a divorce. They were divorced within three years after that.

• b. 2015 Consent Order – Entered by Rampersad J when Lenore and Wilhelm, the Claimant and Defendant respectively in CV2012-00983 (“the 2012 Claim”) agreed on the Trial date 25 May 2015 to a settlement of the Claim and Counterclaim. The salient term of the settlement was that Lenore would transfer her fee simple title in the property to Wilhelm “subject however to the terms and conditions” contained in the 2003 Deed of Agreement.

• c. 2015 Deed of Conveyance – DE 201502810837 executed on 13 October 2015 whereby Lenore's fee simple title to the property was transferred to Wilhelm.

3 The 1 ^st Claimant, Lenore, also relies on equitable interests she claims to have in the home as a basis for the possession and transfer of property reliefs. Specifically, the 1 ^st Claimant contends that, during the first twenty-one years of her marriage, Wilhelm insisted that she not work while they raised their son Clayton. She therefore forfeited earning money to purchase her own property. They lived in Germany.

4 Lenore relied on Wilhelm's promise to purchase property in Trinidad and construct a home on it for her when they returned there to live. The purchase of the property in her name was a fulfillment of that promise, which the 1 ^st Claimant says she relied on to her detriment. Hence her claim to equitable ownership despite having transferred the Fee simple title to Wilhelm in 2015.

5 The 1 ^st Claimant previously canvassed these equitable interests in the 2006 Divorce proceedings between herself and Wilhelm in High Court SM-266 of 2005, wherein they both settled property interests based on the terms of the 2003 Deed of Agreement. The equitable interests were once more raised as the basis for the proceedings referred to above in CV2012-00983, initiated by the 1 ^st Claimant that resulted in the 2015 Consent Order.

6 Additionally, the 1 ^st Claimant seeks damages and injunctive relief for the distress and anxiety she suffered due to the 2 ^nd Defendant's trespass, harassment and intimidation.

7 Having considered the long history of this matter and the submissions on both sides, the Court's determination is that the Claimants have failed to prove any basis in law or equity for the dispossession of the 2 ^nd and 3 ^rd Defendants. Further, there is no legal or equitable basis for transfer of the property to the 2 ^nd Claimant. The property possession and transfer aspect of the Claim will be dismissed.

8 However, on a balance of probabilities, the 1 ^st Claimant has proven the allegations of intimidation. There being no reliable evidence quantifying the injury suffered, a nominal award of damages to be paid by the 2 ^nd Defendant will be granted to the 1 ^st Claimant. Injunctive relief in the same terms as the undertakings given at an early stage of these proceedings will remain in force.

9 This Judgment explains the reasons for these determinations.

B. Issues

10 There are two main categories of issues. Firstly, those relevant to the property possession and transfer claim and secondly, those relevant to the tort claims seeking remedies for distress and anxiety caused to the 1 ^st Claimant.

11 Determination of these issues requires consideration of certain sub-issues as follows:

• a. Property Interests

  • i. On an interpretation of the Agreements, what are the ownership and possession rights of the parties?

  • ii. Is the 1 ^st Claimant estopped by her agreement to the 2015 Consent Order which settled the 2012 Claim from relying on the same equitable interests canvassed in the 2012 Claim as the basis for the relief herein?

• b. Trespass to the Person, Harassment and Intimidation

  • i. There being no evidence filed by the 2 ^nd Defendant contradicting the 1 ^st Claimant's witness statement and oral testimony, have the torts alleged been proven?

  • ii. If so what quantum of damages should the Court award?

  • iii. Will continuation of the interim undertaking herein be appropriate regarding the Claim for injunctive relief?

C. Procedural History and Background Facts

12 The first hearing in this matter was on an application for an interim injunction filed by the Claimants shortly after they filed the Claim in April 2017. The application was intended to obtain urgent protection for the 1 ^st Claimant, Lenore, who alleged she was being harassed by the 2 ^nd Defendant, Stephanie.

13 At the Hearing on 29 June 2017, Stephanie's Attorneys orally tabled counter allegations as to harassment of their client by Lenore. The counter allegations were included in a Defence filed later on, in July 2017, but there was no counterclaim. The Claimants' application for interim relief was resolved by consent with both Stephanie and Lenore undertaking as follows:

“The Second Defendant undertakes to the Court that until further order:

• (a) She will not use or threaten violence against the First Claimant and will not instruct, or encourage or in any way suggest that any other person should do so.

• (b) She will not interfere with, intimidate, harass, pester, slander, insult or assault the First Claimant and will not instruct, or encourage or in any way suggest that any other person should do so.

• (c) She will not obstruct whether by herself, her servants and/or her agents the First Claimant's entry to and/or exit from the upstairs portion of the Property situate at No. 77 Forres Avenue, Cocoyea (hereinafter referred to as “the Property) and will not instruct, or encourage or in any way suggest that any other person should do so, except for the purpose of and only to the extent necessary to repair, maintain or upkeep the corridor leading to the upstairs portion of the Property and/or the fixtures or fittings in the said corridor save that such repair/ maintenance and/or upkeep shall only be undertaken at reasonable intervals.

• (d) She will not destroy any crops or plants on the Property and will not instruct, or encourage or in any way suggest that any other person should do so.

• (e) She will permit the First Claimant, whether by herself, her servants and/or agents, to access the backyard of the Property but only for the limited purposes of:

  • (i) obtaining water; and

  • (ii) accessing the water lines and plumbing for the upstairs portion of the Property.

• (f) She will not conduct any illegal activities upon the Property and will not instruct, or encourage or in any way suggest that any other person should do so.

• (g) She will not damage or cause or permit damage to be caused to any property belonging to, or under the control of, the First Claimant at the Property.

• (h) She shall allow the First Claimant whether by herself, her agents and/or servants to pass over and remain in the front yard of the Property.

• (i) She shall not interfere and/or cause and/or encourage and/or suggest to anyone to interfere with the electricity supply to the upstairs portion of the Property.”

“The First Claimant undertakes to the Court that until further order:

• (a) She will not use or threaten violence against the Second Defendant and will not instruct, or encourage or in any way suggest that any other person should do so.

• (b) She will not interfere with, intimidate, harass, pester, slander, insult or assault the Second Defendant and will not instruct, or encourage or in any way suggest that any other person should do so.

• (c) She will not whether by herself, her servants and/or her agents obstruct the Second Defendant's entry to and/or exit from the downstairs portion of the Property and will not instruct, or encourage or in any way suggest that any other person should do so.

• (d) She will not enter into the backyard of the Property and will not instruct, or encourage or in any way suggest that any other person should do so, except for the limited purposes of:

  • (i) obtaining water; and

  • (ii) accessing the water lines and...