Renaissance Management Co. v. Barnes

 RENAISSANCE MANAGEMENT COMPANY, INC. v.
ANDRE BARNES ET AL.
(AC 38879)
Lavine, Mullins and Bear, Js.
Syllabus
The plaintiff landlord sought, by way of a summary process action, to obtain
possession of an apartment that had been rented to the defendant tenant.
The plaintiff served the defendant with a notice to quit possession of
the apartment and soon thereafter commenced this action. The defen-
dant filed a special defense claiming that the retaliatory eviction statute
(§ 47a-20) barred the plaintiff’s action because the defendant had com-
plained to a municipal authority about housing code violations related
to certain repairs in the apartment and that authority had found viola-
tions of the housing code within six months of the commencement of
the action. The defendant then filed a motion for summary judgment
on that ground. The trial court granted the motion, concluding that
§ 47a-20 barred the action and that the plaintiff had failed to demonstrate
that any of the statutory (§ 47a-20a) exceptions to § 47a-20 applied.
The trial court specifically determined that the fitness and habitability
requirements enunciated in Visco v. Cody (16 Conn. App. 444), wherein
this court held that the defects alleged to be in need of repair must
materially affect a leased unit’s fitness and habitability to be a violation
of § 47a-20 (3), did not apply in the circumstance of a municipal agency’s
finding of housing code violations as set forth in § 47a-20 (2). Thereafter,
the defendant appealed to this court, claiming, inter alia, that the trial
court erred in determining that Visco was inapplicable to his defense
of retaliatory eviction under § 47a-20. Following oral argument before
this court, but before the court rendered its judgment, the defendant
vacated and relinquished possession of the subject apartment to the
plaintiff, and the court ordered supplemental briefing on the issue of
mootness and any possible exception thereto because the sole remedy
available to the plaintiff in its summary process action was possession
of the apartment. In their briefs, both parties argued that the issue raised
on appeal, that Visco applied to retaliatory eviction defenses brought
under § 47a-20 (2), satisfied the capable of repetition, yet evading review
exception to the mootness doctrine. Held that the plaintiff’s appeal
was dismissed because it was moot and no exception to the mootness
doctrine was applicable to the facts and circumstances of the appeal:
in the specific context of this appeal and in light of the limited factual
record regarding the mootness issue and the recent procedural history
of the case, the parties failed to satisfy the first prong of the capable
of repetition, yet evading review exception to the mootness doctrine,
which pertains to the length of the challenged action, as this court was
not persuaded that this court or our Supreme Court would not be able
to resolve in a later appeal, with a more complete factual record concern-
ing the fitness and habitability aspect of each of the subject health code
violations, whether the fitness and habitability requirements enunciated
in Visco are applicable to a finding of municipal code violations pursuant
to § 47a-20 (2); furthermore, there was no merit to the plaintiff’s assertion
that the failure of this court to determine in this appeal whether the
fitness and habitability gloss previously applied to § 47a-20 (3) in Visco
was applicable to § 47a-20 (2) would give rise to prejudicial collateral
consequences to landlords in future summary process cases, our appel-
late courts having applied the collateral consequences doctrine only to
instances in which the decision of the trial court gave rise to conse-
quences specific to a party to the case.
Argued March 16—officially released August 22, 2017
Procedural History
Summary process action brought to the Superior
Court in the judicial district of New Haven, Housing
Session, where the court, Foti, J., denied the named
defendant’s motion to dismiss; thereafter, the court,
Ecker, J., granted the named defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court; subse-
quently, the court, Ecker, J., issued a corrected memo-
randum of decision. Appeal dismissed.
Hugh D. Hughes, with whom was David E. Schan-
cupp, for the appellant (plaintiff).
Wesleigh Anderson, certified legal intern, with whom
was Jeffrey Gentes, for the appellee (named defendant).
Opinion
BEAR, J. In this summary process action for posses-
sion of an apartment in New Haven, the plaintiff, Renais-
sance Management Co., Inc., appeals from the summary
judgment of the trial court rendered in favor of the
defendant Andre Barnes.1 The court granted the defen-
dant’s motion for summary judgment on the ground that
the plaintiff was prohibited by the retaliatory eviction
statute; General Statutes § 47a-20; from initiating the
action and that the exceptions claimed by the plaintiff
under General Statutes § 47a-20a, which would pre-
clude application of § 47a-20 and thereby allow it to
initiate the action, did not apply. On appeal, the plaintiff
claims that the trial court erred when it (1) determined
that this court’s holding in Visco v. Cody, 16 Conn.
App. 444, 547 A.2d 935 (1988), was inapplicable to the
defendant’s special defense of retaliatory eviction under
§ 47a-20; (2) determined that its complaint did not allege
nonpayment of rent; and (3) interpreted the definition
of rent in § 47a-20a to include the United States Depart-
ment of Housing and Urban Development’s payment of
its share of the agreed total rent for the premises such
that the total amount of money received by the plaintiff
was unaffected by the defendant’s alleged under-
payment. Following oral argument before this court,
but before this court rendered its judgment, the plaintiff
obtained possession of the apartment. Notified of this
fact, we ordered the parties to submit supplemental
briefs on the issue of mootness. Following our review of
the parties’ supplemental briefs, we dismiss the appeal
because it is moot and no exception to the mootness
doctrine is applicable to the facts and circumstances
of this appeal.
The following facts and procedural history are not
in dispute. The defendant was served with a notice to
quit possession of the apartment on September 3, 2014.
This summary process action was commenced on Sep-
tember 15, 2014. The defendant filed a special defense
claiming that the retaliatory eviction statute, § 47a-20,
barred the plaintiff’s summary process action because
he had complained to a municipal authority about hous-
ing code violations and such authority had found viola-
tions of the housing code within six months of the
commencement of the action.
On August 10, 2015, the defendant moved for sum-
mary judgment on the ground that § 47a-20 prohibited
the plaintiff from maintaining a summary process action
within six months of a complaint to, or notice by, a
government agency of a housing code violation. On
September 8, 2015, the plaintiff submitted its memoran-
dum in opposition to the motion for summary judgment,
arguing that the reason for the action was the ‘‘fraud
committed by the defendant in failing to report his
income, which constitut[ed] a material violation of his
lease.’’ The plaintiff also argued that Visco required
that the claimed defects constituting a violation of the
housing code materially affect health and safety, and
that the defendant failed to submit detailed information
regarding the requested repairs. The court granted the
defendant’s motion for summary judgment on February
5, 2016.
In its corrected memorandum of decision, the court
determined that § 47a-20 barred the plaintiff’s action,
and that the plaintiff had failed to demonstrate that any
exception under § 47a-20a to the § 47a-20 bar applied.
Specifically, the court concluded that, contrary to the
plaintiff’s assertion, the fitness and habitability require-
ments enunciated in Visco, relating to requested
‘‘repairs’’ as set forth in § 47a-20 (3), did not apply in
the circumstance of a municipal agency’s finding of
housing code violations as set forth in § 47a-20 (2). The
court determined that § 47a-20 (2) required an actual
finding by a municipal agency of a code violation, and
concluded that New Haven’s Livable City Initiative, the
relevant municipal agency in the present case, found
the existence of such code violations in the defendant’s
apartment, thereafter entering an order requiring reme-
diation by the plaintiff within twenty-one days under
threat of criminal liability. The court also determined
that the exception claimed by the plaintiff under § 47a-
20a (a) (1) was inapplicable to the facts of this case.
Accordingly, the court granted the defendant’s motion
for summary judgment. This appeal followed.
The parties agree that, following oral argument
before this court on March 16, 2017, the defendant
vacated and relinquished possession of the plaintiff’s
property on May 10, 2017. After the parties apprised
this court of this fact, we ordered supplemental briefing
on the issue of mootness and any possible exceptions
thereto because the sole remedy sought by, and avail-
able to, the plaintiff in its summary process action was
possession of the premises. The parties have since sub-
mitted supplemental briefs, and each argues that the
‘‘capable of repetition, yet evading review’’ exception
to mootness applies to this case. The plaintiff also
argues in its supplemental brief that collateral conse-
quences to the plaintiff will continue without a decision
and, thus, the appeal is not moot.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
this court’s subject matter jurisdiction.’’ Wendy V. v.
Santiago, 319 Conn. 540, 545, 125 A.3d 983 (2015). ‘‘Jus-
ticiability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practical
relief to the complainant.’’ (Internal quotation marks
omitted.) State v. McElveen, 261 Conn. 198, 217, 802
A.2d 74 (2002). ‘‘An actual controversy must exist not
only at the time the appeal is taken, but also throughout
the pendency of the appeal. . . . When, during the pen-
dency of an appeal, events have occurred that preclude
an appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Internal quotation marks omitted.) In re Emma
F., 315 Conn. 414, 423–24, 107 A.3d 947 (2015). ‘‘This
court has consistently held that an appeal from a sum-
mary process judgment becomes moot where, at the
time of the appeal, the defendant is no longer in posses-
sion of the premises.’’ (Internal quotation marks omit-
ted.) Friedman v. Gomez, 172 Conn. App. 254, 260,
A.3d (2017).
As the defendant is no longer in possession of the
property, the appeal is clearly moot, unless an exception
applies and the parties do not contest this conclusion.
Recognizing this, the parties argue that the issue raised
on appeal, that this court’s holding in Visco applies to
retaliatory eviction defenses brought under § 47a-20 (2),
satisfies the capable of repetition, yet evading review
exception to the mootness doctrine. The plaintiff also
argues that the collateral consequences doctrine applies
because the court’s interpretation of § 47a-20 (2) will
allow other tenants to utilize it as a defense, and, there-
fore, the appeal is not moot. We determine that neither
of the claimed exceptions applies and, thus, the appeal
is moot.
‘‘To qualify under the capable of repetition, yet evad-
ing review exception, three requirements must be met.
First, the challenged action, or the effect of the chal-
lenged action, by its very nature must be of a limited
duration so that there is a strong likelihood that the
substantial majority of cases raising a question about
its validity will become moot before appellate litigation
can be concluded. Second, there must be a reasonable
likelihood that the question presented in the pending
case will arise again in the future, and that it will affect
either the same complaining party or a reasonably iden-
tifiable group for whom that party can be said to act
as surrogate. Third, the question must have some public
importance. Unless all three requirements are met, the
appeal must be dismissed as moot.’’ (Internal quotation
marks omitted.) Wendy V. v. Santiago, supra, 319
Conn. 545–46.
‘‘The first element in the analysis pertains to the
length of the challenged action. . . . The basis for this
element derives from the nature of the exception. If an
action or its effects is not of inherently limited duration,
the action can be reviewed the next time it arises, when
it will present an ongoing live controversy. Moreover,
if the question presented is not strongly likely to become
moot in the substantial majority of cases in which it
arises, the urgency of deciding the pending case is sig-
nificantly reduced. Thus, there is no reason to reach
out to decide the issue as between parties who, by
hypothesis, no longer have any present interest in the
outcome. . . . [A] party typically satisfies this prong if
there exists a functionally insurmountable time [con-
straint] . . . or the challenged action had an intrinsi-
cally limited lifespan.’’ (Citations omitted; internal
quotation marks omitted.) In re Priscilla A., 122 Conn.
App. 832, 836–37, 2 A.3d 24 (2010).
The present appeal fails to meet the first requirement
of the capable of repetition, yet evading review excep-
tion. The action challenged in this case is that the plain-
tiff commenced a summary process action in violation
of § 47a-20 (2) within six months of a finding by a
municipal agency of a housing code violation. The spe-
cific legal issue raised by the plaintiff is whether the
holding in Visco, that the defects alleged to be in need
of repair must materially affect a leased unit’s fitness
and habitability to be a violation of § 47a-20 (3)
(repairs), was also applicable in the circumstance of a
municipal agency’s finding of housing code violations
pursuant to § 47a-20 (2).
Our Supreme Court recently has reached the merits
of appeals in summary process cases, including the
residential summary process cases of Presidential Vil-
lage, LLC v. Phillips, 325 Conn. 394, A.3d (2017),
and Fairchild Heights, Inc. v. Dickal, 305 Conn. 488,
45 A.3d 627 (2012). This court recently also has reached
the merits of appeals in summary process cases, includ-
ing the residential cases of Holdmeyer v. Thomas, 167
Conn. App. 544, 144 A.3d 1052 (2016) (reversing trial
court and holding that plaintiff failed to meet any excep-
tions to § 47a-20), Housing Authority v. Weitz, 163
Conn. App. 778, 134 A.3d 749 (2016) (judgment of pos-
session reversed and trial court ordered to vacate
default judgment), 136 Field Point Circle Holding Co.,
LLC v. Razinski, 162 Conn. App. 333, 131 A.3d 1213(2016) (defendants entitled to hearing on merits of
motion for judgment of possession), Kenosia Com-
mons, Inc. v. DaCosta, 161 Conn. App. 668, 129 A.3d
730 (2015) (defendant subject to summary process pro-
ceedings as resident of mobile home park), and Konover
Residential Corp. v. Elezazy, 148 Conn. App. 470, 87
A.3d 1114 (judgments of possession affirmed), cert.
denied, 312 Conn. 908, 93 A.3d 592 (2014).
In the present case, as previously noted in this opin-
ion, the appeal was argued in March, 2017, approxi-
mately two and one-half years after the service of the
September 3, 2014 notice to quit. When the defendant
vacated the premises in May, 2017, this appeal was
under consideration by this court. In light of this recent
history, we are not persuaded that this court or our
Supreme Court will not be able to resolve in a later
appeal, with a more complete factual record concerning
the fitness and habitability aspect of each of the code
violations, whether the Visco fitness and habitability
gloss to the meaning of repairs, as set forth in § 47a-
20 (3), is applicable to a finding of code violations,
pursuant to § 47a-20 (2). Accordingly, in the specific
context of this appeal, after review of the parties’ argu-
ments in support of the application of the capable of
repetition, yet evading review mootness exception, and
in light of the somewhat limited contents of the factual
record on which we must rely in part to resolve the
Visco issue, we conclude that the first prong of that
exception has not been satisfied by the parties. See In
re Priscilla A., supra, 122 Conn. App. 832.
The plaintiff also argues that it faces collateral conse-
quences from the decision of the trial court such that
the appeal is not moot. ‘‘Our Supreme Court . . . has
allowed us to retain jurisdiction where the matter being
appealed creates collateral consequences prejudicial to
the interests of the appellant, even though develop-
ments during the pendency of the appeal would other-
wise render it moot. . . . [T]o invoke successfully the
collateral consequences doctrine, the litigant must
show that there is a reasonable possibility that prejudi-
cial collateral consequences will occur. Accordingly,
the litigant must establish these consequences by more
than mere conjecture, but need not demonstrate that
these consequences are more probable than not. This
standard provides the necessary limitations on justicia-
bility underlying the mootness doctrine itself. Whe[n]
there is no direct practical relief available from the
reversal of the judgment . . . the collateral conse-
quences doctrine acts as a surrogate, calling for a deter-
mination whether a decision in the case can afford the
litigant some practical relief in the future.’’ (Citation
omitted; internal quotation marks omitted.) Iacurci v.
Wells, 108 Conn. App. 274, 277, 947 A.2d 1034 (2008).
The plaintiff argues that the failure of this court in
this appeal to determine whether the Visco fitness and
habitability gloss previously applied to § 47a-20 (3) is
also applicable to § 47a-20 (2) would give rise to prejudi-
cial collateral consequences to landlords in future sum-
mary process cases.2 The plaintiff, however, argues for
an overbroad application of the collateral conse-
quences doctrine.
Our appellate courts have applied the doctrine to
instances in which the decision of the trial court gave
rise to collateral consequences specific to a party to
the case. In Putman v. Kennedy, 279 Conn. 162, 175,
900 A.2d 1256 (2006), our Supreme Court applied the
doctrine in a mooted case where the trial court’s deci-
sion would harm the defendant’s reputation. Although
there are a diverse ‘‘array of collateral consequences
that will preclude dismissal on mootness grounds’’; id.,
169; we are not aware of our courts having applied the
doctrine to collateral consequences that do not directly
and specifically affect the appealing party. See, e.g.,
New Hartford v. Connecticut Resources Recovery
Authority, 291 Conn. 489, 497 n.17, 970 A.2d 570 (2009)
(contempt finding has collateral consequences on party
as case continues); Office of the Governor v. Select
Committee of Inquiry, 271 Conn. 540, 549–50, 858 A.2d
709 (2004) (appeal not rendered moot by investigative
committee statement that it would not enforce sub-
poena directly ‘‘because of the collateral consequence
of the potential for an article of impeachment on the
basis, at least in part, of the governor’s noncompliance
with the subpoena’’); Wallingford v. Dept. of Public
Health, 262 Conn. 758, 769–70, 817 A.2d 644 (2003)
(appeal not rendered moot by passage of special act
addressing issue in case because administrative ruling
that town is ‘‘water company’’ for purposes of possible
construction of golf course on watershed land ‘‘poten-
tially subjects’’ town to collateral consequences of
Department of Public Health’s jurisdiction and other
statutory obligations); Williams v. Ragaglia, 261 Conn.
219, 227–31, 802 A.2d 778 (2002) (appeal from revoca-
tion of plaintiff’s special study foster care license as
consequence for violating foster care regulations was
not rendered moot by grant to plaintiff of permanent
custody of foster children at issue because of revoca-
tion’s effect on her reputation and fact that revocation
could be used against her in future Department of Chil-
dren and Families proceedings if she wanted to become
foster parent again); State v. McElveen, supra, 261 Conn.
212–16 (appeal from conviction of violation of proba-
tion was not rendered moot by defendant’s completion
of sentence because conviction could impact his reputa-
tion and ability to obtain employment or preconviction
bail in future); Crest Pontiac Cadillac, Inc. v. Hadley,
239 Conn. 437, 439–40 n.3, 685 A.2d 670 (1996) (outcome
of other case party had pending affected by court’s
determination in appeal); Housing Authority v.
Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993)
(potential prejudicial consequences to defendant in
summary process action resulting from eviction, includ-
ing ability to obtain future housing).
In summary, the defendant has vacated and surrend-
ered possession of the premises to the plaintiff. In the
absence of either party demonstrating the application
of a recognized exception to the mootness doctrine,
the appeal is moot.3
The appeal is dismissed.
In this opinion the other judges concurred.
1
The plaintiff brought this action against Barnes, Jane Doe, and John
Doe. Jane Doe and John Doe are not parties to this appeal and, therefore,
all references to the defendant herein are to Barnes.
2
The plaintiff also argues that other tenants may report minor potential
housing code violations to authorities rather than to their landlord when
the tenant is in violation of its lease to prevent eviction for six months.
Without opining on the meaning of the provisions of § 47a-20 (2), we note
that this may be one of those instances where the plaintiff’s sought after
remedy lies with the General Assembly because the current statutory lan-
guage omits any requirement that a health code violation must implicate a
leased unit’s fitness and habitability. Additionally, the alleged consequences
that are of concern to the plaintiff are general consequences potentially
applicable to any residential landlord, not specific consequences unique to
the plaintiff. We see this argument, therefore, as addressed to the capable
of repetition and public interest prongs of the capable of repetition, yet
evading review exception to mootness rather than the collateral conse-
quences exception.
3
The parties’ arguments regarding the exceptions to mootness concern
only the court’s determination of the nonapplicability of Visco to § 47a-20
(2). Neither party has argued that the other claims raised on appeal are
not moot or that an exception to mootness applies to them. The other claims
also became moot when the defendant vacated and surrendered possession
of the apartment to the plaintiff.