Waters Edge 938, LLC v. Mazzarella ( 2021 )

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WATERS EDGE 938, LLC v. CHRISTINE
MAZZARELLA ET AL.
(AC 43489)
Elgo, Cradle and DiPentima, Js.
Syllabus
The plaintiff landlord brought a summary process action against the defen-
dant tenant by serving a notice to quit. The defendant failed to vacate
the property by the required date, and the plaintiff filed a complaint
alleging nonpayment of rent and lapse of time. In her answer, the defen-
dant asserted a special defense pursuant to the statute (§ 47a-23c) that
prohibits landlords from dispossessing disabled tenants residing in a
building or complex that consists of five or more units without good
cause. Even though the building in which the defendant resided con-
sisted of only four units, she claimed that the statutory prohibition
applied because D, a member of the plaintiff, was also a member of L
Co., which owned the two unit building adjacent to her residence and,
as such, the statute should have been broadly construed to define the
two buildings as a complex that consisted of five or more units. The
trial court rejected the defendant’s special defense, concluding that
§ 47a-23c did not apply because the two buildings were not under the
same ownership and the building in which the defendant resided con-
sisted of only four units. The trial court rendered judgment for the
plaintiff on the lapse of time count, and the defendant appealed to this
court. Held that the trial court properly concluded that § 47a-23c did
not apply to this action because the defendant did not reside in a complex
consisting of five or more units: the defendant did not contest that her
residence and the adjacent building were owned by different entities;
moreover, the defendant did not offer sufficient evidence to establish
that D had beneficial ownership of the two buildings, as, even though
D had an ownership interest in the two landlord limited liability compa-
nies that owned the buildings, no evidence was offered regarding his
control of the entities or the properties, or any profit, benefit or advan-
tage he received from the properties, and his use of the parking lot
that was shared by both buildings when he visited the buildings was
insufficient, on its own, to establish that he had a right to the use and
enjoyment of both properties; accordingly, the two buildings did not
constitute a complex under § 47a-23c.
Argued May 12—officially released October 26, 2021
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of New Britain, Housing
Session, and tried to the court, Hon. Henry S. Cohn,
judge trial referee; judgment in part for the plaintiff,
from which the named defendant appealed to this court.
Affirmed.
Nilda R. Havrilla, with whom were Myklyn Maho-
ney, and, on the brief, Jane Kelleher, for the appellant
(named defendant).
Johanna S. Katz, with whom was Jonathan A.
Kaplan, for the appellee (plaintiff).
Opinion
CRADLE, J. In this summary process action, the
defendant Christine Mazzarella1 appeals from the judg-
ment rendered, following a trial to the court, in favor
of the plaintiff, Waters Edge 983, LLC. She claims that
the court improperly concluded that General Statutes
§ 47a-23c, which prohibits landlords from dispossessing
disabled tenants residing in a complex consisting of
five or more units without good cause, did not apply
to this action. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff owns a four unit, multi-
family building at 938 Farmington Avenue in Berlin.
The defendant has resided at 938 Farmington Avenue
since March, 2015, as a tenant. After her initial lease
expired on March 15, 2016, the defendant continued
residing at the property on a month-to-month basis.
Daniel McClutchy, a principal member of the plaintiff,
has represented the plaintiff in dealings with the defen-
dant since the beginning of the lease. The property
adjacent to 938 Farmington Avenue is 944 Farmington
Avenue, a two unit, multifamily building. The property
at 944 Farmington Avenue is owned by Ludlow 944,
LLC (Ludlow). McClutchy is also a principal member
of Ludlow. There is a paved driveway, owned by the
plaintiff, located between 938 Farmington Avenue and
944 Farmington Avenue, leading to a parking lot used
by the tenants of both buildings. There is no structure
separating the two properties.
On June 27, 2019, the plaintiff initiated a summary
process action by serving a notice to quit on the defen-
dant, which indicated that the defendant’s lease was
being terminated for failure to pay rent, lapse of time,
and for allowing another person to live in the unit.2
Although the notice to quit instructed the defendant to
vacate the property by July 1, 2019, she remained in
possession of the premises. On August 2, 2019, the plain-
tiff filed a two count complaint alleging nonpayment
of rent and lapse of time. The first count alleged that
the defendant did not pay rent due on May 1 or June
1, 2019, as required by the terms of her lease. The second
count claimed that the month-to-month lease was termi-
nated by lapse of time and, therefore, she no longer
had privilege to occupy the premises. On August 7, 2019,
the defendant filed an answer as a self-represented
party and asserted a special defense under § 47a-23c,
which prohibits landlords from dispossessing disabled
tenants who reside in a building or complex consisting
of five or more separate units without good cause.3
The defendant indicated in her special defense that 938
Farmington Avenue, in which she resides, is a building
or complex that consists of five or more units and that
she has a physical or mental disability. On August 15,
2019, the plaintiff filed a reply denying the defendant’s
special defense.4
On September 12, 2019, both parties submitted evi-
dence to the trial court, Hon. Henry S. Cohn, judge
trial referee. During the trial, McClutchy testified that
the defendant had lived at 938 Farmington Avenue for
four years and that the building contained four units.
He testified that the plaintiff owns 938 Farmington Ave-
nue and that he is a principal member of the plaintiff.
He indicated that his wife may also be a member of the
plaintiff. He also testified that the building next door,
944 Farmington Avenue, was owned by Ludlow and
consists of two units. He testified that he is a principal
member of Ludlow and that his wife may be a member
of Ludlow. More specifically, he testified that he thinks
his wife may be a member of the plaintiff, Ludlow, or
both, but he could not recall. He further testified that,
other than potentially his wife, there are no other mem-
bers of either the plaintiff or Ludlow.
The evidence presented at trial showed that the build-
ings in question are adjacent and share a common drive-
way and parking lot. Additionally, the defendant pre-
sented evidence that she has been diagnosed with several
mental impairments.5
On September 24, 2019, the court rendered judgment
for the plaintiff on the second count of its complaint.6
The court rejected the defendant’s special defense, con-
cluding that § 47a-23c did not apply because the build-
ing in which the defendant resided consists of only four
units and ‘‘[t]he fact that [McClutchy] is the effective
owner of an adjacent building does not meet the five
unit test.’’
On November 26, 2019, the defendant filed a motion
for articulation seeking clarification of the court’s deci-
sion. On December 9, 2019, the court issued an articula-
tion stating: ‘‘[Section] 47a-23c requires that the tenant
reside in a complex . . . or a building having five or
more units. Both the ‘complex’ and the ‘five or more’
provision require that the building or buildings be ‘under
the same ownership.’ Here the evidence showed that
there are adjacent buildings, but the buildings are
owned by two separate [limited liability companies
(LLCs)]. The building that the plaintiff owns consists
of four units only. That a person, McClutchy, has an
interest in both LLCs is insufficient under § [47a-23c].
That the buildings have a common driveway is also
irrelevant to the issue of ‘same ownership.’ . . . There
were two buildings owned by two different LLCs. The
plaintiff LLC owned a building consisting of four rental
units. . . . While McClutchy had ownership interests
in both LLCs, there was insufficient evidence that the
court should hold that the two LLCs should be treated
as having the same owner for the purposes of § 47a-
23c.’’ This appeal followed.
On appeal, the defendant claims that the court
improperly concluded that § 47a-23c did not apply to
this action. Because the building in which the defendant
resides consists of only four units, she may only avail
herself of the protection of § 47a-23c if that building,
along with the adjacent building, can be considered a
complex. The defendant argues that the court erred in
rendering judgment for the plaintiff on the ground that
the two properties at issue did not constitute a complex
under § 47a-23c because they were not owned by the
same person or entity. We disagree.
The determination of whether the building in which
the defendant resides may be considered a complex
under § 47a-23c is a question of statutory interpretation
over which our review is plenary. See, e.g., Gould v.
Freedom of Information Commission, 314 Conn. 802,
810, 104 A.3d 727 (2014). ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine 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 mean-
ing 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. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’ (Internal quotation marks
omitted.) Id., 810–11.
Section 47a-23c (a) (3) defines ‘‘ ‘complex’ ’’ as ‘‘two
or more buildings on the same or contiguous parcels
of real property under the same ownership . . . .’’
Although § 47a-23c does not define the phrase ‘‘under
the same ownership,’’ we are guided by the definition
of ‘‘ ‘owner,’ ’’ set forth in General Statutes § 47a-1 (e).
Section 47a-1 (e) ‘‘defines ‘[o]wner’ as ‘one or more
persons, jointly or severally, in whom is vested (1) all
or part of the legal title to property, or (2) all or part
of the beneficial ownership and a right to present use
and enjoyment of the premises and includes a mort-
gagee in possession.’ ’’ Hlinka v. Michaels, 204 Conn.
App. 537, 542, 254 A.3d 361 (2021).
As noted herein, the trial court determined that the
defendant failed to present sufficient evidence to prove
that the two properties were owned by the same person
or entity. The defendant does not contest the trial
court’s determination that the buildings are owned by
two separate LLCs. The defendant thus concedes that
‘‘McClutchy does not have ‘all or part of the legal title
to the property’ . . . .’’ She nevertheless argues that
the building in which she resides falls within § 47a-23c
because ‘‘McClutchy has ‘all or part of the beneficial
ownership’ and ‘a right to present use and enjoyment’
of both’’ properties.
Although the term ‘‘beneficial owner’’ is not defined
by our statutes, it has been interpreted by this court to
include ‘‘an individual who owns and controls a corpo-
ration holding legal title to premises.’’ Success, Inc. v.
Curcio, 160 Conn. App. 153, 156 n.5, 124 A.3d 563, cert.
denied, 319 Conn. 952, 125 A.3d 531 (2015); see also
Loew v. Falsey, 144 Conn. 67, 74, 127 A.2d 67 (1956)
(holding that individual who owned and controlled cor-
poration was beneficial owner despite fact that corpora-
tion had legal title to premises). This court has also
held that beneficial ownership may be established
‘‘when [one has] the right to ‘beneficial use’ of or a
‘beneficial interest’ in real property . . . .’’ Scott v. Hei-
nonen, 118 Conn. App. 577, 586 n.6, 985 A.2d 358 (2009),
cert. denied, 295 Conn. 909, 989 A.2d 603 (2010). This
court explained: ‘‘ ‘Beneficial use’ has been defined as
‘[t]he right to use and enjoy property according to one’s
own liking or so as to derive a profit or benefit from
it, including all that makes it desirable or habitable, as
light, air, and access; as distinguished from a mere right
of occupancy or possession.’ Black’s Law Dictionary
(6th Ed. 1990) [p. 157]. ‘Beneficial interest’ has been
defined as: ‘Profit, benefit, or advantage resulting from
a contract, or the ownership of an estate as distinct
from legal ownership or control.’ ’’ Scott v. Heinonen,
supra, 587 n.6.
Here, although the defendant offered some evidence
establishing the degree or extent of McClutchy’s owner-
ship interests in the two LLCs, she offered no evidence
of his control of them or the properties.7 The defendant
likewise did not present evidence regarding any profit,
benefit or advantage received by McClutchy from the
properties. The only evidence presented to the court
in support of her allegation that McClutchy enjoyed a
beneficial use of the two properties was McClutchy’s
own testimony that, when he visits the properties, he
parks in whatever space is available in the parking lot
of either property. On the basis of this lone fact, we
cannot conclude that the trial court erred in concluding
that the defendant failed to prove that McClutchy was
the beneficial owner of both properties.8 Accordingly,
the court properly concluded that § 47a-23c did not
apply to this case because the defendant did not reside
in a complex consisting of five or more units.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Kim Doe,’’ an unidentified individual who allegedly resided with Mazzar-
ella, was named as a party in this action. She has not participated in this
appeal. Any references herein to the defendant are to Mazzarella only.
2
The notice to quit listed the defendant and Kim Doe as the occupants.
Kim Doe was originally named a defendant in the summary process proceed-
ing but was nonappearing.
3
General Statutes § 47a-23c provides in relevant part: ‘‘(a) (1) Except as
provided in subdivision (2) of this subsection, this section applies to any
tenant who resides in a building or complex consisting of five or more
separate dwelling units . . . and who is . . . (B) a person with a physical
or mental disability . . . .
‘‘(b) (1) No landlord may bring an action of summary process or other
action to dispossess a tenant described in subsection (a) of this section
except [for good cause].’’
4
The plaintiff’s reply to special defenses states in its entirety: ‘‘Each of
the paragraphs contained in the [defendant’s] special defense(s), submitted
on 8/7/2019 is hereby denied.’’ At trial, the plaintiff did not contest that the
defendant has a physical or mental disability.
5
Following the trial, the parties submitted posttrial briefs to the court.
In its brief, the plaintiff argued that the court should adopt a plain meaning
approach in interpreting ‘‘under the same ownership,’’ as that phrase is used
in § 47a-23c (a) (3), to conclude that two distinct limited liability companies
cannot be the same owner of a complex. The defendant argued that the
court should interpret the statute broadly, in favor of the class of tenants
that the statute was enacted to protect. Because McClutchy is a principal
member of both companies, the defendant argued that the court should find
that the properties are under the same ownership and constitute a complex.
6
The court rendered judgment for the defendant on count one, nonpay-
ment of rent, for reasons not relevant to this appeal.
7
The only evidence presented at trial regarding McClutchy’s degree of
ownership or control of each LLC was his own testimony. McClutchy was
asked if he was a member of the plaintiff to which he responded, ‘‘Yes.’’
Later, the following colloquy took place:
‘‘[The Plaintiff’s Counsel]: The other property depicted . . . what address
is that?
‘‘[McClutchy]: 944 Farmington Avenue.
‘‘[The Plaintiff’s Counsel]: Okay. And that’s owned by what LLC?
‘‘[McClutchy]: Ludlow 944, LLC.
‘‘The Court: But you—that is one that you have an interest or somebody
has a joint—
‘‘[McClutchy]: Yes.
‘‘The Court: Is it you or somebody else?
‘‘[McClutchy]: Me.
‘‘The Court: All right. So what’s your status in both [the plaintiff and
Ludlow], president of the LLC or something like that?
‘‘[McClutchy]: Correct. . . . Sole member.’’
Later in the trial, the following colloquy ensued between McClutchy and
the defendant’s counsel:
‘‘[The Defendant’s Counsel]: And you already testified that you are the
owner and sole member of . . . Waters Edge 938, LLC?
‘‘[McClutchy]: Let me—let me just clarify. My wife may be a member. I
honestly am not sure, but she’s definitely—it’s either myself or myself and
my wife in both properties.’’
McClutchy later reiterated that he was unsure of his exact ownership
interest in each LLC and testified, ‘‘I know that my wife is involved in
the ownership of one or both of the buildings, but from a—from a legal
perspective, we’ve owned these for almost fifteen years and I just can’t
recall if she is a member of the LLC or not.’’ The testimony also revealed
that 938 Farmington Avenue and 944 Farmington Avenue have separate
deeds and, as previously stated, are owned by different LLCs.
8
Moreover, under § 47a-1, an owner must have both ‘‘beneficial owner-
ship’’ and a ‘‘right to present use and enjoyment of the premises . . . .’’
Again, the defendant’s sole allegation supporting her contention that McClut-
chy has a right to the present use and enjoyment of both properties is that
he ‘‘freely uses the parking spots’’ located at both properties. When faced
with that lone allegation, we cannot conclude that the trial court erred in
concluding that the defendant failed to prove that McClutchy had a right
to the present use and enjoyment of the properties.