Commission on Human Rights & Opportunities ex rel. Cortes v. Valentin ( 2022 )

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COMMISSION ON HUMAN RIGHTS AND
OPPORTUNITIES EX REL. JULISSA
CORTES v. MARGARET VALENTIN
(AC 43887)
Bright, C. J., and Elgo and DiPentima, Js.
Syllabus
The intervening plaintiff C filed a complaint with the plaintiff Commission
on Human Rights and Opportunities alleging discrimination in housing
against the defendant. The commission filed a complaint in the trial
court, claiming that the defendant had engaged in a prohibited discrimi-
natory housing practice pursuant to statute (§ 46a-64c (a) (1) and (3))
by denying C an opportunity to rent or view a rental property and making
discriminatory statements about C’s ability to rent the property on the
basis of a lawful source of income, a voucher pursuant to section 8 of
the National Housing Act (42 U.S.C. § 1437f). The defendant, who had
told C that the property was not ‘‘section 8 ready,’’ also claimed that
C’s credit score, which C had reported as ‘‘fair,’’ did not meet her
requirements. The court rendered judgment in favor of the commission
and C, and the defendant appealed to this court. Held:
1. The defendant could not prevail on her claim that there was insufficient
evidence in the record to support the trial court’s conclusion that the
defendant violated subdivisions (1) and (3) of § 46a-64c (a):
a. There was sufficient evidence to support the trial court’s conclusion
that the defendant had engaged in a prohibited discriminatory housing
practice pursuant to § 46a-64c (a) (1): testimony by a previous tenant
that he did not provide the defendant with his credit score prior to
viewing the property supported the court’s finding that the defendant
did not have a legitimate, nondiscriminatory reason for failing to show
C the rental property; moreover, this court declined to review the defen-
dant’s unpreserved challenge to documentary evidence from individuals
who had posed as prospective tenants to determine whether her actions
toward C were legally actionable and testimony related to those prospec-
tive tenants, as she did not make any objections to that evidence or
testimony during the trial, and this court declined to assess the weight
of the documentary evidence, which was the sole province of the trial
court; furthermore, the court determined that the defendant’s proffered
reason of refusing to allow C to view the rental property because of her
credit score was questionable and that, even if the defendant had a
legitimate credit score policy, she had applied it in a discriminatory
fashion to C, as there was evidence that she did not ask prior tenants
without section 8 vouchers for their credit scores prior to showing them
the property or accepting rental applications from them.
b. The trial court’s factual finding that the defendant’s statement that
the rental property ‘‘was not section 8 ready’’ conveyed to an ordinary
listener an intent to discriminate against prospective tenants with section
8 vouchers in violation of § 46a-64c (a) (3) was not clearly erroneous; the
statement was facially discriminatory, thus, the court was not required to
examine the surrounding context or the defendant’s intent to determine
whether the statement indicated any impermissible inference, and the
court considered evidence in the record that the defendant gave applica-
tions to, held open houses for and agreed to rent the property to individu-
als who did not receive section 8 vouchers as well as testimony that it
was discriminatory to show a property only to tenants without section
8 vouchers or to decline to rent to section 8 recipients by using
coded language.
2. The trial court did not abuse its discretion in awarding C compensatory
damages for emotional distress; the court considered C’s testimony
regarding her emotional pain and suffering, including that the property
C eventually rented was inferior and dissimilar to the defendant’s rental
property and that C’s son was required by the location of the new
property to attend school in a district in which he experienced bullying.
3. The trial court did not abuse its discretion in denying the defendant’s
application for a writ of audita querela and denying her motion for
reargument and reconsideration of that decision:
a. The trial court did not abuse its discretion in declining to hold a
hearing on the defendant’s application, the defendant having failed to
make the showing necessary of a new matter raisable for the first time
after judgment; the issues raised in the application, including whether
the defendant had asked a previous tenant for his credit score prior to
showing him the rental property, whether C’s son experienced bullying
at school, whether the defendant had informed C’s boyfriend that the
rental property was not section 8 ready and the extent of C’s physical
symptoms of emotional distress, reasonably could have been and were
raised and litigated during the trial.
b. The defendant could not prevail on her claim that the trial court
abused its discretion in denying her motion for reargument and reconsid-
eration, as she failed to establish that the court overlooked a controlling
principle of law, misapprehended relevant facts or otherwise abused its
discretion in denying her application for a writ of audita querela.
Argued February 28—officially released July 5, 2022
Procedural History
Action to recover damages for alleged housing dis-
crimination, and for other relief, brought to the Superior
Court in the judicial district of Hartford, Housing Ses-
sion, where the court, Shah, J., granted the motion to
intervene filed by Julissa Cortes; thereafter, the matter
was tried to the court, Shah, J.; judgment for the plain-
tiffs, from which the defendant appealed to this court;
thereafter, the court, Shah, J., denied the defendant’s
application for a writ of audita querela, and the defen-
dant filed an amended appeal. Affirmed.
Margaret Valentin, self-represented, the appellant
(defendant).
Pamela A. Heller, with whom were Jeffrey Gentes,
and, on the brief, Cullen W. Guilmartin and Nicholas
M. Varney, for the appellee (intervening plaintiff).
Margaret J. Nurse-Goodison, human rights attorney,
for the appellee (plaintiff).
Opinion
DiPENTIMA, J. The defendant, Margaret Valentin,1
appeals from the judgment of the trial court, rendered
after a trial to the court, in favor of the plaintiff, the
Commission on Human Rights and Opportunities (com-
mission), and the intervening plaintiff, Julissa Cortes,
in this action alleging housing discrimination in viola-
tion of General Statutes § 46a-64c (a). The defendant
claims that (1) there was insufficient evidence to sup-
port the court’s conclusion that she had violated § 46a-
64c (a) by engaging in discriminatory housing practices,
(2) the court abused its discretion in awarding Cortes
compensatory damages for emotional distress and (3)
the court (a) improperly failed to conduct an evidentiary
hearing prior to denying her application for a writ of
audita querela and (b) abused its discretion in denying
her motion for reargument and reconsideration of that
application. We affirm the judgment of the trial court.
The following facts, as found by the trial court or
as otherwise undisputed in the record, and procedural
history are relevant. In July, 2016, Cortes’ landlord
informed her that the property in which she then resided
in East Hartford was being sold. In that same month,
Cortes sent the defendant a message via the website
Zillow to schedule a viewing of the defendant’s rental
property in East Hartford and inquired whether she
would accept a voucher pursuant to section 8 of the
National Housing Act (section 8), 42 U.S.C. § 1437f.
After receiving no response, Cortes called the defendant
to schedule a viewing and indicated that she intended
to use a section 8 voucher. The defendant responded
that the rental property ‘‘was not section 8 ready.’’ Cor-
tes had Victor Irizarry, the father of her three children,
call the defendant regarding the rental property. The
defendant told Irizarry that the rental property ‘‘wasn’t
section 8 ready,’’ and that she ‘‘just didn’t want to deal
with the paperwork.’’
Cortes’ section 8 worker referred her to the Connecti-
cut Fair Housing Center (center). Maria Cuerda, a fair
housing specialist with the center, called the defendant
regarding her refusal to allow Cortes to view the rental
property. The defendant informed Cuerda that the
rental property would not qualify for section 8, that she
had the right to rent to whomever she wanted and that
she was not interested in getting the rental property
approved for prospective tenants with section 8 vouch-
ers. Cuerda informed the defendant that it constituted
a discriminatory housing practice to refuse to rent to
prospective tenants on the basis of their intent to use
a section 8 voucher. Cortes texted the defendant to
request a viewing of the rental property. The defendant
responded that, before she could schedule a viewing,
she needed additional information, including Cortes’
credit score. Cortes replied that she had a ‘‘fair’’ credit
score. The defendant told Cortes that her ‘‘[c]redit
doesn’t meet my requirements,’’ and did not provide
Cortes with an opportunity to view the rental property.
On October 1, 2016, Cortes moved into a different rental
property in East Hartford. The defendant rented her
East Hartford property to another prospective tenant,
Charles Stewart, who did not receive section 8 federal
housing assistance and who moved into the rental prop-
erty on October 1, 2016.
The commission brought an action on behalf of Cor-
tes claiming that the defendant had violated subdivi-
sions (1) and (3) of § 46a-64c (a) by discriminating
against Cortes by denying her an opportunity to rent or
view the rental property and by making discriminatory
statements regarding Cortes’ ability to rent the property
on the basis of a lawful source of income, her section
8 voucher.2 Pursuant to Practice Book § 9-18, Cortes
filed a motion to intervene as a plaintiff, and the motion
was granted by the court.
Following trial, the court issued a memorandum of
decision on January 30, 2020, in which it determined
that the defendant had violated § 46a-64c (a) (1) and
(3), awarded Cortes $7500 in noneconomic damages
for emotional distress and ordered the defendant to pay
a $5000 civil penalty to the commission. Specifically,
as to § 46a-64c (a) (1), the court concluded that the
defendant’s failure to allow Cortes to rent or view the
rental property was on account of Cortes’ status as a
recipient of a section 8 voucher and therefore consti-
tuted a discriminatory housing practice. The court
found that the defendant’s proffered legitimate reason
for not showing Cortes the rental property—that Cortes
had not satisfied her credit score criteria—was
‘‘unavailing.’’ The court determined that the defendant’s
reasoning that she would not rent to anyone with a
credit score of less than 700 was belied by the fact that
the defendant did not know Cortes’ actual credit score,
but rather only knew that Cortes had described her
credit score as being ‘‘fair.’’ The court further reasoned
that the defendant’s ‘‘denial of Ms. Cortes is further
undercut by her testimony that it was ‘irrelevant’ to her
whether Ms. Cortes had the ability to pay, even if her
section 8 voucher covered 100 percent of the rent,
because she assumed Ms. Cortes’ credit was not up to
her ‘criteria.’ . . . Even if [the defendant] had a legiti-
mate credit score policy, she applied it in a discrimina-
tory fashion to . . . Cortes because [the defendant]
never asked her three prior tenants for their credit score
prior to showing or accepting an application from them
to rent the home.’’
The court also concluded that the defendant’s state-
ments to Cortes that the rental property ‘‘was not sec-
tion 8 ready’’ conveyed to an ordinary listener a prefer-
ence for tenants who did not receive section 8 vouchers
in violation of § 46a-64c (a) (3). The court determined
that the defendant’s proffered reason for having made
those statements—that no one could rent the property
because the furnace needed repair—was ‘‘transparent.’’
The court found that, during the same time period in
which the defendant claimed the furnace needed
repairs, she gave applications to, held open houses for
and agreed to rent the property to prospective tenants
who did not receive section 8 vouchers, and the defen-
dant and Stewart both testified at trial that all repairs
were completed prior to the move in date of October
1, 2016, that was proposed by Cortes. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
The defendant first claims that there was insufficient
evidence to support the court’s conclusion that she had
violated subdivisions (1) and (3) of § 46a-64c (a) by
engaging in discriminatory housing practices. In fur-
therance of her argument, she contends that some of
the court’s subordinate factual findings were clearly
erroneous. We are not persuaded.
Section 46a-64c (a) provides in relevant part: ‘‘It shall
be a discriminatory practice in violation of this section:
(1) . . . to refuse to negotiate for the . . . rental of,
or otherwise make unavailable or deny, a dwelling to
any person because of . . . lawful source of income
. . . . (3) To make . . . or cause to be made . . . any
. . . statement . . . with respect to the . . . rental of
a dwelling that indicates any preference, limitation, or
discrimination based on . . . lawful source of income
. . . or an intention to make any such preference, limi-
tation or discrimination. . . .’’
We first set forth the standard of review. ‘‘[W]here
the factual basis of the court’s decision is challenged
we must determine whether the facts set out in the
memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings
in the whole record, those facts are clearly erroneous.
. . . We also must determine whether those facts cor-
rectly found are, as a matter of law, sufficient to support
the judgment. . . . Although we give great deference
to the findings of the trial court because of its function
to weigh and interpret the evidence before it and to
pass upon the credibility of witnesses . . . we will not
uphold a factual determination if we are left with the
definite and firm conviction that a mistake has been
made.’’ (Citations omitted; internal quotation marks
omitted.) Briggs v. McWeeny, 260 Conn. 296, 322, 796
A.2d 516 (2002).
The law applicable to this claim is well established.
The court stated that there was direct evidence of dis-
crimination and employed the mixed-motive disparate
treatment theory. ‘‘Used in this general sense, disparate
treatment simply refers to those cases where certain
individuals are treated differently than others. . . .
The principal inquiry of a disparate treatment case is
whether the plaintiff was subjected to different treat-
ment because of his or her protected status. Under the
analysis of the disparate treatment theory of liability,
there are two general methods to allocate the burdens of
proof: (1) the mixed-motive/Price Waterhouse model;3
Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.
Ct. 1775, 104 L. Ed. 2d 268 (1989); and (2) the pretext/
McDonnell Douglas–Burdine model. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252–56,
101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973).’’ (Citation omitted; footnote
in original; footnote omitted; internal quotation marks
omitted.) Levy v. Commission on Human Rights &
Opportunities, 236 Conn. 96, 104–105, 671 A.2d 349(1996). ‘‘Under Price Waterhouse, a plaintiff alleging
discrimination must show as part of her prima facie
case that she is a member of a protected class and
that an impermissible factor motivated the defendant
in making the adverse decision. . . . Once the plaintiff
has made this showing, the burden then shifts to the
defendant to show, by a preponderance of the evidence,
that it would have made the same decision even in the
absence of the impermissible factor. . . . [I]t is not
sufficient for the defendant to show that a legitimate,
nondiscriminatory reason would have justified the deci-
sion. . . . A defendant may prevail in a mixed motives
case only if it can show that it actually was motivated,
at the time that the decision was made, by a legitimate
reason and that its legitimate reason, standing alone,
would have induced it to make the same decision.’’
(Citations omitted; internal quotation marks omitted.)
Commission on Human Rights & Opportunities v.
Sullivan, 285 Conn. 208, 228–29, 939 A.2d 541 (2008).
A
The defendant claims that the court’s conclusion that
she had engaged in a prohibited discriminatory housing
practice pursuant to § 46a-64c (a) (1) ‘‘lacks the proper
and reliable evidentiary support.’’ Specifically, she
argues that the court’s (1) subordinate factual findings
were clearly erroneous, (2) reliance on certain docu-
mentary evidence was ‘‘impermissible’’ and (3) ultimate
conclusion regarding § 46a-64c (a) (1) was not sup-
ported by sufficient evidence. We are not persuaded.
1
The defendant contends that the court’s finding that
she had not asked her prior tenants for their credit
scores before showing them the rental property was
clearly erroneous.4 She argues that the trial testimony
of Caleb Vonberg, a prior tenant, indicates that she had
discussed credit scores with her prior tenants before
showing them the rental property and specifically high-
lights Vonberg’s testimony that he and his wife had
signed a form authorizing the defendant to obtain their
credit scores. We reject this contention. First of all, the
court was not required to credit the testimony of any
witness. See Wall Systems, Inc. v. Pompa, 324 Conn.
718, 741, 154 A.3d 989 (2017) (it is exclusive province
of trier of fact to make determinations of credibility,
crediting some, all or none of any given witness’ testi-
mony). Additionally, even had the court found Vonberg
credible with respect to having authorized the defen-
dant to obtain his credit score, this testimony at most
reasonably reveals that Vonberg at some undefined
point provided the defendant with his credit score.
Notably, Vonberg further testified that he did not pro-
vide the defendant with his credit score prior to viewing
the property. This testimony supports the court’s find-
ing that the Vonbergs were permitted to view the prop-
erty without providing a credit score, which underlies
the court’s finding that the defendant did not have a
legitimate nondiscriminatory reason for failing to show
Cortes the rental property.
2
The defendant’s next argument concerns ‘‘Rental Test
Assignment Forms’’ (forms), which were admitted as
full exhibits at trial. As we interpret her arguments, the
defendant raises an unpreserved evidentiary challenge
to the admissibility of the forms, which we do not
review. She also challenges the reliability of the forms,
which argument we reject.
By way of background, the court found that, in an
effort to determine if the defendant’s refusal to show
or rent to Cortes was legally actionable, the center used
four individuals called ‘‘testers’’ to pose as prospective
tenants and to ask the defendant about the rental prop-
erty. The center provided each of the four testers with
a form. Those forms contained a section labeled ‘‘key
test information’’ that each tester was to provide to the
defendant, including whether the tester was a recipient
of a section 8 housing voucher. The forms contained a
narrative description written by the tester detailing the
tester’s interaction with the defendant regarding the
rental property. The testers did not testify at trial, and
Erin Kemple, the executive director of the East Hartford
Housing Authority, authenticated the forms during her
trial testimony. By way of her deposition transcript,
which was admitted as a full exhibit at trial, Cuerda
explained the testing process as well as the results
obtained by the four testers. The court found that the
defendant had provided the three testers who posed as
prospective tenants without section 8 vouchers with an
application, details regarding the application and/or a
viewing of the property. The court also found that the
defendant initially told the tester purporting to be a
prospective tenant with a section 8 voucher that her
$18,000 yearly income was sufficient, but, after that
tester informed the defendant of her intent to use a
section 8 voucher, the defendant informed that tester
that the rental property was not ready, did not provide
her with an application and did not offer to allow her
to view the rental property.
The defendant argues that the court’s reliance on the
forms was ‘‘tainted and erroneous under the circum-
stances’’ and that, because ‘‘case law frowns upon credi-
bility assessments based on the cold printed record,’’
it was improper for the court to rely on the forms
and the trial testimony of Kemple and the deposition
testimony of Cuerda regarding the forms. As best we
can discern, the defendant is challenging the admissibil-
ity of the forms. We decline to review this unpreserved
evidentiary claim regarding the admissibility of the
forms and related testimony because the defendant did
not make any objections at trial in this regard. See State
v. Golding, 213 Conn. 233, 241, 567 A.2d 823 (1989)
(‘‘once identified, unpreserved evidentiary claims . . .
will be summarily dismissed’’). We note that, although
the defendant highlights case law that cautions appel-
late tribunals that the finder of fact is the best judge
of credibility and that it is inappropriate to assess credi-
bility from the cold printed record; see, e.g., Shelton v.
Statewide Grievance Committee, 277 Conn. 99, 111,
890 A.2d 104 (2006); such case law does not prevent
a trial court from considering documentary evidence
admitted without objection at trial.
The defendant also argues that ‘‘there does not appear
to be any checks and balances to ensure that the testers
are in compliance with the testing guidelines’’ and
points to alleged inaccuracies in the testing forms,
including that one tester indicated in one location on
the form that a change in the rental amount was attribut-
able to snow removal while stating in a different loca-
tion on the form that the defendant had not provided
a reason for the change in the rental amount. The defen-
dant, who did not call the testers to testify at trial,
cannot prevail on her argument challenging the reliabil-
ity of the forms. The alleged inaccuracies go to the
weight of the forms, and we decline the defendant’s
attempt to relitigate the case by asking this court to
assess the weight of the documentary evidence at issue,
which task is within the sole province of the trial court.
‘‘The weight given the evidence before it is within the
sole province of the trial court.’’ Dubicki v. Dubicki,
186 Conn. 709, 713, 443 A.2d 1268 (1982).
3
The defendant’s argument that there was insufficient
evidence to support the court’s ultimate conclusion that
she engaged in a discriminatory practice in violation of
§ 46a-64c (a) (1) by refusing to rent or show the property
to Cortes because she received section 8 rental assis-
tance is also unavailing. It is undisputed that the defen-
dant did not show Cortes the rental property, and the
defendant admitted in her trial testimony that she had
informed Cortes that the property ‘‘was not section 8
ready.’’ The court did not credit the defendant’s prof-
fered reason that she did not allow her to view the
rental property because of Cortes’ credit score. Cortes
testified that, when she inquired about the rental prop-
erty, the defendant stated that before she could sched-
ule a viewing, she required certain information, includ-
ing the defendant’s credit score. Cortes testified that,
when she informed the defendant that her credit score
was ‘‘fair,’’ the defendant responded that she had guide-
lines for all renters and that Cortes’ credit score did
not satisfy those requirements. The defendant testified
that she did not rent or show the rental property to
Cortes because Cortes’ credit score failed to satisfy her
requirements, despite not knowing Cortes’ credit score,
but only that Cortes had described her credit score as
‘‘fair.’’ The defendant was asked on cross-examination:
‘‘You never asked for the value of the section 8 voucher,
so you could not have considered the value of a voucher,
when considering whether or not she should afford to
pay the rent, would you agree with me on that?’’ The
defendant responded, ‘‘If her credit didn’t meet my crite-
ria at that point in time, it was irrelevant for me to even
ask her all those other questions.’’ The court did not
credit the defendant’s explanation that Cortes’ credit
score did not satisfy her criteria. The court determined
that the defendant’s explanation that she refused to
rent to Cortes on the basis of her credit score was
‘‘questionable’’ because the defendant lacked ‘‘any
information’’ with which to make a proper determina-
tion regarding Cortes’ credit score. The court further
determined that, even if the defendant had a legitimate
credit score policy, she applied it in a discriminatory
fashion to Cortes, as she did not ask her three prior
tenants, who did not have section 8 vouchers, for their
credit scores prior to showing them the rental property
or accepting rental application from them. On the basis
of the evidence presented at trial, and the court’s dis-
crediting of the defendant’s credit score explanation,
we conclude that there was sufficient evidential support
for the court’s determination that the defendant
engaged in a discriminatory practice in violation of
§ 46a-64c (a) (1).
B
The defendant also argues that there was insufficient
evidence to support the court’s conclusion that the
defendant made discriminatory statements in violation
of § 46a-64c (3). Specifically, she refers to the court’s
conclusion that her statement to Cortes that the rental
property ‘‘was not section 8 ready’’ indicated a prefer-
ence for tenants without section 8 vouchers. We are
not persuaded.
We begin with the relevant legal principles for
determining whether a statement is discriminatory
under § 46a-64c (a) (3). In assessing whether a land-
lord’s statement conveys a discriminatory preference,
an ordinary listener standard is used. See Soules v. U.S.
Dept. of Housing & Urban Development, 967 F.2d 817,
824 (2d Cir. 1992); see also Lopez v. William Raveis Real
Estate, Inc., 343 Conn. 31, 47–48, 272 A.3d 150 (2022).
The defendant contends that the court ‘‘simply did
not have the entire context of the conversation when
the discriminatory statement was made to determine
the intent behind the statement in order to properly
assess how that statement in its actual context would
affect an ordinary listener. . . . [T]here was not suffi-
cient evidence established by the plaintiff . . . that
reflects the full context of the conversation between
the defendant and Cortes as to when the arguably dis-
criminatory statement was made.’’5 She contends that
her statements that the rental property was ‘‘not section
8 ready’’ did not convey an intent to discriminate against
prospective tenants on the basis of a lawful source of
income, but rather that the statement was nondiscrimi-
natory and indicated that the rental property needed
repairs in order to pass a section 8 inspection.
The court determined that the defendant’s statements
that the rental property ‘‘was not section 8 ready,’’ in
conjunction with testimony from the defendant’s own
expert, Christine Paisley, regarding the discriminatory
nature of such statements ‘‘objectively conveys a prefer-
ence for nonsection 8 renters.’’ We construe the court’s
determinations in this regard to mean that the defen-
dant’s statements were facially discriminatory, which
is supported by the record.
In Lopez v. William Raveis Real Estate, Inc., supra,343 Conn. 40–48, our Supreme Court considered the
standard for determining whether a statement made in
connection with the sale or rental of a dwelling violates
§ 46a-64c (a) (3). The court concluded that the trial
court properly applied the ordinary listener standard
when determining whether certain statements made by
the defendant’s authorized representative in the course
of renting an apartment owned by another were discrim-
inatory. Id., 48. The court disagreed with the plaintiff
that the court improperly considered the context of the
statements and concluded that, because the trial court
had determined that the statements of the defendant’s
authorized representative were not facially discrimina-
tory, it was not improper for the trial court to consider
the context of the statements in determining whether
they stated a preference with respect to lawful source
of income, in violation of § 46a-64c (a) (3). Id. In
determining when it was necessary for a trial court to
consider the context in which allegedly discriminatory
statements are made, the court held that, ‘‘when a
notice, statement, or advertisement that allegedly vio-
lates § 46a-64c (a) (3) is plainly discriminatory on its
face, courts need not examine the surrounding context
or the speaker’s intent to determine whether the state-
ment indicates any impermissible preference, limita-
tion, or discrimination to the ordinary listener. When,
however, such a notice, statement, or advertisement is
not facially discriminatory, courts may consider the
context and intent of the speaker to aid in determining
the way an ordinary listener would have interpreted
it. . . . [T]he ordinary listener inquiry is one of fact.’’
(Footnotes omitted; internal quotation marks omitted.)
Id., 47–49. The court determined that, because the trial
court had concluded that the statements of the author-
ized agent were not facially discriminatory, it was not
improper for the trial court to consider the context of
the statements in determining whether they stated a
preference with respect to lawful source of income in
violation of § 46a-64c (a) (3). Id., 48.
In the present case, as a result of the facially discrimi-
natory nature of the defendant’s statements that the
rental property ‘‘was not section 8 ready,’’ according
to Lopez, the trial court ‘‘need not examine the sur-
rounding context or the speaker’s intent to determine
whether the statement indicates any impermissible
preference.’’ Id., 47–48. If the defendant believed that
the evidence presented at trial failed to convey the
entire context of her statements, then she could have
presented additional evidence at trial in furtherance of
her argument that her statements were not discrimina-
tory, facially or otherwise. She did not do so. Although
the court was not required to, it nonetheless examined
the context of the defendant’s statements and discred-
ited her view of the evidence—that her statements
meant that the furnace needed repairs— in light of the
evidence presented at trial, including that the defendant
gave applications to, held open houses for, and agreed
to rent the property to individuals who did not receive
section 8 vouchers during the same time frame.
The court’s ultimate factual finding, that the defen-
dant’s statements that the rental property was ‘‘not sec-
tion 8 ready’’ conveyed to an ordinary listener an intent
to discriminate against prospective tenants with section
8 vouchers in violation of § 46a-64c (a) (3), was not
clearly erroneous. See Lopez v. William Raveis Real
Estate, Inc., supra, 343 Conn. 49 (ordinary listener
inquiry is one of fact). As noted by the trial court,
the defendant’s expert witness, Paisley, testified that it
would be discriminatory for a landlord to show a prop-
erty only to individuals without section 8 vouchers and
to inform those with section 8 vouchers that the prop-
erty was ‘‘not section 8 ready’’ while making the neces-
sary repairs. Additionally, Kemple testified that it is
discriminatory for a landlord to decline to rent to sec-
tion 8 recipients by using ‘‘code,’’ such as saying that
a rental unit is not section 8 ready. In light of the sup-
porting evidence in the record, we reject the defendant’s
argument.
II
The defendant next claims that the court abused its
discretion in awarding Cortes compensatory damages
for emotional distress. We are not persuaded.
General Statutes § 46a-86 (c) provides in relevant
part: ‘‘In addition to any other action taken under this
section, upon a finding of a discriminatory practice
prohibited by section . . . 46a-64c . . . the presiding
officer shall determine the damage suffered by the com-
plainant, which damage shall include, but not be limited
to, the expense incurred by the complainant for
obtaining alternate housing or space, storage of goods
and effects, moving costs and other costs actually
incurred by the complainant as a result of such discrimi-
natory practice . . . .’’ Emotional distress damages
may be awarded under § 46a-86 (c). See Commission on
Human Rights & Opportunities v. Board of Education,
270 Conn. 665, 705, 855 A.2d 212 (2004). ‘‘The assess-
ment of damages is peculiarly within the province of
the trier and the award will be sustained so long as it
does not shock the sense of justice. The test is whether
the amount of damages awarded falls within the neces-
sarily uncertain limits of fair and just damages. . . .
[W]e cannot disturb the decision of the trial court unless
there are considerations of the most persuasive charac-
ter. . . . The trial judge has a broad legal discretion
and his action will not be disturbed unless there is a
clear abuse. . . . The evidence offered at trial must be
reviewed in the light most favorable to sustaining the
verdict.’’ (Internal quotation marks omitted.) Commis-
sion on Human Rights & Opportunities ex rel. Arnold
v. Forvil, 302 Conn. 263, 283, 25 A.3d 632 (2011).
In making its assessment regarding emotional dis-
tress damages, the court considered the factors set forth
in Commission on Human Rights & Opportunities ex
rel. Harrison v. Greco, CHRO No. 7930433 (June 3,
1985) pp. 7–8.6 ‘‘Under the Harrison analysis, the most
important factor of such damages is the subjective inter-
nal emotional reaction of the complainants to the dis-
criminatory experience which they have undergone and
whether the reaction was intense, prolonged and under-
standable. . . . Second, is whether the discrimination
occurred in front of other people. . . . For this, the
court must consider if the discriminatory act was in
public and in view or earshot of other persons which
would cause a more intense feeling of humiliation and
embarrassment. . . . The third and final factor is the
degree of the offensiveness of the discrimination and
the impact on the complainant. . . . In other words,
was the act egregious and was it done with the intention
and effect of producing the maximum pain, embar-
rassment and humiliation.’’ (Internal quotation marks
omitted.) Commission on Human Rights & Opportu-
nities v. Cantillon, 207 Conn. App. 668, 680, 263 A.3d
887 (quoting Commission on Human Rights & Oppor-
tunities v. Sullivan Associates, Superior Court, judicial
district of New Haven, Docket Nos. CV-XX-XXXXXXX-S
and CV-XX-XXXXXXX-S (June 6, 2011)), cert. granted, 340
Conn. 909, 264 A.3d 94 (2021).
The court credited the testimony of Cortes regarding
her emotional pain and suffering. The court found that
the property that Cortes eventually rented was inferior
and dissimilar to the defendant’s rental property, which
‘‘was quiet, had a fenced in backyard, newer appliances,
and a preferred school district.’’ The court also found
that Cortes felt ‘‘great distress’’ because, due to the
location in East Hartford of the unit she eventually
rented, her son would attend the same school district
where he had experienced bullying. The court found
the defendant’s actions offensive but found the defen-
dant had not intended to inflict maximum pain, embar-
rassment or humiliation on Cortes and that Cortes was
‘‘able to proceed with her life and find a home for her
family.’’ The court concluded that an award of $7500
was warranted given the degree of pain, embarrassment
and humiliation inflicted.
The defendant argues that the court abused its discre-
tion in awarding Cortes damages for emotional distress
because there was insufficient evidence to support the
court’s finding that the defendant had caused Cortes’
emotional distress.7 She contends that the court improp-
erly based the award on Cortes’ testimony alone, and
that, in the absence of supporting testimony or medical
evidence, the court was left to speculate as to the cause
of Cortes’ distress as ‘‘life in itself is stressful.’’ She
further argues that but for Cortes’ former landlord sell-
ing the property, Cortes would have continued to reside
within the same East Hartford school district in which
her son experienced bullying.
The court’s award was supported by sufficient evi-
dence. The court credited Cortes’ testimony, a determi-
nation that we will not disturb. See, e.g., Mozell v. Com-
missioner of Correction, 51 Conn. App. 818, 823, 725
A.2d 971 (1999) (‘‘the judge is the sole arbiter of the
credibility of witnesses and the weight to be given to
their specific testimony’’ (internal quotation marks
omitted)). Cortes testified that the unit she eventually
rented was ‘‘a last resort . . . my time was running out
with the extension for section 8.’’ When asked on direct
examination, ‘‘How has this entire process affected you,
if at all,’’ Cortes explained that the process ‘‘put me
under a lot of pressure of trying to hurry up and move.
I got very stressed out . . . my hair was falling [out].
You know, just the . . . anxiety of that. I had to keep
my son in the same school district, had me really bad,
and I was crying a lot.’’ It was within the province of
the court to draw the reasonable inference from Cortes’
testimony that her emotional state was a result of the
defendant’s discriminatory housing practices. See
Mozell v. Commissioner of Correction, supra, 823 (‘‘[i]t
is the right of the trier of fact to draw reasonable and
logical inferences from the facts that it finds to be
proved’’ (internal quotation marks omitted)).
We disagree with the defendant’s argument that the
court’s award was speculative or otherwise improper
because the court’s finding of emotional distress dam-
ages relied solely on the testimony of Cortes. ‘‘[I]n gar-
den variety emotional distress claims, the evidence of
mental suffering is generally limited to the testimony
of the plaintiff.’’ (Internal quotation marks omitted.)
Patino v. Birken Mfg. Co., 304 Conn. 679, 707, 41 A.3d
1013 (2012). In the absence of considerations of the
‘‘ ‘most persuasive character’ ’’; Commission on
Human Rights & Opportunities ex rel. Arnold v. Forvil,
supra, 302 Conn. 283; we cannot determine that the
court abused the exercise of its broad legal discretion
in awarding emotional distress damages. Giving every
reasonable presumption in favor of the correctness of
the court’s award, we conclude that the trial court did
not abuse its discretion when it awarded Cortes com-
pensatory damages for emotional distress.
III
The defendant’s final claim challenges the court’s
denial of her application for a writ of audita querela.
She argues that the court abused its discretion in (a)
declining to conduct an evidentiary hearing prior to
denying her application for a writ of audita querela and
(b) denying her motion for reargument and reconsidera-
tion.8 There was no abuse of discretion.
The following additional facts and procedural history
are relevant. During the pendency of the present appeal
and nearly eleven months after the court’s judgment,
the defendant filed in the trial court an application for
a writ of audita querela in which she requested that
the court vacate its judgment on the ground of newly
discovered evidence. The defendant attached to her
application an affidavit of Stewart in which he stated
in contradiction to his trial testimony that the defendant
had inquired as to his credit score prior to showing
him the rental property. The defendant further argued
in her application that Cortes had testified falsely at
trial both that her son had experienced bullying at
school and that the defendant had informed Irizarry
that the rental property ‘‘was not section 8 ready.’’ She
attached to her application an affidavit of Irizarry, in
which he stated that he is active in his children’s lives
as he resides with Cortes and their children, that at no
time has his son been bullied at school, that both he
and Cortes have bad credit, that he did not observe
Cortes experiencing any of the physical symptoms she
claimed at trial to have suffered, that Cortes did not
express concern about not being able to move into the
defendant’s rental property and that he did not contact
the defendant regarding the rental property. In her
application, the defendant contended that the issues
raised in the affidavits of Stewart and Irizarry were
not known to her until after the court had rendered
judgment. The court denied the defendant’s application.
The defendant then filed a motion for reargument and
reconsideration in which she argued that the court had
misapprehended the law when it denied her application
without first holding an evidentiary hearing. The court
denied the motion, reasoning that the defendant ‘‘claims
there are new facts that need to be presented, but she
had every opportunity to present any issues at trial and
develop all factual issues prior to trial. The court had
a full trial on the merits of the underlying case and
made the findings it believed were proved at trial.’’ The
court further reasoned that the defendant, through her
application for a writ of audita querela, was ‘‘attempting
to retry the case,’’ and that it had denied the writ
‘‘because she failed to meet the standard for the granting
of such a rare remedy.’’
A
The defendant argues that the court erred in failing
to hold an evidentiary hearing prior to denying her
application for a writ of audita querela. Specifically,
she contends that during the pendency of the present
appeal she ‘‘learned of new information that credibly
refutes Cortes’ testimony concerning bullying of her
son and statements that she claims [were] told by her
son’s father’’ and ‘‘learned that one of her witnesses
. . . Stewart provided false testimony.’’ She further
argues that the court erred in making a substantive
decision where material facts were in dispute because,
‘‘[w]ithout a hearing, the trial court was not in a position
to see the witnesses testify and to be able to fully under-
take a proper factual finding as required.’’ We are not
persuaded.
We begin with our standard of review and relevant
legal principles. ‘‘We consistently have held that, unless
otherwise required by statute, a rule of practice or a
rule of evidence, whether to conduct an evidentiary
hearing generally is a matter that rests within the sound
discretion of the trial court. . . . Under this standard
of review, [w]e must make every reasonable presump-
tion in favor of the trial court’s action.’’ (Citation omit-
ted; internal quotation marks omitted.) DeRose v. Jason
Robert’s, Inc., 191 Conn. App. 781, 797, 216 A.3d 699,
cert. denied, 333 Conn. 934, 218 A.3d 593 (2019).
‘‘The ancient writ of audita querela has been defined
as a writ issued to afford a remedy to a defendant
against whom judgment had been rendered, but who
had new matter in defense (e.g., a release) arising, or
at least raisable for the first time, after judgment. . . .
Because the writ impairs the finality of judgments, the
common law precluded its use in cases in which the
judgment debtor sought to rely on a defense such as
payment or a release that he had the opportunity to
raise before the entry of judgment against him. . . .
No authority has been cited to suggest that the writ of
audita querela was ever available to present issues
which were presented before the entry of the judgment
attacked by the writ. . . . The writ of audita querela
provides relief from a judgment at law because of events
occurring subsequently which should cause discharge
of a judgment debtor.’’ (Emphasis added; internal quota-
tion marks omitted.) Anthony Julian Railroad Con-
struction Co. v. Mary Ellen Drive Associates, 50 Conn.
App. 289, 294, 717 A.2d 294 (1998). ‘‘Audita querela is
a remedy granted in favor of one against whom execu-
tion has issued on a judgment, the enforcement of which
would be contrary to justice because of (1) matters
arising subsequent to its rendition, or (2) prior existing
defenses that were not available to the judgment debtor
in the original action, or (3) the judgment creditor’s
fraudulent conduct or circumstances over which the
judgment debtor had no control.’’ Oakland Heights
Mobile Park, Inc. v. Simon, 40 Conn. App. 30, 32, 668
A.2d 737 (1995). ‘‘Equitable relief is extraordinary and
not available as a matter of right, but rather it is within
the discretion of the court.’’ (Internal quotation marks
omitted.) Modzelewski v. William Raveis Real Estate,
Inc., 65 Conn. App. 708, 715, 783 A.2d 1074, cert. denied,
258 Conn. 948, 788 A.2d 96 (2001).
The fact that the defendant may have learned of the
existence of the additional evidence following the
court’s rendering of judgment does not suffice for the
allowance of a writ of audita querela. Rather, the con-
trolling consideration is whether the moving party could
have raised at trial the issues presented in the applica-
tion for a writ of audita querela. See Oakland Heights
Mobile Park, Inc. v. Simon, supra, 40 Conn. App. 33.
All of the issues raised in the defendant’s application—
including whether the defendant had asked Stewart for
his credit score prior to showing him the rental prop-
erty, whether Cortes’ son experienced bullying at
school, whether the defendant had informed Irizarry
that the rental property was not section 8 ready, and
the extent of Cortes’ physical symptoms of emotional
distress—reasonably could have been raised during
trial. Because the issues were not raisable for the first
time postjudgment, but rather were issues that not only
could have been raised, but were actually raised and
litigated at trial, a writ of audita querela is inapplicable.
‘‘[A] party is not entitled to relief by audita querela
when the party has had a legal opportunity to avail him-
or herself of the matters of defense set forth in the
complaint, or when the injury of which the party com-
plains is attributable to his or her own neglect.’’ 7A
C.J.S. Audita Querela § 3 (2022). Because the remedy
of a writ of audita querela was not available, the court
did not need to resolve the factual issues raised in the
application, which was essentially an attempt by the
defendant to retry the case. The defendant has not cited
to any statute, evidentiary rule or rule of practice man-
dating her entitlement to an evidentiary hearing when
the evidence cited in the application could have been
presented at trial. We conclude that the court did not
abuse its discretion in declining to hold a hearing on
the defendant’s application.9
B
The defendant claims that the court abused its discre-
tion in denying her motion for reargument and reconsid-
eration. We disagree.
Our review again is deferential. ‘‘[A]s with any discre-
tionary action of the trial court, appellate review
requires every reasonable presumption in favor of the
action, and the ultimate issue for us is whether the trial
court could have reasonably concluded as it did. . . .
In addition, where a motion is addressed to the discre-
tion of the court, the burden of proving an abuse of
that discretion rests with the appellant. . . . [R]eargu-
ment is proper when intended to demonstrate to the
court that there is some . . . principle of law which
would have a controlling effect, and which has been
overlooked . . . . Reargument is also meant for situa-
tions where there has been a misapprehension of facts.
. . . Reargument may be used to address alleged incon-
sistencies in the trial court’s memorandum of decision
as well as claims of law that the [movant] claimed were
not addressed by the court. . . . [A] motion to reargue
[however] is not to be used as an opportunity to have
a second bite of the apple or to present additional cases
or briefs which could have been presented at the time
of the original argument.’’ (Citations omitted; internal
quotation marks omitted.) Carriage House I-Enfield
Assn., Inc. v. Johnston, 160 Conn. App. 226, 236–37,
124 A.3d 952 (2015).
The defendant failed to establish that the court over-
looked a controlling principle of law, misapprehended
relevant facts or otherwise abused its discretion in
denying her application for a writ of audita querela.
The defendant’s attempt to relitigate the issues raised
at trial by introducing evidence postjudgment when she
had an opportunity to present such evidence at trial
amounts to an attempted impermissible second bite of
the apple. Accordingly, we conclude that the defendant
has not demonstrated that the court abused its discre-
tion in denying her motion for reargument and reconsid-
eration.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant is self-represented in the present appeal. She was repre-
sented by counsel during trial and was self-represented during the posttrial
proceedings.
2
General Statutes § 46a-63 (3) defines ‘‘ ‘[l]awful source of income’ ’’ as
‘‘income derived from Social Security, supplemental security income, hous-
ing assistance, child support, alimony or public or state-administered general
assistance.’’ See Lopez v. William Raveis Real Estate, Inc., 343 Conn. 31,
38 n.5, 272 A.3d 150 (2022) (‘‘[t]he lawful sources of income protected from
discrimination by § 46a-64c include section 8 rental subsidies as a form of
housing assistance’’ (internal quotation marks omitted)).
3
‘‘This analytical framework has on occasion been referred to as the
direct evidence theory of discrimination. The designation of this analysis
as direct evidence is misleading. . . . [U]nder the Price Waterhouse model,
a plaintiff may utilize both direct evidence and circumstantial evidence to
prove that an employment decision was made because of or motivated by
impermissible factors.’’ (Internal quotation marks omitted.) Levy v. Commis-
sion on Human Rights & Opportunities, 236 Conn. 96, 104–105 n.16, 671
A.2d 349 (1996).
4
To place this finding in context, the court found unavailing the defen-
dant’s proffered legitimate reason, regarding credit scores, for denying Cor-
tes the ability to rent or view the rental property. The court determined
that, even if the defendant had such a policy regarding credit scores, she
applied it in a discriminatory fashion because the defendant had not inquired
as to the credit scores of her three prior tenants, who were not recipients
of section 8 vouchers, ‘‘prior to showing or accepting an application from
them to rent the home.’’
5
The defendant also argues that, ‘‘[t]o the extent that the court is relying
on testimony of Cortes it is inconclusive as to what context the statement
was made to either Cortes or her children’s father. The children’s father
was not in court to testify. The court was not in the position to assess his
credibility over that of the defendant’s.’’ Notwithstanding that the court was
not required to consider the context of the statements, the defendant could
have called Irizarry to testify at trial. Additionally, the court made no assess-
ment as to Irizarry’s credibility. Rather, the court credited the testimony of
Cortes that the defendant informed Irizarry that the rental property was not
section 8 ready and that she did not want to deal with the paperwork. The
defendant’s testimony that she did not recall speaking with Irizarry did not
persuade the court that she had not spoken with him. The defendant did
not object to the admission of Cortes’ testimony. It is within the sole province
of the court to make credibility determinations. See Briggs v. McWeeny,
supra, 260 Conn. 322.
6
The defendant does not contest the applicability of the Harrison factors.
7
The defendant also argues that, because there was insufficient evidence
for the court to determine that she had violated § 46a-64c, the court abused
its discretion in awarding Cortes damages for emotional distress. We con-
cluded in part I of this opinion that there was sufficient evidence to support
the court’s conclusion that the defendant had violated § 46a-64c (a) (1)
and (3).
8
The defendant filed a separate appeal, Docket No. AC 44445, from the
court’s denial of her application for a writ of audita querela and from
the court’s denial of her motion for reargument and reconsideration. The
appellate clerk treated that appeal as an amendment to the present appeal,
Docket No. AC 43887, and disposed of AC 44445. This court granted the
motion of the defendant to file a supplemental brief and appendix in the
present appeal, which addressed the defendant’s claims regarding the court’s
denial of her writ of audita querela and denial of her motion for reargument
and reconsideration.
9
The defendant also argues that the court violated her right to due process
when it made factual findings regarding ‘‘material disputed issues without
a trial.’’ The defendant’s argument is misplaced. A trial occurred during
which the defendant was afforded an opportunity to be heard at a meaningful
time in a meaningful manner on the issues raised in the plaintiffs’ complaint.
At trial, the defendant presented evidence, cross-examined the plaintiffs’
witnesses, and was afforded a reasonable opportunity to present the evi-
dence she now raises in her application. Due to the nature of a writ of
audita querela, an issue that reasonably could have been raised at trial is
not permitted to be raised by that writ. As such, a writ of audita querela is
not to be used to have a second bite at the apple for issues that the defendant
reasonably could have raised at trial. Accordingly, the court did not deprive
the defendant of her due process right to a fair trial by denying her an
opportunity to relitigate the issues raised during trial. ‘‘[A] party should not
be able to relitigate a matter which it already has had an opportunity to
litigate.’’ (Internal quotation marks omitted.) Ames v. Sears, Roebuck & Co.,
206 Conn. 16, 22, 536 A.2d 563 (1988).