Opinion
HDSP180630
03-11-2016
Kautilya Manchester Hotel, LLC dba Studio 5 Hotel v. Tamyra Morgan aka Morgan Tamyra
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON COMPLAINT FOR SUMMARY PROCESS
Nicola E. Rubinow, J.
This memorandum of decision addresses the summary process complaint brought by the plaintiff-landlord Kautilya Manchester Hotel, LLC d/b/a Studio 6 Hotel (Studio 6) seeking possession of premises allegedly occupied by the defendant Tamyra Morgan a/k/a Morgan Tamyra (Morgan) based on nonpayment of rent as due on August 15, 2015. The memorandum further addresses Morgan's special defenses alleging that rent was paid, that the landlord failed to meet its statutory responsibility for maintaining leased premises, and that the summary process action was brought in retaliation.
General Statutes § 47a-1(h) provides: " 'Rent' means all periodic payments to be made to the landlord under the rental agreement."
The matter was tried to the court. Studio 6 was represented by counsel; Morgan was self-represented. Studio 6 provided two witnesses, Binita Patel and Sandra Harrison; Morgan testified for herself. All witnesses were available for cross examination. Several documents were admitted as evidence at trial.
As the plaintiff, Studio 6 bears the burden of proving the essential allegations of its cause of action by a fair preponderance of the evidence. Morgan bears like burden of proof insofar as the 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).
See Civil Jury Instructions, 2.6-2 Burden of Proof-Affirmative Defenses. If the burden of proof has been met on one of several alternative special defenses, the defendant may be found to have overcome the plaintiff's proof. See Milford Bank v. Phoenix Contracting Group, Inc., 143 Conn.App. 519, 523 n.2, 72 A.3d 55 (2013).
I
FACTUAL FINDINGS
The court has reviewed the pleadings and considered the evidence in its entirety using the applicable principles of law. The facts set forth in this decision were proved at trial by a fair preponderance of the evidence.
" 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 . . ." Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198, 274 Conn. 906, 876 A.2d 1198 (2005)." [A] trier is not required to believe testimony merely because it is not directly contradicted . . ." (Citations omitted.) Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983). " [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." (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).
Studio 6 owns, operates and is the landlord for the property known as 191 Spencer Street in Manchester, CT, upon which property stands a building containing multiple designated dwelling units available for short- or long-term rental. On or before April 10, 2015, Studio 6 entered into an oral day-to-day rental agreement allowing Morgan to occupy a designated dwelling unit upon the property in exchange for daily payment of rent. (Ex. 1; Tes. Patel, Morgan.)
General Statutes § 47a-1(c) states: " 'Dwelling unit' means any house or building, or portion thereof, which is occupied, is designed to be occupied, or is rented, leased or hired out to be occupied, as a home or residence of one or more persons.
General Statutes § 47a-7 provides, in pertinent part: " Rental agreement" means all agreements, written or oral . . . embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises.
On or about May 17, 2015, Studio 6 and Morgan mutually assented to modification of the then-existing oral rental agreement so that Studio 6 would allow Morgan to use and occupy the dwelling unit designated as Room 6201 upon the property in exchange for payment of $50 each day as rent. (Ex. 1; Tes. Patel, Harrison.) Before and after this modification, Morgan did not always pay her rent on a daily basis; from time to time, Studio 6 accepted rent from Morgan several days after it was due, and sometimes accepted partial or incremental rent payments. On August 14, 2015, Morgan paid $60 in cash to Studio 6 related to her use of Room 6202; that $60 did not in any way serve as advance payment of rent. (Ex. 1; Tes. Patel, Harrison.)
After August 14, 2015, however, Morgan stopped paying rent to Studio 6. Although Morgan remained in residency at Room 6201, using and occupying that dwelling unit, the highly credible evidence adduced at trial fully establishes that Morgan did not pay the rent due on any day from August 15 through August 30, or thereafter. Despite Morgan's protest to the contrary, and despite the evidence indicating that prior to August 14, 2015 Morgan did not always pay the rent as due or within a few days of the due date, the evidence is insufficient to permit the finding that on August 15 or at any thereafter, Morgan tendered or Studio 6 refused to accept tender of rent or of any payment from Morgan. To the contrary, a fair preponderance of the evidence fully establishes that after August 14, 2015, Morgan never tendered payment to Studio 6, whether as rent or as use and occupancy; there was never any tender by Morgan after August 14, 2015 for Studio 6 to refuse. (Ex. 1; Tes. Patel, Harris.)
The court acknowledges the vigor with which Morgan cross examined Studio 6 staff members in general and specifically on the subject of payment and/or tender of funds related to Room 6201. In assessing the quality of the evidence, the court has remained mindful that in this state, even when presented on cross examination, " a question is not evidence; it is the answer, not the question or the assumption made in the question, that is evidence . . ." (Emphasis added.) Civil Jury Instructions § 2.1-3 [Facifinder's] Duty to Decide on the Evidence.
" '[T]ender is an offer to pay a debt or discharge a duty, and, in the case of a debt, the offer to pay involves, as a general rule, the actual production of the money and the placing of it in the power of the person entitled to receive it.'" Howard-Arnold, Inc. v. T.N.T. Realty, Inc., 145 Conn.App. 696, 707, 77 A.3d 165 (2013) (describing legal principles governing exercise of an option contract), citing Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 155-56, 176 A.2d 574 (1961).
On August 31, 2015, Studio 6 caused a notice to quit to be duly served upon Morgan, informing Morgan that the dwelling unit was to be vacated on or before September 4, 2015 due to nonpayment of rent. The notice to quit further informed Morgan that any subsequent payments would be accepted as use and occupancy only; Studio 6 had no obligation to accept any payment from Morgan as " rent" after the notice to quit was served. The summary process action was subsequently duly served upon Morgan and filed with the court.
" 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, Adminstrator v. Jayne F. Pincus, 154 Conn.App. 146, 153, 105 A.3d 338 (2014). No evidence overcame the presumption of service in this case as to either the notice to quit or the summary process complaint.
See General Statutes § 47a-19, providing that: " Acceptance of rent with the knowledge that such rent is overdue constitutes a waiver of the landlord's right to terminate the rental agreement for the tenant's failure to pay such rent when it was due."
In its entirety, then, the evidence establishes that Morgan neither paid rent after August 14, 2015 nor tendered to Studio 6 any form of compensation for use and occupancy of the dwelling unit known as Room 6201 after August 31, 2015 when the notice to quit was served. Morgan did not vacate the premises on or before the date specified in the notice to quit. Instead, Morgan remained in residence at Room 6201 without compensating Studio 6. (Ex. 1; Tes. Patel, Harrison.) For equitable purposes, the court appreciates that Morgan considers Room 6201 specifically, and Studio 6 generally, to be " home, " and that even though Morgan filed an exhaustive list asserting defective conditions she claimed to exist at the property, ostensibly including Room 6201, Morgan desires to remain in residence at Studio 6. (Special Defenses, § 2.c.) Also for equitable purposes, the court finds that Morgan's continued use and occupancy of Room 6201 has been to the detriment of Studio 6, which has sustained financial loss due to Morgan's nonpayment and the concomitant inability to secure an alternate tenant while Morgan remains in place. (Ex. 1; Tes. Morgan, Patel, Harrison.)
At trial of the summary process issues, Studio 6 withdrew its claim for relief by way of an award of damages by way of the unpaid fair rental value for the dwelling unit while the action was pending.
II
RESOLUTION OF THE PARTIES' CLAIMS
Generally, " [s]ervice of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961); Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954); Bushnell Plaza Development Corporation v. Fazzano, 38 Conn.Supp. 683, 686, 460 A.2d 1311 (1983). It is necessary to prove the allegations of the notice to quit possession in order to obtain a judgment for possession." Housing Authority v. Hird, 13 Conn.App. 150, 156, 535 A.2d 377 (1988). Thus, in and of itself, " nonpayment of rent does not terminate a tenancy, but gives the landlord the option to terminate the lease by some unequivocal act clearly showing the exercise of that option. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., [ supra, 149 Conn. 156]; Chapel-High Corporation v. Cavallaro, [ supra, 141 Conn. at 411]." (Emphasis added.) Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 253, 550 A.2d 1061 (1988). That unequivocal act was fulfilled by the service of the notice to quit on behalf of Studio 6, proved by a fair preponderance of the evidence as found in Part I. Moreover, " [i]n order to prevail in a summary process action alleging nonpayment of rent, a landlord must show that the tenant failed to tender rent prior to the service of the notice to quit. Mayron's Bake Shops, Inc. v. Arrow Stores, Inc., [ supra, 149 Conn. 156]." 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 626, 987 A.2d 1009 (2010). Studio 6 has fulfilled this essential element of its summary process action as it has proved, by a fair preponderance of the evidence as found in Part I, that Morgan failed to tender rent from August 15 through August 30, 2015, prior to the service of the notice to quit. Accordingly, Studio 6 has met its requisite burden of proof as to all essential elements of the allegations of its complaint including, but not limited to, the existence of the day-to-day-lease with Morgan, Morgan's use of the dwelling unit, Morgan's agreement to pay rent, Morgan's failure to pay rent as due, the timely service of the notice to quit, Morgan's failure to leave the premises pursuant to the notice to quit, and due service of the summary process action.
While Morgan has presented several special defenses in response to the complaint, she has failed to meet her burden of proving any one of them. Morgan has alleged that she offered rent to the landlord on August 14, 2015, before the notice to quit was served. (Special Defense, § 2.b.) Even if the $60 Morgan paid to Studio 6 on that date represented rent due, as opposed to representing payment on an arrearage, as found in Part I, a fair preponderance of the evidence establishes that Morgan did not pay rent as due from August 15, 2015 through August 30, 2015 when the Notice to Quit was served. Accordingly, this special defense does not protect Morgan from summary process.
See Ursini v. Barnett, 124 Conn.App. 855, 859, 10 A.3d 1055 (2010) (judgment of possession affirmed on showing of tenant's failure to pay rent prior to service of notice to quit).
Other special defenses, apparently sounding in retaliation, alleged that the eviction action was brought because Morgan contacted the landlord " to complain" about the dwelling unit or because, on April 9 and April 15, 2015, Morgan " notified" the " landlord" of the conditions she had listed upon her answer. (Special Defenses, § § 2.d., e.) The court does not credit any evidence that may be construed as suggesting that Morgan ever made any complaint to Studio 6 or to any Studio 6 representative concerning the conditions of Room 6201, the dwelling unit that is the subject of this summary process action, or that ever notified Studio 6 or any Studio 6 representative of any conditions in that dwelling unit requiring attention or remediation either before or after the notice to quit was served. The evidence thus is insufficient to meet Morgan's burden of proof as alleged in Special Defense § 2.d and is further insufficient to meet Morgan's burden of proving that " [t]his eviction is being brought because" contact was made with the landlord concerning the conditions listed upon Morgan's answer, as alleged in Special Defense § 2.d. Accordingly, Morgan cannot prevail on these elements of her Special Defenses.
Morgan has further claimed that no rent was due to Studio 6 after August 14, 2015 " because there are housing or health code violations" present at the dwelling unit that is the subject of the summary process action. (Special Defense § 2.c.). The court received no credible evidence from which it could reasonably determine that Morgan was relieved of her obligation to pay rent to Studio 6 because of the existence of " housing or health code violations" in Room 6201 at Studio 6, or even that she was so relieved of her obligation to pay rent because the landlord failed to comply with its statutory responsibilities for maintaining the dwelling unit designated as Room 6201. Thus, Morgan has failed to meet the burden of proving § 2.c. of the Special Defenses, just as Morgan has failed to meet the burden of proof on any of her other Special Defenses.
Exhibit C., proffered by Morgan, at best represents a complaint made to the Town of Manchester on October 15, 2015, some six weeks after the date of service of Morgan's notice to quit. In addition, Exhibit C reflects a complaint made to the Town of Manchester by an individual identified upon the document as " Marlene Holt" concerning Room 6101 at Studio 6. The court notes that Morgan has not alleged that the eviction is being brought because Morgan contacted public officials or agencies to complain about the conditions present in Room 6201 at Studio 6. Holt did not testify at trial. Thus, notwithstanding Exhibit C, the evidence is insufficient to permit the court to draw any reasonable conclusion about the proximity of Room 6101 to the dwelling unit leased to Morgan, Room 6201 and is insufficient to establish that violations of the housing or health codes of the Town of Manchester affected Room 6201 prior to the service of the notice to quit upon Morgan. Even if the evidence is sufficient to permit the inference that the problems with roaches, mold and/or electrical facilities, present in Room 6101 on October 15, 2015 were also present in Room 6201, a conclusion this court does not reach, the evidence is insufficient to establish that these conditions materially affected the health and/or safety of Morgan, rendered Room 6201 unfit or uninhabitable, or otherwise statutorily relieved Morgan of her obligation to pay rent as due to Studio 6. (Ex. C.)
III
CONCLUSION
Having considered the facts, the law and the equities applicable to this summary process action, the court finds that Studio 6 has proved, by a fair preponderance of the evidence that: it is the owner of Room 6201 at 191 Spencer Street, Manchester, CT; Morgan had been the lessee of that dwelling unit; Morgan violated the lease by failing to pay rent as due; a notice to quit was duly served upon Morgan; Morgan remained in occupancy after the expiration of the time specified in such notice to quit; Morgan did not show title to the dwelling unit which accrued after entering into the lease and Morgan did not show a title that existed at the time the notice to quit possession or occupancy was served.
General Statutes § 47a-26d.
WHEREFORE, the court enters judgment in favor of the plaintiff Kautilya Manchester Hotel, LLC d/b/a/ Studio 6 Hotel for immediate possession of those premises known as Room 6201 at 191 Spencer Street, Manchester, CT. The stay of execution provided by General Statutes § 47a-35 shall be final.