Opinion
No. CVH-8086
September 30, 2011
MEMORANDUM OF DECISION
This is an action by the plaintiff, Timur Yuskaev, relating to residential premises (hereinafter referred to as the "subject premises") located at 10 Bretton Road, Second Floor, West Hartford, Connecticut.
The plaintiff asserts, pursuant to a two count complaint, violation of the entry and detainer statute, Connecticut General Statutes § 47a-43, and monetary damages related thereto. The Defendant's answer denies the substance of the plaintiff's allegations and asserts the special defense that the plaintiff did not exercise dominion or control over the premises on the date in question. Additionally, the defendants assert a counterclaim for damages based on breach of the lease agreement. The plaintiff/counterclaim defendant denied the counterclaim.
On June 14, 2011, all parties were present for the trial of this matter. Testimony was taken and evidence was submitted. The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.
STANDARD OF PROOF
The standard of proof in civil 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 (1981).
BURDEN OF PROOF
"While the 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 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop Shop, 29 Conn. App. 519, 523, cert. denied, 224 Conn. 923 (1982). Failure to do so results in judgment for the defendant. Id. "[W]hat is necessarily implied [in an allegation] need not be expressly alleged."Pamela B. v. Ment, 244 Conn. 296, 308 (1998).
THE PROCEEDINGS
"The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn. App. 638, 646, cert. denied, 274 Conn. 906 (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 factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn. App. 534, 540 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123 (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 the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530 (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. "Then determination of credibility as a function of the trial court." Heritage Square, LLC, v. Eoanou, 61 Conn. App. 329, 333 (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 the witnesses' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborne, 41 Conn. App. 287, 291 (1996). The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." In re Christine F., 6 Conn. App. 360, 366, cert. denied, 199 Conn. 808 (1986).
DISCUSSION Connecticut General Statutes § 47a-43(a): Entry Detainer
As to the plaintiff's' claim for forcible entry and illegal lockout and detainer, the plaintiff cites to General Statutes § 47a-43 (a), which provides: "When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court."Conn. Gen. Stat. § 47a-43(a).
"The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force . . . for a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry . . . [General Statutes §] 47a-43 was made to protect a person in such possession . . . from disturbance by any but lawful and orderly means." (Citations omitted; internal quotation marks omitted.)Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).
"Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land. . . . The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact." (Internal quotation marks omitted. Internal citations omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 520, 772 A.2d 154 (2001). Continuous presence is not required, but there must be evidence of actual physical control, with the intent and apparent purpose of asserting dominion." (Internal quotation marks omitted, ed.), Fleming v. City of Bridgeport, 284 Conn. 502, 512-13, 935 A.2d 126 (2007).
Leases as Contracts-Generally
"A lease is simply a type of contract and ordinary rules of contract interpretation and general rules of contract law apply to leases." Warner Associates v. Logan, 50 Conn. App. 90, 94-95 (1998). ". . . [W]hen a landlord specifies the terms for the future occupancy of the dwelling unit and the tenant continues in possession without objecting to those terms, it may be construed that the tenant has accepted those terms and a contract will be implied from the conduct of the parties."Welk v. Bidwell, 136 Conn. 603, 607 (1950). "[A]cceptance may be shown by acts or conduct indicating assent to an offer or under appropriate circumstances, acceptance may be implied by the offeree's silence and inaction . . . moreover, regardless of actual intent, if the offeree's conduct leads the offeror reasonably to conclude that the offer is being accepted, acceptance has taken place as a matter of law." Greenfield v. Lawrence Memorial Hospital, superior court, judicial district of New London, Docket No. 560884 (August 26, 2002).
"The rules governing contract formation are well settled. To form a valid and binding agreement contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . to constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to be based on an identical understanding by the parties."Duplissie v. Devino, 96 Conn. App. 673, 688, cert. denied, 280 Conn. 916 (2006). Mutual assent presents a question of fact.M. J. Daly Sons, Inc. v. West Haven, 66 Conn. App. 41, 48, cert. denied, 258 Conn. 944 (2001). Mutual assent is based on the parties written or spoken words or by other acts. Precision Mechanical Services, Inc v. Shelton Yacht Cabana Club, Inc., 97 Conn. App. 258, 263, cert. denied, 280 Conn. 928 (2006).
Breach of Contract
The defendant-counterclaim plaintiff argues that the defendants owe the plaintiff under a theory of breach of contract. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.)Chiulli v. Zola, 97 Conn. App. 699, 706-07, 905 A.2d 1236 (2006). "An `agreement' is [t]he union of two or more minds in a thing done or to be done; a coming together of parties in opinion or determination . . ." (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 429, 927 A.2d 843 (2007).
"It is [well] established . . . that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract." (Internal quotation marks omitted.) Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn. App. 426, 431, 863 A.2d 211 (2004), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005). "If there was a meeting of the minds of the parties, without fraud or unfair conduct on either side, the contract must stand, although subsequent events may show that either party made a bad bargain . . ." (Internal quotation marks omitted.) Ross v. Koenig, 129 Conn. 403, 406-07, 28 A.2d 875 (1942).
"Whether there was a breach of contract is ordinarily a question of fact . . . We review the court's findings of fact under the clearly erroneous standard . . . The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole . . . We cannot retry the facts or pass on the credibility of the witnesses . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . ." (Citation omitted; internal quotation marks omitted.) Colliers, Dow Condon, Inc. v. Schwartz, 77 Conn. App. 462, 471-72, 823 A.2d 438 (2003).
FINDINGS OF FACT
1. On May 21, 2010, the parties entered into a written lease agreement for the rental of the subject premises (Plaintiff's Exhibit 3);
2. The lease term was for one year, July 1, 2010 through June 30, 2010 (Plaintiff's Exhibit 3);
3. The agreed upon monthly rental payment was One thousand five-hundred fifty dollars ($1,550.00) due on the first day of every month (Plaintiff's Exhibit 3);
4. The parties agreed to a security deposit in the amount of One thousand five hundred dollars ($1,500.00) (Plaintiff's Exhibit 3);
5. The plaintiff paid the defendants an application fee of $70.00, a security deposit of $1500.00 and July, 2010 rent in the amount of $1,550.00 (Plaintiff's Exhibit 4);
6. Prior to executing the lease agreement, the plaintiff had a friend inspect the premises. The friend took photographs of the subject premises and forwarded those photographs to the plaintiff;
7. The plaintiff, being made aware that the premises would not be fully prepared for occupancy until July 15, insisted upon taking possession July 1, 2010;
8. The defendants' advertisement to which the plaintiff responded indicated that the defendants had "started replacing the windows in this apartment and will have all of them replaced by December, 2010" (Plaintiff's Exhibit 2);
9. The plaintiff was a North Carolina resident during the negotiation, inspection and lease signing. The Plaintiff personally entered the premises until July 1, 2011;
10. On July 1, 2011, the plaintiff arrived in Connecticut, acquired the keys and spent the night in the premises;
11. The plaintiff brought some clothing, an inflatable mattress and some other items with him to the premises on July 1, 2010;
12. On July 1, 2010, the plaintiff performed a cursory inspection of the subject premises;
13. On July 2, 2010, the plaintiff drove to Brooklyn, New York to collect his family and returned to the premises in the afternoon on July 3, 2010;
14. On July 2, 2010, the plaintiff e-mailed the defendants with concerns about the "glass French doors". The other concerns were described by the plaintiff as "minor" (Defendant's Exhibit A);
15. On July 3, 2010, the plaintiff brought additional items into the premises, including a crib and mattress. The plaintiff and his family spent the night of July 3, 2010 in the premises;
16. On July 4, 2010, the plaintiff and his wife performed a more thorough inspection of the premises and discovered areas of concern, including chipping and peeling paint in all areas of the house (Plaintiff's Exhibits 7-9);
17. The plaintiff, driven by concerns regarding the possible presence of lead paint within the premises, purchased a home lead paint testing kit (Plaintiff's Exhibits 5, 6);
18. Based on the results of the home lead testing kit, the plaintiff decided to leave the subject premises and take his family to a hotel;
19. The Plaintiffs stayed in a hotel from July 4, 2010 through July 8, 2010 (Plaintiffs Exhibit 10);
20. On July 5, 2010, the plaintiff requested replacement of all windows within the premises within one week. The defendants refused;
21. The plaintiff retained legal counsel, who drafted and sent correspondence to the defendants (Plaintiff's Exhibit 11; Defendant's Exhibit V; Defendant's Exhibit X);
22. In documents dated July 5 and July 6, 2010, the plaintiff, through counsel, indicated to the defendants that he wished the "immediate termination of the lease agreement" and requesting the return of funds related to the agreement as well as reimbursement for certain costs (Plaintiff's Exhibit 11; Defendant's Exhibits V, X);
23. On July 6, 2010, the plaintiff, through counsel, indicated in writing to the defendants that the plaintiff and his family had "already vacated the apartment" (Plaintiff's Exhibit 11; Defendant's Exhibits V, X);
24. On July 6, 2010, the plaintiff cancelled his electrical service to the subject premises. The electrical service was transferred to the Defendant (Defendant's Exhibit W);
25. The plaintiff and his family removed the remainder of their belongings from the subject premises on July 6, 2010 and returned to the hotel;
26. On July 6, 2010 the defendant's informed the plaintiff that the premises would be considered abandoned under the lease terms (Defendant's Exhibit V);
27. On July 7, 2010, the defendants entered the subject premises and saw no items belonging to the plaintiff;
28. On July 7, 2010, the defendants changed the exterior locks of the subject premises;
29. The plaintiff did not surrender the keys to the premises;
30. On July 7, 2010, the plaintiff contacted the West Hartford-Bloomfield Health Department with concerns of "defective paint in window sills" (Plaintiffs Exhibit 1). The inspector was unable to inspect the interior of the premises as the locks had been changed;
31. The defendants re-let the premises in September, 2010 for $1,300.00 per month;
Additional Findings
As it relates to the subject premises, this Court finds that the plaintiff, on and after July 5, 2010, vacated and abandoned the subject premises. The plaintiff sought to terminate the lease agreement and left the premises empty. The plaintiff has failed to establish, by a fair preponderance of the evidence, a violation of Connecticut General Statutes § 47a-43(a). Accordingly, the court enters judgment for the defendant as to both counts of the complaint.
Counterclaim
As to the sole count of the counterclaim, the court finds that the plaintiff-counterclaim defendant breached the written lease agreement between the parties. The court finds the plaintiff-counterclaim defendant liable for damages related to unpaid rent in the agreed upon amount pursuant to the lease agreement, as well as costs and reasonable attorney's fees related to this action.
RULING
Count One: Judgment enters for the defendants;
Count Two: Judgment enters for the defendants;
Counterclaim: Judgment enters for the defendants-counterclaim plaintiffs;
42-150aa
Damages: 1. Unpaid rent August, 2010 $1,550.00 2. Rental differential, new lessee $2,500.00 (9/10-6/11) at $250.00/mo. 3. Lock replacement $101.86 Total Damages: $4,151.86 1. Credit for Security Deposit ($1,500.00) Net Damages $2,651.86 Fees and Costs 1. Attorney's Fees (capped at 15% of net damages per C.G.S. § ) $397.78 Total Fees and Costs: $397.78 Total Judgment: $3,049.64Payment of Judgment is ordered by October 21, 2011. The weekly payment is to be made to Defendant's attorney as Trustee for the Defendant.