Milford Redevelopment & Housing Partnership v. Glicklin ( 2024 )

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2 ,0 0 Conn. App. 1Milford Redevelopment & Housing Partnership v. Glicklin
MILFORD REDEVELOPMENT & HOUSING
PARTNERSHIP v. LISA GLICKLIN
(AC 46290)
Bright, C. J., and Alvord and Clark, Js.
Syllabus
The plaintiff public housing authority appealed from the judgment of the
trial court for the defendant in its summary process action. It claimed, inter
alia, that the court improperly raised, sua sponte, the unpleaded special
defense of cure to defeat its action. Held:
The trial court had subject matter jurisdiction to hear the plaintiff’s summary
process action, as, contrary to the defendant’s claim, the plaintiff’s pretermi-
nation notice to her was not jurisdictionally or legally defective.
The trial court improperly considered the special defense of cure in rendering
judgment for the defendant, as the defendant did not plead that special
defense.
The trial court applied an incorrect legal standard by improperly placing
the burden of proof on the plaintiff with respect to the defendant’s unpleaded
special defense.
Argued May 29—officially released October 15, 2024
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of New Haven, Housing
Session, and tried to the court, Spader, J.; judgment
for the defendant, from which the plaintiff appealed to
this court. Reversed; new trial.
Christine M. Gonillo, for the appellant (plaintiff).
Tyrese M. Ford, with whom was Shelley A. White,
for the appellee (defendant).
Opinion
ALVORD, J. In this summary process action, the plain-
tiff, Milford Redevelopment & Housing Partnership,
appeals from the judgment of the trial court rendered
in favor of the defendant, Lisa Glicklin. The plaintiff
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Milford Redevelopment & Housing Partnership v. Glicklin
initiated this summary process action against the defen-
dant claiming that the defendant repeatedly violated
the plaintiff’s smoke-free housing policy. In rendering
judgment for the defendant, the trial court rejected the
plaintiff’s claim on the basis that the plaintiff failed to
prove that the defendant had not cured the violation
of the plaintiff’s policy. On appeal, the plaintiff raises
interrelated claims. First, it claims that the court
improperly raised sua sponte the unpleaded special
defense of cure to defeat its summary process action.
Second, it claims that, even if it was proper for the
court to raise the special defense of cure sua sponte,
the court improperly placed the burden on the plaintiff
to prove that the defendant did not cure her violations.
The defendant, in addition to disputing the plaintiff’s
claims, argues that the trial court lacked subject matter
jurisdiction over the action because of alleged inadequa-
cies in the pretermination notice1 provided to the defen-
dant. For the reasons that follow, we reject the defen-
dant’s jurisdictional argument and agree with the
plaintiff that the court improperly rendered judgment
in favor of the defendant.2 Accordingly, we reverse the
judgment of the court.
1
Federal regulations refer to the notice as a ‘‘termination notice.’’ See 24
C.F.R. § 274.4 (2021). We, however, ‘‘use the term ‘pretermination [notice]’
in this opinion to reflect the fact that the federal notice precedes a notice
to quit, which is the sole mechanism to terminate a tenancy under Connecti-
cut law.’’ Presidential Village, LLC v. Perkins, 332 Conn. 45, 47 n.1, 209
A.3d 616 (2019). Both the plaintiff and the defendant also have used the
term ‘‘pretermination notice’’ throughout the trial and appellate court pro-
ceedings.
2
The defendant also contends, as an alternative ground for affirming the
judgment of the trial court, that the plaintiff waived its right to evict the
defendant by renewing her lease in the intervening time between the issuance
of the pretermination notice and the service of the notice to quit. We decline
to review the defendant’s proposed alternative ground for affirming the
judgment because the record is inadequate for review. First, although the
defendant raised as a special defense that the plaintiff ‘‘accepted rent or
otherwise waived the Notice to Quit after I received it,’’ the trial court did
not address this special defense. ‘‘It is well known that [o]nly in [the] most
exceptional circumstances can and will this court consider [an alternative
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The following facts, as found by the trial court or as
undisputed in the record, and procedural history are
relevant to our resolution of this appeal. The defendant
has been a tenant of 100 Viscount Drive, Apartment
C12, in Milford (property) for more than ten years. The
plaintiff, which is a public housing authority (PHA),
owns and operates the property in accordance with
federal regulations. The plaintiff, as mandated by title
24 of the Code of Federal Regulations, § 965.653,3
requires its tenants to sign a smoke-free housing policy
(no-smoking policy), which provides, inter alia, ‘‘Smok-
ing outside [the plaintiff’s] building is limited to specific
ground for affirmance] . . . that has not been raised and decided in the
trial court.’’ (Emphasis in original; internal quotation marks omitted.) Circu-
lent, Inc. v. Hatch & Bailey Co., 217 Conn. App. 622, 635 n.7, 289 A.3d 609(2023). The defendant has presented no argument that this case presents
an exceptional circumstance to warrant our review. Second, the record
lacks the requisite factual findings necessary for us to decide this claim.
See Hartford v. McKeever, 314 Conn. 255, 274, 101 A.3d 229 (2014) (Appellate
Court was not required to review alternative ground for affirmance ‘‘when
the record was inadequate for review of the claim because the trial court
had not made the requisite factual findings’’).
3
Title 24 of the 2021 edition of the Code of Federal Regulations, § 965.653,
provides: ‘‘(a) In general. PHAs must design and implement a policy prohib-
iting the use of prohibited tobacco products in all public housing living
units and interior areas (including but not limited to hallways, rental and
administrative offices, community centers, day care centers, laundry centers,
and similar structures), as well as in outdoor areas within 25 feet from
public housing and administrative office buildings (collectively, ‘restricted
areas’) in which public housing is located.
‘‘(b) Designated smoking areas. PHAs may limit smoking to designated
smoking areas on the grounds of the public housing or administrative office
buildings in order to accommodate residents who smoke. These areas must
be outside of any restricted areas, as defined in paragraph (a) of this section,
and may include partially enclosed structures. Alternatively, PHAs may
choose to create additional smoke-free areas outside the restricted areas
or to make their entire grounds smoke-free.
‘‘(c) Prohibited tobacco products. A PHA’s smoke-free policy must, at a
minimum, ban the use of all prohibited tobacco products. Prohibited tobacco
products are defined as:
‘‘(1) Items that involve the ignition and burning of tobacco leaves, such
as (but not limited to) cigarettes, cigars, and pipes.
‘‘(2) To the extent not covered by paragraph (c) (1) of this section,
waterpipes (hookahs).’’
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area(s) that are defined on a property-by-property basis.
Each resident will be given a site map that indicates
the specific locations.’’ The no-smoking policy further
provides: ‘‘Failure of any Tenant to follow the [no-smok-
ing] policy will be considered a lease violation and will
subject the resident to all lease enforcement procedures
under the [plaintiff’s] Admissions and Continued Occu-
pancy Policy (ACOP), which include termination of
lease.’’ The property has a designated smoking area that
is located twenty-five feet from the entrance to the
building.
On July 26, 2021, the defendant signed a copy of
the no-smoking policy and attested: ‘‘I have read and
understand the above smoking policy, and I agree to
comply fully with the provisions. I understand that fail-
ure to comply may constitute cause for termination of
my lease.’’ On October 1, 2021, the defendant entered
into a written lease with the plaintiff to renew her use
and occupancy of the property. On June 8, 2022, the
plaintiff’s video surveillance system captured the defen-
dant smoking within twenty-five feet of the building.
On June 13, 2022, the plaintiff caused a pretermination
notice to be sent to the defendant on the basis that she
had ‘‘smoked within twenty-five feet of [the building],
despite prior warnings and having full knowledge of
[the no-smoking policy].’’ The pretermination notice
informed the defendant that she had a right to initiate
the plaintiff’s federally mandated grievance process by
contacting the plaintiff ‘‘no later than ten days after you
receive this notice, or by June 27, 2022,’’ and provided
the ways in which she could contact the plaintiff.4 Addi-
tionally, the pretermination notice included a cure pro-
vision, which provided: ‘‘If the above violations cannot
4
Specifically, the pretermination notice stated: ‘‘You have a right to use
the Tenant Grievance Procedures to address the issues contained in this
[pretermination notice]. In order to do this, you MUST do BOTH of the
following: i) Contact [the plaintiff] no later than ten days after you receive
this Notice, or by June 27, 2022; and ii) Make a specific request to use the
tenant grievance procedures. You may contact [the plaintiff] to request to
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be or are not remedied within thirty (30) days, then
[the plaintiff] may choose to terminate your lease and
evict you. If [the plaintiff] chooses to proceed with lease
termination, [the plaintiff] shall have a marshal serve
you with a Notice to Quit that will tell you the date [the
plaintiff] has terminated your lease and expects you to
vacate the property. For purposes of counting your
[thirty day] cure period, this [pretermination notice]
shall be deemed received by you by June 16, 2022.
Therefore, the [thirty day] period runs through and
includes July 16, 2022.’’ The defendant did not request
to initiate the grievance process. Thereafter, on October
18, 2022, the plaintiff served the defendant with a notice
to quit with a quit date of October 23, 2022. The defen-
dant did not vacate the premises in accordance with
the notice to quit.
The plaintiff commenced the present summary pro-
cess action in December, 2022. On December 13, 2022,
the defendant appeared as a self-represented party and
filed a summary process answer to the complaint on
Judicial Form JD-HM-5, titled ‘‘Summary Process (Evic-
tion) Answer to Complaint.’’ See Official Court Webforms,
Form JD-HM-5, available at https://jud.ct.gov/webforms/
forms/hm005.pdf (last visited October 3, 2024). In her
answer, the defendant selected, inter alia, a special
defense, which stated: ‘‘Additional reasons why I should
not be evicted’’ and handwrote ‘‘I have lived on [the]
premises for [thirteen years] and have complied with
all rent payments and I am attempting to quit smoking.’’
She also selected a second special defense: ‘‘The land-
lord accepted rent or otherwise waived the Notice to
use the tenant grievance procedures in one or more of the following ways:
By leaving a message at 203-877-3223 ext. 15 no later than June 27, 2022;
By mailing a written request to use the tenant grievance procedures to [the
plaintiff’s] management office at P.O. Box 291, Milford, CT 06460 postmarked
no later than June 27, 2022; or By hand delivery of a written request to use
the tenant grievance procedures to [the plaintiff] at 75 DeMaio Drive, Milford
CT, and stamped received by [the plaintiff’s] personnel no later than end
of business on June 27, 2022. Your failure to make such a specific request
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Milford Redevelopment & Housing Partnership v. Glicklin
Quit after I received it.’’ The defendant did not, in her
answer, select as a special defense the statement: ‘‘I
remedied the issue(s) listed in the pre-termination
notice delivered to me under Connecticut law.’’
The matter was tried to the court, Spader, J., on
January 12, 2023. At trial, the plaintiff presented the
testimony of its property manager, Robert Hughes, and
offered into evidence (1) a photograph dated June 8,
2022, which depicted the defendant smoking within
twenty-five feet of the building; (2) a smoking offense
charge slip dated January 27, 2022; and (3) an April 28,
2020 letter advising the defendant that vaping consti-
tuted a violation of the no-smoking policy. Hughes testi-
fied that the plaintiff is a federally subsidized housing
authority and requires all tenants to sign the no-smoking
policy upon the renewal of their leases. Specifically,
Hughes testified that the plaintiff ‘‘was probably the
first in the state to have the . . . no-smoking policy.
And later on [the United States Department of Housing
and Urban Development] came up with their own [no-
smoking] policy as well, which layers over [the plain-
tiff’s].’’ Hughes also testified that the defendant repeat-
edly had violated the no-smoking policy, and provided
as an example that, in January, 2022, he had issued the
defendant a smoking offense charge slip for smoking
inside of her apartment and subsequently issued her a
$25 fine.5
The defendant testified that ‘‘I would walk to the tree
where we would smoke and sometimes, yes, I would
in a timely fashion may result in a denial of the request. If a grievance
hearing is held and is resolved against you, [the plaintiff] may commence
an immediate action to recover possession of the premises. A Notice to
Quit terminating your tenancy will precede any such action.’’
5
Hughes also testified that a tenant living in a different PHA property
also owned by the plaintiff has commenced an action with the Commissioner
of Human Rights and Opportunities, alleging that the plaintiff has failed to
enforce its no-smoking policy.
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inadvertently light a cigarette. I have to be honest about
that, but it was not done to be malicious or anything
like that. It was just done mindlessly, to be honest with
you.’’ The defendant testified that she ‘‘messed up by
walking in front of the building, in all honesty’’ and that
she also had smoked in lawn chairs but believed that
the chairs were located more than twenty-five feet from
the building. The defendant further testified that she
has attempted to quit smoking and had tried vaping as
an alternative and that she did not recall receiving the
smoking offense charge slip or paying a fine for the
January, 2022 violation.
On February 21, 2023, the court issued its memoran-
dum of decision. The court determined that ‘‘the plain-
tiff claimed multiple violations of the no-smoking policy
as the basis of its claim of a lease violation. The evidence
presented at trial, however, only established violations
prior to the pretermination notice. The plaintiff’s wit-
ness testified as to the first smoking offense ticket in
January, 2022, and the 2020 vaping letter. The photo
presented into evidence showed the outdoors smoking
as time stamped by the plaintiff’s surveillance camera
as being taken June 8, 2022, a week prior to the letter.
The plaintiff did not present evidence of violations after
the sending of the letter. [Hughes] advised that he has
received complaints about many tenants, not just [the
defendant], and he does not have photos but is adamant
that she has violated the [no-smoking policy]. While
there may have been incidents and that is why the
plaintiff proceeded with this case, none were testified
to nor was evidence provided therefore.
‘‘While the Appellate Court cases . . . seem to indi-
cate that it is the defendant’s obligation to raise her
curing the lease violations as a special defense, under-
standing that the defendant is defending herself in a
self-represented capacity, the court must still consider
the evidence before it in making its decision. The defen-
dant did not proactively claim that she did not further
violate the [no-smoking] policy, only that she was trying
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Milford Redevelopment & Housing Partnership v. Glicklin
to quit smoking and attempting to comply with the [no-
smoking] policy. To terminate the defendant’s lease,
however, the court must find that the defendant, by a
fair preponderance of the evidence, did not cure lease
violations. The evidence before the court only estab-
lishes an initial violation of the [no-smoking] policy but
does not establish any violations after the pretermina-
tion notice. The court suspects that the defendant may
have violated the [no-smoking] policy, but that suspi-
cion is not supported by any evidence presented by the
plaintiff.
‘‘Accordingly, the court enters judgment for the
defendant and reinstates the defendant’s lease with the
plaintiff. This is without prejudice for the plaintiff to
start a new action with evidence of noncompliance
with the lease following an additional pretermination
notice.’’ (Emphasis omitted.) This appeal followed.
The defendant, through counsel, filed a motion to
dismiss this appeal on the basis that the trial court
lacked subject matter jurisdiction over the plaintiff’s
action because the ‘‘[p]laintiff’s federally required
pretermination notice did not comply with the time
frame established by 42 U.S.C. § 1437d (k) (2)6 and
6
Title 42 of the United States Code, § 1437d (k), titled ‘‘Administrative
grievance procedure regulations: grounds of adverse action, hearing, exami-
nation of documents, representation, evidence, decision; judicial hearing;
eviction and termination procedures,’’ provides in relevant part:
‘‘The Secretary shall by regulation require each public housing agency
receiving assistance under this chapter to establish and implement an admin-
istrative grievance procedure under which tenants will—
‘‘(1) be advised of the specific grounds of any proposed adverse public
housing agency action;
‘‘(2) have an opportunity for a hearing before an impartial party upon
timely request within any period applicable under subsection (l);
‘‘(3) have an opportunity to examine any documents or records or regula-
tions related to the proposed action;
‘‘(4) be entitled to be represented by another person of their choice at
any hearing;
‘‘(5) be entitled to ask questions of witnesses and have others make
statements on their behalf; and
‘‘(6) be entitled to receive a written decision by the public housing agency
on the proposed action. . . .’’
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(l) for the defendant public housing tenant to request
7
an administrative grievance hearing to challenge the
proposed termination of her lease.’’ (Footnotes added.)
On June 28, 2023, this court denied the defendant’s
motion to dismiss without prejudice to the parties
addressing the jurisdictional issue raised by the defen-
dant in their appellate briefs. Additional facts will be
set forth as necessary.
I
As a preliminary matter, we address whether the trial
court had subject matter jurisdiction over the plaintiff’s
summary process action. The defendant argues that the
court lacked subject matter jurisdiction because the
pretermination notice sent to her was inadequate in
two respects. First, she argues that the pretermination
notice was defective in that it failed to provide the
proper time frame for her to initiate the grievance pro-
cess. Second, she argues that it ‘‘fail[ed] to provide . . .
sufficient factual information for [the defendant] to
defend against the claimed violation of [the no-smoking
policy].’’ We reject the defendant’s claims that the pre-
termination notice was insufficient and, therefore, con-
clude that the court had subject matter jurisdiction over
the summary process action.
The following legal principles are relevant to our
resolution of this claim. ‘‘A motion to dismiss . . .
7
Title 42 of the United States Code, § 1437d (l), provides in relevant part:
‘‘Each public housing agency shall utilize leases which . . .
‘‘(4) require the public housing agency to give adequate written notice of
termination of the lease which shall not be less than—
‘‘(A) a reasonable period of time, but not to exceed 30 days—(i) if the
health or safety of other tenants, public housing agency employees, or
persons residing in the immediate vicinity of the premises is threatened; or
(ii) in the event of any drug-related or violent criminal activity or any felony
conviction;
‘‘(B) 14 days in the case of nonpayment of rent; and
‘‘(C) 30 days in any other case, except that if a State or local law provides
for a shorter period of time, such shorter period shall apply . . . .’’
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Milford Redevelopment & Housing Partnership v. Glicklin
properly attacks the jurisdiction of the court, essentially
asserting that the plaintiff cannot as a matter of law
and fact state a cause of action that should be heard
by the court. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction.’’ (Internal quotation marks omitted.) Gib-
son v. Jefferson Woods Community, Inc., 206 Conn.
App. 303, 306, 260 A.3d 1244, cert. denied, 339 Conn.
911, 261 A.3d 747 (2021). A claim that a court lacks
subject matter jurisdiction may be raised at any time
during the proceedings, including on appeal. See, e.g.,
Mention v. Kensington Square Apartments, 214 Conn.
App. 720, 727, 280 A.3d 1195 (2022). Thus, a challenge
to a court’s subject matter jurisdiction is a threshold
matter that we must resolve prior to addressing the
claims on appeal. See Housing Authority v. Martin, 95
Conn. App. 802, 808, 898 A.2d 245, cert. denied, 280
Conn. 904, 907 A.2d 90 (2006).
‘‘There is no doubt that the Superior Court is author-
ized to hear summary process cases; the Superior Court
is authorized to hear all cases except those over which
the probate courts have original jurisdiction. General
Statutes § 51-164s. The jurisdiction of the Superior
Court in summary process actions, however, is subject
to [certain] condition[s] precedent. . . . [B]efore a
landlord may pursue its statutory remedy of summary
process . . . the landlord must prove its compliance
with all the applicable preconditions set by state and
federal law for the termination of a lease.’’ (Citation
omitted; internal quotation marks omitted.) Presiden-
tial Village, LLC v. Perkins, 332 Conn. 45, 56, 209 A.3d
616 (2019). ‘‘When a defendant is a tenant of federally
subsidized housing, federal law must be followed in
addition to state law. . . . Under federal law, 42 U.S.C.
§ 1437d (l) and 24 C.F.R. § 966.4 (l) (3),8 a landlord is
8
Title 24 of the 2021 edition of the Code of Federal Regulations, § 966.4,
provides in relevant part: ‘‘A lease shall be entered into between the PHA and
each tenant of a dwelling unit which shall contain the provisions described
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required to issue a pretermination notice before com-
mencing a summary process action.’’ (Citation omitted;
footnote added.) Housing Authority v. Martin, supra,95 Conn. App. 808.
A
We begin with the defendant’s argument that the pre-
termination notice was jurisdictionally defective because
it failed to provide her with the legally required amount
of time to invoke the grievance process. The defendant
argues that 42 U.S.C. § 1437d (k) (2) and (l) clearly and
unambiguously required that she be given thirty days
to start the grievance process. Thus, according to the
defendant, because the pretermination notice that she
received notified her that she had ten days to do so, it
was legally insufficient. The plaintiff argues that 42
U.S.C. § 1437d (k) (2) and (l) do not apply to the initia-
tion of the grievance process and that it provided the
defendant with a pretermination notice that complied
with federal law because it informed the defendant that
she had a reasonable period of time, ten days, to invoke
the grievance process. We reject the defendant’s claim
that the pretermination notice was jurisdictionally
defective.9
hereinafter. . . . (l) Termination of tenancy and eviction . . . (3) Lease
termination notice. (i) The PHA must give written notice of lease termination
of: (A) 14 days in the case of failure to pay rent; (B) A reasonable period
of time considering the seriousness of the situation (but not to exceed 30
days): (1) If the health or safety of other residents, PHA employees, or
persons residing in the immediate vicinity of the premises is threatened; or
(2) If any member of the household has engaged in any drug-related criminal
activity or violent criminal activity; or (3) If any member of the household
has been convicted of a felony; (C) 30 days in any other case, except that
if a State or local law allows a shorter notice period, such shorter period
shall apply. . . .’’
9
The defendant does not argue on appeal that the court lacked subject
matter jurisdiction on the basis that the pretermination notice did not comply
with state law. Accordingly, our analysis in this subsection is limited to
whether the pretermination notice complied with federal law.
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Milford Redevelopment & Housing Partnership v. Glicklin
The defendant’s argument rests on 42 U.S.C. § 1437d
(k), which provides in relevant part: ‘‘The Secretary [of
Housing and Urban Development] shall by regulation
require each [PHA] receiving assistance under this
chapter to establish and implement an administrative
grievance procedure under which tenants will—(1) be
advised of the specific grounds of any proposed adverse
public housing agency action; (2) have an opportunity
for a hearing before an impartial party upon timely
request within any period applicable under subsection
(l); (3) have an opportunity to examine any documents
or records or regulations related to the proposed action;
(4) be entitled to be represented by another person of
their choice at any hearing; (5) be entitled to ask ques-
tions of witnesses and have others make statements on
their behalf; and (6) be entitled to receive a written
decision by the public housing agency on the proposed
action. . . .’’ In other words, § 1437d (k) instructs the
Secretary of Housing and Urban Development to
develop regulations setting forth the requirements, stan-
dards and criteria for grievance procedures established
and implemented by PHAs.
Title 42 of the United States Code, § 1437d (l), in
turn, provides in relevant part: ‘‘Each public housing
agency shall utilize leases which . . . (4) require the
public housing agency to give adequate written notice
of termination of the lease which shall not be less than
(A) a reasonable period of time, but not to exceed 30
days—(i) if the health or safety of other tenants, public
housing agency employees, or persons residing in the
immediate vicinity of the premises is threatened . . .
and (C) 30 days in any other case, except that if a State
or local law provides for a shorter period of time, such
shorter period shall apply . . . .’’
We now turn to the defendant’s specific claim on
appeal: that the plaintiff’s pretermination notice is juris-
dictionally defective in that it provides her with a ten
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day period to invoke the grievance process rather than
the thirty day period to which she claims she is entitled
pursuant to 42 U.S.C. § 1437d (k) (2) and (l).10 The
defendant’s claim rests on a flawed premise. Section
1437d (k) does not mandate that the amount of time
afforded a tenant to invoke the grievance process must
be identified in the pretermination notice. Rather, it
sets forth the substantive requirements of what pro-
cesses must be afforded to the tenant before eviction.
In support of her construction, the defendant relies
on Housing Authority v. Love, 375 Ill. App. 3d 508,
509–10, 874 N.E.2d 893 (2007), in which the Appellate
Court of Illinois considered whether a PHA’s grievance
procedure, which required that any grievance be made
within ten days after the grievable event, violated 42
U.S.C. § 1437d (k) (2). In that case, the PHA ‘‘served
upon [the tenant] a 30-day notice of termination of the
lease’’ on September 13, 2006, and the tenant ‘‘hand-
delivered a grievance to [the PHA], contesting the termi-
nation of the lease’’ on September 27, 2006. Id., 509.
Because ‘‘the deadline for submitting a grievance was
September 23, 2006,’’ the PHA considered the grievance
untimely and never responded to it. Id. In the ensuing
eviction action, the tenant moved for judgment in her
favor ‘‘on the ground that [the PHA] had failed to pro-
vide her the grievance procedure required by federal
law. [The tenant] argued that under the applicable fed-
eral statute, her grievance was timely because she sub-
mitted it within the 30-day period in the notice of termi-
nation. See 42 U.S.C. §§ 1437d (k) (2), (l) (4) (C) (2000).
The [trial] court disagreed with [the tenant’s] interpreta-
tion of the statute and held the grievance to be untimely
because [she] had failed to submit it within 10 days,
10
In resolving the defendant’s claim, our inquiry is limited to whether
the pretermination notice is jurisdictionally defective in this respect. The
question of whether the grievance procedure, as established and imple-
mented by the plaintiff, complies with federal law is not before this court.
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Milford Redevelopment & Housing Partnership v. Glicklin
the deadline to which the parties agreed in the lease.’’
Id., 509–10.
The tenant appealed from the judgment for the PHA;
id., 510; ‘‘arguing that [the PHA] failed to provide her
the grievance procedure required by federal statutory
law.’’ Id., 509. The Illinois Appellate Court agreed with
the tenant, concluding that, because she submitted her
grievance within thirty days after receiving the termina-
tion notice, it was timely. Id., 512. Accordingly, the
court held that the tenant had invoked the grievance
proceeding notwithstanding the ten day limitation pro-
vided for in the parties’ lease. Id.
In the present case, however, the defendant never
sought to invoke the grievance process. Moreover, on
appeal, she does not claim that that the plaintiff’s proce-
dure violates the federal statute by failing to afford her
‘‘an opportunity for a hearing before an impartial party
upon timely request within’’ thirty days.11 Instead, she
claims that, ‘‘[b]ecause . . . [the plaintiff’s] pretermi-
nation notice failed to provide the proper time frame for
[her] to initiate [the plaintiff’s] administrative grievance
process,’’ the court lacked subject matter jurisdiction.
Given the differences between the claim raised by the
defendant in the present case and the claim addressed
by the court in Love, her reliance on that case is mis-
placed. The court in Love considered whether the griev-
ance procedure itself denied the tenant ‘‘an opportunity
for a hearing before an impartial party upon timely
request,’’ and not whether 42 U.S.C. § 1437d (k) (2)
required that the pretermination notice specify the time
frame for invoking the grievance process. Accordingly,
Love is distinguishable from the present case.
11
We note that, although the parties’ lease reflects that the plaintiff pro-
vided the defendant with a copy of its ‘‘Grievance Policy and Procedure,’’
that document does not appear in the record.
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Furthermore, the statutory time requirement set forth
in 42 U.S.C. § 1437d (k) (2) and (l), on which the defen-
dant relies, applies to the period of time within which
the defendant must have an opportunity for a hearing
before an impartial party—not to the time for initiation
of the grievance process. As the defendant acknowl-
edges in her appellate brief, such a hearing only occurs
if the issue leading to the pretermination notice is not
resolved earlier in the grievance process during infor-
mal negotiations. Significantly, although § 1437d (k)
provides a number of rights a tenant has in connection
with such a formal hearing, it does not require that any
of those rights be included in the pretermination notice.
The required contents of the pretermination notice
are instead established by the regulations. Title 24 of
the 2021 edition of the Code of Federal Regulations,
§ 247.4 (a), provides: ‘‘The landlord’s determination to
terminate the tenancy shall be in writing and shall: (1)
State that the tenancy is terminated on a date specified
therein; (2) state the reasons for the landlord’s action
with enough specificity so as to enable the tenant to
prepare a defense; (3) advise the tenant that if he or
she remains in the leased unit on the date specified
for termination, the landlord may seek to enforce the
termination only by bringing a judicial action, at which
time the tenant may present a defense; and (4) be served
on the tenant in the manner prescribed by paragraph
(b) of this section.’’ Nothing therein requires the preter-
mination notice to identify timelines related to initiating
the grievance procedure.
Additionally, 24 C.F.R. § 966.4 (l) (3) (ii) provides
that ‘‘[t]he notice of lease termination to the tenant
shall state specific grounds for termination, and shall
inform the tenant of the tenant’s right to make such
reply as the tenant may wish. The notice shall also
inform the tenant of the right (pursuant to § 966.4 (m))
to examine PHA documents directly relevant to the
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termination or eviction. When the PHA is required to
afford the tenant the opportunity for a grievance hear-
ing, the notice shall also inform the tenant of the tenant’s
right to request a hearing in accordance with the PHA’s
grievance procedure.’’12
Although the regulations require that the pretermina-
tion notice inform the tenant of the right to request a
hearing in accordance with the PHA’s grievance proce-
dure, they do not require that the notice specify the
time frame for invoking the grievance process. In the
present case, the defendant does not claim that she was
unaware of the plaintiff’s grievance procedure, that the
procedure did not comply with federal law, or that she
was unaware of her right to request a hearing before
an impartial party. Instead, her argument is focused
on a purported deficiency in the pretermination notice
based on a requirement that does not exist. Accordingly,
we reject the defendant’s jurisdictional argument.
B
The defendant also raises, for the first time in her
appellate brief, an argument that the plaintiff ‘‘fail[ed] to
provide a pretermination notice with sufficient factual
information for [the defendant] to defend against the
claimed violation of [the policy, which] deprived the
trial court of subject matter jurisdiction over [the plain-
tiff’s] action.’’ The defendant cites to 42 U.S.C. § 1437d
(k) and (l) and General Statutes § 47a-15 for the proposi-
tion that the plaintiff was required to serve the defen-
dant with ‘‘a valid pretermination notice informing [her]
of the basis for the proposed termination of her lease
. . . .’’ The plaintiff responds that the pretermination
12
The defendant does not claim that the pretermination notice was inade-
quate because it did not expressly tell her that she had the right to request
a hearing as opposed to referring the defendant to the grievance procedure,
which she acknowledged receiving when she renewed her lease in 2021.
See footnote 11 of this opinion.
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notice it provided to the defendant contained ‘‘sufficient
information to enable [her] to remedy or cure the viola-
tion . . . .’’ We agree with the plaintiff.
Although the defendant raises this argument for the
first time in her appellate brief, we nevertheless address
it on appeal. See Mention v. Kensington Square Apart-
ments, supra, 214 Conn. App. 727 (claim that court
lacks subject matter jurisdiction can be raised at any
time during proceedings, including on appeal). The fol-
lowing legal principles are, thus, necessary for our reso-
lution of this claim. With respect to federal law, ‘‘[s]er-
vice of a valid pretermination notice is a condition
precedent to a summary process action. See [24 C.F.R.]
§ 247.4 [2018].13 In any subsequent summary process
action, the landlord can rely only on grounds that were
set forth in that notice, unless the landlord had no
knowledge of an additional ground at the time the pre-
termination notice was served. . . . With respect to
the statement of such grounds in the pretermination
notice, the regulations mandate that the notice must,
among other things, state the reasons for the landlord’s
action with enough specificity so as to enable the tenant
to prepare a defense . . . .’’ (Citation omitted; emphasis
in original; footnote altered; internal quotation marks
omitted.) Presidential Village, LLC v. Perkins, supra,332 Conn. 57.
In Connecticut, ‘‘[s]ummary process is a statutory
remedy which enables the landlord to recover posses-
sion from the tenant upon the termination of a lease.
13
‘‘Title 24 of the 2018 edition of the Code of Federal Regulations, § 247.4
(a), provides: ‘The landlord’s determination to terminate the tenancy shall
be in writing and shall: (1) State that the tenancy is terminated on a date
specified therein; (2) state the reasons for the landlord’s action with enough
specificity so as to enable the tenant to prepare a defense; (3) advise the
tenant that if he or she remains in the leased unit on the date specified for
termination, the landlord may seek to enforce the termination only by bring-
ing a judicial action, at which time the tenant may present a defense; and
(4) be served on the tenant in the manner prescribed by paragraph (b) of
this section.’ ’’ Presidential Village, LLC v. Perkins, supra, 332 Conn. 57 n.12.
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Milford Redevelopment & Housing Partnership v. Glicklin
. . . Pursuant to § 47a-15, before a landlord may pro-
ceed with a summary process action, except in those
situations specifically excluded, the landlord must first
deliver a [pretermination] notice to the tenant speci-
fying the alleged violations and offer the tenant a . . .
period to remedy. . . . The legislative purpose [of a
pretermination or Kapa14 notice] is to discourage sum-
mary evictions against first offenders . . . . Section
47a-15 is separate from and preliminary to the mainte-
nance of a summary process action pursuant to . . .
[General Statutes] § 47a-23. . . . The Superior Court
has jurisdiction to hear a summary process action only
if the landlord has previously served the tenant with a
notice to quit pursuant to § 47a-23. . . .
‘‘The text of § 47a-15 is clear and unambiguous: Prior
to the commencement of a summary process action
. . . the landlord shall deliver a written notice to the
tenant specifying the acts or omissions constituting the
breach and that the rental agreement shall terminate
upon a date not less than fifteen days after receipt of
the notice. . . . [I]f substantially the same act or omis-
sion for which notice was given recurs within six
months, the landlord may terminate the rental agree-
ment in accordance with the provisions of [§§] 47a-
23 to 47a-23b, inclusive.’’ (Citations omitted; footnote
added; internal quotation marks omitted.) Housing
Authority v. Rodriguez, 178 Conn. App. 120, 126–27,
174 A.3d 844 (2017). ‘‘In order to demonstrate its compli-
ance with the notices required for a proper termination,
a landlord must show that the notices given to the
tenant apprised her of the information a tenant needs
to protect herself against premature, discriminatory or
arbitrary eviction.’’ Jefferson Garden Associates v.
Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987).
In the present case, the defendant maintains that the
plaintiff provided her with an invalid pretermination
14
Kapa Associates v. Flores, 35 Conn. Supp. 274, 278, 408 A.2d 22 (1979).
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notice that ‘‘failed to specify where [the defendant]
smoked and did not indicate when the alleged violation
took place.’’ In support of her argument, the defendant
relies on a footnote in Presidential Village, LLC v.
Perkins, supra, 332 Conn. 54 n.10, that states: ‘‘[I]f the
lack of specificity in a notice discourages the tenant
from taking steps to cure the default, it also could impair
the tenant’s ability to establish an equitable defense to
eviction.’’ The pretermination notice in the present case,
however, provided the defendant with the information
necessary for her to defend herself against possible
eviction. Specifically, it identified the lease provision
that the defendant violated, stated that she had smoked
within twenty-five feet of the building, and included a
copy of the no-smoking policy. Moreover, the pretermi-
nation notice included a cure provision that informed
the defendant that she had thirty days to remedy the
violation. We cannot conclude that the information pro-
vided by the plaintiff to the defendant ‘‘discourages
[her] from taking steps to cure the default’’ or ‘‘impair[s]
[her] ability to establish an equitable defense to evic-
tion.’’ Id. Accordingly, the pretermination notice com-
plied with federal and state law, and the court, there-
fore, had subject matter jurisdiction over this matter.
II
Having concluded that the court had subject matter
jurisdiction over this summary process action, we now
turn to the plaintiff’s claims on appeal. The plaintiff
claims that the court (1) improperly rendered judgment
for the defendant because she did not assert as a special
defense that she cured the no-smoking policy violation,
and (2) applied an incorrect legal standard to find that
the plaintiff did not prove that the defendant had not
cured her violation of the no-smoking policy.15 We
address each claim in turn.
15
The plaintiff also claims that the defendant could not cure her most
recent violation of the no-smoking policy because she had violated it on
several occasions. Because we agree with the plaintiff on its claims regarding
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A
The plaintiff first claims that the court improperly
rendered judgment for the defendant because she did
not assert as a special defense that she cured the viola-
tion of the no-smoking policy. The defendant responds
that she pleaded the special defense of cure because
her ‘‘answer can easily be construed as pleading the
equitable doctrine against forfeiture as a special defense
which incorporates cure as one of its elements.’’ We
agree with the plaintiff.
Our resolution of this claim ‘‘requires us to interpret
the defendant’s pro se answer. As a consequence, the
issue before the court invokes our plenary power to
review the legal effect of pleadings.’’ Vanguard Engi-
neering, Inc. v. Anderson, 83 Conn. App. 62, 65, 848
A.2d 545 (2004). ‘‘A defendant’s failure to plead a special
defense precludes the admission of evidence on the
subject. . . . Although our courts are consistently
. . . solicitous of the rights of pro se litigants, the rules
of practice cannot be ignored to the detriment of other
parties. . . . It would be fundamentally unfair to allow
any defendant to await the time of trial to introduce
an unpleaded defense. Such conduct would result in
trial by ambuscade to the detriment of the opposing
party.’’ (Citations omitted; internal quotation marks
omitted.) Oakland Heights Mobile Park, Inc. v. Simon,
36 Conn. App. 432, 436–37, 651 A.2d 281 (1994). In a
summary process action, ‘‘[i]f a tenant claims that a
breach can be and has been remedied and is no longer
continuing, the tenant should state those claims in a
special defense to the summary process action.’’16 Hous-
ing Authority v. Martin, supra, 95 Conn. App. 814.
the court’s consideration of an unpleaded special defense, we need not
address this additional claim.
16
‘‘This is consistent with Practice Book § 10-50, which provides in relevant
part: ‘No facts may be proved under either a general or special denial except
such as show that the plaintiff’s statements of fact are untrue. Facts which
are consistent with such statements but show, notwithstanding, that the
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The defendant did not plead in her answer that she
cured the violation within the thirty days prescribed in
the pretermination notice. Although we are cognizant
that the defendant was self-represented at this time,
she filed her answer on Judicial Form JD-HM-5, titled
‘‘Summary Process (Eviction) Answer to Complaint,’’
which provides express instructions on how to com-
plete that form. See Official Court Webforms, Form JD-
HM-5, available at https://jud.ct.gov/webforms/forms/
hm005.pdf (last visited October 3, 2024). Section 2 of
the form is dedicated to special defenses and provides
a defendant with a number of special defenses, each
of which has a box that a defendant can select to indi-
cate that they are asserting that specific defense. More-
over, the form includes a definition of the term ‘‘special
defenses’’ that reads: ‘‘Facts showing the court that the
plaintiff has no legal right to evict you.’’ Included in
section 2 in the list of special defenses is the statement:
‘‘I remedied the issue(s) listed in the pre-termination
notice delivered to me under Connecticut law.’’ The
defendant did not select that special defense and,
instead, selected the box immediately underneath it,
which is accompanied by the special defense: ‘‘Addi-
tional reasons why I should not be evicted . . . .’’ The
defendant handwrote as an additional reason that she
is ‘‘attempting to quit smoking.’’ She, therefore, did not
plead that she cured the violation.17
plaintiff has no cause of action, must be specially alleged. . . .’ ’’ Housing
Authority v. Martin, supra, 95 Conn. App. 814 n.8.
17
In her appellate brief, the defendant argues that ‘‘[t]he language in [her]
[a]nswer can easily be construed as pleading the equitable doctrine against
forfeiture as a special defense which incorporates cure as one of its ele-
ments.’’ In light of our conclusion that the court erred in rendering judgment
on the unpleaded special defense of cure, we recognize that the court did
not consider her special defense ‘‘I have lived on the premises for [thirteen
years] and I have complied with all rent payments and I am attempting to
quit smoking.’’ We express no opinion as to the construction of this special
defense were it to be pursued on remand.
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Having determined that the defendant did not plead
the special defense of cure, we must next determine
whether the court improperly rendered judgment on
that basis. The court correctly acknowledged in its
memorandum of decision that ‘‘[t]he defendant did not
proactively claim that she did not further violate the
policy, only that she was trying to quit smoking and
attempting to comply with the policy.’’ The court never-
theless determined that the evidence before it ‘‘only
establishes an initial violation of the policy but does
not establish any violations after the pretermination
notice.’’ Accordingly, the court improperly relied on
an unpleaded special defense as a basis for rendering
judgment in the defendant’s favor. See Howard-Arnold,
Inc. v. T.N.T. Realty, Inc., 145 Conn. App. 696, 712, 77
A.3d 165 (2013) (‘‘it is improper for a court, sua sponte,
to apply an unpleaded special defense to defeat a plain-
tiff’s cause of action’’), aff’d, 315 Conn. 596, 109 A.3d
473 (2015); Oakland Heights Mobile Park, Inc. v.
Simon, supra, 36 Conn. App. 436–37 (allowing evidence
of unpleaded special defense ‘‘result[s] in ‘trial by
ambuscade’ to the detriment of the opposing party’’).
We, therefore, conclude that, because the defendant
did not plead as a special defense that she cured the
violation, the court improperly considered it as a basis
for rendering judgment in the defendant’s favor.
B
The plaintiff next claims that the court applied an
incorrect legal standard to find that the plaintiff did not
prove that the defendant had not cured her violation of
the no-smoking policy. Specifically, the plaintiff argues
that ‘‘[t]he trial court . . . was not empowered to
excuse [the] defendant from raising any special defense
available to her or from attempting to credibly prove
such defense at trial. In doing so [the court] erroneously
placed the burden on the plaintiff to prove otherwise.’’
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The defendant responds that the lack of evidence pre-
sented at trial to suggest that she continued violating
the no-smoking policy supports the court’s judgment
in her favor. We agree with the plaintiff.
The following legal principles are relevant to our
resolution of this claim. ‘‘The plenary standard of review
applies to the preliminary issue of whether the court
applied the correct legal standard in evaluating [a defen-
dant’s] special defense.’’ Boccanfuso v. Daghoghi, 193
Conn. App. 137, 150, 219 A.3d 400 (2019), aff’d, 337
Conn. 228, 253 A.3d 1 (2020). ‘‘The burden of establish-
ing an equitable defense in a summary process action
falls on the party asserting that defense.’’ Id., 151.
As set forth in part II A of this opinion, the defendant
did not plead as a special defense that she cured the
violation. Assuming, arguendo, that the defendant had
pleaded as a special defense that she cured the viola-
tion, the court nevertheless improperly placed the bur-
den of proof on the plaintiff by requiring the plaintiff
to prove that a subsequent violation of the no-smoking
policy had occurred after it issued the pretermination
notice. The court’s memorandum of decision provides
that ‘‘the plaintiff claimed multiple violations of the
no-smoking policy as the basis of its claim of a lease
violation. The evidence presented at trial, however, only
established violations prior to the pretermination
notice. . . . The plaintiff did not present evidence of
violations after the sending of the letter.’’ (Emphasis
added.) This statement is an improper application of our
jurisprudence on special defenses. Had the defendant
raised as a special defense that she cured the violation,
then she, and not the plaintiff, would have borne the
burden of proving that defense. See O & G Industries,
Inc. v. American Home Assurance Co., 204 Conn. App.
614, 625, 254 A.3d 955 (2021) (‘‘defendant must prove
the allegations in its special defenses by a fair prepon-
derance of the evidence in a civil trial’’). Accordingly,
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we conclude that the court applied the incorrect legal
standard by improperly placing the burden of proof on
the plaintiff with respect to the defendant’s unpleaded
special defense.
In light of our determinations in part II A and B of
this opinion, we conclude that the court improperly
rendered judgment in favor of the defendant on the
basis of an unpleaded special defense that the court
concluded the plaintiff failed to disprove. Consequently,
the court never considered the defendant’s special
defenses as they were pleaded on her summary process
answer form.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.