Opinion
HHHCV186008724 HHDCV186090805
07-16-2018
D.S.A. PROPERTIES, LLC v. Ysauro PINA
UNPUBLISHED OPINION
OPINION
Hon. Rupal Shah, Judge
This is a summary process action based on a written commercial lease agreement of the subject premises at 446 New Britain Avenue, street level store, Hartford, Connecticut. On June 8, 2018, the plaintiff and its attorney appeared before this court for trial on the complaint. The defendant failed to appear for trial but was represented by counsel. The court also heard the defendant’s application for temporary injunction filed in a civil case, Pina v. D.S.A. Properties, LLC, HHD-CV-186090805-S concerning breach of contract and other claims. At trial, the parties asked for the court to hear the underlying complaint in the civil matter so the court heard evidence on all claims in both matters.
The defendant, Ysauro Pina, also the plaintiff in the civil action, failed to appear for trial. As the standing civil trial orders indicate, a plaintiff may be nonsuited for failure to appear at trial. Given the significance of Mr. Pina’s testimony to meet the burden of proof on his claims, the court enters a nonsuit against Mr. Pina in the civil action. The paucity of the evidence that was presented in support of both the civil action and in defense of the summary process action will be discussed in the context of his defense to the summary process action.
The summary process complaint asserts nonpayment of rent for the month of November 2017, as the basis for the summary process action. The defendant filed an answer denying the plaintiff’s allegations and claimed, as special defenses, that: (1) the lease was entered into for the purpose of opening a restaurant and the defendant has been prevented from opening a restaurant due to the actions of the plaintiff; (2) no rent is due because the defendant learned in November that he would be unable to open a restaurant without an ADA compliant bathroom, which the plaintiff refuses to build; (3) the plaintiff has unclean hands; and (4) the defendant is entitled to an injunction due to the considerable expense he has incurred in renovating the premises. The defendant’s counsel presented the testimony of a third party, who indicated the defendant no longer seeks an injunction but damages instead. The plaintiff presented the testimony of its principal and one of its employees.
The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and finds that the plaintiff has proved by a fair preponderance of the evidence its claim of nonpayment of rent. The defendant failed to meet his burden on his special defenses to the summary process action. The defendant failed to appear and his attorney presented the testimony of a third party with limited direct knowledge of the matter and the court cannot fully credit her testimony. The court therefore enters judgment for immediate possession for the plaintiff.
I
FINDINGS OF FACT
"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, certs. 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 ..." (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 their testimony." (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).
The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and finds the following facts:
1. The parties entered into a commercial lease dated October 1, 2017, for the subject premises at 446 New Britain Avenue, street level store, Hartford, Connecticut for the purpose of allowing the defendant to open and run a restaurant. (Ex. 3.)
2. The initial term of the lease was seven years, expiring on September 30, 2024, and required a monthly payment of $2,200 for the first year, with gradual increases. Payment was due by the 5th day of each month.
3. The plaintiff waived rent for the first month because the defendant would be preparing the premises to open his restaurant.
4. The lease provides in relevant part, that the tenant shall have the right to renovate the leased premises with the landlord’s consent at his own expense and that "All work must comply with the building code and must have the proper building permit if so required by the City of Hartford, Connecticut." Commercial Lease Agreement, ¶ 5.
5. The lease also provides, in relevant part, that: "Tenant shall be relieved from paying rent and other charges during any portion of the Lease term that the Leased Premises are inoperable or unfit for occupancy, or use, in whole or in part, for Tenant’s purposes ... provisions of this paragraph extend not only to the matters aforesaid, but also to any occurrence which is beyond Tenant’s reasonable control and which renders the Leased Premises, or any appurtenance thereto, inoperable or unfit for occupancy or use, in whole, or in part, for Tenant’s purposes." Commercial Lease Agreement, ¶ 14.
6. The plaintiff had a notice to quit served on the defendant on February 22, 2018 with a quit date of February 28, 2018 for non-payment of rent.
7. The defendant has failed to make any rental payments since November 1, 2017 and remains in possession of the premises.
II
STANDARD OF LAW
The courts of this state have consistently held that "[s]ummary process is a special statutory procedure designed to provide an expeditious remedy." (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007). "Summary process statutes secure a prompt hearing and final determination." (Internal quotation marks omitted.) Id. "[Summary] process ... is designed to provide an expeditious remedy to the landlord seeking possession." HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 658, 668 A.2d 1309 (1995). "The ultimate issue in a summary process action is the right to possession." (Internal quotation marks omitted.) Tinaco Plaza, LLC v. Freebob’s, Inc., 74 Conn.App. 760, 766-67, 814 A.2d 403, cert. granted on other grounds, 263 Conn. 904, 819 A.2d 840 (2003) (motion to dismiss granted February 4, 2004).
"Summary process is a special statutory procedure designed to provide an expeditious remedy ... It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms ... Summary process statutes secure a prompt hearing and final determination ... Therefore, the statutes relating to summary process must be narrowly construed and strictly followed." (Internal quotation marks omitted.) St. Paul’s Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 733, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).
"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." Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). "The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Id. Failure to do so results in judgment for the defendant. Id. "[W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).
III
DISCUSSION
In order to prevail in a summary process action based on nonpayment of rent, the plaintiff must establish, by a fair preponderance of the evidence, the following essential elements: (1) a rental agreement; (2) that the plaintiff is the lessor or owner of the premises; (3) the address of the subject premises; (4) the amount of rent due to the plaintiff from the defendant; (5) when the rent was due to the plaintiff; (6) the date of nonpayment; (7) the service of a notice to quit, as well as its service date and termination date; and (8) that the defendant is still in possession of the premises. Harvey v. Green, Superior Court, judicial district of New London at Norwich, Docket No. 2117036 (November 12, 2008, Young, J.); see General Statutes § § 47a-15a, 47a-23 and 47a-23a. The court finds, on the basis of the evidence adduced at trial, that the plaintiff has established all of these elements by a fair preponderance of the evidence.
The parties entered into a commercial lease; (Ex. 3); for the period of October 1, 2017, through September 30, 2024. The plaintiff alleges in its complaint that the defendant missed payment of rent for November. The defendant admits that rent was not paid but asserts several special defenses.
The defendant’s first special defense is based on the need for an ADA compliant bathroom. He claims that he informed the plaintiff immediately upon learning that an ADA compliant bathroom was needed in order for the restaurant to open in November. At trial, the only evidence submitted by the defendant shows a December date for obtaining permitting from the City. The only witness for the defendant, Maria Gavidia, testified they learned of the bathroom issue when they went to the City. The architect bill submitted is dated in December, too. Therefore, the only evidence submitted by the defendant supports a December timeframe for any issues related to ADA compliance. Therefore, this occurred after the November 5th non-payment and cannot be a basis for the defendant to claim he did not owe rent for November.
The defendant’s other defenses are also without merit. The defendant did not present any evidence regarding his ability to enjoy the premises, unclean hands of the plaintiff or any basis upon which to issue an injunction. The unclean hands defense and each of the special defenses were premised upon the same allegations regarding the ADA compliance of the bathroom and the defendant’s alleged inability to obtain a certificate of occupancy. Under Connecticut law, unclean hands is available as a defense only where the matter in litigation "grows out of or depends upon or is inseparably connected with [the plaintiff’s] own prior [misconduct] ..." Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). The only credible evidence submitted shows the issues surrounding the bathroom arose after the defendant’s nonpayment in November. Thus, the defendant also fails to show that the plaintiff prevented any use or enjoyment of the premises. The evidence shows that any issues surrounding the certificate of occupancy arose after the defendant’s non-payment. Accordingly, the court finds that the defendant has failed to meet his burden of proof on any of the special defenses.
IV
CONCLUSION
Accordingly, the court enters judgment for the plaintiff.