Commission on Human Rights and Opportunities v. Alyssa Peterson (2013)

MEMORANDUM OF DECISION

This matter arises from a complaint filed by the plaintiff, Commission on Human Rights and Opportunities, that the defendant, Alyssa Peterson, violated C.G.S. § 46a–64c et seq. by discriminating against Ann and John Beaulieu (“the Beaulieus”) based upon their source of income.   The Beaulieus have intervened as plaintiffs in this matter and seek compensatory damages pursuant to § 46a–86(c) and an award of punitive damages pursuant to § 46a–89(b)(2).   The plaintiff and the Beaulieus are represented by counsel.   The defendant represents herself.

I. Obligation to Self–Represented Party

The court is well aware of its obligation to allow the defendant, as a self-represented party, some latitude.   The court has tried to do this throughout these proceedings.   However, “the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law ․ Self-represented parties are not afforded a lesser standard of compliance, and although we are solicitous of the rights of pro se litigants ․ such litigant is bound by the same rules ․ and procedure as those qualified to practice law.”  (Citations Omitted;  internal quotation marks omitted.)  In Re Emile L., 126 Conn.App. 283 n.3 (2011).   In this case, defendant has consistently alleged at various places in the pleadings and in open court that she has a defense to this action, she has never taken advantage of the opportunities afforded her to present that defense in a way that is procedurally proper.   The procedural history will be set forth in some detail, if only to demonstrate the defendant was provided with many opportunities to file an answer denying the plaintiff's allegations and to have a trial at which the plaintiff's allegations could be tested.

II. Procedural History

This case was filed with the court on August 3, 2010.   The defendant filed her appearance on August 24, 2010 and immediately filed a motion to extend the time to plead by 45 days.   The plaintiff filed an objection to the motion for extension and the defendant filed an objection to the objection.   The plaintiff then filed a motion to strike the objection to the objection which was denied by the court on October 25, 2010.

On October 19, 2010 the defendant filed a motion to dismiss the complaint which sets forth the basic nature of her defense that any disagreements with the Beaulieus arose because the Beaulieus were late with their rent and created fraudulent excuses, not because of the source of their income.   On November 30, 2010, the court denied the motion to dismiss.   The defendant chose not to file an answer at this point and set forth special defenses.   Instead, on December 16, 2010 the defendant filed a request to revise the complaint which was objected to on January 5, 2011.   The court sustained the objection on April 4, 2011.   Again, the defendant chose not to file an answer.

On April 29, 2011 the plaintiff filed a motion for default for failure to plead which was granted by the clerk's office on May 6, 2011 in accordance with Practice Book § 17–32(a).   Rather than simply filing an answer to the complaint, as she had the right to do pursuant to Practice Book § 17–32(b), the defendant moved to open the default.   Although there appears to be no action on this motion, the defendant also filed a motion to strike the complaint which the plaintiff objected to on substantive grounds, not because a default had already been granted.   The court cannot explain why the plaintiffs chose to overlook the default.   On August 5, 2011 the court denied the motion to strike.   Again, the defendant failed to file an answer.

On September 7, 2011 the plaintiff again moved for default for failure to plead.   On September 14, 2011 the clerk's office again granted the plaintiffs' motion for default for failure to plead.   At this point the defendant still had the right to file an answer but failed to do so.   On November 6, 2011, the plaintiffs moved for a hearing in damages to obtain judgment.   This eliminated the defendant's right to open the default simply by filing an answer.   See Practice Book § 17–32(b).

On January 13, 2012 the defendant moved to open the default.   On March 16, 2012 the plaintiffs objected to the motion to open.   On March 23, 2012 the court sustained the plaintiff's objection to the motion to open the default.   On April 16, 2012 the defendant moved to reargue the court's sustaining of the plaintiff's objection to the motion to open.   The plaintiff filed an objection on May 7, 2012.   The court permitted reargument which took place on May 14, 2012.   After reargument, the court did not open the default.

At this point, the defendant had been defaulted without the possibility of filing an answer.   But, even at this late date, the defendant would have been able to present her defense if she had followed the procedure set forth in Practice Book § 17–34 to 17–40 to give timely notice of an intention to contradict the allegations of the complaint.  Practice Book § 17–34 allows the defendant, even after default, to present evidence challenging the allegations of the complaint if proper notice is given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict.   See Whitaker v. Taylor, 99 Conn.App. 719, 726–27 (2007).   In the event the defendant succeeds in contesting liability, the plaintiff would be entitled to a nominal damages award only.  Cardona v. Valentin, 160 Conn. 18, 26 (1970).   But, as with her similar failures to file an answer in nearly 18 months, the defendant did not take advantage of her rights.

On May 23, 2013 the plaintiff presented evidence at the hearing in damages scheduled for that day at 10:00 A.M. Earlier in the morning the defendant called the clerk's office to report that she would be late coming to court and that she would be there by 11:00 A.M. Despite the fact that the plaintiffs and their attorneys were in court ready to start at 10:00 A.M., the court decided to wait for the defendant to arrive.   Sometime before 11:15 A.M. the defendant called the clerk's office to say that she would not be in court until sometime between 1:00 P.M. and 2:00 P.M. The court then proceeded at 11:15 A.M. with the hearing in damages without waiting any further for the defendant.   The plaintiffs both testified in some detail concerning their damages.

Despite the fact that the defendant had not shown up to participate in the hearing, the court gave both parties the right to file briefs on or before July 12, 2013.   The plaintiffs filed their briefs on July 9, 2013.   Without objection, the court extended the time for the defendant to file her brief to August 19, 2013.   On August 20, 2013, rather than filing her brief, the defendant filed a Motion to Stay Proceedings which asks the court not to issue a judgment “until the Court can take official judicial notice of the contents of the court's file as well as state agency file # 1050037 maintained by the plaintiff, Commission on Human Rights and Opportunities, and accessed by the Defendant pursuant to state Freedom of Information Act statutes § 1–210.”   The motion then continues for ten pages and several attachments to argue the issues to be considered by the court in entering judgment following the hearing in damages.   The court deems this motion for stay to be the defendant's brief.   When considering the pleadings from a self-represented party, the court “should not focus on technical defects, but should afford a broad, realistic construction of the pleading under review.”  (Citations omitted.)  Coleman v. Commissioner of Correction, 137 Conn.App. 51 n.1, (2012).   The court has weighed the evidence concerning damages presented at the hearing in damages and has considered the arguments made in both briefs.

III. Application of the Law at Hearing in Damages

The court's function at a hearing in damages is to assess and award damages.¹  Because the defendant has been defaulted for failure to plead, all allegations in the plaintiffs' complaint as to the defendant's liability are deemed true.  “A default admits the material facts that constitute a cause of action and entry of default, when appropriately made, conclusively determines the liability of a defendant ․ Following the entry of a default, all that remains is for the plaintiff to prove the amount of damages to which it is entitled.   At a minimum, the plaintiff in such instances is entitled to nominal damages.”  (Citations omitted;  internal quotation marks omitted.)   Argentinis v. Fortuna, 134 Conn.App. 538, 545–46 (2012).

Because the entry of a default conclusively determines the liability of the defendant, the plaintiff is not obligated to prove the allegations of the complaint except as to the damages.  Bank of New York v. National Funding, 97 Conn.App. 133, 138–39, cert. denied, 280 Conn. 925 (2006).   This is especially true as to the key issue in the case:  what was the cause of the defendant's treatment of the Beaulieus?   The court is precluded from considering this issue.   By failing to present a defense in a procedurally proper way, the defendant forfeited the right to claim that her treatment of the Beaulieus was caused by late payments and fraudulent excuses.   The court is obligated to proceed upon a consideration of damages based upon a conclusive determination that the defendant's treatment of the Beaulieus was caused by discrimination arising from the Beaulieus source of income.

The burden of proof for an award of more than nominal damages is preponderance of the evidence.  Whitaker v. Taylor, 99 Conn.App. 719, 734–35 (2007).

IV. Facts Found at Hearing in Damages

Had the defendant elected to take one of the many opportunities to present her defense, the court's findings of fact might have been different.   But, the court must find the facts based upon the evidence actually presented at the hearing in damages.

The Beaulieus were tenants in an apartment in the defendant's property in Torrington on a lease which ran from September 1, 2008 to August 31, 2009.   They had lived in this apartment for some previous time but this was when Mrs. Beaulieu was working and not in need of rental assistance.   As of September 1, 2008 the Beaulieus were both physically disabled and began to receive Section 8 assistance with their rent.   On or about March 23, 2009, the defendant sent the Beaulieus a letter in which she accused the Beaulieus of being late with their rent and that their excuses were a “scam” and supported by “faked” evidence.   She stated that:  “I still don't understand how you evolved from what seemed to be two decent and hard-working parents.   Perhaps what is most tragic, is that your penchant for exaggerating, lying or scamming your way through life via living off others, government benefits or lawsuit proceeds, has now trickled down and ‘infected’ the next generation.   That is truly a shame.”   The defendant offered to allow the Beaulieus to terminate their lease at any time with 30 days notice and told the Beaulieus not to contact her directly about anything.

The Beaulieus both testified that the defendant's statements about being “scammers” caused them great emotional pain and upset.   However, they continued to live in the defendant's apartment despite the defendant's offer to let them leave and despite the stress they felt on a daily basis.   Sometime between March 23, 2009 and June 20, 2009 an inspector from HUD came to inspect the property.   The inspector checked the apartment and went into the basement where the tenants had installed their washer and dryer and had stored some other personal property.   Apparently as a result of that inspection, HUD notified the defendant of six violations of HUD regulations and ordered her to correct them.

On or about June 20, 2009, the defendant came to the premises and began removing the Beaulieus' personal property from the basement.   She loudly demanded that the Beaulieus remove the washer and dryer and other property of theirs from the basement and gave them a letter that stated that, because they had “allowed an inspector to trespass into an area without notice to me or permission by me,” the Beaulieus had lost their privilege to use the basement.   The defendant ordered them to remove their washer and dryer from the basement immediately.   The defendant called Mrs. Beaulieu “one sick bitch” in front of her family and other tenants.   The Beaulieus felt embarrassed, hurt and afraid.   Soon thereafter, the defendant gave written notice to the other tenants in this and an adjoining building that the Beaulieus had lost all of their rights to the basement but that all the other tenants could continue to use the basement.   The defendant also informed all the other tenants that the Beaulieus were receiving rental assistance.   This was extremely embarrassing for the Beaulieus.

Also, as of June 20, 2009 the defendant cut off any heat to the Beaulieus' apartment.   This continued until the Beaulieus left the apartment on August 1, 2009.   Although this would not seem to be a problem in June and July, the Beaulieus claimed that their physical conditions required them to have heat even during the hottest days of the year.   The Beaulieus rented a new apartment in Torrington for a three-year term at monthly rent of $750, $150 more per month than they were paying the defendant.   They paid a $1,000 security deposit and lost their Section 8 assistance, although there was no credible evidence of the reason for this.   They left because of the stressful conditions created by the defendant and because the defendant had made it clear that their lease would not be renewed when it expired on August 31, 2009.

V. Standard for Damages

Pursuant to C.G.S. § 46a–64c, an aggrieved plaintiff is entitled to both compensatory damages including but not limited to expenses incurred in obtaining alternate housing, and other costs actually incurred as a result of discriminatory rental practices as well as punitive damages including reasonable attorneys fees not to exceed $50,000.   The Beaulieus seek to recover compensatory damages for emotional distress.   Damages that may be awarded under § 46a–86(c) include damages for emotional distress.   Fulk v. Lee, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 970063572 (February 7, 2002) [31 Conn. L. Rptr. 375];  Commission on Human Rights and Opportunities v. Sullivan Associates, Superior Court, judicial district of New Haven, Docket No. 944031061 (April 28, 2011).

VI. Conclusions and Award

The Beaulieus suffered emotional distress caused by the three letters referred to above, the disposal of their possessions and the defendant's creation of an angry scene at the apartment on June 20, 2009.   Significant damages are appropriate for these non-economic losses but nowhere near the plaintiffs' claim of $40,000.   The court will award the sum of $10,000 to compensate the Beaulieus for these damages.

The Beaulieus also claim compensatory damages for the increase in rent that they had to pay at their new apartment.   They argue that the change in apartments caused them to lose their Section 8 housing assistance of $462 per month.   Therefore, they claim to have lost $10,368 over a three-year period plus a $1,000 security deposit.   The court cannot accept the plaintiffs' analysis.   First, the Beaulieus lease with the defendant only had one month to run at the time that they were forced to leave by the stressful conditions created by the defendant as well as by the knowledge that their lease was expiring in one month.   It would be speculation to conclude that the Beaulieus would have been able to negotiate a new lease.   Second, even if the Beaulieus had been permitted to continue to rent from the defendant, the amount of the rent is speculative.   The attempt to claim three years of lost rent in light of these facts is simply not appropriate.   Third, there was no credible evidence about the reason why the Beaulieus lost their Section 8 housing assistance.   Finally, the security deposit paid by the Beaulieus at the time they rented the new apartment is not an item of damage because they will receive it back when their lease ends.

Next, the plaintiffs request an award of punitive damages pursuant to C.G.S. § 46a–89(b)(2)(c).  They point out various ways in which the defendant acted with reckless indifference to rights and feelings of the Beaulieus.   The court agrees that punitive damages are appropriate.   The court will award $5,000 for this element.

Finally, the Beaulieus request that the court award a reasonable sum for attorneys fees.   The Beaulieus were represented by the Connecticut Fair Housing Center and by the firm of Axinn, Veltrop & Harkrider.   They have submitted fee affidavits for a total of $46,538.   The court views these affidavits as grossly excessive in light of all of the factors which can be considered when awarding fees in a case such as this.   The court finds that the sum of $10,000 is a fair and reasonable amount to award for attorneys fees.

For the reasons set forth above, the court enters judgment in favor of the plaintiffs and against the defendant in the total sum of $25,000.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. Practice Book Section 17–34(a) provides:  “In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.”   The defendant did not give any notice of her intention to contradict any matter at the hearing in damages, nor did she give any notice of her intention to deny the plaintiffs' right to damages or to prove any defense..  FN1. Practice Book Section 17–34(a) provides:  “In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.”   The defendant did not give any notice of her intention to contradict any matter at the hearing in damages, nor did she give any notice of her intention to deny the plaintiffs' right to damages or to prove any defense.

Pickard, John W., J.