Sheri Kopcza et al. v. John Henry Martin (2011)

MEMORANDUM OF DECISION

This is a summary process action for possession of the subject premises at 17 Vincent Court, East Hartford, CT. On November 10 and December 1, 2010, the parties appeared before the court for trial on the complaint.   The plaintiff alleges nonpayment of rent in July 2010.   The defendant, in an amended answer and special defenses, denies the plaintiff's claims and asserts a number of special defenses and an equitable counterclaim.

BURDEN OF PROOF

“While the 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 (1981).   The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence.  Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, cert. denied.  224 Conn. 923 (1982).   Failure to do so results in judgment for the defendant.  Id. “․ [W]hat is necessarily implied [in an allegation] need not be expressly alleged.”  Pamela B. v. Ment, 244 Conn. 296, 308 (1998).

STANDARD OF PROOF

The standard of proof in summary process actions, 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 (1981).

ESSENTIAL ELEMENTS OF THE CLAIM

To prevail on a claim for nonpayment of rent, the plaintiff must establish, by a fair preponderance of the evidence, the following essential elements:  (1) a rental agreement;  (2) that the plaintiff is the lessor or owner of the premises;  (3) the address of the subject premises;  (4) the amount of rent due to the plaintiff from the defendant;  (5) when the rent was due to the plaintiff, (6) the date of nonpayment;  (7) The service of the notice to quit, as well as its service date and termination date;  and (8) that the defendant is still in possession.  Conn. Gen.Stat. § 47a-15a et seq.

THE PLEADINGS

“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 (1971).  “An admission in pleading dispenses with proof, and is equivalent to proof.”  (Citation omitted.)  Patchen v. Delohery Hat Co., 82 Conn. 592, 594 (1909).

Statements made in withdrawn or superseded pleadings, while not binding as judicial admissions, may be considered as evidential admissions by the party making them, just as any extrajudicial statements would be.  Dreier v. Upjohn Co., 196 Conn. 242, 244 (1985);  Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 542, cert. denied, 271 Conn. 907 (2004);  See also Auth v. Wesley, Superior Court. judicial district of Hartford at Hartford, Docket No. CV 01-0806612 (March 15, 2007, Wiese, J.) [43 Conn. L. Rptr. 67].   Given that such statements have some probative value, we believe that the circumstances under which they are made, as with any other “admission,” go to the weight to be accorded the statements rather than their admissibility.   Stitham v. LeWare, 134 Conn. 681, 684 (1948).   Such admissions can be explained to the trier when the superseded pleading is admitted at trial.   Kucza v. Stone, 155 Conn. 194, 197-98 (1967).

SPECIAL DEFENSES

“[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 to demonstrate, nonetheless, that the plaintiff has no cause of action.”   (Internal quotation marks omitted.)  Valentine v. LaBow, 95 Conn.App. 436, 447 n. 10 (2005), cert. denied, 280 Conn. 933 (2006).   The defendants have the burden of proving the allegations in their special defenses by a fair preponderance of the evidence.   Lodovico v. Mihalcik, superior court, judicial district of Hartford at Hartford, Docket No. CV-07-50130991 (August 17, 2010, Rittenband, J.T.R.).

THE PROCEEDINGS

“The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the 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, cert. denied, 274 Conn. 906 (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 factfinder to reject or accept a certain evidence ․” (citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].”  Smith v. Smith, 183 Conn. 121, 123 (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 the testimony.”  (Citation omitted;  internal quotation marks omitted.)  Toffolon v. Avon, 173 Conn. 525, 530 (1977).  “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.”  Smith v. Smith, supra, 183 Conn. 123.  “Then determination of credibility as a function of the trial court.”  Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333 (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 the witnesses' testimony to accept or reject.”  (Citations omitted;  internal quotation marks omitted.)  State v. Osborne, 41 Conn.App. 287, 291 (1996).  “The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.”  In re Christine F., 6 Conn.App. 360, 366, cert. denied 199 Conn. 808 (1986).

FINDINGS OF FACT

The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.

Preliminarily, the Court takes judicial notice of the defendant's initial answer, filed August 24, 2010, to the complaint.

1. On or about June 1, 2007, the plaintiff, as landlord, and the defendant, as tenant, entered in to an oral month to month rental agreement for the use and occupancy of the subject premises;

2.  The Plaintiffs are the owners of the subject premises;

3.  The subject premises are:  17 Vincent Court, East Hartford, Connecticut;

4.  The agreed upon monthly rental agreement was $1,596.00 payable on the first day of each month;

5.  The defendant failed to pay the rent due on July 1, 2010, within the time allowed by law;

6.  On August 3, 2010, the plaintiff had a Notice to Quit Possession served on the Defendant to vacate the premises on or before August 12, 2010.   The reason specified in the Notice to Quit is identical to that claimed in the complaint;

7.  The time given in the notice to quit possession for the defendant to vacate the premises has passed, yet the defendant has not vacated the premises and remains in possession;

8.  The plaintiff, Sheri Kopcza, is the daughter of the defendant;

9.  The relationship between the parties is best described as “estranged” in that Sheri Kopcza and the defendant have had little to no contact over the past several decades before becoming reacquainted in advance of the instant matter;

10.  There were several occasions when the defendant paid less than the agreed upon monthly rental amount.   This lesser amount was accepted by the plaintiff;

11.  At trial, the defendant admitted the essential elements of the nonpayment claim contained in the complaint;

12.  The plaintiff, Sheri Kopcza, testified credibly as to the essential elements of the nonpayment claims of the complaint;

Additional facts will be discussed as necessary.

The court finds that the plaintiff has established all the essential elements of its case by a fair preponderance of the evidence.

FIRST SPECIAL DEFENSE

The Defendant asserts in his first special defense that the facts and circumstances of the case indicate that the defendant occupied the premises under other than a landlord-tenant agreement.   The defendant asserts a number of facts in support of this assertion.

The court finds that the facts and circumstances of the defendant's living arrangements are not inconsistent with a landlord-tenant relationship.   The plaintiffs, at trial, testified credibly to the circumstances under which the defendant came to occupy the premises.   The defendant's initial answer is an evidentiary admission which also provides evidence of a landlord-tenant relationship.   The defendant's own testimony at trial provides this court with sufficient evidence upon which to find a landlord-tenant relationship:  essentially, that the defendant was allowed to occupy the premises as long as he was timely able to make the agreed upon payment to the plaintiffs.

Even assuming, arguendo, that the monthly rental amount tendered by the defendant over the past three years was sufficient to pay the plaintiffs' mortgage, taxes and fees, this is far from conclusive evidence of the defendant's belief that he held an ownership interest in the premises.   Additionally, the facts that the defendant paid the utilities for premises in which he resided is not persuasive.   Further, whether the defendant occupied the premises in violation of condominium association rules is of no moment.

The plaintiff is not required to rent the apartment to the defendant to her financial detriment to establish a landlord-tenant relationship with the defendant.   The familial relationship between the parties does nothing to diminish the court's findings in this regard, especially given the nature of the relationship over the past several decades.

The defendant has failed to prove his first special defense by a fair preponderance of the evidence.

SECOND SPECIAL DEFENSE

The defendant asserts that he has essentially prepaid his rental obligation by making approximately $35,000.00 in additional payments.

This court finds after trial that the defendant has failed to establish this special defense by a fair preponderance of the evidence in that the defendant has failed to persuade this court, based on the entire record that any “additional” sums provided to the plaintiff by the defendant were tendered or accepted as additional rental payments.   The court credits the testimony of Sheri Kopcza in this regard.

THIRD SPECIAL DEFENSE

In his third special defense, the defendant claims equitable defense against forfeiture.   Although this case is not a traditional example of the landlord-tenant relationship, the courts of this state have held, that “[t]here are in fact four factors that the courts consider and weigh in considering claims for equitable relief in summary process actions.   The first factor ․ is whether the loss to be suffered by the tenant, if evicted, is disproportionate to the loss to the landlord if the tenant is not evicted ․ the second factor is whether the injury to the other party is reparable ․ the third factor ․ is the reason for the nonpayment and the extent to which the tenant is ‘culpable’ ․ the fourth factor ․ is the extent to which the tenant has demonstrated good faith in curing the default.”   East Hartford Housing Authority v. Parker, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SPH 9111-63027 (August 7, 1992, Holzberg, J.) [7 Conn. L. Rptr. 422].  “A court of equity will apply the doctrine of clean hands to a tenant seeking such equitable relief, thus, a tenant whose breach was ‘wilful’ or ‘grossly negligent’ will not be entitled to relief.”  (Citations omitted;  internal quotation marks omitted.)  Fellows v. Martin, 217 Conn. 57 (1991).   See also Woodside Apartment v. Wilkerson, Superior Court, judicial district of Hartford, Housing Session at Hartford, Docket No. HDSP-138943 (January 8, 2007, Bentivegna, J.);   Bray v. Bray, Superior Court, judicial district of Tolland at Rockville, Docket No. CV08-4008904 (August 27, 2008, dos Santos, J.).

“Equity does not necessarily mean full compensation to the plaintiffs.   Equity is [j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law ․ the term ‘equity’ denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men ․ [e]quity takes into consideration fairness to both the plaintiff and the defendant.”  (Citations omitted;  internal quotation marks omitted.)  Krasowski v. Fantarella, 51 Conn.App. 186, 199 (1998), cert. denied, 247 Conn. 961 (1999).  “It is fundamental that anyone going into equity and asking its aid submits to the imposition of such terms as well-established equitable principles require ․” (Internal citations omitted.)   Village II Glen Lochen v. Burnham, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 07-4034048, (June 4, 2010, Peck, J.) [50 Conn. L. Rptr. 85].  “As he is seeking equity he must do equity.”  Caramini v. Telegulias, 121 Conn. 548, 553 (1936).

As to the first factor, the court cannot find that the loss to be suffered by the defendant if evicted is disproportionate to the loss to the plaintiffs if the defendant remains in possession of the premises.   The plaintiffs testified credibly as to the financial reverses they have suffered in recent times.   The evidence is clear that, notwithstanding the defendant's physical and financial straits, the plaintiffs are without the means to subsidize the defendant's occupancy of the premises, especially against their will.

As to the second factor, the court cannot find that the injury to the tenant is reparable.   The evidence suggests that the plaintiff is without the means to meet any arrearage in a manner equitable to the parties.   Further, given the month to month tenancy in this manner, it would not be equitable to maintain the defendant in the premises.

As to the third factor, the court does not assess culpability to the defendant as it relates to his financial situation.   There is no indication that the defendant contributed in any way to his present circumstances.   Although the defendant refused to vacate the premises after initially agreeing, he was well within his rights to leave the plaintiff to his proof in court.

Finally, the court finds that, even after having been notified of the financial difficulties of his daughter and son-in-law, the defendant made insufficient efforts to cure the default.   The court finds that the defendant has failed to establish that he acted in good faith in reaching a possible accord with the trustee regarding the premises.

The court is not persuaded, as stated elsewhere in this opinion, that any additional sums of money given to the plaintiffs by the defendant were in any way a “prepayment” of rent, a mortgage payment, or any payment related to his occupancy of the premises.

Accordingly, the court declines to invoke equity to bar this forfeiture.

EQUITABLE COUNTERCLAIM

The defendant seeks the imposition of a constructive trust upon the premises based, among other things, on the “familial relationship” between the parties and the age of the defendant.

“A constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.”  Filosi v. Hawkins, 1 Conn.App. 634, 639 (1984);  Gulack v. Gulack, 30 Conn.App. 305, 311-12 (1993).   In order to find that a constructive trust exists and should be imposed, the court must find that a special or confidential relationship existed between the parties.  Id. “In Connecticut, there are two types of confidential relationships in the context of constructive trusts:  (1) where one party is under the domination of another and (2) where circumstances justify one a party's belief that his or her welfare or instructions will guide the other's actions.”  Riccio v. Riccio, 75 Conn.App. 556, 559 (2003);  Starzec v. Kida, 183 Conn. 41, 43 n. 1 (1981).

While the courts of this state have found that although “the relationship between parent and child generates a natural inclination to repose great confidence and trust ․ the relationship between parent and child is not per se a fiduciary one.” (internal citations omitted;  internal quotations omitted).   Boudreau v. Boudreau, Superior Court, judicial district of Litchfield at Bantam, Docket No. CV-08-10826 (March 25, 2008, Marano, J.).

Based on the evidence adduced at trial as to the nature of the relationship between the parties, this court finds that the defendant has failed to establish a special or confidential relationship.   See Gulack v. Gulack, 30 Conn.App. 305, 311-12 (1993).   Additionally, the defendant has failed to establish, by a fair preponderance of the evidence that the plaintiffs represented that the defendant could remain in possession of the premises during his lifetime.   If such was the defendant's belief, there is insufficient basis for it in the evidence.

“A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not to, in equity and good conscience, hold and enjoy ․ [a] constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form ․ [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it ․ [t]he issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched.”  (Citations omitted;  internal quotation marks omitted.)  Stornawaye Properties, Inc. v. O'Brien, 94 Conn.App. 170, 175-76 (2006);  Boudreau v. Boudreau, Superior Court, judicial district of Litchfield at Bantam, Docket No. CV-08-10826, (March 25, 2008, Marano, J.).

A constructive trust should be imposed to prevent the abuse of a confidential relationship.  Schmaling v. Schmaling, 48 Conn.App. 1, 13, cert. denied, 244 Conn. 929 (1998).   The [party seeking to have the court impose a constructive trust] bears the burden of establishing clear and satisfactory facts from which such a trust may be implied.  Starzec v. Kida, 183 Conn. 41, 45 (1981).

In further support of a constructive trust, the defendant re-asserts the claims that the defendant expended sums in addition to the monthly rental payment to the plaintiff, either as “equity” in the premises, or in “prepayment” of the monthly rental agreement.   As previously noted in this decision, the defendant has failed to establish sufficient facts to support these claims.   Further, based on the entire record, there is insufficient evidence for this court to find that the plaintiffs would be unjustly enriched if they were to gain possession of the premises.   Finally, the defendant has failed to establish any fraud, actual or constructive, on the part of the plaintiffs.

For the same reasons, the court declines to find and impose a resulting trust.   See Saradjian v. Saradjian, 25 Conn.App. 411, 414 (1991).

Accordingly, the court finds that the defendant has failed to establish his equitable counterclaim by a fair preponderance of the evidence.

WHEREFORE, The Court enters judgment for immediate possession of the subject premises in favor of the plaintiffs.

BY THE COURT

Hon. Vernon D. Oliver

Oliver, Vernon D., J.