LP v. Craig Hicks (2013)

MEMORANDUM OF DECISION ON MOTION TO OPEN

This is a summary process action commenced by the plaintiff, Dobbs Crossing Associates LP, against the defendant, Craig Hicks, on November 9, 2012.   Pending before the court is the defendant's motion to open a default judgment entered against him on November 23, 2012 (Kwak, J.).   For the reasons stated below, the motion is granted.

History of the Proceedings

It is undisputed that the plaintiff owns the premises at 1170 Hartford Turnpike, Apt. F–61, in Vernon, Connecticut, and the defendant is the lessee of that apartment.   It is also undisputed that the property at issue is a federally assisted Project–Based Section 8—New Construction property, which operates under regulations promulgated by the United States Department of Housing and Urban Development (“HUD”).

In the first count of the complaint, the plaintiff alleges that the defendant violated his lease by causing water damages to his unit and other units in the complex, and further alleges that the defendant has paid only $1,000.00 of $4,037.45 in damages claimed by the plaintiff for that water damage.   The complaint further alleges that the defendant was served with a notice of lease violation on August 31, 2012 and with a notice to quit on October 12, 2012.   Copies of a pretermination notice of lease violation and the notice to quit are attached to the complaint.¹  No copy of the lease at issue is attached to the complaint.

The defendant was defaulted for failure to appear on November 23, 2012.   The defendant moved to open the judgment pursuant to Practice Book § 17–43 on November 30, 2012, alleging that because of severe mental illness he had not understood the significance of the papers he received in this action.   On January 25, 2013, the parties appeared and presented a stipulated judgment to the court (Mullarkey, J.).   The court rejected the stipulated judgment after canvassing the defendant and concluding that the defendant did not understand the stipulation.   Upon motion of the defendant's counsel, the court then appointed a guardian ad litem for the defendant.

On April 12, 2013, a hearing was held on the defendant's motion to open.   The defendant testified that he has been diagnosed with schizophrenia, that he has “racing thoughts,” and that he has had other health problems in the past.   He admitted that he had been given papers that told him to go to court, but testified that he did not believe that they were “true papers” because the water damage from an overflowing tub had happened “years ago” and he believed that he had taken care of the damages.

The defendant also presented the testimony of Eileen Collins, a case manager for Community Health Resources, an agency that provides case management services for psychiatric patients.   She testified that she assists the defendant with paying his bills, taking his medications, and taking him to psychiatric appointments.   She further testified that when he told her he was being evicted, she talked with the plaintiff's management and believed that the issues had been worked out.   Right around Thanksgiving of 2012, however, the defendant received the judgment of eviction.   After seeing the judgment, Ms. Collins helped the defendant file the motion to open the judgment and then to obtain counsel.

At the hearing on April 12, 2012, the defendant's counsel argued that the defendant had a valid legal defense because the termination notice sent by the plaintiff did not contain a notice required by a HUD handbook.   The parties were ordered to submit briefs on the legal issue.   The defendant filed his brief on May 10, 2013, and the plaintiff filed its brief on May 13, 2013.

Discussion

Practice Book § 17–43(a) authorizes the court to set aside a judgment of default upon a written motion of the defaulted party “showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment ․ and that the ․ defendant was prevented by mistake, accident or other reasonable cause from ․ appearing to make the same.”   In other words, “[t]here must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.”  (Internal quotation marks omitted.)  Berzins v. Berzins, 105 Conn.App. 648, 652, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008).

A motion to open and vacate a judgment is addressed to the trial court's discretion.  Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).   Because of the important consideration for finality of judgments, however, “a judgment should not be opened without a strong and compelling reason ․ The motion should be granted only when there appears cause for which the court acting reasonably would feel bound in duty so to do.”  (Citations omitted;  internal quotation marks omitted.)  Martin v. Martin, 99 Conn.App. 145, 156, 913 A.2d 451 (2007).

This summary process action is governed by General Statutes § 47a–23.   “[T]he remedy of summary process is available only where there is a lease and it has been terminated.   The purpose of the action is to enable the landlord upon such termination to recover possession from the tenant ․ Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed ․ It follows that, before a landlord may pursue its statutory remedy of summary process under § 47a–23, the landlord must prove its compliance with all the applicable preconditions set by state and federal law for the termination of a lease.”  (Citations and internal quotation marks omitted.)  Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987).

HUD has promulgated administrative regulations to effectuate the intent of Congress in implementing Section 8 housing programs.   See Winn Management Co. v. Firment, Superior Court, judicial district of New Haven, Docket No. CV 97–0651132 (October 16, 1997, Levin, J.).   One such regulation is 24 C.F.R. § 880.607(c)(1), which governs a landlord's notice of termination of tenancy.   HUD has also promulgated various manuals, circulars, handbooks, and other publications to provide guidance as to the responsibilities of landlords and tenants as to Section 8 housing.   One such handbook is HUD Occupancy Handbook 4350.3, which concerns, among other programs, Section 8 New Construction projects.   Section 8–13B of that handbook is captioned “Procedures for Terminating Tenancy and Providing Notice.”   It states, at the outset, that “[t]he following procedures are the minimum standards required by HUD.” Section 8–13B.2.b.(3) requires that a landlord must provide written notice to “[a]dvise that persons with disabilities have the right to request reasonable accommodations to participate in the hearing process.”   No such notice was included in the pretermination notice of lease violation attached to the complaint in this case.

The defendant argues that his motion to open should be granted because the plaintiff's termination notice failed to comply with the HUD handbook's requirement that a landlord advise the tenant that persons with disabilities have the right to request reasonable accommodations to participate in the hearing process.   The defendant further argues that the failure to provide this notice deprives the court of jurisdiction or, in the alternative, requires judgment for the defendant.

Citing Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 275 (1969), the plaintiff first argues that the HUD handbook is merely advisory, not mandatory.   In Thorpe, the Supreme Court held that a HUD circular, issued to update a HUD Low–Rent Management Manual, imposed mandatory requirements.   In concluding that the Low–Rent Management Manual contained mandatory requirements, the Supreme Court relied on HUD's statements in the manual at issue that its requirements “are the minimum considered consistent with fulfilling Federal Responsibilities.”  393 U.S. at 275.   The Court observed, in dicta, that the manual at issue indicated that handbooks and booklets issued by HUD contain mere “instructions,” “technical suggestions,” and “items for consideration.”   Since Thorpe, many courts have held that HUD handbooks are merely advisory.   See, e.g., Fairmount Heights Associates, LP v. Greystone Servicing Corp., United States District Court, Docket No. 3:06 cv1206 (WWE) (D.Conn. August 29, 2007), 2007 WL 2491907;  see also Burroughs v. Hills, 741 F.2d 1525, 1529 (7th Cir.1984), cert. denied, 471 U.S. 1099 (1985) (observing that courts have rejected efforts to find an implied cause of action pursuant to HUD handbooks).

Some courts, however, have held that the provisions of a HUD handbook regarding termination of a tenancy are mandatory and enforceable upon the landlord.   See, e.g., Impac Associates Redevelopment Co. v. Robinson, 9 Misc.3d 1065, 1067, 805 N.Y.S.2d 500 (1983).   Moreover, even courts that have viewed HUD handbooks as advisory have accorded them substantial weight as an official interpretation of statutes or regulations when the handbook at issue is not in conflict with a statute or regulation.  Burroughs v. Hills, supra, 741 F.2d 1529;  see also Housing Management, LLC v. Schifferling, Superior Court, judicial district of Hartford, Housing Session, Docket No. 158024 (March 20, 2013).   At the hearing on the motion to open, the defendant's counsel argued that the handbook provision at issue here does not conflict with the statutes and regulations but serves a gap-filling function.

The plaintiff's second argument in response to the defendant's claim is that only select portions of the handbook are mandatory, and that those portions were made mandatory by their incorporation in a HUD model lease that was used by the parties here.   It contends that the HUD model lease expressly obligates the plaintiff to comply with HUD handbooks as to certain provisions, such as tenant assistance payments, eligibility, and penalties that can be imposed for a tenant's failure to comply with recertification obligations, but does not obligate the plaintiff to comply with the HUD handbook's provision regarding the termination of a tenancy.

While the plaintiff's argument with respect to the significance of the lease may ultimately be persuasive, it is not properly before the court at this time.   No copy of the lease was attached to the complaint, nor was a copy offered into evidence at the hearing on the motion to open.   Nor did the plaintiff attempt to reconcile the language of HUD Handbook 4350.3, § 8–13B, declaring the provisions of that section to be the “minimum standards required by HUD” for the termination of a tenancy, with the plaintiff's claim that the model lease provided by HUD does not incorporate such “minimum standards.”

The court concludes that the defendant has raised a colorable defense regarding the propriety of the pretermination notice that warrants further consideration at a trial on the merits of the plaintiff's case and the defendant's defense.   At such trial, the plaintiff may offer a copy of the lease into evidence and make any arguments it may have regarding the interplay of the federal statutes, regulations, manuals, handbooks, and the lease at issue.

The court further finds that the defendant has established that he was prevented from presenting his defense by mistake, accident or other reasonable cause.   The court had the opportunity to observe the defendant when he testified at the hearing.   It was evident that the defendant had difficulty understanding the court proceedings and staying focused on the topics under examination.   Moreover, the court finds credible the testimony of the defendant's case manager, Eileen Collins, who said that she had spoken with the plaintiff's management after the defendant received the court papers, and she believed that she had reached a resolution of the matter with the management that would result in the management not pursuing an eviction.   Finally, the court notes that the pretermination notice sent to the defendant was inconsistent in describing the defendant's alleged lease violations, stating in one sentence that the defendant had failed to pay $506.19 in damages and in a subsequent sentence that the defendant owed $3,631.26 in addition to the $506.19 the defendant had previously paid.   The notice to quit and the complaint stated still different amounts, alleging that the defendant owed $4,037.45 in damages and had paid only $1000.00.   The inconsistencies within the pretermination notice and the inconsistencies between that notice and the notice to quit may have contributed to the defendant's confusion and his belief that he had paid the damages required by the plaintiff.   Accordingly, the court finds reasonable cause to open the judgment of default.

BY THE COURT,

HUDDLESTON, J.

FOOTNOTES

FN1. The pretermination notice of lease violation attached to the complaint states that the defendant was required under the lease to pay for the damages he caused to the apartment.   It further states, inconsistently, that the defendant has failed to pay damages in the amount of $506.19 and that he owes $3,631.26 for the damages in addition to the $506.19 he had previously paid.   The notice to quit and the complaint each allege that the defendant owes $4,037.45 in damages and has paid only $1,000.00..  FN1. The pretermination notice of lease violation attached to the complaint states that the defendant was required under the lease to pay for the damages he caused to the apartment.   It further states, inconsistently, that the defendant has failed to pay damages in the amount of $506.19 and that he owes $3,631.26 for the damages in addition to the $506.19 he had previously paid.   The notice to quit and the complaint each allege that the defendant owes $4,037.45 in damages and has paid only $1,000.00.

Huddleston, Sheila A., J.