James Palmer et al. v. Suzanne Allen (2011)

MEMORANDUM OF DECISION

This is an action by the plaintiffs, James and Janice Palmer, relating to residential premises (hereinafter referred to as the “subject premises”) located at 1365 New London Turnpike, Glastonbury, Connecticut.   The plaintiffs assert, pursuant to a five-count complaint:  failure to pay rent, failure to pay use and occupancy, property damages, unjust enrichment and attorneys fees.   The Defendant's answer denies the substance of the plaintiffs' allegations and asserts several special defenses, including uninhabitability of the premises.

On April 13 and 15, 2011, all parties were present for the trial of this matter.   Testimony was taken and evidence was submitted.   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.

STANDARD OF PROOF

The standard of proof in civil 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).

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).

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.  “The determination of credibility is a function of the trial court.”  Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333 (2001).

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.).

JUDICIAL NOTICE

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).   Accordingly, the court takes judicial notice of the summary process action HDSP–150551, Palmer et al. v. Allen, Hartford Housing Session at Hartford.   The action was commenced by the plaintiffs for nonpayment of rent.   The parties reached a stipulated agreement that was accepted as a judgment in favor of the plaintiff with a final stay of execution through August 31, 2009.   This final stay was premised on a number of conditions, including the payment of use and occupancy of $1,350.00 per month for three months (June, July and August 2009) by the defendant.  (Plaintiff's Exhibit 2.) The stipulation also reserves the parties' rights to pursue civil actions other than those that decide the issue of possession of the subject premises.  (Plaintiff's Exhibit 2.)

Breach of Contract

The plaintiffs argue that the defendant owes the plaintiffs, inter alia, under a theory of breach of contract.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Chiulli v. Zola, 97 Conn.App. 699, 706–07, 905 A.2d 1236 (2006).  “An ‘agreement’ is [t]he union of two or more minds in a thing done or to be done;  a coming together of parties in opinion or determination ․” (Internal quotation marks omitted.)  Viera v. Cohen, 283 Conn. 412, 429, 927 A.2d 843 (2007).

“A lease is nothing more than a contract ․ Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed ․ As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant's breach of contract of lease.   The plaintiff would be entitled to recover the damages which would naturally follow from such a breach ․ in an action for breach of a lease, the amount of rent agreed to by the parties is a proper measure of damages.”  (Citations omitted;  internal quotation marks omitted.)  Rokalor v. Connecticut Eating Enterprises, 18 Conn.App. 384, 389, 558 A.2d 265 (1989).

“Whether there was a breach of contract is ordinarily a question of fact ․ We review the court's findings of fact under the clearly erroneous standard ․ The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole ․ We cannot retry the facts or pass on the credibility of the witnesses ․ A finding of fact is clearly erroneous when there is no evidence in the record to support it ․ or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed ․” (Citation omitted;  internal quotation marks omitted.)  Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn.App. 462, 471–72, 823 A.2d 438 (2003).

Unjust Enrichment

In the fourth count of the plaintiff's complaint, the plaintiff alternatively claims sums due from the defendant on the basis of unjust enrichment.  “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.”  (Internal quotation marks omitted.)  Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

“With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Internal quotation marks omitted.)  Breen v. Judge, 124 Conn.App. 147, 158–59, 4 A.3d 326 (2010).   It has also been said that “the word ‘unjustly’ as used in the equitable maxim that one shall not be allowed unjustly to enrich himself at another's expense means unlawfully.”  Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 130, 239 A.2d 519 (1968).

“[E]quitable remedies are not bound by formula but are molded to the needs of justice ․ Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine ․ That doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated ․ The question is:  Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?  ․ Review of a trial court's resolution of that question is deferential.   The court's determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings ․ that are subject only to a limited scope of review on appeal ․ Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion ․ This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.”  (Internal quotation marks omitted.)   Stewart v. King, 121 Conn.App. 64, 71, 994 A.2d 308 (2010).

“[P]roof of an operative contract [is] incompatible with recovery on an unjust enrichment theory.  Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999) (‘express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter’ [internal quotation marks omitted] ).”  Vertex v. Waterbury, supra, 278 Conn. 570 n.12. “[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations ․ Proof of a contract enforceable at law precludes the equitable remedy of unjust enrichment ․ at least in the absence of a breach of the contract by the defendant ․ a nonwillful breach by the plaintiff ․ or a mutual rescission of the contract.”  (Citations omitted;  internal quotation marks omitted.)  Polverari v. Peatt, 29 Conn.App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).

An action which seeks damages for unjust enrichment and quantum meruit is allowable as an alternative basis for recovery in the event of a failure to prove a breach of contract claim.   See Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986).   However, “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract.”  Burns v. Koellmer, 11 Conn.App. 375, 383 (1987).

Attorneys Fees

The landlord seeks attorneys fees and costs pursuant to the terms of the lease.  “The general rule of law known as the ‘American rule’ is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ․ Connecticut adheres to the American rule ․ There are few exceptions.   For example, a specific contractual term may provide for the recovery of attorneys fees and costs ․ or a statute may confer such rights.”  (Citations omitted;  internal quotation marks omitted.)   Psomas v. DeRaffle Mfg. Co., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 97 0339594 (December 29, 1997;  Skolnick, J.).

Damages–Generally

It is fundamental in our law that “the right of a plaintiff to recover is limited by the allegations of the complaint ․ and any judgment should conform to the pleadings, the issues and the prayers for relief.”  (Internal quotation marks omitted.)  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002).

“[T]he nonbreaching party may recover only for damages that are direct[ly] and proximate[ly] caused by a defendant's breach ․ causation is an element—and a crucial one—of the plaintiff's prima facie case ․” (Citation omitted;  internal quotation marks omitted.)  McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503–04, 890 A.2d 140 (2006).  “Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.”  (Internal quotation marks omitted.)  Cas Construction Company v. Town of East Hartford, 82 Conn.App. 543, 556 (2004).

“Proof of damages should be established with reasonable certainty and not speculatively and problematically.”  (Citations omitted;  internal quotation marks omitted.)  Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35, 889 A.2d 785 (2006).   An owner may testify as to the value of his property.  Moore v. Sergi, 38 Conn.App. 829, 840, 664 A.2d 795 (1995).

“Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.”  (Citations omitted;  internal quotation marks omitted.)  24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308–09, 685 A.2d 305 (1996).

Damages:  Rent/Use and Occupancy

The statutory obligations of the landlord and tenant continue even when there is no longer a rental agreement between them.   Termination of the lease does not terminate the tenancy since, upon service of a notice to quit possession, a tenancy at sufferance is created.  Rivera v. Santiago, 4 Conn.App. 608, 610, 495 A.2d 1122 (1985);  Bushnell Plaza Development Corporation v. Fazzano, 38 Conn.Sup. 683, 686, 460 A.2d 1311 (1983).   Even though a tenant at sufferance is excused from a duty to pay the stipulated rent under the lease, the obligation to pay a fair rental value for the use and occupancy of the dwelling unit remains.  Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975);  Rivera v. Santiago, supra.

FINDINGS OF FACT

The Lease

On March 7, 2004, the plaintiffs and the defendant contracted for the lease of the subject premises.  (Plaintiff's Exhibit 1.) The term of the lease was one year and 15 days.   The agreed upon monthly rent was $1,350.00 payable on the first of the month.   The lease provided for attorneys fees as necessary for costs related to collection of amounts due.  (Plaintiff's Exhibit 1.) The lease expired by its terms on March 31, 2005.

On May 16, 2005, the parties entered into a lease for the subject premises for the term of one year, from April 1, 2005 through April 1, 2006.   The agreed upon monthly rent was $1,350.00 payable on the first of the month.   The lease provided for attorneys fees as necessary for costs related to collection of amounts due.  (Plaintiff's Exhibit 1.) The lease expired by its terms on April 1, 2006.

The most recent lease, with a one-year term expiring April 2006 states:  “This lease agreement is to last for a period of twelve (12) months beginning on April 1, 2005 and ending April 1, 2006.   It is understood and agreed that the tenants will vacate the premises on April 1, 2006, unless it is agreed in writing to extend the provisions and conditions of this lease agreement, or a new lease is signed.”

The plaintiffs assert in their complaint an oral year-to-year extension of the written lease under the same terms and conditions, including the attorneys fees provision.   The defendant asserts in her answer an oral month-to-month lease.   Likewise, in the summary process action HDSP–150551, Palmer et al. v. Allen, the plaintiffs asserted in that amended complaint an oral month-to-month lease for a monthly rental amount of $1,350.00.   Accordingly, this court finds an oral month-to-month lease for the premises since April 2, 2006, at the expiration of the most recent written lease.

Count One:  Failure to Pay Rent

The court finds an oral lease between the parties in November 2008 for the subject premises at an agreed upon rent of $1,350.00.   The court further finds that the defendant did not pay the agreed upon rent when due or within the time allowed by law.   Finally, the court finds that, as of the time of trial, the defendant has not paid the amount due to the plaintiffs.

Special Defenses to Count One

The defendant asserts special defenses to Count One. She claims that the premises were rendered uninhabitable due to an issue with the chimney, a so-called “puff-back.”   The court credits the testimony of witnesses that the premises were not rendered uninhabitable by the “puff-back.”   Tangentially, the defendant has been compensated for any damages to her items within the premises by the plaintiffs' homeowner's insurance carrier.  (See Defendant's Answer, Count Four.) The Defendant also claims that she was unable to occupy the premises for the period in question.   The court, in light of the entire evidence, does not find this testimony credible.

Additionally, the defendant claims the stipulated judgment between the parties in the summary process matter precludes all the claims asserted by the plaintiffs in this matter.   Apart from not being specifically pled, as required, the court finds, after review of the stipulated agreement (Plaintiff's Exhibit 2) that the plaintiff expressly reserved their rights to bring the instant action.

The Court finds that the defendant has failed to establish her special defenses by a fair preponderance of the evidence.

Accordingly, the court finds for the plaintiffs on Count One in the amount of $1,350.00.

Count Two:  Failure to Pay Use and Occupancy

The court finds the last agreed upon monthly rent, $1,350.00 is the fair market value for the use and occupancy of the premises.   The defendant failed to pay use and occupancy for the seven months, December 2008, January through May 2009 and August 2009.   Finally, the court finds that, as of the time of trial, the defendant has not paid the amount due to the plaintiffs.

Special Defenses to Count Two

The defendant asserts special defenses to Count Two. She claims that the premises were rendered uninhabitable due to issue with the chimney, a so-called “puff-back.”   The court credits the testimony of witnesses that the premises were not rendered uninhabitable by the “puff-back.”   Tangentially, the defendant has been compensated for any damages to her items within the premises by the plaintiffs' homeowner's insurance carrier.  (See Defendant's Answer, Count Four.) The Defendant also claims that she was unable to occupy the premises for the period in question.   The court, in light of the entire evidence, does not find this testimony credible.

Additionally, the defendant claims the stipulated judgment between the parties in the summary process matter precludes all the claims asserted by the plaintiffs in this matter.   Apart from not being specifically pled, as required, the court finds, after review of the stipulated agreement (Plaintiff's Exhibit 2) that the plaintiff expressly reserved their rights to bring the instant action.

The Court finds that the defendant has failed to establish her special defenses by a fair preponderance of the evidence.

Accordingly, the court finds for the plaintiffs on Count Two in the amount of $9,450.00.

Count Three:  Property Damages

The court credits the sums expended by the plaintiff for hired contractors and materials related to the repair of the premises after the defendant vacated.   (Plaintiff's Exhibits 6, 7.) The general rule of ordinary wear and tear has not been replaced by explicit lease terms.  Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 148 (1998);  Gateway Co. v. Di Noia, 232 Conn. 223, 225, 235 (1995).  “The words ordinary wear and tear apply to situations of gradual deterioration resulting from use.”  “To decide what is reasonable wear and tear requires the court to consider the use of the premises.   In general, a tenant is not liable for damages caused by the use for which the property was leased.”   MTM Industries v. D'Amato Investments, LLC, Superior Court, judicial district of Ansonia–Milford at Milford, Docket Number CV05–4003128 S (April 21, 2006, Petroni, J.T.R.) [41 Conn. L. Rptr. 199].   “Wear and tear also includes normal repainting and cleaning which occurs at the end of a tenancy.”   DeMatteo v. Villana, Superior Court, judicial district of New Haven, Housing Session, Docket Number CVNH–9604–7493 (July 10, 1997, Levin, J.) [20 Conn. L. Rptr. 131].

Additionally, the court credits the plaintiff's testimony of the payments for cleaning supplies, replacement items and utilities.  (Plaintiff's Exhibits 5, 8.) Further, based on the testimony and exhibits, the court finds that the repairs required were not the result of normal wear and tear.   Finally, the Court finds that the hourly rate “charged” by the plaintiff is reasonable in light of the nature of the manual labor involved.   Buccino v. Cable Technology, Inc., Superior Court, judicial district of Tolland at Rockville, Docket Number CV 88–39541 (September 17, 1990, Klaczak, J.).

The plaintiff has presented a plethora of evidence that establishes, by a fair preponderance of the evidence, the extensive damage done to the premises by the defendant.  (Plaintiff's Exhibits 5–8, 10–68.)   The plaintiff was able to testify and provide other documentary evidence (Plaintiff's Exhibit 5) to establish the amount of damages suffered with reasonable certainty.   The Court declines, however, to allow recovery for three months at $1,350.00 for time the plaintiff testified the premises remained empty while clean-up occurred.   The plaintiff has failed to sustain its burden of proof in this regard.

Special Defenses to Count Three

The Court is convinced that the damages established were due to the actions of the defendant and/or other occupants, including pets.   Accordingly, the Court finds that the defendant has failed to establish this special defense by a fair preponderance of the evidence.

Accordingly, the Court finds for the Plaintiff as to Count Three in the amount of $9,023.00.

Count Four:  Unjust Enrichment

The Court makes no finding as to count four as the damages outside of the breach of contract (the written lease) have been addressed in the other counts.

Count Five:  Attorneys Fees

This court finds an oral month-to-month lease agreement without a specific contractual term for the award of the attorneys fees.   The written lease that allowed for such an award has expired by its terms more than four years before the instant action was brought.   The court is without a legal basis to award attorneys fees.   Accordingly, the court finds for the defendant on count five.

The Court enters Judgment for the plaintiffs against the defendant, including the following damages:

Damages:

1. Unpaid rent $ 1,350.00

2. Unpaid Use and Occupancy $ 9,450.00

3. Property Damage/Labor $ 9,023.00

Total Damages:  $19,823.00

1. Credit for Security Deposit

and interest ($ 1,759.50 )

Net Damages:  $18,063.50Œ

Total Judgment:  $18,063.50

Payment of Judgment is ordered by August 26, 2011.   The payment is to be made to Plaintiff's attorney as Trustee for the Plaintiff.

The Plaintiff's attorney is located at:

Michael H. Heneghan

Heneghan, Kennedy & Doyle, LLC.

21 New Britain Avenue

Rocky Hill, CT 06067

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J.