19 Conn. App. 483 | Conn. App. Ct. | 1989
The plaintiff appeals from the judgment rendered by the trial court for the defendants in this summary process action. The plaintiff claims that the trial court erred (1) in failing to find that a landlord and tenant relationship existed, (2) in failing to find a tenancy at sufferance, (3) in failing to draw an adverse inference because a defendant did not testify, and (4) in finding sufficient credible evidence to support the defendants’ claim. We find no error.
The facts giving rise to this claim are as follows. On March 1, 1982, the parties executed a “Contract for Sale”
Shortly after the execution of the contract, the defendants fell behind in their payments and the plaintiff attempted to regain possession of the premises. The plaintiff served the defendants with a notice to quit possession on June 18,1987. This notice claimed that the reason for eviction was “non-payment” and “violation of occupancy agreement.” The plaintiff followed this notice with a summary process complaint alleging breach of a sales agreement for failure to pay the principal and interest on the promissory notes as well as the defendants’ failure to uphold their other obligations under their sale agreement. The original complaint was revised four times. In the third and fourth revisions the plaintiff claimed, for the first time, that the defendants had breached an oral rental agreement. The trial court rendered judgment for the defendants finding that the plaintiff failed to establish that a landlord and tenant relationship existed between the parties.
The plaintiff’s first claim is that the trial court’s finding that no landlord and tenant relationship existed between the parties was error. We disagree.
“It is a basic rule of pleading that the ‘ “ ‘allegations of a complaint provide the measure of recov
We agree with the trial court’s determination that no such relationship existed. A landlord and tenant relationship “will never be implied where the acts and conduct of the parties are inconsistent with its existence.” 49 Am. Jur. 2d, Landlord and Tenant § 11. Our review of the record leads us to conclude that the acts and conduct of the parties to this action indicated that their relationship was one of seller-mortgagee and buyer-mortgagor under the contract they executed on March 1,1982. The plaintiff’s initial complaint and first revision relied on the contract for sale as the basis of the parties’ relationship. Even though the third and fourth revisions of the complaint alleged that there was a later oral rental agreement between the parties, it was within the discretion of the trial court to find that such an agreement never existed. “[Although the testimony might have supported a different finding, the trial court was not bound to accept as persuasive even testimony that was not directly contradicted. Johnson v. Healy, 179 Conn. 97, 103, 405 A.2d 54 (1978).” Vaiuso v. Vaiuso, 2 Conn. App. 141, 146, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). Further, statements made in a superseded complaint may be considered by the trier of the fact as evidential admissions. Dreier v. Upjohn Co., 196 Conn. 242,
The plaintiffs second claim is that the trial court erred in failing to find that the defendants were tenants at sufferance. We disagree. In asserting this claim, the plaintiff has misconstrued the meaning and application of this term. A tenant at sufferance is a tenant who holds over at the expiration of a lease without the consent of the landlord. See Welk v. Bidwell, 136 Conn. 603, 608-609, 73 A.2d 295 (1950); see also, R. Burke, Connecticut Real Property Law § 91 (b). Only if the defendants had first been tenants, could they subsequently become tenants at sufferance.
To support his argument, the plaintiff relies on General Statutes § 47a-23 which provides, in part, that a tenancy at sufferance will be applied to rental agreements or leases “where one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . .” The plaintiff seems to have overlooked, however, General Statutes § 47a-2 which provides that § 47a-23 does not apply to “occupancy under a contract of sale of a dwelling unit or the property of which such unit is a part, if the occupant is a purchaser or a person who succeeds to his interest . . . .” Because the parties’ relationship stemmed from a purchase and sale agreement, we agree with the trial court’s finding that the defendants were not tenants at sufferance.
The plaintiff’s next claim is that the trial court erred in failing to draw an adverse inference from the failure of the defendant Callie Patmon to appear and testify. Before an adverse inference may be drawn, two
The plaintiff’s final claim is that there was insufficient evidence to support the trial court’s judgment in favor of the defendants. “We are entitled to presume that the trial court acted properly and considered all the evidence.” Soloman v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985). We will not address “wholesale challenges to the findings which result in attempts to have this court retry issues of fact.” Halperin v. Pine Plaza Corporation, 180 Conn. 85, 87, 428 A.2d 340 (1980). It is well established that the appellate courts
There is no error.
In this opinion the other judges concurred.
Although the document to which the plaintiff refers is entitled “Contract for Sale,” it can be more accurately characterized as a Bond for Deed, i.e., “an installment sale contract of real property where the buyer takes possession of the property but does not receive fee simple title of the property until a later date. Further, [a Bond for Deed] is used to assume the-existing mortgage loan . . . . ” R. Burke, Connecticut Real Property Law, §64.