Opinion
No. HDSP-140738
April 13, 2007
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I. STATEMENT OF CASE
This is a summary process action based on lapse of time and serious nuisance. The plaintiff seeks immediate possession of the premises. The defendant alleges that the lapse of time count is barred by General Statute § 47a-23c. The matter was tried on April 9, 2007.
II FINDINGS OF FACT
The following facts were admitted and/or proved at trial by a fair preponderance of the evidence.
"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
"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." (Internal quotation marks omitted.) Cavoli 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 . . ." (Citations omitted; internal quotation marks omitted.) 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). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, CT Page 5038 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).
"[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." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087 (1992).
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).
The plaintiff is the owner of the subject premises at 44 Connecticut Boulevard, East Hartford, Connecticut, including Room #3. The building is a rooming house with nine units. When the plaintiff bought the building in November 2006, the defendant was residing there.
On or about December 1, 2006, the plaintiff and the defendant entered into an oral lease for the term of one month for the use and occupancy of the subject premises. The defendant agreed to pay the monthly rent of $460.00, payable on the first day of each month. The rent included the extra cost of electricity used by the defendant for his three refrigerators. The size of the defendant's room was approximately 12 feet by 10 feet. The defendant took possession of the premises pursuant to the oral one-month lease, and still occupies the premises.
On or about November 18, 2006, the plaintiff viewed the interior of the defendant's room from the doorway. The room appeared to be full of numerous items strewn about including, trash, boxes, bags, chairs, food containers, and personal household items. The furniture was mostly covered, and the floor was difficult to see. There were three large refrigerators in the room. The room was so cluttered that a person would have difficulty walking through the room unobstructed.
Based on the conditions of the defendant's unit, the plaintiff was concerned that the room would attract rodents and vermin, the three refrigerators would overload the electrical system, and the debris surrounding the refrigerator would present a fire hazard. The plaintiff asked the defendant several times to cleanup his room, but the defendant was either unwilling or unable to do so. The defendant, however, testified at trial that he threw out his trash on a regular basis.
The defendant also had several inoperable motor vehicles on the property. These vehicles were filled with trash. The plaintiff was concerned that the vehicles would attract rodents. The plaintiff tried unsuccessfully to have the defendant remove the vehicles. The plaintiff finally had the vehicles towed at his own expense.
On or about December 14, 2006, the building passed the annual rooming house inspection. There was no evidence that the inspector saw the inside of the defendant's unit.
After the defendant failed to address the plaintiff's concerns, on December 27, 2006, the plaintiff caused a notice to quit to be served on the defendant to vacate the subject premises. Although the time given in the notice to quit has passed, the defendant still continues in possession.
In or about early April 2007, the plaintiff entered the defendant's room, without permission, because of concerns regarding the condition of the room. There was a stench coming from the room. The plaintiff took several pictures of the unit. The condition of the room had not improved. It was still full of trash, boxes, and other items, making it difficult to see the floor and the furniture. The mess was waist high at certain points. The three refrigerators were all running.
The plaintiff offered the following explanation as to why the local authorities were not contacted regarding the room conditions. In the beginning, the plaintiff had tried to get the defendant to cleanup the unit. After these efforts proved unsuccessful, the plaintiff served the defendant with a notice to quit and initiated a summary process action. The plaintiff was reluctant to contact the local authorities because the state of the unit might lead to the closing of the rooming house.
III DISCUSSION
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." (Citations omitted). Tait's, Handbook of Connecticut Evidence (3rd Ed. 2001) Sec. 3.3.1, p. 136.
A Plaintiff's Case
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087 (1992). Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant.
The plaintiff seeks to evict the defendant based on lapse of time and/or serious nuisance. General Statutes § 47a-23(a) provides: "When the owner or lessor, . . . desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, . . ., and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; . . . (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 . . ., such owner or lessor, . . ., shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy."
(1) Lapse of Time
In a summary process action based on lapse of time, the landlord must prove, by a fair preponderance of the evidence, all the elements of the claim. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The rental agreement has terminated by lapse of time; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date, as required by law; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. § 47a-23(a)(1)(A).
(2) Serious Nuisance
In a summary process action based on serious nuisance, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant's conduct constituted a serious nuisance, as defined by law; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date, as required by law; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. § 47a-23(a)(1)(G).
"[S]erious nuisance means (A) inflicting bodily harm upon another tenant or the landlord or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out, (B) substantial and wilful destruction of part of the dwelling unit or premises, (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord, or (D) using the premises or allowing the premises to be used for prostitution or the illegal sale of drugs or, in the case of a housing authority, using any area within fifteen hundred feet of any housing authority property in which the tenant resides for the illegal sale of drugs."
"Serious nuisance is more than a nuisance. It is more than a material noncompliance with the tenant's duties to maintain the property in proper condition." Quiles v. Martinez, Superior Court, judicial district of Fairfield, Docket No. SPBR 9504-29423 (June 30, 1995, Tierney, J.) [ 15 Conn. L. Rptr. 114].
The plaintiff alleges that the defendant's conduct constituted a serious nuisance based on excessive and unsafe storage of garbage and other personal property in the defendant's room, which poses a fire hazard, and leaving unauthorized and inoperable motor vehicles on the property. The court must determine whether the defendant's conduct "presents an immediate and serious danger to the safety of other tenants or the landlord." § 47a-15(C).
B Defense Case
"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 447 n. 10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
(1) Prohibition on Eviction of Certain Tenants except for Good Cause
The defendant alleges that the lapse of time count is barred by General Statute § 47a-23c.
Section 47a-23c provides in relevant part: "Prohibition on eviction of certain tenants except for good cause. (a)(1) Except as provided in subdivision (2) of this subsection, this section applies to any tenant who resides in a building or complex consisting of five or more separate dwelling units or who resides in a mobile manufactured home park and who is either: (A) Sixty-two years of age or older, or whose spouse, sibling, parent or grandparent is sixty-two years of age or older and permanently resides with that tenant; (B) blind, as defined in section 1-1f; or (C) physically disabled, as defined in section 1-1f, but only if such disability can be expected to result in death or to last for a continuous period of at least twelve months . . . (b)(1) No landlord may bring an action of summary process or other action to dispossess a tenant described in subsection (a) of this section except for one or more of the following reasons: (A) Nonpayment of rent; (B) refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of this section; (C) material noncompliance with section 47a-11 or subsection (b) of section 21-82, which materially affects the health and safety of the other tenants or which materially affects the physical condition of the premises; (D) voiding of the rental agreement pursuant to section 47a-31, or material noncompliance with the rental agreement; (E) material noncompliance with the rules and regulations of the landlord adopted in accordance with section 47a-9 or 21-70; (F) permanent removal by the landlord of the dwelling unit of such tenant from the housing market; or (G) bona fide intention by the landlord to use such dwelling unit as his principal residence . . . (3) A tenant may not be dispossessed for a reason described in subparagraph (B), (F) or (G) of subdivision (1) of this subsection during the term of any existing rental agreement."
At trial, the parties stipulated that the defendant is legally blind as defined by General Statutes § 1-1f. The evidence demonstrated the rooming house contains five or more units. The defendant, therefore, qualifies as a member of a protected class of tenants under § 47a-23c. The plaintiff is prohibited from evicting the defendant for lapse of time. The defendant, however, may be evicted based on serious nuisance.
(2) Serious Nuisance
The defendant contends that his conduct does not amount to a serious nuisance. If anything, his conduct constitutes a nuisance, and the plaintiff has failed to comply with the statutory requirements.
General Statutes § 47a-32 provides: "Nuisance defined. In any action of summary process based upon nuisance, that term shall be taken to include, but shall not be limited to, any conduct which interferes substantially with the comfort or safety of other tenants or occupants of the same or adjacent buildings or structures."
Section 47a-15 provides: "Noncompliance by tenant. Remedy of breach by tenant. Landlord's remedies. Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-11, if there is a material noncompliance with section 47a-11 which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, . . ."
In a nuisance case, a landlord is required to serve the tenant with a noncompliance letter, also known as a Kapa notice, pursuant to § 47a-15. "[T]he landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate; or (2) if substantially the same act or omission for which notice was given recurs within six months, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive." § 47a-15. "A Kapa notice is not required when the complaint is based on serious nuisance." Quiles v. Martinez, supra.
C Analysis
Based on the evidence presented, the court makes the following findings as to the respective claims and defenses.
In the second count, the plaintiff accuses the defendant of excessive and unsafe storage of garbage and other personal property in his room, which poses a fire hazard. The evidence demonstrated that the defendant's room was cluttered throughout with trash, boxes, and other items. The furniture and floor were not readily visible. Items were piled waist high at points. The room is small; it is only 12 feet x 10 feet in size. Despite the limited space, the defendant has operated three refrigerators, which are surrounded by debris. Since November 2006, the condition of the unit has not improved. It appears to be getting worse.
The court must consider whether the condition of the room presented a fire hazard. "Hazard" is defined as: "Danger or peril; esp., a contributing factor to a peril." Black's Law Dictionary 735 (8th ed. 2004). The defendant lives in a rooming house with several other tenants. His room is so full of debris that it raises serious health and safety concerns. A stench has emanated from the room. Under these circumstances, a reasonable inference can be drawn from the facts that the condition of the room has presented, and still presents, a fire hazard.
The defendant's conduct has been more than just a nuisance. It has caused, and continues to cause, an immediate and serious danger to the safety of the other tenants. For whatever reason, the defendant does not recognize the seriousness of his conduct. He has demonstrated an inability and unwillingness to address the condition of his room. Unfortunately, the situation is beyond repair.
IV CONCLUSION AND ORDER
The plaintiff has proved, by a fair preponderance of the evidence, all the elements of the serious nuisance claim. The defendant has failed to prove, by a fair preponderance of the evidence, any defense to this claim. Having considered the law and equity, the court enters judgment for plaintiff for immediate possession.