Dina Hill v. Khudija Hill Gibbs (2013)

MEMORANDUM OF DECISION

The plaintiff, Dina Hill (Dina), commenced this action on July 10, 2013 to recover possession of the premises known as 241 Kneeland Road, Back Apt., New Haven in a single count based on non-payment of rent.   The defendant, Rhudija Hill Gibbs (Khudija), filed an answer together with special defenses, asserting alternatively that all rent has been paid, that no rent is due because the defendant holds an equitable, and thus a possessory, interest in the premises and finally that the court should decline to grant equitable relief to the plaintiff because she comes to the court with unclean hands.   The trial of this matter between these sisters-in-law commenced on August 1, 2013 with both parties represented by counsel.

FACTS

The court makes the following findings of fact.   Dina acquired sole legal title to 241 Kneeland Road, New Haven, a four-family dwelling, (the “premises”) by virtue of a warranty deed dated February 3, 2011.   On that same date Dina and purportedly Khudija, each outside the presence of the other, signed a written agreement which provided that the two women would acquire the premises together but that legal title would be held by Dina. The agreement required that each would make an initial capital contribution in an amount reflected in an attached schedule and that the ownership proportion of each of them would be equal to the respective capital contribution of each.   The agreement further provided that each would contribute equally to all carrying costs, including mortgage payments, taxes, insurance, maintenance and repairs.   Any failure to so contribute would result in a corresponding negative adjustment to that party's respective equitable interest.   No schedule setting forth the relative capital contribution of each was appended to the agreement.   Curiously Khudija's name is not only misspelled on the agreement as “Khadijah” but also clearly signed as such.   The spelling as well as the style of the signature on the agreement is not consistent with other signatures of Khudija in other exhibits such as a copy of a check, nor is it consistent with her signature on her pro se appearance.   When questioned by opposing counsel on cross examination about the discrepancy Khudija replied, “I can sign my name any way I want.”   Nonetheless she insisted her signature on the agreement was authentic.

Both women professed relative ignorance as to the terms of the agreement at the time each signed it.   The agreement was drafted by an attorney at the direction of one Musa Hill, the brother of Khudija and now husband of Dina. At the time the agreement was signed, and Dina acquired title to the premises, she was engaged to be married to Musa. Dina testified that she signed the agreement because Musa threatened that he would neither give her the money for the closing, $13,000, nor marry her unless she signed that agreement.   Dina testified that Musa did not want the property in his name because he owed child support.   Khudija admitted that she never made any capital contribution at the time of the closing nor did she ever make any subsequent contribution to the carrying costs of the property.   Khudija testified that Musa had the two women sign the agreement because he did not trust his bride to be.   The court finds the testimony of each of these two women truthful on these specific issues.

Musa chose not to avail himself as a witness for the trial, instead absenting himself outside the jurisdiction of this court.   Although both women admitted that he was keeping up a running dialogue with each via text messaging during the course of the trial, apparently giving each conflicting information as to his future intentions.

After the closing Dina moved into one of the dwelling units with her husband, Musa. They were later joined by Khudija who moved into their apartment in December 2012.   On March 1, 2013 Khudija moved into a vacant apartment in the rear of the premises and commenced paying rent to Dina of $750 per month.   She apparently paid the rent without any issues for the months of March, April and May. Khudija delivered a rent check dated May 31, 2013 to Dina for June's rent in the amount of $750 but subsequently sent her a text message on June 3, 2013 advising her not to cash it, that a stop payment had been placed on the check and that she, Khudija, intended to move out.   Khudija never left and on July 3, 2013 Dina had her served with a notice to quit based on non-payment of rent.   Khudija never tendered any further payments to Dina in the nature of rent or use and occupancy.

The court received into evidence five purported rent receipts.   Copies of rent receipts from a form printed receipt book for March and April were offered by Dina. These bear the signature of Dina and are consecutively numbered from the same receipt book.   A rent receipt from a form printed receipt book for May apparently signed by Musa was offered by Khudija.   It is notably from a different style receipt book and bearing a different number sequence.   Khudija professed complete absence of memory as to whether she paid the May rent to Musa or Dina and as to whether she paid in cash or check.   Khudija offered two additional purported rent receipts for the months of June and July. These “receipts” are not from a form printed receipt book.   They are mere scraps of paper reciting, “rent receipt $750.00 paid,” dated respectively June 1, 2013 and July 1, 2013 and signed by Musa Hill. Khudija asserted that she paid the rent to Musa in cash on these dates.   She offered no explanation as to why she would have tendered the June rent in full by check to Dina on May 31, 2013 and then paid an additional June rent in cash to Musa the following day.  “[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 Assn., Inc., 66 Conn.App. 858, 861, 786 A.2d 436 (2001).   This court finds the testimony of Khudija that she paid the June and July rent in cash to Musa simply not credible.   Further the court finds the two handwritten “receipts” for the June and July rent to be a complete fabrication whether they were concocted by Khudija alone or in fact given to her by Musa in furtherance of a fraud.

Dina testified that at no time during the course of her ownership of the premises has Musa been authorized to collect rents on her behalf, that she has exclusively managed both the collection of rent and payment of bills and that the practice between her and Khudija was for Khudija to pay the rent directly to her usually in the form of a check.   The court finds Dina's testimony to be credible and truthful.

Further factual findings are set forth below when necessary to resolve the parties' specific claims.

DISCUSSION

The defendant filed six special defenses but at the conclusion of the trial argued to the court that based on the evidence she was essentially setting forth three defenses, namely that all rent has been paid, that the court should decline to grant equitable relief to the plaintiff because she comes to the court with unclean hands and finally that no rent is due because the defendant holds an equitable, and thus a possessory, interest in the premises.

I

As to the first of these defenses the court finds that rent has not been paid for June and July and that the elements for the plaintiff's cause of action based on non-payment of rent have been proven.   There is no evidence to suggest that Musa was acting with actual or apparent authority on behalf of Dina, or that he, in fact, ever received any money from Khudija as rent for the months in question.

II

As to the defense of unclean hands, “[t]he doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ․ Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.”  (Internal quotation marks omitted.)  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).   “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation.”  (Internal quotation marks omitted.)  Ridgefield v. Eppoliti Reality Co., Inc., 71 Conn.App. 321, 335, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).  “Wilful misconduct requires intentional conduct with the design to injure either actually entertained or to be implied from the conduct and circumstances ․ Not only the action producing the injury but the resulting injury almost must be intentional.”  (Internal quotation marks omitted.)   TD Banknorth, N.A. v. Genesis Properties, LLC, Superior Court, judicial district of Danbury, Docket No. 085004597 (January 15, 2009, Sommer, J.);   see also Banknorth, N.A. v. Blackrock Realty, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 6002566 (April 14, 2010, Hartmere, J.).   The court finds the defendant's reliance on the doctrine unavailing and the defense entirely without merit.

III

As to the defendant's claims of an equitable interest in the premises, the defendant's pleadings are not entirely clear.   The defendant asserts both a special defense that the court lacks subject matter jurisdiction because the “[written] agreement [between the parties] was not referenced in the complaint” and a special defense that “[the] Plaintiff should be estopped from proceeding with eviction until the Defendant has been equitably compensated related to the parties agreement related to the equity interest in the subject premises as outlined in February 3, 2011 agreement.”   The court finds no merit to the assertion that the court lacks subject matter jurisdiction.

As to the written agreement between the parties and whether it gives rise to any enforceable rights, the court must look to the document itself.  “The rules governing contract formation are well settled.   To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ to constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to be based on an identical understanding by the parties.”  Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).   Mutual assent presents a question of fact.  M.J. Daly & Sons, Inc. v. West Haven, 66 Conn.App. 41, 48, 783 A.2d 1138, cert. denied, 258 Conn. 944, 786 A.2d 430 (2001).   The written agreement in question here lacks the referenced schedule which sets forth the relative capital contributions and hence the interests of each of the parties.   The court finds the written agreement to be fatally defective and unenforceable.

As to whether the defendant may have equitable rights outside of the written agreement, claims for constructive trust and/or resulting trust have been recognized as proper defenses and claims in summary process actions.  Filosi v. Hawkins, 1 Conn.App. 634, 638–40, 474 A.2d 1261 (1984).  “A resulting trust arises by operation of law at the time of a conveyance when the purchase money for the property is paid by one party and the legal title is taken in the name of another ․ It arises to enforce presumed or inferred intent usually in the absence of any element of fraud.”  Spatola v. Spatola, 4 Conn.App. 79, 82, 492 A.2d 518 (1985).   In the instant case the defendant contributed neither to the purchase money nor to the subsequent carrying costs for the premises.  “A constructive trust arises contrary to intention and in invitum, against one or who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and in good conscience, hold and enjoy.”  Spatola v. Spatola, supra, 4 Conn.App. 81;  Zack v. Guzauskas, supra, 171 Conn. 103, 368 A.2d 193 (1976).   There is no evidence of fraud, duress or abuse of confidence or any wrong doing on the part of the plaintiff or any other evidence upon which the court could reason that she ought not, in equity and in good conscience, hold and enjoy the premises.   For these reasons the defendant's claims of equitable ownership and equitable defenses are not proven.

CONCLUSION

For the foregoing reasons and on the basis of the court's factual findings, the court finds the allegations of the complaint proven and the allegations of any of the defendant's several special defenses not proven.   Judgment for possession of the premises is entered in favor of the plaintiff, Dina Hill, and against the defendant, Khudija Hill Gibbs, based on non-payment of rent.   The court further finds the arrearage through August 31, 2013 to be $2,250.

Michael G. Maronich, Judge

Maronich, Michael G., J.