Austin Ouellette et al. v. Mike Criscitello (2010)

MEMORANDUM OF DECISION

This action is brought by the plaintiffs, Austin Ouellette and Crystal Ouellette, seeking damages from the defendant, Mike Criscitello, for unpaid rent and physical damage to the residential premises known as 141 Broad Street, Bristol, Connecticut (the “Premises”).   The plaintiff was represented at trial by counsel.   The defendant was self-represented.

The plaintiffs allege that the defendant failed to pay monthly rent of $900 for the months of December 2006, January 2007 and eight days in February 2007.   The plaintiffs also seek damages of $7,618.30 for physical damage to the Premises and attorneys fees.

Austin Ouellette's grandmother, Rinette Ouellette, testified that she entered into a one-year written lease with the defendant and Nicole Paradis beginning October 1, 2007 at the monthly rent of $900.00.¹  Rinette Ouellette testified that Nicole Paradis called her before the tenants took occupancy and requested that she be removed as a party on the lease, because she lost her job.   The plaintiffs' complaint does not name Paradis as a defendant.

The court has reviewed the documentary evidence and credible testimonial evidence and makes the following findings.

The Plaintiffs' Claim for Unpaid Rent

The parties stipulate that the defendant paid the sum of $1,800 at the time that the lease was entered into ($900 as a security deposit and $900 for the last month's rent).   The plaintiffs claim that the defendant failed to pay monthly rent of $900 for the months of December 2006, January 2007 and eight days in February 2007.   The plaintiffs failed to offer any evidence by way of a rent ledger or other records to support their claim.   The defendant claimed that the summary process action was brought for nuisance and that all rent was paid except for February 2007.   The defendant testified that he stopped paying rent after the summary process action was commenced.

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 court takes judicial notice of the summary process action NBSP–047292 Hartford Housing Session at New Britain.   The action was commenced by the plaintiffs for nuisance and was filed on December 13, 2006.   Weighing the conflicting testimony, the court finds the defendant obligated to pay rent for January and February 2007 for a total of $1,800.   After credit for the last month rent paid by the defendant at the time that the lease was executed, the court finds the defendant liable for $900 for unpaid rent.

The Plaintiffs' Claim for Physical Damage to the Premises

The Plaintiffs submitted numerous photographs of the Premises which offered to depict the condition of the Premises before the defendant's occupancy (Plaintiffs' Exhibits 1a–1u, 2a–2l and 3a–3o) and after the defendant's occupancy (Plaintiffs' Exhibits 4a–4v, 5a–5z, 6a–6z, 7a–7z and 8a–8j).   The court examined the photographs as they were offered at trial and after trial.   The court finds the photographs to be confusing and their probative value to be questionable.   Initially, the court finds the defendant's challenge to the photographs claimed to depict the conditions at the time the defendant took occupancy to be well made.   The before photographs offered were taken in August 2006 while the defendant did not take occupancy until sometime after October 1, 2006.   The defendant also testified that some of the damage depicted in the after photographs was present when he moved in and also appears in the before photographs.

The plaintiffs also submitted a number of documents which were claimed to evidence the costs of cleaning or repairing damage to the Premises.   The defendant correctly challenged the offer of many of the documents as mere estimates or proposals.   Moreover, the plaintiffs failed to offer any paid receipts or proof of payment of the claimed expenses.   Most important, it is not sufficient to merely show damage to the Premises, “[T]he mere fact of damage does not necessarily make the tenant liable.   Proof of property damage requires evidence.   The landlord bears the burden of proof on all elements of a damage claim.   This means that the landlord must prove that (a) the damage occurred, (b) it exceeded normal wear and tear, and (c) it was caused by the tenant.   Damage may be shown either by direct evidence or circumstantially.   However, a tenant is not liable for damages that already existed when he moved into the apartment or for damage which occurred after he vacated.   Similarly, he is not liable for damage caused by persons for whom he is not responsible.”  (Citations omitted.)   Baroudjian v. Stribling, No. CVWA 9703–1419 (Nov. 19, 1997, Levin, J.).   In this regard, the plaintiff has not only failed to prove the physical damage with the required specificity, but also failed to prove that the defendant caused the claimed damage.

“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).   Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant.  Id.

Applying this standard of proof, the court has fairly considered all the evidence presented;  assessed the weight to be given the evidence, measured the probative force of conflicting evidence and determined the credibility of the witness as required by law.  “[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness's testimony.”  (Internal quotation marks omitted.)  Hoffer v. Swan Lake Ass'n., Inc., 66 Conn.App. 858, 861, 786 A.2d 436 (2001).   Based on the foregoing the court finds the plaintiffs have sustained their burden to prove only the following damages.

Rinette Ouellette, Austin Ouellette and Linda Ouellette all described the premises as “disgusting.”   The plaintiffs offered photographs to support their contention.   The defendant admitted at trial that the Premises were left “messy.”   Having reviewed the photographs in evidence, the court finds the defendant's description understates the condition.   The court awards the plaintiffs $75.00 for “waste” removal, $480.00 for labor to “clean and sanitize” the Premises and $117.71 for cleaning materials.   The court also awards damages for the unpaid water bill of $105.27 pursuant to Paragraph 6 of the lease.

Conclusion

The court enters judgment for the plaintiffs in accordance with the following:

1. Unpaid rent $ 900.00

2. Property restoration $ 672.71

3. Unpaid water $ 105.27

$1,677.98

Less security deposit and interest ($ 906.75 )

Total $ 771.23

The court also awards attorneys fees pursuant to paragraph 16 of the lease.   Since Connecticut General Statute Section 42–150aa(b) limits attorneys fees to no more than fifteen per cent of the amount of a judgment on a consumer lease, the court awards the plaintiff the sum of $115.68 as attorneys fees.

Judgment shall enter in favor of the plaintiffs against the defendant in the amount of $886.91.

So ordered.

Gilligan, J.

FOOTNOTES

FN1. Rinette Ouellette testified that she had previously transferred the Premises to the plaintiffs for “estate planning purposes.”   The lease was signed as “Landlord” by Rinette Ouellette only.  (Plaintiffs' Exhibit 9.).  FN1. Rinette Ouellette testified that she had previously transferred the Premises to the plaintiffs for “estate planning purposes.”   The lease was signed as “Landlord” by Rinette Ouellette only.  (Plaintiffs' Exhibit 9.)

Gilligan, Robert G., J.