Opinion
WWMCV165006776S
06-14-2017
Denies Noiseux, POA v. Julie Lamothe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Angelo L. dos Santos, Senior Judge.
This is a commercial summary process action where the plaintiff seeks possession of the premises leased to the defendant.
PROCEDURAL HISTORY
On November 7, 2016, the plaintiff, " Denise Noiseux POA for Kristopher Noiseux, " initiated this summary process against the defendant, Julie Lamothe. The complaint was filed November 14, 2016, wherein the plaintiff alleges that a notice to cure was sent on August 27, 2016, and a notice to quit was served on October 5, 2016, with a demand to leave by November 1, 2016. As reasons for the eviction the plaintiff alleges that the defendant: (a) Failed to provide a certificate of insurance naming the plaintiff as an additional insured; (b) failed to pay for electrical usage; and (c) failed to pay for repair to stopped up pipes. (Docket Entry no. 100.31.) Further, the plaintiff alleges that the defendant has neither moved from the premises nor cured the defaults. (Docket Entry no. 100.31.)
On February 22, 2017, the defendant filed her amended answer, wherein the defendant admits that (1) she entered into a lease agreement for use of the premises at issue; (2) she received a writing on August 27, 2016; (3) she received a notice to quit as alleged; and (4) she remains in possession of the premises. (Docket Entry no. 119.) The defendant also claims five special defenses, which will be discussed in this memorandum. (Docket Entry no. 119.)
This matter was tried on March 8, 2017. Both parties were represented by counsel. Both parties testified. Post-trial briefs were submitted by the plaintiff on March 22, 2017; (Docket Entry no. 111); and by the defendant on April 4, 2017; (Docket Entry no. 112); when the record closed.
DISCUSSION
I
SUPERIOR TITLE
The defendant argues that the plaintiff cannot show title superior to the defendant's because title in the premises was transferred from Kristopher Noiseux to Denise Noiseux before the notice to quit was served--and the named plaintiff is Kristopher Noiseux, rather than the relevant owner, Denise Noiseux. (See Def.'s Br., pp. 8-9; Docket Entry no. 112.) The defendant also denies that Denise Noiseux is qualified as an attorney-in-fact for the lessor. (See Am. Answer, p. 2, Docket Entry no. 109.)
When a person brings an action on behalf of a plaintiff pursuant to power of attorney, the person named before " POA" is the named plaintiff , while the person named after such abbreviation is the person exercising power of attorney. See Pomerleau v. Remillard, Superior Court, judicial district of Tolland, Docket No. FA-09-4011751-S, (September 30, 2010, Frazzini, J.); Wilson v. Zemba, 49 Conn.Supp. 542, 554, 896 A.2d 862 (2004). In the present action, both the notice to quit and the summons list the plaintiff as " Denise Noiseux POA for Kristopher Noiseux." The named plaintiff, therefore, is Denise Noiseux. The defendant's argument and special defense are, therefore, moot.
II
TERMS OF THE LEASE
The defendant pleaded as her second special defense that the terms of the contract do not require the lessee to pay for the claimed electricity or repair of drain pipes. (See Am. Answer, p. 3, Docket Entry no. 109.) The defendant's third special defense is that she never received a request for payment of electricity until the notice to cure, the notice to cure did not explain how the amount was determined, and such delay caused the plaintiff to believe that she did not owe the monies requested. (See Am. Answer, p. 3, Docket Entry no. 109.) The defendant pleaded as her fourth special defense that, at all times, the defendant had insurance coverage on the premises in the amount required by the lease with the plaintiff named as an additional insured. (See Am. Answer, p. 4, Docket Entry no. 109.)
" In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction . . . We accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract . . . Where the language is unambiguous, we must give the contract effect according to its terms . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter." (Citations omitted.) Cantonbury Heights Condominium Ass'n, Inc. v. Local Land Development, LLC, 273 Conn. 724, 734-35, 873 A.2d 898 (2005). " If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law . . . When the language of a contract is ambiguous, [however] the determination of the parties' intent is a question of fact . . ." (Citation omitted; internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 355, 999 A.2d 713 (2010). " [A] merger clause inserted into an agreement establishes conclusive proof of the parties' intent to create a completely integrated contract, and the court is forbidden from considering extrinsic evidence on the matter unless there was unequal bargaining power between the parties." Benvenuti Oil Co. v. Foss Consultants, Inc., 64 Conn.App. 723, 728, 781 A.2d 435 (2001). " The parol evidence rule does not of itself . . . forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud." (Emphasis in original, internal quotation marks omitted.) TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288-89, 589 A.2d 329 (1991).
" [I]t has long been [t]he common method in drafting leases . . . to gather some or all of the covenants, by reference, into a condition subsequent, an agreement by the parties, that a breach by the tenant of any or all of the covenants on his part shall give the landlord the right to terminate the tenancy by means and in a manner usually indicated." (Internal quotation marks omitted.) Robinson v. Weitz, 171 Conn. 545, 552, 370 A.2d 1066 (1976). Paragraphs 19 and 20 of the lease agreement provide the plaintiff with the right to terminate the tenancy in the event of the following: " 1) Default in the payment of rent or other payments called for in this [lease]. 2) Lessee's default in the performance or observance of any covenant or condition of this [lease]." (Pl.'s Ex. 1, ¶ 19.) The plaintiff, therefore, may terminate the lease for the breach of any of the conditions of the lease agreement, including failure to make payments called for in the lease.
Paragraph 13 of the lease unambiguously requires the lessee to maintain general liability insurance with a limit of one million dollars, name the lessor as the additional insured, and " provide Lessor with current Certificates of Insurance evidencing Lessee's compliance with this Paragraph." (Pl.'s Ex. 1, ¶ 13.)
The plaintiff claims that the defendant failed to provide evidence of insurance or, having provided it, failed to update it. Despite the allegations, the defendant has maintained insurance coverage on the premises, as required by the lease, naming the plaintiff as an additional insured. There was no lapse of coverage for nonpayment of the insurance premiums at any time. The plaintiff concedes that there was insurance coverage on the demised premises and that she has notice of the coverage. She argues that the defendant's past failure to provide proof of insurance amounts to a material breach of the lease. The court disagrees. The defendant was not in breach of the lease for failure to obtain insurance or provide evidence of same to the plaintiff.
Regarding the electricity bill, paragraph 14 of the lease provides in relevant part: " Lessor shall pay: Electricity (based on previous use) . . ." " Based on previous use" is not defined in the lease. Such undefined qualification is ambiguous, and interpretation of the parties' intent, therefore, is a question of fact.
The property on which the leased premises are located contains two other buildings which are used for residential purposes and all three buildings are included on the same residential electric service. (Def.'s Ex. G.) There are two other tenants drawing electricity from the same meter. The plaintiff installed another meter for the defendant's business, but this was not a separate electric service. In addition, the meter was not installed or certified by the electric company. The meter was purchased and installed by the plaintiff. The installation of the personal meter did not remove the ambiguity contained in the lease regarding the defendant's obligation to pay electricity " based on previous use." After consideration of the testimony of the parties, the court is unable to determine the parties' intent regarding the defendant's obligation to pay a portion of the electricity used for the demised premises.
Regarding the stopped drains, paragraph 8(D) of the lease provides in relevant part: " Lessee shall pay for any . . . [e]xpense, damage, or repair occasioned by the stopping of waste pipes or overflow from bathtubs, closets, washbasins, basins, or sinks, and curtain drains . . . Lessee shall make all repairs to the leased premises, at Lessee's own expense, except for the following repairs, provided that the need for such repair did not arise from nor were they caused by the negligence or willful act of Lessee, its agents, officers, employees, licensees, invitees, or contractors: repair of building. If Lessor pays for any repair that is the responsibility of Lessee, Lessee shall reimburse Lessor for such amount." (Pl.'s Ex. 1, ¶ 8.) Such language explicitly and unambiguously places the responsibility of the stopped drains on the defendant.
Paragraph 8(D) of the lease is clear in that the defendant is responsible to pay the cost to repair the drains which repairs were necessitated as a result of the activities by the defendant well into the first year on the lease. The defendant failed to reimburse the plaintiff in the sum of $1,150 as required by the lease after being asked in writing to pay the said sum.
III
NOTICE TO CURE
The defendant pleaded in her second special defense that the plaintiff never notified the defendant of the necessity of repairing the drain; and in her third special defense that the plaintiff delayed in requesting payment for electrical charges until August 27, 2016. (See Am. Answer, p. 3, Docket Entry no. 109.) General Statutes § 47a-15 provides in relevant part: " Prior to the commencement of a summary process action . . . if there is a material noncompliance by the tenant with the rental agreement . . . and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate except that . . . if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate . . ." " This notice has come to be known, in Housing Court parlance, as the 'Kapa' notice--see Kapa Associates v. Flores, 35 Conn.Supp. 274, 408 A.2d 22 (1979), and failure to provide such notice is fatal to the plaintiff seeking eviction . . ." DeCarli v. Boileau, Superior Court, judicial district of Tolland, Docket No. CV-05-4002696-S (August 9, 2005, Epstein, J.) (39 Conn.L.Rptr. 741, 741, ).
" Th[e] notice provision [of § 47a-15] has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to [General Statutes] § 47a-23 . . . The notice must be sufficient to apprise the tenant of the information the tenant needs to protect herself against premature, discriminatory or arbitrary eviction . . . To further this salutary purpose, the notice requirements of § 47a-15 must be construed strictly." (Citation omitted; internal quotation marks omitted.) Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993). The language of § 47a-15 clearly requires the landlord to " deliver a written notice to the tenant specifying . . . that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice." Strict construction of such language does not allow for a misstatement as to the amount of time the tenant has to cure. " [W]here the cure period included in a Kapa [notice] is inaccurate, i.e., where the duration of the statutory period to cure is misstated, conceivably having potential to mislead the tenant regarding the exercise of her statutory right to effectuate a timely remedy, it is my view that the § 47a-15 notice is deficient." Higgins v. Flemming, Superior Court, judicial district of Hartford, Docket No. HFH-CV-16-6001476-S (July 22, 2016, Mulcahy, J.T.R.) [63 Conn.L.Rptr. 106, ]. Because the notice to cure only provided for thirteen days; (see Pl.'s Ex. 1); it is not in compliance with § 47a-15.
There is a split in authority as to whether § 47a-15 applies to commercial leases. Compare Drew, LLC v. Hiller, Superior Court, judicial district of Stamford-Norwalk, Docket No. SNSP-031882 (October 27, 2005, Pinkus, J.) (40 Conn.L.Rptr. 700, 700, ) (" [t]he clear and unambiguous language of [General Statutes § § ]47a-1 and 47a-15 limits the application of § 47a-15 (and many other sections of chapter 830) to dwelling units only"), with DeCarli v. Boileau, supra, 39 Conn.L.Rptr. 741, (§ 47a-15 is applicable to commercial tenancies because 1997 amendments added language that explicitly refers to commercial tenancies to two separate provisions within the same chapter as § 47a-15). The reasoning of DeCarli v. Boileau, supra, 39 Conn.L.Rptr. 741,, however, was explicitly rejected by our Appellate Court in Vidiaki, LLC v. Just Breakfast and Things!!!, LLC, 133 Conn.App. 1, 12-13, 33 A.3d 848 (2012) (interpreting General Statutes § 47a-11 to apply only to residential tenancies). Section 47a-15 is part of chapter 830 of the General Statutes; see DeCarli v. Boileau, supra, 39 Conn.L.Rptr. 741,; and as such, " we must look to the definitions applicable to chapter 830 set forth in General Statutes § 47a-1." Vidiaki, LLC v. Just Breakfast and Things!!!, LLC, supra, 133 Conn.App. 11. According to § 47a-1, " '[t]enant' means the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law." (Emphasis added.) § 47a-1. " 'Dwelling unit' means any house or building, or portion thereof, which is occupied, is designed to be occupied, or is rented, leased or hired out to be occupied, as a home or residence of one or more persons." (Emphasis added.) § 47a-1. " 'Premises' means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant ." (Emphasis added.) § 47a-1. Looking to these definitions, it is apparent that the term " tenant" in § 47a-15 does not include a commercial tenant. For the foregoing reasons, § 47a-15 does not apply to commercial leases. The lease agreement in the present action is commercial in nature; (see Pl.'s Ex. 1); any defect in the notice to cure, therefore, is irrelevant.
IV
NOTICE TO QUIT
" [T]he reasons for issuing a notice to quit set forth in [General Statutes] § 47a-23(a) are exclusive. They are the only reasons that an owner may rely on for issuing a valid notice to quit." HUD/Willow Street Apartments v. Gonzalez, 68 Conn.App. 638, 646, 792 A.2d 165 (2002). Section 47a-23(a) provides in relevant part: " When the owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact, desires to obtain possession or occupancy . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: . . . (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease . . .; (G) nuisance, as defined in section 47a-32, or serious nuisance, as defined in section 47a-15 or 21-80 . . . such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy . . . at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy."
General Statutes § 47a-32 provides: " In any action of summary process based upon nuisance, that term shall be taken to include, but shall not be limited to, any conduct which interferes substantially with the comfort or safety of other tenants or occupants of the same or adjacent buildings or structures."
General Statutes § 47a-15 provides in relevant part: " '[S]erious nuisance' means . . . substantial and wilful destruction of part of the dwelling unit or premises . . ."
General Statutes § 21-80 provides in relevant part: " '[S]erious nuisance' means . . . substantial and wilful destruction of part of the premises . . ."
Regarding form, § 47a-23(b) provides in relevant part: " The notice shall be in writing substantially in the following form: 'I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B.'" " A copy of such notice shall be delivered to each lessee or occupant or left at such lessee's or occupant's place of residence or, if the rental agreement or lease concerns commercial property, at the place of the commercial establishment by a proper officer or indifferent person. Delivery of such notice may be made on any day of the week." § 47a-23(c).
As discussed previously, the plaintiff was entitled to terminate the lease based on violation of the express terms therein, which is a valid reason set forth for issuance of a notice to quit in § 47a-23(a). The notice to quit was in its proper form as defined by § 47a-23(b), provided the defendant with twenty-seven days to quit possession, well more than the three required under § 47a-23(a), and the defendant admits service thereof as required by § 47a-23(c). (See Pl.'s Ex. 2; Answer ¶ 6, Docket Entry no. 119.) For all of these reasons, the plaintiff's summary process action does not fail for want of compliance with notice to quit requirements.
V
EQUITY
The defendant pleaded in her fifth special defense that even if the court is to find that the defendant breached the lease agreement, such breach is minor, and it would be inequitable to evict the defendant on such grounds. " [E]quitable defenses such as relief from forfeiture are available to tenants in summary process proceedings. In order to establish the defense, a tenant must show: (1) the tenant's breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord's injury is reparable." (Internal quotation marks omitted.) Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 435, 651 A.2d 281 (1994). " In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court . . ." (Internal quotation marks omitted.) Moasser v. Becker, 78 Conn.App. 305, 324, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003).
On or about April 5, 2015, the defendant bought the assets, inventory, name and goodwill of the cheese making business known as Meadow Stone Farm from the plaintiff for the price of $20,000. (Def.'s Ex. B.) The purchase price was contingent on a provision of a lease of the cheese barn located on the premises at 199 Hartford Road, Brooklyn, Connecticut (the premises) to the defendant for the term of three (3) years. (Def.'s Ex. B.)
The defendant took possession of the premises. The lease provides for an annual rent of $8,400 payable in monthly installments of $700 each on the first day of the month. The defendant has paid all monthly rental payments to the plaintiff. The nature of the business that is operated by the defendant is the manufacture of cheeses which require a high level of cleanliness and preparation, as well as, careful and controlled monitoring of the aging process. It is for this reason that the purchase and sale agreement required a minimum of a three year initial lease term. Because the cheeses are at different stages of the aging process, it makes moving the business difficult. The defendant would be required to find alternative facilities of the proper type and these must be available and prepared for occupancy. It would take approximately twelve months for the defendant to find another location without the loss of inventory or capacity.
CONCLUSION
The court concludes that (1) the tenant's breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord's injury is reparable. Since " equitable defenses . . . implicating the right to possession are available in a summary process proceeding"; Fellows v. Martin, 217 Conn. 57, 62, 584 A.2d 458 (1991); in light of such defense raised by the defendant, the court grants judgment of possession for the plaintiff but stays enforcement thereof provided the defendant pays the plaintiff $1,150 within fifteen days from the date of receipt of this court's decision.