LLC v. Collecting Supplies, Inc. (2012)

MEMORANDUM OF DECISION AFTER TRIAL

This action was commenced by the service of Notice to Quit by the plaintiff, Ginsberg & Ginsberg, LLC, Trustee of the Cambria Trust (“Ginsberg, Trustee”), on the defendant, Collecting Supplies, LLC. The Notice to Quit Possession was served on May 3, 2012 and gave notice to the defendant to quit possession of 33 Liberty Street, Chester, Connecticut (the “Property”) on or before May 8, 2012 for a number of reasons including (a)lapse of time, (e)nonpayment of rent when due for commercial property, and (i) the one originally had the right or privilege to occupy such premises but such right or privilege has terminated.

The Revised Complaint dated June 26, 2012 contains four counts.   Count One alleges failure to make rental payments.   Count Two alleges failure to pay real property taxes, insurance and failure to maintain the Property.   Count Three alleges that the defendant's lease has terminated due to lapse of time and Count Four alleges that the plaintiff does not wish to continue the defendant's tenancy, which has been terminated by service of the Notice to Quit Possession.

On July 6, 2012 the defendant filed a Motion to Dismiss, which was denied by the court.   On August 20, 2012, the court ordered payment of use and occupancy, which the defendant has never paid.   On August 27, 2012 the defendant filed an Answer and Special Defenses.   The First Special Defense alleges that the plaintiff commenced this action in violation of Connecticut General Statutes § 47a–20e.   The Second Special Defense alleges that the defendant has paid to its landlord, Phoenix Ventures, LLC, all amounts due.   The Third Special Defense states that the portion of the complaint which alleges eviction due to lapse of time must fail because the Notice to Quit is defective and lists an improper quit date that does not coincide with the lapsing dates of the alleged lease.   The Fourth Special Defense denies that the plaintiff is the owner of the Property and that the committee deed by which the plaintiff took title to the Property was invalid.

Discussion of the Law and Ruling

The courts of this state have consistently held that “[s]ummary process is a special statutory procedure designed to provide an expeditious remedy.”   (Internal quotation marks omitted.)  Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 5 (2007).  “Summary process statutes provide a prompt hearing and final determination ․” Id., at 5–6.   Summary process is intended to “․ provide an expeditious remedy to the landlord seeking possession.”  HUD/Barbour–Waverly v. Wilson, 235 Conn. 650, 658 (1995).   The ultimate issue in a summary process action is the right to possession.   (Internal quotation marks omitted.)  Tinaco Plaza, LLC. v. Freebob's, Inc., 74 Conn.App. 760, 766–67 (2003).

“Summary process is a special statutory procedure designed to provide an expeditious remedy ․ It enables landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms ․ Summary process statutes secure a prompt hearing and a final determination ․ Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.”  (Citations omitted;  internal quotation marks omitted.)  St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 733 (2010).

“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 the 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.

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 this case the plaintiff has proved that Phoenix Ventures, LLC, the defendant and Triad Publications, LLC,¹ were single-member limited liability companies with Christopher Komondy as their sole member.   The defendant took possession of a portion of the Property as a commercial tenant by way of agreement with Phoenix Ventures, LLC, as landlord and now occupies a portion of the Property.

The plaintiff also proved that on June 12, 2008 Phoenix Ventures, LLC executed a mortgage deed on the Property to Bluefin Mortgage Fund, LLC to secure a note in the amount of $230,000.   As part of the mortgage transaction, Phoenix Ventures, LLC executed a Collateral Assignment of Rentals under the terms of which it assigned to Bluefin Mortgage Fund, LLC “all of the rents, issues and profits of the [the Property].”   Collateral Assignment of Rentals, p. 1. The Collateral Assignment of Rentals submitted into evidence by the plaintiff did not contain any description of any lease or lease terms on the Property.

The plaintiff further proved that the plaintiff purchased the note and mortgage of Phoenix Ventures, LLC from Bluefin Mortgage Fund, LLC and thereafter foreclosed on the mortgage of Phoenix Ventures, LLC. The plaintiff took title to the Property in January 2012 by deed from the foreclosure Committee and is the landlord as successor in interest to Phoenix Ventures, LLC. The defendant never made any payments of any kind to the plaintiff.

The First Count of the Revised Complaint alleges a lease between the defendant and Phoenix Ventures, LLC with a monthly rental of $1,800.   The plaintiff presented no evidence to support this allegation.   Therefore, although the defendant has paid no rent, the plaintiff is limited to the allegations of its complaint.   It has failed to introduce any evidence as to the rental amount alleged in the complaint and therefore, it cannot prevail on Count One.

Count Two of the Revised Complaint alleges that the defendant agreed to pay an unspecified monthly rent to Phoenix Ventures, LLC. Therefore, had the count further alleged that the defendant failed to pay any amount to the plaintiff, which was proved, then the plaintiff could prevail on this count.   However, Count Two did not contain such an allegation.   Rather, it alleged that the defendant failed to pay real property taxes, keep proper insurance on the Property, and failed to maintain the Property.   There was no proof that any agreement between Phoenix Ventures, LLC and the defendant required it to pay taxes or insurance.   Therefore, the plaintiff cannot prevail on Count Two.

Count Three of the Revised Complaint alleges that the lease between Phoenix Ventures, LLC and the defendant has terminated by lapse of time.   To prevail on a claim for lapse of time, the plaintiff must establish, by a fair preponderance of the evidence, the following essential elements:  1. The existence of an oral or written weekly, monthly or yearly rental agreement;  2. The Plaintiff is the lessor or owner of the subject premises;  3. The address of subject premises;  4. The date of the rental agreement that has terminated;  6. Notice to quit:  service date and termination date;  and 7. That the defendant is still in possession.  Conn. Gen.Stat. § 47a–23(a)(1)(A) et seq.

The plaintiff failed to introduce any lease between Phoenix Ventures, LLC and the defendant and, therefore, has not proved that the lease has terminated by lapse of time.   The plaintiff cannot prevail on Count Three.

Count Four of the Revised Complaint alleges that the plaintiff does not wish to continue the tenancy that existed between Phoenix Ventures, LLC and the defendant and that on May 3, 2012 the plaintiff caused a written Notice to Quit Possession to be served on the defendant to vacate the premises on or before May 8, 2012 and that the defendant has failed to do so.

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 plaintiff has proved the foregoing elements.   Before judgment can enter against the defendant, the court must consider the special defenses.   The First Special Defense alleges that the plaintiff commenced this action in violation of Connecticut General Statutes § 47a–20e.   That statute by its own terms applies to residential tenancies and this case pertains to a commercial tenancy.   The defendant presented no evidence to support any of its other special defenses.   Judgment for immediate possession of 33 Liberty Street, Chester, Connecticut, enters in favor of the plaintiff against the defendant on Count Four.

By the Court,

Aurigemma, J.

FOOTNOTES

FN1. The trial of this case was consolidated with the trial of Ginsberg & Ginsberg, LLC, Trustee v. Triad Publications, LLC, No. 18934..  FN1. The trial of this case was consolidated with the trial of Ginsberg & Ginsberg, LLC, Trustee v. Triad Publications, LLC, No. 18934.

Aurigemma, Julia L., J.