Opinion
No. HDSP-152727
June 21, 2010
MEMORANDUM OF DECISION
The plaintiff, Rowe 77 Associates LLC, ("Rowe") has brought this summary process action seeking to recover possession of the premises known as 178 Hungerford Street, Apt. 3A, Hartford, Connecticut from the defendants, Helen Pickett, John Doe and Jane Doe for nonpayment of rent. The plaintiff alleges that on or about October 23, 2007, the plaintiff and the Department of Social Services ("DSS") entered into an agreement for the plaintiff to provide shelter housing to the defendants. The plaintiff further alleges that DSS and the Department of Children and Families ("DCF") made rental payments to the plaintiff on Pickett's behalf at the rate of $42.00 per day from October 2007 until March 2009. The plaintiff further alleges that the DSS and DCF have ceased making payments on Pickett's behalf and no payments have been made since March 2009.
On July 24, 2009, Pickett moved to implead Susan I. Hamilton, Commissioner of DCF ("Hamilton"), alleging that DCF ceased making the rental payments "without written notice to Pickett and without providing her with an opportunity to be heard in violation of Section 22-4-3 of the Policy Manual of the Department of Children and
Families . . . and her right to due process under both the United States and Connecticut Constitutions." The motion to implead was granted on July 27, 2009 ( Aurigemma, J.). On July 29, 2009, Pickett filed a third party complaint against Hamilton. Hamilton moved to dismiss the third party which motion was granted by this court by memorandum of decision on January 10, 2010.
The matter was scheduled for trial and heard on February 22, 2010. At the conclusion of the plaintiff's case, the defendant moved to dismiss the action pursuant to
Practice Book § 15-8 for failure to make out a prima facie case. The court requested that the parties submit briefs on the claims of legal insufficiency raised by the defendant in her motion.
LEGAL STANDARD
"Practice Book Sec. § 15-8 provides in relevant part: "If, on the trial of any issue of fact in a civil matter tried to the court, the [petitioner] has produced evidence and rested, a [respondent] may move for judgment of dismissal, and the judicial authority may grant such motion if the [petitioner] has failed to make out a prima facie case . . ." Our courts have established that "`[a] prima facie case . . . is one sufficient to raise an issue to go to the trier of fact . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . In evaluating [the trial court's decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.' (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007); Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000)." Sullivan v. Thorndike, 104 Conn. App. 297, 302, 934 A.2d 827 (2007). See also Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 388, 966 A.2d 780 (2009).
DISCUSSION
Pickett argues that the plaintiff's action should be dismissed on three grounds.
I
The defendant's first argument is that the plaintiff failed to prove the existence of a rental agreement between the plaintiff and defendant under which rent was due which is essential for the plaintiff to prevail on its allegation of nonpayment of rent made in count one of its complaint. The defendant argues that the testimony established that "The only party who had an agreement with the plaintiff was the Department of Children and Families. . . ."
Under Connecticut General Statutes § 47a-1(i), a "rental agreement" is defined as "all agreements, written or oral, . . . embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises." Under General Statutes § 47a-1(1), a "tenant" is defined as "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." They defendant has offered no authority for its argument that a rental agreement must exist between a landlord and a tenant. The plaintiff offered testimony that the landlord had an agreement with DSS to provide temporary shelter housing to the plaintiff for any period of 60 days which agreement was assumed by DCF after the 60 day temporary shelter provided by DSS expired. Moreover, in paragraph 3 of the third party complaint filed by the defendant against DCF, and the defendant alleged "The Department of Children and Families has paid the rent for the premises known as 178 Hungerford Street, Apt. 3A, Hartford Connecticut on behalf of Helen Pickett from approximately December, 2007 through March, 2009." The third party complaint concludes with a request for "an order that the third-party defendant, Susan I. Hamilton, Commissioner of the Department of Children and Families, rental payments to Rowe 77 Associates, LLC, retroactive to the date said payments were terminated."
It is well established that a lease is a contract. Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007). It is also well established that a contract may be entered into for the benefit of a third party. Stow v. Smith, 184 Conn. 194, 196-97, 441 A.2d 81 (1981). The court finds that the defendant's first ground to dismiss the action is without merit.
II
The second ground to dismiss the action is that the plaintiff did not produce any evidence to prove that its claim in count two of its complaint that the defendant's right or privilege to occupy the premises had been terminated.
The defendant argues that in an action brought by an owner for termination of a right or privilege originally held by one to occupy premises, the notice to quit must follow the termination of the right or privilege. The defendant relies on a "plain reading" of
General Statutes § 47a-23 and a Superior Court case, Bershtein Enterprises, LLC v. Powers, 2004 WL 3220289 (November 1, 2004). In her memorandum of law, the defendant further asserts "[T]he plaintiff had to prove that an event occurred prior to the delivery of the notice to quit which terminated the defendant's right or privilege to occupy."
Putting aside the fact that the court does not agree with the defendant's argument, in the present case, the defendant acknowledged in her answer filed in response to the plaintiff's complaint, that "DCF notified me on May 09 that no more payments are being made." In the Joint Stipulation of Facts submitted, the parties agree that the notice to quit was served on June 4, 2009.
Whether a tenant's original right or privilege to occupy premises has terminated is a question to be determined by the trier of fact. The court rejects the defendant's claim that there is no evidence in the record to show that the defendant's right or privilege was terminated as alleged in count two of the plaintiff's complaint.
III
The defendant's third ground for dismissal is her claim that "The plaintiff's acceptance of rent after the service of the notice to quit renders the notice equivocal and therefore legally insufficient." The defendant argues that the plaintiff's acceptance of a payment from DCF in the amount of $10,836, on or about July 17, 2009, rendered the June 4, 2009 notice to quit equivocal. Although the notice to quit included a disclaimer that any payments received after the notice to quit were being accepted as use and occupancy payments and not as rent, the defendant argues that since "[I]n this matter the notice to quit with the use and occupancy disclaimer was never sent to DCF (which was the party actually paying the rent)."
A notice to quit must be an unequivocal manifestation by the lessor that he terminates the rental agreement. Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 686 (1983). The requirement that a notice to quit be unequivocal protects a tenant from confusion and uncertainty concerning the tenant's continuing right to remain in occupancy or the need to make other arrangements. The defendant cites Borst v. Ruff,
137 Conn. 359, 361-62, 77 A.2d 343 (1950) in her memorandum of law for the proposition that "A use and occupancy admonition serves two useful purposes. It avoids misleading tenants who tender late payments and it insulates the summary process action from being flawed by the acceptance of rent after commencement of the summary process." In this case, the payment was made by DCF and there was no showing that the defendant was misled, or even aware of the payments made by DCF on her behalf. There could be no danger that the notice to quit could be rendered equivocal, misleading or confusing as to the defendant by the payment of the plaintiff's invoice in July 2009. Moreover, the plaintiff's representative, Carlos Valinho, testified that the plaintiff billed DCF by periodic invoices which were paid by DCF at various times. Valinho testified that the plaintiff received payments of $2,520 on April 24, 2008, $2,520 on July 1, 2008, and $2,520 on December 19, 2008. No invoices were paid by DCF until the $10,836 received in July 2009 which represented payment through March 5, 2009.
The court finds that the defendant's claim that the plaintiff's receipt of payment from DCF for the shelter housing provided by the plaintiff for the period through March 5, 2010 did not render the notice to quit equivocal.
For the foregoing reasons, the defendant's motion to dismiss, brought pursuant to Practice Book § 15-8, is hereby DENIED.
SO ORDERED.