Renaissance Mgmt. Co. v. Barnes

175 Conn.App. 681

168 A.3d 530

RENAISSANCE MANAGEMENT COMPANY, INC.

v.Andre BARNES et al.

(AC 38879).

Appellate Court of Connecticut.

Argued March 16, 2017

Officially released August 22, 2017

Hugh D. Hughes, New Haven, with whom was David E. Schancupp, New Haven, for the appellant (plaintiff).

Wesleigh Anderson, certified legal intern, with whom was Jeffrey Gentes, for the appellee (named defendant).

Lavine, Mullins and Bear, Js.

BEAR, J.

In this summary process action for possession of an apartment in New Haven, the plaintiff, Renaissance Management Co., Inc., appeals from the summary judgment of the trial court rendered in favor of the defendant Andre Barnes.¹ The court granted the defendant's motion for summary judgment on the ground that the plaintiff was prohibited by the retaliatory eviction statute; General Statutes § 47a–20 ; from initiating the action and that the exceptions claimed by the plaintiff under General Statutes § 47a–20a, which would preclude application of § 47a–20 and thereby allow it to initiate the action, did not apply. On appeal, the plaintiff claims that the trial court erred when it (1) determined that this court's holding in Visco v. Cody , 16 Conn.App. 444, 547 A.2d 935 (1988), was inapplicable to the defendant's special defense of retaliatory eviction under § 47a–20 ; (2) determined that its complaint did not allege nonpayment of rent; and (3) interpreted the definition of rent in § 47a–20a to include the United States Department of Housing and Urban Development's payment of its share of the agreed total rent for the premises such that the total amount of money received by the plaintiff was unaffected by the defendant's alleged underpayment. Following oral argument before this court, but before this court rendered its judgment, the plaintiff obtained possession of the apartment. Notified of this fact, we ordered the parties to submit supplemental briefs on the issue of mootness. Following our review of the parties' supplemental briefs, we dismiss the appeal because it is moot and no exception to the mootness doctrine is applicable to the facts and circumstances of this appeal.

The following facts and procedural history are not in dispute. The defendant was served with a notice to quit possession of the apartment on September 3, 2014. This summary process action was commenced on September 15, 2014. The defendant filed a special defense claiming that the retaliatory eviction statute, § 47a–20, barred the plaintiff's summary process action because he had complained to a municipal authority about housing code violations and such authority had found violations of the housing code within six months of the commencement of the action.

On August 10, 2015, the defendant moved for summary judgment on the ground that § 47a–20 prohibited the plaintiff from maintaining a summary process action within six months of a complaint to, or notice by, a government agency of a housing code violation. On September 8, 2015, the plaintiff submitted its memorandum in opposition to the motion for summary judgment, arguing that the reason for the action was the "fraud committed by the defendant in failing to report his income, which constitut[ed] a material violation of his lease." The plaintiff also argued that Visco required that the claimed defects constituting a violation of the housing code materially affect health and safety, and that the defendant failed to submit detailed information regarding the requested repairs. The court granted the defendant's motion for summary judgment on February 5, 2016.

In its corrected memorandum of decision, the court determined that § 47a–20barred the plaintiff's action, and that the plaintiff had failed to demonstrate that any exception under § 47a–20a to the § 47a–20 bar applied. Specifically, the court concluded that, contrary to the plaintiff's assertion, the fitness and habitability requirements enunciated in Visco , relating to requested "repairs" as set forth in § 47a–20 (3), did not apply in the circumstance of a municipal agency's finding of housing code violations as set forth in § 47a–20 (2). The court determined that § 47a–20 (2) required an actual finding by a municipal agency of a code violation, and concluded that New Haven's Livable City Initiative, the relevant municipal agency in the present case, found the existence of such code violations in the defendant's apartment, thereafter entering an order requiring remediation by the plaintiff within twenty-one days under threat of criminal liability. The court also determined that the exception claimed by the plaintiff under § 47a–20a (a) (1) was inapplicable to the facts of this case. Accordingly, the court granted the defendant's motion for summary judgment. This appeal followed.

The parties agree that, following oral argument before this court on March 16, 2017, the defendant vacated and relinquished possession of the plaintiff's property on May 10, 2017. After the parties apprised this court of this fact, we ordered supplemental briefing on the issue of mootness and any possible exceptions thereto because the sole remedy sought by, and available to, the plaintiff in its summary process action was possession of the premises. The parties have since submitted supplemental briefs, and each argues that the "capable of repetition, yet evading review" exception to mootness applies to this case. The plaintiff also argues in its supplemental brief that collateral consequences to the plaintiff will continue without a decision and, thus, the appeal is not moot.

"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates this court's subject matter jurisdiction." Wendy V. v. Santiago , 319 Conn. 540, 545, 125 A.3d 983 (2015). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) State v. McElveen, 261 Conn. 198, 217, 802 A.2d 74 (2002). "An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) In re Emma F. , 315 Conn. 414, 423–24, 107 A.3d 947 (2015). "This court has consistently held that an appeal from a summary process judgment becomes moot where, at the time of the appeal, the defendant is no longer in possession of the premises." (Internal quotation marks omitted.) Friedman v. Gomez , 172 Conn.App. 254, 260, 159 A.3d 703 (2017).

As the defendant is no longer in possession of the property, the appeal is clearly moot, unless an exception applies and the parties do not contest this conclusion. Recognizing this, the parties argue that the issue raised on appeal, that this court's holding in Visco applies to retaliatory eviction defenses brought under § 47a–20 (2), satisfies the capable of repetition, yet evading review exception to the mootness doctrine. The plaintiff also argues that the collateral consequences doctrine applies because the court's interpretation of § 47a–20 (2) will allow other tenants to utilize it as a defense, and, therefore, the appeal is not moot. We determine that neither of the claimed exceptions applies and, thus, the appeal is moot.

"To qualify under the capable of repetition, yet evading review exception, three requirements must be met. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) Wendy V. v. Santiago , supra, 319 Conn. at 545–46, 125 A.3d 983.

"The first element in the analysis pertains to the length of the challenged action.... The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reach out to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.... [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint] ... or the challenged action had an intrinsically limited lifespan." (Citations omitted; internal quotation marks omitted.) In re Priscilla A. , 122 Conn.App. 832, 836–37, 2 A.3d 24 (2010).

The present appeal fails to meet the first requirement of the capable of repetition, yet evading review exception. The action challenged in this case is that the plaintiff commenced a summary process action in violation of § 47a–20 (2) within six months of a finding by a municipal agency of a housing code violation. The specific legal issue raised by the plaintiff is whether the holding in Visco , that the defects alleged to be in need of repair must...