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Kirouac v. Mckinley

Connecticut Superior Court, Housing Session Judicial District of New Britain
Apr 12, 2007
2007 Ct. Sup. 4788 (Conn. Super. Ct. 2007)


Docket No. 0612-2091

Received April 12, 2007



This is a civil action in damages based on a residential lease agreement. The complaint alleges breach of contract and unjust enrichment. The defendant's answer, in essence, contends that she vacated the premises in mid-October 2006, and she contests the resulting charges. The case was tried on March 30, 2007.


The court took judicial notice of the related summary process action, Docket Number NBSP-47043. The complaint alleged that the parties entered into an oral month-to-month lease with an agreed-upon rent of $850 per month. A default judgment for failure to appear was entered on October 26, 2006. On November 8, 2006, an execution was issued.

The court may take judicial notice of the court file in another suit between the parties, especially when the relevance of that action is expressly made an issue during the instant trial. State v. Fagan, 280 Conn. 69, 101, 905 A.2d 1101 (2006).
"The effect of judicial notice is that a proposition is accepted as true without a corresponding offer of proof by the party who ordinarily would have proved it. State v. Zayas, 195 Conn. 611, 614, 490 A.2d 68, 70-71 (1985); State v. Tomanelli, 153 Conn. 365, 369, 216 A.2d 625, 628 (1966). However, judicial notice is not conclusive, and an opposing party is not precluded from disputing the matter to be judicially noticed through an offer of evidence to the contrary. Tomanelli, supra, 153 Conn. 368-9, 216 A.2d 628-29; State v. Marshall, 11 Conn.App. 632, 635, 528 A.2d 1163, 1164-65 (1987). It is within the trial court's discretion to take judicial notice of facts. . . .Judicial notice may be taken by the court on its own initiative or at the request of a party. . . ." (Citations omitted.) Faulkner Graves, Connecticut Trial Evidence Notebook § J-7, 2nd ed. 2000-3.

In the present matter, the following facts were admitted and/or proved at trial by a fair preponderance of the evidence.

"The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971)." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Citation omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli 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. . . .It is the quintessential function of the fact finder to reject or accept certain evidence. . . ." (Citations omitted; internal quotation marks omitted.)" In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, CT Page 4795 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible. . . .It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses. . . The trier of fact may accept or reject the testimony of any witness. . . .The trier can, as well, decide what — all, none, or some — of 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 fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).
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).

On or before September 2006, the parties entered into an oral lease agreement for the subject premises at 215 Bassett Street, 1st Floor, New Britain, Connecticut. The plaintiff was unable to provide a signed copy of a written lease agreement between the parties. The defendant had moved to the premises from one of the plaintiff's other properties on Fairview Street. The agreed-upon rent was $850.00 per month. The defendant had previously paid a security deposit of $850.00.

The defendant failed to pay the rent for September 2006, and the plaintiff served her with a notice to quit on September 27, 2006. The defendant testified that after receiving the notice to quit she tried unsuccessfully to contact the plaintiff. After failing to reach the plaintiff, she realized that he wanted her to leave. She started looking for another apartment. On or about October 14, 2006, the defendant found a new apartment and signed a lease for 48 Buell Street, New Britain, Connecticut. The lease term began on November 1, 2006. The defendant testified that she was able to move into her new apartment earlier, and she vacated the subject premises on or about October 14, 2006. According to the defendant, the plaintiff was on the property when she vacated. The plaintiff, however, denied being present and seeing the defendant moving out of her apartment.

The defendant admitted not paying rent/use and occupancy for September 2006 and October 2006. Because she vacated the premises, she did not feel obligated to pay for October 2006 and November 2006. She admitted not notifying the plaintiff or his agents that she had vacated the premises. She left mattresses, dressers, and other items in the apartment because she only had a pickup truck to move her possessions.

On or about November 15, 2006, the plaintiff entered the premises with the marshal pursuant to the aforementioned execution. Upon entering, he saw items strewn about including clothes, furniture and boxes. The plaintiff testified that he did not know that the defendant had previously vacated. He had tried unsuccessfully to determine if the defendant had left by asking another tenant. The marshal would not remove the defendant's abandoned possessions because of the condition of the apartment. The plaintiff had to rent a dumpster to dispose of the defendant's abandoned possessions. He also hired some workers to help with the cleanup. The total cleanup cost was approximately $650.

The plaintiff requested the following damages: unpaid rent/use and occupancy, $2,550.00 (3 months x $850.00); attorney's fees for the eviction, $1,115.00; and cleanup costs, $650.00.


"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim of defense." (Citations omitted). Tait's, Handbook of Connecticut Evidence (3rd Ed. 2001) Sec. 3.3.1, p. 136.

A Breach of Contract

The essential elements for a cause of action based on breach of contract are (1) agreement formation, (2) performance by one party, (3) breach of the agreement by the other party, (4) direct and proximate cause, and (5) damages. McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 7 (2006).). "[A] breach of contract claim . . . requires proof by a preponderance of the evidence." Foley v. Huntington Co., 42 Conn. App. 712, 732 n. 7, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

"A lease is nothing more than a contract. . . . Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed. . . . As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant's breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach. . . . in an action for breach of a lease, the amount of rent agreed to by the parties is a proper measure of damages." (Citations omitted; internal quotation marks omitted.) Rokalor v. Connecticut Eating Enterprises, 18 Conn. App. 384, 389, 558 A.2d 265 (1989).

In this case, the defendant became a tenant at sufferance on September 27, 2006, when the notice to quit was served. "A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated. . . .The issuance by a landlord of a notice to quit is an unequivocal act terminating the lease agreement with the tenant. Termination of the lease does not terminate the tenancy since, upon service of a notice to quit, a tenancy at sufferance is created. . . .After a notice to quit has been served . . . a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit. . . ." (Citations omitted; internal quotation marks omitted.) O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990).

"If a landlord terminates a residential or commercial tenancy on the grounds that the tenant committed a breach of the rental agreement and the landlord brings an action for damages for the breach, such damages shall include the amount of rent agreed to by the parties but unpaid by the tenant. The landlord shall be obligated to mitigate damages. This section shall not limit either party's rights to assert other legal or equitable claims, counterclaims, defenses or set-offs." General Statutes § 47a-11c.

General Statutes § 47a-11a provides: "Abandonment of unit by tenant. (a) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental in mitigation of damages. (b) If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment."

B Unjust Enrichment

"Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

C Special Defense

"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 447 n. 10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

The defendant's special defense, in essence, alleges that she vacated the premises in mid-October 2006, and is not liable for rent after vacating. She claims that she did not leave many items in the apartment, and the plaintiff's cleanup costs were excessive.

D Attorney's Fees and Costs

"The general rule of law known as the `American rule' is that attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney's fees and costs . . . or a statute may confer such rights." (Citations omitted; internal quotation marks omitted.) Psomas v. DeRaffle Mfg. Co., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 97 0339594 (December 29, 1997, Skolnick, J.) (plaintiff alleged no facts indicating parties discussed payment of attorney's fees under alleged oral agreement); See Vekris v. Pass, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 91 011005 (November 18, 1991, Berger, J.) (noting deduction for attorney fees was improper because no written contract provided tenants would be liable for attorney fees).

In Vekris, the court held: "The rule in Connecticut is that absent contractual or statutory authority, each party must pay its own attorney's fees. . . . As there was no evidence of any agreement to pay attorney's fees and as the landlord tenant statutes do not authorize the payment of attorney's fees (with some exception not applicable herein), Mr. Pass's first claim cannot be allowed." (Citation omitted; internal quotation marks omitted.) Vekris v. Pass, supra.

E Analysis

Based on the evidence presented, the court makes the following findings as to the respective claims and defenses.

In September 2006, the parties had an oral month-to-month lease for the subject premises. The plaintiff failed to prove that the parties entered into a written lease agreement for the subject premises. The agreed-upon rent was $850.

The defendant failed to pay rent for September 2006. A notice to quit was served on September 27, 2006. The defendant moved out in mid-October 2006. The evidence demonstrated that she vacated because of her inability to pay the rent, rather than the condition of the premises.

The defendant failed to notify the plaintiff when she vacated the premises. There was insufficient evidence that the plaintiff saw the defendant move out of the apartment. The plaintiff did not know that the defendant had actually vacated until the execution was served on November 15, 2006. He did not have notice of abandonment until that day. Because of the late notice, he was unable to find a replacement tenant for November 2006. Since the defendant failed to provide verbal or written notification of an intent to vacate, she was responsible to make use and occupancy payments for October 2006 and November 2006. The total damages for the three months were $2,550.00. However, the defendant is entitled to a credit for her security deposit of $850.00.

The defendant failed to remove all her possessions; therefore, she bears responsibility for the cleanup costs of $650.00. Under the circumstances, the costs were reasonable.

Because the plaintiff failed to prove that the parties had a written lease agreement for the months in question, there was no contractual or statutory basis for an award of attorney's fees and costs for the eviction.


The plaintiff has proved, by a fair preponderance of the evidence, all the elements of the case. The defendant has not proved, by a fair preponderance of the evidence, any defenses. Therefore, judgment is entered for the plaintiff.

The plaintiff is awarded the following damages:

$2,550.00 Unpaid rent/use and occupancy $650.00 Cleanup costs $3,200.00 Subtotal -$850.00 Security Deposit $2,350.00 Total Judgment

The court enters judgment for plaintiff for damages in the total amount of $2,350.00.

Summaries of

Kirouac v. Mckinley

Connecticut Superior Court, Housing Session Judicial District of New Britain
Apr 12, 2007
2007 Ct. Sup. 4788 (Conn. Super. Ct. 2007)
Case details for

Kirouac v. Mckinley

Case Details


Court:Connecticut Superior Court, Housing Session Judicial District of New Britain

Date published: Apr 12, 2007


2007 Ct. Sup. 4788 (Conn. Super. Ct. 2007)