Opinion
No. CV 06-5005662
October 31, 2008
MEMORANDUM OF DECISION
The plaintiffs brought this action against the defendant in a three-count complaint. The first count alleges breach of contract, the second count alleges vexatious litigation under General Statutes § 52-568 and the third count alleges a CUTPA violation under General Statutes § 42-110b(a). The matter was first filed in the housing session of the Superior Court for the judicial district of New Haven, and was transferred to the Superior Court. The parties waived their claim for a jury trial and on September 10, 2008 a trial was held before the court, Keegan, J. The plaintiffs testified on their own behalf and introduced thirteen full exhibits. The defendant introduced seven full exhibits.
The parties requested additional time to file post-trial findings of facts and memoranda of law.
As the trier of fact, the court is vested with the unique opportunity to view the evidence presented in the totality of the circumstances, including its observations of the demeanor and conduct of the parties. Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). The court may 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, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). The plaintiffs bear the burden of proving their claims by a fair preponderance of the evidence, which is defined by our courts as evidence with the greater weight and more convincing force in one's mind. Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Based on the credible evidence presented, the court finds the following facts. The plaintiffs entered into a lease agreement with the defendant for the rental of an apartment located in Hamden, Connecticut. The plaintiffs rented the apartment for a total of two years, from August 2003 to August 2005. The lease agreement in question, however, is the second lease, executed from August 9, 2004 through August 8, 2005. (Plaintiff's Exhibit 1.) Both plaintiffs and an agent for the defendant signed the lease. The total rental amount due monthly was $1,349. The security deposit was $2,798. The plaintiffs testified that they had read and understood their lease agreement.
By way of letter dated April 9, 2005, the defendant notified the plaintiffs that the April rent payment had not been paid. (Defendant's Exhibit A.) The letter stated as follows:
Your rent is due by the close of business on the 1st of the month. In accordance with your lease agreement, we allow you a grace period. If your rent is not paid by 12 midnight on the 10th, we will charge your account a $75 late fee. Any payments made after the 10th of the month must be paid by money order or cashier's check . . . If we do not receive payment by 12 midnight on the 10th we will have no choice but to take legal action. Please note that if we begin legal proceedings, there are legal fees that will be charged back to you." (Emphasis in the original.)
The plaintiffs testified that they received the letter after they had made a partial rent payment on April 8, 2005 by way of a personal check, but it was not accepted by the defendant.
No proof of the check was entered into evidence. As to the April 8, 2005 payment, plaintiff Romanczak testified that he deposited it in the "secure drop." The court takes judicial notice that April 8, 2005 was a Friday. Plaintiff Dumelin testified that on April 11, 2005, payment in the amount of $497.99 was tendered to the defendant in the form of a bank check. (Plaintiff's Exhibit 4.) Dumelin testified that the bank check was obtained on April 11, 2005, although the date on the check states April 12, 2005. He testified that because the check was obtained at a People's Bank branch, located in a Stop Shop supermarket, after normal banking hours, the bank would issue the check only with the next day's date.
On April 11, 2005, the defendant served the plaintiffs with a notice to quit for nonpayment of rent. (Plaintiff's Exhibit 3; see also, Plaintiff's Exhibit 6 which contains a copy of the notice to quit with the attached certification of service.) On April 20, 2005, the defendant filed a summary process action. (Plaintiff's Exhibit 6.) That action was ultimately withdrawn on June 21, 2005. (Plaintiff's Exhibit 10.) After the lease ended and the plaintiffs vacated the premises, they received an accounting of their security deposit. (Plaintiff's Exhibit 12.) The defendant deducted various monies from the security deposit; at issue here is the sums for legal fees.
COUNT ONE — BREACH OF CONTRACT
In their first count, the plaintiffs claim that the defendant breached the lease agreement in two ways: first, by bringing a summary process action after the full rent was made on the eleventh day of the month; and second, by withholding monies from their security deposit for the defendant's legal costs and fees incurred with respect to the summary process action.
It is well-settled in Connecticut that a lease is a contract and as such, is subject to the same rules of construction as other contracts. (Citation omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007). The standard of review for the interpretation of a contract is also well-settled. "In construing a written lease . . . three elementary principles must be [considered]: (1) the intention of the parties is controlling and must be gathered from the language of the parties; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; and (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible . . . Furthermore, when `the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms. A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a [lease] must emanate from the language used in the [lease] rather than from one party's subjective perception of [its] terms.'" (Internal citations omitted.) Bristol v. Ocean State Job Lot Stores, supra, 248 Conn. 8.
Paragraph 5(a) of the lease states that the rent is due and payable on or before the first day of each month. The lease also provided for a late charge to be payable in addition to the rent if payment was made after the tenth day of the month. This "grace period" for the payment of rent comports with General Statutes § 47a-15a. The lease also addressed the issue of default. Paragraph 17(a)(1) states: "You will be in default under this lease if: you do not make your payment of Rent, including other charges, on time . . ." Subparagraph (c) states "In the event of a default, in addition to the other remedies available to us under this Lease or applicable law, you agree to pay us all costs and fees, including attorneys fees, litigation and collection costs that we incur in enforcing our rights under this Lease to the fullest extent to which we are entitled to collect such sums from you under applicable law."
"If rent is unpaid when due and the tenant fails to pay the rent within nine days thereafter . . . the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive." General Statutes § 47a-15a.
Despite the lack of ambiguity in the words of the lease, the plaintiffs contend that a letter they received in October 2004 somehow modified their rent payment obligations. (Plaintiffs' Exhibit 2.) The court strains to find such a reading of the letter. Based on a plain reading of the letter, it simply serves to remind the residents that rent is due on the first of the month and that they have a nine-day grace period in which to pay the rent. The letter states that "[a]s of November 2004, you will not have the option of paying your late rent with a personal check." That statement, however, was in accord with the lease agreement, paragraph 5(g) which states, "any rent that is paid late must be in the form of a money order, cashier's check or certified check." Finally, the letter informs the residents that if the rent is not paid before 9:00 am. on the eleventh day of the month, they will receive a notice to quit on that day. Again, this is consistent with the terms of the lease under paragraph 17 regarding default. "Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease." Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).
The letter states that if the rent payment and late charge are not received in certified funds by the end of the sixteenth business day of the month, "your account will be turned over to the attorney to begin the eviction process with no exceptions." The plaintiffs testified that they believed that, because they made the April 2005 rent payment in certified funds before April 16, 2005, the landlord breached the contract that was modified by the October 2004 letter. This argument is without merit. First, there was no evidence presented to show any meeting of the minds of the parties that the October 2004 letter was a modification of the lease. As previously noted, one party's subjective perception of ambiguity does not give rise to a finding of ambiguity; the ambiguity must arise from the language used. See Bristol v. Ocean State Job Lot, supra, 248 Conn. 8. Second, evidence was presented in the form of an April 9, 2005 letter to the plaintiffs that reiterated the lease terms. (Defendant's exhibit A.) That letter stated: (1) that rent was due by 12 midnight on the tenth day of the month; (2) that any payments tendered after that time must include the $75 late charge and be presented in certified form; and (3) that the landlord will have no choice but to begin legal action if rent is not paid by midnight on the tenth day, with legal fees charged to the plaintiffs if the defendant begins legal proceedings. Similar to the October 2004 letter, the April 2005 letter served to remind the plaintiffs of the payment obligations under the lease and the ramifications for noncompliance with those obligations. The court does not read the October 2004 letter to give the plaintiffs a right to pay their rent late and avoid eviction.
Plaintiffs seemed to argue, both in their brief and during the trial, that the statutory grace period of nine days for payment of rent before late fees incur somehow changes the date that their rent was due. This argument is without merit. The language of the contract — herein, the lease signed by both parties — unequivocally made clear that rent was due and payable on the first of the month. Late charges are assessed for payments made after the tenth of month, and such payments must then be in the form of certified funds. Paragraph five "a" states "you will pay an amount equal to the Total Rent and Other Charges, as specified in the Summary, including Base Rent and all other recurring monthly charges due under this Lease, on or before the first day of each month during the term of this Lease." Most importantly, the lease made clear that "Failure to pay Rent will give rise to an action for eviction in addition to any other remedies we may have." In the present case, the evidence shows that the plaintiffs made only a partial payment of rent sometime before April 8, 2005. Then, after the close of business on April 8, 2005, the plaintiffs sought to make the balance of their rent payment using a "secure drop" presumably maintained by the defendant. The payment was not received by the landlord until the 11th of April; by then, it was late and not in the proper form of payment. Not until after the close of business on the 11th was payment tendered, and at that point, the check itself was dated the 12th of April 2005. Their failed attempt to make payment before the 10th of the month put them in the situation they found themselves; namely, that they had breached the lease by not making a timely monthly payment. Because of their breach, the defendant had every right under the lease agreement to serve the notice to quit and to file the summary process action. Paragraph 17 "c" of the lease clearly stated that in the event of a default by the tenant, the tenant agrees to pay the landlord "all costs and fees, including attorneys fees, litigation and collection costs" that are incurred in connection with enforcing their rights.
Default was defined in the lease as "failure to make the payment of rent . . . on time."
The plaintiffs admitted, under cross-examination, to prior problems with paying their rent on time. Plaintiff Romanczak testified that they often paid rent in "installments," trying to make sure they paid in full before the late charge date. The court finds, based on the testimony and the inferences drawn therefrom, that the plaintiffs could not afford the apartment they rented. The plaintiffs should not have been surprised, based on their conduct, that the defendant would seek to terminate their tenancy based on the failure to make a timely rent payment or that the landlord would seek legal fees for the resulting action. The lease was clear, and only made clearer by the letters plaintiffs received from the landlord. The court finds the plaintiffs have failed to prove this count by a preponderance of the evidence. Judgment for the defendant may enter on the first count.
COUNT TWO-VEXATIOUS LITIGATION
In their second count, the plaintiffs claim that the defendant lacked the probable cause for bringing a summary process action against them after they had paid their April 2005 rent. Moreover, they allege that the lack of probable cause is evidenced by the withdrawal of the action in the housing court, which terminated the proceeding in their favor.
General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commences and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person shall pay him treble damages." The complaint alleges malicious intent on the part of the defendant, but in their post-trial brief, the plaintiffs do not claim malicious intent. The evidence produced did not establish any such intent. Thus, the plaintiffs are left to prove, under the statutory claim, "want of probable cause and a termination of suit in the plaintiff's favor." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007).
The plaintiffs contend that the withdrawal of the summary process action terminated the action in their favor. (Exhibit 10.) In Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983), our Supreme Court examined the public policy requirement underlying the requirement that termination of the prior action be in a plaintiff's favor. The court noted that the requirement "serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts." Id., 263. However, when a lawsuit "ends in a negotiated settlement or compromise, it does not terminate in the plaintiff's favor and therefore will not support a subsequent suit for vexatious litigation." Id., 264. In the case before the court, the plaintiffs point to the withdrawal of the action form, which was signed by the defendant's counsel, as evidence that the case was terminated in their favor. The box checked on the form that explained the reason for withdrawal read: "unilateral action of the party(ies)." Testimony from the plaintiff Romanczak, however, established that the plaintiffs agreed with the defendant that they would stay in the apartment until the end of the lease and, based on that, the defendant withdrew the action. The reason cited on the withdrawal form is far from persuasive to establish that the summary process action terminated in the plaintiffs' favor. Coupled with the testimony of the plaintiff, the evidence does not establish, beyond a preponderance of the evidence, that the action was terminated in their favor. Rather, it leads to the conclusion that the withdrawal was the product of a negotiated settlement.
Plaintiffs have cited to the court the decision in Fraser v. ETA Association, Inc., 41 Conn.Sup. 417, 580 A.2d 94 (1990) [ 1 Conn. L. Rptr. 229], wherein Judge DeMayo examined a request for attorneys fees arising in a breach of lease action under General Statutes § 42-150bb. The case arises from the withdrawal of the case by the plaintiff prior to trial but after depositions were taken of the defendants. The court examined whether the withdrawal by the plaintiff was considered to be terminated in one party's favor. The court finds that the Fraser decision is not applicable to the present case. In Fraser, the plaintiff's withdrawal was unilateral without any conditions or pretenses. There was no dispute as to the withdrawal of the action by the plaintiff. Rather, the court only had to consider what the effect of the withdrawal was. In the case before the court, the testimony surrounding the defendant's withdrawal does not establish beyond a preponderance of the evidence that the action was terminated in the plaintiff's favor. The testimony tends to indicate that the withdrawal is more akin to a negotiated settlement. The court finds the plaintiffs have failed to prove this count by a preponderance of the evidence. Judgment for the defendant may enter on the second count.
COUNT THREE-CUTPA
In the final count of the complaint, the plaintiffs allege that the defendant wrongfully withheld from their security deposit the attorneys fees for the eviction action and thereby violated Connecticut's Unfair Trade Practices Act. General Statutes § 42-110b. Our Supreme Court had held that CUTPA is applicable to residential landlord-tenant transactions. See Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983). Thus, the resolution of this count turns on whether the defendant wrongfully withheld said attorneys fees from the plaintiffs' security deposit.
While the court is cognizant of the defendant's duties under § 47a-21(d)(2), in this case the defendant did provide plaintiffs with an itemized accounting of the expenses deducted from the security deposit. See Plaintiffs' exhibit 12. The plaintiffs introduced no evidence to show that they requested a further itemized accounting of the actual legal expenses and were refused.
In light of the court's conclusion that there was no breach of contract established, there can be no finding that CUTPA was violated. The court finds the plaintiffs have failed to prove this count by a preponderance of the evidence. Judgment for the defendant may enter on the third count.
CONCLUSION
For all the foregoing reasons, judgment may enter on all counts for the DEFENDANT.