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Irish Bend Farm, LLP v. Pinney

Connecticut Superior Court Judicial District of Tolland at Rockville
Nov 17, 2011
2011 Ct. Sup. 23875 (Conn. Super. Ct. 2011)

Opinion

No. TTD CV-11-4015325S

November 17, 2011


MEMORANDUM OF DECISION


This summary process matter was tried before the court on September 20-21, 2011. In lieu of oral argument and pursuant to an agreed-to briefing schedule, the parties filed post-trial briefs on October 19, 2011. After consideration of the evidence and the arguments of the parties, the court issues this memorandum of decision.

I Background

The plaintiff, Irish Bend Farm, LLP, is a Connecticut limited partnership whose two partners are Sam and Tracie Pinney, a married couple (collectively, "the Pinneys"). The defendant, Leeland F. Pinney, is the father of Sam Pinney and the father-in-law of Tracie Pinney.

The court first discusses the procedural background. On or about May 13, 2011, the plaintiff, through a state marshal, served the defendant with a Notice to Quit Possession (Notice) by abode service. The Notice stated, in relevant part, that "Leeland E. Pinney originally had the right or privilege to occupy 330 Pinney Road Somers, CT 06071, but such right or privilege is hereby terminated pursuant to C.G.S. Sec. 47a-3(a)(3)." The Notice further stated that the date for the defendant to quit his possession or occupancy was on or before May 31, 2011. The defendant, however, did not vacate and, at the time of trial, was still living at 330 Pinney Road.

General Statutes § 47a-23(a)(3) provides, in relevant part, "(a) When the owner or lessor . . . desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and . . . when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy."

In June 2011, the plaintiff filed a one-count complaint against the defendant. Therein, the plaintiff alleges that, on or about December 2007, it gave oral permission to the defendant, as a guest, to use and occupy the premises located at 330 Pinney Road. The plaintiff also alleges that, pursuant to its permission, the defendant took possession of the premises, never paid any rent, and still occupies the premises. The plaintiff alleges service of the Notice and that, although the time given therein for the defendant to quit possession has passed, he still continues in possession. The plaintiff seeks immediate possession of the premises.

The defendant filed an answer and special defenses. The defendant admits that the Notice was served. In his first special defense, he alleges that, "[t]he plaintiff and the defendant had agreed at the time of the sale of the property known as Elm Knoll Farm which includes the premises in question, and which sale transferred ownership from Leeland Pinney to his son Sampson Pinney and Sampson's wife Tracy Pinney, sole members of Irish Bend Farm, LLP, that Leland would have the right to continue to live on the farm and continue his farming activities on the property for the rest of his life, with no rent being required of Leland payable to Irish Bend Farm, [LLP]. Now Tracy and Sampson refuse to acknowledge the agreement."

In his second special defense, dated July 20, 2011 (#106), the defendant alleges that the plaintiff, by its members, has "over the past three (3) or so years illegally diminished and destroyed the leasehold of the defendant by destroying crops, removing fences, blocking access to livestock feed, plowing up sporting fields and otherwise limiting and closing off access to the defendant's leasehold interest." The plaintiff filed replies, in which it denied the allegations made in the special defenses.

Subsequent to the trial, the defendant filed a request for leave to amend (#108) and proposed revised special defenses (#109), in order to amend his second special defense and to add an additional special defense. The plaintiff filed a timely objection thereto. See #110. The court addresses the defendant's request below.

Based on the testimony and documentary evidence, the court finds the following facts. Testimony not credited by the court is also discussed below.

In March 2006, the plaintiff purchased from the defendant parcels of land with the improvements thereon located in the towns of Somers, Enfield and Ellington, Connecticut, formerly known as Elm Knoll Farm. The plaintiff's purchase of the farm was authorized by the United States Bankruptcy Court for the District of Connecticut, as the defendant was in bankruptcy and the farm was part of the bankruptcy estate. The property conveyed in the sale, consisting of over 850 acres (see Plaintiff's Exhibit 1, Warranty Deed, Schedule O), included the land and improvements known as 330 Pinney Road (See Plaintiff's Exhibit 1, Warranty Deed, Schedule B). The warranty deed from the defendant conveyed the property free from all encumbrances and did not reserve any interest in the farm to the defendant.

In connection with the closing, the defendant signed an Owner's Affidavit (Plaintiff's Exhibit 2). However, that affidavit refers only to 328 Pinney Road, not to 330 Pinney Road. See Plaintiff's Exhibit 1, Warranty Deed, Schedule A, description of 328 Pinney Road. Similarly, the defendant's Motion For Permission To Sell Real Property Free And Clear Of Interests, filed in the Bankruptcy Court (Plaintiff's Exhibit 3), also referred to 328 Pinney Road.

Prior to the sale, the defendant had lived his entire life at the farm. Following the plaintiff's purchase of the farm, the defendant remained there. Initially, the defendant lived at a house on the farm, in which the Pinneys and their children also resided, at an address known as 328 Pinney Road, in Somers, Connecticut. In February 2008, he began living in another dwelling on the farm property, which was built by the Pinneys for that purpose, at 330 Pinney Road. There was no written agreement defining the terms and conditions of the defendant's occupancy. The defendant did not pay rent or pay for utilities.

After the March 2006 sale, the plaintiff initially permitted the defendant to continue farming and pasturing animals, and other business activities at 330 Pinney Road, including selling agricultural products, renting lacrosse fields, and conducting four weeks of pre-Halloween fall activities in October, which were open to the public through paid admissions (including such activities as hay rides, a petting zoo with various animals, a corn maze, pumpkin picking, and live band music). The defendant did not pay the plaintiff anything from the proceeds of these activities.

Over time, the plaintiff reduced the acreage at the farm which it permitted the defendant to use for farming, used more and more of the fields itself, and rented some acreage to others, and, by 2010, prohibited the defendant from farming at 330 Pinney Road.

In June 2009, after one of the defendant's dogs killed a goat, Sam Pinney shot the dog. The defendant called the Town Dog Warden, and Sam Pinney was then arrested. Thereafter, the plaintiff closed gates at 330 Pinney Road, plowed up the lacrosse fields and prohibited the defendant from conducting the fall activities. After a prior summary process action was dismissed in April 2011, the plaintiff took other actions restricting the defendant's activities at the farm. After he planted turnips while the Pinneys were away on vacation, the plaintiff bulldozed what had been planted.

The defendant testified that a document concerning a life use of the farm by him was drafted, but never finished or signed. He also stated that he never told the Bankruptcy Court that he was retaining a life interest in the farm.

The evidence does not support the defendant's special defenses. The court does not credit the defendant's assertion that he sold the farm to the plaintiff on the condition that he would have life use thereof, permitting him to live there for the rest of his life, and permitting him to continue his activities there in the same manner as before the sale. The court is also unpersuaded that the defendant had a leasehold at 330 Pinney Road. The facts and the special defenses are discussed further below.

II Discussion

The trial court is "the trier of fact and . . . the sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 357, 999 A.2d 713 (2010). "It is well established that in cases tried before courts, trial judges . . . 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).

"Summary process is aimed at deciding the simple question of who is entitled to possession." (Internal quotation marks omitted.) Altomari v. Altomari, 121 Conn.App. 235, 239, 994 A.2d 348 (2010). "It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions . . . Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed." (Citation omitted; internal quotation marks omitted.) Ossen v. Wanat, 217 Conn. 313, 317, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d 43 (1991).

A Subject Matter Jurisdiction

The defendant argues that the court lacks subject matter jurisdiction since a summary process action does not cover "guests." The defendant contends that summary process is available only for landlord-tenant and lessor-lessee relationships, citing Logan v. Carrington Publishing Co., 16 Conn.Sup. 46, 47 (1948).

The statute governing the scope of summary process, now General Statutes § 47a-23, has been amended many times since Logan v. Carrington Publishing Co., supra, was decided in 1948. Section 47a-23 sets forth the grounds for the commencement of summary process actions. Its scope explicitly extends to relationships beyond those that involve only landlord-tenant and lessor-lessee relationships. For example, it may be utilized by an "owner" or a "lessor." See General Statutes § 47a-23(a).

General Statutes § 47a-23(a) provides in relevant part that "[w]hen the owner . . . desires to obtain possession or occupancy of any land or building . . . and . . . (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner or lessor . . . shall give notice to each . . . occupant to quit possession or occupancy . . ."

"Subdivision (3) of subsection (a) of § 47a-23 authorizes a summary process action to be brought `when one originally had the right or privilege to occupy such premises but such right or privilege has terminated.'" (Emphasis in original.) Fandacone v. Fandacone, Superior Court Judicial District of New Britain, Housing Session, Docket No. NBSP-052634 (March 16, 2010, Gilligan, J.) [ 52 Conn. L. Rptr. 517]. "In setting forth the grounds for the commencement of summary process actions, § 47a-23 differentiates between the terms `tenant' and `one' and clearly permits summary process actions absent a landlord-tenant relationship . . . Subdivision (3) of subsection (a) of § 47a-23, like subdivision (2) of subsection (a), makes no reference to a landlord-tenant relationship. To the contrary, subdivisions (2) and (3) of subsection (a) use the word `one' in contrast to subdivision (1) of subsection (a) which requires a rental agreement (and perforce a landlord-tenant relationship) and subdivision (4) of subsection (a) which permits summary process actions against `tenants.' Moreover, § 47a-23(a)(5), by its express terms, permits summary process actions against employees and other employment related parties, all without the requirement of a landlord-tenant relationship." Id. Accordingly, the existence of a landlord-tenant or lessor-lessee relationship is not a prerequisite for the exercise of the court's jurisdiction under § 47a-23. See Fandacone v. Fandacone, supra, Superior Court, Docket No. NBSP-052634.

Similarly unavailing is the defendant's reliance on Bourque v. Morris, 190 Conn. 364, 460 A.2d 1251 (1983), an action under the forcible entry and detainer statute, General Statutes § 47a-43, brought by a person who had been occupying a room at a licensed hotel. As discussed therein, General Statutes § 47a-2(a) exempts certain "arrangements," including "(4) transient occupancy in a hotel or motel or similar lodging . . ." from the application of § 47a-23 and other statutes. See Bourque v. Morris, supra, 190 Conn. 368-69.

In Bourque, rent was paid weekly. See id., 190 Conn. 370. The more than three-month duration of the plaintiff's occupancy did not obligate the trial court to view the plaintiff as a "permanent" hotel boarder or lodger. See id., 368, 370. In contrast, here, the defendant does not contend that the plaintiff was operating a hotel or motel or similar lodging. A commercial, rent-paying guest, boarder, or lodger's occupancy at a hotel, motel, or rooming house differs materially from the situation here, where a family member was allowed to live as a guest in a private residence at no charge.

The facts here also contrast with those in Allstate Insurance Co. v. Palumbo, 296 Conn. 253, 994 A.2d 174 (2010), an equitable subrogation action, where the defendant lived in a home with his fianceé, Lisa Deveau, with whom he informally agreed to share equally all of the expenses for the house, including all bills, repairs and upgrades thereto. The defendant gave cash or checks to Deveau to cover his share. See id., 263-64. In addition, he made numerous, substantial improvements to the property, including taking down a wall to make two rooms into one, installing hardwood floors, a pond and other items, adding a porch, building a shed, and laying granite steps. See id., 264. Based on these facts, the court agreed that the defendant "functions as if he was an owner . . ." (Emphasis in original.) Id. Accordingly, the court found that the defendant was neither a social houseguest nor a tenant. See id., 264-65.

While it is evident that the relationships between Tracie and Sam Pinney and the defendant differ from that of an unrelated social host and his or her guest, it is also clear that family members may permit other family members to live in their homes for extended periods as guests. Here, the defendant made no payment to the plaintiff for his occupancy of 330 Pinney Road and paid none of the upkeep expenses. He did not function as an owner. The fact that, during much of the time after the sale the plaintiff allowed the defendant to grow crops and conduct the fall activities at the farm and, over time, reduced what it permitted the defendant to do at the farm does not change his status as a guest.

In this context, "a guest is defined as a person entertained in one's house or at one's table; a visitor entertained without pay; hence, a person to whom the hospitality of a home, club, etc., is extended." Gledhill v. Connecticut Co., 121 Conn. 102, 105, 183 A. 379 (1936). The credible evidence in the record shows that, after he sold the farm to the plaintiff, of which Sam and Tracie Pinney are the partners, the defendant lived there as their guest, and not as their tenant or pursuant to a life estate.

As alleged in the complaint, the defendant occupied 330 Pinney Road as a guest. The plaintiff gave notice to the defendant that he must quit possession or occupancy of 330 Pinney Road in accordance with the statute, § 47a-23(a)(3). The court does not lack subject matter jurisdiction.

B Special Defenses 1. First Special Defense: Life Estate

The defendant has the burden of proof as to his special defenses. See Slack v. Greene, 294 Conn. 418, 435, 984 A.2d 734 (2009). In the first special defense, he pleads that an agreement provided him with a life estate. As discussed below, the defendant has not met his burden of proof.

"A life estate is an interest in real property, the duration of which is limited by the life of some person. Such person may be the party creating the estate, the tenant himself, or some other person or persons. It may be for an indefinite period which may last for a life." (Internal quotation marks omitted.) Pergament Norwalk Corp. v. Kaimowitz, 4 Conn.App. 633, 638, 496 A.2d 217, cert. denied, 197 Conn. 813, 499 A.2d 60 (1985).

A life estate may be established by a deed conveying such an interest. "By the common law, a tenant for life, where he is under no restriction in the deed by which he holds, could use the land in the same manner as the holder in fee. Every life tenant had the right to the undisturbed possession of the land and to the income and profits derived from such land." Smith v. Planning Zoning Board, 203 Conn. 317, 323, 524 A.2d 1128 (1987). Here, there is no such deed creating a life estate for the defendant.

In addition, a life estate may be established by written contract. See Blouin v. Blouin, Superior Court, judicial district of New Haven, Docket No. CV 89 0295774 (January 17, 1992, Healey, J.T.R.). Here, there is no evidence of such a written contract.

Where it is claimed that an oral agreement evidences assent to the creation of a life estate, the circumstances must take the matter out of the statute of frauds, General Statutes § 52-550(a)(4). See Andrews v. New Britain National Bank, 113 Conn. 467, 473-75, 155 A. 838 (1931); Blouin v. Blouin, supra, Superior Court, Docket No. CV 89 0295774. "[T]he justification of this result must rest in the broad policy expressed in the statute of frauds, that agreements for the sale of land or any interest in or concerning it should not be enforceable unless they or some memorandum of them be put in writing; . . . and in the practical consideration that, if such an oral agreement . . . were enforceable, the way would be open for the creation of all sorts of rights and interests in land by word of mouth alone, contrary to the terms of the solemn instruments which have been formally executed." (Citation omitted; emphasis added.) Andrews v. New Britain National Bank, supra, 113 Conn. 475-76.

Section 52-550(a) provides, in relevant part, "No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property[.]"

"Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct . . . In its general application, we have recognized that [t]here are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . [The Supreme Court] previously has applied the doctrine of equitable estoppel to bar a party from asserting the statute of frauds as a defense so as to prevent the use of the statute itself from accomplishing a fraud . . ."

"When estoppel is applied to bar a party from asserting the statute of frauds, however, we also require that the party seeking to avoid the statute must demonstrate acts that constitute part performance of the contract . . . Specifically, [t]he acts of part performance . . . must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties . . . The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . . In the context of the statute of frauds, therefore, we sometimes have referred to the application of estoppel as the doctrine of part performance . . . [A]lthough [the Supreme Court] on occasion has used the terms interchangeably, [it] never . . . intended that the doctrine of equitable estoppel and the doctrine of part performance operate as independent exceptions to the statute of frauds . . . Rather, part performance is an essential element of the estoppel exception to the statute of frauds . . ." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 60-63, 873 A.2d 929 (2005).

"[P]ossession of the property by the alleged grantee is considered part performance when a new entry is effectuated, as compared to merely a continuation of possession, the latter generally considered insufficient proof . . . Continued possession may be sufficient evidence of part performance, however, if combined with improvements that are consistent with a long-term or permanent tenancy . . . Thus, acts that unmistakably point to a contract as the only reasonable explanation for their having been undertaken constitute part performance." (Citations omitted; footnote omitted.) Id., 68.

Here, as discussed above, the court does not credit the defendant's testimony, in which he contended that he and the plaintiff had an agreement providing him with a life estate. In addition, the evidence provided by the defendant in support of his first special defense is not of such a character that it can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute.

Also, no new entry was shown. Rather, as discussed above, after the sale, the defendant continued to live at the farm. He did not present evidence showing that he made substantial improvements to the property. No credible showing was made of acts that unmistakably point to a contract for a life estate. There is no credible evidence of part performance which would take the situation out of the bar of the statute of frauds.

For the reasons stated above, the court finds that no life estate was created. The court finds against the defendant as to his first special defense. Under these circumstances, the court need not consider the plaintiff's other arguments as to this special defense.

2. Second Special Defense: Leasehold

As discussed above, the court has found that the defendant was a guest of the plaintiff, not its tenant. The court does not credit the defendant's assertion that he had a leasehold interest in the property. He has not proved that his occupancy was based on a lease. In addition, the discussion above concerning the applicability of the statute of frauds applies also to the defendant's assertion of a leasehold interest. See Heyman v. CBS, Inc., CT Page 23884 178 Conn. 215, 223, 423 A.2d 887 (1979) (terms of lease satisfied statute of frauds).

Accordingly, since the defendant had no leasehold interest, his allegations that the plaintiff illegally diminished and destroyed it are unpersuasive and immaterial. The court finds against the defendant as to his second special defense.

In part C below, the court addresses the defendant's post-trial request to amend his special defenses and sustains the plaintiff's objection thereto. Even considering the defendant's proposed addition of language to this defense, as proposed in his revised special defenses (#109), to claim that the plaintiff illegally diminished and destroyed his leasehold in violation of General Statutes §§ 47a-43 and 47a-20, would not alter this result. The proposed revision does not change the premise of the defense, that the defendant had a leasehold. No leasehold interest was proved by the defendant.

3. Request To Amend Special Defenses

"A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof . . . Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Citation omitted; internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 96 Conn.App. 608, 615, 901 A.2d 24 (2006), rev'd in part on other grounds, 286 Conn. 177, 178, 942 A.2d 1028 (2008).

A court does not abuse its discretion when it declines to permit an amendment to a special defense offered after trial where "the proposed amendment did not constitute a defense to the action, and it was not timely offered." Wright v. Coe Anderson, Inc., 156 Conn. 145, 157, 239 A.2d 493 (1968). Similarly, the court may decline to permit a post-trial amendment "where it purported to conform the pleadings to the proof, but in reality, raised an issue neither previously pleaded nor litigated before the court." Zuckerman Group v. Raveis, 4 Conn.App. 568, 571, 495 A.2d 300, cert. dismissed, 197 Conn. 811, 499 A.2d 62 (1985). For example, denial of permission for a post-trial amendment is appropriate where the proposed amendment raises a different cause of action from that which was originally pleaded. See Lord v. Mansfield, 50 Conn.App. 21, 31-32, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998).

Here, in the proposed amendment to the second special defense, the defendant seeks to add references to alleged violations of General Statutes §§ 47a-43, the forcible entry and detainer statute, and 47a-20, which pertains to retaliatory eviction of a tenant by a landlord. In the entirely new proposed third special defense, the defendant alleges that "[t]he Plaintiff has illegally entered the premises of the Defendant in violation of Connecticut General Statutes § 47a-16." The court addresses these statutes below, in the order in which they are referenced in the defendant's proposed amendments.

"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." (Citation 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 individual has exercised the dominion and control that owners of like property usually exercise . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion." (Citations omitted; internal quotation marks omitted.) Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985).

In addition, as discussed above, such a § 47a-43 action may be utilized by a plaintiff to regain possession, or as a counterclaim. See Blow v. Konetchy, 107 Conn.App. 777, 789, 946 A.2d 943 (2008) (counterclaim for entry and detainer raised in response to quiet title action). The defendant does not cite any authority showing that § 47a-43 may be utilized as a defense to a summary process action.

General Statutes § 47a-20 prohibits retaliatory actions by a landlord against a tenant within six months after the tenant has attempted, by lawful means, to remedy rental disputes or conditions issues at the premises. "General Statutes 47a-20 provides that `[a] landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit' within six months of certain enumerated actions . . . [The] previous discussion compels [the conclusion] that the defendant . . . [is] not [a] `tenant . . .' as that term is defined in 47a-1(1), because [he is] not `entitled under a rental agreement to occupy a dwelling unit to the exclusion of others . . .' Section 47a-20 prohibits a landlord from evicting those persons who are, at the time of the action, entitled to rightful occupancy. The defendant . . . [was] not so entitled; accordingly, 47a-20 is not a defense in this circumstance." (Emphasis in original.) Groton Townhouse Apts. v. Covington, 38 Conn.Sup. 370, 372, 448 A.2d 221 (App.Sess. 1982). Also, the defendant presented no evidence at trial to show that he ever contacted public officials to remedy any condition at the premises.

Section 47a-20 provides, "A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union."

Section 47a-16 pertains to when a landlord may enter a tenant's rented unit. General Statutes § 47a-18a provides in relevant part: "If the landlord makes an entry prohibited by section 47a-16 . . . the tenant may recover actual damages not less than an amount equal to one month's rent and reasonable attorneys fees . . ." A person who is not a tenant is not entitled to the protections accorded to tenants under General Statutes § 47a-16. See Sullivan v. Delisa, 101 Conn.App. 605, 613-16, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). As discussed above, the court has found that the defendant was a guest, not a tenant. Accordingly, he may not avail himself of the protections accorded to tenants under § 47a-16. Also as discussed above, permission to amend may be denied where the proposed amendment does not constitute a defense to the action. See Wright v. Coe Anderson, Inc., supra, 156 Conn. 157.

In addition, the defendant does not explain how § 47a-16 provides a defense to this summary process action. His brief, page 12, discusses this issue in summary fashion only. In the absence of analysis and citation to authority, the court considers the proposed third special defense to be abandoned. See Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 194 n. 4, 3 A.3d 56 (2010); Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008).

The defendant offers no explanation for not raising §§ 47a-43 or 47a-20 in his previously filed second special defense. "Practice Book § 10-3(a) provides: `When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.' This section is directory rather than mandatory, and its primary purpose is to ensure that a defendant is sufficiently apprised of the applicable statute during the proceedings." Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn.App. 663, 671, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005). Here, the defendant has not shown that he apprised the plaintiff of his reliance on either § 47a-43 or § 47a-20 during the proceedings.

Injection of either § 47a-43 or § 47a-20 into the case after it was tried would raise issues neither previously pleaded nor fully litigated before the court. See Zuckerman Group v. Raveis, supra, 4 Conn.App. 571. For example, since the plaintiff was not apprised of the defendant's reliance on § 47a-43, its trial evidence did not focus on a claim of dominion and control by the defendant. Also, since the plaintiff was not so apprised, it did not have the opportunity to present evidence focusing on the applicable six months statute of limitations. General Statutes § 52-589 provides, "[n]o complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of."

Similarly, the defendant has not shown that he apprised the plaintiff of his reliance on § 47a-20. The only evidence at trial concerning the defendant having contacted a public official was the brief reference to the defendant's contact with the Town Dog Warden and the arrest of Sam Pinney after the dog-shooting incident. It is unclear what charges were made against Sam Pinney. It is also unclear how this incident relates to § 47a-20. If the statute had been pleaded, the plaintiff would have been apprised thereof and could have prepared to meet it at trial by calling witnesses, such as from the Town, to address the circumstances in detail.

In the absence of any excuse for the delay by the defendant in raising §§ 47a-43 and 47a-20, since they do not provide defenses to the action, and in view of the unfairness to the plaintiff which would ensue if they were now added to the special defenses, permitting these amendments to the second special defense would result in injustice to the plaintiff. Accordingly, in the exercise of its discretion, the court sustains the plaintiff's objection to the defendant's request to amend the second special defense.

In addition, for the reasons stated above, it would also take unfair advantage of the plaintiff if the defendant were permitted to add the third special defense concerning alleged illegal entry in violation of § 47a-16. As stated above, the alleged illegal entry does not constitute a defense to this action. In the exercise of its discretion, the court also sustains the plaintiff's objection to the defendant's request to add the third special defense.

Where an amendment is permitted, and occasions delay in the trial or inconvenience to the other party, Practice Book § 10-60(b) authorizes the court to award costs. As discussed above, in its discretion, the court sustains the plaintiff's objection to the request to amend. The plaintiff's request for costs related to the proposed amendments is denied.

C Judgment

As discussed above, pursuant to General Statutes § 47a-23(a)(3), the plaintiff terminated its permission for the defendant to occupy 330 Pinney Road as a guest and properly served the Notice. The plaintiff proved by a preponderance of the evidence the elements of its claim that the right or privilege the defendant once had has been terminated. The court finds that the plaintiff has the right to regain possession of the premises as any right or privilege the defendant had to occupy the premises has been terminated. Accordingly, judgment for possession may enter in favor of the plaintiff.

CONCLUSION

For the reasons stated above, the plaintiff's objection to the defendant's request for leave to amend is sustained; (2) the plaintiff's request for costs related to the proposed amendments is denied; and (3) judgment may enter for possession of the subject premises in favor of the plaintiff. It is so ordered.


Summaries of

Irish Bend Farm, LLP v. Pinney

Connecticut Superior Court Judicial District of Tolland at Rockville
Nov 17, 2011
2011 Ct. Sup. 23875 (Conn. Super. Ct. 2011)
Case details for

Irish Bend Farm, LLP v. Pinney

Case Details

Full title:IRISH BEND FARM, LLP v. LEELAND E. PINNEY

Court:Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Nov 17, 2011

Citations

2011 Ct. Sup. 23875 (Conn. Super. Ct. 2011)