216 Conn.App. 814
Conn. App. Ct.2022Background
- Landlord (J.M.) and tenant (E.M.) had a one‑year lease (March 1, 2021–Feb 28, 2022) for $1,200/month. The tenant withheld $492.19 of the June 1, 2021 rent to pay for air‑conditioning repairs she had arranged without landlord consent; landlord was ordinarily obligated to repair the unit.
- Landlord served a notice to quit for nonpayment on July 21, 2021, with a quit date of August 21, 2021; the notice contained a "use and occupancy" disclaimer stating post‑quit payments would be accepted as use and occupancy only, not rent.
- Tenant paid full monthly amounts for July, August, and September 2021; each check had "rent" in the memo field. Landlord did not immediately deposit those checks but eventually negotiated them.
- At trial the court found the only unpaid amount was the June $492.19; it credited the tenant’s explanation (including her civil protective order that made her reluctant to contact landlord) and concluded landlord’s acceptance/negotiation of post‑notice payments reinstated the tenancy.
- Trial court dismissed the summary process action. Landlord appealed but did not provide the October 21, 2021 trial transcript to the appellate court.
- On appeal the court affirmed: it declined to review the reinstatement finding or the COVID‑order argument because the appellant failed to supply an adequate record; it also declined to address tenant’s affirmative defenses because the trial court never reached them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landlord’s acceptance of payments after service of the notice to quit (and after the quit date) reinstated the tenancy despite a use‑and‑occupancy disclaimer | Landlord: the disclaimer prevented reinstatement; acceptance after the quit date should be treated as use and occupancy, not rent | Tenant: payments were labeled "rent," were timely for the relevant months, and landlord negotiated them, showing intent to accept as rent | Appellate court declined to review merits — appellant failed to provide trial transcript, leaving inadequate record to assess the trial court’s factual finding on landlord’s intent |
| Whether governor’s COVID executive orders changed the analysis (e.g., delayed effectiveness of disclaimer or required landlord to accept rent during a 30‑day period) | Landlord: executive orders altered the applicable analysis and timing, supporting reversal | Tenant: the claim was not raised at trial and does not convert the factual intent question into a legal one | Court declined to review: claim was unpreserved at trial and, in any event, the factual inquiry about landlord’s intent would not become a legal question; inadequate record due to missing transcript |
| Whether appellate court should decide the tenant’s affirmative defenses on the merits | Landlord: asks this court to adjudicate tenant’s defenses (e.g., rent paid, offer to pay, repair complaint) | Tenant: trial court did not reach the defenses because it found tenancy reinstated; there is no ruling to review | Held: court refused — trial court never resolved the affirmative defenses, so nothing for the appellate court to decide |
| Whether the appellate record was adequate to review factual findings | Landlord: challenges trial court’s factual finding (reinstatement) but supplied no trial transcript | Tenant: the transcript is necessary to review credibility and evidence supporting findings | Held: appellant bears burden to furnish an adequate record; without the transcript the appellate court cannot determine whether trial findings were clearly erroneous, so review is declined |
Key Cases Cited
- Borst v. Ruff, 137 Conn. 359 (Conn. 1950) (acceptance of rent after notice to quit can repudiate termination and reinstate tenancy)
- Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1 (Conn. 2007) (defective notice to quit can deprive court of subject‑matter jurisdiction)
- Ursini v. Barnett, 124 Conn. App. 855 (Conn. App. 2010) (standard of review for factual findings; clearly erroneous test)
- Village Mortgage Co. v. Veneziano, 175 Conn. App. 59 (Conn. App. 2017) (appellant’s duty to provide adequate record for appellate review)
- New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502 (Conn. 2009) (appellate courts must not base review on speculation when the record is inadequate)
- PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279 (Conn. 2004) (issues not raised at trial generally will not be considered on appeal)
- Ritcher v. Childers, 2 Conn. App. 315 (Conn. App. 1984) (trial theory cannot be changed on appeal; new issues not presented at trial are disfavored)