Presidential Village, LLC v. Phillips , 325 Conn. 394 ( 2017 )

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PRESIDENTIAL VILLAGE, LLC v.
MELISSA PHILLIPS ET AL.
(SC 19762)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued December 7, 2016—officially released May 9, 2017
Hugh D. Hughes, with whom, on the brief, was David
E. Schancupp, for the appellant (plaintiff).
Shelley A. White, for the appellee (named defendant).
Opinion
ROBINSON, J. The principal issue in this appeal is
whether the trial court abused its discretion by relying
on the ‘‘spirit’’ of certain regulations issued by the
United States Department of Housing and Urban Devel-
opment (department), which generally concern accom-
modations for handicapped persons, in support of an
equitable defense to the eviction of a tenant who kept
an ‘‘emotional support dog’’ in her federally subsidized
rental apartment in violation of a pet restriction clause
contained within her lease. The plaintiff, Presidential
Village, LLC, appeals1 from the judgment of the trial
court in favor of the named defendant, Melissa Phillips,2
in this summary process action. On appeal, the plaintiff
contends that the trial court improperly: (1) relied on
the ‘‘spirit’’ of the department’s regulations because the
defendant’s niece, M,3 who lived in the defendant’s
apartment, was not disabled within the meaning of
those regulations and, as such, federal disability law
did not require the plaintiff to allow M to keep a dog
in the apartment as a reasonable accommodation; (2)
weighed the equities as a defense to eviction when
the plaintiff lacked notice of the defense of equitable
nonforfeiture and, thus, could not offer evidence about
the purpose of the pet restriction; and (3) admitted into
evidence, over the plaintiff’s hearsay objection, a letter
signed by a physician and social worker who had pro-
vided services to M. In response, the defendant con-
tends to the contrary, and also argues that this court
lacks subject matter jurisdiction because this appeal
was rendered moot when the plaintiff commenced an
ancillary summary process action against the defen-
dant. We conclude that the plaintiff’s appeal is not moot,
and further conclude that the trial court abused its
discretion by relying upon an improper ground in
determining that the defendant was entitled to equitable
relief from the forfeiture of her tenancy in accordance
with Fellows v. Martin, 217 Conn. 57, 66–67, 584 A.2d
458 (1991). Accordingly, we reverse the judgment of
the trial court and remand the case for a new hearing
with regard to the defendant’s equitable defense.
The record reveals the following relevant facts and
procedural history. For her entire life, the defendant
has lived in an apartment in New Haven in a complex
owned by the plaintiff. Her mother, the previous lease-
holder, kept a dog named Mellow4 in the apartment
prior to her death in August, 2013. After her mother’s
passing, the defendant obtained legal guardianship over
four of her nieces and nephews, who also were living
in the apartment. Mellow provides comfort in particular
to M, who is the defendant’s oldest niece.
The defendant subsequently signed a new department
model lease with the plaintiff. This lease included a
clause prohibiting the defendant from keeping dogs on
the property.5 The defendant was aware that the lease
did not permit her to keep a dog in the apartment when
she signed it, but nevertheless thought it was acceptable
to keep Mellow because her mother had done so. On
the basis of this fact, the defendant believed that the
plaintiff would not enforce the pet restriction and,
accordingly, continued to keep Mellow in her apartment
in violation of her lease.
In May, 2015, the plaintiff sent a pretermination notice
in accordance with General Statutes § 47a-156 to the
defendant, advising her that she had violated her lease
by keeping a dog in her apartment. On June 23, 2015,
the plaintiff served a notice to quit on the defendant
and subsequently filed the present summary process
action. The defendant, appearing as a self-represented
party, responded by filing an answer to the complaint
and the following special defense: ‘‘[T]he dog was origi-
nally mom’s dog that occupied the apartment for [six]
years prior to my leasing the place. Mom passed away
in 2013 when I then took over residence. I have been
able to keep the dog that the four children I am raising
and myself have become attached to. Once I begin com-
plaining again about the condition of the apartment I
was given [fifteen] days to get rid of dog which was
unreasonable. The dog has been given to brother on
July 2, 2015. I tried to contact landlord but hasn’t
replied.’’ The plaintiff subsequently denied the allega-
tions in the special defense.
During the first hearing before the trial court,
Michelle Scott, the plaintiff’s property manager, testi-
fied about the lease and confirmed that it included a
clause restricting pets.7 Scott stated that she personally
had no knowledge that a dog was living in the apartment
prior to the defendant signing the lease with the plain-
tiff. The defendant then testified that the children and
Mellow resided in her apartment. Specifically, the
defendant stated that Mellow had resided in the apart-
ment before she signed the lease, which is why she
did not think that the plaintiff would enforce the pet
restriction. The defendant then testified that she had
tried to find a new home for Mellow with someone who
could provide continuing access for the children in light
of their emotional issues and their attachment to Mel-
low. The defendant stated that she had learned recently
that she could get Mellow certified as a service animal
and that she would like to obtain such a certification
in order for Mellow to remain in the apartment. The
defendant also stated that she did not know whether
her mother had received notification from the plaintiff,
prior to her death, about having to remove Mellow from
the apartment. The trial court then continued the case
in order to give the defendant additional time to find
a new home for Mellow or to certify her as a service
animal.
At the second hearing date, the defendant still had
not found a new home for Mellow. Rather, the defendant
obtained a letter from M’s physician and social worker
indicating that Mellow provided comfort to M, who was
dealing with a personal loss.8 In addition, the defendant
obtained an Internet certificate declaring Mellow to be
an ‘‘Emotional Support Dog.’’ The trial court admitted
both documents into evidence over the defendant’s
hearsay objections. The trial court then continued the
hearing to permit additional evidence and arguments
with respect to federal disability law and its application
to the present case. Subsequently, on October 8, 2015,
the defendant indicated to the court that Mellow does
not accompany the children to school, that none of the
children are physically disabled, and that Mellow was
providing comfort to the children and, in particular, M.
After the hearings, the trial court credited the defen-
dant’s testimony and found that Mellow had lived in
the house for years prior to her mother’s death, and
that the plaintiff was aware of Mellow’s presence in the
apartment. The trial court also credited the defendant’s
testimony that M takes great comfort from Mellow and
has started to ‘‘ ‘act out’ ’’ because of the emotional
circumstances in her life. The trial court further noted
that the letter from M’s physician and social worker
supported the defendant’s testimony. Ultimately, the
trial court determined that ‘‘the spirit of the [depart-
ment’s] regulations has been followed by the defendant
in this case. She has established that [Mellow] acts
as a therapy dog for [M]. Furthermore, the court has
weighed the harm to the plaintiff that would come from
[Mellow’s] continued presence . . . and the harm that
would come to [M] from having [Mellow] removed from
the household and finds that the equities favor the
defendant. Therefore, the court invokes its equitable
powers to rule in favor of the defendant.’’9 This appeal
followed. Additional facts will be set forth as necessary.
I
Because it implicates our subject matter jurisdiction;
Housing Authority v. Lamothe, 225 Conn. 757, 762–64,
627 A.2d 367 (1993); we begin with the defendant’s claim
that this appeal is moot. Specifically, the defendant
argues that this appeal cannot afford the plaintiff mean-
ingful relief because, while this appeal was pending,
the plaintiff commenced a second summary process
action against her in March, 2016, the filing of which
had the effect of affirmatively reinstating her tenancy.
In supplemental briefing, the defendant contends, in the
alternative, that the trial court’s subsequent dismissal
of the plaintiff’s second action reinstated her lease,
meaning that reversal of the judgment in this appeal
will not result in an order granting possession to the
plaintiff.10 In response, the plaintiff claims that the final
judgment in favor of the defendant in the first action,
which the plaintiff is challenging in this appeal, rein-
stated the defendant’s lease. The plaintiff then argues
that the second action does not affect this court’s sub-
ject matter jurisdiction because the trial court dis-
missed the second action on the ground that the
underlying notice to quit, which is a prerequisite to a
summary process action, was invalid because it was
served in the wrong month. The plaintiff contends that
an invalid notice to quit is void and, as such, the status
of the case before this court is as if the second action
never occurred. We agree with the plaintiff that the
second notice to quit, which was invalid and therefore
void, did not operate to terminate the defendant’s lease.
Accordingly, we conclude that the present appeal is
not moot.
The defendant’s mootness claim requires us to deter-
mine the effect of the service of an invalid notice to
quit during the pendency of a landlord’s appeal from a
judgment in favor of the tenant in a prior summary
judgment action. ‘‘Summary process is a statutory rem-
edy which enables a landlord to recover possession of
rental premises from the tenant upon termination of a
lease. . . . It is preceded by giving the statutorily
required notice to quit possession to the tenant. . . .
Service of a notice to quit possession is typically a
landlord’s unequivocal act notifying the tenant of the
termination of the lease. The lease is neither voided
nor rescinded until the landlord performs this act and,
upon service of a notice to quit possession, a tenancy at
will is converted to a tenancy at sufferance.’’ (Citations
omitted.) Housing Authority v. Hird, 13 Conn. App.
150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552
A.2d 433 (1988). ‘‘A legally invalid notice to quit is,
however, considered ‘equivocal’ because of that legal
defect and, therefore, does not operate to terminate
a lease.’’ Waterbury Twin, LLC v. Renal Treatment
Centers–Northeast, Inc., 292 Conn. 459, 473 n.18, 974
A.2d 626 (2009); see also Bargain Mart, Inc. v. Lipkis,
212 Conn. 120, 134, 561 A.2d 1365 (1989) (‘‘it is self-
evident that if the notice [to quit] is invalid, then the
legal consequence of ‘termination’ arising from the ser-
vice of a valid notice [to quit] does not result’’); id.,
135 (‘‘[b]ecause the trial court in the summary process
action did not determine whether the notices to quit
were valid, we have no basis for concluding that those
notices terminated the . . . lease’’); Bridgeport v. Bar-
bour-Daniel Electronics, Inc., 16 Conn. App. 574, 582–
83, 548 A.2d 744 (notice to quit invalid because of
untimely service did not terminate month-to-month ten-
ancy and cannot serve as basis for summary process
action, thus requiring service of second notice to quit),
cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).
We find instructive the Appellate Court’s decision in
Housing Authority v. Hird, supra, 13 Conn. App. 150.
In Hird, the tenant entered into a written lease with
the landlord on January 9, 1981. Id., 152. In June, 1985,
the landlord sent the tenant a written notice of proposed
eviction because the tenant had violated the lease by
maintaining the property in an unsanitary condition and
keeping pets on the property. Id., 152–53. In July, 1985,
the landlord served the tenant with a notice to quit. Id.,
153. A summary process action resulted in a judgment
for the tenant on November 6, 1985. Id. The landlord
then served the tenant with a second notice to quit on
November 15, 1985, alleging nonpayment of rent for
that month as the reason for eviction. Id. The tenant
moved to dismiss the second summary process action
for failure to comply with federal regulations, and the
landlord withdrew the second notice to quit in January,
1986. Id. While the second summary process action was
pending, the tenant sought to reinstate the lease, which
the landlord refused because of nonpayment of rent.
Id., 154. In January, 1986, the landlord served the tenant
with a third notice to quit for nonpayment of rent for
that month. Id. In the third summary process action,
‘‘[t]he trial court rendered judgment of possession for
the [landlord], ruling that the [tenant] was then occu-
pying her apartment under her lease as a tenant at will
in January, 1986. Consequently, she had a duty to tender
rent for that month’s tenancy, which she breached.’’
(Internal quotation marks omitted.) Id. The trial court
determined that ‘‘the [tenant] was occupying her apart-
ment under her lease as a tenant at will on January 1,
1986, because the judgment rendered on November 6,
1985, in [the tenant’s] favor did not terminate the lease,
and, therefore, had ‘revived’ the original lease arrange-
ment, and because the eviction action following the
November 15, 1985 notice to quit possession having
been withdrawn, had no legal effect or consequence on
the preexisting lease between the parties.’’ Id., 155. On
appeal, the Appellate Court agreed. It held that ‘‘[t]he
withdrawal of the [second] summary process action on
January 29, 1986, effectively erased the court slate clean
as though the eviction predicated on the November 15,
1985 notice to quit possession had never been com-
menced. The plaintiff and the defendant were ‘back to
square one,’ and the continuation of their lease of Janu-
ary 9, 1981, was restored.’’ Id., 157.
In the present appeal, the trial court’s judgment in
favor of the defendant in the first summary process
action, which is the subject of this appeal, reinstated
the lease between the two parties. The filing of this
appeal from the trial court’s decision in the first sum-
mary process action did not affect the reinstatement of
the lease. The second notice to quit, which was deemed
invalid, did not operate to terminate that lease, which
continues in effect. See Waterbury Twin, LLC v. Renal
Treatment Centers–Northeast, Inc., supra, 292 Conn.
473 n.18. Put differently, the status quo between the
parties was restored when the second notice to quit
was held invalid in the second summary process action;
it became as if the plaintiff never filed a second notice
to quit and the lease remained reinstated. Accordingly,
we conclude that meaningful relief may be granted and
that, therefore, this appeal is not moot.11
II
We turn now to the plaintiff’s claim that the trial
court improperly determined that the equities in this
case favored the defendant, particularly given that she
followed ‘‘the spirit of the [department’s] regulations’’
in establishing that allowing Mellow to remain in the
apartment was a reasonable accommodation for M’s
disabilities. The plaintiff contends that the department’s
regulations are inapplicable because the defendant has
not demonstrated that M has a handicap as defined by
the relevant federal laws, namely, a disease or illness
indicating the substantial alteration of a major life activ-
ity. See, e.g., 42 U.S.C. § 3602 (h) (2016). Additionally,
the plaintiff contends that the trial court abused its
discretion by using the spirit of the law to, in effect,
rewrite federal law in order to allow such an accommo-
dation, when those laws clearly do not extend to this
case. Finally, the plaintiff claims that the trial court
never adequately weighed the equities in this case
because the plaintiff lacked notice to offer evidence
about the purpose of its pet restriction.
In response, the defendant claims that the trial court
did not abuse its discretion in rendering a judgment in
this summary process case based on equity. Specifi-
cally, the defendant contends that she proved her enti-
tlement to equitable relief under Fellows v. Martin,
supra, 217 Conn. 66–67, by demonstrating: (1) that her
breach was not wilful or grossly negligent; (2) that upon
eviction, she will suffer a loss wholly disproportionate
to the injury to the plaintiff; and (3) that the plaintiff’s
injury is reparable. Further, the defendant claims that
she adequately pleaded equity as a special defense,
which provided the plaintiff with notice of that issue.
For the reasons which follow, we agree with the plaintiff
that the trial court abused its discretion by relying on
the spirit of the department’s regulations to rule, in
equity, for the defendant.
‘‘[E]quitable defenses and counterclaims implicating
the right to possession are available in a summary pro-
cess proceeding. If, then, the tenant’s equitable claim
was properly raised, it was properly before the trial
court. . . .
‘‘Equitable principles barring forfeitures may apply
to summary process actions . . . if: (1) the tenant’s
breach was not [wilful] or grossly negligent; (2) upon
eviction the tenant will suffer a loss wholly dispropor-
tionate to the injury to the landlord; and (3) the land-
lord’s injury is reparable.’’ (Citations omitted; internal
quotation marks omitted.) Cumberland Farms, Inc. v.
Dairy Mart, Inc., 225 Conn. 771, 777–78, 627 A.2d 386(1993). ‘‘A landlord’s injury is reparable if it can be
remedied by money instead of forfeiture of the ten-
ancy.’’ (Internal quotation marks omitted.) Connecticut
Light & Power Co. v. Lighthouse Landings, Inc., 279
Conn. 90, 97 n.8, 900 A.2d 1242 (2006). Although origi-
nally articulated in the context of the nonpayment of
rent, the doctrine of equitable nonforfeiture may be
applicable in evictions arising from violations of other
lease terms. See PIC Associates, LLC v. Greenwich
Place GL Acquisition, LLC, 128 Conn. App. 151, 173–74,
17 A.3d 93 (2011); Fairchild Heights, Inc. v. Dickal,
118 Conn. App. 163, 178–79, 983 A.2d 35 (2009), aff’d,
305 Conn. 488, 45 A.3d 627 (2012).
We employ the abuse of discretion standard when
reviewing a trial court’s decision to exercise its equita-
ble powers. See Fellows v. Martin, supra, 217 Conn.
67–68. ‘‘Although we ordinarily are reluctant to interfere
with a trial court’s equitable discretion . . . we will
reverse where we find that a trial court acting as a court
of equity could not reasonably have concluded as it did
. . . or to prevent abuse or injustice.’’ (Citations omit-
ted.) Id. ‘‘In reviewing claims of error in the trial court’s
exercise of discretion in matters of equity, we give great
weight to the trial court’s decision. . . . [E]very rea-
sonable presumption should be given in favor of its
correctness. . . . The ultimate issue is whether the
court could reasonably conclude as it did.’’ (Citations
omitted; internal quotation marks omitted.) Elliott v.
South Isle Food Corp., 6 Conn. App. 373, 377, 506 A.2d
147 (1986).
A
We begin with the question of whether the trial court
properly relied on the ‘‘spirit’’ of the department’s regu-
lations in exercising its equitable discretion. Because
the apartment is federally subsidized by the department,
the plaintiff is required to comply with the Fair Housing
Act of 1968, 42 U.S.C. § 3601 et seq. (2016), the depart-
ment’s regulations concerning accommodations for
handicapped persons; see 24 C.F.R. § 100.200 et seq.;
the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2016),12
and the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et seq. (2016).13 Each of these requires
that a reasonable housing accommodation be given to
a person with ‘‘(1) a physical or mental impairment
which substantially limits one or more of such person’s
major life activities, (2) a record of having such an
impairment, or (3) being regarded as having such an
impairment . . . .’’ 42 U.S.C. § 3602 (h) (2016); see also
24 C.F.R. §§ 8.3 and 100.201. These laws further define
‘‘[p]hysical or mental impairment’’ to include the follow-
ing: ‘‘(1) Any physiological disorder or condition . . .
or (2) Any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities.
. . .’’ 24 C.F.R. § 100.201 (a); see also 24 C.F.R. § 8.3(a). Additionally, the term ‘‘[m]ajor life activities’’ is
defined as ‘‘functions such as caring for one’s self, per-
forming manual tasks, walking, seeing, hearing, speak-
ing, breathing, learning and working.’’ 24 C.F.R.
§ 100.201 (b); see also 24 C.F.R. § 8.3 (b). Thus, to qualify
for a reasonable housing accommodation, one must
demonstrate a physical or mental impairment that sub-
stantially limits one or more of such person’s major
life activities.
We begin with a review of the record to determine
whether it supported the trial court’s decision to grant
relief under the ‘‘spirit’’ of the federal regulations. At
trial, the defendant did not claim that she, her nieces,
or nephews have a qualifying disability, either physical
or mental, that would necessitate a reasonable housing
accommodation. Indeed, she testified that none of the
occupants of the home have major life activities that
are impacted by a qualifying disability, stating specifi-
cally that none of the four children have difficulty with
daily activities such as brushing their teeth and getting
dressed. Rather, the defendant testified that Mellow
is an ‘‘emotional support dog’’ that she keeps for the
‘‘emotional comfort and the mental state’’ of M. The
defendant explained that all of the children have emo-
tional difficulties because their mother, the defendant’s
sister, essentially abandoned them, despite living across
the street. Further, the children watched the defen-
dant’s mother, their grandmother, die while in hospice
care in their home. Moreover, M herself had lost a
child around the time the plaintiff brought the summary
process action. Ultimately, the defendant described
Mellow as being a source of comfort to the children in
the home. Indeed, she testified that Mellow does not
attend school in a therapeutic capacity for the children.
A letter jointly authored by M’s social worker, Lucia
Venditti, and physician, Linda Fan, supports the defen-
dant’s testimony about M’s emotional difficulties. Ven-
ditti and Fan state in the letter that M is a patient in
their clinic, ‘‘has been dealing with a personal loss,’’
and has found comfort in Mellow. The letter then
describes, in a bullet point list, the health benefits asso-
ciated with interacting with a pet. The letter does not,
however, opine that M has a mental or physical disabil-
ity as contemplated by federal law. The letter also does
not describe with any level of specificity the health
benefits that M receives from interacting with Mellow.
Lastly, it is of note that at no time did M testify as to
any mental or physical disability she suffers.
Although one may be sympathetic to the emotional
benefits that Mellow provides to the defendant and her
family given their traumatic family history, we neverthe-
less disagree with the trial court’s conclusion that
allowing them to keep Mellow in the apartment is con-
sistent with ‘‘the spirit of the [department’s] regulations
. . . .’’ On the basis of the record, with no evidence
demonstrating that any one of the residents of the apart-
ment has a physical or mental disability affecting a
major life activity, the trial court could not have reason-
ably concluded that the defendant satisfied the ‘‘spirit’’
of the relevant federal regulations, which provide relief
only for specifically defined physical or mental disabili-
ties. See, e.g., Mazzocchi v. Windsor Owners Corp.,
204 F. Supp. 3d 583, 610–11 (S.D.N.Y. 2016) (assuming
woman suffers from bipolar disorder, vague description
of such disorder impacting various life activities not
enough to fall within meaning of Fair Housing Act); cf.
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,
945 (9th Cir. 2011) (‘‘obedience to the spirit of the
[Americans with Disabilities Act] does not excuse non-
compliance with’’ governing federal regulations [inter-
nal quotation marks omitted]). Put differently, the
doctrine of equitable nonforfeiture does not provide a
bypass of the proof necessary to establish qualification
for a reasonable housing accommodation under federal
disability laws. Accordingly, the trial court improperly
relied on the spirit of the federal regulations to support
its equitable decision in favor of the defendant.
B
We further conclude that the trial court abused its
discretion in applying the doctrine of equitable nonfor-
feiture because the trial court’s articulation demon-
strates that its balancing of the harm to the parties was
overwhelmingly influenced by its improper consider-
ation of the ‘‘spirit’’ of the federal disability laws. Indeed,
a review of the record demonstrates that, rather than
consider the harm to the plaintiff that would result from
affording the defendant relief from the pet restriction,14
the exclusive focus of the court and the parties was on
whether federal law required the plaintiff to allow the
defendant to keep Mellow in the apartment as a reason-
able accommodation for M’s alleged disability.
Several key instances during the summary process
hearings suggest that the trial court’s exercise of its
discretion was not influenced by a proper balancing of
the relative harm to the parties with respect to the
enforcement of the pet restriction. At the first hearing,
the trial court specifically told the defendant that if
Mellow was still in the apartment at the next court
appearance, she would be required to vacate. The trial
court then continued the hearing for two weeks, so that
the defendant could demonstrate to both the court and
the plaintiff that Mellow had been removed from the
apartment permanently, or that the defendant could
establish that she had registered Mellow as a service
animal. At the second hearing, the defendant introduced
the letter and the certificate into evidence. To that end,
the trial court continued the hearing for one week so
that the defendant could provide the court with more
information about the organization that had certified
Mellow.
Finally, at the third hearing, the plaintiff’s counsel
focused its questioning of the defendant on whether
anyone in the home was disabled, thus necessitating
a reasonable housing accommodation according to a
department legal memorandum, which the plaintiff pro-
duced at this hearing. In fact, after this memorandum
was produced, the trial court inquired of the plaintiff’s
counsel whether he believed that the defendant’s letter
set out a prima facie case for disability, to which the
plaintiff’s counsel responded in the negative. It is clear
to us that the present summary process action was not
tried on the equities, but rather on the merits of whether
the defendant qualified for a reasonable housing accom-
modation under federal law. Because of the trial court’s
focus on whether the defendant qualified for a reason-
able housing accommodation, despite having notice of
an equitable defense,15 the plaintiff did not proffer rea-
sons grounded in equity, with supporting evidence, as
to the reason for its pet restriction, and the potential
harm that would come to it should the trial court rule
in favor of the defendant. Further, this court may not
place itself in the position of the trial court and rebal-
ance the equities in the absence of the improper consid-
eration of the ‘‘spirit’’ of the regulations. See, e.g.,
Hartford Whalers Hockey Club v. Uniroyal Goodrich
Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994) (‘‘equi-
table determinations that depend on the balancing of
many factors are committed to the sound discretion of
the trial court’’). Accordingly, we conclude that the
plaintiff is entitled to a new hearing with regard to the
defendant’s equitable defense.
III
Finally, we address the plaintiff’s claim that the trial
court improperly admitted the letter into evidence
because it was inadmissible hearsay.16 The plaintiff
argues that the letter was not admissible pursuant to
the medical treatment report exception to the hearsay
rule provided by General Statutes § 52-174 (b) because
that statute is limited to personal injury cases. We dis-
agree, and conclude that the trial court properly admit-
ted the letter into evidence pursuant to § 52-174 (b).17
Ordinarily, ‘‘[w]hether the trial court improperly
admitted evidence under § 52-174 (b) is an evidentiary
question, and our review is for abuse of discretion.’’
Rhode v. Milla, 287 Conn. 731, 742, 949 A.2d 1227 (2008).
The plaintiff’s claim that § 52-174 (b) is inapplicable
in this summary process case because it is limited to
personal injury cases presents, however, ‘‘a question of
statutory construction over which we exercise plenary
review. . . . When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
The test to determine ambiguity is whether the statute,
when read in context, is susceptible to more than one
reasonable interpretation.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Tomick v.
United Parcel Service, Inc., 324 Conn. 470, 477–78, 153
A.3d 470 (2017).
As § 1-2z requires, we begin with the text of § 52-174
(b), which provides in relevant part as follows: ‘‘In all
actions for the recovery of damages for personal injur-
ies or death, pending on October 1, 1977, or brought
thereafter, and in all court proceedings in family rela-
tions matters . . . or in the Family Support Magistrate
Division, pending on October 1, 1998, or brought there-
after, and in all other civil actions pending on October
1, 2001, or brought thereafter, any party offering in
evidence a signed report and bill for treatment of any
treating physician . . . psychologist, social worker,
[or] mental health professional . . . may have the
report and bill admitted into evidence as a business
entry and it shall be presumed that the signature on
the report is that of such treating physician . . . psy-
chologist, social worker, [or] mental health professional
. . . and that the report and bill were made in the ordi-
nary course of business. The use of any such report or
bill in lieu of the testimony of such treating physician
. . . psychologist, social worker, [or] mental health
professional . . . shall not give rise to any adverse
inference concerning the testimony or lack of testimony
of such treating physician . . . psychologist, social
worker, [or] mental health professional . . . .’’
(Emphasis added.) Resolution of the plaintiff’s claim
that § 52-174 (b) is inapplicable in summary process
cases depends on whether, for the purposes of applica-
tion of the medical treatment records exception to the
hearsay rule, summary process actions are ‘‘other civil
actions.’’ We conclude that they are.
Because § 52-174 (b) does not define the term ‘‘civil
action,’’ in accordance with General Statutes § 1-1 (a),
‘‘we look to the common understanding expressed in
dictionaries in order to afford the term its ordinary
meaning.’’ Lackman v. McAnulty, 324 Conn. 277, 287,
151 A.3d 1271 (2016). Black’s Law Dictionary defines
‘‘civil action’’ in relevant part as, ‘‘[a]n action wherein
an issue is presented for trial formed by averment of
complaint and denials of answer or replication to new
matter . . . .’’ Black’s Law Dictionary (Rev. 4th Ed.
1968). The statutory process by which eviction occurs
in Connecticut is consistent with this definition. Specifi-
cally, if a tenant neglects or refuses to quit possession
after having received a pretermination notice and a
subsequent notice to quit; see General Statutes § 47a-
23; ‘‘any commissioner of the Superior Court may issue
a writ, summons and complaint which shall be in the
form and nature of an ordinary writ, summons and
complaint in a civil process . . . .’’ (Emphasis added.)
General Statutes § 47a-23a. At this point, the tenant may
file an answer to the complaint and may allege any
special defenses, a process facilitated by a standard
form provided by the Judicial Branch. See Summary
Process (Eviction) Answer to Complaint, Judicial
Branch Form JD-HM-5; see also Practice Book § 17-30
(rule of civil practice governing default judgment for
failure to appear or plead in summary process matter).
After the pleadings are closed, a trial is scheduled. See
General Statutes § 47a-26d. On the basis of the statute’s
plain and unambiguous language, we conclude that the
medical treatment records exception of § 52-174 (b)
applies to summary process actions.18 Accordingly, we
conclude that the trial court properly admitted the letter
into evidence.19
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
We note that, although two other individuals residing in the apartment,
‘‘John Doe’’ and ‘‘Jane Doe,’’ were also named as defendants, they are not
parties to the present appeal. For the sake of convenience, we refer to
Phillips as the defendant hereinafter.
3
M is the defendant’s oldest niece. She was a minor when this action was
commenced, but is over the age of eighteen. In an effort to protect her
privacy given the factual circumstances of this case, we refer to her as M.
4
Although not referred to elsewhere in the record, the dog is registered
as ‘‘Mellow Phillips’’ on the purported ‘‘Emotional Support Dog’’ certificate.
Accordingly, we refer to the dog as Mellow.
5
Specifically, the lease provides in relevant part as follows: ‘‘The [t]enant
agrees not to . . . [h]ave pets or animals of any kind in the unit without
the prior written permission of the [l]andlord, but the landlord will allow
the tenant to keep an animal needed as a reasonable accommodation to
the tenant’s disability, and will allow animals to accompany visitors with
disabilities who need such animals as an accommodation to their disabili-
ties . . . .’’
Additionally, the plaintiff’s ‘‘House Rules and Regulations’’ for the apart-
ment complex provides in relevant part as follows: ‘‘No Animals or Pets are
allowed in any of the units at any time; provided, however, elderly or disabled
[t]enants may have a service or comfort pet of not more than thirty . . .
pounds that otherwise meets [certain guidelines issued by the department].
Eviction may commence for [t]enants found in violation of this policy.’’
6
General Statutes § 47a-15 provides in relevant part: ‘‘Prior to the com-
mencement of a summary process action . . . if there is a material noncom-
pliance by the tenant with the rental agreement or a material noncompliance
with the rules and regulations adopted in accordance with section 47a-9,
and the landlord chooses to evict based on such noncompliance, 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. . . .’’
7
A copy of the lease and the plaintiff’s house rules were admitted into
evidence. See footnote 5 of this opinion.
8
For a description of the letter, see part II A of this opinion.
9
We note that the trial court originally rendered judgment for the defen-
dant without issuing a written opinion. In response to a motion by the
plaintiff after it filed the present appeal, the trial court issued an articulation
containing its findings and conclusions.
10
After the parties’ briefs were filed in this appeal, the trial court, Avallone,
J., dismissed the plaintiff’s second summary process action. This court then
sua sponte requested supplemental briefing on the mootness issue.
11
The defendant also claims that the trial court lacked subject matter
jurisdiction over this action because the defendant’s pretermination notice
did not comply with the requirements of federal law, namely, it did not
include any information regarding the defendant’s right to respond to the
plaintiff within ten days of receipt of the pretermination notice as required
by a department handbook. See United States Dept. of Housing and Urban
Development, HUD Handbook 4350.3: Occupancy Requirements of Subsi-
dized Multifamily Housing Programs (November, 2013), § 8-13 (B) (2) (c)
(4), available at https://portal.hud.gov/hudportal/documents/huddoc?id=
43503HSGH.pdf (last visited April 24, 2017). Although not raised before the
trial court, we consider this issue on appeal because a question of subject
matter jurisdiction may be raised at any time. See, e.g., Lopez v. Board of
Education, 310 Conn. 576, 589–90, 81 A.3d 184 (2013).
We conclude that this issue does not implicate the subject matter jurisdic-
tion of the trial court, because the relevant provision of the department’s
handbook is not legally binding as a matter of federal law. In Thorpe v.
Housing Authority, 393 U.S. 268, 274–76, 89 S. Ct. 518, 21 L. Ed. 2d 474(1969), the United States Supreme Court considered whether a department-
issued circular was legally binding or merely advisory. In doing so, the
court looked to language in the circular, as well as letters written by the
department’s Assistant Secretary for Renewal and Housing Assistance and
by its Chief Counsel to determine the department’s intended effect for the
circular. Id., 275–76. The court held that the circular was legally binding,
as it set forth binding requirements necessary to fulfill federal responsibilities
under a particular federal act. Id. However, the court distinguished this
circular from other ‘‘ ‘handbooks’ and ‘booklets’ issued by [the department
that] contain mere ‘instructions,’ ‘technical suggestions,’ and ‘items for con-
sideration.’ ’’ Id., 275. Accordingly, we look to the department’s intent to
determine whether the relevant provision of the department’s handbook is
legally binding.
In the introduction of the department’s handbook, § 1-1 (B) indicates that
its purpose is to, inter alia, describe ‘‘the occupancy requirements and
procedures governing . . . subsidized multifamily housing programs’’ and
address ‘‘the procedures by which households apply for housing and the
rights and responsibilities of in-place tenants and property owners.’’ HUD
Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Hous-
ing Programs, supra, § 1-1 (B). Although the handbook appears to describe
department regulations, we conclude that the handbook itself is merely
advisory because nowhere does it state that it is legally binding. See, e.g.,
Fairmount Heights Associates L.P. v. Greystone Servicing Corp., United
States District Court, Docket No. 3:06CV1206 (WWE) (D. Conn. August 29,
2007) (describing similar department handbook as ‘‘advisory’’ and conclud-
ing that ‘‘its provisions do not have the force of law and cannot be the basis
of action for damages’’). Accordingly, this issue does not implicate the trial
court’s jurisdiction.
12
Title 29 of the United States Code, § 794, provides in relevant part as
follows: ‘‘No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive
agency . . . .’’ We note that the department’s regulations implementing this
provision are codified in part 8 of Title 24 of the Code of Federal Regulations.
13
We note that the regulations implementing the Americans with Disabili-
ties Act specifically exclude emotional support animals from its definition
of ‘‘service animals.’’ See 28 C.F.R. § 36.104 (‘‘Service animal means any
dog that is individually trained to do work or perform tasks for the benefit
of an individual with a disability . . . . [T]he provision of emotional sup-
port, well-being, comfort, or companionship do not constitute work or tasks
for the purposes of this definition.’’ [Emphasis in original.]) Accordingly,
the Americans with Disabilities Act does not apply in the present case.
14
It is of note that no testimony was presented as to the specific harm
to the defendant, should a court order her to find a new home for Mellow
or face eviction. The trial court, however, reasonably could have inferred
that harm to the defendant from eviction would include the loss of her
federally subsidized housing if evicted, and emotional harm to the children
if the defendant and her family were allowed to remain on the property,
but ordered to find a new home for Mellow.
15
The defendant contends that she properly pleaded equitable nonforfei-
ture as a special defense in her answer to the plaintiff’s summary process
complaint. Given the broad reading that we give to pleadings, especially
in light of the defendant’s self-represented status at trial, we agree. ‘‘The
fundamental purpose of a special defense, like other pleadings, is to apprise
the court and opposing counsel of the issues to be tried, so that basic issues
are not concealed until the trial is underway.’’ (Internal quotation marks
omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876
A.2d 535 (2005).
As noted previously in this opinion, the defendant pleaded the following
special defense: ‘‘[T]he dog was originally mom’s dog that occupied the
apartment for [six] years prior to my leasing the place. Mom passed away
in 2013 when I then took over residence. I have been able to keep the dog
that the four children I am raising and myself have become attached to.
Once I begin complaining again about the condition of the apartment I
was given [fifteen] days to get rid of dog which was unreasonable. The
dog has been given to brother on July 2, 2015. I tried to contact landlord
but hasn’t replied.’’ (Emphasis added.)
‘‘The interpretation of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of the pleadings therefore
is plenary. . . . Furthermore, we long have eschewed the notion that plead-
ings should be read in a hypertechnical manner. Rather, [t]he modern trend,
which is followed in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically. . . . [T]he complaint
must be read in its entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it proceeded, and do
substantial justice between the parties. . . . Our reading of pleadings in a
manner that advances substantial justice means that a pleading must be
construed reasonably, to contain all that it fairly means, but carries with it
the related proposition that it must not be contorted in such a way so as
to strain the bounds of rational comprehension. . . . Although essential
allegations may not be supplied by conjecture or remote implication . . .
the complaint must be read in its entirety in such a way as to give effect
to the pleading with reference to the general theory upon which it proceeded,
and do substantial justice between the parties.’’ (Citations omitted; internal
quotation marks omitted.) Grenier v. Commissioner of Transportation, 306
Conn. 523, 536–37, 51 A.3d 367 (2012).
Affording the defendant, who at the time of filing her answer to the
plaintiff’s summary process complaint appeared as a self-represented party,
appropriate solicitude; see, e.g., New Haven v. Bonner, 272 Conn. 489,
497–98, 863 A.2d 680 (2005); we agree with the defendant that she adequately
pleaded a defense sufficient to apprise the plaintiff that she was asking the
court to act equitably to resolve this case. Specifically, she admitted the
lease violation, but averred that Mellow had been on the premises for a
long time and that the plaintiff had acted unreasonably—in a manner akin
to retaliatory eviction—by not taking adverse action until after she had
exercised her rights to ask for repairs to the apartment. The defendant’s
admission in the special defense that Mellow had been in the apartment for
more than six years was sufficient to alert the plaintiff that questions might
be raised about why the plaintiff waited that long to enforce the pet restric-
tion, and the related topic of the reasons underlying that clause in the lease.
Indeed, nothing in the special defense indicated that the defendant had a
right to keep Mellow on the premises as an accommodation under the
relevant disability laws—in spirit or otherwise. Accordingly, we agree with
the defendant’s argument that her pleadings were sufficient to put the plain-
tiff on notice of the equitable nonforfeiture grounds upon which the trial
court decided the present case.
16
We address this issue, in the interest of judicial economy, because it is
likely to arise on remand. See, e.g., Mueller v. Tepler, 312 Conn. 631, 646
n.14, 95 A.3d 1011 (2014).
17
Accordingly, we need not reach the plaintiff’s arguments regarding the
residual hearsay exception. See Conn. Code Evid. § 8-9.
18
We note that during oral argument before this court, counsel for the
plaintiff stated that his understanding of the statute is that it only applies
to personal injury cases. However, when counsel was read the full text of
§ 52-174 (b), he acknowledged candidly that his interpretation of the statute
might be in error.
We acknowledge that this court previously interpreted § 52-174 (b) as
applicable only to personal injury cases. Specifically, in Lopiano v. Lopiano,
247 Conn. 356, 380–83, 752 A.2d 1000 (1998), we considered whether § 52-
174 (b), as written in 1998, applied to a dissolution of marriage case. Relying
on the purpose of the statute, which was to get ‘‘medical evidence before
the jury in the absence of the treating physician,’’ we explained that ‘‘this
statutory exception [which] allow[s] for a substitute for testimony was
clearly driven by economics due to the necessity for medical evidence in
every personal injury action for damages.’’ Id., 383. We concluded that there
was ‘‘no such corresponding need in every dissolution action,’’ and declined
to extend § 52-174 (b) to dissolution actions. Id. We note, however, that the
legislature subsequently enacted No. 01-15 of the 2001 Public Acts, which
modified and expanded the scope of § 52-174 (b), to include ‘‘all other
civil actions pending on [October 1, 2001], or brought thereafter . . . .’’
(Emphasis added.)
19
We briefly address the plaintiff’s contention that the trial court improp-
erly admitted the letter because: (1) it did not have an opportunity to cross-
examine Fan; (2) there was no evidence that Fan works in the same clinic
as Venditti; and (3) there was no cross-examination as to the source of the
signatories’ knowledge about M. A review of the record reveals that the
plaintiff failed to object to the letter on these grounds before the trial
court. Accordingly, we decline to review these claims under the well settled
principles limiting appellate review of claims alleging improper evidentiary
rulings to the grounds asserted before the trial court. See, e.g., State v.
Taylor G., 315 Conn. 734, 769–70, 110 A.3d 338 (2015).