Hai Wen v. Chris Polen et al. (2014)

MEMORANDUM OF DECISION

Hai Wen sued Chris Polen, a John Doe and a Jane Doe later identified as Alexa Polen under Chapter 832 of the General Statutes for a summary process eviction from 330 Prospect Street, 2nd Floor in Norwich, Connecticut.   Wen sought to evict the Polens and the only other occupants which appear to be their minor children for failing to pay rent and for refusing to leave after being served a notice to quit under General Statutes § 47a–23.   Both Polens were present for trial.   They claimed they paid or tendered the monthly $950 in rent, and that no rent was due under General Statutes § 47a–4a because Wen did not keep the property up to the standards required in General Statutes § 47a–7.   Judgment was entered for Wen in a prior case but an execution failed because Wen had not named anyone but Chris Polen as a defendant.

The parties tried the case to the court on January 6th and January 8th, 2014.   Wen testified that the Polens paid part of the April 2013 rent, but that they have not paid a dime since.   The Polens claim they paid Wen all that he was owed until September 2013.   They produced receipt slips for April, May, and a copy of an August receipt that was an exhibit in a prior hearing between the parties.   The Polens claimed they once had other receipts, suggesting they were in the prior court file.   The exhibit list in the prior court file lists a single exhibit which is still in the file:  the August receipt.

Wen countered that the receipts Polen submitted are forgeries and offered an August 7, 2013 stipulated agreement Chris Polen signed in the prior suit which says “defendant acknowledges owing the plaintiff the sum of $3,200.00 which represents rental arrearage and use and occupancy of $3,200 ․ through and including July 2013.”   Wen calculated that the $3,200 is exactly the amount the Polens owed, assuming he paid no rent from May to July and made only a partial April payment.   Polen said he signed the agreement even though this statement was false to avoid going to trial.

Chris Polen claimed that he offered Wen the September 2013 rent in front of witnesses—though he did not call any.   Polen claimed Wen refused because Polen had complained to public officials about the apartment's lack of heat.   He claimed Wen simply insisted he get out.   Polen loosely suggested he has tried paying since then, claiming Wen does not return his calls.   Wen denied this claim and said that he sought out Polen to pay the rent but Polen avoided him and has never tried to tender payment.   On the day of the trial Polen admitted that, despite his protestations about trying to hand over his rent, he did not have the money to hand over even if Wen would accept it.

Wen has proved by a preponderance of the evidence his complaint's claim that the Polens have failed to pay the rent due under the terms of the lease.   Wen's version of events lines up with Polen's agreement to owing $3,200 in the prior case.   Polen's claim turns on him asking the court to believe he was lying when he previously admitted owing the money.   It is undercut by his admission that he has paid nothing in recent months and does not have the money he insisted he was willing to pay if only Wen would take it.

Polen's credibility about paying the rent is further undercut by his claim that he was entitled to withhold rent because the property was unsafe.   First, this claim is inconsistent with his claim that he has only been prevented from paying rent by Wen's refusal to accept it.   Second, Polen claimed that the property was unfit because of a lack of adequate heat.   He testified that he had to endure a cold first winter on the property without Wen doing anything about it.   But the parties had previously agreed that the Polens moved in, not during the winter months, but in April 2012.   The parties also agree that, during 2013, the Polens paid their rent through the winter months and that the payment dispute only arose in April 2013.   Additionally, Polen did not dispute Wen's claim that the cold part of the house complained about was an attic not covered by the lease.   Third, the Polens chose not to call any witnesses or document any of their claimed complaints to public officials even though the opportunity to do so was discussed on the record.   Finally, I find from the testimony and receipts submitted that when the heat actually failed in the fall of 2013, Wen promptly ordered and completed repairs.

Because the rent clearly has not been paid for many months, I do not need to determine the authenticity of the three receipts Polen submitted to me.   I find Wen has proved his case for nonpayment.   With respect to the Polens' claim that they had the right to withhold rent, the Appellate Court held in 1993 in Housing Authority v. Olesen, “a tenant claiming the right to withhold rent must show that the landlord's failure to comply with § 47a–7(a) materially affects his safety ․ or has rendered the premises uninhabitable.” ¹  I find the Polens have not met their burden to prove this.

I grant Hai Wen a judgment giving him possession of 330 Prospect Street, 2nd Floor in Norwich, Connecticut.

Under General Statutes § 47a–26d, I award Hai Wen as costs, his filing fees and any fee charged by a marshal for service of the notice to quit and the complaint.   The court clerk shall determine the amount and issue an award of costs if presented with a proper bill of costs.

As required by General Statutes § 47a–35(a), I enter a stay of execution of five days, not including the judgment day and any Sunday or legal holiday.   The fifth day is January 15, 2014.   The clerk may issue Wen an execution on January 16, 2014.

BY THE COURT

Moukawsher, J.

FOOTNOTES

FN1. 31 Conn.App. 359 (1993)..  FN1. 31 Conn.App. 359 (1993).

Moukawsher, Thomas G., J.