Landry v. Bacigaludo, Docket No. HDSP-137826 (Conn. Super. 9/1/2006)
| Decision Date | 01 September 2006 |
| Docket Number | Docket No. HDSP-137826. |
| Court | Connecticut Superior Court |
| Parties | CHRISTOPHER LANDRY v. JOHN BACIGALUDO, ET AL. |
This is a summary process action based on nonpayment of rent. The plaintiff, hereinafter ("Landlord"), seeks to evict the defendants, hereinafter ("Tenants"). The Landlord alleges that the Tenants failed to pay the rent for the months of November 2005, and thereafter.1 The Tenants allege the following special defenses: (1) All rent was paid prior to service of the Notice to Quit; (2) Condition of the premises; and (3) Retaliatory action by the landlord.2 The case was tried to the Court on July 31, 2006.
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
(Citations omitted; internal quotation marks omitted.) "In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 763 A.2d 199 (2001).
(Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn. App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).
The standard of proof in summary process actions, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).3
The Court finds the following facts by a fair preponderance of the evidence.
The Tenants' answer admits all but one of the material allegations of the complaint.4 The Tenants agree that on or about September 1, 2005, the parties entered into a lease for rental of the property known as 96 South Water Street East Windsor, Connecticut, for the monthly rent of $975 payable in advance on the first day of each and every month. The Tenants took possession of the premises pursuant to the written lease and still occupy the premises. On May 23, 2006, the Landlord caused a Notice to Quit Possession to be duly served on the Tenants to quit possession of the leased premises on or before May 29, 2006, as required by law. Although the time designated in the notice to quit possession of the premises has passed, the Tenants still continue in possession. The Tenants disagree that they failed to pay the monthly rent due under the lease on November 1, 2005, and thereafter.
The Landlord is the owner of the premises at 96 South Water Street, East Windsor, Connecticut. The lease agreement was signed in July 2005 for the lease term on September 1, 2005 to August 31, 2006. The agreed-upon rent was $975 per month.
The Landlord testified that the rent was not paid by the tenth of November 2005. The Tenants testified that the rent check, dated November 8, 2005, was mailed on that day. The Landlord deposited the check on November 16, 2005.
In December 2005, the rent check, dated December 10, 2006, was received after the tenth of the month. The Landlord deposited the check on December 14, 2005.
In January 2006, after discussions, the parties agreed that the Tenants could pay the January 2006 rent late, but they also had to pay the February 2006 rent and the water charges. On or about January 28, 2006, the Tenants gave the Landlord a check in the amount of $2025, which covered the rent for January 2006 and February 2006, as well as the water charges. The Landlord deposited the check on February 6, 2006.
The Tenants paid the rent on time for the months of February 2006 through May 2006.
On May 23, 2006, the Tenants were served with a Notice to Quit Possession. When the notice to quit was served, the rent was paid in full, albeit late for November 2005, December 2005, and January 2006. There was no rent arrearage.
In a summary process action based on nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant failed to pay the rent due under the lease by a certain date; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. See § 47a-23 (a) (1) (D).
Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop & Shop Cos., supra, 29 Conn. App. 523.
Tenants' Defenses
(1)
All rent was paid prior to service of the Notice to Quit
The Tenants allege that all rent was paid to the Landlord before the Notice to Quit was served.
Yervant v. BAJ Corporation, 4 Conn. App. 84, 85, 492 A. 2d 521 (1985).
It is the nonpayment of rent by a tenant that gives the landlord the option to terminate a lease. Webb v. Ambler, 125 Conn. 543, 550-551, 7 A.2d 228 (1939). In order to exercise his option to terminate the lease, the landlord must do so by an unequivocal act. Sandrew v. Pequot Drug Inc., 4 Conn. App. 627, 631, 495 A.2d 1127 (1985). A statutory notice to quit is a such an unequivocal act. O'Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946); Vogel v. Bacus, 133 Conn 95, 98, 48 A.2d 237 (1946).
In the present case, the Court finds that the Tenants tendered and the Landlord accepted the rent for November 2005, December 2005, and January 2006. The Tenants tendered the full rent after the breach, but before any declaration of forfeiture by some unequivocal act by the Landlord. The Landlord accepted and retained rent for the months in question. He also accepted as "rental income" payments from the Tenants for the months of February 2006 through May 2006. The Landlord did not exercise his option to terminate the lease for nonpayment of rent until the notice to quit was served on May 23, 2006. When the notice to quit was served, the rent was paid in full.
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." (Citations omitted.) Tait's, Handbook of Connecticut Evidence (3rd Ed. 2001) §...
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