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Renaissance Management Co. Inc. v. Barnes

Court of Appeals of Connecticut

August 22, 2017

RENAISSANCE MANAGEMENT COMPANY, INC.
v.
ANDRE BARNES ET AL.

          Argued March 16, 2017

         Procedural History

         Summary process action brought to the Superior Court in the judicial district of New Haven, Housing Session, where the court, Foti, J., denied the named defendant's motion to dismiss; thereafter, the court, Ecker, J., granted the named defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court; subsequently, the court, Ecker, J., issued a corrected memorandum of decision. Appeal dismissed.

          Hugh D. Hughes, with whom was David E. Schan-cupp, for the appellant (plaintiff).

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

          Lavine, Mullins and Bear, Js.

         Syllabus

         The plaintiff landlord sought, by way of a summary process action, to obtain possession of an apartment that had been rented to the defendant tenant. The plaintiff served the defendant with a notice to quit possession of the apartment and soon thereafter commenced this action. The defendant filed a special defense claiming that the retaliatory eviction statute (§ 47a-20) barred the plaintiff's action because the defendant had complained to a municipal authority about housing code violations related to certain repairs in the apartment and that authority had found violations of the housing code within six months of the commencement of the action. The defendant then filed a motion for summary judgment on that ground. The trial court granted the motion, concluding that § 47a-20 barred the action and that the plaintiff had failed to demonstrate that any of the statutory (§ 47a-20a) exceptions to § 47a-20 applied. The trial court specifically determined that the fitness and habitability requirements enunciated in Visco v. Cody (16 Conn.App. 444), wherein this court held that the defects alleged to be in need of repair must materially affect a leased unit's fitness and habitability to be a violation of § 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). Thereafter, the defendant appealed to this court, claiming, inter alia, that the trial court erred in determining that Visco was inapplicable to his defense of retaliatory eviction under § 47a-20. Following oral argument before this court, but before the court rendered its judgment, the defendant vacated and relinquished possession of the subject apartment to the plaintiff, and the court ordered supplemental briefing on the issue of mootness and any possible exception thereto because the sole remedy available to the plaintiff in its summary process action was possession of the apartment. In their briefs, both parties argued that the issue raised on appeal, that Visco applied to retaliatory eviction defenses brought under § 47a-20 (2), satisfied the capable of repetition, yet evading review exception to the mootness doctrine. Held that the plaintiff's appeal was dismissed because it was moot and no exception to the mootness doctrine was applicable to the facts and circumstances of the appeal: in the specific context of this appeal and in light of the limited factual record regarding the mootness issue and the recent procedural history of the case, the parties failed to satisfy the first prong of the capable of repetition, yet evading review exception to the mootness doctrine, which pertains to the length of the challenged action, as this court was not persuaded that this court or our Supreme Court would not be able to resolve in a later appeal, with a more complete factual record concerning the fitness and habitability aspect of each of the subject health code violations, whether the fitness and habitability requirements enunciated in Visco are applicable to a finding of municipal code violations pursuant to § 47a-20 (2); furthermore, there was no meritto the plaintiff's assertion that the failure of this court to determine in this appeal whether the fitness and habitability gloss previously applied to § 47a-20 (3) in Visco was applicable to § 47a-20 (2) would give rise to prejudicial collateral consequences to landlords in future summary process cases, our appellate courts having applied the collateral consequences doctrine only to instances in which the decision of the trial court gave rise to consequences specific to a party to the case.

          OPINION

          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-20 barred 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 ...


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