Colonial Investors, LLC v. Furbush , 175 Conn. App. 154 ( 2017 )

COLONIAL INVESTORS, LLC v. LOIS FURBUSH ET AL.
(AC 38303)
DiPentima, C. J., and Alvord and Schaller, Js.
Syllabus
The plaintiff owner of a mobile home park sought, by way of summary
process, to regain possession of certain premises leased to the defendant
in connection with the defendant’s alleged nonpayment of rent. The
defendant alleged several special defenses, including that the notice to
quit was legally insufficient, that certain charges assessed by the plaintiff
were improperly treated as part of her rent and thereby improperly
increased the amount of her arrearage, and that the plaintiff had misap-
plied a payment to the defendant’s arrearage rather than to her current
monthly rental obligation. The trial court rendered a judgment of posses-
sion in favor of the plaintiff, from which the defendant appealed to this
court. She claimed, inter alia, that the trial court lacked subject matter
jurisdiction due to the legal insufficiency of the notice to quit. Held:
1. The defendant could not prevail on her claim that the notice to quit was
legally insufficient because it failed to inform her clearly of her statutory
(§ 21-80) right to avoid eviction by paying the total arrearage due within
thirty days of receipt; the notice to quit clearly specified the total arrear-
age due and adequately informed the defendant of her right to avoid
eviction by paying the total arrearage due within thirty days of receipt,
and the disclaimer in the notice to quit that any partial payments would
be accepted for use and occupancy only and not for rent was substan-
tially similar to the use and occupancy disclaimer set forth in the general
summary process statute (§ 47a-23 [e]), which applied to mobile home
parks pursuant to § 21-80 (a), and, therefore, was not misleading or
ambiguous.
2. The defendant could not prevail on her claim that the trial court improperly
determined that it did not need to decide her second special defense,
in which she alleged that the plaintiff improperly imposed customer
service charges for utilities as rent and that the plaintiff’s charges for
utilities in excess of the defendant’s usage were illegal and could not
serve as a basis for an eviction for nonpayment of rent: that court, which
concluded that it did not need to find that the surcharges for the utilities
were excessive or against public policy because, even if they were not
enforced, there would still be an arrearage at the time that the notice
to quit was served, in effect rejected the defendant’s second special
defense as a basis for attacking the legal sufficiency of the notice to
quit; moreover, on the basis of the plain and unambiguous language of
the parties’ renewal rental agreement and the accompanying documents
related to the defendant’s billing, the customer service charges were
properly included as a component of the rent billed to the defendant,
and, therefore, the past arrearage due in the notice to quit was correct.
3. The trial court properly rejected the defendant’s claim in her second
special defense that the notice to quit included improper water charges
and, thus, was legally insufficient, which was based on her claim that
the plaintiff had engaged in illegal submetering in violation of the state
regulation (§ 16-11-55) that requires that submetering of water be
approved by the state Public Utilities Commission; that court properly
determined that the plaintiff submetered water from the Metropolitan
District Commission, which, by the plain language of the relevant statute
(§ 16-1 [a] [6]), was not subject to that regulation, and, therefore, the
notice to quit was not legally insufficient on that basis.
4. The trial court properly determined that the defendant’s April, 2014 pay-
ment was correctly applied to a past arrearage that was due rather
than to her current monthly rental obligation; because each monthly
statement given to the defendant included any balance remaining from
the previous month, and because the defendant often tendered payments
exceeding her monthly rental obligation, which lowered her past arrear-
age due, it was clear from the parties’ course of performance that the
defendant was aware that her payments were applied first to her total
arrearage due and then to her current rental obligation.
Argued February 1—officially released August 1, 2017
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of Hartford, Housing Ses-
sion, where the court, Woods, J., denied the named
defendant’s motion to dismiss; thereafter, the matter
was tried to the court; judgment for the plaintiff, from
which the named defendant appealed to this court; sub-
sequently, the court, Woods, J., denied the named defen-
dant’s motion for an articulation. Affirmed.
David A. Pels, with whom, on the brief, was Gio-
vanna Shay, for the appellant (named defendant).
Colin P. Mahon, with whom was Thomas T. Lom-
bardo, for the appellee (plaintiff).
Opinion
SCHALLER, J. The defendant Lois Furbush1 appeals
from the judgment of the trial court in favor of the
plaintiff, Colonial Investors, LLC, in this summary pro-
cess action. On appeal, the defendant claims that the
trial court (1) lacked subject matter jurisdiction over the
summary process action due to the legal insufficiency
of the notice to quit and (2) improperly held that the
defendant’s April, 2014 payment to the plaintiff cor-
rectly was applied to her past arrearages that were due
rather than to her April, 2014 rent obligation. We affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. The plaintiff owns a
mobile home site in East Hartford known as Colonial
Mobile Home Park (park). The plaintiff leases the 460
lots in the park to tenants who own mobile homes. In
August 2012, the defendant, who owned and occupied
a mobile home, signed a one year rental agreement
for a lot, and, in August, 2013, the defendant signed a
renewal of rental agreement (renewal) for an additional
year. Pursuant to the rental agreement and renewal,
the defendant was to pay a base rent of $420, as well
as additional rent, which included utility charges for
kerosene, propane, and water.
By January, 2013, the defendant was in arrears on
her monthly rent payments. As of April 1, 2014, the
defendant had an outstanding arrearage of $1615.13.
This included base rent and additional rent. On April
11, 2014, the defendant made a $600 payment to the
plaintiff, which was applied to the outstanding arrear-
age. After said payment, the defendant had a remaining
balance of $1015.13.
On April 30, 2014, the plaintiff served the defendant
with a notice to quit possession of the premises on or
before June 2, 2014. The ground stated in the notice
was for nonpayment of rent totaling $1015.13. Pursuant
to the notice to quit, the defendant could avoid eviction
should she pay the total arrearage due within thirty
days of receipt of the notice. The defendant, however,
did not tender any payment to the plaintiff within the
thirty days.
Thereafter, on June 13, 2014, the plaintiff commenced
this summary process action. In its one count amended
complaint, the plaintiff alleged that the defendant failed
to pay rent for the month of April, 2014, failed to tender
the total arrearage due to the plaintiff following the
receipt of the notice to quit, and subsequently failed to
quit possession of the premises by the time designated
in the notice to quit. On June 30, 2014, the defendant
filed a motion to dismiss for lack of subject matter
jurisdiction on the ground that the notice to quit was
legally insufficient. The trial court denied the motion
on July 23, 2014.
On October 14, 2014, the defendant filed an answer
and special defenses. The first special defense alleged
that the defendant tendered, and the plaintiff accepted,
rent for the month of April, 2014, prior to the delivery
of the notice to quit. The second special defense alleged
that the plaintiff submetered water at the park without
the necessary approval required by § 16-11-55 of the
Regulations of Connecticut State Agencies. The third
special defense alleged that the notice to quit was legally
insufficient in that it did not state correctly the rent
due for April, 2014. After a trial before the court, the
trial court issued a written decision on August 21, 2015,
in which it rendered judgment of possession of the
premises for the plaintiff. The defendant then filed this
appeal. Additional facts will be set forth as necessary.
Before addressing the specifics of the defendant’s
claims, it is helpful to identify the legal principles
regarding summary process actions. ‘‘Summary process
is a special statutory procedure designed to provide an
expeditious remedy. . . . It enable[s] landlords to
obtain possession of leased premises without suffering
the delay, loss and expense to which, under the com-
mon-law actions, they might be subjected by tenants
wrongfully holding their terms. . . . Summary process
statutes secure a prompt hearing and final determina-
tion. . . . Therefore, the statutes relating to summary
process must be narrowly construed and strictly fol-
lowed.’’ (Internal quotation marks omitted.) Sullivan
v. Lazzari, 135 Conn. App. 831, 835, 43 A.3d 750, cert.
denied, 305 Conn. 925, 47 A.3d 884 (2012).
I
The defendant first claims that the trial court lacked
subject matter jurisdiction over the summary process
action because the notice to quit was legally insuffi-
cient. Specifically, she argues that the notice to quit
failed to inform her clearly of her right to avoid eviction
by paying the total arrearage due within thirty days
of receipt. Moreover, she argues that the trial court
improperly failed to consider her special defenses that
the customer service charges were imposed improperly
as rent and that the water was submetered illegally,
which led to the significant inflation of the past arrear-
age due as stated in the notice to quit.
Our Supreme Court previously has articulated the
standard for ‘‘reviewing challenges to the trial court’s
subject matter jurisdiction in a summary process action
on the basis of a defect in the notice to quit. Before
the [trial] court can entertain a summary process action
and evict a tenant, the owner of the land must previously
have served the tenant with a notice to quit. . . . As
a condition precedent to a summary process action,
proper notice to quit . . . is a jurisdictional necessity.
. . . This court’s review of the trial court’s determina-
tion as to whether a notice to quit served by the plaintiff
effectively conferred subject matter jurisdiction is ple-
nary.’’ (Citations omitted; internal quotation marks
omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381,
388, 973 A.2d 1229 (2009).
The requirements for a notice to quit in a summary
process action involving a mobile home is governed by
General Statutes § 21-80 (b) (3). ‘‘Notwithstanding the
provisions of [General Statutes] § 47a-23,2 the general
summary process statute, when a tenant, as in this case,
breaches her lease by failing to pay rent, and the land-
lord seeks to terminate the tenancy, the landlord must
follow the procedures enunciated in § 21-80 (b) (3) (B).3
. . . [U]nder the plain language of § 21-80 (b) (3) (B),
the prerequisites to the maintenance of a summary pro-
cess action for nonpayment of rent are a written thirty
day notification to the tenant and a statement of the
total arrearage due.’’ (Footnotes added.) Ossen v. Kreu-
tzer, 19 Conn. App. 564, 568–69, 563 A.2d 741 (1989).
A
We begin with the defendant’s claim that the use and
occupancy disclaimer included in the notice to quit was
not a clear notification of the defendant’s right pursuant
to § 21-80 to avoid eviction by making full payment of
past arrearage due within thirty days of receipt. The
defendant argues that, because the plaintiff did not com-
ply with the requirements of § 21-80, the trial court
lacked subject matter jurisdiction.
The following facts and procedural history are rele-
vant to this claim. The notice to quit included the follow-
ing disclaimer: ‘‘ANY PARTIAL PAYMENTS
TENDERED WILL BE ACCEPTED FOR USE AND
OCCUPANCY ONLY AND NOT FOR RENT, WITH FULL
RESERVATION OF RIGHTS TO CONTINUE WITH THE
EVICTION ACTION IF THE TOTAL OF ALL PARTIAL
PAYMENTS MADE WITHIN 30 DAYS OF RECEIPT OF
THIS NOTICE DOES NOT EQUAL THE TOTAL
ARREARAGE STATED ABOVE. ALL PAYMENTS
SHOULD BE MADE TO THE ATTORNEY’S
OFFICE AND NOT TO THE LANDLORD.’’ (Empha-
sis in original.) In its motion to dismiss, the defendant
argued that the notice to quit failed to meet the require-
ments of § 21-80 because it did not indicate that the
defendant could avoid eviction by paying the past
arrearage due. The trial court denied the defendant’s
motion to dismiss, finding that the notice to quit satis-
fied the requirements of § 21-80.
‘‘Under [§ 21-80 (b) (3) (B)], to effectuate the termina-
tion [of a tenancy for nonpayment of rent] the landlord
must give the resident thirty days written notice and
that notice must state the total arrearage due. If the
tenant tenders the total arrearage due within the thirty
day notice period provided in this section, the landlord
‘shall not maintain or proceed with the summary pro-
cess action.’ General Statutes § 21-80 (b) (3) (B). The
purpose for reciting the total arrearage due in the notice
is to afford the tenant a final opportunity to save the
tenancy by tendering the total arrearage within the
thirty day grace period. If tender is made within the
grace period, the statute bars further action by the land-
lord.’’ Ossen v. Kreutzer, supra, 19 Conn. App. 568.
In the present action, the notice to quit clearly speci-
fied the total arrearage due; it stated that the defendant
owed rent of $834.09 for April, 2014, the balance of
$160.04 for March 2014 rent, and a late fee of $21, for
a total of $1015.13. The use and occupancy disclaimer
then provided the required notice period; it made clear
that the defendant had a thirty day grace period in
which she could make payments totaling the past
arrearage due in order to avoid eviction. Specifically,
the disclaimer stated that the plaintiff reserved the
‘‘rights to continue with the eviction action if the total
of all partial payments made within 30 days of receipt
of this notice does not equal the total arrearage
stated above.’’
The defendant, however, claims that the use and
occupancy disclaimer was not a clear statement of this
grace period, but rather a misleading statement that
discouraged her from tendering payment. With regard
to the appropriate language for a use and occupancy
disclaimer, § 21-80 does not provide any guidance. Pur-
suant to § 21-80 (a), however, the provisions for sum-
mary process in mobile home parks are in addition to
the provisions for summary process under chapter 832,
unless otherwise specified.4 Section 47a-23, which falls
under chapter 832, provides an example of a use and
occupancy disclaimer, and, therefore we may examine
it in relation to the disclaimer in the present case.
Accordingly, § 47a-23 (e) provides that: ‘‘[A use and
occupancy] disclaimer shall be in substantially the fol-
lowing form: ‘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 con-
tinue with the eviction action.’ ’’ The use and occupancy
disclaimer in the present case is substantially similar
to that in § 47a-23 (e), clearly indicating that future
payments by the defendant will be accepted for use
and occupancy, not as rent, but that such payments
may help the defendant avoid eviction should the total
of her payments equal her past arrearage due of
$1015.13.
In addition, the defendant claims that the disclaimer
lacks clarity because it is a sentence of over fifty words
with a double negative. Specifically, the defendant sug-
gests that the phrases ‘‘and not for rent’’ and ‘‘does not
equal’’ create a double negative. With regard to the
phrase ‘‘and not for rent,’’ the inclusion of the word
‘‘not’’ is to indicate to the defendant that all payments
tendered will be accepted not for rent, but rather for
use and occupancy only. The same language can be
seen in the suggested disclaimer found in § 47a-23 (e).
With regard to the phrase ‘‘does not equal,’’ the inclusion
of the word ‘‘not’’ is to indicate that, if the defendant
makes payments within thirty days of receipt of the
notice, but these payments do not equal the past arrear-
age due, the defendant cannot avoid eviction. In neither
context does the inclusion of the word ‘‘not’’ create a
double negative. We therefore determine that there is
no ambiguity regarding the language used in the use
and occupancy disclaimer. Accordingly, we conclude
that the notice to quit was legally sufficient in this
regard.
B
The defendant next claims that the trial court improp-
erly determined that it need not decide the defendant’s
claims alleged in the second and third special defenses
that the past arrearage due in the notice to quit was
incorrect, thereby causing the notice to be legally insuf-
ficient pursuant to § 21-80 and consequently depriving
the trial court of subject matter jurisdiction. Specifi-
cally, the defendant claims that the trial court improp-
erly held that it need not decide whether the plaintiff
imposed customer service charges for the utilities as
rent in violation of the parties’ rental agreement.5 Fur-
thermore, the defendant claims that the trial court
improperly held that it need not decide whether the
plaintiff engaged in submetering in violation § 16-11-55
of the Regulations of Connecticut State Agencies, which
led to the inclusion of improper water charges in the
past arrearage due.
The following facts and procedural history are rele-
vant to the defendant’s claim. Pursuant to the renewal,
kerosene, propane, and water ‘‘will be billed . . .
based on the usage at the rate posted in the park office
. . . . Except for the . . . delineated rental payments
and the utility charges [provided in § 3 of the renewal],
the [plaintiff] shall not collect any service charges . . .
unless itemized in billing to Resident and authorized
elsewhere in this [r]ental [a]greement. Any charges or
expenses assessed under the provisions of this [r]ental
[a]greement or the [r]ules and [r]egulations of the [p]ark
shall be paid to the [plaintiff] as additional rent . . . .’’
As part of additional rent, the defendant was billed for
all kerosene usage, plus an additional $.70 per gallon
of kerosene used; all propane usage, plus an additional
$.45 per gallon of propane used; and all water usage,
plus a $40.40 quarterly customer service charge. The
monthly statements sent to the defendant included indi-
vidual charges for kerosene and propane, and two dis-
tinct water charges, one for usage and one for the
customer service charge.
With respect to water usage, the Metropolitan District
Commission (MDC) supplies the water to the park. Spe-
cifically, MDC delivers the water to the master meter
at the park. From the master meter, the plaintiff distrib-
utes the water to individual meters located on each of
the occupied lots. The trial court heard evidence that
the individual meters measure the water usage at each
individual lot. These readings are recorded and sent to
the park’s corporate offices where bills are generated.
The tenants are billed quarterly for water, and the total
owed is comprised of actual water usage as measured
by the individual meter and a quarterly customer service
charge of $40.40. The plaintiff collects payment from
the tenants and pays the usage portion of the bill to
the MDC. The plaintiff retains the quarterly customer
service charge to cover the cost of maintaining the
water system that connects the MDC master meter to
the individual meters.
Generally, in determining whether a court lacks sub-
ject matter jurisdiction, the inquiry does not extend to
the merits of the case. See Lampasona v. Jacobs, 209
Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919,
109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989). In Lampasona,
however, our Supreme Court, in considering whether
the trial court lacked subject matter jurisdiction over
a summary process action, determined that an examina-
tion of the facts was necessary. Id. Specifically, the
court determined that, because proper notice to quit is
a jurisdictional necessity for a summary process action,
and the defendant in that case claimed that the notice
to quit complied with the inapplicable general summary
process provision rather than the applicable mobile
home summary process provision, the court was
required to determine which provision applied. Id., 726,
730. To resolve which provision applied, the court had
to examine the facts of the case to determine whether
the defendant was a resident of the plaintiff’s mobile
home park. Id., 730. In the present case, the defendant
claims that the trial court lacked subject matter jurisdic-
tion because the notice to quit was defective for failure
to state properly the total arrearage due. The dispositive
question in determining if the arrearage was stated
properly is whether the customer service charges and
water charges constituted rent, and, therefore, an exam-
ination of the facts is necessary.
1
We first address the defendant’s claim that the trial
court improperly held that it did not need to decide
whether, as alleged in the defendant’s second special
defense, the plaintiff improperly imposed customer ser-
vice charges for utilities as rent, in violation of the
parties’ rental agreement. Specifically, the court held:
‘‘The defendant’s second special defense is that the
plaintiff’s charges for utilities in excess of the tenant’s
usage [are] illegal and therefore cannot serve as the
basis for an eviction for nonpayment of rent. The court
does not need to find that the surcharges for the utilities
are excessive and against public policy . . . because
even if the surcharges are not enforced, there would
still be an arrearage at the time that the notice to quit
was served.’’ Therefore, although the defendant argues
that the trial court did not decide her second special
defense, the record shows that the court essentially
rejected the second special defense as a basis for
attacking the legal sufficiency of the notice to quit due to
the existence of an arrearage apart from the challenged
surcharges. Nevertheless, we conclude that the cus-
tomer service charges were a proper component of the
rent billed to the defendant.
‘‘In construing a written lease . . . three elementary
principles must be [considered]: (1) The intention of
the parties is controlling and must be gathered from the
language of the lease in the light of the circumstances
surrounding the parties at the execution of the instru-
ment; (2) the language must be given its ordinary mean-
ing unless a technical or special meaning is clearly
intended; [and] (3) the lease must be construed as a
whole and in such a manner as to give effect to every
provision, if reasonably possible.’’ (Internal quotation
marks omitted.) Elliott Enterprises, LLC v. Goodale,
166 Conn. App. 461, 469, 142 A.3d 335 (2016).
The defendant claims that the rental agreement and
renewal6 did not contain an agreement that the defen-
dant would pay utility charges beyond actual usage.
The facts and the evidence before the trial court, how-
ever, do not support the defendant’s position. The plain-
tiff treated as rent the ‘‘base rent in equal monthly
installments’’ pursuant to § 3 (B) and ‘‘additional rent’’
pursuant to § 3 (C) of the renewal. Under the clear
language of § 3 (C) of the renewal, all utilities are billed
based on usage, and the rates at which they are billed
are posted in the park office. The renewal and rental
agreement do not mention the customer service charges
related to each utility. Section 3 (D)7 of the renewal,
however, states that service charges may be collected if
they are itemized in billing to the tenant and authorized
elsewhere in the rental agreement. Section 5 (A) (6)
of the rental agreement states that the plaintiff is to
maintain all utilities provided by it, and § 5 (A) (7)
specifically states that the plaintiff is to maintain all
water lines and connections.
Recognizing that, when construing the renewal and
rental agreement as a whole rent consists of multiple
components, we conclude that the customer service
charges billed to the defendant were not in violation
of the rental agreement. Although the customer service
charges were not listed specifically as additional rent
in § 3 (C) of the renewal, they were authorized as addi-
tional rent through § 3 (D) of the renewal and § 5 of
the rental agreement, for they were customer service
charges that were a necessary part of maintaining the
utilities and the water system. The details of how the
customer service charges were calculated into the bill-
ing of utilities were provided to the defendant in utility
rate notices sent to all residents of the park. The utility
rate notices confirmed that the billing rates also would
be posted in the park office, as stipulated in the
renewal.
Moreover, the defendant’s monthly statements item-
ized these customer service charges. Each monthly
statement given to the defendant provided individual
utility details for kerosene, propane, and water. For
kerosene and propane, the rate at which usage was
billed included the customer service charges. The inclu-
sion of the charge in the rate was stipulated in the utility
rate notices sent to the tenants. The total billed each
month for propane and kerosene match the monthly
entries in the plaintiff’s ledgers. With regard to the water
charges, a quarterly customer service charge was listed
consistently under the water detail in the defendant’s
monthly statements. The customer service charge, how-
ever, was only included in the monthly balance due
every three statements. These charges coincide with
the plaintiff’s ledgers, which included water charges
every three entries. On the basis of the plain and unam-
biguous language in the renewal, rental agreement, and
the accompanying documents related to the defendant’s
billing, the customer service charges were a proper
component of the rent billed to the defendant, and,
therefore, the past arrearage due in the notice to quit
was correct. Consequently, this challenge to the legal
sufficiency of the notice to quit fails.
2
We next address the defendant’s claim that the trial
court improperly held that it need not decide whether
the plaintiff engaged in illegal submetering as alleged in
her second special defense. Specifically, the defendant
argues that the plaintiff engaged in submetering in viola-
tion of § 16-11-55 of the Regulations of Connecticut
State Agencies because that regulation requires that
submetering be approved by the state Public Utilities
Commission (commission), and the MDC does not have
such approval.8 As a result, the defendant claims that
the notice to quit was legally insufficient, for the total
arrearage stated was inflated significantly by the inclu-
sion of improper water charges.
We first note that the trial court did make a determina-
tion with regard to this aspect of the defendant’s special
defense. Specifically, the trial court held that the MDC
was a water company that was not regulated by the
Public Utilities Regulatory Authority (PURA), the
authority under which § 16-11-55 was promulgated, and,
therefore, it rejected the special defense.9 We further
conclude that the trial court properly rejected the defen-
dant’s special defense.
This issue of whether § 16-11-55 of the Regulations
of Connecticut State Agencies applies to the MDC pre-
sents a question of statutory interpretation. ‘‘Adminis-
trative rules and regulations are given the force and
effect of law. . . . We therefore construe agency regu-
lations in accordance with accepted rules of statutory
construction.’’ (Citations omitted; internal quotation
marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734,
751, 865 A.2d 428 (2005). ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z10
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Footnote in original; internal
quotation marks omitted.) In re William D., 97 Conn.
App. 600, 606, 905 A.2d 696 (2006), aff’d, 284 Conn. 305,
933 A.2d 1147 (2007).
We begin our analysis with the governing statute and
its accompanying regulation. Pursuant to General Stat-
utes § 16-1 et seq., public service companies, including
water companies, are regulated by PURA. A water com-
pany includes ‘‘every person owning, leasing, main-
taining, operating, managing or controlling any pond,
lake, reservoir, stream, well or distributing plant or
system employed for the purpose of supplying water
to fifty or more consumers,’’ but it does not include ‘‘a
municipal waterworks system established under chap-
ter 102, a district, metropolitan district, municipal dis-
trict or special services district established under
chapter 105, chapter 105a or any other general statute
of any public or special act which is authorized to supply
water . . . .’’ General Statutes § 16-1 (a) (6). Pursuant
to this statutory authority, PURA promulgated § 16-11-
55 of the Regulations of Connecticut State Agencies,
subdivision (4) of which requires a public service com-
pany to receive the approval of the commission to
submeter.
The MDC was created in 1929 by a special act of the
Connecticut General Assembly, which declares that the
MDC is a metropolitan district within the county of
Hartford formed to provide water and sewage services.
20 Spec. Acts 1204, No. 511, § 1 (1929);11 see Rocky Hill
Convalescent Hospital, Inc. v. Metropolitan District,
160 Conn. 446, 450, 280 A.2d 344 (1971). As a metropoli-
tan district established through a special act, the MDC
falls within the exception set forth in § 16-1 (a) (6).
Thus, the MDC was not required to receive approval
from the commission to submeter at the park. Accord-
ingly, the trial court properly rejected the defendant’s
special defense that the MDC’s submetering of the water
was in violation of § 16-11-55 of the Regulations of Con-
necticut State Agencies.
We conclude that the notice to quit was legally suffi-
cient. Accordingly, the trial court properly assumed
jurisdiction over the summary process action.
II
The defendant further claims that the trial court
improperly determined that her April, 2014 payment
was applied correctly to the past arrearage instead of
her April, 2014 rent obligation. Specifically, the defen-
dant argues that no evidence was presented that stan-
dard practice between the parties was to have payments
applied to the past arrearage due before the current
monthly obligation. Rather, the defendant argues that
this was an uncommunicated, unilateral practice of
the plaintiff.
The following facts and procedural history are rele-
vant to the defendant’s claim. The trial court heard
evidence that, if a tenant is in arrears, the custom of
the plaintiff is to apply any payment by the tenant to
the arrearage first. The tenants are not specifically noti-
fied as to how their payments are being applied, but
the practice is memorialized through the monthly state-
ments that tenants are given. The plaintiff’s ledgers
also reflect this practice. As recorded in the plaintiff’s
ledgers, as of April, 2014, the defendant owed a balance
of $1615.13. On April 11, 2014, the plaintiff recorded in
its ledger a $600 payment made by the plaintiff, which
left a balance of $1015.13. Said payment also was
reflected in a statement provided to the defendant.
Whether the defendant’s April, 2014 payment prop-
erly was applied to the past arrearage due is a mixed
question of law and fact. ‘‘Questions of law mixed with
questions of fact receive plenary review.’’ Duperry v.
Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002). ‘‘When
a debtor has two or more obligations to the same credi-
tor, the debtor possesses the power to direct the manner
in which his payment is to be applied. . . . The obligor
must manifest his direction to the obligee, but he need
not manifest it in words. A direction may be inferred
from other circumstances, including the performance
itself. It is often clear from the nature of the perfor-
mance that it is to be applied to a particular duty.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) South Sea Co. v. Global Turbine Com-
ponent Technologies, LLC, 95 Conn. App. 742, 750–51,
899 A.2d 642 (2002).
Applying the reasoning of South Sea Co. to the pre-
sent case, we may consider the defendant’s conduct,
the parties’ course of performance, and the defendant’s
failure to give a contrary direction in determining the
proper application of the April, 2014 payment. Each
monthly statement given to the defendant included any
balance remaining from her previous month, thus pro-
viding her with the past arrearage due. By the time
that the defendant’s April, 2014 payment was made, the
defendant had received numerous monthly statements
and tendered payments based on the amount identified
in each statement as due. On many of these occasions,
the payments tendered exceeded the monthly rent and
thus further lowered her past arrearage due. Conse-
quently, it may be inferred that the defendant was aware
that her payments were applied first to her total arrear-
age due and then to her current monthly obligation.
Despite the defendant’s having knowledge of the man-
ner in which the payments were applied, nothing in the
record suggests that she gave the plaintiff direction to
apply the April, 2014 payment first to the April rent
obligation instead of the past arrearage due. Because
nothing suggests that the defendant gave direction to
the plaintiff, either actually or inferentially, we conclude
that the trial court properly determined that the defen-
dant’s April, 2014 payment was correctly applied to
the past arrearage due rather than to her April, 2014
rent obligation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiff’s amended complaint originally named Lois Fur-
bush and Piper Goehring as defendants, the plaintiff subsequently moved
for default against Goehring for failure to appear, which the court granted
on June 1, 2016, and she has not participated in this appeal. We therefore
refer to Furbush as the defendant.
2
General Statutes § 47a-23 is the general summary process statute that
governs the form and delivery of notices to quit possession, whereas § 21-
80 is the provision specific to mobile home summary process actions. See
Lampasona v. Jacobs, 209 Conn. 724, 726, 553 A.2d 175, cert. denied, 492
U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989).
3
General Statutes § 21-80 (b) (3) provides in relevant part: ‘‘Notwithstand-
ing the provisions of section 47a-23, termination of any tenancy in a mobile
manufactured home park shall be effective only if made . . . (B) By the
owner giving the resident at least sixty days’ written notice, which shall
state the reason or reasons for such termination, except that, when the
termination is based upon subparagraph (A) of subdivision (1) of this subsec-
tion, the owner need give the resident only thirty days’ notice, which notice
shall state the total arrearage due provided, the owner shall not maintain
or proceed with a summary process against a resident who tenders the total
arrearage due to the owner within such thirty days . . . .’’
General Statutes § 21-80 (b) (1) provides in relevant part: ‘‘[A]n owner
may terminate a rental agreement or maintain a summary process action
against a resident who owns a mobile manufactured home . . . for . . .
(A) Nonpayment of rent, utility charges or reasonable incidental service
charges . . . .’’
4
General Statutes § 21-80 (a) provides in relevant part: ‘‘An action for
summary process may be maintained by the owner of a mobile manufactured
home park against a mobile manufactured home resident who rents a mobile
manufactured home from such owner for the following reasons, which shall
be in addition to other reasons allowed under chapter 832, and, except as
otherwise specified, proceedings under this subsection shall be as prescribed
in chapter 832 . . . .’’
5
On appeal, the defendant initially argued that the customer service
charges were imposed as rent in violation of the parties’ lease agreement
and General Statutes § 47a-4 (a) (9). The defendant, pursuant to Practice
Book § 67-10, subsequently withdrew § 47a-4 (a) (9) from her argument on
the premise that General Statutes § 47a-2 (b) excludes from § 47a-4 (a) (9)
mobile home owners who own their mobile homes but rent the lots on
which the homes are situated.
6
The renewal substituted § 3 of the rental agreement, but otherwise incor-
porated all of the terms of the rental agreement.
7
In the renewal, the subsection of § 3 discussing service charges is labeled
‘‘A.’’ The subsection is mislabeled, however, and should be labeled ‘‘D,’’ as
provided in § 3 of the rental agreement. Therefore, we refer to the subsection
of the lease addressing customer service charges as § 3 (D).
8
The defendant also argues that the water customer service charge was
an unfair or deceptive trade practice within the meaning of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.,
and, therefore, its inclusion in the rent was improper. ‘‘[A] violation of
CUTPA may be established by showing either an actual deceptive practice
. . . or a practice amounting to a violation of public policy.’’ (Internal quota-
tion marks omitted.) Gebbie v. Cadle Co., 49 Conn. App. 265, 279, 714 A.2d
678 (1998). In her brief, the defendant merely states that the discrepancy
between what the plaintiff collects from its tenants and what it owes to the
MDC is enormous, and that the plaintiff deceives its residents by billing a
customer service charge on the claim that it is related to MDC charges.
No further analysis is given. Accordingly, we only address the illegality
of submetering as to the applicability of § 16-11-55 of the Regulations of
Connecticut State Agencies, which the defendant adequately briefed and
argued before this court. See Strobel v. Strobel, 73 Conn. App. 488, 490, 808
A.2d 1138 (‘‘[w]e consistently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly’’ [internal quotation marks omitted]), cert.
denied, 262 Conn. 928, 814 A.2d 383 (2002).
9
The trial court also held that ‘‘[a] per se violation of this regulation,
without more, would not rise to the level of a special defense in this action
because the court finds that the charges for water usage (not the quarterly
customer service charge) were reasonable.’’
10
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
11
The act provides in relevant part: ‘‘There shall be within the county of
Hartford a metropolitan district with territorial limits as hereinafter more
particularly defined. All the inhabitants and electors of the towns composing
said metropolitan district are constituted and declared, upon the taking
effect of this act as hereinafter provided, body politic and corporate by the
name of The Metropolitan District . . . .’’ (Emphasis added.) 20 Spec. Act
1204, No. 511, § 1 (1929).