Welsch v. Groat, No. 26665.

• Decision Date: 30 May 2006
• Docket Number: No. 26665.
• Citation: 897 A.2d 710,95 Conn.App. 658
• Court: Connecticut Court of Appeals
• Parties: James R. WELSCH v. Michael GROAT.

897 A.2d 710

95 Conn.App. 658

James R. WELSCH v. Michael GROAT.

No. 26665.

Appellate Court of Connecticut.

Argued March 23, 2006.

Decided May 30, 2006.

Michael J. Leventhal, for the appellant (plaintiff).

Gregory J. Kycia, Middletown, with whom, on the brief, was Sean E. Donlan, for the appellee (defendant).

FLYNN, C.J., and ROGERS and LAVINE, Js.

LAVINE, J.

The plaintiff, James R. Welsch, appeals from the judgment of the trial court rendered in favor of the defendant, Michael Groat, in an action for breach of a lease. The principal issue in this appeal is whether the court properly found that the leased premises were rendered uninhabitable by the plaintiff's failure to make necessary repairs, thereby resulting in a constructive eviction. We affirm the judgment of the trial court.

The following facts as found by the trial court are relevant to our resolution of the plaintiff's appeal. On June 1, 2003, the parties entered into a one year written residential lease agreement (lease) for a single-family residence in Old Saybrook. The defendant used the premises as his primary residence and intended to use the finished portion of the basement as a bedroom for his three children. During the first month of the defendant's occupancy, he and his three children became aware of certain deficiencies with the premises. In particular, the defendant noticed water damage and the presence of mold and mildew in the basement. Due to the water problems in the basement, the defendant was unable to use that area as a bedroom for his children, as he originally had intended.

Sometime in early July, 2003, the defendant informed the plaintiff of the water damage and the formation of mold and mildew in the basement. In response to that notification, the plaintiff's attorney sent a letter dated July 23, 2003, that referred the defendant to a provision in the lease that stated that the defendant had inspected the premises and accepted its condition "as is."¹

By letter dated August 1, 2003, the defendant again informed the plaintiff of the defects in the premises. Specifically, the defendant made the following assertions with regard to the basement: "The basement is constantly wet. There are puddles when it rains and a constant wet slime along the east wall; the paneling and trim is badly rotted, obviously a long-term problem; paint is peeling from concrete walls . . . the latex floor is bubbling and peeling from wetness. . . . [T]here are significant mold and mildew issues with the entire basement, especially the finished living area." The defendant moved out of the residence at the end of August.

The plaintiff sought damages from the defendant, alleging that the defendant had breached the lease. The defendant denied the allegations and filed a four count counterclaim, which included a claim for constructive eviction premised on the defendant's inability to use a portion of the premises due to certain defects, including water leakage, and the presence of mold and mildew.²

In its May 26, 2005 memorandum of decision, the court rendered judgment in favor of the defendant on the plaintiff's breach of lease claim and on the defendant's constructive eviction counterclaim.³ The court found that "in addition to water damage, [the] presence of mold and mildew" made it "impossible" for the defendant to use the basement room as a bedroom for his children. On the basis of that finding, the court concluded that the plaintiff's failure to make the necessary repairs to the rental property in regard to the water damage, mold and mildew "rendered the premises uninhabitable and constituted a constructive eviction of the defendant and a breach of lease by the plaintiff."

After issuing its memorandum of decision, the court addressed the plaintiff's motion for articulation concerning whether the plaintiff had received notice of the conditions that rendered the premises uninhabitable and the factual bases for its finding of constructive eviction. In its articulation, the court referred to the defendant's letter to the plaintiff dated August 1, 2003, and the defendant's assuming occupancy of the premises. The court further stated that the factual bases for its findings were "self-evident."⁴

On appeal, the plaintiff raises a number of claims that boil down to a single dispositive issue, namely, whether the court properly found that the leased premises were rendered uninhabitable by the plaintiff's failure to make necessary repairs, thereby resulting in a constructive eviction.⁵

To evaluate the plaintiff's claim, we begin with the prevailing standard of review. "We review the factual findings of the trial court under our well established clearly erroneous standard. . . . The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 332, 764 A.2d 199 (2001).

"[A] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant's promise to pay rent." (Internal quotation marks omitted.) Conference Center Ltd. v. TRC, 189 Conn. 212, 220, 455 A.2d 857 (1983). "In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem." (Internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, supra, 61 Conn.App. at 332, 764 A.2d 199; see also Thomas v. Roper, 162 Conn. 343, 349, 294 A.2d 321 (1972). Moreover, "[w]hether the premises are untenantable is a question of fact for the trier, to be decided in each case after a careful consideration of the situation of the parties to the lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant's use of the premises is interfered with by the injury claimed. . . . That factual determination will not be disturbed by [a reviewing] court unless the conclusion is such that it could not reasonably be reached by the trier." (Internal quotation marks omitted.) Johnson v. Fuller, 190 Conn. 552, 556-57, 461 A.2d 988 (1983). It is necessary therefore, to review the court's findings along with the factual record to determine whether the court properly found that the defendant was constructively evicted.

The court found that the defendant had proven that the premises were untenantable due to the plaintiff's failure to make necessary repairs in regard to the water damage and the presence of mold and mildew.⁶ The court based that finding on the testimony of the defendant and that of the defendant's witnesses, coupled with the physical evidence, which supported this element of constructive eviction. The defendant himself testified and produced witnesses, Leonard Pass, a subcontractor, and Jacqueline Jenkins, a realtor, who testified as to the presence of water damage, mold and mildew in the basement of the premises.⁷ Specifically, Pass testified that he "observed rot, and I know it's rot because when you touch it the stuff falls apart. It's not a stain, it's rot. I observed, so-called mold and mildew. When you see stuff growing, in the trade, we refer to it as either mold or mildew . . . ." Jenkins testified that "[t]here was, what I consider in real estate, mildew, probably mold. . . . [M]y finger went right through the wall." Although there was conflicting testimony given by the plaintiff as to the condition of the basement, the plaintiff conceded that he saw mildew in the basement. The court found that the defendant and his witnesses were credible. In addition, the physical evidence submitted bolstered the testimony offered by the defendant and his witnesses. Photographs of the basement that showed water damage, mold and mildew were offered into evidence.

It is an abiding principle of our jurisprudence that "[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [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. . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court, and we cannot supplant that function when considering issues on appeal. On the basis of the factual record, we cannot conclude that the court's finding that the premises were untenantable was clearly erroneous.⁸

The court also found that the defendant satisfied the second element of constructive eviction. The finding that the defendant vacated the premises because of the existing problems is a logical outgrowth of the court's conclusion that the plaintiff failed to "remedy the conditions with the urgency and intensity warranted by the scope and the nature of the needed repairs . . . ." After reviewing the factual record, we find adequate support for that conclusion. The defendant testified that he vacated the premises in...