Carrier Enterprises, Inc. v. Nkonoki et al. (2011)

MEMORANDUM OF DECISION

This is a summary process action for possession of the subject premises at 72 West Meath Lane, Unionville, CT. On March 16, 2011, the parties appeared before the court for trial on the complaint.   The plaintiff alleges in a two-count complaint nonpayment of rent in October 2010, and that the original right or privilege of the defendants to occupy the premises has terminated.   The defendant Nkonoki, in an answer and special defenses, denies the plaintiff's claims and asserts a special defense asserting that all rent due has been paid.   The other defendants have not appeared.

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.

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).

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 a 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 fact finder 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.  “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, by agreement of the parties, takes judicial notice of the notice to quit and the marshal's return of service.

1. On or about October 8, 2010, the plaintiff, as landlord, and the defendant Nkonoki, as tenant, entered in to a written lease purchase agreement for the subject premises;

2.  The Plaintiff is the owner of the subject premises;

3.  The subject premises are:  72 West Meath Lane, Unionville, Connecticut;

4.  The agreed upon monthly rental agreement was $5,000.00 due as a deposit and $2,800.00 due as rent on the eighth day of October 2010;

5.  The defendant Nkonoki failed to pay the rent due on October 8, 2010 within the time allowed by law;

6.  The defendant Nkonoki had an original right or privilege to occupy the premises pursuant to the lease purchase agreement, but such right or privilege has terminated;

7.  The defendants were put on notice, by service of the notice to quit, that their right or privilege to occupy the premises has terminated;

8.  On December 12, 2010, the plaintiff had a Notice to Quit Possession served on the Defendants to vacate the premises on or before December 16, 2010.   The reasons specified in the Notice to Quit are identical to those asserted in the complaint;

9.  The time given in the notice to quit possession for the defendants to vacate the premises has passed, yet the defendants have not vacated the premises and remain in possession;

The court finds that the plaintiff has established all the essential elements of both counts of the complaint by a fair preponderance of the evidence.

FIRST SPECIAL DEFENSE

The defendant asserts that the rent due for October 2010 was paid.   The 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 that any sum of money in good funds were received by the plaintiff when due for October 2010 rent.   The plaintiff was unable to successfully negotiate the checks received from the defendant.   The first set of checks was deposited by the plaintiff on or about October 18, 2010.   The second set of checks was deposited by the plaintiff on November 5, 2010.   Even if this court were to credit the testimony of the defendant regarding an agreement by the plaintiff to hold the checks for deposit, this court finds that the time frame during which these checks were processed and returned is well after the due date for the October 2010 rent payment.

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

The Court determines the arrearage to be $21,800.00 ($5,000.00 deposit;  $8,400.00 rent;  $8,400.00 use and occupancy) as of March 16, 2011.

BY THE COURT

Hon. Vernon D. Oliver, J.

Oliver, Vernon D., J.