Opinion
No. TTD CV 08-4009621-S
August 20, 2008
MEMORANDUM OF DECISION
This is a summary process action based on nonpayment of rent. The plaintiff landlord, Stephen Guilmette, seeks a judgment of immediate possession against the defendant tenant, Michele Moore, a mother with four children. Moore raises the special defenses of payment and tender of payment. For the following reasons, the court finds in favor of Guilmette and renders judgment in his favor for immediate possession of the premises known as 33C Brooklyn Street, Rockville, CT.
I
In a summary process action based on nonpayment of rent, 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 failed to pay the rent due under the lease by a certain date; (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; 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. See General Statues § 47a-23; Parker v. Fleet, Superior Court, judicial district of New London, Docket No. 21-16710 (June 9, 2008, Young, J.). Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. See Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1067 (1992).
Where a tenant raises a special defense, the burden on the tenant to prove the special defense is the same: fair preponderance of the evidence. See DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971); Kramer v. Petisi, 91 Conn.App. 26, 33 n. 4, 879 A.2d 526 (2005).
The standard of proof in summary process actions, 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." (Citations omitted; internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
II
This matter was tried to the court on August 8, 2008. Guilmette was represented by counsel. Moore was self-represented. The court heard the testimony of both parties, and it received in evidence a copy of the lease and Notice to Quit. The court finds the following facts: Moore entered into a written lease with Guilmette on February 1, 2006, providing for monthly payment of rent at $900 per month. The lease ended, by its own terms, on January 31, 2007. The lease contained a hold-over provision which allowed the tenant to occupy the premises on a monthly basis after the lease expired. Under the terms, during hold-over, Moore was obligated to pay $900 per month on the first day of each month. Moore would be considered in default if the rent was not paid within ten days of the due date.
Guilmette testified, and the court finds, that Moore did not pay the July rent on the due date, and he served her with a Notice to Quit on July 11, 2008. Guilmette testified, and the court finds, that Moore has not paid Guilmette anything since that date. However, Moore testified that she called Guilmette on the telephone regarding the matter in July. She was not sure of the date, but believes it was sometime before receiving the Notice to Quit. She testified that in the conversation she offered to pay the rent, but Guilmette refused to accept payment. Guilmette denies that he received a call from Moore offering to pay the rent before being served with the Notice to Quit. He testified that she offered to pay later — after July 11 — and that he refused her offer because he wanted immediate possession. Moore testified that at the time of the telephone conversation she did not have a check for the rent, but she discussed payment in the telephone call. The discussion regarding the payment is significant because, if Moore tendered payment before service of the Notice to Quit, and if Guilmette refused to accept it, then Guilmette's summary process action must fail. But, if the tender was equivocal, it was not a valid defense in a summary process case. The law on point was well summarized as follows:
A tender must be unconditional and unqualified, and if there is an express demand that the money shall be received in full, it will vitiate the tender if the court finds it to be conditional and therefore invalid. Sanford v. Bulkley, 30 Conn. 344, 349 (1862). The rules which govern tenders are strict and are strictly applied in that the tenderer must do and offer everything that is necessary on the debtor's part to complete the transaction and must fairly make known his purpose without ambiguity, and the offer or tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction. Nguyen v. Calhoun, 129 Cal.Rptr.2d 436, 439 (2003).
In other words, with respect to tender, it is the debtor's responsibility to make an unambiguous tender of the entire amount due or else suffer the consequence that the tender is of no effect. Id. The seminal case on tender under Connecticut law held that "[i]n the case of a debt or pecuniary claim, to constitute an offer to pay it, as a general rule, the actual production of money, and the placing it in the power of the person who is entitled to receive it, is requisite [but] such production of it is not necessary, when it is prevented by the party entitled to it, or he expressly waives its production, or does what is equivalent." Sands v. Lyon, 18 Conn. 18, 25 (1846).
In the Sands case, the defendant debtor based his claim of lawful tender on the fact that he was on his way to the plaintiff creditor's home when he met the defendant and told him that he had the money to pay him and was about to tender the full amount of the debt to him when Sands walked away from him after saying that he wanted nothing to do with Lyon. Id., 21. The defendant then went to the Sands' home and made the same offer to his wife which she "utterly refused to receive." Id.
Our Supreme Court, in the later case of Ashburn v. Poulter, 35 Conn. 553 (1869), followed the holding in Sands v. Lyon, supra, 18 Conn. at 18, by restating the general rule that although the money for the payment of the debt must be actually produced and given to the creditor, when its production is prevented by the creditor himself or dispensed with by his refusal to receive it or by language or conduct by word or act tantamount to such refusal, then the tender is valid because no person is required to do a futile act. In that case, the creditor told the debtor that he had to make the payment to the plaintiff creditor's attorney and emphasized the fact that "it is the intention of the creditor not to receive, intentionally and unequivocally expressed by words or conduct calculated and intended to convince the debtor that presentation is useless, which excuses the actual production or presentation of the money." (Emphasis in original.) Ashburn v. Poulter, supra, at 556.
The doctrine of tender as articulated by the Supreme Court in the cases cited above has been applied consistently to rental payments made by tenants to their landlords where the tenant had attempted to pay "the rent by check in good faith and in pursuance of an implied agreement and custom then existing between [the tenant] and the plaintiff [landlord]." Buritt v. Lunny, 90 Conn. 491, 496 (1916). In Buritt, when the payment by check was attempted by the defendant tenant, it was refused by the plaintiff landlord's attorney who then demanded that the payment should be made in cash because the alleged tender was legally insufficient despite the tenant's willingness to pay, but the Court rejected the demurrer to the tenant's defense of tender thereby implicitly adopting the rule that a landlord cannot complain of delay in payment of rent caused by his own acts. Id.
It is essential in a summary process action initiated because of the nonpayment of rent that the plaintiff landlord prove, in order to prevail, that there had been no tender or its legal equivalent before the declaration of a forfeiture by some unequivocal act by the landlord, such as the service of a notice to quit based on such alleged nonpayment. Mayron's Bake Shops. Inc. v. Arrow Stores, Inc., 149 Conn. 149, 155 (1961).
Hathaway v. Combs, Superior Court, judicial district of Tolland, Docket No. CV 03-080506 (June 18, 2003, Hammer, J.T.R.).
In the instant case, the uncontested facts show that no payment was made on or before July 10, nor was payment made before the Notice to Quit was served on July 11, and even if Moore's conversation about payment occurred before any of those dates, she did not have a valid check to give him at that time. Therefore, she did not tender payment, legally. Guilmette has established his case, and Moore's special defense must fail.
III
The court finds, by a fair preponderance of the evidence, that Guilmette has proved all the elements of the summary process action. The court finds that Moore has failed to prove, by a fair preponderance of the evidence, her special defenses. Therefore, the court enters judgment for Guilmette for immediate possession of the premises known as 33C Brooklyn Street, Rockville, CT.
As provided in General Statutes § 47a-35, execution shall be stayed for five days from the date this judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days. Pursuant to General Statues § 47a-37, a notice of defendant's rights to file an application for further stay of execution is supplied to all parties together with a copy of this decision.