Opinion
No. HDSP-138943
January 8, 2007
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I STATEMENT OF CASE
This is a summary process action based on nonpayment of rent. The plaintiff seeks immediate possession of the premises. As special defenses, the defendant has alleged rent was mailed to the plaintiff, retaliatory action pursuant to General Statutes § 47a-33, and equitable considerations bar forfeiture. The case was tried on December 4, 2006.
"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. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
Practice Book § 10-50, entitled "Denials; Special Defenses," provides in relevant part: "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."
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." (Citations omitted.) Tait's, Handbook of Connecticut Evidence (3rd Ed 2001) § 3.3.1, p. 136.
II FINDINGS OF FACT
In her amended answer, the defendant admitted the following material allegations of the complaint. The plaintiff is the managing agent for the record owner of the premises located at 22 Spring Street, Unit 27, East Hartford, Connecticut. On or about April 12, 2002, the plaintiff and defendant entered into a written one-year lease for the premises in question. After expiration, the lease renewed automatically for successive terms of one month. The defendant took possession of the premises pursuant to the lease and still occupies the premises. The defendant agreed to pay a monthly rent of $575, due and payable in advance on the first day of each month during the term of the lease. On August 14, 2006, the plaintiff caused a notice to quit possession to be served on the defendant to vacate the premises on or before August 18, 2006. Although the time given in the notice to quit possession of the premises has passed, the defendant still continues in possession. The defendant has denied the allegation that she failed to pay the rent due under the lease for the month of August 2006.
"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
The following evidence was presented at trial and was proved by a fair preponderance of the evidence.
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"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).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (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 defendant's tenancy began on April 12, 2002. Her lease renewed on an annual basis. On February 21, 2005, the defendant signed a lease/renewal that provided: "Tenant shall make check or money order payable to Woodside Apartments LLC, and deliver to the following address: P.O. Box 2504, Vernon, CT, 06066." Plaintiff's Ex. 3, par. 2. The lease required the defendant to mail the rent check. The last renewal was signed on February 28, 2006; the agreed-upon rent was $575.
On July 25, 2006, the defendant was injured when she fell into a pothole in the parking lot of the apartment complex. She fractured her arm. The defendant was upset at the plaintiff for not fixing the pothole. She did not hear from anyone regarding the injury for two weeks or so. After the accident, the plaintiff referred the matter to its insurance claims person.
The plaintiff testified that the August 2006 rent was not received by the tenth of the month. On August 14, 2006, the plaintiff served the defendant with a notice to quit. The plaintiff admitted that the defendant's practice was to mail the rent check in the beginning of the month. The check would be received by the plaintiff around the eighth of the month. There was, however, one occasion in June 2003, when the defendant claimed her check was lost in the mail.
The defendant testified that her practice was to make out the rent check around the first of the month and then mail it to the plaintiff. During her tenancy, she paid her rent on time and never incurred a late charge.
As to the August 2006 rent, she wrote out the rent check on August 4, 2006. Her check ledger supported this testimony. She put the check in an properly-addressed envelope with sufficient postage. She then gave the check directly to a mailman she knew.
On August 6, 2006, she went to the town offices to complain about problems with the premises including the pothole. The town inspected the premises and found some violations. The plaintiff corrected the violations by August 21, 2006.
When the defendant received the notice to quit, she immediately tried to determine if the check had been cashed. From about August 14 to August 26, she checked repeatedly with her bank to see whether the check had cleared. The check was not cashed, and the envelope never came back. On August 26, 2006, she placed a stop payment order on the check.
On September 1, 2006, the defendant gave the plaintiff two bank checks for $575, which the plaintiff accepted as use and occupancy. The defendant made timely use and occupancy payments for October 2006 and November 2006. She testified that she had the ability to make the monthly payments.
The plaintiff offered the testimony of another tenant to rebut the defendant's account. The other tenant testified that the defendant said she was going to withhold the rent because the plaintiff was not providing compensation for the defendant's injuries.
III DISCUSSION (A) Plaintiff's Case (1) Nonpayment of Rent
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 § 47a-23(a)(1)(D). Specifically, the plaintiff has alleged that the defendant failed to pay rent for the month of August 2006.
Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087 (1992). The plaintiff has argued that the defendant did not tender the rent check before the notice to quit was served because the defendant was upset about being injured.
The defendant has contended that she sent the check as usual, but the plaintiff discarded the check because of her injury and her complaints to the town about problems at the premises.
(B) Defense Case (1) Rent was mailed to the plaintiff
The defendant has alleged that the plaintiff required the defendant to mail the rent check. On August 4, 2006, as was her practice, the defendant mailed the August 2006 rent check to the plaintiff. Accordingly, the plaintiff bears the risk of loss for any properly mailed rent which is not received by the plaintiff. See C.R. Parkside Limited Partnership v. Lorenzana, 10 Conn.App. 517, 523 A.2d 1363 (1987).
In C.R. Parkside Limited Partnership, the trial court imposed the risk of loss of a mailed rental check on the defendant even though the plaintiff encouraged the defendant to use the mail when paying rent. C.R. Parkside Limited Partnership v. Lorenzana, supra, 10 Conn.App. 519. In reversing the trial court, the Appellate Court held: "[W]here a creditor has assented to payment by mail, he bears the risk of loss . . . If a person to whom money is due, either by express assent or by a course of dealing from which assent may be inferred, authorizes its transmission by mail, the person from whom it was due is relieved from the consequences of a default if it is duly and properly put into the mail." (Citation omitted; internal quotation marks omitted.) Id., 519; See Beverly J. Keller et at v. Richard Delvalle et al., Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH 19288 (January 13, 1989, DeMayo, J.T.R.); Georgia Gallas v. George Sloan et al., Superior Court, judicial district of Hartford-New Britain at New Britain, Housing Session, Docket No. SPN 87069751 (July 8, 1987, Godstein, J.).
The lease required the defendant to mail the rent. For years, the defendant mailed the rent check to the plaintiff at the address designated. The defendant mailed almost all of her payments and never incurred a late charge.
As to rent check in question, the court credits the defendant's testimony that she mailed the check to the plaintiff on or about August 4, 2006. Even though the defendant was upset about being injured, the preponderance of the evidence demonstrated that she acted in conformity with her usual practice of writing out the rent check and mailing it during the first week of the month. Her behavior after the notice to quit was served was consistent with her version of events. She checked repeatedly with her bank to determine whether the check had cleared. After a reasonable waiting period, she placed a stop payment order on the check. Within a week or so, she gave the plaintiff a replacement check as well as a check for the September 2006 rent. Since then, she has continued to make timely payments of use and occupancy.
Pursuant to the lease, the plaintiff required the defendant to mail the rent check. The court is persuaded that the August 2006 rent check was mailed before the notice to quit was served. The envelope was apparently lost. Since the defendant was only following the plaintiff's payment instructions, the plaintiff must bear the burden of the lost check. The court finds that the defendant has proved, by a fair preponderance of the evidence, this defense.
(2) Retaliatory Action pursuant to General Statutes § 47a-33
The defendant has argued that this action is barred by § 47a-33 because it was brought in retaliation for the defendant's complaints to the plaintiff for repairs to the premises, the defendant's complaints to the housing code officials for repairs to the subject premises and, the issuance of repair orders by the local officials.
General Statutes § 47a-33 provides: "In any action for summary process under this chapter or section 21-80 it shall be an affirmative defense that the plaintiff brought such action solely because the defendant attempted to remedy, by lawful means, including contacting officials of the state or of any town, city, borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any of the provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation or of the housing or health ordinances of the municipality wherein the premises which are the subject of the complaint lie. The obligation on the part of the defendant to pay rent or the reasonable value of the use and occupancy of the premises which are the subject of any such action shall not be abrogated or diminished by any provision of this section." (Emphasis added.)
"As we have said on prior occasions, retaliation is not a defense to a summary process action brought because of nonpayment of rent. Smith v. Worsham, SPNH 8207-2132 (September 8, 1982); Jacobson v. Johnson, SPNH 8207-2006 (September 8, 1982): Maretz v. Apuzzo, 34 Conn.Sup. 594, 597 (1977)." Mordecai v. Botwe-Asamoah, Superior Court, judicial district of New Haven, Docket No. 8208-2228 (September 29, 1982, Foti, J.). See Bordiere v. Ramirez, Superior Court, judicial district of New Britain, housing court, Docket No. SPN 99 1031769 (December 23, 1999, Tanzer, J.) ( 1999 Ct.Sup. 16934, 16935-13936) [ 28 Conn. L. Rptr. 359]. In Bordiere, the court held that "[w]hile the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent . . . This defense is not available to the defendants." Bordiere v. Ramirez, supra, Superior Court, 1999 Ct.Sup. 16935-13936. Based on the facts of this case, the defense of retaliatory action is not available to the defendant.
(3) Equitable considerations bar forfeiture
The defendant has asked for relief from forfeiture based on equitable considerations.
"[E]quitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding . . . Equitable principles barring forfeitures may apply to summary process actions for nonpayment of rent if: (1) the tenant's breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord's injury is reparable." Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 777-78, 627 A.2d 386 (1993); See Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991).
In East Hartford Housing Authority v. Parker, Superior Court, judicial district of Hartford, Docket No. SPH 91 1163027 (August 7, 1992, Holzberg, J.) ( 7 Conn. L. Rptr. 422), the court set forth an analytic framework to evaluate equitable claims consisting of four elements: 1) in the absence of equitable relief, the defendant will suffer a loss wholly disproportionate to the landlord; 2) the injury to the plaintiff is reparable; 3) the reason for the nonpayment and the defendant's responsibility; 4) the extent to which the tenant has demonstrated good faith in its dealing with the plaintiff.
"The first factor, as stated in Fellows, is whether the loss to be suffered by the tenant, if evicted, is disproportionate to the loss to the landlord if the tenant is not evicted. This requires, therefore, that the hardship to each party be identified and that one be balanced against the other. Only if the balance of hardships tips decidedly in favor of the tenant should equitable relief be considered.
"The second factor is whether the injury to the other party is reparable. The Fellows court noted that this involves consideration of whether the landlord's injury can be remedied by money instead of forfeiture of the tenancy.
"The third factor, not always analytically distinct from the others, is the reason for the nonpayment and the extent to which the tenant is `culpable.' Often expressed as the `clean hands doctrine,' this factor evaluates whether the tenant's breach was willful or grossly negligent, on the one hand, or the product of mere neglect, on the other . . .
"Finally, the fourth factor identified by the courts is the extent to which the tenant has demonstrated good faith in curing the default. [T]he conduct of the plaintiff after he was informed of the non-payment is conclusive of the good faith of the plaintiff . . . and his desire to avoid a forfeiture." (Citations omitted; internal quotation marks omitted.) East Hartford Housing Authority v. Parker, supra.
In evaluating the issue of clean hands, the court must consider "the equitable maxim that one who seeks to show that he is entitled to the benefit of equity must demonstrate that he comes to court with `clean hands.'" Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). The clean hands doctrine "is a legal euphemism which expresses the principle that where a party comes into equity for relief he must show his conduct has been fair, equitable and honest as to the particular controversy in issue." Collens v. New Canaan Water Co., 155 Conn. 477, 492, 234 A.2d 825 (1967). "The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." Polverari v. Peatt, 29 Conn.App. 191, 202, 614 A.2d 484 (1992). "Application of the doctrine of unclean hands rests within the sound discretion of the trial court . . . The doctrine generally should not be employed to insulate the party who asserts it from the consequences of his own wrongdoing." (Citation omitted; internal quotation marks omitted.) A B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn. 573, 578, 456 A.2d 1187 (1983). The party who seeks to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation. DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977).
In evaluating this defense, the court must weigh the following equitable considerations.
The court must determine whether, in the absence of equitable relief, the defendant will suffer a loss wholly disproportionate to the plaintiff. It is undisputed that the defendant's loss would be substantial if she is evicted. She has lived in the apartment since April 2002. Given her health situation, it would be very difficult for her to move. The loss of her apartment would be a substantial hardship. As to the plaintiff's hardships, the court recognizes the plaintiff has incurred the costs of bringing this action. Otherwise, the plaintiff has received all the payments due. There is no rent arrearage. Having balanced the respective hardships of the parties, the court finds that the defendant's loss would be substantially more harmful. If the defendant is evicted under these circumstances, she would suffer harm wholly disproportionate to the plaintiff's loss.
Whether the injury to the plaintiff is reparable must be considered. Here, the defendant has made all the rent and use and occupancy payments due. There is no rent arrearage.
The reason for the nonpayment and the defendant's responsibility must also be examined. Although the defendant was upset with the plaintiff because of her injury, she made all the payments due. She acted reasonable in trying to determine whether the August 4, 2006 check was cashed before issuing a replacement check. She has made all the use and occupancy payments with no guarantee of reinstatement. She comes before the court with clean hands.
Finally, the court must assess the extent to which the defendant has demonstrated good faith in its dealing with the plaintiff. After receiving the notice to quit, she acted in a reasonable manner. She made sufficient efforts to determine whether the August 4, 2006 rent check had cleared and then placed a stop payment order on the missing check. A short time later, she tendered to the plaintiff a replacement check as well as the September 2006 rent check. She continued to make timely use and occupancy payments to the plaintiff. The plaintiff willingly accepted all these checks. The evidence demonstrated that the defendant is ready, willing and able to meet her financial obligations to the plaintiff. See Housing Authority of Stamford v. Anthony, Superior Court, judicial district of Stamford/Norwalk at Norwalk, Housing Session, Docket No. SNBR-397 (March 8, 1994, Melville, J.) (good reason to believe that the landlord will be made whole).
Based on the evidence presented, the court finds the equitable considerations do decidedly favor the defendant. Under the circumstances of this particular case, invocation of the equitable doctrine against forfeiture is appropriate to bar the plaintiff's request for immediate possession.
IV CONCLUSION AND ORDER
For the above-stated reasons, the court enters judgment for the defendant.