American Latvian Evangelical Lutheran Church v. Jansone et al. (2011)

MEMORANDUM OF DECISION

This is a summary process action for possession of the subject premises at 21 Garden Street, Manchester, Connecticut.   On January 4, February 15 and March 2, 2011, the parties appeared before the court for trial on the two-count complaint.   The plaintiff alleges that as to the subject property, the defendants' original right or privilege to occupy the premises has been terminated.   The plaintiff in the second count asserts as an alternative claim as to Mr. Smith that he never had a right or privilege to occupy the premises.   The defendants deny the claim and asserts a number of special defenses.

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.

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

In a summary process action based on the plaintiff's claim that the defendants originally had the right or privilege to occupy the premises but any such right or privilege has terminated, the plaintiff must prove by a fair preponderance of the evidence all the elements of the case.   The essential elements are:  (1) the plaintiff is the owner of the property;  (2) the defendants originally had a right or privilege to occupy the premises but such right or privilege has terminated;  (3) the plaintiff caused a proper notice to quit possession to be served on the defendant to vacate the premises on or before a certain date;  and (4) although the time given the defendant to vacate in the notice to quit possession has passed, the defendant remains in possession of the premises.   Conn. Gen.Stat. § 47a-23(a)(3).

In a summary process action claiming that the defendant never had a right or privilege to occupy the premises, the plaintiff must prove by a fair preponderance of the evidence the following essential elements:  (1) The plaintiff is the owner of the subject property;  (2) when the occupant moved in or when the owner became aware that the occupant was residing in the premises;  (3) the plaintiff caused a proper notice to quit possession to be served on the defendant to vacate the premises on or before a certain date;  and (4) although the time given the defendant to vacate in the notice to quit possession has passed, the defendant remains in possession of the premises.   Conn. Gen.Stat. § 47a-23(a)(2).

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).

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 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 following factual findings apply to both counts of the plaintiff's complaint.

1. The plaintiff is the owner of the subject property;

2.  The defendant Jansone-Smith originally had the right or privilege to occupy the premises by virtue of an employment agreement with the plaintiff;

3.  The defendant Smith moved into the premises after his wife, defendant Jansone-Smith took possession;

4.  The defendants' rights or privileges to occupy the premises have been terminated by notice from the plaintiff;

5.  On or about October 13, 2010, the plaintiff caused a proper notice to quit possession to be served on the defendant to vacate the premises on or before October 20, 2010;

6.  Although the time given the defendants to vacate in the notice to quit has passed, the defendants remain in possession of the premises;

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 as to Count One of the complaint as to both defendants.

SPECIAL DEFENSES

The court finds that the defendants have failed to prove any of their special defenses by a fair preponderance of the evidence.   The facts surrounding the decision not extend a new contract for employment to the defendant Jansone-Smith is unrelated to the issue of possession.   Additionally, information related to the defendant Jansone-Smith's immigration status is likewise unrelated to the issue of possession of the premises.

ORDER

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

BY THE COURT

Hon. Vernon D. Oliver, J.

Oliver, Vernon D., J.