Opinion
No. CVH-7128
April 3, 2006
MEMORANDUM OF DECISION
This is a residential landlord-tenant dispute involving claims for security deposit, double damages, CUTPA, and unpaid rent.
On January 21, 2004, the Plaintiffs, hereinafter ("Tenant"), filed this action alleging failure to return security deposit and violation of the Connecticut Unfair Trade Practices Act (CUTPA). By way of relief, Tenant seeks money damages, costs, double damages in the amount of $5,580.00 pursuant to General Statutes Sec. 47a-21(d)(2), punitive damages for violation of Sec. 47a-21(b), interest upon said security deposit pursuant to Sec. 47a-21(i), interest at the legal rate subsequent to judgment, punitive damages pursuant to Sec. 42-110g(a), reasonable attorneys fee pursuant to Sec. 42-110g(a), and such other and further relief as in law or equity may appertain.
On February 1, 2006, the court granted the Defendant's, hereinafter ("Landlord"), request for leave to amend the Answer. The Landlord, by way of setoff and counterclaim, claims damages arising out of the Tenant's failure to pay rent. By way of relief, Landlord seeks money damages, costs, attorneys fees, and such other and further relief is in law or equity may appertain.
The Tenant's Reply was filed on February 3, 2006. By way of special defense to the counterclaim, the Tenant alleges that the Landlord had a duty to mitigate damages pursuant to General Statutes Sec. 47a-11a.
The case was tried on February 8, 2006, at which time all parties appeared and were represented by counsel.
FACTS "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, 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). 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 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." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
The phrase a "fair preponderance of the evidence" "simply means that evidence which outweighs that which is offered to oppose it . . ." Black's Law Dictionary (5th Ed. 1983).
The following facts were proved by a fair preponderance of the evidence at trial.
On July 13, 2002, the parties entered into a lease agreement for the premises at 25 Stanley Street, Apt. B-5, West Hartford, Connecticut. The parties to the lease were the Landlord (Intertown Realty Company) and the Tenant(s) (Michelle and Dominic Sapere and Co-Signer Matthew Sapere, Dominic's father). The lease commenced on July 13, 2002, and ended on July 31, 2003. The monthly rent of $1,395.00 (rent of $1,355 plus $40 for garage) was payable on the first day of each month. On July 13, 2002, the Tenant paid the Landlord the sum of $2,790.00 as a security deposit. Under the terms of the lease, the security deposit could be applied to any damages sustained by the Landlord due to the breach by the Tenant of any of his duties and covenants under the lease. The Tenant was subject to a late charge of $40, if rent was not received by the 10th of the month. Under Paragraph 11 of the lease, the Tenant was required to give written notice to the Landlord sixty (60) days before the termination of the lease or any renewal thereof by registered mail, as to whether Tenant desires to vacate the premises or enter into a new lease.
During the winter, the Tenant experienced several problems at the premises. The Tenant was without adequate heat for several weeks. A painting project lasted for two months and caused Michelle Sapere, who was pregnant, to sleep at her father-in-law's residence several times because of the paint fumes.
On March 19, 2003, the Tenant mailed the Landlord a letter indicating that the Tenant was planning to vacate the premises on or before April 15, 2003. The Tenant cited unsafe and unhealthy living conditions and the Landlord's unresponsiveness as the reasons for the move. The letter did not indicate the Tenant's forwarding address. The Tenant testified that he had been looking to move for several months. The Tenant abandoned the property on April 15, 2003.
After vacating the premises, the Tenant failed to notify the Landlord in writing of the Tenant's forwarding address. The Tenant claims he called the Landlord several times to discuss the security deposit. In addition, the Tenant claims that the Landlord knew Matthew Sapere's address, 54 Edgemere Drive, West Hartford, Connecticut. The Tenant never received from the Landlord a written statement itemizing deductions for any damages. The Tenant failed to pay rent for April 2003 and May 2003. The apartment was relet as of June 1, 2003. Besides the fact that the premises were relet for June 2003, the Landlord did not offer any evidence as to reasonable efforts made to mitigate damages.
Several months earlier, on December 9, 2002, the Landlord had filed a small claims action against the Tenant for failure to pay rent. Judgment was entered for the Landlord in the amount of $3,535 on April 10, 2003. On or about July 28, 2003, The Landlord filed a judgment lien against the Tenant's current residence at 89 Beechwood Road, West Hartford, Connecticut. The Landlord later filed a bank execution against the Tenant on or about November 6, 2003. The bank execution included the Tenant's new address.
DISCUSSION Tenant's Case
The Tenants allege that the Landlord failed to return the security deposit and violated CUTPA.
Action to Reclaim Security Deposit
The Tenant has made a claim for the return of the security deposit. See Johnson v. Mazza, 80 Conn.App. 155 (2003). General Statutes Sec. 47a-21(g), entitled "Action to reclaim security deposit," provides in relevant part: "Any person may bring an action in replevin or for money damages in any court of competent jurisdiction to reclaim any part of his security deposit which may be due. This section does not preclude the landlord or tenant from recovering other damages to which he may be entitled." Sec. 47a-21(1) provides in relevant part: "[n]othing in this section shall be construed as a limitation upon . . . (2) the right of any tenant to bring a civil action permitted by the general statutes or at common law." See Johnson v. Mazza, supra 80 Conn.App. 161-62. "[The security deposit] is refundable unless the tenant has caused damage or injury to the property or has breached the terms of the tenancy or the laws governing the tenancy . . ." (Citation omitted.) Id. at 162. See Sec. 47a-21(d)(1).
Double Damages
The Tenant has also made a claim for double damages based on the Landlord's failure to return the security deposit pursuant to the security deposit act. General Statutes Sec. 47a-21(d)(2) provides in relevant part: "Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenants forwarding address. Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant's failure to comply with such tenant's obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant, except that, if the violation is the failure to deliver the accrued interest, such landlord shall only be liable for twice the amount of such accrued interest." See also Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J.; September 30, 1993) ( 1993 Ct.Sup. 8193, 8203-8204).
In Denino, Judge Riddle summarized the law relating to double damages as follows: "The security deposit act applies to all residential landlords, Conn. Gen. Stat. 47a-21(a)(6) and 47a-1(d). The person who is the landlord at the time that the tenant vacates is responsible for returning the deposit. Conn. Gen. Stat. 47a-21(e); Sutton v. Pinto, SNBR 342 (1990). The landlord must return the security deposit, plus interest, "within thirty days after the termination of a tenancy." Conn. Gen. Stat. 47a-21(d)(2). In the context of the security deposit act, this refers to the date the tenant vacates. To trigger the time limits, however, the tenant must give the landlord a written notice of his forwarding address. Kulenski v. Siclari, NH#539 (1990) . . . The landlord's duty is to return the security deposit, plus interest, or to account in writing for his claims against the deposit and to return any portion of the deposit, plus interest, against which he has no claim. Conn. Gen. Stat. 47a-21(d). If the landlord withholds any of the deposit, the act requires "a written statement itemizing the nature and amount" of the damages claimed as a result of the tenant's failure to comply with his obligations, C.G.S. 47a-21(d)(2). The itemization must be specific, both as to the nature of the items of damage and as to their costs, Costales v. Gelinas, H-906 (1989). The refund or the accounting must be delivered to the tenant within 30 days after the tenant vacates. The refund must include statutorily-mandated interest on the deposit, Murphy v. Grigas, H-998 (1992)." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J., September 30, 1993) ( 1993 Ct.Sup. 8193, 8203-8204).
In Johnson, the Appellate Court held that "a tenant is first required to provide a forwarding address to a landlord to be afforded the opportunity to receive the double damages remedy under § 47a-21(d)(2) . . ." Johnson v. Mazza, supra, 80 Conn.App. 160. The Appellate Court found that the plaintiff's revised amended complaint admitted that he did not provide the defendant with a forwarding address, and, therefore, the plaintiff failed to comply with the terms of § 47a-21(d)(2)." Id. at 161; See also Littas v. Burrows, Superior Court, judicial district of Stamford-Norwalk, Docket No. CVN093092710 (Tierney, J., November 27, 1996) ( 18 Conn. L. Rptr. 282).
The court in Johnson also rejected the proposition that "a tenant is not required to provide a landlord with a forwarding address when the landlord knows how to contact the tenant." Johnson v. Mazza, supra, 80 Conn.App. 161. The court stated that "[i]n the event that a landlord is not provided with written notice of a tenant's or former tenant's forwarding address, § 47a-21(d)(4) provides that the landlord is required to return the security deposit to the tenant or former tenant within the time required by [§ 47a-21(d)(2)] or within fifteen days after receiving written notice of such tenant's forwarding address, whichever is later." General Statutes § 47a-21(d)(4). The clear language of § 47a-21(d)(2) and (4) requires the landlord to return a tenant's security deposit at the forwarding address that the tenant provides." Id. at 160.
In Littas, Judge Tierney stated in a similar case that "[t]his court believes that the doubling of a security deposit can only be awarded by the court upon a finding of a violation of C.G.S. § 47a-21(d)(2) only, not any other subsection of C.G.S. § 47a-21. No security can be doubled without strict compliance with the statute. It must be strictly construed for the landlord and if the landlord fails to comply, the penalty will be imposed. It must be strictly construed for the tenant and if the tenant fails to comply, the tenant forfeits the right to collect the doubling penalty." Littas v. Burrows, Superior Court, judicial district of Bridgeport at Norwalk, Docket No. CVN093092710, pp. 3-4 (Tierney, J., November 27, 1996) ( 18 Conn. L. Rptr. 282).
CUTPA
The Tenant claims that he is entitled to damages under CUTPA due to the Landlord's violation of Sec. 47a-21. "The Supreme Court has ruled that CUTPA applies to residential landlord-tenant transactions, and that a landlord's violation of the public policy of the landlord-tenant act, Conn. Gen. Stat. 47a-1, et seq., is a CUTPA violation. Conaway v. Prestia, 191 Conn. 484 (1983)." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J., September 30, 1993) ( 1993 Ct.Sup. 8193, 8205). A violation of the security deposit statute may constitute a violation of public policy under CUTPA. Watson v. Sztaba, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 5184 (DiPentima, J., May 28, 1996) ( 1996 Ct.Sup. 4020). However, "[n]ot every questionable or unenviable act falls within the proscribed scope of CUTPA." Zaleski v. Eddy, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CVN 8407376WS (Doyle, J., March 6, 1990). "Not every violation of a statute supports a claim for CUTPA relief." Littas v. Burrows, Superior Court, judicial district of Stamford-Norwalk, Docket No. CVN093092710 (Tierney, J., November 27, 1996) ( 18 Conn. L. Rptr. 282).
"It is axiomatic that a claimant seeking damages bears the burden of proving, with reasonable certainty, those damages sustained as a result of his injury . . . Although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier; . . . this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount (Citations omitted; internal quotation marks omitted.) Conaway v. Prestia, supra, 191 Conn. 493-94. The plaintiff "must present sufficient evidence to enable the trier to ascertain with reasonable certainty . . . [the damages] occasioned by the defendants wrongful conduct. Id. at 495.
In evaluating a CUTPA claim, the court must determine whether the plaintiff has suffered an "ascertainable loss." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J., September 30, 1993) ( 1993 Ct.Sup. 8193, 8206). "The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking actual damages or equitable relief . . . An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss . . . One seeking actual damages in excess of purely nominal damages must prove the amount of those actual damages . . . The award of nominal damages under CUTPA opens the door to other important remedies . . . Under CUTPA a plaintiff is entitled to have the court consider awarding both punitive damages and attorneys fees . . ." (Citations omitted; internal quotation marks omitted). Costin v. Collins, Superior Court, judicial district of New Haven, Docket No. CV-93-0370818 (Downey, J., March 27, 1998) ( 21 Conn. L. Rptr. 580). A tenant may suffer an ascertainable loss in not receiving the security deposit plus interest under Sec. 42-110g(a). Watson v. Sztaba, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 5184, p. 2 (DiPentima, J., May 28, 1996) ( 1996 Ct.Sup. 4020).
"Awarding punitive damages and attorneys fees under CUTPA is discretionary; General Statutes Sec. 42-110g(a) and (d);" Gargano v. Heyman, 203 Conn. 616, 622 (1987). "This statutory provision allows for punitive damages, in addition to attorneys fees and costs, based on a theory of deterrence." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J., September 30, 1993) ( 1993 Ct.Sup. 8193, 8208).
"In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence . . ." (Citations omitted.) Gargano v. Heyman, supra, 203 Conn. 622. In Gargano, the court found that under the circumstances of the case, the landlord's conduct in terminating the electrical service did not justify the award of punitive damages. Id.
The court may also award reasonable attorneys fees and costs under CUTPA. Sec. 42-110g(d). With respect to the amount to be awarded, Conn. Gen. Stat. 42-110g(d) provides that the court may award reasonable attorneys fees "based on the work reasonably performed by an attorney and not on the amount of recovery." "The Appellate Court has recently indicated that Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) sets forth the factors to be considered by the trial court to determine the amount of attorneys fees to be awarded under CUTPA. Hernandez v. Monterey Village Associates Limited Partnership, 24 Conn.App. 514, 517, n. 1 (1991)" Collazo v. Dias, Superior Court, judicial district of New Haven, Docket No. 9010-4024 (Vertefeuille, J., May 30, 1991) ( 1991 Ct.Sup. 4050). The court in Johnson considered the following factors: (1) The time and labor required; (2) The novelty and difficulty of the questions; (3) The skill requisite to perform the legal service properly; (4) The preclusion of other employment by the attorney due to acceptance of the case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or the circumstances; (8) The amount involved and the results obtained (See Sec. 42-110g(d)); (9) The experience, reputation, and ability of the attorneys; (10) The "undesirability" of the case; (11) The nature and length of the professional relationship with the client; and (12) Awards in similar cases (See Sec. 42-110g(d)). Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717-19.
As to the Tenant's claims, the court makes the following findings. The Tenant has proved, by a fair preponderance of the evidence, the claim for return of the security deposit plus interest. However, the Tenant has failed to prove, by a fair preponderance of the evidence, the double damages claim. The Tenant is not entitled to double damages because the Tenant failed to notify the Landlord in writing of the forwarding address pursuant to Sec. 47a-21(d)(2). As to the CUTPA claim, the Tenant failed to prove the CUTPA claim by a fair preponderance of the evidence. The Landlord did not violate the security deposit act because the Tenant did not provide the Landlord written notice of his forwarding address. Under the circumstances, the court cannot find that the Tenant suffered an ascertainable loss.
Landlord's Case
The Landlord, by way of setoff and counterclaim, seeks damages, fees and costs arising out of the Tenants failure to pay rent under the lease.
Setoff
"In Connecticut, a setoff may be legal or equitable in nature . . . Legal setoff is governed by General Statutes § 52-139 et seq. and involves mutual debts between parties in any action: (1) to recover on a debt pursuant to § 52-139; (2) by an assignee of a nonnegotiable chose in action pursuant to General Statutes § 52-140; (3) for trespass to real or personal property or other tort committed without force pursuant to General Statutes § 52-141; or (4) involving joint debtors pursuant to General Statutes § 52-142. See also Practice Book § 10-54. When the statutes governing legal setoff do not apply, a party may be entitled to equitable setoff, nonetheless, only to enforce the simple but clear natural equity in a given case . . . The right to setoff, although it may arise out of a written instrument, is a common law equitable right that is not itself a written instrument . . . An action to foreclose on a mortgage, circumscribed by statute; see General Statutes § 49-1 et seq.; is an equitable proceeding; . . . and as such, does not implicate the statutes governing setoff . . . Although we have discerned no meaningful distinction between setoff rights that may derive from common-law principles and contract versus those that are moored in statute; . . . [i]t is clear that a setoff does not occur automatically but, rather, it must be exercised affirmatively . . . In the usual case, setoff is [t]he equitable right to cancel or offset mutual debts or cross demands . . ." (Citations omitted; internal quotation marks omitted.) OCI Mortgage Corp. v. Marchese, 255 Conn. 448, 463-65 (2001).
"As to setoff, . . . [i]t is available only when the plaintiff sues for recovery of a debt." Stephenson, Connecticut Civil Procedure, Volume 1, p. 258 (3rd Ed. 1997). "The law of setoff is governed by General Statutes 52-139. The relevant portion of that statute provides: (a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other." (Internal quotation marks omitted.) Petti v. Balance Rock Associates, 12 Conn.App. 353, 362, 530 A.2d 1083 (1987).
Unpaid Rent
The Landlord seeks damages for breach of lease after the Tenant abandoned the premises and ceased paying rent. The Landlord was able to relet the premises as of June 1, 2003. "Landlord claims for property damage, like back-rent claims, usually arise either as part of a suit for damages or as a setoff or counterclaim to a tenant's action for return of a security deposit. In either case, the burden of proof is on the landlord to establish all elements of the claim, Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474 (1991); Morris v. Kookoolis, NH-582 (1992)." Denino v. Valenti, Superior Court, judicial district of New Haven, Docket No. 9108-4608 (Riddle, J., September 30, 1993) ( 1993 Ct.Sup. 8193, 8199-8200).
The landlord of a residential tenant must make reasonable efforts to mitigate damages to recover rent or damages related to the unexpired term of the lease. Sec. 47a-11a provides in relevant part: "(a) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental in mitigation of damages. (b) If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment." See Thorne v. Broccoli, 39 Conn.Sup. 289 (1984). In Thorne, the court considered a number of factors in evaluating "reasonable efforts," including whether the landlord spent any money advertising the rental, placed ads in the newspaper, put up a sign, contacted real estate firms, showed the apartment to prospective tenants, and offered the apartment at a reduced rate. Thorne v. Broccoli, supra, 39 Conn.Sup. 292-93. After considering these factors, the court in Thorne found that the landlord had not made reasonable efforts to relet the property as required by statute. Id. at 293. The court held that the rental agreement was deemed to be terminated by the landlord as of the date the landlord had notice of the abandonment. Id.
As to the Landlord's claims, the court makes the following findings. The Landlord proved, by a fair preponderance of the evidence, the unpaid rent claim for April 2003. The Landlord, however, failed to prove the unpaid rent claim for May 2003 by a fair preponderance of the evidence. The Landlord failed to offer evidence of reasonable efforts to mitigate damages besides the fact that the premises were relet as of June 1, 2003. Under Sec. 47a-11a, therefore, the rental agreement was deemed to be terminated by the Landlord as of the date the Landlord had notice of the abandonment. In this case the date was April 15, 2003. Under the circumstances, the Tenant is liable for rent for April 2003, but not for May 2003.
CONCLUSION
Based on the above-stated reasons, the court awards the following damages:
1. Judgment for the Tenant on the claim(s) as follows:
a. Security Deposit $2,790.00 b. Interest $ 155.88 c. Double Damages $ 0 d. Attorneys fees and costs $ 0 e. CUTPA Actual Damages $ 0 f. CUTPA Punitive Damages $ 0 g. CUTPA Attorneys fees and costs $ 0 _________ TOTAL JUDGMENT FOR TENANT $2,945.88
2. Judgment for the Landlord on the counterclaim as follows:
a. Unpaid Rent $1,395.00 b. Late Charge(s) $ 40.00 c. Attorneys fees and costs $ 0 _________ TOTAL JUDGMENT FOR LANDLORD $1,435.00
NET JUDGMENT TO THE TENANT IN THE AMOUNT OF $1,510.88
No other damages, fees or costs are awarded or setoff.
So ordered.