Fairfield Shores, LLC v. DeSalvo ( 2021 )

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FAIRFIELD SHORES, LLC v. PETER M.
DESALVO ET AL.
(AC 42969)
Moll, Alexander and Devlin, Js.
Syllabus
The plaintiff lessor sought to recover damages from the defendant university
students and their parents for alleged damage to its rental property
in connection with a lease entered into between the plaintiff and the
defendant students, for which the defendant parents were guarantors.
The rental rate for the period of the lease was $100,000 with a $10,000
security deposit. After the defendant students vacated the premises at
the end of the lease term, the plaintiff claimed that they had caused
damage to the premises that exceeded the amount of the $10,000 security
deposit. In response, the defendants filed a counterclaim, alleging, inter
alia, that the plaintiff violated the applicable security deposit statute
(§ 47a-21), and that the $100,000 prepayment of rent constituted a secu-
rity deposit for purposes of § 47a-21. Subsequently, the parties filed a
signed, joint stipulation of facts with the trial court, which stated that,
pursuant to the lease, the total security deposit was $10,000. Following
a trial, the court rendered judgment in favor of the plaintiff, and the
defendants appealed to this court. Held:
1. The plaintiff could not prevail on its claim that the appeal was moot on
the basis that the defendants did not challenge all independent bases
for the trial court’s judgment; because this court could provide meaning-
ful relief to the defendants by remanding the matter for a consideration
of their claim that the $100,000 prepayment of rent constituted a security
deposit and, therefore, should have been held in escrow in an interest
bearing account, the appeal was not moot.
2. The trial court improperly rendered judgment in favor of the plaintiff on
the basis of the application of the exemption in the statute (§ 47a-2) for
certain lease arrangements incidental to housing for educational services
from application of title 47a of the General Statutes when the plaintiff
never pleaded the exemption and no evidence was presented at trial
in support thereof: the plaintiff simply denied the allegations of the
defendants’ special defenses and counterclaim, and, in its special
defenses, it never claimed an exemption under § 47a-2; moreover, there
was no reference or claim by the plaintiff at trial that it was exempt
from complying with the provisions of title 47a, nor was there any
testimony or evidence relating to whether the lease was incidental to
the educational residence of the defendant students, as found by the
court; accordingly, the defendants did not have sufficient notice at any
time prior to the judgment, of any claim pertaining to the exemption in
§ 47a-2 concerning housing incidental to educational purposes.
3. Although the trial court improperly considered § 47a-2, judgment correctly
was rendered in favor of the plaintiff on the defendants’ second amended
counterclaim; the parties filed a signed, joint stipulation of facts with
the court that stated that the total security deposit was $10,000, and,
because during the trial the defendants did not seek to withdraw, explain,
or modify the stipulation, they were bound by their judicial admission,
such that their claim that the $100,000 prepayment of rent also should
have been treated as a security deposit necessarily failed.
Argued March 1—officially released June 1, 2021
Procedural History
Action to recover damages for alleged damage to
rental property in excess of the security deposit, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield and transferred to the Hous-
ing Session at Bridgeport, where the defendants filed
a counterclaim; thereafter, the court, Rodriguez, J.,
granted in part the plaintiff’s motion to strike the defen-
dants’ answer, special defenses and counterclaim; sub-
sequently, the parties filed a joint stipulation of facts;
thereafter, the matter was tried to the court, Spader,
J.; judgment for the plaintiff on its complaint and on the
defendants’ counterclaim, from which the defendants
appealed to this court. Affirmed.
Abram Heisler, for the appellants (defendants).
Raymond W. Ganim, for the appellee (plaintiff).
Opinion
DEVLIN, J. The defendants1 appeal from the judgment
of the trial court rendered in favor of the plaintiff land-
lord, Fairfield Shores, LLC. On appeal, the defendants
claim that the court improperly rendered judgment in
favor of the plaintiff on the basis of its finding that
the plaintiff was exempt, pursuant to General Statutes
§ 47a-2,2 from application of General Statutes (Rev. to
2013) § 47a-21,3 the statute governing security deposits,
because it provided housing incidental to the education
of the defendant students. Although we conclude that
the court improperly considered § 47a-2, we, neverthe-
less, affirm the judgment of the court.
The following factual and procedural history is neces-
sary to our resolution of the claim on appeal. The plain-
tiff owns property located at 1027 Fairfield Beach Road
in Fairfield, on which a three-story, single-family
beachfront home (premises) is situated. On February
29, 2012, the defendant students entered into a lease
with the plaintiff for the rental of the premises for their
senior year, with the lease term running from Septem-
ber 3, 2013, until May 20, 2014, or the day after gradua-
tion. The rental rate for the period of the lease was
$100,000, and that amount was to be paid in two install-
ments prior to the commencement of the lease: the sum
of $50,000 was to be paid on November 1, 2012, and
another $50,000 on January 15, 2013. The lease also
required a $10,000 security deposit. The defendant par-
ents signed the lease as guarantors.
The plaintiff commenced the present action at the
end of the tenancy, on May 18, 2014, claiming that the
defendant students had caused damage to the premises
that exceeded the amount of the security deposit.
Thereafter, the plaintiff provided the defendants with
a list of damages, which they disputed. The defendants
subsequently filed an amended answer, special
defenses, and counterclaim. The court then granted the
plaintiff’s motion to strike as to the second and third
special defenses, leaving the first special defense, which
alleged that the claimed damages existed prior to the
defendant students’ tenancy, and the fourth special
defense, which alleged that the plaintiff had failed to
comply with certain local and state health and safety
requirements. The amended counterclaim alleged, in
count one, a violation of the security deposit statute,
§ 47a-21; in count two, that the plaintiff had failed to
comply with municipal and state codes by failing to
obtain a certificate of apartment occupancy and by
renting the premises to more students than what is
permitted by the zoning regulations; and, in count three,
a violation of the Connecticut Unfair Trade Practices
Act (CUTPA), § 42-110a et seq. The plaintiff denied the
allegations of all three counts of the amended counter-
claim.
On February 18, 2016, the defendants filed a second
amended counterclaim, which alleged, in addition to
the claims raised in their amended counterclaim, that
the $100,000 prepayment of rent constituted a security
deposit for purposes of § 47a-21. On November 18, 2016,
the parties filed a signed, joint stipulation of facts with
the court. In the stipulation, the parties agreed to certain
facts, including, inter alia, that the plaintiff had entered
into a tenancy agreement with the defendant students
for the rental of the premises for a term commencing
on September 3, 2013, and ending on May 20, 2014;
that, pursuant to the rental agreement, the total security
deposit was $10,000; that the defendant students took
possession of and vacated the property per the agree-
ment; that the security deposit was not returned
because the plaintiff claimed to have sustained damages
exceeding the amount of the security deposit; and that
the parties disagreed as to the damages. On December
13, 2018, the plaintiff filed its reply to the defendants’
special defenses and its answer to the defendants’ sec-
ond amended counterclaim, denying that the prepaid
rent constituted a security deposit and asserting, as one
of its special defenses, that the counterclaim was barred
by the doctrine of res judicata to the extent that it
contradicted the stipulation.
The matter was tried to the court on December 14,
2018. At the trial, Paul Ganim, who testified that he is
the owner and manager of the plaintiff, testified regard-
ing the lease agreement and the extent of the damages
to the premises that allegedly were caused by the defen-
dant students.4 Ganim testified that he put the $10,000
security deposit into a security deposit bank account
at Webster Bank and that the amount of the security
deposit was not sufficient to cover the damages to the
premises. The plaintiff also offered testimony from a
builder and a painting contractor in support of its claim
of damages. After the plaintiff rested, the defendants
called one of the defendant parents, Tom Davies, as a
witness. He testified regarding a video he took that
showed the condition of the premises at the time when
his son moved in.
Following the trial, the parties filed posttrial briefs.
In their brief, the defendants claimed that most of the
alleged damages to the property were preexisting when
the defendant students took occupancy and, thus, that
the plaintiff had failed to establish that any of the
claimed damages were caused by the defendants. Sec-
ond, they argued that the $100,000 advance rental pay-
ment constituted a security deposit under § 47a-21,
which required the plaintiff, under § 47a-21 (h), to
escrow that payment. Thus, they claimed that the plain-
tiff’s failure to do so violated § 47a-21, and that the
plaintiff had violated several other statutes. In contrast,
the plaintiff argued in its posttrial brief that the defen-
dants had failed to meet their burden of demonstrating
any statutory violations by the plaintiff. The plaintiff
also requested that the court take judicial notice of a
lease purportedly used by the University of Connecticut
with respect to on campus housing.5
In a memorandum of decision dated May 6, 2019, the
court rendered judgment in favor of the plaintiff. The
court made the following additional findings in its deci-
sion. The defendant students had ‘‘obtained approval
from Fairfield University to utilize the plaintiff’s prem-
ises as their school housing accommodations for their
senior year. The [defendant students] took possession
of the premises a few days prior to the commencement
of the lease for the agreed upon rate of an additional
$1000. Zoning ordinances of the town of Fairfield pro-
hibit more than four unrelated persons to occupy the
premises. While the [lease] is only between the plaintiff
and four students, without permission of the plaintiff,
on August 30, 2013, at least six students moved into
the premises.
‘‘The plaintiff had rented the premises for the summer
season prior to the [defendant students’] tenancy and
did not fully clean, paint, or prepare the premises for
the students’ possession. The defendants were aware
that this upkeep had not occurred, but they had . . .
activities [prior to the start of school] they needed to
attend to necessitating early possession and so they
agreed to take possession of the premises ‘as is.’ Fur-
ther, the defendants did not notify the plaintiff of any
damage to the premises that they believed [to be] pres-
ent prior to their taking possession.
‘‘The premises hosted activities typical of what would
be expected by Fairfield University seniors living in a
beach house. Damages [occurred] early on in the ten-
ancy, which prompted [the] defendants to apply new
coating to the floor and patch and paint the walls. By the
end of the leasehold, damages occurred that required
repairs in an amount less than that claimed by the
plaintiff, but more than believed to be due by the defen-
dants.’’ The court further noted that the plaintiff, which
alleged that the premises incurred damages in the
amount of $20,788.24, sought the amount of damages
sustained in excess of the security deposit, plus attor-
ney’s fees and costs.
In finding that additional damage to the premises
had occurred, the court explained: ‘‘Certainly, damage
existed to the property prior to the defendants taking
possession. There were damages that occurred early
on during their tenancy and there was damage caused
on their way out. The defendants knew of this damage.
During their tenancy, the parents paid to refinish hard-
wood floors, repair a ceiling hole and repaint. Near the
end of the tenancy, [the] defendants employed Merry
Maids to clean two rooms whose level of dirtiness
proved to surpass the abilities of the students’ mothers’
cleaning brigade. After the students vacated, Tom
Davies testified that he walked through the house and
patched up walls with compound.
‘‘While the defendants’ efforts to remedy the damages
indicates an awareness on the part of the defendants
in contributing to existing damage and the need for
repairs, the plaintiff did not substantiate its claim of
over $20,000 in damages. The plaintiff’s witnesses did,
however, establish damages in excess of the $10,000
security deposit.’’ The court found damages in the
amount of $10,967.44, which included costs for repaint-
ing, refinishing the floors and replacing the countertop,
as well as the cost of a water bill that was supposed
to have been paid by the defendant students. After
accounting for the $10,000 security deposit and interest
on the security deposit in the amount of $27.82, the
court rendered judgment in favor of the plaintiff in the
amount of $939.62.6
The court rejected the defendants’ request to treat
their prepayment of $100,000 in rent for the lease term
as a security deposit or an advance rental payment
under § 47a-21, as the court found that statute to be
inapplicable to the specific rental agreement in this
case. Specifically, the court stated: ‘‘Pursuant to . . .
§ 47a-2, certain lease arrangements are exempted from
the applications of title 47a. Such agreements are ones
including ‘residence at an institution, public or private,
if incidental to . . . the provision of medical, geriatric,
educational, counseling or religious service . . . .’
‘‘While [the] plaintiff certainly is not Fairfield Univer-
sity and does not pretend to be, Fairfield University
counts the plaintiff among its providers of housing for
students in their senior year. There is a student lottery
to be placed in off campus housing that includes the
plaintiff’s premises. Without housing stock such as the
plaintiff’s being available to the university, it could not
provide adequate accommodations for its student popu-
lation. In the university’s student recruitment materials,
it prominently advertises the opportunity of living on
Fairfield Beach in senior year to attract potential stu-
dents.
‘‘It is true that the plaintiff also rents this beach house
during nonacademic times, however, it sets the prem-
ises aside specifically for Fairfield University’s aca-
demic year to rent to students. The court finds that the
prepayment portion of the lease is incidental to the
[defendant students’] educational residence and is not
a security deposit as defined under . . . § 47a-21.’’
(Emphasis in original.) From the judgment rendered in
favor of the plaintiff, the defendants appealed to this
court. Additional facts will be set forth as necessary.
I
Before we address the merits of the defendants’ claim
on appeal, we first address the plaintiff’s claim that the
appeal is moot. Specifically, the plaintiff claims that
because the defendants, on appeal, challenge only the
court’s application of the exemption in § 47a-2 and do
not challenge the court’s finding that they did not meet
their burden to prove that the plaintiff failed to deposit
the security deposit funds into an escrow account, or
its finding that the defendants had the burden to estab-
lish that the exemption in § 47a-2 did not apply, the
appeal is moot. In essence, the plaintiff’s mootness
claim is premised on its assertion that the defendants
did not challenge all independent bases for the court’s
judgment. We conclude that 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 . . . .’’ (Inter-
nal quotation marks omitted.) State v. Lester, 324 Conn.
519, 526, 153 A.3d 647 (2017). ‘‘A determination regard-
ing . . . [this court’s] subject matter jurisdiction is a
question of law . . . [and, therefore] our review is ple-
nary.’’ (Internal quotation marks omitted.) Lyon v.
Jones, 291 Conn. 384, 392, 968 A.2d 416 (2009). ‘‘[I]t is
not the province of appellate courts to decide moot
questions, disconnected from the granting of actual
relief or from the determination of which no practical
relief can follow. . . . In determining mootness, the
dispositive question is whether a successful appeal
would benefit the plaintiff or defendant in any way. . . .
[W]hen an appellant challenges a trial court’s adverse
ruling, but does not challenge all independent bases
for that ruling, the appeal is moot.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Lester, supra, 526–27.
Although the trial court found that the defendants
did not prove that the plaintiff failed to escrow the
$10,000 security deposit, the court made no finding as
to the defendants’ claim that the plaintiff violated the
security deposit statute by failing to escrow the
$100,000 prepayment of rent, which the defendants
alleged should have been considered a security deposit.
The court never reached that claim in light of its deter-
mination that the exemption in § 47a-2 applied. More-
over, contrary to the plaintiff’s assertion, the court made
no express finding that the defendants had the burden
to prove that the exemption did not apply. In its memo-
randum of decision, the court stated: ‘‘[T]he court finds
the statutory scheme set forth under [title] 47a to be
inapplicable to this specific rental agreement. Further,
the defendants fail to point to any Connecticut case
authority to prove otherwise.’’ That statement is ambig-
uous and can hardly be said to be a finding that the
defendants had to prove that the exemption did not
apply. At a minimum, it is difficult to see how the defen-
dants could refute the application of the exemption
when, based on the pleadings and the evidence, they
were not put on notice that an exemption under § 47a-
2 was an issue to be tried.
Accordingly, because this court could provide mean-
ingful relief to the defendants by remanding the matter
for a consideration of whether the $100,000 prepayment
of rent constituted a security deposit and, therefore,
should have been held in escrow in an interest bearing
account, the appeal is not moot. We, therefore, address
the merits of the defendants’ appeal.
II
The defendants claim that the court improperly ren-
dered judgment in favor of the plaintiff on the basis of
the exemption in § 47a-2 when the plaintiff never
pleaded the exemption and no evidence was presented
at trial in support thereof. We agree.
We first set forth our standard of review. ‘‘The inter-
pretation of pleadings presents a question of law over
which our review is plenary.’’ (Internal quotation marks
omitted.) Prime Locations of CT, LLC v. Rocky Hill
Development, LLC, 167 Conn. App. 786, 802, 145 A.3d
317, cert. denied, 323 Conn. 935, 150 A.3d 686 (2016).
‘‘It is fundamental in our law that the right of a plaintiff
to recover is limited to the allegations of [its] com-
plaint.’’ (Internal quotation marks omitted.) Covey v.
Comen, 46 Conn. App. 46, 49, 698 A.2d 343 (1997). ‘‘The
purpose of the complaint is to limit the issues to be
decided at the trial of a case and is calculated to prevent
surprise. . . . A complaint should fairly put the defen-
dant on notice of the claims against him. . . . The mod-
ern trend, which is followed in Connecticut, is to con-
strue pleadings broadly and realistically, rather than
narrowly and technically. . . . Although essential alle-
gations 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 pro-
ceeded, and do substantial justice between the parties.
. . . As long as the pleadings provide sufficient notice
of the facts claimed and the issues to be tried and do
not surprise or prejudice the opposing party, we will
not conclude that the complaint is insufficient to allow
recovery.’’ (Internal quotation marks omitted.) Prime
Locations of CT, LLC v. Rocky Hill Development, LLC,
supra, 802–803.
Pursuant to Practice Book § 10-57, a ‘‘[m]atter in
avoidance of affirmative allegations in an answer or
counterclaim shall be specially pleaded in the reply.’’
See also Romprey v. Safeco Ins. Co. of America, 310
Conn. 304, 317 n.8, 77 A.3d 726 (2013). Moreover, pursu-
ant to Practice Book § 10-3 (a), ‘‘[w]hen any claim made
in a complaint . . . special defense, or other pleading
is grounded on a statute, the statute shall be specifically
identified by its number.’’ Our courts, however, ‘‘have
recognized that the rule embodied in . . . § 10-3 is
directory and not mandatory. . . . As long as the defen-
dant is sufficiently apprised of the nature of the action
. . . the failure to comply with the directive of . . .
§ 10-3 (a) will not bar recovery.’’ (Citations omitted;
internal quotation marks omitted.) Ramondetta v.
Amenta, 97 Conn. App. 151, 162, 903 A.2d 232 (2006).
This court has recently stated that the failure of a party
to plead a specific statute may be overlooked ‘‘if the
issue is otherwise put before the trial court and no
party is prejudiced by the lapse in pleading.’’ (Internal
quotation marks omitted.) Stilkey v. Zembko, 200 Conn.
App. 165, 173, 238 A.3d 78 (2020).
Our review of the allegations of the amended com-
plaint demonstrates that the court decided the case on
the basis of an issue that was not pleaded by the plain-
tiff. The plaintiff simply denied the allegations of the
defendants’ special defenses and counterclaim, and, in
its special defenses, the plaintiff never claimed an
exemption under § 47a-2 in response to the defendants’
second amended counterclaim, which alleged a viola-
tion of § 47a-21. Furthermore, our examination of the
transcript of the proceedings before the trial court does
not reveal any reference or claim by the plaintiff at trial
that it was exempt from complying with the provisions
of title 47a of the General Statutes, nor does it show
any testimony or evidence relating to whether the lease
was incidental to the educational residence of the defen-
dant students, as found by the court. In fact, there is
no evidence in the record that supports the court’s
findings regarding Fairfield University and how the uni-
versity relies on the plaintiff to provide housing for its
students.
On the basis of the record, we cannot conclude that
the defendants had sufficient notice, at any time prior
to the judgment, of any claim pertaining to the exemp-
tion in § 47a-2 concerning housing incidental to educa-
tional purposes. This court has stated that ‘‘[t]he con-
cept of notice concerns notions of fundamental
fairness, affording parties the opportunity to be
apprised when their interests are implicated in a given
matter.’’ (Internal quotation marks omitted.) Michalski
v. Hinz, 100 Conn. App. 389, 399, 918 A.2d 964 (2007).
In the present case, the defendants had no warning that
the case would be decided on the basis of the exemption
when it had not been pleaded, argued or briefed.7 See
Prime Locations of CT, LLC v. Rocky Hill Development,
LLC, supra, 167 Conn. App. 808. Because the exemption
in § 47a-2 was not raised at any stage of the proceedings,
it was improper for the court to consider the exemption
and base its decision thereon. See Michalski v. Hinz,
supra, 394 (defendant was not sufficiently apprised that
statute was at issue where plaintiff never alleged viola-
tion of statute at any stage of proceedings); Covey v.
Comen, supra, 46 Conn. App. 50–51 (plaintiff was preju-
diced where court rendered judgment for defendants on
basis of theory that was not pleaded in counterclaim).8
Although we have determined that the court improp-
erly applied the exemption in § 47a-2 in rendering judg-
ment for the plaintiff, that does not end our inquiry, as
we must examine whether the judgment in favor of the
plaintiff is, nevertheless, proper, without application
of the exemption. This court has long held that ‘‘[a]n
appellate court may affirm the judgment of the trial
court although it may have been grounded on a wrong
reason. See Geremia v. Geremia, 159 Conn. App. 751,
779, 125 A.3d 549 (2015); see also Practice Book § 10-
33.’’ Jobe v. Commissioner of Correction, 181 Conn.
App. 236, 237–38 n.3, 186 A.3d 1219 (2018), aff’d, 334
Conn. 636, 224 A.3d 147 (2020). We conclude that the
court reached the proper judgment, notwithstanding its
improper application of the exemption in § 47a-2.
The defendants have limited9 their appeal from the
court’s judgment to the portion of their second amended
counterclaim alleging a violation of § 47a-21 as a result
of the plaintiff’s failure to treat the $100,000 prepayment
of rent as a security deposit that was required to be
escrowed. The court, in rejecting this claim, determined
that the parties’ rental agreement was not subject to
the requirements of § 47a-21 because the prepayment
portion of the lease was incidental to the educational
residence of the defendant students and, thus, was
exempt from application of the security deposit statute
under § 47a-2. Although the court’s rejection of this
claim in the second amended counterclaim on the basis
of the exemption under § 47a-2 was improper, we agree
with the plaintiff’s proffered alternative ground for
affirmance as follows.
As the plaintiff notes in its appellate brief, on Novem-
ber 18, 2016, the parties filed a signed, joint stipulation
of facts with the court. Among the facts agreed to in
the stipulation was that, ‘‘[p]ursuant to the rental
[a]greement, the total [s]ecurity [d]eposit was $10,000.’’
(Emphasis added.) ‘‘A formal stipulation of facts by
the parties to an action constitutes a mutual judicial
admission and under ordinary circumstances should be
adopted by the court in deciding the case. . . . A party
is bound by a judicial admission unless the court, in
the exercise of a reasonable discretion, allows the
admission to be withdrawn, explained or modified.’’
(Internal quotation marks omitted.) Wiblyi v. McDon-
ald’s Corp., 168 Conn. App. 77, 83 n.8, 144 A.3d 1075(2016). During the trial, the defendants did not seek to
withdraw, explain, or modify the stipulation. We agree
with the plaintiff that, because the defendants are
bound by their judicial admission that the total amount
of the security deposit was $10,000, their claim that the
$100,000 prepayment of rent also should have been
treated as a security deposit necessarily fails. Accord-
ingly, judgment correctly was rendered in favor of the
plaintiff on the defendants’ second amended counter-
claim. See Amsden v. Fischer, 62 Conn. App. 323, 327,
771 A.2d 233 (2001) (this court ‘‘may affirm a trial court’s
decision that reaches the right result, albeit for the
wrong reason’’ (internal quotation marks omitted)).
The judgment is affirmed.
In this opinion the other judges concurred.
1
This action was commenced against four former students of Fairfield
University, the defendants Peter M. DeSalvo, Gary T. Davies, Jordan T.
Greenfield, and Alexander Case Cramer (defendant students), along with
their parents, the defendants Peter DeSalvo, Jean DeSalvo, Tom Davies, Sue
Davies, Keith Greenfield, Tina Greenfield, and Peter J. Cramer (defendant
parents). In this opinion, we refer to these parties collectively as the defen-
dants, and individually by name or by group where necessary.
2
General Statutes § 47a-2 exempts certain arrangements from application
of title 47a of the General Statutes, which pertains to landlords and tenants.
Section 47a-2 (a) provides in relevant part: ‘‘Unless created to avoid the
application of this chapter and [section] 47a-21 . . . the following arrange-
ments are not governed by this chapter and [section] 47a-21 . . . (1) Resi-
dence at an institution, public or private, if incidental to detention or the
provision of medical, geriatric, educational, counseling or religious service,
or any similar service . . . .’’
3
Our references in this opinion to § 47a-21 are to the 2013 revision of
the statute.
4
The claimed damages to the premises included the following: the wood
floors needed to be refinished; the granite countertop in the kitchen was
cracked; the kitchen faucet was broken; the kitchen sink was dislodged
from the granite; the microwave was taped together with duct tape; kitchen
cabinet doors were missing and cabinet drawers were broken; screens were
ripped and torn; a sink drain in an upstairs bathroom was damaged and
leaking; there were holes in the walls; the ceilings had marks all over them;
some doors and doorjambs were broken; various bedrooms had broken
things in them; the walls needed to be repainted; a toilet was clogged
and needed to be cleared out; and some of the spindles on the stair rail
needed repair.
5
The court did not act on the plaintiff’s late request and did not comment
on it in its memorandum of decision.
6
With respect to the claims of alleged zoning and housing code violations,
the court found that the plaintiff did not authorize the defendants to violate
the Fairfield zoning regulations under the lease, nor did the defendants meet
their burden of establishing that the premises were uninhabitable under
General Statutes § 47a-7.
7
The plaintiff claims that ‘‘the exclusion was fully litigated at trial without
objection by the defendants.’’ The plaintiff bases this claim on the facts that
the plaintiff rented the premises to the defendant students of Fairfield
University and that the tenancy under the lease was for the academic school
year. The plaintiff also points to the failure of the defendants to challenge,
on appeal, the court’s findings regarding Fairfield University’s use of the
plaintiff as a provider of housing for its students and that the university
advertises the opportunity for seniors to live on Fairfield Beach as a recruit-
ment tactic to attract students. We are not persuaded. First, we already
have concluded that there was no evidence in the record to support the
court’s findings regarding Fairfield University and the university’s use of
the plaintiff as a provider of housing. In fact, the plaintiff’s attorney acknowl-
edged at oral argument before this court that there was insufficient evidence
before the trial court to support its findings regarding Fairfield University
and its lottery system and marketing. We also cannot conclude that the
defendants were alerted to the issue that the plaintiff was exempt from
application of the security deposit statute simply because the plaintiff
entered into a lease with college students for a term that covered the
students’ senior year, especially when the plaintiff did not present any
evidence of its alleged affiliation with the university, and the arguments and
evidence at trial focused on the damage to the property and whether the
$100,000 prepayment of rent was proper and constituted a security deposit
for purposes of § 47a-21. This case simply does not present a situation where
we can conclude that, despite the pleading deficiencies, the defendants
were sufficiently apprised that the applicability of § 47a-2 was at issue. The
plaintiff’s reliance on Parente v. Pirozzoli, 87 Conn. App. 235, 241, 866 A.2d
629 (2005), for the proposition that, ‘‘when a matter required to be specially
pleaded by a party is fully litigated at trial without objection from the
opposing party, [any] objection to the special pleading requirement is
deemed to have been waived’’ is, therefore, misplaced.
8
We express no view as to whether the lease for the plaintiff’s premises
would constitute residence at an institution incidental to the provision of
educational services. See General Statutes § 47a-2 (a) (1) and footnote 2 of
this opinion.
9
We note that, in this appeal, the parties have not challenged the court’s
findings as to the damages incurred or its determination that the defendants
had failed to establish their special defenses, as well as the other allegations
of their second amended counterclaim.