J. M. v. E. M.

216 Conn.App. 814

286 A.3d 929

J. M.

v.E. M.^*

AC 45077

Appellate Court of Connecticut.

Argued May 17, 2022

Officially Released December 6, 2022

J. M., self-represented, the appellant (plaintiff).

Kevin J. Burns, West Hartford, for the appellee (defendant).

Bright, C. J., and Elgo and Cradle, Js.

ELGO, J.

In this summary process action based on nonpayment of rent, the plaintiff landlord, J. M., appeals from the judgment of the trial court dismissing the action in favor of the defendant tenant, E. M. On appeal, the plaintiff claims that (1) the court incorrectly found that he had reinstated the tenancy by accepting the defendant's tendered payments labeled as "rent" after service of the notice and after the quit date specified in the notice to quit despite the fact that the notice to quit included a use and occupancy disclaimer and (2) the court's determination also was improper because the governor's executive orders affecting eviction proceedings during the COVID-19 pandemic required that any use and occupancy disclaimer in the notice to quit not be effective until thirty days after the notice was served and required the plaintiff to accept rent payments during that thirty day period. The plaintiff further requests that this court adjudicate the merits of the defendant's affirmative defenses to the summary process action, notwithstanding that the court did not reach the merits of those defenses. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. The plaintiff and the defendant entered into a one year lease of a rental property in Southington that commenced on March 1, 2021, and was set to expire on February 28, 2022. The terms of that lease required the defendant to pay twelve equal monthly payments of $1200 to the plaintiff on the first day of each month. That figure reflected a discount from the fair market value that was intended to compensate the defendant for any inconvenience due to ongoing maintenance and repairs that the plaintiff was performing on the property.

It is undisputed that the defendant failed to tender the full amount of rent due on June 1, 2021. The defendant tendered a portion of the amount owed and withheld the remainder as repayment for repairs to an air conditioning unit that she had performed on the property without notification to, or permission from, the plaintiff. The plaintiff subsequently served a notice to quit on the defendant on July 21, 2021, for nonpayment of rent with a quit date of August 21, 2021. That notice to quit included a use and occupancy disclaimer that stated: "Any payments tendered after the date specified to quit possession or occupancy, or the date of the completion of the pretermination process if that is later, will be accepted for use and occupancy only and not for rent, with full reservation of rights to continue with the eviction action." The plaintiff subsequently commenced a summary process action on September 1, 2021, alleging in his complaint that the defendant had failed to pay rent due on June 1, 2021. The defendant then filed an answer to the summary process complaint, in which she asserted several special defenses, including that (1) all rent had been paid to the plaintiff, (2) rent was offered to the plaintiff on June 1, 2021, prior to her receipt of the notice to quit, and (3) the eviction was being sought in response to a complaint about the property that she had lodged with the plaintiff.

A trial on the plaintiff's summary process complaint was held on October 21, 2021. After the trial, the court issued a memorandum of decision in which it found that the defendant had tendered the sum of $707.81 for the June, 2021 rent and withheld the sum of $492.19, which the defendant had deducted from the $1200 monthly rent as reimbursement for repair of the air conditioning unit. The parties did not dispute that, if the air conditioning was not working, the plaintiff was obligated to repair it. The defendant also admitted that the lease did not authorize her to engage in self-help to repair the unit. In its memorandum of decision, however, the court credited the defendant's testimony that she did not feel comfortable contacting the plaintiff regarding that repair because the defendant previously had obtained a civil protective order to prevent the plaintiff from entering the premises and having contact with her. The court thus found that the defendant chose to seek repair of the unit from a third party and thereafter provided the plaintiff with proof of payment for that repair.

The court next determined that the defendant tendered all other monthly payments from July through September, 2021, on time and in full.¹ On each check, "rent" was written in the memo field. Although the plaintiff did not immediately deposit the checks for July, August, and September, the court found that the plaintiff retained the checks and eventually deposited them into his account. The only amount that remained unpaid at the time of trial was the June amount of $492.19, which had been used for the repair of the air conditioning unit.

The court ultimately concluded that, "[a]lthough the notice to quit includes the requisite disclaimer that any payments tendered after the notice to quit shall be accepted as use and occupancy, the defendant's payments all included the memo reference that the payments were tendered as rent. Further, they were payments in full [for] each month after the notice to quit. They were not returned or questioned by the plaintiff, but rather were negotiated. Acceptance of rent after service of the notice to quit effectuates a renewal of the tenancy. ... Consequently, the plaintiff having accepted the payments that were noted as [being] for ‘rent’ for several months and having negotiated them, all without question, the tenancy is deemed reinstated." (Citation omitted.) In light of the foregoing, the court dismissed the plaintiff's summary process action, and this appeal followed.²

I

On appeal, the plaintiff first contends that the court incorrectly concluded that, notwithstanding the use and occupancy disclaimer, the defendant's tenancy was reinstated when the plaintiff accepted the defendant's rent payments after he had served the defendant with the notice to quit and after the quit date contained in the notice. By contrast, the defendant argues that the court properly dismissed the action because the plaintiff accepted her tender of rent prior to the date specified in the notice to quit. We decline to address the merits of the plaintiff's claim because he has not provided this court with an adequate record to resolve this factual dispute.

We first set forth the applicable legal principles and standard of review. Under Connecticut law, a landlord has the right to terminate tenancy for nonpayment of rent. See General Statutes § 47a-23. A landlord's service of a notice to quit is an act that is "sufficiently unequivocal" to terminate tenancy. Borst v. Ruff , 137 Conn. 359, 361, 77 A.2d 343 (1950). "A notice to quit is a condition precedent to a summary process action and, if defective, deprives the court of subject matter jurisdiction." Bristol v. Ocean State Job Lot Stores of Connecticut, Inc. , 284 Conn. 1, 5, 931 A.2d 837 (2007).

Notwithstanding an unequivocal notice to quit, a landlord's acceptance of rent prior to the quit date contained in the notice to quit can render the landlord's intent to terminate the tenancy equivocal, repudiate the intent to terminate set forth in the notice to quit, and reinstate the lease. See Borst v. Ruff , supra, 137 Conn. at 361, 77 A.2d 343. Whether a landlord intended to accept a tendered payment as rent, therefore, is a "vital question of fact" before the court. Id. "Factual findings are subject to a clearly erroneous standard of review. ... It is well established that [a] finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. ... 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 .... Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. ... The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Ursini v. Barnett , 124 Conn. App. 855, 858, 10 A.3d 1055 (2010).

In the present case, the court's determination that the plaintiff accepted rent after service of the notice to quit and after the quit date specified in the notice to quit required the court to make a finding with regard to the plaintiff's intent when he retained the defendant's July, August, and September checks, which is a question of fact. See Borst v. Ruff...