A M TOWING RECOVERY, INC. v. BERNARD GUAY AND BERNIE’S REPAIR SERVICE, LLC

2006 Ct. Sup. 7939
Docket No. CVH-7221Connecticut Superior Court Judicial District of Hartford
May 15, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ACTION IN DAMAGES
BENTIVEGNA, J.

This is an action in damages. The plaintiff, A M Towing
Recovery, Inc., hereinafter (“Landlord”), seeks money damages against the defendant, Bernard Guay, for unpaid rent and against the defendant, Bernie’s Repair Service, LLC, for unpaid services. The defendants, hereinafter (“Tenant”), allege as a special defense to the unpaid rent claim that the Tenant was prevented from using the premises for the intended purpose due to the Landlord’s failure to obtain a certificate of occupancy. The matter was tried on January 13, 2006. The deadline for the parties to file post-trial briefs was April 28, 2006.

Facts

“It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony. . . . It is the quintessential function of the fact finder to reject or accept certain evidence. . . .” (Citations omitted; internal quotation marks omitted.)” In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].” Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). “[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony.” (Citation omitted; internal quotation marks omitted.) Toffolon
v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” Smith v. Smith, supra, 183 Conn. 123. “That determination of credibility is a function of the trial court.” Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 763 A.2d 199 (2001). The trial court’s function as the CT Page 7940 fact finder “is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.)In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).

“While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id.” Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992).

The standard of proof in civil actions, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.” (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981);[1]
Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Gulycz v. Stop Shop Cos., supra, 29 Conn. App. 523.

The Court finds the following facts by a fair preponderance of the evidence.

Since at least 1993, the Landlord has owned the building in question, 422 Tolland Street, East Hartford, Connecticut. The Landlord applied for a certificate of occupancy for the building in the mid-1990s. No certificate was issued, and the Landlord eventually sued the town. In 2001, the court instructed the Landlord to meet with the town to attempt to resolve the case. While the Tenant occupied the premises, the Landlord continued discussions with the town, but a certificate was never issued.

The Landlord and Tenant have known each other since 1995. In early 2003, after brief discussions, the parties entered into an oral agreement for a month-to-month lease. The agreed upon rent was $800 per month subject to the Tenant fixing up the building. The Landlord would supply the materials, and the Tenant would supply the labor. The Tenant planned to operate a towing and CT Page 7941 repair business on the premises. During the discussions, the Landlord failed to inform the Tenant that there was no certificate of occupancy for the building.

The Tenant moved into the building in March 2003. After moving in, the Tenant found out that the property did not have a certificate of occupancy when he went down to the town hall to apply for a business license. When the Tenant told the Landlord that he was going to move out, the Landlord promised to provide the Tenant with repair work. The Tenant interpreted this as an agreement to barter rent for repair work on the Landlord’s vehicles. The Landlord testified that the parties never discussed a barter agreement. Instead, the Landlord intended to use the Tenant as a subcontractor to do repair work the Landlord could not do. The Landlord claimed that rent was never withheld from the monies due to the Tenant for services rendered.

The Landlord presented numerous bills for repair work the Tenant did on the Landlord’s vehicles between March 7, 2003 and March 17, 2004. The bills clearly indicate that the Tenant did thousands of dollars worth of repair work for the Landlord. The bills reflect that all the repairs were paid for, which the Landlord confirmed. In addition, numerous cancelled checks confirm these payments. The Landlord continued to give repair work to the Tenant through March 2004, although the work tapered off noticeably in early 2004. At some point in early 2004, the Tenant refused to take any more work from the Landlord.

The Tenant testified that he was not able to operate a towing and repair business out of the premises because the Landlord did not have a certificate of occupancy. He testified that town officials told him not to draw attention to himself by adverting his business with signs and banners on the outside of the building.

Although the Tenant testified that he was unable to get a business license and was almost totally dependent on the Landlord for work, the Tenant operated a towing and repair business on the property for almost two years that served other customers. The business was listed in the phone book and on the internet. The Landlord testified that he observed the Tenant doing repair work on many vehicles not owned by the Landlord. Melissa Spera, a former employee of the Tenant, testified that while she worked for the Tenant, she observed the Tenant doing repair work on numerous vehicles besides the Landlord’s vehicles. CT Page 7942

There was conflicting testimony regarding how long the Tenant paid rent. The Tenant testified that he stopped paying rent after only a few months. The Landlord testified that the Tenant continued to pay rent until December 2003. According to the Landlord, he delivered rent invoices to the Tenant every month. The Tenant failed to pay rent from December 2003 through December 2004, when he vacated the premises. The total unpaid rent for this period was $10,400 (13 months × $800). The Landlord testified that he made requests to the Tenant for the unpaid rent. Although the Tenant stopped paying rent in December 2003, the Landlord presented cancelled checks reflecting payments to the Tenant for repair services through March 25, 2004.

The Court took judicial notice of the eviction case, Hartford Housing Session, Docket No. HDSP 131154. The Tenant vacated the premises pursuant to the eviction action in mid-December 2004.

There was no dispute at trial that the Landlord performed towing services for the Tenant from November 12, 2002 to March 5, 2004. The total amount of services performed was $1,476.30. The Tenant never paid the tow bills.

The Court will provide additional facts, as needed.

Discussion

Landlord’s Case — Unpaid Rent

In an action for unpaid rent, the Landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; and (4) The tenant failed to pay the rent due under the lease by a certain date.

The Landlord alleges an oral agreement to pay rent. The Tenant contends that the oral agreement became a barter agreement to trade rent for repair work after the Tenant found out that the Landlord did not have a certificate of occupancy. The Tenant did not allege a barter agreement as a special defense. CT Page 7943

“[W]here evidence as to terms of oral contract is conflicting, it is for the trier of fact to pass upon the facts and determine the terms of the contract.” 11 R. Lord, A Treatise on the Law of Contracts (1999) § 30:8, p. 95.

“It is elementary that to create a contract there must be an unequivocal acceptance of an offer. In the case of a bilateral contract, the acceptance of the offer need not be express but may be shown by any words or acts which indicate the offeree’s assent to the proposed bargain. W.G. Maltby, Inc. v. Associated Realty Co., 114 Conn. 283, 288, 158 A. 548; Frederick Raff Co. v. Murphy, 110 Conn. 234, 239, 147 A. 709. The acceptance of the offer must, however, be explicit, full and unconditional Woodbridge Ice Co. v. Semon Ice Cream Corporation, 81 Conn. 479, 487, 71 A. 577. And the burden rested on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract. Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711.” Bridgeport Pipe Eng. Co. v. DeMatteo Const. Co., 159 Conn. 242, 246, 268 A.2d 391 (1970).[1]

“`In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.’ (Citations omitted; internal quotation marks omitted.) Fortier v. Newington Group, Inc., supra, 30 Conn. App. 510.” MD Drilling and Blasting v. MLS Construction, LLC, 93 Conn. App. 451, 456, 889 A.2d 850 (2006).

In Clavette v. Castelli, Superior Court, judicial district of Tolland at Rockville, Docket No. 45259 (Klaczak, J.; July 23, 1991) (1991 Ct. Sup. 6427), the court had to determine whether the parties entered into a barter agreement. The plaintiff performed various electrical services for the defendant, while the defendant provided a cellular phone to the plaintiff. The court held that: “Whatever agreement the defendant may have believed he had as to a barter arrangement is not corroborated in any way and appears to be a misunderstanding based on poor business practice. There was no meeting of the minds, as required in order to find a contract.” Id. The court entered judgment for the plaintiff after concluding that: “The plaintiff provided the services and materials which he billed and the work was CT Page 7944 satisfactory. He is entitled to compensation thereof. Based on the lack of evidence of any barter arrangement, with the exception of the cellular phone, the Court cannot conclude there was such an agreement between the parties.” Id.

In this case, the parties entered into an oral month-to-month lease agreement for the premises at 422 Tolland Street, East Hartford, Connecticut. The agreed upon rent was $800. The Tenant planned to operate a towing and repair business at the premises. After moving in, the Tenant discovered that he could not get a business license because the Landlord did not have a certificate of occupancy.

The parties disagree as to what happened next. On this issue, the Landlord’s testimony was more credible than the Tenant’s testimony was. The parties never came to a meeting of the minds on a barter agreement, as required in order to find a contract. The evidence more strongly supports the Landlord’s claim that the Tenant was acting as a subcontractor doing repair work for the Landlord. The Landlord only promised to give the Tenant repair work to compensate for the loss of business. The Landlord still expected the Tenant to continue to pay rent while servicing the Landlord’s vehicles. As in Clavette, whatever agreement the Tenant thought he had as to a barter agreement was not sufficiently corroborated and appears to be a misunderstanding based on poor business practice. Clavette v. Castelli, supra, 1991 Ct. Sup. 6427.

The Tenant stopped paying rent in December 2003, but he did not vacate the premises until mid-December 2004.

After weighing all the evidence and assessing the credibility of the witnesses, the court finds that the Landlord has proved, by a fair preponderance of the evidence, the claim for damages for unpaid rent.

Landlord’s Case — Unpaid Services

The Landlord also alleges that the Tenant failed to pay for towing services performed by the Landlord.

“`Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract . . . Recovery is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the CT Page 7945 detriment of the plaintiff.’ (Citation omitted.) Russell v Russell, 91 Conn. App. 619, 637-38, 882 A.2d 98, cert. denied, 276 Conn. 924 A.2d., cert, denied, 276 Conn. 925 A.2d (2005). See 26 S. Williston, Contracts (4th Ed. 2003) § 68:5, p. 58. `A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.'” (Internal quotation marks omitted.) Cagne v. Vaccaro, 255 Conn. 390, 408, 766 A.2d 41 (2001).

In the instant case, the Landlord offered uncontroverted evidence that the Tenant was provided with $1,476.30 in towing services between November 12, 2002 and March 5, 2004. The Tenant never paid the Landlord for these services.

After weighing all the evidence and assessing the credibility of the witnesses, the court finds that Landlord has proved, by a fair preponderance of the evidence, the claim for damages for unpaid towing services provided to the Tenant. The Tenant failed to allege or prove any defense to the unpaid services claim.

Defense Case — Certificate of Occupancy

The Tenant argues that he was not liable for the unpaid rent because the Landlord’s failure to obtain a certificate of occupancy for the building prevented the Tenant from operating his business.

“The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” (internal quotation marks omitted.) Fidelity Bank v Krenisky, 72 Conn. App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).

A certificate of occupancy is required for occupancy of a particular premises under state law. General Statutes § 29-265
provides in relevant part: “(a) Except as provided in subsection (h) of section 29-252a, no building or structure erected or altered in any municipality after October 1, 1970, shall be occupied or used, in whole or in part, until a certificate of occupancy, as defined in the regulations adopted under section 29-252, has been issued by the building official, certifying that such building, structure or work performed pursuant to the CT Page 7946 building permit substantially conforms to the provisions of the State Building Code and the regulations lawfully adopted under said code. . . .”

The Court was unable to find any Connecticut case law or statutory authority to support the Tenant’s defense that a lack of a certificate of occupancy is a bar to the recovery of rent in a commercial setting. In the residential setting, prior to P.A. 97-231, S.4, a residential landlord who failed to get a certificate of occupancy could not collect rent during the period of unlawful occupation. However, the recovery of rent provision was removed from General Statutes § 47a-5 by P.A. 97-231, S. 4, which provided: “Section 47a-5 of the general statutes is repealed and the following is substituted in lieu thereof: In any borough, city or town which requires a certificate of occupancy prior to human habitation of any building located therein, if any building is occupied in whole or in part without such occupancy permit, [rent shall not be recoverable by the owner or lessor of the premises for such period of unlawful occupation] THE OWNER OR LESSOR OF THE PREMISES SHALL BE LIABLE FOR A CIVIL PENALTY OF NOT MORE THAN TWENTY DOLLARS PER DAY FOR SUCH PERIOD OF UNLAWFUL OCCUPATION.”

In the Tenant’s post-trial brief, he failed to offer any legal authority for this defense. In addition, the facts do not support the Tenant, whose testimony was not sufficiently credible on this issue. Rather, the evidence supports the Landlord’s claim that the Tenant continued to occupy the premises from March 2003 through December 2004 and operated a towing and repair business that serviced the Landlord’s vehicles as well as other customers. The fact that the Tenant admitted paying rent for several months, after finding out that there was no certificate of occupancy, further weakens his position.

After weighing all the evidence and assessing the credibility of the witnesses, the court finds, by a fair preponderance of the evidence, that the Tenant failed to prove any special defenses to the unpaid rent claim.

Conclusion and Order

Based on the evidence presented, the court finds, by a fair preponderance of the evidence, that the Landlord has proved all the claims for damages. CT Page 7947 The court awards the following damages, interest and costs:

1. Judgment for the Landlord on the claim(s) as follows:

a. Unpaid Rent $10,400.00

b. Interest $ 2,551.43

c. Unpaid Services $ 1,476.30

d. Interest $ 295.26

TOTAL JUDGMENT FOR LANDLORD $14,722.99

[1] The phrase a “fair preponderance of the evidence” “simply means that evidence which outweighs that which is offered to oppose it . . .” Black’s Law Dictionary (5th Ed. 1983).
[1] A bilateral contract is defined as “a contract in which both the contracting parties are bound to fulfill obligations reciprocally towards each other; . . . as contrasted with a unilateral contract which is formed by the exchange of a promise for an act.” Black’s Law Dictionary (5th Ed. 1983), pp. 85-86.

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