Opinion
HFHCV166001697S
08-25-2016
Spin Ghar Properties, LLC v. Lorenza Stewart, Anthony Kinsey aka John Doe and Jane Doe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON SUMMARY PROCESS, MOTION TO DISMISS, AND MOTION FOR USE AND OCCUPANCY
Nicola E. Rubinow, J.
This memorandum of decision addresses the issues raised through the summary process complaint brought by Spin Ghar Properties, LLC (Spin Ghar) seeking possession of the dwelling unit known as 30 Auburn Street, Apt. 9, in Hartford, CT (the dwelling unit) from the named defendants Lorenza Stewart, John Doe and Jane Doe.
The plaintiff was represented by counsel throughout. Stewart filed an appearance on her own behalf with special defenses on May 18, 2016. On June 14, 2016, identifying himself as the defendant John Doe, Anthony E. Kinsey filed an appearance to represent himself. Jane Doe has not appeared in this matter and is subject to a default judgment, as discussed below.
The matter was tried to the court on July 19, 20 and 21, 2016. On the first day of trial, Spin Ghar withdrew Count Five of its complaint but reserved the privilege of presenting evidence on the subject raised therein. Before hearing evidence, the court considered the allegation in Stewart's Special Defenses that claimed the summary process litigation should be dismissed due to lack of jurisdiction. The court orally denying Stewart's cognizable motion to dismiss for the reasons discussed in Part I, testimonial and documentary evidence was received in support and in opposition to the complaint, the complaint, and in support of the Stewart's remaining special defenses; all evidence was subject to vigorous cross examination. After hearing, and without objection, the court took judicial notice of the file. The plaintiff bears the burden of proving the operative allegations of its complaint by a fair preponderance of the evidence. Stewart bears like burden of proof insofar as her special defenses are concerned.
The standard of proof, 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 general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992), citing Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).
See Civil Jury Instructions Civil Jury Instructions, 2.6-2 Burden of Proof--Affirmative Defenses.
The court has reviewed the pleadings and considered the evidence in its entirety using the applicable principles of law and equity. Basing its decision upon those facts proved at trial by a fair preponderance of the evidence and reasonable inferences drawn therefrom, the court finds all issues in favor of Spin Ghar and enters judgment of possession for the plaintiff and against each defendant.
" The [factfinding] 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 . . ." (Emphasis added.) 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 . . ." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " [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 factfinder " is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986).
I
STEWART'S MOTION TO DISMISS
As Stewart implicated the court's jurisdiction by alleging that the " case should be dismissed because the quit date on lapse of time should be 5/1/2016 and not 4/30/16, " the court has considered the self-represented litigant's claim in the context of a motion to dismiss. (Stewart Special Defenses, 5/18/16.) " 'A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . .' (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); see also South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 744, 899 A.2d 642 (2006)." (Emphasis added.) Housing Authority v. DeRoche, 112 Conn.App. 355, 362, 962 A.2d 904 (2009). See also St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 734, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).
The record in this case establishes, without factual contest, that the Notice to Quit was served upon Stewart on March 22, 2016. Among other things, this notice to quit asserted that because of " Lapse of Time" this defendant, those holding under her, John Doe and Jane Doe were required to quit possession or occupancy of the dwelling unit on or before April 30, 2016. Stewart has provided no authority to support her claim that the notice to quit must fail because it named the last day of the month of April 2016 as the date by which she was to leave the premises; she has provided no authority establishing that a notice to quit based on lapse of time must name the first date of the following month, May 1 in this case, as the date for departure.
The court file reflects that the notice to quit at issue was served by a state marshal. " There is a presumption of truth afforded to the statements in the marshal's return. Knipple v. Viking Communications Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996)." Donnie Dickerson, Administrator v. Jayne F. Pincus, 154 Conn.App. 146, 153, 105 A.3d 338 (2014).
" 'A notice to quit is a condition precedent to a summary process action and, if defective, deprives the court of subject matter jurisdiction . . .' (Citation omitted; internal quotation marks omitted.) Firstlight Hydro Generating Co. v. First Black Ink, LLC, 143 Conn.App. 635, 639, 70 A.3d 174, cert. denied, 310 Conn. 913, 76 A.3d 629 (2013)." Wilkes v. Thomson, 155 Conn.App. 278, 282, 109 A.3d 543 (2015). " Service of a valid notice to quit, which terminates the lease and creates a tenancy at sufferance . . . is a condition precedent to a summary process action . . ." Cheshire Land Trust, LLC v. Casey, 156 Conn.App. 833, 839, 115 A.3d 497 (2015), quoting Cornfield Associates Ltd. Partnership v. Cummings, 148 Conn.App. 70, 76, 84 A.3d 929 (2014), cert. denied, 315 Conn. 929, 110 A.3d 433 (2015). " [A]fter a notice to quit possession has been served, a tenant's fixed tenancy is converted into a tenancy at sufferance. Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). A tenant at sufferance is released from his obligations under a lease . . . His only obligations are to pay the reasonable rental value of the property which he occupied in the form of use and occupancy payments . . . and to fulfill all statutory obligations. Housing Authority v. Hird, supra, 157 ('[t]he statutory obligations of the landlord and tenant continue even when there is no longer a rental agreement between them')." (Citations and footnote omitted.) Sproviero v. J.M. Scott Associates, Inc., 108 Conn.App. 454, 462-63, 948 A.2d 379 (2008).
Here, on the face of the record, the court has found the notice to quit fully sufficient to support the court's jurisdiction over the plaintiff's lapse of time allegations, within the application of General Statutes § 47a-23(a)(1)(A).
Accordingly, Stewart's motion to dismiss has been DENIED.
II
FACTUAL FINDINGS
In July 2015, Spin Ghar Properties, LLC purchased the property at 30 Auburn Street in Hartford, which houses fourteen dwelling units including Apt. 9. Stewart has resided at the dwelling unit for approximately twenty-five years. Approximately ten years ago, Stewart was a party to a written lease through which Spin Ghar's predecessor in interest allowed Stewart to reside at the premises for one year; when that written lease expired, Stewart remained in place pursuant to an unwritten month-to-month lease. In the past few years, in the absence of a written rental agreement, Stewart's monthly rent had been $500, the same rent charged for occupancy of some of the other dwelling units at 30 Auburn Street. Kinsey has never been a party to a lease permitting him to reside at the dwelling unit and has never been responsible for paying rent; he has lived at the dwelling unit with Stewart since before Spin Ghar obtained ownership of the property. (Exs. 9A, 9B, 9C, 9D; Tes. Stewart, Kinsey, Akbarzai.) The court credits Stewart's testimony establishing that there is always someone present at the dwelling unit, so access can always be obtained; the court also reasonably infers therefrom, however, that anyone present within the dwelling unit could deny access to one who sought consent to enter. (Tes. Stewart.)
See, e.g., General Statutes § 47a-3d and § 47a-3b (" Unless the rental agreement fixes a definite term, the tenancy is month-to-month . . ."
On cross examination, Stewart credibly stated: " There's someone always at my house, sir. There's always . . . you'll always have access to get in my apartment. (Tes. Stewart, FTR, 7-19-16 @ 4:09:35 p.m.) See In re Isaiah J., 52 Conn.Supp. 485, 497 n.9, 72 A.3d 446 (2013) (" [FTR (For The Record) is the recording facility of the court reporter which digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial . . .]"). Stewart's testimony that someone is always present to allow access to the dwelling unit is consistent with Kinsey's credible testimony claiming that prior to trial, he generally had not left the dwelling unit for years. (Tes. Kinsey, FTR, 7-20-16 @4:28:14 et seq.) (See Exs. F, G.)
On approximately August 12, 2015, Spin Ghar sent and Stewart received a letter through which the plaintiff informed her that a one-year lease was available for the dwelling unit, with a rental increase to $725 per month plus " a onetime deposit of $725, " and that if she did not sign the proffered lease, she could " continue on month to month [but] the rent will be $775 with a onetime deposit of $775." (Ex. 1; see Tes. Stewart, Akbarzai.) The plaintiff sent similar letters to the other tenants of the dwelling units at 30 Auburn Street proffering terms for written or month-to-month leases. Stewart did not respond to the plaintiff concerning the content of the letter. She did not accept the lease terms, but knowingly remained in possession as a month-to-month tenant causing, allowing and/or permitting Kinsey and Jane Doe to live with her. (Tes. Stewart, Kinsey, Akbarzai.)
Stewart was fully aware that if she did not sign a written lease with the property's new owner, she would become a month-to-month tenant. (Tes. Stewart.)
Soon after receiving this letter, Stewart and a number of other 30 Auburn Street occupants complained to the City of Hartford's Fair Rent Commission (FRC) concerning the plaintiffs proposed rent increases and/or the condition of the dwelling units. In connection with these complaints, the apartments at 30 Auburn Street were inspected by Alexander Samboy, a Housing Code Enforcement Officer for the City of Hartford (city inspector). The city inspector identified some code violations, unspecified at trial, in some of the apartments at 30 Auburn Street. Samboy rendered his written report on October 13, 2015, and made it available to the FRC. (Exs. 1, 9A, 9B, 9C, 9D, C; Tes. Akbarzai, Stewart.)
Complainants from other apartments included Stewart's daughter, Janice Stewart, and her nephew, Nathaniel Lewis. (Exs. 9B, 9C; Tes. Stewart.) Neither Kinsey nor John Doe participated in any proceedings before the FRC. (Tes. Stewart.)
By October 20, 2015, in compliance and cooperation with the FRC, the plaintiff had commenced reasonable efforts to communicate orally with Stewart to provide notice of its intention to enter 30 Auburn Street, Apt. 9 at a reasonable time to inspect its condition and address any code violations or conditions requiring repair, as contemplated by General Statutes § 47a-16(c). Neither Stewart nor any of the dwelling unit's occupants then gave consent to permit the plaintiff to enter the dwelling unit; under the circumstances, the landlord could not enter the apartment, even to inspect the premises, make repairs or alterations, without such consent. See § 47a-16.
See General Statutes § 47a-16, which provides: " (a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. (b) A landlord may enter the dwelling unit without consent of the tenant in case of emergency. (c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency. (d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a [tenant's notification to landlord of extended absence from the premises], (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises."
As its reasonable efforts at oral communication with Stewart were not successful, the plaintiff sent her a letter on November 2, 2015, by certified mail, confirming its previous but unrequited attempts to enter the dwelling unit, providing her with a phone number at which its representative could be reached, and affording advance notice that it would conduct an inspection of the apartment between 10 a.m.-12 p.m. on November 6, 2015, a reasonable time as contemplated by § 47a-16(c). Stewart did not accept or retrieve this letter, which was dated October 30, 2015 and was returned to the sender as unclaimed. Although the plaintiff sent its authorized agents to the dwelling unit on November 6, 2015 at the scheduled time, no occupant of 30 Auburn St., Apt. 9, neither Stewart nor any occupant allowed them entry; consent to enter was effectively withheld notwithstanding the provisions of § 47a-16(a) and (c). Thus, neither inspection nor remediation could be conducted on that date despite the plaintiff's reasonable efforts at compliance with § 47a-16, the directives of the FRC, and the city inspector. (Exs. 2, 3.)
See footnote 6.
On November 19, 2015, the FRC held a hearing concerning the status of the complaints raised by Stewart and other occupants of 30 Auburn Street. After hearing, the FRC decided that the plaintiff could correct code noted code violations, have the correction verified by reinspection, and then increase the rents charged to 30 Auburn Street apartment occupants according to a set schedule; the FRC notified each complainant of its decision. (See, e.g., Exs. 9A, 9B, 9C, 9D, C; see also Tes. Stewart, Akbarzai.) On November 20, 2015, the FRC sent Stewart a copy of a letter explaining the conditions predicate to the plaintiff's implementation of rent increases; the FRC expressly anticipated that Stewart would cause, allow or permit the plaintiff to timely effectuate any designated code violations, stating: " Tenant and Landlord willfully cooperate with each other so that the landlord can bring the apartment up to code." (Emphasis added.) (Ex. C; see Tes. Stewart, Akbarzai.)
For designated dwelling units, including that occupied by the defendants, the FRC schedule allowed the current $500 rent to be increased to $550 effective February 1, 2016 and to be increased to $600 effective May 1, 2016. (Exs. 9A, 9B, 9C, 9D, C; Tes. Akbarzai, Stewart.)
On approximately December 17, 2015, on behalf of the plaintiff, Amjeed Akbarzai spoke to Stewart; she orally agreed to permit access to the dwelling unit so that " the repair in her Apartment" could be made on " Monday 21st December 2015." (Ex. 4.) To ensure that its appointment with Stewart would go forward, the plaintiff reasonably sent her a letter on December 18, 2015, again by certified mail, again providing a phone number at which Spin Ghar's representative could be reached and confirming the advance notice of its intention to enter the dwelling unit on December 21, 2015 at 9 a.m. to inspect and make any " necessary repair required by the City of Hartford Housing Authority." (Ex. 5.) Once more, Stewart chose not to accept or retrieve claim this letter, which was returned to the sender as unclaimed. (Ex. 5.) And once more, when the plaintiff's authorized agents went to the dwelling unit on December 21, 2015 at the designated time and date, no access to the interior was permitted by Stewart or any person holding occupancy under her; instead, again, consent to enter was effectively withheld notwithstanding § 47a-16(a) and (c).
See footnote 6.
On December 24, 2015, the plaintiff electronically informed the FRC and the city inspector of Stewart's lack of cooperation with its reasonable efforts to gain entry into the dwelling unit to inspect and perform repairs. (Ex. 5; Tes. Akbarzai.) On that date, Akbarzai spoke to Stewart; she then agreed to permit the plaintiff and/or its authorized agents to enter the dwelling unit on January 4, 2016 for inspection and repair. (Ex. 7; Tes. Akbarzai.) Given the persistent lack of cooperation from Stewart and/or other occupants of the dwelling unit acting at her direction and/or at Stewart's behest, the plaintiff also reasonably requested assistance from the FRC and the city inspector to gain the necessary access to the dwelling unit on January 4, 2016; the evidence as a whole supports the inference that at a reasonable time on or after December 24, 2015, the FRC and/or the city inspector, in the course of their assigned duties, advised Stewart that Spin Ghar would be present at 30 Auburn Street at 9 a.m. on January 4, 2016 to conduct the requested inspection and commence any repairs needed for code compliance. (Exs. 6, 7; Tes. Akbarzai.) On January 4, 2016, the plaintiff's authorized agents were present at the dwelling unit at 9 a.m. " to do the necessary repair required" by the FRC and the city inspector. (Ex. 7.) Although the plaintiff's authorized agents knocked many times on the door and waited there until 10 a.m., and although Kinsey admits that he was present at the dwelling unit, neither Stewart nor any other defendant nor any person within the apartment consented or allowed access to the interior. As the court has credited Stewart's testimonial admission that someone is always present at her apartment, so entry can always be accessed, the court again concludes that on this occasion, as in the past, Stewart and/or others acting at her direction and/or at her behest actively engaged in efforts to avoid answering the door when the plaintiff's representatives knocked, and actively withheld consent for the admission of those who had come to inspect and repair the dwelling unit. (Exs. 6, 7; Tes. Stewart, Akbarzai.) On that date, the plaintiff electronically informed the FRC and the city inspector of Stewart's failure to cooperate with its efforts to remediate any conditions within the dwelling unit that might have required attention to comply with the city code. (Ex. 7; see Ex. C.)
Kinsey claims that he was medically unable to answer the door on this or any other occasion. Neither his testimony nor his documentary evidence is sufficient to credibly or reliable support that claim. Kinsey's submitted medical records indicate that he was hospitalized from November 16 through 23, 2015 for treatment of perforated diverticulitis, and show that after breakfast on January 5, 2016 he was to ingest certain substances in preparation for a colonoscopy that would take place on January 6, 2016. (Exs. F, G; Tes Kinsey.) Neither these medical records nor Kinsey's testimony about his health conditions mitigate the weight of the plaintiff's evidence establishing the defendant's lack of cooperation with all attempts to remediate conditions within the dwelling unit; no aspect of the evidence as a whole establishes a reasonable basis for concluding the physical condition of any occupant of 30 Auburn Street, Apt. 9 was sufficient to prohibit the landlord from entering the dwelling unit to conduct inspection and repair as contemplated by the FRC and/or the city inspector. (See Exs. F, G; Tes. Kinsey.)
By January 22, 2016, with the exception of Apt. 9, the plaintiff had corrected all noted housing code violations within the dwelling units at 30 Auburn Street; those corrections had been verified by reinspection as required by the FRC; and rent increases had been implemented pursuant to the FRC's schedule. (Exs. 9A, 9B, 9C, 9D; Tes. Akbarzai.)
The court fully credits Akbarzai's testimony that other than Stewart and the occupants of Apt. 9, by the January 22, 2016, the plaintiff had been permitted to access all of the other dwelling units at 30 Auburn St.; that any code violations noted in those other units, occupied or unoccupied, had been repaired to the satisfaction of the city; and that the rent increases for those other units had been implemented as approved by the FRC. In addition, by January 25, 2016, the FRC had written to the complainants from apartments 7, 12, 13 and 14 to inform them that the plaintiff could implement the FRC's scheduled rent increases. (Tes. Akbarzai; see also Exs. 9A, 9B, 9C, 9D.)
Notwithstanding the directive imposed through the FRC's November 20, 2015 letter, Stewart did not " fully cooperate" with the plaintiff so it " can bring the apartment up to code." (Ex. C.) Instead, despite Stewart's and Kinsey's testimonial protestations to the contrary, a fair preponderance of the evidence establishes that they, Jane Doe and all other occupants of Apt. 9 did not cooperate with the plaintiff at all. Instead, they continued their practice, started in October 2015, of actively engaging in efforts to defeat the landlord's responsible and reasonable attempts to gain consensual access to the dwelling unit. (Ex. C.) Thereby, the occupants of Apt. 9, including but not limited to Stewart and Kinsey, voluntarily and effectively prevented the plaintiff from complying with the FRC's expectation that it would repair any identifiable code violations and then impose the approved rent increase for that dwelling unit. See § 47a-16(a)(c). (Ex. C; Tes. Akbarzai.)
See footnotes 6, 13.
The evidence is insufficient to allow the court to reasonably identify any housing code violations that the plaintiff and/or the city inspector could have discerned at the dwelling unit, even if consent to access had been provided by Stewart, Kinsey, Jane Doe or any occupant of Apt. 9; accordingly, the evidence is insufficient to allow the court to determine whether any such code violations were aesthetic in nature, rendered the dwelling unit materially unsafe or unhealthy for any occupant, whether electrical facilities were not maintained in good and safe working order, and/or whether the premises were not kept in fit or habitable condition. Moreover, as further discussed in Parts IV and V, by Stewart's own admission, any violations that might exist in Apt. 9 are minor in nature, having no measurable negative effect on life within the dwelling unit. (Tes. Stewart.)
See General Statutes § 47a-7(a)(1)(2)(4).
Stewart paid rent to the plaintiff through March 2016. On March 22, 2016, the plaintiff caused a notice to quit to be served upon Stewart and Kinsey a/k/a John Doe, accompanied by a letter from the plaintiff's attorney. In and of itself, the notice to quit clearly and unequivocally informed Stewart, Kinsey a/k/a John Doe and Jane Doe that the landlord, Spin Ghar Properties, LLC was requiring them each to quit possession or occupancy of the premises on or before April 30, 2016 because of " Lapse of time" and/or because " Any right of privilege has lapsed or been terminated." As did the notice to quit, the accompanying letter clearly and unequivocally informed each defendant that after April 30, 2016 they would have no legal basis for occupying the dwelling unit and that if they did not leave by that date, eviction may be started against them. After receiving the notice to quit and the plaintiff's March 15, 2016 letter, Stewart stopped paying rent to the plaintiff. She has never paid use and occupancy to the plaintiff, but has remained in possession of the dwelling unit along with Kinsey a/k/a John Doe, and Jane Doe. (Tes. Stewart, Akbarzai.)
For equitable purposes relevant to this summary process action, the court has considered the evidence in its entirety including, but not limited to: Kinsey's medical records, work history and difficulties accessing pension benefits he had earned prior to 2014 through his membership in the United Brotherhood Carpenters & Joiners of America; Stewart's lengthy residence at the premises and decision to stop paying rent and/or use and occupancy after service of the notice to quit; and the plaintiff's consistent efforts to cooperate with the FRC that were accepted by a majority of the tenants at 30 Auburn Street, but that were consistently and unreasonably rebuffed by Stewart, Kinsey a/k/a John Doe and all other occupants of 30 Auburn Street, Apt. 9 acting at Stewart's direction or on her behalf. The court has also considered the credible evidence establishing that the plaintiff was required to expend $300 to send its authorized agents to the dwelling unit in a reasonable effort to conduct inspection and make any needed repairs prior to bringing the summary process action. (Exs. 7, C, D, E, H; Tes. Kinsey, Akbarzai.)
III
EFFECT OF THE DEFAULT AS TO JANE DOE
As previously noted, Jane Doe has not appeared in this litigation. On March 31, 2016, the plaintiffs filed a motion for default based on Jane Doe's failure to appear, supported by an affidavit sufficient to establish that Jane Doe is not in the military or naval service of the United States. Based upon this defendant's failure to appear, the court finds her in default. Jane Doe's default effectively admits each allegation brought against her sounding in termination of any right or privilege that previously may have permitted her to occupy the dwelling unit, as contemplated by § 47a-23(a)(3).
See General Statutes § 47a-26 et seq.; Practice Book § 17-30. See also Practice Book § § 17-20(a)(f) and 17-21.
" As our Supreme Court has explained, the entry of a default judgment conclusively establishes the facts alleged in the plaintiff's complaint. Smith v. Snyder, 267 Conn. 456, 468, 839 A.2d 589 (2004)." Dziedzic v. Pine Island Marina, LLC, 143 Conn.App. 644, 645, 72 A.3d 406, 407 (2013). In other words, " [t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint." De Blasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). See also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000) (" A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant." [Internal quotation marks omitted.]) If the effect of the default is insufficient to support a judgment of possession in favor of the plaintiff and against Jane Doe, the procedural history of this litigation and the facts as found throughout this memorandum of decision provide independent basis for concluding that Spin Ghar has met its burden of proving the allegations of the complaint as to this defendant.
Accordingly, the plaintiff has met its burden of proof as to Count Four of its summary process complaint. The court GRANTS the motion for default as to Jane Doe and, based upon this default, the court enters judgment of possession in favor of the plaintiff and against Jane Doe.
IV
RESOLUTION OF THE CLAIMS AGAINST STEWART AND KINSEY
Count One of the complaint sounds in termination of right or privilege that previously may have permitted Stewart to occupy the dwelling unit, as contemplated by § 47a-23(a)(3); Count Two sounds in lapse of time against Stewart, pursuant to § 47a-23(a)(1)(A). Count Three of the complaint sounds in termination of right or privilege that previously may have permitted Kinsey a/k/a John Doe to occupy the dwelling unit, pursuant to § 47a-23(a)(3).
In the context of the trial evidence, Count Three of the complaint sufficiently alleges that Kinsey a/k/a John Doe originally had a right or privilege to occupy the dwelling unit granted to him by Stewart, the lessee, who caused, allowed or permitted him to live there. Kinsey does not contest this aspect of the evidence, although he claims to have contributed to the rent from time to time. (Tes. Kinsey.)
Given the procedural history of this case and the facts as found in Part II and throughout this memorandum of decision, the court concludes that the plaintiff has proved, by a fair preponderance of the evidence, each essential allegation of each count pending against both Stewart and Kinsey. Any right or privilege Stewart, or any person holding under Stewart's month-to-month rental agreement, had to occupy the dwelling unit was terminated through the service of the notice to quit; that notice to quit provided Stewart and Kinsey with adequate notice that any privilege to occupy the dwelling unit would terminate and/or lapse at the conclusion of the last day of April 2016. The facts of this case establish that the plaintiff consistently made reasonable efforts to " give the tenant reasonable written or oral notice of [its] intent to enter" the dwelling for purposes of complying with the FRC and the city inspector, as anticipated by § 47a-16(c). The plaintiff could not lawfully enter the dwelling unit in the absence of consent because no emergency existed; no court had ordered entry into the dwelling unit; 30 Auburn St., Apt. 9 had not been abandoned or surrendered to the plaintiff and the tenants had not given notice of an extended absence but remained in possession. Stewart and the occupants of dwelling unit, including but not limited to Kinsey a/k/a John Doe, unreasonably withheld consent and actively impeded the reasonable efforts of the plaintiff and/or its authorized agents to gain access to 30 Auburn St., Apt. 9. Thus, neither the plaintiff nor its authorized agents ever received consent to access the dwelling unit to conduct inspection and make repairs, as contemplated by § 47a-16(c) and as expressed in the FRC's requirement that both tenant and landlord " cooperate" in this endeavor. (Ex. C.) The plaintiff has proved that through the volitional conduct of Stewart, Kinsey and/or others within the dwelling unit acting with their direction and at their behest, Spin Ghar was denied any opportunity for the inspection and performance of any remediation the FRC and the city inspector may have required as a predicate to a rent increase. Under these circumstances, the plaintiff has met its burden of proof on each operative allegation of its pending complaint against each appearing party and against Jane Doe, as well.
See § 47a-23(d).
See Ex. C.
See § 47a-23(a).
See footnote 18.
Neither Stewart nor Kinsey successfully impeached the plaintiff's highly persuasive evidence establishing that the plaintiff made reasonable and responsible efforts to cooperate with the FRC and to comply with its obligation to correct code violations that might have been identified by the city inspector; no aspect of Stewart's or Kinsey's cross examination or proffered evidence mitigates the prominent effect of the other evidence that fully supports Spin Ghar's claims. Although both appearing defendants repeatedly attempted to show that the plaintiff had failed to make appropriate efforts to correct code violations, the court received insufficient evidence from which it could reasonably ascertain which code violations, if any, affected the dwelling unit at any time relevant to this summary process litigation, leaving the court without any basis for concluding that the FRC would require remediation of any particular aspect of Apt. 9 before rent increases would be approved. To the contrary, supporting the inference that no code violations existed, Stewart and Kinsey each credibly admitted at trial that the dwelling unit was in fine condition, and that no impediment to health, safety, tenantability or suitability for habitation was present at any time relevant to this litigation. (Tes. Stewart, Kinsey.) Given the defendant's admission, the court is constrained to conclude that if any code violation were extant, they were de minimus in nature and extent, not adversely impacting the health or safety of the dwelling unit's occupants, or rendering the dwelling unit unfit or uninhabitable as contemplated by § 47a-7.
Stewart volunteered at trial that " there's not that much that's needed [to be] done in my apartment, " fully supporting the inference that few or no conditions within the dwelling unit would require repair before the FRC-approved rent increases could be instituted. (Tes. Stewart, FTR, 7-20-16 @4:45:02.) (See Ex. C.) footnote 13. The court appreciates Stewart's candor on this subject, and noted the multiple occasions on which her testimony supported the court's inference that any code violations that may exist within the dwelling unit have no materially adverse effect upon any occupant's health or safety, and do not render the dwelling unit unfit or uninhabitable; this aspect of Stewart's testimony is fully consistent with both appearing defendants' desires to remain in occupancy despite the complaint to the FRC and despite the alleged failure of the landlord to correct code violations. (Tes. Stewart.) See § 47a-7(a)(1)(2).
In addition, Stewart has admitted that Apt. 9 was always occupied, stating that someone was always present to permit entry into the dwelling unit, although claiming that neither the plaintiff nor its authorized agents ever came there to fix things; Kinsey's testimony has like effect. As fully discussed above, the court has concluded that Stewart and Kinsey and/or others acting at Stewart's direction and/or at her behest volitionally avoided and rebuffed the plaintiff's repeated, reasonable and responsible written and oral efforts to gain access to the dwelling unit, which efforts comported with General Statutes § 47a-16. The plaintiff's October 30, 2015 provision of written notice to Stewart of its intent to enter the dwelling unit on November 6, 2015 between the hours of 10 a.m.-12 p.m. was reasonable with regard to the length of notice and as to the times for intended entry, as contemplated by § 47a-16(c), and the landlord's subsequent November 2015 and December 2015 attempts to communicate with Stewart to establish an advance opportunity for entry, inspection, repair, and compliance with the FRC and any code violations that could be identified by the city inspector also were fully reasonable within the application of § 47a-16(c). (Exs. 2, 3, 5.)
The better and weightier evidence thus establishes that Stewart, Kinsey, Jane Doe and any other occupant of the dwelling unit consistently and unreasonably withheld consent for the plaintiff to enter to inspect and repair the premises thereby, in violation of § 47a-16(a), failing to cooperate with oral or written requests from Spin Ghar for the access to the dwelling unit contemplated by § 47a-16(c). This conduct on behalf of the defendants left the plaintiff with an option to bring the case back to the FRC in view of the tenants' failure to adequately respond to the plaintiff's " efforts to address code violations." (Ex. C.) While this option would have left the plaintiff with the opportunity for " a new determination as to the fair and equitable rent" for Apt. 9, it would have left the dwelling unit uninspected. (Ex. C.) Under the circumstances, the plaintiff reasonably chose to forgo that option and instead elected to bring a valid summary process action against Stewart, Kinsey a/k/a John Doe and Jane Doe. The plaintiff properly obtained service of the notice to quit that terminated any previously existing right or privilege Stewart, Kinsey and/or Jane Doe had to occupy the dwelling unit and, in the alternative, terminated Stewart's month-to-month lease based on lapse of time and then served each defendant with the summary process complaint and attendant documents. Thus, the plaintiff chose to use legal process to regain possession of Apt. 9, to achieve access to the dwelling unit so it could remediate any conditions that may have required correction, and then be enabled to relet the dwelling unit to a tenant who would pay rent and cooperate with the landlord. (See Ex. 8.)
For the foregoing reasons, the plaintiff has met its burden of proof on all counts of the complaint as to each defendant.
V
RESOLUTION OF STEWART'S SPECIAL DEFENSES
In her special defenses, Stewart claims as to Count One that the " Landlord is retaliating because I filed a complaint with the Fair Rent Commission on 11/19/15. The Decision was the landlord must correct all housing code violations ." (Emphasis added.) (Special Defenses, 5/18/16.) As to Count Two of the complaint, Stewart also claims retaliation, alleging that the landlord's " Worker never showed up at set time. Inspector tried to even set up time with landlord. He just wanted Mr. Samboy to close the case which he wouldn't do." (Special Defenses, 5/18/16.) Stewart has failed to meet her burden of proving any aspect of either retaliation special defense.
In view of the more consistent, reliable and credible evidence that the plaintiff made timely, reasonable and responsible efforts to comply with its obligations to correct any code violations that existed at the dwelling unit, as discussed throughout this decision, the court does not credit Stewart's or Kinsey's testimony offered in an effort to establish that the plaintiff brought this action in retaliation, or that the plaintiff failed to take the actions proposed by the FRC. To the contrary, the evidence as a whole establishes that the plaintiff made timely, reasonable and responsible efforts to obtain consent to enter Apt. 9 so it could cooperate with and fulfill the FRC's instructions predicate to implementing the approved rent increase for that dwelling unit. However, the credible and reliable evidence establishes that Stewart, Kinsey a/k/a John Doe, Jane Doe and/or all occupants of 30 Auburn Street, Apt. 9 in Hartford, CT regularly and consistently withheld consent, effectively prohibiting the plaintiff's entry into the dwelling unit. Despite the FRC's directive, Stewart did not cooperate with Spin Ghar. (Ex. C.) Instead, the defendant-occupants, individually or by corporate action, impeded, interfered with and ultimately prevented the plaintiff from fulfilling its obligations to the FRC. Moreover, even if it could be found from the facts of this case that the landlord had failed to make reasonable and responsible efforts to meet its obligations as imposed by the FRC or by General Statutes § 47a-7, a conclusion not reached by this court, as previously noted, Stewart effectively admitted at trial that any defects existing in the dwelling unit are minor and do not adversely impact the quality of life within 30 Auburn Street, Apt. 9 (Tes. Stewart, Kinsey, Akbarzai.) Under these circumstances, Stewart's claims of retaliation carry no weight.
See § 47a-16(a)(d).
See footnote 24. The court fully credits Akbarzai's testimony that individual occupants have no access to the electrical panel in the basement due to safety concerns and issues related to unlawful use of utilities at the 30 Auburn Street premises; the court further fully credits Akbarzai's testimony that the property is served by a building superintendent who is available on a " 24/7" basis to assist with provision of electrical service to all dwelling units at 30 Auburn Street. (Tes. Akbarzai.) Under these circumstances, the evidence is further insufficient to support any aspect of Stewart's special defenses that may have been intended to implicate the landlord's obligation to " maintain in good and safe working order and condition all electrical . . . facilities . . ." supplied or required to be supplied for the dwelling unit. § 47a-7(a)(4).
Stewart's retaliation claims are inadequate for another reason. Her special defenses may also be read to implicate principles of equity applicable to summary process actions. In deciding whether to afford a tenant protection from eviction through imposition of equitable principles, the court must assess whether the tenant has " clean hands." See Fairchild Heights, Inc. v. Dickal, 118 Conn.App. 163, 178, 983 A.2d 35 (2009) (" '[a] court of equity will apply the doctrine of clean hands to a tenant seeking . . . equitable relief . . .' [ Fellows v. Martin, 217 Conn. 57, 67, 584 A.2d 458 (1991)]"). Given the facts of the present case, the court cannot find that either Stewart, who has filed her special defenses, or Kinsey or Jane Doe has " clean hands, " in the face of the weightier, more credible evidence establishing that although the plaintiff made reasonable and responsible efforts to comply with the FRC's directive to " bring the apartment up to code, " the dwelling unit's occupants did not " cooperate" with the landlord, as previously found. (Ex. C.) Instead of cooperating with the landlord, as required by the FRC, Stewart and the other occupants of 30 Auburn Street, Apt. 9 instead effectively " stonewalled" attempts at corrective action. (Exs. 2, 3, 4, 5, 6, 7, 8; Tes. Akbarzai.) This conduct on the part of Stewart, Kinsey a/k/a John Doe, Jane Doe and any other occupant of the dwelling unit was the result of the named defendants' individual and/or mutual efforts, albeit unsuccessful, to avoid eviction.
General Statutes § 47a-33a provides, in pertinent part: " In any action of summary process . . . the tenant may present any affirmative legal, equitable or constitutional defense that the tenant may have." (Emphasis added.)
As Stewart has failed to meet her burden of proving any applicable aspect of her special defenses, she is not entitled to relief from summary process.
VI
THE MOTION FOR USE AND OCCUPANCY
On June 14, 2016, prior to the commencement of trial and after the May 18, 2016 filing of Stewart's answer to the summary process complaint but prior to the filing of the answer by Kinsey a/k/a John Doe, the plaintiff filed a Motion for Use and Occupancy Payments. On June 20, 2016, Stewart filed her objection to Use and Occupancy Payments. As previously noted, Kinsey a/k/a John Doe filed his appearance and answer on July 19, 2016 when trial commenced, thereby providing the relief anticipated by General Statutes § 47a-26b(d).
For the reasons set forth in this decision, the court has found the summary process issues in favor of the plaintiff and against the defendants; such a finding and the court's ordered stay of execution entitles Spin Ghar to timely possession of the dwelling unit as contemplated by General Statutes § 47a-26d. Under the circumstances, instead of issuing orders in relation to the pending contest over use and occupancy payments, court instead finds that the claims raised by this motion for use and occupancy and Stewart's objection thereto have been merged into the judgment of possession in favor of the plaintiff.
VII
CONCLUSION
After trial on Spin Ghar's summary process complaint, the court has found that the defendant Stewart was subject to a month to month lease after the termination of a written lease permitting her to reside at 30 Auburn Street, Apt. 9 in Hartford, CT, and that notice to quit has been given as provided by law, yet that Stewart holds possession or occupancy after the expiration of the time specified in such notice to quit. The court further finds that Stewart does not show a title in herself which accrued after the giving of the lease or rental agreement or existing at the time the notice to quit possession or occupancy was served her. Thus, pursuant to § 47a-26d, the court forthwith enters judgment that the complainant recover possession or occupancy of the dwelling unit and execution shall issue accordingly.
Furthermore, after trial of a summary process complaint, the court has found that the defendants Kinsey a/k/a John Doe and Jane Doe never had a lease or rental agreement permitting them to occupy 30 Auburn Street, Apt. 9 in Hartford, CT, that any right or privilege they had to occupy the dwelling unit has been terminated by service of the notice to quit as provided by law, yet that these defendants hold possession or occupancy after the expiration of the time specified in such notice to quit, and neither Kinsey a/k/a John Doe nor Jane Doe shows a title in himself or herself which existed at the time the notice to quit possession or occupancy was served. Thus, pursuant to § 47a-26d, the court forthwith enters judgment that the complainant recover possession or occupancy of the dwelling unit, and execution shall issue accordingly.
WHEREFORE, for the reasons set forth herein: the plaintiff Spin Ghar Properties, LLC has met its burden of proof as to the summary process complaint brought against the defendants Lorenza Stewart, Anthony L. Kinsey a/k/a John Doe and Jane Doe while Stewart has not met her burden of proof on any of her special defenses.
AND WHEREFORE, having found the facts, applied the law and balanced the equities, the court now enters judgment in favor of the plaintiff Spin Ghar Properties, LLC and against the defendants Lorenza Stewart, Anthony L. Kinsey a/k/a John Doe and Jane Doe.
AND WHEREFORE, the court now ORDERS that the plaintiff Spin Ghar Properties, LLC shall recover possession of the premises known as 30 Auburn Street, Apt. 9 in Hartford, CT from the defendants Lorenza Stewart, Anthony L. Kinsey a/k/a John Doe and Jane Doe, subject to a FINAL STAY OF EXECUTION as provided by General Statutes § 47a-35.