Opinion
CVH8562
11-24-2015
Gladys Flores v. Joaquim Santo aka Jack Santos
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON ENTRY AND DETAINER COMPLAINT
Nicola E. Rubinow, J.
This memorandum of decision addresses the complaint brought by the plaintiff, Gladys Flores (Flores) alleging that against her will and without her consent, the defendant Joaquim Santo, a/k/a Jack Santos (Santo), entered a rental dwelling unit of which she had actual possession and locked her out, in violation of General Statutes § 47a-43(a). Flores seeks an order: enjoining Santo from depriving her of access to the dwelling unit; providing her with restitution or access to personal property listed in her complaint; and awarding her such legal and equitable relief as the court deems proper.
The case was tried on October 21, 2015. Both parties represented themselves, testified and were available for cross-examination; Santo's witness Maria Ferreira (Ferreira) also was available for cross examination. The lease for the dwelling unit at issue was the sole item offered in evidence.
Flores, the plaintiff, bears the burden of proving the essential allegations of her complaint by a fair preponderance of the evidence. As Flores has not met her burden of proof, the relief requested is not available, and judgment must enter in favor of the defendant.
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 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, Inc., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). " 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)." Id.
See General Statutes § 47a-45a.
I
FACTUAL FINDINGS
The court has reviewed the pleadings and considered the evidence in its entirety using the applicable principles of law. The court finds that the following facts were proved at trial 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). " [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 their testimony." (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " Although each witness must stand or fall upon his own testimony, the trier is nevertheless free to disbelieve even unimpeached and uncontradicted testimony." Shipman v. Carr, 38 Conn.Supp. 393, 395, 449 A.2d 187 (App. Sess. 1982); see also Sullivan v. Lazzari, 135 Conn.App. 831, 846, 43 A.3d 750, cert. denied, 305 Conn. 925, 47 A.3d 884 (2012). " [A] trier is not required to believe testimony merely because it is not directly contradicted . . ." (Citations omitted.) Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983). " [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).
Additional facts will be found by like standard as necessary.
Santo is the owner, landlord and lessor for the property located at 1768 Park Street in Hartford, Connecticut which includes the dwelling unit known as #203 (the dwelling unit). On December 19, 2014, Santo's authorized agent, acting on his behalf, entered into a written lease agreement with Flores. In relevant part, the lease allowed Flores to have possession of the dwelling unit for a period of one year starting January 1, 2015, in exchange for rent of $475 payable to Santo on the first day of each month. Paragraph 15 of this rental agreement required Flores to leave the dwelling unit and to remove all her property when the lease ended; ¶ 15 further provided that if Flores did not remove her property when the lease ended, Santo " may consider such property abandoned and may dispose of it" as he deemed appropriate. (Ex. A; Tes. Flores, Santo.)
Credible and reliable the testimony establishes that on Thursday August 6, 2015, Flores came to Santo's office. There, in the presence of Santo and/or his agent Ferreira, Flores unequivocally stated that she was not paying any more rent for use of the dwelling unit as she was moving to Puerto Rico that Saturday. Flores effectively asked to be relieved of her obligations under the lease; under the circumstances, Santo and/or his authorized agent agreed to terminate the lease as requested. (Tes. Santo, Ferreira.) Consistent with her stated intention to permanently leave the dwelling unit in two days, Flores retained the keys and did not return them to Santo and/or Ferreira at their meeting on August 6, 2015. There is no evidence from which the court could reasonably conclude that Flores paid the rent due under the lease for her August 2015 tenancy; this finding is further consistent with the other evidence establishing Flores's intention, stated on August 6, 2015, to terminate the rental agreement effective two days later. (Tes. Flores, Ferreira.)
Flores explained that she was moving out because her father had passed away. (Tes. Ferreira.) Flores does not deny having told Santo and/or Ferreira about her desire to terminate the lease, to stop paying rent, or the reason for her surrender of the dwelling unit, but claims to have no memory of whether she made the statements or not. (Tes. Flores.)
Further credible and reliable testimony establishes that before leaving to commence residence elsewhere, Flores removed substantially all of her property from the dwelling unit; this conduct is consistent with ¶ 15 of the lease, which required removal of her personal property when the rental agreement ended. Flores had begun her residence on or about January 1, 2015; the dwelling unit consisted of a studio apartment with a kitchen area and a small storage room. Reasonably and accordance with Flores's stated intention to stop paying rent and to move out in early August 2015, Santo had his staff enter the dwelling unit at the end of August 2015 to conduct routine maintenance and inspection. There was no indication that any person was either occupying or storing possessions in the dwelling unit at that time: in late August, there was no food in the refrigerator, and only remaining items reasonably appeared to have been discarded, consisting of a non-working television, an air mattress, and two cardboard boxes containing items of indiscernible value. No bedding, clothing, other electronic devices, food or health-related items were present. (Tes. Santo, Ferreira.)
Santo credibly described the contents of the cardboard boxes as being " trash" and/or " junk." (Tes. Santo.) " Trash" is defined by Merriam-Webster.com, an online dictionary, as " things that are no longer useful or wanted and that have been thrown away, " " junk or rubbish" http://www.merriamwebster.com/dictionary/trash.
Although Flores's complaint alleges that she left a " [b]ed, clothes, food, cosmetics, pillow, blankets, jewelry, glasses, cell phone, medications, TV, [and] radio" at the dwelling unit, other than the non-working television and air mattress, the evidence is insufficient to allow the court to conclude that any other particular items were present when Santo's staff entered the dwelling unit at the end of August 2015.
Given Flores's expressly stated desire to stop paying rent because she was leaving Connecticut, corroborated by her removal of substantially all personal belongings before her announced departure date, Santo reasonably determined that Flores had surrendered the dwelling unit and abandoned any contents that remained, as contemplated by ¶ 15 of the previously extant lease. Accordingly, Santo disposed of the television, air mattress and the boxes containing items of indiscernible value. Santo changed the locks to the dwelling in September 2015. (Ex. A; Tes. Flores, Santo, Ferreira.)
On October 8, 2015, without having contacted Santo or his staff since August 6, 2015, and without having paid rent for August or September or October 2015, Flores returned to 1768 Park Street and attempted to enter dwelling unit #203. She had access to the building's open common lobby, but the key she had retained did not allow her entry into the dwelling unit. On that date, Flores came to Santo's office and complained about the fact that her key would no longer unlock the dwelling unit. After telling Ferreira that she had been away because she had been hospitalized, Flores was unwilling or unable to provide documents or other verification of this newly stated cause for her absence. (Tes. Flores, Santo, Ferreira.)
There is no evidence from which the court could reasonably conclude that Flores paid the rent for September 2015 or October 2015, or even that she made arrangements for payment or suspension of the rent due for those months.
Although she offered no health care records or provider testimony at trial, the court credits Flores's testimony indicating that she has been diagnosed with mental illness and that, from time to time, she has been treated for mental illness. The court further credits Flores's testimony indicating that she was released from hospital care approximately two weeks prior to trial, a date which is consistent with the other evidence establishing that Flores reinitiated contact with the dwelling unit, Santo and Santo's staff on October 8, 2015. (Tes. Flores, Santo, Ferreira.) However, the court finds the evidence insufficient to support Flores's claims that she was intermittently hospitalized, was undergoing mental health treatment, and was thus unavailable pay rent, to occupy or even to attempt to enter the dwelling unit for many weeks following August 6, 2015. (Tes. Flores.) Flores's general testimony about psychiatric hospitalization and treatment, without detail or specificity, together with her credited testimony that she was released from hospital care approximately two weeks prior to trial, do not support her allegation that she attempted to enter dwelling unit #203 on September 23, 2015, a date that occurred nearly a month before trial. (Tes. Flores, Santo, Ferreira.)
Flores then prepared and filed the pending lockout complaint which, with attendant documents, was duly served upon Santo on October 14, 2015.
II
RESOLUTION OF THE PARTIES' CLANS
To prevail on her complaint Flores must prove, by a fair preponderance of the evidence, that Santo and/or his agent made " (1) . . . forcible entry into [the] dwelling unit and with a strong hand detain[ed] the same, or (2) having made a peaceable entry, without the consent of the actual possessor, [held] and detain[ed] the same with force and strong hand, or (3) enter[ed] into [the] dwelling unit and caused . . . removal of or detention of the personal property of the possessor ." (Emphasis added.) § 47a-43(a) (presenting alternative elements for recovery). To access relief under the " forcible entry" element of § 47a-43(a)(1), Flores must establish that she " was in actual possession [of dwelling unit #203] at the time of the defendant's entry . . ." Quinto v. Boccanfusco, 54 A.3d 1069, 139 Conn.App. 129 (2012). To meet her burden on any of the three relevant elements of § 47a-43(a)(1), (2) and/or (3), then, the evidence must be sufficient to prove that Flores had actual possession, or was in possession, of the dwelling unit when Santo's agents entered the dwelling unit in late August 2015 and removed the personalty left there, and/or when Santo's agents changed the lock to the dwelling unit.
The fourth entry and detainer element does not apply to this case because, to her great credit, Flores did not cause damage to the premises or commit a breach of the peace in order to regain possession. See § 47a-43(a)(4).
Quinto v. Boccanfusco, supra, 139 Conn.App. 134, 135.
Here, a fair preponderance of the evidence establishes that Flores was neither in " actual possession" of the dwelling unit nor in possession of the dwelling unit when Santo's agents entered, discarded the property left behind, and changed the locks. Instead, a fair preponderance of the evidence establishes that Flores and Santo and/or or Santo's agent, had mutually assented to termination of the lease as of August 6, 2015, with the following Saturday agreed upon as the final date for Flores to have lawful access to the dwelling unit. Applying 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). these principles, Flores cannot meet her burden of proving possession, a predicate to any of the applicable elements of the entry and detainer statute. Accordingly, the court cannot find in Flores's favor.
" '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).
Prior to August 6, 2015, Flores was a lawful tenant in actual possession of the dwelling unit at issue, pursuant to the lease. (Ex. A.) However, as found in Part I, Flores provided Santo and/or his agent with an express declaration on August 6, 2015 establishing that she did not intend reside at, use, occupy the premises or continue to honor the lease terms any longer because she was moving out of the premises on the following Saturday, a specified date. Consistent with her stated intention to vacate the premises, Flores requested relief from her obligation to pay any further rent. Further consistent with her stated intention to move from the premises, Flores neither paid rent nor made arrangements for suspension of her obligation to pay the rent that would be due, under the lease, for the months of August, September or October 2015. These findings support the determination that, acquiescing to Flores's request, Santo and/or his agent agreed on August 6, 2015 to grant Flores's request for release from her obligations under the lease; on that date, the parties mutually assented to terminate the lease with Flores's stay upon the premises agreed to end as of the Saturday following that date. Again consistent with her stated intention to abandon her obligations under the lease and to surrender the dwelling unit as of the Saturday following August 6, 2015, Flores had removed substantially all of her possessions and personal effects from the dwelling unit prior to late August when Santo's agents entered to conduct routine maintenance. It was not her interrupted presence at the dwelling unit following her August 6, 2015 stated intention to move out and discontinue her obligations under the lease, without more, that established Flores's functional delivery to the landlord of her possession of the premises on the following Saturday. Flores's voluntary and intentional waiver of the dominion and control over 1768 Park Street, #203 in Hartford, Connecticut, whose possession she had previously acquired through the lease, was established by her declared decision to vacate the dwelling unit, accompanied by her lengthy absence, her removal of substantially all of her personalty from that location, and also by her nonpayment of rent. In its entirety, Flores's conduct provided Santo and his agents with a reasonable basis for relying upon Flores's unequivocal statement on August 6, 2015 that established her intention to abandon and surrender her privileges and duties under the lease along with any personalty left on the premises.
See footnote 12.
The presence of the non-working television, air mattress and two boxes, which Flores did not attempt to access for many weeks following the Saturday after August 6, 2015, is not sufficient to establish that she exercised the dominion and control that a renters of like property would reasonably exercise. See Quinto v. Boccanfusco, supra, 139 Conn.App. 134-35.
See General Statutes § 47a-16(d) establishing that: " A landlord may not enter the dwelling unit without the consent of the tenant except . . . if the tenant has abandoned or surrendered the premises ." (Emphasis added.). See also Haslam-James v. Lawrence, 133 Conn.App. 321, 327-28, 35 A.3d 368, cert. denied, 304 Conn. 911, 39 A.3d 1121 (2012) (former tenant could not prevail in claim for damages for landlord's entry without her permission, where landlord had a reasonable belief that tenant has vacated or abandoned a dwelling unit before entering).
Accordingly, the court finds that in late August 2015 when Santo's agents entered the dwelling unit, Flores was no longer in " actual possession" of the premises or even a " possessor" of the premises or any contents therein; instead, by mutual agreement of the parties, the lease had ended as of the Saturday following August 6, 2015. Santo reasonably relied upon Flores's express statement of her intention to abandon or surrender the premises within two days, and upon the parties' clearly established mutual assent to termination of the lease, when his staff accessed the dwelling unit at issue and discarded the personalty left behind; because the lease had ended Flores had reason to know the landlord would consider any remaining personalty to be abandoned, and Flores had reason to know that property would be disposed of if the landlord deemed appropriate.
Thus, under the circumstances of this case, a fair preponderance of the evidence supports the conclusion that Santo did not use a " strong hand" to enter the dwelling unit of a tenant in actual possession, but instead entered a dwelling unit whose prior tenant had requested termination of her lease, obtained the landlord's agreement, then had abandoned or surrendered the premises and its remaining contents. Similarly, although Santo through his agents discarded the scant personalty left behind, the landlord in this case did not enter into a dwelling unit of which Flores had " actual possession" or of which she was " the possessor" to cause the detention or removal of property of which she was " the possessor." Through Flores's voluntary and intentional statements to Santo and/or his agent and through her attendant conduct, she ceded to her landlord the possession of 1768 Park Street, #203 in Hartford, CT, along with personalty remaining therein, effective on the Saturday following August 6, 2015. The weightier evidence, upon which the foregoing findings have been based, constrain the court to conclude that Flores has not met her burden of proving the essential allegations of her complaint. Thus, the plaintiff is not entitled to a judgment providing her with access to or possession of 1768 Park Street, #203 in Hartford, CT, and she is not entitled to restitution or a return of any personalty.
See § 47a-43(a).
Viewed from another perspective, the factual circumstances of this case, reflecting Flores's unequivocal oral statement of her desire to stop paying rent and to end the lease predicate to her moving to another location, along with her conduct in removing substantially all personalty from the dwelling unit, provided the landlord with a reasonable basis for believing that she had vacated, abandoned or surrendered the premises with no intention to return. See General Statutes § 47a-16(d).
Even if it could be found that Santo detained or removed personalty and possessions from Flores in violation of § 47a-43, in the absence of adequate evidence, the court would have to speculate as to any particular value that could be attributed to such property. As the court is not permitted to engage in speculation, and as the property is no longer available, only nominal restitution could be awarded, at best.
WHEREFORE, the court enters judgment in favor of defendant, Joaquim Santo a/k/a Jack Santos, without costs to either party.
(Tes. Santo, Flores.)