Opinion
CV166102039S
05-26-2017
Sunny Waters, LLC v. Barry Huntoon
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. John M. Newson, Judge.
This matter was tried to the court on March 29, 2017, and April 7, 2017. The following is the factual background of this case, which facts are not in dispute between the parties: The defendant, Barry Huntoon, rented a mobile home lot on property owned by the plaintiff, Sunny Waters, LLC. The property specifically at issue here is located at 252 Old Canterbury Turnpike, Lot 50, in the town of Norwich, Connecticut. The defendant's residence at the premises began in April 2012 when the parties entered into a lease agreement. On Saturday, July 23, 2016, the plaintiff caused the defendant to be served with a Notice to Quit for non-payment of rent. The defendant, of his own admission, had not paid his rent as of the date he was served. On Monday, July 25, 2016, beginning at approximately 8:30 in the morning, the defendant began a series of telephone calls to the plaintiff's main office demanding to speak with a specific owner/manager of the company regarding said notice to quit. As a result of a certain statement made by the defendant during his final call, the details of which are discussed fully in the body of this decision, a complaint was made to the police about the defendant's conduct. Following an investigation, the police declined to arrest the defendant on any criminal charges. The defendant tendered payment of the full back due rent some time on Monday, July 25th, which payment was received by the plaintiff not later than Tuesday, July 26th. As a direct result of what occurred during that telephone call, however, the plaintiff caused the defendant to be served with the notice to quit that commenced the instant action on August 31, 2016. The parties agree on little else.
Defendant's Oral Motion to Dismiss at Time of Trial
Prior to the commencement of evidence, the defendant made an oral motion to dismiss for lack of subject matter jurisdiction. The basis of the defendant's claim was that on October 18, 2016, the plaintiff served the defendant with an additional Notice to Quit (Exhibit A), this one alleging non-payment of rent. It was the defendant's position that the service of this later Notice to Quit voided the Notice to Quit upon which the present action was based, thereby depriving the court of subject matter jurisdiction.
Court Ordered Hearing on Motion to Dismiss
After the close of evidence, the court became aware of a potential issue effecting subject matter jurisdiction that had not been specifically addressed by the parties. Therefore, the court ordered the parties to address whether the Notice to Quit served on the defendant on July 22, 2016, alleging non-payment of rent for the month of July 2016, with a quit date of August 26, 2016 (See, Exhibit B for ID), deprived the court of subject matter jurisdiction over the Notice to Quit supporting the present action, served on the defendant on or about August 31, 2016, alleging " creation of serious nuisance" in violation of lease terms and statutes on July 25, 2016, which provided a quit date of November 2, 2016. Where multiple notices to quit are served, " if the first notice to quit is technically valid and terminates the rental agreement, a second notice to quit based on terms in the rental agreement cannot survive a motion to dismiss for lack of subject matter jurisdiction. Common sense dictates that when a contractual rental agreement is no longer in place, such an agreement can no longer be violated." Vidiaki, LLC v. Just Breakfast & Things !!!, 133 Conn.App. 1, 24, 33 A.3d 848 (2012). " [T]he question of subject matter jurisdiction, because it address[es] the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009). " Any party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised . . . Because subject matter jurisdiction cannot be conferred by waiver or consent . . . the court must address the question, sub motu if necessary, even in the absence of a motion." (Citations omitted.) Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014).
The parties submitted legal memoranda and oral argument was held on May 19, 2016. After reviewing the legal memoranda submitted by counsel, and hearing arguments on the matter, the court finds that the July 22nd notice to quit was rendered null and void by the defendant's tender of the full rent due on or about July 25th. General Statutes § 21-80(b)(3)(B). Upon payment of the amount due within the thirty day cure period, the July 22nd notice to quit was rendered null and void, and the plaintiff was prohibited from taking further action against the defendant. Ossen v. Kreutzer, 19 Conn.App., 564, 568, 563 A.2d 741 (1989); See also, General Statutes § 21-80(b)(3)(B). Therefore, the court has subject matter jurisdiction over the present matter, because the latter notice to quit served on August 31, 2016, was valid. Id.
" The purpose for reciting the total arrearage due in the notice is to afford the tenant a final opportunity to save the tenancy by tendering the total arrearage within the thirty-day grace period. If tender is made within the grace period, the statute bars further action by the landlord." Ossen v. Kreutzer, 19 Conn.App. 564, 568, 563 A.2d 741 (1989).
Factual Findings
As to what occurred subsequently, the court, considering the evidence and exhibits that were presented and the credibility of the various witnesses, makes the following factual findings:
1. The defendant made numerous phone calls to the plaintiff's main office between approximately 8:15 and 9:30 a.m. on July 25, 2016, speaking during those various phone calls to Peter Licata, in accounts payable, Melissa Messier and Ethel Baratz, administrative assistants, and Mark Anses, co-owner/manager;
2. That the defendant grew increasingly angry during each phone call upon being informed that a Mr. Nathan Weis, the specific owner/manager he was demanding to speak with, was not yet available to take his calls, and that the defendant threatened to call back " every five minutes" until he was able to speak with Mr. Weis;
3. That the defendant did continue to call the office within a few minutes after each previous call was ended, each of the defendant's phone calls were profanity laced and personally insulting towards each person the defendant spoke with;
4. That the defendant was screaming and yelling said profanities and insults so loud that employees sitting adjacent to individuals receiving some of those phone calls were able to hear the defendant's profanity laced tirades;
5. That the court finds credible that these various office employees found the defendant's conduct to be " crazy" and that it " made them nervous" and that the defendant's anger seemed to be completely out of control;
6. The defendant had one final telephone call that was answered by Mark Asnes, an owner of the company, who, while not the specific owner the defendant had been demanding to speak with, agreed to take the defendant's final call;
7. That the defendant continued to yell and scream profanities at Mr. Anses, and remained in such an agitated and angry state that much of what he was saying into the telephone was incomprehensible to Mr. Anses, but he was able to decipher that the defendant had general complaints about how the plaintiff ran its business and was upset about receiving the notice to quit;
8. That Mr. Anses attempted to remind the defendant that the policy of the plaintiff was that all complaints needed to be submitted in some sort of written form, for accuracy purposes, and offered to give the defendant his email address so that the defendant could immediately send his complaints over in written form, whereupon the defendant responded with the phrase here mainly at issue, " I don't need your email address. I know who you are, and I know where you live ";
9. That this comment caused Mr. Anses to fear for his personal safety, in that he believed the defendant may seek him out at his home to do him personal harm, and that he also believed the defendant had the actual ability to locate his personal residence to follow through with this threat;
10. That Mr. Anses immediately hung up the phone with the defendant and contacted local police to file a complaint;
11. That while police investigated the matter, and for reasons not made part of the evidence in this matter, no arrest was made;
12. That on or about Friday, July 22, 2016, prior to these incidents, the defendant made contact with a Matthew Riley, who was mainly responsible for maintenance at the plaintiff's property, about a complaint or complaints he had with park management, but that Mr. Riley was out of town on vacation and directed the defendant to contact management directly on Monday, which would have been July 25, 2016;
13. That there was no evidence that Mr. Riley actually conveyed any notification to the plaintiff's main office that he had received this complaint from the defendant prior to the defendant being served with the notice to quit on July 23, 2016, or the one served on August 30, 2016;
14. That prior to July 23, 2016, the defendant had generally complained to Mr. Riley, and possibly others in the plaintiff's employ, that an unidentified neighbor of his had either threatened or made improper sexual advances towards his son, and that he wanted management to rectify the matter, or he was going to file a complaint with the Department of Consumer Protection;
15. That there is no credible evidence that the defendant made a complaint of any kind to the Department of Consumer Protection, or any other State or municipal agency, until, if at all, after he had been served with the notice to quit on August 31, 2016;
16. That, as a result of the defendant's comment to Mr. Anses during the July 25, 2016, phone call " I don't need your email address. I know who you are, and I know where you live, " the plaintiff served the defendant with a notice to quit on August 31, 2016, alleging " serious nuisance" in violation of the terms of the lease agreement and Connecticut General Statutes.
17. The Notice to Quit served on August 31, 2016, required the defendant to vacate the premises on or before November 2, 2016. The defendant failed to vacate the premises, and a complaint was filed and served in accordance with the law.
It should be noted that the plaintiff only pled violation of the lease agreement in its complaint.
The remaining issues pertinent to this decision will be address within the body of this complaint, including certain special defenses raised by the defendant.
Analysis and Law
The plaintiff's allegation is that the defendant's conduct constituted a " serious nuisance" in violation of General Statutes § 21-80(b)(2), which provides in pertinent part:
For the purposes of this subdivision, " serious nuisance" means (i) inflicting bodily harm upon another resident or the owner or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out . . .(Emphasis added.) General Statutes § 21-80(b)(2). Therefore, the question before this court is whether " I don't need your email address. I know who you are, and I know where you live " constituted a " threat to inflict [bodily] harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out."
The court has been unable to locate a case specific to General Statutes § 21-80(b)(2) where the elements of " threat to inflict bodily harm" has been defined, nor is there a definition provided within either of our relevant landlord-tenant statutory schemes. See, General Statutes § § 47a-15 et seq. and 21-80 et seq. Black's Law Dictionary, however, defines " threat" as follows:
A communicated intent to inflict physical or other harm on any person . . . A declaration of an intention to injure another person . . . by some unlawful act . . . A declaration of intention or determination to inflict punishment, loss, or pain on another, or to injure another or his property by the commission of some unlawful act . . . A menace; especially, any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent. A declaration of one's purpose or intention to work injury to the person . . . of another, with a view of restraining such person's freedom of action.
The term " threat" means an avowed present determination or intent to injure presently or in the future. A statement may constitute a threat even though it is subject to a possible contingency in the maker's control. The [complaining party] must establish a " true threat, " which means a serious threat as distinguished from words uttered as mere . . . idle talk or jest. In determining whether words were uttered as a threat the context in which they were spoken must be considered.
Black's Law Dictionary, 6th Ed., pp. 1480-81, West Publishing Co. 1990.
" The circumstances surrounding a threat may be considered when determining whether the [fact finder] reasonably could infer that the defendant had placed the victim in fear of imminent serious physical injury . . . A threat does not require immediate menace of violence . . . A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance." (Internal citations omitted; internal quotation marks omitted.) State v. Rodriguez, 146 Conn.App. 99, 111, 75 A.3d 798 (2013).
This criminal case is cited for purposes of understanding the meaning of the term " threat" only. There is no intent by this court to equate the " beyond a reasonable doubt" burden of proof required in a criminal case with the plaintiff's burden in the present matter to prove the elements of its case by a " fair preponderance of the evidence." Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). " 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 . . . The . . . standard has been satisfied with respect to a fact if all the evidence considered fairly and impartially evinces a reasonable belief that it is more probable than not that the fact is true. (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981).
The first question this court must answer is whether Mr. Huntoon's communication can be considered a threat to inflict bodily harm? " In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a [true] threat is governed by an objective standard--whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault . . . [A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." (Alterations in original, citations omitted.) State v. Krijger, 313 Conn. 434, 450, 97 A.3d 946 (2014). " Of course, the absence of explicitly threatening language does not preclude the finding of a threat . . . [R]igid adherence to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render [statutes proscribing true threats] powerless against the ingenuity of threateners who can instill in the victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat . . . Thus, a determination of what a defendant actually said is just the beginning of a threats analysis. Even when words are threatening on their face, careful attention must be paid to the context in which those statements are made to determine if the words may be objectively perceived as threatening." (Citations omitted, internal quotation marks omitted.) Id., 453. " An important factor to be considered in determining whether a facially ambiguous statement constitutes a true threat is the prior relationship between the parties. When the alleged threat is made in the context of an existing or increasingly hostile relationship, courts are more apt to conclude that an objectively reasonable speaker would expect that the statement would be perceived by the listener as a genuine threat." Id., 453-54.
In the present case, the defendant, who had been served with a notice to quit, called the plaintiff's office multiple times in what was described as a " crazy" state, screaming and swearing at the top of his lungs. In fact, the evidence supports that the defendant was so irate that the people who answered his calls were generally unable to understand what he was actually saying. The defendant hurled personal insults and swears at everyone who answered his calls, most of whom for which their only offense was to be unfortunate enough to have to inform him that the specific person he was demanding to speak with had not arrived at the office yet. When the defendant finally got the opportunity to speak with Mr. Mark Anses, despite demanding answers to his questions, he continued screaming and swearing at the top of his lungs so as to prevent Mr. Anses from having an opportunity to respond. All this, taken in the context where it was three weeks into the month and there is no dispute that the defendant had not paid his rent yet (i.e., there was no question about the validity of the basis for the notice to quit), could more than support a reasonable person concluding that they were dealing with a person who had, to use a common description, come completely unglued. When Mr. Anses attempted to offer him a quick solution to his problem by offering the defendant his email address, and the defendant's response is, " I don't need your email! I know who you are, and I know where you live, " the court " conclude[s] that an objectively reasonable speaker would expect that the statement would be perceived by the listener as a genuine threat [to commit bodily harm]." Id., 453-54.
When considering the overall context of the conversation, the court also finds significant in the present case that defendant, who had been calling a commercial place of business all morning, did not retort that he knew where Mr. Anses worked . No, the defendant told Mark Anses he knew where he lived . To any reasonably objective speaker, such words communicate but a single message--at that place where you are supposed to feel most safe, I will come find you there, and I am going to finish this. The insinuation that one intends to take a dispute to another person's home strikes at the most basic fears of any reasonably objective person. It does not take much to conclude that an objectively reasonable person hearing this statement would perceive it as a threat that bodily harm was going to come to them. And, Mr. Anses' reaction was that of a person who felt genuinely threatened by the defendant's comment--he immediately ended the conversation and contacted the local police. Mr. Anses, and the rest of the staff, also refused to answer the telephone when the defendant attempted to call again a short time later.
The defendant argues that, since the police did not make an arrest in this matter, there can be no finding that his comment constituted a threat. The fact that the police did not make an arrest does not prohibit this court, after a full trial with witnesses, from coming to the conclusion that the defendant's conduct constituted a " threat" under the applicable civil standards, and the defendant has presented no authority to the contrary. See, State v. Breckenridge, 66 Conn.App. 490, 500, 784 A.2d 1034 (2001) (Because of those different standards, a defendant's acquittal of charges in a subsequent criminal trial does not affect the trial court's finding of a violation in a probation revocation hearing).
The court must also determine whether the defendant had " the present ability to effect the harm." C.G.S. § 21-80(b)(2). To be clear, this does not require the court to find that the defendant, in fact, had the actual ability to carry out his threat. What it does require is proof that a reasonably objective listener, under the circumstances then present, would have believed the defendant had the ability to carry out his threat. State v. Krijger, supra, 313 Conn. at 454 (" the absence of explicitly threatening language does not preclude the finding of a threat . . . [R]igid adherence to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render [statutes proscribing true threats] powerless against the ingenuity of threateners who can instill in the victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat"). This is not a difficult question to answer in the present case. The defendant asserted that he knew where Mr. Anses lived, thereby communicating to any reasonably objective listener that he had the ability to follow through with his threat to do him harm. Given the ease of access to address information available in the public realm through modern technology, again, it is more than reasonable to presume that someone with ill will towards you could find the location of your home address with minimal effort, if they truly desired. A reasonably objective listener, under these circumstances, would have believed the defendant had the ability to carry out his threat. Id.
Special Defenses
While the defendant listed four special defenses in his answer he only presented evidence on his claim that the plaintiff was evicting him in retaliation for the defendant notifying them that they were in violation of consumer protection laws and or threatening to file a formal complaint. As addressed above, there is no credible evidence that the defendant made any such complaint until about October 2016, many months after he had been served with the notice to quit. The only concrete matter the defendant was able to testify about making a complaint to the plaintiff about was a claim that a female neighbor had allegedly threatened and or made inappropriate sexual advances towards his son. First, the court simply did not find the defendant's claim credible that, in lieu of contacting the police about such a matter, he contacted the plaintiff's office staff and requested they deal with the matter. Further, even if this complaint were credible, it does not relate to anything within the jurisdiction of the fair rent commission, housing or health ordinances violations, a good faith request for the landlord to make repairs, or any of the other conditions that give rise to a presumption of retaliatory eviction. General Statutes § 47a-20. As such, the defendant has failed to establish a prima facie case and is not entitled to a presumption of retaliatory eviction. Holdmeyer v. Thomas, 167 Conn.App. 544, 548, 144 A.3d 1052 (2016).
The defendant asserted special defenses that: 1. The lease was not in effect; 2. The KAPA notice was defective; 3. The plaintiff failed to state a cause of action; and 4. The plaintiff was engaging in a retaliatory eviction because of the defendant's notification that the plaintiff was in violation of consumer protection laws. The claim regarding the KAPA notice was addressed in a pretrial motion to dismiss filed by the defendant. At time of trial, the defendant failed to present any evidence other than on the matter claiming retaliatory eviction.
General Statutes § 47a-20 Retaliatory Action by Landlord Prohibited. A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, 1 or of chapter 412, 2 or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union.
CONCLUSION
In conclusion, the court finds that the defendant's statement, " I know who you are, and I know where you live, " given the totality of the circumstances, constituted a " serious nuisance" within the meaning of General Statutes § 21-80(b)(2). That statement by the defendant was intended to communicate a threat to Mark Anses that physical harm would come to him for not ceding to the defendant's demands and a reasonably objective listener under the circumstances would consider such comments to be a threat of physical harm. The court also finds that the defendant's assertion that he knew where Mr. Anses lived would be viewed by a reasonably objective person as an indication that he had the ability to follow through with that threat. Krijger, supra, 313 Conn. at 453-54. Said another way, " the defendant's [statement in the present case that he knew where Mr. Anses lived], when uttered in a state of anger or rage by a person with no obvious limitation on the ability to carry out the threat, would lead a reasonable person to believe the threat was serious and would be carried out." Suburban Greater Hartford Realty Mgmt. Corp. v. Edwards, Superior Court, judicial district of Hartford, Docket No. HDSP-148230, (Gilligan, J., Apr. 24, 2009), rev'd on subject matter jurisdiction grounds, 123 Conn.App. 295, 1 A.3d 1138 (2010). As such, the plaintiff has proven by a fair preponderance of the evidence that the defendant violated the terms of his lease agreement by " serious nuisance, " and the plaintiff is entitled to judgment in its favor on the summary process complaint. WHEREFORE, the court enters judgment on the summary process complaint in favor of the plaintiff. If the defendant wishes to appeal this decision, he shall file such appropriate notices bonds as are required under statute within the statutory time frames provided by law.