Opinion
No. HDSP-145464
November 25, 2009
MEMORANDUM OF DECISION ON MOTION FOR RECONSIDERATION AND SUMMARY PROCESS TRIAL DECISION
This is a summary process action brought by the plaintiffs, Anthony D. Pinnone, Sr., Vincent Pinnone and Tsani P. Sarnese to recover possession of commercial premises known as 167, 169,173-175 Franklin Avenue, Hartford, Connecticut from the defendants, KEM Auto Sales, LLC and Jose Diaz. A trial was conducted on July 29, 2009 at which the plaintiffs and the defendants were represented by counsel.
This is the sixth in a series of summary process actions brought by the plaintiffs to recover possession of the premises occupied by the defendants. All of the prior actions were brought for nonpayment of rent and four of the five complaints alleged additional grounds.
I PROCEDURAL BACKGROUND.
The plaintiffs commenced the present summary process action for nonpayment of rent by complaint filed December 27, 2007. The original notice to quit returned to court with the complaint is dated December 11, 2007 and was served on the defendants on December 12, 2007. The reason set forth in the notice to quit is "Non-payment of rent for the month of December, 2007." On January 9, 2008 the plaintiffs filed an amended complaint.
On January 25, 2008, the defendants were defaulted for failure to appear. On January 31, 2008, the defendants' attorney filed his appearance and a motion to open the judgment. On February 11, 2008, the motion was granted. ( Wiese, J.) On February 14, 2008, the plaintiffs filed an amended complaint. On February 19, 2008, the defendants filed a motion to strike which, after hearing, was granted on March 3, 2008 ( Wiese. J.). On March 12, 2008, the plaintiffs filed an amended complaint. On March 20, 2008, the defendants filed a request to revise the amended complaint. On April 16, 2008 the plaintiffs' objections to the defendants' request to revise was overruled and the plaintiffs filed an amended complaint on May 12, 2008 which became the operative complaint in this action. On May 19, 2008, the defendants filed a request to revise to which the plaintiffs objected and which objection was sustained by the court. ( Wiese, J.) On June 9, 2008 the defendants filed a motion to stay the proceedings and request for admissions. On June 25, 2008, the plaintiffs filed a notice of compliance with the defendants' request for admissions. On July 1, 2008, the defendants filed an objection to the plaintiffs' notice of compliance. After hearing, the court overruled the defendants' objection on July 15, 2008. The defendants filed a motion for reconsideration which was denied on July 21, 2008. ( Wiese, J.). On July 24, the defendants filed a motion for summary judgment which was heard and denied on September 30, 2008. ( Gilligan, J.).
The matter was scheduled for trial on October 27, 2008. On the morning of trial, the defendants filed a motion to dismiss the action together with a memorandum of law in support of their motion. The court granted a continuance for the plaintiffs to respond to the motion and for the defendants to submit a reply memorandum.
In the motion, the defendants claimed that plaintiffs brought the action "relying on improper grounds" since it was brought for nonpayment of rent and the defendants claim the absence of an agreement. Having found that a rental agreement existed at the time that the notice to quit was served, the court denied the motion to dismiss on March 17, 2009 in a written memorandum of decision. Thereafter, the defendants filed a motion for re-argument and reconsideration claiming that the motion to dismiss was denied without a hearing. The plaintiffs filed an objection to the defendants' motion claiming that the defendants were fully heard on the motion. In response to the defendants' claim, the court conducted a hearing on July 29, 2009, at which the parties were afforded the opportunity to present additional evidence and argument. At the conclusion of the hearing, the court reserved decision on the defendant's motion for reconsideration and the parties proceeded on the same day to a trial on the merits.
Having granted the parties the opportunity to present additional evidence and argument, and after full reconsideration of the defendants' motions, the court adheres to its decision and denial of the defendants' motion to dismiss the action.
II. FACTUAL BACKGROUND.
Anthony Pinnone, his sister, Tsani P. Sarnese and brother, Vincent Pinnone, are the owners of the subject premises, having taken title to the premises by a probate court certificate of devise from their father's estate dated January 10, 2006. (Plaintiff's Exhibit 1). Jose Diaz testified that he is a member of Kem Auto Sales, LLC ("KEM"). Diaz owns ninety-five percent of the ownership interests in KEM and his spouse owns five percent.
In support of their claims raised in this action, the defendants have cited the prior summary process actions brought by the plaintiffs in this court. Prior to this action, the plaintiffs have commenced five separate summary process actions seeking to recover the premises from the defendants. All of the five actions were brought for nonpayment of rent and four of the five complaints were brought on additional grounds. In their memoranda and oral arguments, the parties have made reference to certain facts, pleadings, transcripts, prior testimony and actions taken by the parties found in the in record of the five preceding summary process actions. "The superior court can take judicial notice of the files and records in another suit formerly pending in that court between the parties." McCleave v. John J. Flanagan Co., 115 Conn. 36, 38, 160 A. 305 (1932); see also Bayer v. Showmotion, Inc., 292 Conn. 381, 393 n. 8, 973 A.2d 1229 (2009). The court has taken judicial notice of the prior actions between the parties but only to the extent that any facts relied on by the court were factual findings in those actions and are set forth in this memorandum of decision.
HDSP 140087 (filed 11/15/06 — withdrawn 1/10/07); HDSP 140940 (filed 01/18/10 — withdrawn 03/02/07); HDSP 141162 (filed 03/02/07) — withdrawn 04/19/07); HDSP 142010 (filed 04/20/07-dismissed 08/15/07); and HDSP 144046 (filed 9/14/07 — withdrawn 11/27/07).
III THE PRIOR SUMMARY PROCESS ACTIONS
A. The First Summary Process Action (HDSP 140087).
On October 31, 2006, the plaintiffs served the defendants with a notice to quit for nonpayment of rent and commenced suit on November 15, 2006. Both parties were represented by counsel. The action was the subject of a number of motions from both sides and was withdrawn on January 10, 2007.
B. The Second Summary Process Action (HDSP 140940).
The second summary process action was commenced on January 18, 2007 for nonpayment of rent and where one originally had the right or privilege to occupy but any such right or privilege has terminated. The defendants were defaulted for failure to appear on January 26, 2007. On February 1, 2007 an appearance and motion to open was filed by the same counsel who appeared for the defendants in the first summary process action. On February 13, 2007 the defendants' motion to open the judgment was heard and granted ( Bentivegna, J.). On March 2, 2007, the action was withdrawn.
C. The Third Summary Process Action (HDSP 141162).
The third summary process action was commenced on March 2, 2007 for nonpayment of rent, where one originally had the right or privilege to occupy but any such right or privilege has terminated and lapse of time. The parties were represented by the same counsel as in the previous actions. The matter was the subject of several motions including extensions of time and requests for disclosure and production. On April 10, 2007, the defendants filed a motion to dismiss. On April 16, 2007, the plaintiffs filed an amended complaint but the action was withdrawn on April 19, 2007.
D. The Fourth Summary Process Action (HDSP 142021).
The fourth summary process action was commenced on April 20, 2007 for nonpayment of rent, where one originally had the right or privilege to occupy but any such right or privilege has terminated, lapse of time and never had a right or privilege to occupy. On May 2, 2007, the defendants were defaulted for failure to appear ( Bentivegna, J.) On May 8, 2007 an appearance and motion to open judgment were filed by the same counsel who appeared for the defendants in the first three summary process actions. The motion to open was heard and granted on May 29, 2007 ( Peck, J.). On June 4, 2007 the defendants filed a motion to dismiss. The motion was heard on August 8, 2007 and the action was dismissed on August 15, 2007. ( Peck, J.).
E. The Fifth Summary Process Action (HDSP 1444046).
The fifth summary process action was commenced on September 14, 2007. On October 2, 2007, the defendants were defaulted for failure to appear. On October 9, 2007 an appearance and motion to open was filed by the same counsel who appeared for the defendants in the first four summary process actions. The motion was scheduled for October 16, 2007 but continued to October 23, 2007 at the request of the defendants' counsel ( Wiese, J.). On October 23, 2007 the defendants' motion to open and motion for extension of time to plead were granted ( Wiese. J.). The defendants were ordered to file their motion to dismiss by 4:00 p.m. on November 2, 2007. The motion was filed on November 5, 2007 together with a request for permission to file a late brief. The motion was scheduled for November 19, 2007 and continued to November 27, 2007. The action was withdrawn on November 27, 2007.
IV THE PRESENT ACTION (HDSP 145464).
A. The Plaintiffs' Complaint
The plaintiffs' amended complaint alleges that the plaintiffs and defendants entered into an oral lease of the premises and that the defendants "agreed to pay the monthly rental of $3,200.00 payable on the first day of each month commencing September 1, 2006, pro-rated for any partial month." The complaint further alleges that the defendants took possession of the premises and that the defendants failed to pay December, 2007 rent.
The defendants argue that the plaintiffs' notice to quit in the present action is invalid because the reason stated in the notice is incorrect. The notice to quit, dated December 11, 2007 was served on the defendants on December 12, 2007. The notice required the defendants to relinquish possession "on or before December 18, 2007 for the following reason: 1. Non-payment of rent for the month of December, 2007." Specifically, the defendants argue that, at the time that the notice to quit was served, they were tenants at sufferance and although responsible for use and occupancy payments, they were not obligated to pay rent.
B. The Defendants' Special Defenses
The defendants have asserted three special defenses to the plaintiffs' complaint. The defendants' First Special Defense (lack of a leasehold agreement) alleges:
"1. The notice to quit that was served upon defendants did not terminate a lease.
2. At the time the notice to quit was served defendants did not have a leasehold with the Plaintiffs."
The defendants' Second Special Defense (failure to name a necessary party) alleges:
"1. At all times mentioned herein Plaintiffs were aware the entire premises was not in the possession of the Defendants.
2. At all times mentioned herein and for some time prior to the institution of this action Plaintiffs were aware or had reason to know that other entities occupied the premises.
3. Plaintiffs have failed to name those entities.
4. As these entities continue in possession they are necessary parties for the disposition of this case."
The defendants' Third Special Defense (lack of standing) alleges:
"1. Plaintiffs lacked privity with these defendants as they continued in possession since August of 2006 pursuant to a sublease with JRT Associates, LLC.
2. No benefit of the sublease inured to the Plaintiffs."
C. The Existence of a Rental Agreement
The plaintiffs claim that the defendants breached an oral agreement to pay rent. The defendants claim that there was no agreement. In support of the defendants' claim, Jose Diaz testified that he has never paid any rent or made any use and occupancy payments to the plaintiffs since August, 2006, the month when the plaintiffs claim that the parties entered into the rental agreement. To prevail in this action brought for nonpayment of rent, the plaintiffs must prove the existence of a rental agreement.
Jose Diaz testified that he entered into possession of the premises in September or October of 2005 to conduct an automobile sales business as a subtenant of JRT Associates ("JRT"). Diaz testified that JRT and KEM "basically shared the same space." JRT paid monthly rent of $4,500 to the Estate of Vincent Pinnone. The defendants paid rent of $2500 per month to JRT until August, 2006 when JRT ceased to pay rent and was served with a notice to quit by the plaintiffs.
Pinnone testified that he met with Diaz in late August, 2006 and Diaz told him he wanted to remain on the premises to conduct the business. Pinnone testified that the parties orally agreed to a lease of the premises at a monthly rental of $3200 per month with payments to commence September 1, 2006. Pinnone testified that Diaz "negotiated" the rental amount "down" to $3200 "which was less than JRT was paying." Pinnone testified that Diaz said he needed a few days to get the money together and Pinnone consented to the request. Pinnone testified that the discussion took place on the premises and that he and Diaz "shook hands on the agreement." Diaz acknowledged that when JRT was in the process of moving out at the end of August 2006, he was approached by Anthony Pinnone. Diaz admitted that he met with Pinnone and discussed a lease but maintained that any agreement that was made was conditional and would need the approval of his attorney.
"[A] lease is a contract. . . . ." Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007). "A basic tenet of contract law is that there must be a meeting of the minds for a contract to be found." Zahornacley v. Edward Chevrolet, Inc., 37 Conn.Sup. 751 (1981). The defendants argue that there could be no agreement because the defendants did not agree with the plaintiffs' "conditions." The defendants, however, offered no testimony concerning any conditions required by the plaintiffs which the defendants found objectionable. Moreover, Pinnone credibly testified that he and Diaz "shook hands on the agreement."
"[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness's testimony." (Internal quotation marks omitted.) Hoffer v. Swan Lake Ass'n., Inc., 66 Conn.App. 858, 861, 786 A.2d 436 (2001).
"The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. . . . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Citations omitted; internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn. App. 234, 238, 907 A.2d 1274 (2006).
The court has weighed all the evidence and assessed the credibility of the witnesses. The court finds that the evidence and credible testimony of the parties support the reasonable conclusion that there was a meeting of the minds and that a rental agreement which provided for the payment of rent in the amount of $3200 was entered into by the parties. The court finds that the plaintiffs have sustained their burden to prove the existence of a rental agreement with the defendants.
D. The Status of the Agreement When the Defendants Were Served With the Notice to Quit
Having found that a rental agreement was formed in August, 2006, the court next must determine whether the rental agreement can be found to have been in existence at the time that the notice to quit was served
In a summary process action based on nonpayment of rent, the landlord must prove all the elements of the case by a fair preponderance of the evidence. 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. General Statutes Sec. 47a-23(a)(1)(D).
The plaintiffs' notice to quit was served on the defendants on December 12, 2007 for "Non-payment of rent for the month of December, 2007." In their amended complaint, the plaintiffs allege that on or about August 15, 2006, the plaintiffs and defendants entered into an oral lease pursuant to which the defendants agreed to pay a monthly rental $3,200 payable on the first day of each month commencing September 1, 2006. The plaintiffs also allege that "The oral month to month lease remained in effect on December 1, 2007." The defendants argue that there was no rental agreement between the parties in effect when the notice to quit was and therefore the service of the notice to quit for nonpayment of rent was "improper".
E. The Effect of the Prior Summary Process Actions
The defendants argue that the first of the series of notices to quit dated September 14, 2006 terminated any tenancy at will that existed and created a tenancy at sufferance. The defendants claim in their memorandum that it remains a "mystery" to them how the plaintiffs could "allege that the August, 2006 lease remained in effect on December 1, 2007 despite the fact that the tenant never paid any rent to the landlord and there were numerous notices to quit that were issued to the defendants prior to December 1, 2007."
When the defendants failed to make the September rental payment, the plaintiffs served the defendants with a notice to quit on September 14, 2006 (Defendants' Exhibit A). Pinnone testified that he prepared the notice to quit with the assistance of a state marshal and that the reason specified in the notice to quit "never had a right or privilege to occupy the premises" was suggested by the marshal. No complaint was filed based on this notice to quit. Moreover, the handwritten name of the landlord on the notice to quit was "V.S.P. Estate, LLC." No explanation or argument was offered by either party concerning this entity or whether it had any relationship to the parties claims in the present action.
In Housing Authority v. Hird, 13 Conn.App. 150, 535 A.2d 377 (1988), the plaintiff initiated three summary process actions before finally evicting the defendant. A notice to quit was served based on nonpayment of rent. The first eviction action ended with judgment for the defendant. A week or so after the judgment entered, the plaintiff served a second notice to quit followed by a summary process action based on nonpayment of rent. The second eviction action was withdrawn by the plaintiff before judgment was rendered. Id., 154. Less than a week after the second eviction action was withdrawn, the plaintiff served a third notice to quit based on nonpayment of rent. Id., 153-54. The trial court rendered judgment for the plaintiff in the third action. Id., 154. "The trial court found that . . . because the eviction action following the [second] notice to quit possession [had] been withdrawn, [it] had no legal effect or consequence on the preexisting lease between the parties." Id., 155.
Our Supreme Court has recently commented on the Appellate Court's reasoning in Hird with regard to multiple notices to quit and the legal effect of serial summary process actions on the relationship of the parties. "The Appellate Court [in Hird] first concluded that the tenant was "a tenant at will" in January, 1986, because the judgment in her favor on the merits in the first summary process action "had `revived' the original lease arrangement," thus obligating her to pay rent to the landlord. . . . The court further concluded that the lease also had survived the landlord's withdrawal of the second summary process action on January 29, 1986, because "[t]he right of [the landlord] to withdraw his action before a hearing on the merits, as allowed by [General Statutes] § 52-80 . . . is absolute and unconditional. Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket. . . . The withdrawal of the summary process action on January 29, 1986, effectively erased the court slate clean as though the eviction predicated on the November 15, 1985 notice to quit possession had never been commenced. The [landlord] and the [tenant] were back to square one, and the continuation of their lease . . . was restored." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 157" Waterbury Twin v. Renal Treatment Centers-Northeast, 292 Conn. 459, 467-8, 974 A.2d 626 (2009).
In the present case, four of the prior actions were withdrawn by the plaintiffs and therefore the notices to quit served in those matters were of no legal effect under Hird, supra. A fifth action by the plaintiffs, HDSP 142010, was dismissed on August 15, 2007 ( Peck, J.).
A dismissal of a summary process action has the same effect on the status of the parties as a withdrawal. In Metacomet Homes, Inc. v. Calabretta, No. HDSP-145890 (Apr. 25, 2008, Bentivegna, J.) the court was confronted with a motion to dismiss based on the defendant's claim on the basis that in a prior summary process action there was a rendition of a final judgment in favor of the defendant by way of dismissal of the action. In denying the motion to dismiss the court held "As in Hird, the dismissal `effectively erased the court slate clean as though the eviction predicated on the [first] notice to quit possession had never been commenced.' Hird, 156-57. Consequently, the defendant's obligation under the lease . . . survived." The same result would obtain in the present action with respect to the dismissal of the fifth action, HDSP 142010.
Based on the forgoing authorities and under the facts of this case, the court finds that the notices to quit and complaints served by the plaintiffs in the preceding summary process actions had no effect on the legal relationship between the parties and that the withdrawals of HDSP 140087, 140940, 141162, and 144046 and the dismissal of HDSP 142010 revived and restored the parties' rental agreement.
F. The Plaintiffs' Rescission Notice.
As noted, the fifth summary process action brought by the plaintiffs prior to this action was withdrawn on November 27, 2007. On Monday, December 10, 2007, the plaintiffs sent a notice to the defendants via Federal Express (Defendants' Exhibit C) advising the defendants that the plaintiffs "hereby withdraw and rescind any Notice to Quit which was previously served or issued prior to December 1, 2007" (the "Rescission Notice").
The defendants acknowledge in their memorandum of law that they "became aware" of the Rescission Notice but claim they were not aware of it until after the notice to quit was served on December 12, 2007. (Defendants' Memorandum Dated October 24, 2008, at page 7). The defendant argues, however, that the Rescission Notice was sent too late and that in order to "wipe the slate clean," the Rescission Notice needed to be sent prior to December 1, 2007.
The parties entered into a commercial lease. Although Connecticut General Statutes § 47a-15a provides a nine day grace period for residential tenancies, absent a contractual provision, there is no such grace period for commercial tenancies. See Rich Taubman v. Sweeney Todd's Hair Des., No. SPNO 30972 (Feb. 9, 2005) ( Jennings, J.); Karwosky v. Christofakis, SNBR-436, August 10, 1995 ( Tierney, J.); and Wooster Square Develop. v. Jerry V. Leaphart, No. SP97-8355 (Dec. 16, 1997) ( Radcliffe, J.).
The defendants appear to argue that a rental agreement is terminated by a tenant's failure to pay rent when due. Although any such failure constitutes a breach of the rental agreement, the rental agreement is not terminated until the landlord exercises a right to terminate.
"It is well settled that breach of a covenant to pay rent does not automatically result in the termination of a lease . . . rather, it gives the lessor a right to terminate the lease which he may or may not exercise. . . . In order to effect a termination, the lessor must perform some unequivocal act which clearly demonstrates his intent to terminate the lease. (Citations omitted.)." Waterbury Twin v. Renal Treatment Centers-Northeast, supra, n. 17.
In this regard, the defendants offered a letter from "Anthony Pinnone and Associates" threatening to "lock the premises" because "it is necessary to protect the property from any environmental and property damage caused by the unauthorized activities being conducted on the property." (Defendants' Exhibit B). Pinnone admitted sending the letter on the advice of former counsel but shortly thereafter the plaintiffs engaged new counsel who advised against the threatened action. The defendants assert that this letter resulted in a termination of the rental agreement.
As pointed out in Sandrew v. Pequot Drug, Inc., supra, the words or deeds of a landlord may be sufficient to cause a termination of a lease but such is the case "only" in certain limited situations. "Although the Appellate Court [in Sandrew] has stated that `there is almost no limit to the possible words or deeds which might constitute the unequivocal act necessary to terminate the lease,' that court also has noted that such latitude is applicable only in situations wherein `a lessor might wish to terminate a lease but not wish to institute a summary process action,' such as where the tenant has already moved away from the premises." (Emphasis added). Waterbury Twin v. Renal Centers-Northeast, supra, n. 17.
Pinnone testified that, acting out of frustration and his concern that the defendants were committing environmental and zoning violations on the premises, he unwisely threatened to "lock the premises." Although Pinnone never acted on the threat, even if he had, the defendants have offered no authority that an entry and detainer by a landlord results in the termination of a rental agreement. Moreover, with the withdrawal by the plaintiffs of the fifth action on November 27, 2007, the parties' monthly rental agreement was restored and the demand that the defendants vacate the premises by November 30, 2007 would be premature and therefore invalid.
As ill-advised as sending the letter was, the court finds that the letter was insufficient to terminate the rental agreement.
Our Appellate Court found recent occasion to restate and clarify its ruling on the effect of Hird on the status of a rental agreement. "Although the Hird court stated that the parties go back to square one as if the summary process action had never been commenced, Hird does not stand for the proposition that a lease can be revived retroactively. The language the defendant cites ignores the court's use of phrases such as "[the tenant's judgment] `revived' the original lease arrangement"; id., 155; and "continuation of their lease . . . was restored." Id., 157. Such phrases connote the prospective application of a lease's provisions, rather than indicating retroactive revival." Sproviero v. J.M. Scott Associates, Inc., 108 Conn. App. 454, 464, 948 A2d 379 (2008).
Therefore, upon the withdrawal of the fifth summary process action by the plaintiffs, the rental agreement was restored prospectively in accordance with Sproviero and in effect on November 27, 2007. Since the parties agreed to a monthly rental agreement, the agreement would remain in effect for one month. Logic would hold that it would be consistent with the parties original agreement that the rent was due on the first of the month which would require payment of rent by the defendants on December 1, 2007. Anthony Pinnone testified that the defendants failed to pay rent on December 1 or, for that matter, at any time in December. The court finds that the plaintiffs have sustained their burden to prove that the defendants failed to pay rent as alleged.
The court finds that the evidence and credible testimony of the parties support the conclusion that a rental agreement was entered into by the parties, which was unaffected by the multiple summary process actions preceding this action and remained in existence at the time of the service of the notice to quit. The court further finds that the notice to quit was valid under the provisions of General Statutes Sec. 47a-23. The court finds that the plaintiffs have sustained their burden to prove that the defendants failed to pay rent when due as alleged.
The notice to quit served on September 14, 2006 (Defendants' Ex. A) was brought by VSP Estate, LLC, a non-party and therefore was a nullity. In any event, the plaintiffs' Rescission Notice rescinded all previous notice to quit.
Judgment for immediate possession will enter in favor of the plaintiffs unless the defendants can prevail on their burden to prove any special defense.
V THE SUFFICIENCY OF THE DEFENDANT' SPECIAL DEFENSES
As noted above, the defendants asserted three special defenses to the complaint: (1) No leasehold agreement, (2) Failure to name a necessary party and (3) Lack of privity.
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50.
"Under our practice, when a defendant pleads a special defense, the burden of proof on the allegations contained therein is on the defendant." DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971). "Whoever asks the court to grant judgment regarding any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." C. Tait E. Prescott, Tait's Handbook of Connecticut Evidence (4th Ed. 2008) § 3.3.1, p. 114.
A. The First Special Defense.
The defendants' first special defense is that there was no leasehold agreement. Having asserted this special defense, rather than pleading a general denial of the plaintiffs' allegation of an agreement in the complaint, the defendants assumed the burden to prove the special defense. Having previously found the existence of a leasehold agreement, the court finds that the defendants failed to sustain their burden of proof and judgment is entered in favor of the plaintiffs on the first special defense.
B. The Second Special Defense.
The defendants' second special defense is that the plaintiffs failed to name a necessary party. The defendants failed to submit any testimony or other evidence in support of this special defense. The only testimony concerning other parties at the premises was the testimony by Diaz that he sublet a portion of the premises to a audio and stereo dealer, Toys, Inc. pursuant to a written lease in September, 2008. Since Diaz testified that the sub-tenant left three months after the principal in the firm was killed during an argument and this tenancy began and ended during the pendency of this action it has no bearing on the claims asserted. Moreover, the failure to name any other occupant would not be a defense to the action available to the defendants but might give rise to a claim for exemption by the omitted party pursuant to General Statutes § 47a-26h.
The court finds that the defendants have failed to sustain their burden to prove the allegations in their second special defense and judgment is entered in favor of the plaintiffs on the defendants' second special defense.
C. The Third Special Defense.
The defendants' third special defense is that the plaintiffs lack privity in that no benefit of the sublease between JRT and the defendants "inured" to the plaintiffs. The defendants failed to submit any testimony or other evidence in support of this special defense.
The court finds that the defendants have failed to sustain their burden to prove the allegations in their third special defense and judgment is entered in favor of the plaintiffs on the defendants' third special defense.
VI CONCLUSION
For the foregoing reasons and on the basis of the court's findings, judgment for immediate possession of the premises is entered in favor of the plaintiffs.
SO ORDERED.