Robert E. Healey et al. v. Kenneth Brunelli (2013)

MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY

The plaintiffs brought this action in May 2013, to recover damages for the breach of a residential lease.   Now pending before the court is the plaintiffs' application for a prejudgment remedy as authorized by General Statutes § 52–278d and for an order requiring the defendant to disclose assets pursuant to General Statutes § 52–278n and Practice Book § 13–13.   All parties appeared and testified at an evidentiary hearing on the plaintiffs' application on October 29, 2013, and eight exhibits were introduced without objection.

A prejudgment remedy hearing is limited to determining whether there is probable cause to believe that a judgment of at least the amount sought by the application will be rendered in the plaintiff's favor.   Such a hearing “is not a full-scale trial on the merits.”  Chen v. Bernadel, 101 Conn.App. 658, 661–62 (2007).   Under § 52–278d(a), a prejudgment remedy shall be granted if, upon consideration of the facts before the court and taking into account any defenses, counterclaims, and setoffs, probable cause exists that judgment will be rendered in the applicant's favor.   Probable cause has been defined as a bona fide belief in the existence of facts essential under the law for the action and such as would lead a reasonable, prudent person to entertain such a belief.  Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996).   Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence.  J.E. Robert Co., Inc. v. Signature Properties, LLC, 309 Conn. 307, 339, 71 A.3d 492 (2013).   A trial court must make a probable cause determination as to both the validity of the plaintiff's claim and the amount of the remedy sought.  Id. The court may grant a prejudgment remedy in less than the amount requested, in which case it need only determine that there is probable cause to believe that a judgment in the lesser amount will be rendered.  Connecticut Light & Power Co. v. Gilmore, 89 Conn.App. 164, 174–76, 875 A.2d 546, cert. denied, 275 Conn. 906, 882 A.2d 681 (2005).

The court finds the following facts to have been established by credible evidence at the hearing:

In June 2010, the plaintiffs entered into a lease agreement with the defendant for the lease of a condominium unit at 1280 Asylum Avenue in Hartford.   The term of the lease ran from July 15, 2010, through June 30, 2011, and required the defendant to pay for the utilities used by the unit.   The lease contained a provision imposing a late charge of 5 percent for any payment that was more than ten days late and interest of 12 percent per year on any amount that was past due.   The defendant also gave the plaintiffs an additional $1,800 for the last month's rent and an $1,800 security deposit.

The lease contained a handwritten addendum, accepted by all the parties, allowing the tenant to extend the lease for an additional year at a rental rate of $1,900 if he was not in default and had not damaged the premises.   In 2011, the parties agreed in writing to extend the lease through July 2012, at a modified monthly rental rate of $1,850.   On June 30, 2012, they agreed in writing to a further extension of the lease for the year running from July 2012, through June 2013, at a monthly rental rate of $1,875.   Before the parties agreed to the extension, the defendant told the plaintiffs that he was concerned about possible layoffs at his job and suggested that a coworker of his might be willing to take over the lease for him if he were to lose his job.   The plaintiffs were willing to consider a substitute lessee, but no commitments were made on either side, and the defendant signed the lease committing to a full year's residency.

The defendant had two dogs when he first rented the apartment in 2010.   The plaintiffs were aware of the dogs and were willing to allow them in the condominium unit despite a “no pets” provision in the printed lease form.   Almost immediately after the defendant moved into the unit, however, other condominium residents accosted him about the dogs, and both the plaintiffs and the defendant became aware that the rules of the condominium board allowed only one small dog in the type of unit occupied by the defendant.   The plaintiff Robert Healey, however, was a member of the condominium board and persuaded the board to allow the defendant to keep both dogs there because he traveled out of state for a substantial portion of each month and took the dogs with him when he was gone.   Nevertheless, over the time he resided in the condominium unit, the defendant was accosted a number of times by other residents who were “hostile” to him because of his dogs.   He nevertheless renewed the lease in June 2012, for a full year.   He was subsequently laid off from his job in September 2012.

In November 2012, the defendant was later in paying his rent than usual.   The plaintiffs went to the unit to talk with the defendant about the rent and about a complaint they had received from the condominium board about a confrontation the defendant had with another resident over a dog.   The defendant was not there at the time.   The plaintiffs learned then for the first time that the coworker whom the defendant had proposed as a substitute lessee had actually been living in the unit since February 2012.   They were surprised but not unwilling to have the coworker remain there.   Both the defendant and the coworker appeared to believe, however, that other residents were hostile to the coworker's presence at the unit because the coworker was African American.   On December 1, 2012, the defendant sent Mr. Healey an email, stating that he considered the neighbors' complaint to be “hostile” and “harassment” and that he consequently wanted to vacate the property at the end of December unless Mr. Healey could assure him that the “harassment” would stop.

After further exchanges of emails, the plaintiffs engaged a realtor before the end of December to put the unit on the market to relet or to sell.   At the realtor's recommendation, they listed the unit for rent at $2,000 per month, $125 per month more than the defendant was paying under the lease then in effect.   The plaintiff testified credibly that he believed the $2,000 per month was a fair market rent.

In December 2012, the defendant refused to pay the rent, insisting that the plaintiffs use the $1,800 he had paid in 2010 for the last month's rent.   The plaintiffs reluctantly agreed but asked him to pay the $75 difference between the 2010 rent and the 2012 rent, which he did.   In January 2013, the defendant demanded that they use his security deposit to cover his rent obligation for that month.   They were reluctant to do so but eventually acceded to his demand, again with the request that he make up the $75 difference.   In February, the defendant paid them only $875 for rent.

The defendant testified that he had not stayed in the unit after December 1, 2012, but his personal property remained there, and his coworker continued to live there.   He continued to represent to the plaintiffs that he would pay the rent until another tenant was found.   The coworker moved out in late January or early February 2013, but the plaintiff's possessions remained in the apartment.   The coworker did not return his keys to the plaintiffs or respond to their voice mail messages asking about the status of the keys.

On March 3, 2013, the plaintiffs entered the unit to inspect it following a showing by the realtor.   They observed that the defendant had many obviously valuable possessions in the unit and were concerned that something might happen to them while the unit was unoccupied and being shown to strangers.   They removed three of the items for safekeeping.   Mr. Healey sent the defendant an email the same day, advising him of what they had done.   The defendant responded immediately that he regarded their entry into the apartment as an unwarranted intrusion and demanded that they return his possessions immediately or he would contact the police.   Mr. Healey responded immediately that they would return the items the same day, which was done.   The defendant nevertheless made a police report about the incident.   The police advised him that it was a civil matter.   The defendant then gave the plaintiffs written notice that he was terminating the lease as of March 31, 2013.   When the defendant next went to the unit and inspected his possessions, he found that nothing was missing.

The plaintiffs had some prospective tenants over the months but were ultimately unable to relet the unit.   They found a buyer for the unit and sold it at some time late in May 2013.

Legal Claims and Analysis

The plaintiffs brought this action as a breach of contract claim in late May 2013.   They seek a prejudgment attachment in the amount of $7,500 for damages, calculated on the basis of unpaid rent, late charges, interest, and certain unpaid utility bills.   The court finds that the plaintiffs have offered sufficient credible to establish probable cause that they have sustained at least $6,300 in damages, measured by unpaid rent for February, March, April, and half of May 2013, plus late charges and interest.   The evidence was inconclusive as to when in May 2013, the unit was sold.

The defendant has asserted as special defenses a claim that the plaintiffs did not act in good faith and failed to mitigate their damages as required by General Statutes § 47a–11c by marketing the unit at a higher rent than his lease required.   He also contends that he is entitled to an offset of one month's rent under General Statutes § 47a–18a because the plaintiffs entered the premises without his permission in March 2013, allegedly in violation of General Statutes § 47a–16(d).

The defendant's claim that the plaintiffs lacked good faith appears to be based in the fact that they offered the unit for rent at a higher rate than he was paying and that they in fact preferred to sell the unit rather than to relet it.   While the plaintiffs admitted that they wanted to sell the unit, Mr. Healey testified credibly that the plaintiffs offered it for rent or sale, at prices they believed were fair market prices based on a realtor's recommendation, and that they would have accepted a tenant if one could have been found.   Accordingly, the court concludes that the plaintiffs were making good faith efforts to find a new tenant or a buyer for the unit.

The defendant also claims that the plaintiffs failed to mitigate damages by failing to put it on the market immediately after he first informed the plaintiffs that he wanted out of the lease and by offering the unit for rent at a rate that was $125 higher than the rent required by his lease.   The burden of proving failure to use reasonable care to mitigate damages is on the defendant.  Lynch v. Granby Holdings, Inc., 37 Conn.App. 846, 850, 658 A.2d 592 (1995), citing Preston v. Keith, 217 Conn. 12, 20–21, 584 A.2d 439 (1991).   The court concludes that the defendant has not satisfied that burden at this time.

First, as to timing, the defendant first indicated that he was considering terminating his lease on December 1, 2012, and there were further exchanges between the parties before he definitely asserted his intention to leave.   The plaintiffs engaged a realtor before the end of December to market the premises.   The court does not find that to be an unreasonable delay in light of all the circumstances.

Second, the increase in rent is certainly a relevant factor in considering whether the plaintiffs properly mitigated their damages.  “ ‘Factors taken into consideration in determining if a landlord has acted reasonably include, but are not limited to:  the rental rate at which the landlord attempted to re-let the premises;  the marketing efforts used;  and the market rental rate for similar such units.’  “ Gateway Lauren, Inc. v. Thibodeau, Superior Court, judicial district of Hartford at Hartford, Housing Session, Docket No. CVH–7849 (Sept. 29, 2010), quoting Powell on Real Property, Vol. 2, Ch. 17, § 17.05 [2]. Whether a particular increase is reasonable depends upon numerous circumstances.   See Pan Handle Realty, LLC v. Olins, 140 Conn.App. 556, 569–71, 59 A.3d 842 (2013) (affirming trial court holding that plaintiffs had not failed to mitigate damages despite attempting to relet premises at higher rate because of costs they incurred in reletting and because the defendant had received a discounted rent based on his willingness to make a lump-sum payment).

Here, the plaintiffs testified that they set the rental price at the recommendation of a realtor and believed that it was a fair market price.   They ultimately sold the unit at less than their asking price.   Mr. Healey also testified credibly that they had not raised the defendant's rent to a fair market rate when they renewed his tenancy in 2011 and 2012 because they had valued him as a tenant and because he had always paid promptly up until the fall of 2012.   Although the defendant testified that he believed that the proposed rent of $2,000 was unreasonable, he did not provide any basis for that opinion, such as information about the then prevailing rates for comparable units.   Nor did he offer any evidence that the plaintiffs would have been able to secure another tenant before the end of May 2013, by offering the unit at the rental rate stated in his lease.   In addition, he did not finally terminate his lease and remove his possessions from the unit until the end of March 2013.   On the evidence presented at the prejudgment remedy hearing, therefore, the court is not persuaded that the plaintiffs acted unreasonably or failed to mitigate their damages by seeking a modest increase in rent.

The defendant also claims an offset based on his belief that the plaintiffs unlawfully entered his premises in March 2013.   He relies on General Statutes § 47a–16(d) and § 47a–18a in support of this claim.   Section § 47a–16(d) provides as follows:  “A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a–16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.”  Section 47a–18a provides:  “If a landlord makes an entry prohibited by section 47a–16 or 47a–16a, or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may recover actual damages not less than an amount equal to one month's rent and reasonable attorneys fees.”

The defendant claims that the plaintiffs' unauthorized entry in March 2013 constituted harassment.   He also claims that the plaintiffs harassed him by various communications in which they asked about his plans and when he would be paying the rent he had promised to pay.   The defendant, however, has not shown that the plaintiffs violated § 47a–16(d) by an unauthorized entry.   Section 47a–16(d) expressly refers excepts from its prohibition entries that are “permitted by section 47a–16a.”  Section 47a–16a provides as follows:  “Unless otherwise agreed, the tenant shall be required to notify the landlord of any anticipated extended absence from the premises and the landlord thereupon may enter the dwelling unit at reasonable times during such prolonged absence to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.”

The defendant testified that he had not occupied the premises since December 2012, and that his coworker had moved out by the beginning of February 2013.   Mr. Healey testified that the plaintiffs wanted to observe the condition of the premises and were concerned because one set of keys was unaccounted for.   Given the defendant's prolonged absence and the fact that no one was residing in the unit in March 2013, the plaintiffs were authorized under § 47a–16a to enter the premises so that they could inspect the premises.   They were not required to rely solely on the reports of their realtor, as the defendant contends.   Accordingly, the defendant has failed to show that the plaintiffs' entry into the unit in March 2013, was unlawful.

Nor has the defendant shown that the plaintiffs harassed him by sending occasional emails to determine what his intentions were with respect to the apartment.   To the contrary, the emails introduced into evidence were reasonable inquiries and demonstrated only the plaintiffs' concern to know what the defendant intended to do with respect to the unit and his unpaid rent obligations.

Conclusion

The court has considered all the evidence presented, including evidence not recited in this decision, and has considered and rejected all the defendant's claimed defenses, counterclaims and offsets in light of the applicable law.   The court finds that the plaintiffs have met their burden of showing probable cause that they will recover at least $6,300, and their application for a prejudgment remedy is granted for $6,300.   The plaintiffs have also moved for an order requiring the defendant to disclose his assets.   That motion is also granted.

November 4, 2013

BY THE COURT,

Sheila A. Huddleston, Judge

Huddleston, Sheila A., J.