Opinion
NBSP064683
12-03-2015
Nicholas D. Tiscione et al. v. Central Auto Exchange, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON SUMMARY PROCESS ACTION
Nicola E. Rubinow, J.
On August 18, 2015, the plaintiffs Nicholas D. Tiscione and Lorraine S. Tiscione (the plaintiffs), as landlords and owners, brought a summary process action seeking a judgment of immediate possession of the nonresidential property known as Buildings One and Two at 304-308 East Street in Plainville, Connecticut (the premises) and requesting forfeiture of the possessions and personal effects of each defendant left at those premises pursuant to General Statutes § 47a-42a. As amended, the First Count of the complaint sounds in nonpayment of June 2015 rent as to the defendant Central Auto Exchange, LLC (Central Auto) and the Fourth Count sounds in nonpayment of June 2015 rent as to the defendant Thomas Nevue (Nevue). The Second Count sounds in nonpayment of June 2015 rent as to the defendant George Schmidt (Schmidt). The numbered paragraphs of the Third Count of the complaint allege that while Schmidt originally had a right or privilege to occupy the premises he has overstayed that right or privilege, or words of similar import, as his written lease has expired and any attendant right or privilege to occupy the premises has terminated.
General Statutes § 47a-42a(a) provides, in relevant part: " Whenever a judgment is entered against a defendant . . . for the possession or occupancy of nonresidential property, such defendant and any other occupant bound by the judgment . . . shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects unless execution has been stayed pursuant to sections 47a-35 to 47a-41, inclusive. If execution has been stayed, such defendant or occupant shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects upon the expiration of any stay of execution. If the defendant or occupant has not so removed himself or herself upon entry of [such] judgment . . . and upon expiration of any stay of execution, the plaintiff may obtain an execution upon such summary process judgment, and the defendant or other occupant bound by the judgment . . . and the possessions and personal effects of such defendant or other occupant may be removed as provided in this section."
The plaintiffs were represented by counsel. On August 24, 2015, Schmidt filed an appearance as a self-represented party and submitted three applicable special defenses: that a written lease was in effect; that rent was offered to the plaintiffs on June 8, July 15 and August 10, 2015; and that the summary process action was brought in retaliation by the landlord. Neither Central Auto nor Nevue has appeared in this matter; neither participated at trial.
The plaintiffs bear the burden of proving the allegations of their complaint by a fair preponderance of the evidence; Schmidt bears like burden as to his special defenses. The case was tried to the court on October 22, 2015. Thomas Tiscione and Schmidt testified and were subject to vigorous cross-examination; the plaintiffs submitted a number of documents in evidence. On October 26, 2015, the plaintiffs filed their Post-Trial Brief addressing the status of Central Auto Exchange, LLC in this litigation.
The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
I
FACTUAL FINDINGS
Upon review of the applicable pleadings and due consideration of the testimony and exhibits provided at trial, the court finds the facts set forth in this memorandum of decision to have been proved by a fair preponderance of the evidence.
" The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence ." (Internal quotation marks omitted.) (Emphasis added.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996). The trial court's function as the fact finder " is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986).
At all times relevant to this summary process litigation, Central Auto has operated in the state of Connecticut as a limited liability company, doing business as " Central Auto Exchange, LLC" with George Schmidt as its sole owner and member. (Exs. 1, 2.) Acting through Schmidt, the premises known as Buildings One and Two at 304/308 East Street in Plainville, CT are and have been used by Central Auto to operate, transact and promote business activities associated with the maintenance, preparation and sale of " pre-owned (used) cars." (Ex. 1. P8.a.) Pursuant to General Statutes § 34-124, as a limited liability company, Central Auto has the " power to and may sue and be sued" and may enter into contracts, as with other entities so empowered in this state. As the sole member and owner of Central Auto, Schmidt is and at all relevant times has been " an agent of the limited liability company for the purpose of its business or affairs . . ." General Statutes § Sec. 34-130(a). (Exs. 1, 2, 3, 4; Tes. T. Tiscione, Schmidt.)
See General Statutes § § 34-100, 101, 102.
Lorraine Tiscione and Nicholas Tiscione (Tiscione) are the owners and landlords of all portions of the premises. (Ex. 1, P2; Ex. 2, P14; Tes. T. Tiscione.) On April 28, 2011, the plaintiffs entered into a written lease agreement with the tenant identified as " George Schmidt [sole] owner of the Limited Liability Corporation, Central Auto Exchange LLC . . ." (the April 2011 lease). (Ex. 1, P3.) The April 2011 lease allowed the tenant to use and occupy a portion of the premises identified as " 304/308 East Street. Plainville, CT . . . 304 East Street, Building One [and] 308 East Street Building Two, " for an initial term of five years, with five-year term renewal options expressly contemplated in P4. (Ex. 1; Tes. T. Tiscione.) The April 2011 lease also established that " George Schmidt [sole] owner of the Limited Liability Corporation, Central Auto Exchange LEC are the guarantors on the lease . . ." (Emphasis added.) (Ex. 1, P3.) The April 2011 lease obligated Schmidt and/or Central Auto to mail rent payments to Lorraine Tiscione or Tiscione at the rate of $2,000 per month, due on the first of each month with " a ten-day grace period, " and specified a rent increase to $2,200 per month commencing January 1, 2014 and continuing until December 31, 2016. (Ex. 1, P5.) The April 2011 lease established that Schmidt and/or Central Auto would " carry out all business activities reasonably associated with the operation for the sale of pre-owned (used) cars [and would] be responsible for any person or persons associated with Central Auto Exchange LLC . . ." (Ex. 1, P8.a.) On April 28, 2011 Schmidt signed the lease as " Tenant, " identifying himself as " George Schmidt (Central Auto Exchange LLC). (Ex. 1.)
From time to time, Thomas Tiscione acts as Lorraine Tiscione's authorized agent in business affairs related to the premises.
Although the April 2011 lease also stated: " As of January 1, 2011. Rent will increase To $2,100 per month, " the court finds this clause to have weight in the context of this litigation in which the plaintiff has admitted that the initial rent rate was $2,000 per month. (See, e.g., Amended Complaint, First Count P2; Second Count, P2; Third Count, P2.)
The April 2011 lease acknowledged that in operating Central Auto, Schmidt would have other " persons associated with Central Auto Exchange LLC" engaged in the promotion and transaction of the business. (Ex. 1, P8.a.) Upon the premises, to operate, promote and transact the business of selling used cars, Schmidt, Central Auto and/or such other persons were expressly permitted by the April 2011 lease to access " Two bays approximately 800 square feet with an auto lift in each bay and a shared air compressor and . . . [a] parking/lot approximately 4, 500 square feet located on the east side of building number one." (Ex. 1, P1.)
On October 1, 2013, in response to Central Auto's expansion of its operation, the plaintiffs as " Owner/Landlord" and " George Schmidt (Central Auto Exchange LLC)" as " Tenant" agreed, in writing, to amend the April 2011 lease terms (the October 2013 amendment). (Ex. 2.) Pursuant to the October 2013, amendment Schmidt and Central Auto again were allowed to use and occupy portions of the premises in addition to those locations identified in the April 2011 lease. (Ex. 2, P13.) Through Item 5 Revision A, the October 2013 amendment imposed an increased monthly rent rate of $2,800, due from the tenant on the first day of every month with a " ten-day grace period for each payment due" by check made out to Lorraine Tiscione or Tiscione, leaving the five-year term intact but requiring the Landlord's review of any way in which the lease agreement would be affected if Central Auto changed ownership. (Ex. 2.) Although referring to additional portions of the premises to be leased, the October 2013 amendment identified the same " Tenant" party as the tenant identified in the April 2011 agreement, as follows: " George Schmidt [sole] owner of the Limited Liability Corperation (sic), Central Auto Exchange LLC are the guarantors on the Lease . . ." (Emphasis added.) (Ex. 2.) The amendment was signed on October 1, 2013 by Tiscione and Lorraine Tiscione as " Owner.Landlord" and by " Tenant George Schmidt (Central Auto Exchange LLC)." (Ex. 2.)
Among other things, the October 2013 amendment designated the additional portion of the leased premises as follows: " approximately 300 square feet of office space, counters, and a shared bath room in Building One." (Ex. 2, P13.)
By early 2015, Schmidt was having difficulty paying the rent. Neither Schmidt nor Central Auto paid the plaintiff anything in February or March 2015, although they continued to use and occupy the premises pursuant to the April 2011 lease and the October 2013 amendment. (Exs. 3, 4; Tes. T. Tiscione.)
Tiscione, Schmidt and Nevue met in late March 2015. At that meeting, Schmidt made clear his request to terminate his obligations and privileges under both the April 2011 lease and the October 2013 amendment; Tiscione agreed to Schmidt's request. The parties' mutual assent to terminate Schmidt's obligations under the 2011 lease and the October 2013 amendment, effective on or about April 6, 2015, is manifest in the parties' subsequent conduct. Under date of March 28, 2015, within days after the late March 2015 meeting, Schmidt sent Tiscione a letter clearly stating his request without condition or contingency: " I am writing this letter per your request asking that you terminate our lease agreement at 304/308 East St Plainville, Ct, on March 31st 2015 ." (Emphasis added.) (Ex. 3.) Schmidt's letter articulated his planned sale of " the Business known as Central Auto Exchange LLC to Mr. Nevue and his uncle" and acknowledged Tiscione's agreement that Nevue would pay the rent due for possession of the premises in February and March 2015. (Ex. 3.)
Thereafter, on April 6, 2015, Tiscione responded by sending a letter to " George Schmidt (Central Auto Exchange LLC)" confirming that Tiscione had accepted Schmidt's request " effective April 1, 2015." (Ex. 4.) This letter, received by Schmidt on April 7, 2015, presented Tiscione's unequivocal statement that, in response to Schmidt's request, " I am terminating both leases dated April 28, 2011 and October 1, 2013 ." (Emphasis added.) (Ex. 4.) Tiscione's letter further stated that he and Nevue had " signed a new Lease Agreement, effective April 1, 2015" for a decreased monthly rent and that Nevue had agreed to pay the " back rent for February 2015 and March 2015 . . ." (Ex. 4.) In view of their clear, joint decision to terminate the lease agreements that had existed between them, Tiscione's letter informed Schmidt that he had " until April 15, 2015 to vacate and remove any personal items . . . on the premises." (Ex. 4.)
Schmidt did not leave the premises, but remained there after April 15, 2015, continuously operating Central Auto at that location; both Schmidt and Central Auto have maintained possession of the premises without interruption. For equitable purposes, the court finds that neither Schmidt nor Central Auto has paid the plaintiffs any compensation for use and occupancy of the premises during the months of June, July, August or September 2015. For equitable purposes, the court further finds that with Schmidt and Central Auto in place, the plaintiffs have been deprived of the compensation for the use of their property, and have been deprived of the opportunity to secure paying tenants for the premises. (Tes. T. Tiscione.)
On August 7, 2015, four months after the April 2011 and October 2013 lease agreements had terminated by mutual assent, the plaintiffs caused a state marshal to serve a valid and legally sufficient " Notice to Quit (End)" Possession upon Schmidt, Central Auto and Nevue, clearly stating that August 11, 2015 was the last day any defendant was permitted to occupy the premises.
See § 47a-23(a)(3). Present in the court file and never sufficiently contested, " [t]here is a presumption of truth afforded to the statements in the marshal's return. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996)." Donnie Dickerson, Administrator v. Jayne F. Pincus, 154 Conn.App. 146, 153, 105 A.3d 338 (2014). Schmidt's notice to quit, served August 7, 2015, lists alternative grounds for his need to leave the premises: " 1. Non payment of rent (June 2015) [and] 2. Expiration of written lease." See Wilkes v. Thomson, 155 Conn.App. 278, 281-2, 109 A.3d 543 (2015) (approving presentation of alternative grounds in the notice to quit).
On August 13, at the direction of the plaintiffs, a State Marshal caused Nevue, Central Auto and Schmidt to be served with a true copy of the Summons Summary Process (Eviction), the notice to quit and the Summary Process Complaint with exhibits. Notwithstanding due notice of the summary process litigation brought against them, neither Nevue nor Central Auto has never appeared in the matter or responded to the litigation in any way.
On September 10, 2015, the date originally set for trial, the court extended additional time to allow counsel to enter an appearance on behalf of Central Auto. See Practice Book § 2-44A. Central Auto remains unrepresented.
II
RESOLUTION OF THE CLAIMS AGAINST NEVUE AND CENTRAL AUTO
On August 27, 2015, the plaintiffs filed a motion for default based on Nevue's failure to appear, accompanied by an affidavit sufficient to establish that Nevue is not in the military or naval service of the United States. Based upon this defendant's failure to appear, the court finds him in default. As Nevue's default effectively admits of each of the allegations brought against him, the plaintiffs have met their burden of proof as to the Fourth Count of their summary process complaint. Based upon this default, the court now enters judgment of possession against Nevue and in favor of the plaintiffs, and orders forfeiture of Nevue's possessions and personal effects remaining upon the premises pursuant to § 47a-42a.
See General Statutes § 47a-26 et seq.; Practice Book § 17-30. See also Practice Book § § 17-20(a), (f) and 17-21.
" As our Supreme Court has explained, the entry of a default judgment conclusively establishes the facts alleged in the plaintiff's complaint. Smith v. Snyder, 267 Conn. 456, 468, 839 A.2d 589 (2004)." Dziedzic v. Pine Island Marina, LLC, 143 Conn.App. 644, 645, 72 A.3d 406, 407 (2013). In other words, " [t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint." DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). See also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000) (" A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant" [internal quotation marks omitted]).
On August 27, 2015, the plaintiffs also filed a motion for default based on Central Auto's failure to appear in the matter. As found in Part I, Central Auto is a limited liability company with a single member, George Schmidt; under those circumstances, no military affidavit is necessary to support a finding of failure to appear or a judgment rendered in response to that failure to appear. Accordingly, due to Central Auto's failure to appear, the court finds this defendant in default. As Central Auto's default effectively admits of each of the allegations brought against it, the plaintiffs have met their burden of proof as to the First Count of their summary process complaint. Based upon this default, the court now enters judgment of possession against Central Auto and in favor of the plaintiffs, and orders forfeiture of Central Auto's possessions and personal effects remaining upon the premises, pursuant to § 47a-42a.
On the first day of evidence, the plaintiffs made an oral motion to find Central Auto in default, based on that defendant's failure to appear and failure to attend trial proceedings. Consistent with the rulings presented through this memorandum of decision, to the extent necessary, the court now grants that oral motion, entering judgment of possession and forfeiture against Central Auto and in favor of the plaintiffs.
No military affidavit is required for entry of judgment based on Central Auto's default. See Practice Book § § 17-30, 17-20(f)(2).
See General Statutes § 47a-26 et seq.; Practice Book § 17-30. Just as they have affirmed judgments upon defaults rendered against individual and corporate defendants, our Supreme and Appellate Courts have affirmed judgments based upon defaults entered against limited liability companies. See, e.g., Dziedzic v. Pine Island Marina, LLC, supra, 143 Conn.App. 645 (affirming judgment against LLC for default for failure to appear); Nelson v. Contractor Group, LLC, 127 Conn.App. 45, 47, 14 A.3d 1009, 1010 (2011) (affirming judgment of default where " defendant did not file an appearance or respond in any manner"); Little v. Mackeyboy Auto, LLC, 142 Conn.App. 14, 16, 62 A.3d 1164, 1165 (2013) (affirming default judgment against LLC after claim of insufficient service of process). See also Testa v. Carrolls Hamburger System, Inc., 154 Conn. 294, 300, 224 A.2d 739 (1966), cited in E. Elevator Co. v. Scalzi, 193 Conn. 128, 134, 474 A.2d 456, 460 (1984) (affirming default judgment upon default against corporate defendant).
See footnotes 10, 12 and 15.
III
RESOLUTION OF THE SECOND COUNT AGAINST SCHMIDT
To prevail on the Second Count of the complaint, sounding in nonpayment of rent, in addition to establishing the sufficiency of the notice to quit and service of the complaint with attachments, the plaintiffs must prove: that Schmidt and Central Auto had possession of the premises in June 2015; that Schmidt was obligated, personally and/or on behalf of Central Auto, to pay rent for the month of June 2015 under a lease agreement that was then in effect; and that Schmidt did not pay rent to the plaintiffs for Central Auto's use and occupancy of the premises in June 2015 as required by such a lease. Through the facts as found in Part I, the plaintiffs have met their burden of proving that a notice to quit and summary process complaint was duly served upon Schmidt, informing him of the claim of nonpayment of rent for June 2015; that Schmidt and Central Auto maintained possession of the premises through June 2015; and that Schmidt did not pay the plaintiffs rent for June 2015. However, although the first paragraph of the notice to quit served upon Schmidt personally on August 7, 2015 alleges " Non payment of rent, " the plaintiffs have failed to prove the existence of a lease or other rental agreement, operative in June 2015, that either required Schmidt to pay rent to the plaintiffs for possession of the premises during that month, or that required him to pay rent to the plaintiffs for Central Auto's possession of the premises during that month. Under these circumstances, as an extant lease or other rental agreement is a crucial element of their nonpayment of rent claim, the plaintiffs cannot prevail on the Second Count of their complaint.
General Statutes § 47a-1(h) states: " 'Rent' means all periodic payments to be made to the landlord under the rental agreement ." (Emphasis added.)
As discussed in Part IV, the plaintiffs' failure to prevail on the Second Count of the complaint is not fatal to their summary process action. In a civil case, where the complaint sets forth separate counts presenting " alternative theories of recovery, " the plaintiffs may prevail if their burden of proof has been met on one count, alone. See Milford Bank v. Phoenix Contracting Group, Inc., 143 Conn.App. 519, 523 n.2, 72 A.3d 55 (2013).
The court has carefully considered the entirety of the evidence related to the plaintiff's apparent claim, in the Second Count of the amended complaint, that Schmidt was bound by the terms of a lease requiring him personally, or on behalf of Central Auto, to pay rent for using the premises in June 2015. The evidence fails to disclose the existence of a written lease or any other agreement requiring Schmidt to pay " rent" to the plaintiffs, as contemplated by General Statutes § 47a-1(h), for June 2015. To the contrary, the evidence as a whole establishes the absence of an effective lease agreement, whether oral or written, binding Schmidt personally or on behalf of Central Auto, to pay rent to the plaintiffs as alleged.
Several aspects of the evidence compel the conclusion that no lease or rental agreement was effective in June 2015, despite the plaintiff's claims and notwithstanding Schmidt's special defense that he has " a written lease that is still in effect . . ." (Special Defense, 8/24/15.) As found in Part I, Schmidt did not pay the rent that was due for either February 2015 or March 2015 as required the terms of the April 2011 lease and the October 2013 amendment. (Exs. 1, 2; Tes. T. Tiscione.) The conduct of Tiscione and Schmidt thereafter clearly and unequivocally establishes that on or about April 6, 2015, these parties not only had formed the intention to and but also had mutually assented to abandon the lease contracts into which they had entered in April 2011 and amended in October 2013. This abandonment of the 2011 and 2013 agreements terminated any obligation Schmidt had, personally or on behalf of Central Auto, to make periodic rent payments to the plaintiffs pursuant to any lease, as an operative lease no longer existed. The circumstances attendant the parties' conduct after Schmidt had failed to pay the rent due in February or March 2015, as found in Part I, impel this conclusion: in late March 2015, Tiscione and Schmidt met with Nevue; at the meeting in late March 2015, Schmidt and Tiscione agreed to terminate their lease agreements; under date of March 28, 2015, after this meeting, Schmidt wrote to Tiscione declaring his inability to pay any further rent and specifically asking for termination of his lease agreement for the premises; on April 3, 2015, Tiscione and Nevue " came to an agreement and signed a new Lease Agreement, effective April 1, 2015" for Nevue to use the premises in lieu of Schmidt; Tiscione wrote to Schmidt on April 6, 2015, identifying Nevue as the " new owner of Central Auto Exchange LLC" and stating that " Nevue agreed to pay [the] back rent for February 2015 and March 2015" in lieu of Schmidt; Tiscione's April 6, 2015 letter to Schmidt expressly stated that he had accepted Schmidt's request to terminate their lease agreement and that, effective April 1, 2015, Tiscione was " terminating both leases dated April 28, 2011 and October 1, 2013"; and Tiscione's April 6, 2015 letter allowed Schmidt only " until April 15, 2015 to vacate and remove any personal items . . . on the premises." (Exhibits 3, 4.) Consistent with the intended finality of their mutual assent to terminate any lease terms between them, Tiscione sent Schmidt the April 6, 2015 by certified mail; and, further consistent with the intended finality of their mutual assent to terminate any pre-existing lease terms between them, on April 7, 2015 Schmidt accepted delivery of Tiscione's certified letter, indicating his receipt of the explicit terms for mutual termination of the lease agreements. (Ex. 4.) Tiscione credibly testified that after the exchange of the March 28, 2015 and April 6, 2015 communications, the plaintiffs considered any lease agreement with Schmidt to have ended. (Tes. T. Tiscione.) This evidence is fully consistent with the content of Schmidt's March 28, 2015 letter to Tiscione through which Schmidt admitted his financial inability to continue the lease agreement, and with his clear request to end any part he would play in any lease with the plaintiffs. (Ex. 3; Tes. Schmidt.)
" 'Mutual assent to abandon a contract, like mutual assent to form one, may be inferred from the attendant circumstances and conduct of the parties . . . Our Supreme Court's conclusion . . . that parties are free to terminate an agreement by mutual assent has been followed in later cases. [T]he well-established rule [is] that rescission or abandonment of contracts, like entry into a contractual relation, depends upon the intent of the parties and that the relevant intent is to be inferred from the attendant circumstances and conduct of the parties.' (Citations omitted; internal quotation marks omitted.) Smith & Smith Building Corp. v. DeLuca, 36 Conn.App. 839, 842-43, 654 A.2d 368 (1995); see also Herman S. Newman & Partners, P.C. v. CFC Construction Ltd., Construction Ltd. Partnership, 236 Conn. 750, 762, 674 A.2d 1313 (1996)." Young v. Young, 78 Conn.App. 394, 402, 827 A.2d 722 (2003).
See General Statutes § 47a-1(h).
The allegations of the Second Count of the complaint further support the court's conclusion that, as of June 1, 2015, Schmidt had no extant obligation to pay rent pursuant to a lease for use of the premises. Paragraph 11 of the Second Count admits that " On April 1, 2015, Thomas Nevue signed a lease with the plaintiff landlords to release the entirety of the property previously leased by Central Auto Exchange, LLC ." (Emphasis added.) Apparently referencing Schmidt, to whom the Second Count is directed, but without identifying which of the several leases described in that count, P15 states; " [t]he defendant has not paid the rent due on June 1, 2015, as agreed to in the lease ." (Emphasis added.) More specifically, but again without identifying which lease is referenced, P19 of the Second Count alleges that " George Schmidt has not paid the rent due on June 1, 2015, as agreed to in the lease ." (Emphasis added.) Fairly read, both references to " the lease" in PP15 and 19 of the Second Count are directed at the " release" to Nevue acknowledged in P11 of the Second Count. There is no evidence from which the court could reasonably conclude that Schmidt was a party to the April 1, 2015 lease between the plaintiffs and Nevue, or that Schmidt took any action to bind Central Auto to that lease. Thus, due to the termination of the April 2011 and October 2013 lease terms as intended and as mutually agreed to by Tiscione and Schmidt in April 2015, the only lease effective as of June 1, 2015 was that entered into by Tiscione and Nevue on April 1, 2015, as admitted in P11 of the Second Count. (Exs. 3, 4; Tes. Tiscione.)
Although presenting an alternative ground for summary process against Schmidt, the court also notes that in P18 of the Third Count of the complaint, further consistent with the intended finality of Schmidt's and the plaintiffs' mutual assent to terminate any lease terms between them as of April 2015, the plaintiffs admit that " [t]he lease entered into by George Schmidt either in his individual capacity or as a member of Central Auto Exchange, LLC was terminated by lapse of time based on [Schmidt's] written notice to the plaintiffs and plaintiffs' acceptance of said notice dated April 6, 2015 ." (Emphasis added.)
Read in context, P12 of the Second Count states that in the April 2015 lease, instead of Schmidt, " the tenant is listed as follows: 'Thomas Nevue, soul [sic] owner of the limited liability corporation, named Sentral [sic] Auto Exchange, LLC is a guarantor on the lease while in possession of 304/308 East Street, Plainville, CT 06062.'" (Emphasis added.)
Paragraph 14 of the Second Count alleges that Schmidt sent an email to Tiscione on May 16, 2015, stating Schmidt's opinion that the lease the plaintiffs had with Nevue " is not legal and binding . . . and that " the leasehold that I (owner of Central Auto Exchange, LLC) had prior to [Nevue's] had prior to his fraudulent lease acquisition with you is still considered to be legally binding . . ." The court received insufficient evidence to establish that such an email was sent or received. Even if Schmidt made this pronouncement as alleged, any claim that the April 2011 and/or October 2013 leases remained effective after April 6, 2015 is not supported by the evidence or the law. See footnote 19.
There is no evidence from which the court could reasonably conclude that Tiscione and Schmidt ever entered into an oral agreement for the use of the premises; to the contrary, Tiscione's April 6, 2015 letter indicated that Schmidt was not authorized to be on the premises after April 15, 2015. As no extant written lease legally bound Schmidt to pay rent to the plaintiffs after April 6, 2015, personally or on behalf of Central Auto, no rental agreement existed for June 2015 requiring him to make a periodic rent payment to the plaintiffs under a lease, as contemplated by § 47a-1(h). Accordingly, judgment is entered in favor of the defendant Schmidt on the Second Count of the Complaint.
Schmidt's and/or Central Auto's use and occupancy of the premises after the termination of his lease with the plaintiffs is insufficient to establish the existence of any agreement for a further lease. See General Statutes § 47a-3d.
IV
RESOLUTION OF THE THIRD COUNT AGAINST SCHMIDT
The Third Count of the complaint effectively alleges that Schmidt once had a right or privilege to occupy the premises but that such right or privilege has terminated, rendering him susceptible to summary process. To prevail on the Third Count, in addition to establishing the sufficiency of the notice to quit and service of the complaint with attachments, the plaintiffs must prove that: there once was a valid agreement allowing Schmidt to use and occupy the premises and binding Schmidt to pay the plaintiffs for the privilege of using and occupying the premises, personally and/or through his operation of Central Auto; that the parties amended the original lease agreement in October 2013 but still allowed Schmidt to continue using and occupying the premises in exchange for payment of rent; that the lease between Schmidt and the plaintiffs terminated by mutual assent on or about April 6, 2015; that despite due notice presented both through Tiscione's letter of August 6, 2015 and through the Notice to Quit served on August 7, 2015, Schmidt did not leave the premises, but remained in possession of the previously-leased portions of 304/308 East Street, Plainville, CT, using and occupying the premises and continuing to operate Central Auto from that location through June 2015 without privilege to do so. The plaintiffs have met their burden of proving the essential allegations of the Third Count of the complaint. Thus, the plaintiffs are entitled to a judgment of immediate possession and forfeiture of personalty left on the premises by Schmidt and/or Central Auto, as contemplated by § 47a-42a.
See General Statutes § 47a-43(a)(3).
As found in Part I, Schmidt continuously has possessed, used and occupied the premises since entering into the April 2011 lease with the plaintiffs. Schmidt's privilege to lawfully possess, use and occupy these premises was derived from the April 2011 lease and the October 2013 amendment to that lease agreement. As found in Part I and as further discussed in Part III, the April 2011 and October 2013 lease agreements through which Schmidt acquired and maintained the privilege to possess, use and occupy the plaintiffs' premises terminated, as Schmidt and Tiscione intended, by mutual assent, on or about April 6, 2015. However, after the lease terminated, ending his privilege to remain in possession, use and occupy the premises, Schmidt did not vacate the premises or remove his personalty. Instead, Schmidt overstayed his privilege and remained in possession, using and occupying the premises after the lease had expired. Schmidt was duly served on August 7, 2015 with a valid notice to quit that, using words of sufficient import, advised him of his obligation to leave the premises because he no longer had an extant contract authorizing him, or establishing a privilege for him, to remain there. As found in Part I, Schmidt was duly and timely served on August 13, 2015 with the writ, summons and complaint, and attendant documents, in compliance by General Statutes § 47a-23a, commencing sunimary process litigation against him.
For equitable purposes, the court finds that Schmidt did not pay the plaintiffs $2,800, the fair rental value established by the October 2013 amendment, for his June 2015 use and occupancy of the nonresidential premises at issue; he has not compensated the plaintiffs in any way since before February 2015 although he has continued in possession, operating Central Auto at that location. Schmidt's continuous possession, use and occupancy of the premises after January 2015 without paying any compensation has been to the detriment of the plaintiffs, who have been deprived of the $2,800 fair rental value of the premises for each of those months that Schmidt has remained in possession. (Tes. T. Tiscione.)
Equitable circumstances are generally relevant to summary process proceedings. See Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 777, 627 A.2d 386 (1993), quoting Fellows v. Martin, 217 Conn. 57, 62-63, 584 A.2d 458 (1991). For purposes of addressing such equitable circumstances that are relevant to this matter, including the plaintiffs' request for forfeiture and Schmidt's special defense sounding in retaliation, the court also notes that Schmidt stopped honoring his responsibility to pay for utility services to the premises of which he has had possession; since February 2015, to their additional loss, the plaintiffs have paid approximately $600 per month for the utilities Schmidt and/or Central Auto has consumed. (Tes. Tiscione.)
Schmidt has failed to prove any of the relevant special defenses by a fair preponderance of the evidence. He is not entitled to the pretermination notice designed to protect tenants of property in foreclosure. As found in Part III, Schmidt has no written lease that is in effect. He has not met his burden of proving that the plaintiffs brought the summary process action against him " because of a bad business deal that did not come to fruition" or because they sought to use " business mishaps to try and take advantage of [him] and increase the rent." (Special Defenses, 8/24/15.)
Although the court offered Schmidt the opportunity to request the issuance of subpoenas, the self-represented litigant reported on October 22, 2015 that he had no need to subpoena witnesses. Other than his own testimony, which the court declines to credit in large part, and Schmidt's cross examination of Tiscione, the self-represented litigant proffered no evidence in support of his special defenses.
The court credits the testimony establishing that the premises have never been the subject of foreclosure proceedings. (Tes. T. Tiscione.)
The court finds no basis for crediting Schmidt's testimony that he wrote to Tiscione requesting termination of the April 2011 and October 2013 lease agreements only in reliance upon Nevue's expected purchase of Central Auto or Nevue's anticipated entry into a lease with the plaintiffs. Schmidt's March 2015 admission that he was unable to pay the " rent for Feb, March & April going forward, " consistent with Tiscione's credible testimony regarding failure to pay use and occupancy, provides far more reliable evidence of the reason why Schmidt's requested to be relieved of his lease obligations. (Ex. 3; Tes. Schmidt.) The court does credit Schmidt's testimony establishing that he has not paid the plaintiffs anything for his June 2015 possession or for his possession thereafter, and further credits Schmidt's claim that he will not pay the plaintiffs anything at all unless they agree to a lease for the premises that is drafted according to Schmidt's terms. (Tes. Schmidt.)
As the plaintiffs have proved the essential allegations presented in the numbered paragraphs of the Third Count, sounding in occupancy after termination of privilege through words of similar import, the court finds this count in their favor. Accordingly, the court enters a judgment of immediate possession for the plaintiffs and orders forfeiture of personalty left on the premises by Schmidt and/or Central Auto pursuant to § 47a-42a.
V
CONCLUSION
The plaintiffs Lorraine Tiscione and Nicholas Tiscione have met their burden of proof on the First Count of the complaint, sounding in nonpayment of rent by the defendant Central Auto Exchange, LLC.
The plaintiffs have met their burden of proof on the Fourth Count of the complaint, sounding in nonpayment of rent by the defendant Thomas Nevue.
The plaintiffs have not met their burden of proof on the Second Count of the complaint, sounding in nonpayment of rent pursuant to a lease, as to the defendant George Schmidt.
The plaintiffs have met their burden of proof on the Third Count of the complaint, based on the defendant George Schmidt's original right or privilege to occupy the premises which right or privilege has terminated. As to this count, the court further finds that: Schmidt once was the lessee of the plaintiffs Nicholas Tiscione and Lorraine Tiscione; that Schmidt overstayed his privilege after termination of the lease as amended; that Schmidt occupied the premises in June 2015 without right or privilege to occupy the same; that Schmidt did not pay for his use and occupancy during the month of June 2015, as alleged; that notice to quit was duly served, yet Schmidt held possession and occupancy after the expiration of the time specified in the notice to quit; and that Schmidt has not shown a title in the premises which accrued after the giving of the lease or existing at the time the notice to quit possession or occupancy was served.
WHEREFORE, having found the facts, applied the law and balanced the equities, on the First, Third and Fourth Counts of the summary process complaint, the court now enters judgment in favor of the plaintiffs and ORDERS their immediate possession of the premises known as Building One and Building Two located at 304/308 East Street in Plainville, CT. The court further ORDERS forfeiture of any and all personalty left on the premises by Schmidt, Central Auto and/or Nevue. The stay of execution provided by General Statutes § 47a-35 shall be final as to each defendant.