Freidburg v. Kurtz

210 Conn.App. 420

270 A.3d 135

Terrance Mills FREIDBURG

v.Jo-Ellen KURTZ et al.

AC 43695

Appellate Court of Connecticut.

Submitted on briefs September 20, 2021

Officially released February 1, 2022

Abram J. Heisler, filed a brief for the appellants (defendants).

Matthew R. Russo, filed a brief for the appellee (plaintiff).

Elgo, Suarez and Palmer, Js.

ELGO, J.

In this landlord-tenant dispute, the defendants, Jo-Ellen Kurtz, Andrew Kurtz, and Janice Levy,¹ appeal from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiff, Terrance Mills Freidburg.² On appeal, the defendants claim that the court erred (1) in rendering judgment against them for damages to the property that they leased from the plaintiff without determining its age and condition at the commencement of the tenancy and the relative wear and tear of the items at the termination of the tenancy and (2) in failing to render judgment for the defendants on their counterclaim concerning their security deposit that they paid to the plaintiff when they entered into an agreement to lease the property. We affirm the judgment of the trial court.

The following facts, as found by the court or otherwise undisputed, and procedural history are relevant to this appeal. On January 8, 2011, the parties executed a lease agreement pertaining to real property owned by the plaintiff and located at 118 Wilton Road in Westport (property). The initial lease was for a term of one year and six months; the parties renewed the lease for several terms thereafter. When the defendants took possession, a move in inspection was conducted and a document was executed by the parties detailing various " ‘luxury items’ " on the premises and an associated liquidated damages amount the parties agreed on if the items were damaged. The lease agreement required an initial payment of $27,060, consisting of the first and last months’ rent totaling $13,000, a $500 pet deposit, a $560 prepayment of the cost of alarm monitoring at the property for one year, and a security deposit of $13,000. On August 29, 2015, at the end of the defendants’ tenancy, the plaintiff sent an accounting to the defendants of the security deposit and the alleged damages to the property. The August 29, 2015 accounting further indicated that the deposit was fully expended and that there was allegedly more than $50,000 in damages to the luxury items previously identified in the inspection document.

The plaintiff commenced the present action on December 7, 2015, alleging violations of the lease agreement and negligence on the part of the defendants. The defendants thereafter filed an answer and a special defense in which they denied liability for the causes of action set forth in the plaintiff's complaint and alleged that they had "returned the [property] in the same condition in which it was originally tendered, reasonable wear and tear excepted." The defendants also filed a two count counterclaim in which they alleged violations of the security deposit statute, General Statutes § 47a-21,³ and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.⁴ In his reply, the plaintiff denied the substance of that counterclaim.

A trial was held on October 2, 2019, at which the parties testified. The plaintiff also submitted into evidence exhibits pertaining to the property. On November 25, 2019, the court issued a memorandum of decision wherein it rendered judgment in favor of the plaintiff and awarded $25,600.77 in damages, plus postjudgment interest pursuant to General Statutes § 37-3a (a). The court noted that "the parties agreed to the items that were in the furnished home at the commencement of the lease." The court found "most of the plaintiff's claims of damages credible." The court further found that the plaintiff established to "its satisfaction $33,100.77 in damages beyond normal wear and tear at the end of a tenancy by a fair preponderance of the evidence ...." The court subtracted the security deposit balance of $7500 from the total cost of the damages that it found were the responsibility of the defendants.

With respect to the defendants’ counterclaim, the court found that the defendants had failed to prove their claims at trial. Specifically, the court found, the defendants had not demonstrated that the security deposit they paid to the plaintiff exceeded the $13,000 security deposit requirement in the lease agreement. The court ultimately concluded that it was undisputed that the security deposit balance remaining as of August, 2015, was $7500. This appeal followed.

I

On appeal, the defendants challenge the propriety of the damages awarded by the court. They claim that the court erred in rendering judgment against the defendants for damages to the premises without determining the age and condition of the property at the commencement of the tenancy and the relative wear and tear of the items at the termination of the tenancy. They argue that the court should have factored in the age and previous wear and tear of certain damaged items when calculating the damages award. We are not persuaded.

We begin by setting forth the relevant applicable standard of review. "[O]ur appellate courts accord plenary review to the court's legal basis for its damages award. ... The court's calculation under that legal basis is a question of fact, which we review under the clearly erroneous standard." (Internal quotation marks omitted.) Carroll v. Yankwitt , 203 Conn. App. 449, 465, 250 A.3d 696 (2021). "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." (Internal quotation marks omitted.) Autry v. Hosey , 200 Conn. App. 795, 799, 239 A.3d 381 (2020).

In the present case, the court had ample evidence before it that supported the court's calculation of damages. At trial, the plaintiff testified that he surveyed the property after the conclusion of the tenancy and observed significant damage compared to what was listed in the inspection report. In addition, the plaintiff submitted into evidence photographs of damage to various appliances and portions of the property, taken shortly after the defendants vacated the premises. The plaintiff also prepared a document that catalogued the damaged items and fixtures in a comprehensive list, which, along with the corresponding receipts for repairs and replacement purchases, was entered into evidence. On our review of the record, we agree with the trial court that any preexisting wear and tear of individual items or fixtures is insignificant given the scope of the damage documented at the conclusion of the defendants’ tenancy. Additionally, insofar as the defendants take issue with the court's inclusion of certain items in its damages award that were not the subject of testimony at trial, we agree with the plaintiff that the record contains ample documentary evidence to support all damages found by the court. It does not affect our analysis of the court's findings that the evidence concerning these items was not testimonial in nature. In light of the foregoing, we conclude that the court's damages award was proper.

II

The defendants also challenge the court's ruling on their counterclaim. The defendants contend that the court improperly rejected their claims that the plaintiff (1) charged an excessive security deposit as a condition of tenancy in violation of § 47a-21 (b) (1) ; (2) failed to properly provide to the defendants a written accounting of deductions that were made from the security deposit as prescribed by § 47a-21 (d) (2) ; and (3) failed to store the security deposit in a separate escrow account as mandated by § 47a-21 (h).⁵ We disagree.

A

First, we address the portion of the claim in which the defendants argue that the court improperly rejected their claim that the plaintiff charged an excessive security deposit as a condition of tenancy in violation of § 47a-21 (b) (1). The defendants’ claim is factual in nature, as it is focused on whether, in rejecting their claim, the court's finding with respect to the amount of the security deposit was clearly erroneous.

As a preliminary matter, we note that "[a] reviewing authority may not substitute its findings for those of the trier of the facts. ... The factual findings of a [trial court] on any issue are reversible only if they are clearly erroneous. ... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses." (Internal quotation marks omitted.) Fitzpatrick v. Scalzi , 72 Conn. App. 779, 781–82, 806 A.2d 593 (2002) ; see also Pedrini v. Kiltonic , 170 Conn. App. 343, 347, 154 A.3d 1037 ("[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’ testimony" (internal quotation marks omitted)), cert. denied, 325 Conn. 903, 155 A.3d 1270 (2017).

As previously noted, in its memorandum of decision, the court concluded that the defendants had not proven the claims alleged in their counterclaim. With respect to the actual amount of the security deposit at issue, the court emphasized that "[i]t was never truly established [at trial] how much the initial payment to the plaintiff was. ... No initial payment amount was ever established and the court cannot determine what it was." Accordingly, the court found, "based upon the lack of credible evidence otherwise," that "the security deposit was the $13,000 set forth in the lease." The lease agreement was appended to the plaintiff's complaint and was admitted into evidence as an exhibit at trial. That agreement, which was signed by all parties, states in relevant part: "The Tenant shall ... pay the Security Deposit ... in advance and upon the signing of this Lease in the amount of...