Carroll v. Yankwitt ( 2021 )

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CHARLES CARROLL v. GEORGE B. YANKWITT
(AC 39693)
(AC 42730)
Prescott, Elgo and Moll, Js.
Syllabus
The plaintiff sought to recover the security deposit he paid to the defendant,
his former landlord, in connection with the second of two residential
leases that the parties had executed. The first lease was for approxi-
mately twelve months and had an open-ended commencement date that
began on the date the plaintiff commenced occupancy. The parties
thereafter executed the second lease, which also ran for one year, and,
under which, the plaintiff tendered the payment of the security deposit
to the defendant pursuant to statute ([Rev. to 2013] § 47a-21 (d) (2)).
On the day the plaintiff’s tenancy concluded under the second lease,
the defendant sent him an e-mail informing him of various items of
damage to the property and inquiring whether he would repair the
damage. When the plaintiff did not respond, the defendant sent him a
second e-mail two weeks later, itemizing the damages and stating that
he had incurred remediation costs, a loss of rent as a result of his
inability to relet the property because of the damage, and that the
plaintiff owed him unpaid rent for the final week of the first lease. The
plaintiff then sent the defendant a letter by certified mail, return receipt
requested, seeking the return of the security deposit. The postal service
returned the letter to the plaintiff with a notation that it was unclaimed
and unable to be forwarded. In addition to the return of the security
deposit, the plaintiff sought double damages pursuant to § 47a-21 (d)
(2), and attorney’s fees, costs and punitive damages as a result of the
defendant’s alleged violation of the Connecticut Unfair Trade Practices
Act (CUTPA), General Statutes § 42-110a et seq. The defendant filed a
counterclaim seeking damages for the remediation costs he incurred.
The case was tried to an attorney trial referee, who recommended
judgment for the plaintiff as to the security deposit, double damages
and CUTPA claims, and for the defendant on his counterclaim in part.
The trial court adopted the referee’s recommendations and rendered
judgment accordingly. The court thereafter granted in part the plaintiff’s
motion for attorney’s fees but did not rule on his request for punitive
damages. On the defendant’s appeal and the plaintiff’s cross appeal to
this court, held:
1. The attorney trial referee improperly recommended, and the trial court
wrongly awarded, double damages to the plaintiff, as the defendant’s
second e-mail complied with the requirements of § 47a-21 (d) (2) by
sufficiently apprising the plaintiff of the items of damage that allegedly
were caused by his failure to comply with his obligations as a tenant
and which exceeded the amount of the security deposit; the referee
improperly imposed additional requirements on the defendant that were
not set forth in § 47a-21 (d) (2), and, because the amount of the damages
alleged in the defendant’s e-mail exceeded the amount of the security
deposit and interest, the defendant was not required by § 47a-21 (d)
(2) to include an explicit statement that no balance of the security
deposit remained.
2. The trial court improperly rendered judgment in favor of the plaintiff on
the count of his complaint alleging a violation of CUTPA:
a. The attorney trial referee improperly concluded that the defendant
violated CUTPA on the ground that the defendant’s written statement
of damages failed to satisfy the requirements of § 47a-21 (d) (2): although
the plaintiff’s counsel and the referee acknowledged at trial that the
plaintiff’s sole theory of recovery under CUTPA was that the defendant’s
failure to comply with § 47a-21 (d) (2) constituted a per se violation of
CUTPA, the referee went beyond that theory in concluding that the
defendant provided an inadequate written statement of damages, as
the plaintiff, in his pleadings, did not challenge the adequacy of the
defendant’s written statement of damages; moreover, the plaintiff could
not prevail on either theory of recovery, this court having previously
rejected a claim that a landlord’s failure to comply with § 47a-21 (d) (2)
is a per se violation of CUTPA when the landlord had complied with
the requirements of § 47a-21 (d) (2).
b. The trial court improperly determined that the defendant violated
CUTPA on the ground that his statement of damages was pretextual,
the court having inaccurately recited in its articulation the attorney trial
referee’s determination as to damages and disregarded its obligation to
accept the referee’s findings, which were supported by evidence adduced
at trial; the referee did not find, nor did the plaintiff allege, that the
damages were pretextual but, rather, found that the defendant had
proven several of the damages he claimed and did not meet his burden
of proof as to others, which the referee did not find were pretextual or
fabricated, and, contrary to the court’s articulation, the referee did not
find that the damages the defendant claimed were either not suffered
by the defendant or proven at trial to be obligations of the plaintiff.
3. The trial court properly accepted the attorney trial referee’s findings that
the defendant was not entitled to damages on the third and fifth counts
of his counterclaim:
a. The referee’s finding that there was no evidence that the plaintiff was
aware of the accumulation or cause of mud in the crawl space of the
property was not clearly erroneous; the defendant failed to prove that
the condition occurred after the plaintiff took possession of the property
or that there was any nexus between the plaintiff’s conduct and the
accretion of the mud or water, and the referee was free to reject the
defendant’s claim that the crawl space was immaculate at the time the
plaintiff’s tenancy commenced and to credit the plaintiff’s testimony
that he did not allow water or mud to accumulate in the crawl space.
b. The defendant could not prevail on his claim that the trial court
improperly adopted the attorney trial referee’s finding that he was not
entitled to damages for one week of unpaid rent under the first lease
as alleged in the fifth count of his counterclaim: the referee properly
had rejected the defendant’s claim that some amount of pro rata rent
was due for the week at issue, as the first lease, which had an open-
ended commencement date, neither indicated nor implied an agreement
for pro rata rent; moreover, the first lease expressly contemplated the
apportionment of monthly rent to the number of days the plaintiff occu-
pied the property, and, although the parties knew how to add a pro rata
payment obligation in the lease, they declined to do so with respect to
the open-ended commencement date.
4. There was no basis for the plaintiff’s claim on cross appeal that the trial
court improperly failed to award him the full amount of his attorney’s
fee request, this court having concluded that the trial court improperly
rendered judgment in his favor on the CUTPA count of his complaint,
and, because there was no CUTPA violation, this court declined to
address his challenge to the trial court’s failure to rule on his request
for punitive damages.
Argued September 21, 2020—officially released March 30, 2021
Procedural History
Action for, inter alia, the return of a security deposit,
and for other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk, Housing Session
at Norwalk, where the defendant filed a counterclaim;
thereafter, the case was referred to Joseph DaSilva, Jr.,
attorney trial referee, who filed a report recommending
judgment in part for the plaintiff on the complaint and
for the defendant in part on the counterclaim; subse-
quently, the court, Rodriguez, J., rendered judgment in
accordance with the attorney trial referee’s report, from
which the defendant appealed to this court; thereafter,
this court dismissed the appeal in part; subsequently,
the court, Rodriguez, J., granted in part the plaintiff’s
motion for attorney’s fees, and the defendant filed an
amended appeal and the plaintiff cross appealed to this
court; thereafter, this court consolidated the appeals.
Judgment in AC 39693 reversed in part; further pro-
ceedings; appeal in AC 42730 vacated.
Thomas J. O’Neill, with whom were Jennifer L.
Shukla, and, on the brief, Bryan J. Orticelli, for the
appellant in Docket No. AC 39693 and cross appellee
in Docket No. AC 42730 (defendant).
Brenden P. Leydon, with whom, on the brief, was
Mark Sank, for the appellee in Docket No. AC 39693
and cross appellant in Docket No. AC 42730 (plaintiff).
Opinion
ELGO, J. In this landlord-tenant dispute, the defen-
dant, George B. Yankwitt, appeals from the judgment
of the trial court, rendered following a trial before an
attorney trial referee, in favor of the plaintiff, Charles
Carroll. On appeal, the defendant claims that the court
improperly concluded that (1) he violated General Stat-
utes (Rev. to 2013) § 47a-21, commonly known as the
security deposit statute,1 (2) he violated the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq., and (3) he was not entitled to certain
damages under the lease agreements between the par-
ties. The plaintiff cross appeals, claiming that the court
abused its discretion by (1) declining to award him the
full amount of attorney’s fees he requested and (2)
failing to rule on his request for punitive damages pursu-
ant to CUTPA. With respect to the defendant’s claims,
we affirm in part and reverse in part the judgment of
the trial court. With respect to the plaintiff’s cross
appeal, we vacate the order of the trial court regarding
its award of attorney’s fees and decline to address the
plaintiff’s claim regarding punitive damages.
The following relevant facts were found by the attor-
ney trial referee and adopted by the court or otherwise
are undisputed. At all relevant times, the defendant
owned real property known as 209 Dolphin Cove Quay
in Stamford (property) and had no prior experience as
a landlord. In early 2011, the plaintiff entered into a
written agreement to lease the property from the defen-
dant for a period of approximately twelve months until
May 31, 2012 (first lease).2 The plaintiff commenced
occupancy of the property on May 25, 2011. As the
attorney trial referee expressly found, the parties subse-
quently communicated via e-mail correspondence
‘‘throughout and after the plaintiff’s tenancy.’’
The parties executed a second lease agreement on
March 1, 2012 (second lease). The term of that lease
ran from June 1, 2012, to May 31, 2013. In accordance
therewith, the plaintiff tendered payment of $8000 to
the defendant as a security deposit. With respect to that
payment, the second lease provides in relevant part:
‘‘[The defendant] will hold the [s]ecurity [d]eposit in
accordance with the provisions of § 47a-21 . . . . If
[the plaintiff] has carried out [his] promises under this
[l]ease, [the defendant] shall return the [s]ecurity
[d]eposit to [the plaintiff] within thirty (30) days after
the termination of [the plaintiff’s] tenancy. . . . If [the
plaintiff] does not carry out [his] promises under this
[l]ease, [the defendant] may use the [s]ecurity [d]eposit
to pay the [r]ent or to repay [the defendant] for any
damages [the defendant] has [sustained] because of [the
plaintiff’s] broken promises. . . . If [the defendant]
keeps all or any part of [the plaintiff’s] [s]ecurity
[d]eposit, [the defendant] will, within the time required
by law, give [the plaintiff] a list itemizing the nature
and amount of the damages [the defendant] has suffered
because of [the plaintiff’s] broken promises.’’
The plaintiff’s tenancy concluded on May 31, 2013.
On that date, the defendant conducted an inspection
of the property with the plaintiff’s brother-in-law, James
Rumberger. Later that afternoon, the defendant sent the
plaintiff an e-mail, in which he noted various ‘‘damage
issues’’ that he had observed and asked the plaintiff to
‘‘[p]lease let me know by tomorrow . . . whether you
are going to assume responsibility for repairing these
[issues].’’ Although the plaintiff at trial acknowledged
that he received that e-mail, there is no indication in
the record that he ever responded to the defendant.3
On June 14, 2013, the defendant sent a detailed e-mail
to the plaintiff regarding the plaintiff’s alleged failure
to comply with the terms of the lease agreements. In
that correspondence, the defendant set forth seven spe-
cific items of damage to the property for which the
plaintiff allegedly was responsible. The defendant also
alleged that he had incurred $1422.86 in remediation
expenses for the property and had sustained a loss of
$10,000 due to his inability to rent the property for the
month of June as a result of the damages caused by the
plaintiff. The defendant further alleged that the plaintiff
‘‘never paid rent . . . for [his] occupancy of the [prop-
erty] for the period commencing May 25, 2012, and
ending May 31, 2012, or one week,’’ which allegedly
resulted in a $2000 loss to the defendant. At trial, the
plaintiff acknowledged that he received the defendant’s
June 14, 2013 e-mail correspondence.
At the direction of his attorney, the plaintiff sent
the defendant a letter via certified mail, return receipt
requested, the next day, June 15, 2013. In that one sen-
tence letter, the plaintiff provided his forwarding
address to the defendant ‘‘for return of the $8000 secu-
rity deposit under the [second] lease . . . .’’ That letter
was addressed to 26 Homeside Lane in White Plains,
New York, which was specified in the second lease as
the defendant’s address.4 On July 28, 2013, the United
States Postal Service returned that certified mailing to
the plaintiff with the notation, ‘‘Return to Sender
Unclaimed Unable to Forward,’’ affixed thereon.
The plaintiff commenced this civil action four days
later. His complaint contained three counts, all of which
concerned the defendant’s alleged failure to return his
security deposit. In the first count, the plaintiff sought
to recover his $8000 security deposit, along with interest
and double damages pursuant to § 47a-21 (d) (2). In the
second and third counts, the plaintiff alleged unjust
enrichment and a CUTPA violation, respectively, stem-
ming from the defendant’s retention of the security
deposit.5
In answering that complaint, the defendant admitted
that the parties had entered into the second lease and
that the plaintiff had provided the $8000 security
deposit. The defendant nevertheless denied the sub-
stance of all three counts of the plaintiff’s complaint,
stating: ‘‘[The defendant] denies the allegations . . .
and further responds by stating that: (a) [the defendant]
did not neglect to return the security deposit; (b) prior
to the expiration of the term of the [second] lease, [the
defendant] gave [the plaintiff] written notice of [the
plaintiff’s] failure and refusal to abide by the [l]ease;
(c) within thirty (30) days of the end of the term of the
[l]ease and [the plaintiff] vacating the premises, [the
defendant] gave written notice of [the plaintiff’s] failure
and refusal to abide by the provisions of the [l]ease and
the damages sustained by [the defendant] as a result
thereof; (d) [the plaintiff] has not responded to various
writings sent by [the defendant] itemizing damages sus-
tained by [the defendant] as a result of [the plaintiff’s]
failure and refusal to abide by the provisions of the
[l]ease; and (e) the damages sustained by [the defen-
dant] as a result of [the plaintiff’s] failure and refusal
to abide by the provisions of the [l]ease are greater
than the amount of the security deposit.’’ The defendant
further alleged that the plaintiff ‘‘has not complied with
. . . statutes relating to security deposits . . . .’’
In addition, the defendant raised three special
defenses, alleging that (1) the court lacked personal
jurisdiction over him, (2) the plaintiff had failed to pro-
vide ‘‘notice of an address to which the security deposit
purportedly ought to be sent,’’ and (3) the defendant
provided the plaintiff ‘‘notice of the damages sustained
by [the defendant] as a result of [the plaintiff’s] failure
and refusal to abide by the terms of the [second lease]’’
within thirty days of the expiration of that lease. The
defendant also asserted a six count counterclaim
against the plaintiff related to his alleged failure to abide
by the terms of the second lease.6
A three day trial was held before the attorney trial
referee in 2015, at which both parties testified.7 The
plaintiff presented documentary and testimonial evi-
dence that he sent notice of his forwarding address
to the defendant via certified mail. On that issue, the
defendant testified that he ‘‘never received that letter,
or any notice of a certified letter being sent to [him]
by anyone’’ and that he never received notice that a
certified letter ‘‘needed to be picked up.’’
The parties offered conflicting testimony on various
damage to the property allegedly sustained during the
plaintiff’s tenancy. The defendant offered the testimony
of Michael Curley, a licensed home improvement con-
tractor, regarding repairs that he performed at the prop-
erty in 2013. The plaintiff called Rumberger as a rebuttal
witness, who had attended the inspection of the prop-
erty with the defendant on May 31, 2013, and testified
as to the alleged damage to the property. Rumberger
also offered testimony regarding a video of the property
that he filmed on that date, which was played at trial
and admitted into evidence as an exhibit.
In his subsequent report, the attorney trial referee
found that the plaintiff had proven that he sent notice
of his forwarding address to the defendant and that the
defendant ‘‘presented no evidence or reason excusing
his failure to collect the [c]ertified [m]ail sent to him
by the plaintiff.’’ The attorney trial referee further found
that, in light of the mailbox rule,8 ‘‘it must be concluded
that the properly addressed and mailed letter was
received, and . . . the defendant’s lack of collection
was intentional.’’
The attorney trial referee also found that the defen-
dant’s June 14, 2013 e-mail to the plaintiff ‘‘did not
constitute an accounting of [the] plaintiff’s security
deposit, as it failed to indicate the amount of the plain-
tiff’s security deposit, failed to note the amount of the
interest accrued thereon, failed to list all damages and
failed to list the amount of security being withheld for
each alleged item of damage or even for all damages
in the aggregate.’’ Accordingly, the attorney trial referee
found that the plaintiff ‘‘proved that he did not receive
the return of any [of] his security deposit, nor did he
receive an accounting detailing the amounts retained
or the itemizing of the damages for which the security
was being retained.’’ The attorney trial referee found
that the interest due on the security deposit was $46.62,
and therefore recommended that judgment should enter
in favor of the plaintiff on the first count of his complaint
and that double damages totaling $16,093.24 should be
awarded pursuant to § 47a-21 (d) (2).9
The attorney trial referee also concluded that the
defendant had violated CUTPA, stating in relevant part:
‘‘Despite having such means available to account for
the plaintiff’s security deposit, the defendant failed to
do so. . . . [B]y failing to recite the amount of [the]
plaintiff’s security or the interest accrued thereon, by
failing to itemize the damages and their costs or even
to include a total amount of purported damages, [the]
defendant’s [e-mail] to the plaintiff on June 14, 2013
. . . falls short of meeting [the] defendant’s statutory
obligations. Based upon the totality of the facts, it is
found that the defendant was recklessly indifferent to
the plaintiff’s right to an accounting and engaged in
wrongful conduct that offended public policy in viola-
tion of CUTPA.’’ (Citation omitted.) The attorney trial
referee thus recommended that judgment should enter
in favor of the plaintiff on the third count of his com-
plaint; he left to the court’s discretion the question of
whether to award attorney’s fees or punitive damages
on that count.
With respect to the defendant’s counterclaim, the
attorney trial referee found that the defendant had
proven a total of $1506.45 in damages for which the
plaintiff was responsible. The attorney trial referee
expressly rejected the defendant’s other property dam-
age claims and further found that the defendant ‘‘did
not prove that the plaintiff failed to pay for a week of
occupancy’’ or that ‘‘the damages caused by the plaintiff
[were] even a cause, much less the . . . proximate
cause of his inability to rent the property immediately.’’
The attorney trial referee therefore recommended that
judgment should enter in favor of the defendant on his
counterclaim in the amount of $1506.45.
The defendant subsequently filed an objection to the
attorney trial referee’s report with the trial court. In
that objection, the defendant argued that the attorney
trial referee improperly (1) concluded that the plaintiff
had provided proper notice of his forwarding address
to the defendant, (2) concluded that the defendant had
failed to provide an accounting of the alleged damage
to the property, as required by § 47a-21 (d) (2), (3)
concluded that he had violated CUTPA, (4) exceeded
his proper role as fact finder by making legal conclu-
sions that properly are the province of the trial court,
and (5) rejected certain property damage claims alleged
by the defendant. The court summarily overruled that
objection by order dated September 22, 2016.
On that same date, the court issued notice of its
judgment in favor of the plaintiff in the amount of
$14,957.12. In so doing, the court failed to file a memo-
randum of decision, as required by Practice Book § 64-
1. From that judgment, the defendant timely appealed
to this court.
The plaintiff thereafter filed a motion for an award
of attorney’s fees with the trial court, to which the
defendant objected. The plaintiff then filed a supple-
mental motion with the trial court, in which he
requested an award of punitive damages pursuant to
CUTPA.
On May 23, 2017, the defendant filed a motion with
this court to secure a memorandum of decision from
the trial court. This court granted that motion and
ordered the trial court to file a memorandum of decision
setting forth the factual and legal basis for its judgment
in favor of the plaintiff. In response, the trial court
issued an articulation on August 24, 2017, stating in
relevant part: ‘‘The court finds that the attorney trial
referee’s report was . . . sufficiently detailed and [that
he] clearly evaluated . . . all evidence presented at
trial. The facts found by the attorney trial referee were
based on the evidence presented and the reasonable
inferences drawn therefrom. The court adopts all of
the findings and recommendations contained in the
attorney trial referee’s report.’’ The court thus awarded
the plaintiff ‘‘$14,586.79 plus cost[s].’’ In light of the
defendant’s pending appeal, the court indicated that it
had taken no action on the plaintiff’s request for attor-
ney’s fees and punitive damages pursuant to CUTPA.
Due to the pendency of his claims for attorney’s fees
and punitive damages, the plaintiff filed a motion to
dismiss the defendant’s appeal for lack of a final judg-
ment. This court granted that motion and dismissed the
defendant’s appeal in part. Weeks later, the parties filed
a joint motion to stay the appeal ‘‘to permit the [trial
court] to rule on all issues relating to [the] plaintiff’s
claims and to permit the parties to join all issues in one
appeal,’’ which this court granted.
The trial court then held a hearing on the plaintiff’s
motions for attorney’s fees and punitive damages on
May 18, 2018. At that hearing, the plaintiff’s counsel
reiterated that his affidavit of attorney’s fees sought a
total of $26,862.50 plus $549.33 in costs. In response,
the defendant renewed his argument that there was no
basis or evidence to support a finding of a CUTPA
violation. For that reason, the defendant argued, an
award of attorney’s fees or punitive damages was
unwarranted.
On June 25, 2018, the court issued an order on the
plaintiff’s motions, stating in full: ‘‘The court finds that
an hourly rate of $175 [for] an action that is not overly
complicated to be reasonable. Therefore, after a hearing
on this matter and based on the attorney fee affidavit
file in the case, the court awards attorney fees in the
amount of $13,434.25.’’10 From that ruling, the defendant
appealed.11
On September 10, 2018, the defendant filed a motion
for an articulation of the court’s ruling on the plaintiff’s
request for attorney’s fees, claiming that the court ‘‘did
not address the issues raised by the [defendant] or
explain the legal basis and grounds for an award of
attorney’s fees . . . .’’ On October 24, 2018, the plaintiff
likewise requested an articulation of the court’s deci-
sion ‘‘to include a ruling on the claim for CUTPA puni-
tive damages.’’ In response, the court issued an articula-
tion on November 15, 2018, stating in relevant part:
‘‘The [attorney trial referee] found that the damages
claimed by the [defendant] were either not suffered by
the [defendant] or proven at trial as obligations of the
[plaintiff] and, therefore, were not properly withheld
by the [defendant] under § 47a-21 (d) (2). The language
of the statute allows for landlords to deduct from a
tenant’s security deposit actual damages, not pretextual
damages. . . . Based on the violations of [CUTPA] and
the finding that the defendant’s actions are a violation
of CUTPA, and [§] 47a-21 (d) (2), the court finds an
attorney fee’s award in the amount of $13,434.28 to be
appropriate in this matter under [General Statutes §]
42-110g.’’
Because that articulation was silent as to the plain-
tiff’s motion for punitive damages, the plaintiff filed a
motion for review with this court seeking an articulation
on that issue. This court granted that motion and
ordered the trial court to articulate ‘‘whether it has
ruled on the CUTPA punitive damages claim, and, if so,
to state the order and provide the factual and legal basis
for its ruling.’’ On February 26, 2019, the trial court
issued an articulation, in which it reiterated that it had
found the attorney trial referee’s findings to be ‘‘legally
and logically consistent with the evidence and the law.
There is sufficient evidence to support a CUTPA claim
in this case.’’ The court further stated that it had found
‘‘an attorney’s fee award . . . to be appropriate in this
matter’’ under CUTPA. The court did not address in any
manner the plaintiff’s request for punitive damages.12
In response, the plaintiff filed a cross appeal to chal-
lenge both the amount of attorney’s fees awarded by
the court and the court’s ‘‘failure to address’’ his claim
for punitive damages. This court thereafter granted the
defendant’s motion to consolidate the plaintiff’s cross
appeal with the defendant’s pending appeal.
Before considering the specific claims advanced by
the parties, we note what is not in dispute. Pursuant
to § 47a-21 (g), the plaintiff was entitled to bring an
action for money damages ‘‘to reclaim any part of his
security deposit which may be due.’’ See also General
Statutes § 47a-21 (l) (‘‘[n]othing in this section shall be
construed as a limitation upon . . . the right of any
tenant to bring a civil action permitted by the general
statutes or at common law’’). On appeal, the defendant
concedes that the plaintiff was entitled to bring an
action to recover that portion of the security deposit
not offset by damages sustained by the defendant as a
result of the plaintiff’s noncompliance with his obliga-
tions as a tenant. Because the defendant allegedly sus-
tained damages that exceeded the amount of the secu-
rity deposit and related interest, he nonetheless
maintains that he did not violate the security deposit
statute in the present case.
We also note the standard that governs our review
of decisions in which the trial court has adopted the
report of an attorney trial referee. As our Supreme Court
has explained, ‘‘[w]hile the reports of [attorney trial
referees] . . . are essentially of an advisory nature, it
has not been the practice to disturb their findings when
they are properly based upon evidence, in the absence
of errors of law, and the parties have no right to demand
that the court shall determine the fact[s] thus found.
. . . A reviewing authority may not substitute its find-
ings for those of the trier of the facts. This principle
applies no matter whether the reviewing authority is
the Supreme Court . . . the Appellate Court . . . or
the Superior Court reviewing the findings of . . . attor-
ney trial referees. . . . This court has articulated that
attorney trial referees and [fact finders] share the same
function . . . whose determination of the facts is
reviewable in accordance with well established proce-
dures prior to the rendition of judgment by the court.
. . .
‘‘Although it is true that when the trial court reviews
the attorney trial referee’s report the trial court may
not retry the case and pass on the credibility of the
witnesses, the trial court must review the referee’s
entire report to determine whether the recommenda-
tions contained in it are supported by findings of fact
in the report. . . .
‘‘Finally, we note that, because the attorney trial ref-
eree does not have the powers of a court and is simply
a fact finder, [a]ny legal conclusions reached by an
attorney trial referee have no conclusive effect. . . .
The reviewing court is the effective arbiter of the law
and the legal opinions of [an attorney trial referee], like
those of the parties, though they may be helpful, carry
no weight not justified by their soundness as viewed
by the court that renders judgment. . . . Where legal
conclusions are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts found by the
. . . referee.’’ (Internal quotation marks omitted.) Hees
v. Burke Construction, Inc., 290 Conn. 1, 6–7, 961 A.2d
373 (2009).
I
THE DEFENDANT’S APPEAL
A
The defendant first claims that the court improperly
concluded that he violated the security deposit statute
and awarded the plaintiff double damages. He contends
that both the attorney trial referee and the trial court
construed the relevant provisions of § 47a-21 (d) (2) in
an overly restrictive fashion, and submits that the writ-
ten statement that he furnished to the plaintiff within
thirty days of the termination of the plaintiff’s tenancy
satisfied those statutory requirements.13 We agree.
At the outset, we note that our appellate courts
‘‘accord plenary review to the court’s legal basis for its
damages award. . . . The court’s calculation under
that legal basis is a question of fact, which we review
under the clearly erroneous standard.’’ (Citation omit-
ted; internal quotation marks omitted.) Carrillo v. Gold-
berg, 141 Conn. App. 299, 307, 61 A.3d 1164 (2013).
Moreover, to the extent that we must construe the
salient provisions of the security deposit statute, our
review is plenary. See Scholastic Book Clubs, Inc. v.
Commissioner of Revenue Services, 304 Conn. 204, 213,
38 A.3d 1183 (statutory interpretation presents question
of law subject to plenary review), cert. denied, 568 U.S.
940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012).
At the time that the plaintiff commenced this action,14
the double damages subdivision of the security deposit
statute provided in relevant part: ‘‘Upon termination of
a tenancy, any tenant may notify his landlord in writing
of such tenant’s forwarding address. Within thirty days
after termination of a tenancy, each landlord other than
a rent receiver shall deliver to the tenant or former
tenant at such forwarding address either (A) the full
amount of the security deposit paid by such tenant plus
accrued interest as provided in subsection (i) of this
section, or (B) the balance of the security deposit paid
by such tenant plus accrued interest as provided in
subsection (i) of this section after deduction for any
damages suffered by such landlord by reason of such
tenant’s failure to comply with such tenant’s obliga-
tions, together with a written statement itemizing the
nature and amount of such damages. Any such land-
lord who violates any provision of this subsection shall
be liable for twice the amount or value of any security
deposit paid by such tenant . . . .’’ (Emphasis added.)
General Statutes (Rev. to 2013) § 47a-21 (d) (2).
As this court has observed, § 47a-21 (d) (2) ‘‘imposes
liability for twice the value of any security deposit on
a landlord who violates the provisions of that subsec-
tion.’’ Kufferman v. Fairfield University, 5 Conn. App.
118, 121–22, 497 A.2d 77 (1985). It is the ‘‘punitive dam-
ages’’ portion of the security deposit statute. See Yor-
gensen v. Brophy Ahern Development Co., 66 Conn.
App. 833, 834, 787 A.2d 1 (2001), cert. denied, 259 Conn.
930, 793 A.2d 1087 (2002); Reich v. Langhorst, 44 Conn.
App. 381, 382, 689 A.2d 1134 (1997).
By its plain language, § 47a-21 (d) (2) obligates a
landlord, within thirty days of the termination of the
tenancy,15 to deliver to the tenant either (a) the full
amount of the security deposit or (b) any remaining
balance on that security deposit ‘‘after deduction for
any damages suffered by [the] landlord by reason of
[the] tenant’s failure to comply with [the] tenant’s obli-
gations . . . .’’ When the latter scenario is implicated,
§ 47a-21 (d) (2) requires the landlord to provide the
tenant ‘‘with a written statement itemizing the nature
and amount of such damages.’’ It is undisputed that,
in the present case, the defendant provided a written
statement to the plaintiff within thirty days of the termi-
nation of the tenancy.16 The question, then, is whether
that written statement comports with the statutory
requirements.
In his June 14, 2013 written statement, the defendant
first noted that, under the terms of the 2012 lease, he
was entitled to use the security deposit in question ‘‘ ‘to
repay the [defendant] for any damages’ ’’ sustained as
a result of the plaintiff’s failure to comply with his
obligations as a tenant. The defendant then noted that
he had sent the plaintiff an e-mail on the day that his
tenancy terminated, in which he ‘‘gave [the plaintiff]
notice of a variety of [items] that were damaged and
for which [the plaintiff] was responsible,’’ and reiterated
that, ‘‘[w]ith respect to some of these items [he] was
and continues to be prepared to allow [the plaintiff] to
repair same . . . .’’17 The defendant then enumerated
seven specific ‘‘items’’ of damage to the property for
which the plaintiff allegedly was responsible, some of
which the defendant offered the plaintiff an opportunity
to repair.18 The defendant also recited various obliga-
tions on the part of the tenant contained in the lease
agreements between the parties,19 and claimed that the
plaintiff’s ‘‘failure as the [t]enant to abide by the forego-
ing obligations’’ and his unreasonable withholding of
consent for the defendant to make necessary repairs20
resulted in a loss of ‘‘not less than $10,000’’ to the defen-
dant. More specifically, the defendant alleged that he
had incurred $1422.86 in remediation expenses
‘‘because [the plaintiff] allowed water and mud to accu-
mulate in the crawl space of the [property] and did not
advise [him] of that condition,’’ and that ‘‘an individual
who was prepared to lease the [property] commencing
[in] June, 2013 refused to do so’’ due to that condition,
which caused a loss of ‘‘not less than one month’s rent,
or $10,000.’’ Last, the defendant alleged that the plaintiff
had ‘‘never paid rent or compensated [the defendant]
for [his] occupancy of the [property] for the period
commencing May 25, 2012 and ending May 31, 2012, or
one week. The reasonable value of such occupancy,
based on the rents . . . paid [by the plaintiff] pursuant
to the [lease agreements] is $2000.’’
The total amount of the damages alleged in the defen-
dant’s written statement far exceeds the $8000 security
deposit and $46.62 accrued interest.21 It, therefore, is
not surprising that the defendant did not identify any
remaining balance of the security deposit in that written
statement to the plaintiff.
As this court has explained, ‘‘[f]or purposes of
determining whether to award double damages under
[§ 47a-21 (d) (2)] a court need only determine whether
a landlord complied with the statutory requirements,
and need not determine whether the landlord’s reason
for withholding the security deposit was justified.’’
Pedrini v. Kiltonic, 170 Conn. App. 343, 350–51, 154
A.3d 1037, cert. denied, 325 Conn. 903, 155 A.3d 1270(2017). Because he was alleging damages caused by
the plaintiff that exceeded the amount of the security
deposit, § 47a-21 (d) (2) required the defendant to fur-
nish the plaintiff with ‘‘a written statement itemizing
the nature and amount’’ of those damages. We agree
with the defendant that his June 14, 2013 written state-
ment complied with that statutory imperative. That
written statement was provided to the plaintiff within
thirty days of the termination of his tenancy and detailed
numerous ‘‘items’’ of damage allegedly caused by the
plaintiff that, in total, exceeded the $8000 security
deposit by thousands of dollars.
In concluding that the defendant violated § 47a-21 (d)
(2), the attorney trial referee found that the defendant’s
June 14, 2013 written statement to the plaintiff ‘‘did
not constitute an accounting of [the] plaintiff’s security
deposit, as it failed to indicate the amount of the plain-
tiff’s security deposit, failed to note the amount of the
interest accrued thereon, failed to list all damages and
failed to list the amount of security being withheld for
each alleged item of damage or even for all damages
in the aggregate.’’ The attorney trial referee provided no
legal authority for the imposition of those requirements,
which are not set forth in § 47a-21 (d) (2). We reiterate
that the plain language of that statute merely requires
a landlord asserting damages stemming from noncom-
pliance with the tenant’s obligations to provide the ten-
ant with ‘‘a written statement itemizing the nature and
amount of such damages.’’ General Statutes (Rev. to
2013) § 47a-21 (d) (2). When the amount of the alleged
damages far exceeds the security deposit and interest,
as is the case here, nothing more is statutorily required.
Although it may be preferable for a landlord in such
instances to include an explicit statement indicating
that no balance remains because the amount of the
alleged damages exceeds the amount of the security
deposit and interest, we decline to construe the written
statement requirement of § 47a-21 (d) (2) in such a
hypertechnical manner. Moreover, to the extent that
there is any ambiguity in the written statement require-
ment, we are mindful that § 47a-21 (d) (2) is the punitive
damages subdivision of the security deposit statute and
therefore eschew a rigid construction against the party
who would be subject to its punitive consequences.22
See Branford v. Santa Barbara, 294 Conn. 803, 814–15,
988 A.2d 221 (2010). We therefore conclude that the
written statement the defendant provided to the plain-
tiff complied with the requirements of § 47a-21 (d) (2),
as it sufficiently apprised the plaintiff that the defendant
was alleging damages caused by the plaintiff’s failure
to comply with his obligations as a tenant that exceeded
the amount of his security deposit. For that reason, the
attorney trial referee improperly recommended, and the
court wrongly awarded, double damages pursuant to
§ 47a-21 (d) (2). See Pedrini v. Kiltonic, supra, 170
Conn. App. 352 (plaintiff tenant not entitled to double
damages because defendant landlord ‘‘sent a written
notification of damages to the plaintiff within the thirty
day time limitation’’ and ‘‘the amount of claimed dam-
ages exceeded the amount of the security deposit, and,
therefore, there was no balance to return to the plain-
tiff’’).
B
The defendant next challenges the conclusion that
he violated our unfair trade practices act. ‘‘CUTPA pro-
vides that [n]o person shall engage in unfair methods
of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce. . . . It is
well settled that whether a defendant’s acts constitute
. . . deceptive or unfair trade practices under CUTPA,
is a question of fact for the trier, to which, on appellate
review, we accord our customary deference.’’ (Citation
omitted; internal quotation marks omitted.) Landmark
Investment Group, LLC v. Chung Family Realty Part-
nership, LLC, 125 Conn. App. 678, 699, 10 A.3d 61(2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).
Whether a defendant is subject to CUTPA and its appli-
cability, however, are questions of law. Id., 700. ‘‘[If] a
question of law is presented, review of the trial court’s
ruling is plenary, and this court must determine whether
the trial court’s conclusions are legally and logically
correct, and whether they find support in the facts
appearing in the record.’’ (Internal quotation marks
omitted.) Id., 701.
On appeal, the defendant contends that the attorney
trial referee improperly predicated his CUTPA finding
on a basis that was not advanced by the plaintiff in this
action—namely, the defendant’s purported failure to
provide a written statement of damages pursuant to
§ 47a-21 (d) (2). The defendant also claims that the trial
court improperly concluded that CUTPA damages were
warranted because the defendant’s written statement
was pretextual in nature, despite the fact that no such
finding was made by the attorney trial referee. We
address each claim in turn.
1
The defendant first argues that the attorney trial ref-
eree improperly predicated his CUTPA finding on a
basis that was not asserted by the plaintiff. The follow-
ing additional facts are relevant to that claim.
In count one of his complaint, the plaintiff alleged in
relevant part that the defendant had violated the secu-
rity deposit statute because he had ‘‘refused and
neglected to return the security deposit.’’ For that rea-
son, the plaintiff alleged that he was entitled to interest
and double damages pursuant to § 47a-21 (d) (2). In
count three of his complaint, the plaintiff set forth a
two paragraph CUTPA claim. After incorporating by
reference the allegations of the first count, the plaintiff
alleged: ‘‘The action of the defendant constitutes viola-
tions of [CUTPA], in that said action was immoral,
oppressive and unscrupulous, and caused substantial
injury to the plaintiff.’’ No further factual allegations
are contained in count three of the plaintiff’s complaint.
After the plaintiff rested his case at trial, the defen-
dant offered the testimony of Elaine Betzios, a real
estate agent, regarding ‘‘the damages suffered by’’ the
defendant and his inability to rent the property follow-
ing the termination of the plaintiff’s tenancy in particu-
lar. Early in her testimony, Betzios testified that she
showed the property to a prospective tenant who was
interested in renting the property in 2013. When she
then was asked why the tenant had not rented the
property, the plaintiff objected on, inter alia, hearsay
grounds. In response, the defendant’s counsel reminded
the attorney trial referee that the plaintiff had alleged
a CUTPA violation and argued that Betzios’ testimony
‘‘certainly goes to the mental state of the defendant as
to whether or not he committed a CUTPA violation,
what’s going on in his mind, was he performing some
kind of unscrupulous, immoral type of act under
CUTPA.’’ When the attorney trial referee inquired how
a third-party statement of a prospective tenant affected
the defendant’s mental state, the defendant’s counsel
replied: ‘‘Because [the defendant] believes that he has
a damage claim for failing to be able to relet the property
and, therefore, he has a good faith legitimate basis to
withhold the security deposit for those damages.’’
Soon thereafter, the following colloquy ensued:
‘‘[The Attorney Trial Referee]: It’s [an] out-of-court
statement. How is [Betzios’] out-of-court statement not
hearsay here?
‘‘[The Defendant’s Counsel]: Because it doesn’t go to
the truth of the matter asserted. It goes to the [defen-
dant’s] mental state, which, with CUTPA violations,
we’re going to get into what someone’s mental state is.
So, [the] out-of-court statement is not for the truth of
the matter asserted. It is to show what [the defendant]
was thinking and [what] information he had in his pos-
session to justify keeping the security deposit.
‘‘[The Attorney Trial Referee]: Okay. Hang on one
second. I have a question. Is the genesis of the CUTPA
violation solely the failure to return the security deposit
under the statute so that the mens rea necessary for
the CUTPA violation is a finding on the security deposit
statute?
‘‘[The Plaintiff’s Counsel]: Exactly.
‘‘[The Attorney Trial Referee]: Okay. So—
‘‘[The Plaintiff’s Counsel]: It’s a per se violation of
CUTPA.
‘‘[The Attorney Trial Referee]: Okay. . . .
***
‘‘[The Attorney Trial Referee]: . . . I don’t think you
need to go into the issues . . . of an independent
CUTPA analysis in dealing with that evidence and trying
to disprove it because if it’s not a per se violation to
violate the security deposit statute, if that’s not a per
se violation of CUTPA, the plaintiff is going to lose their
CUTPA claim.
‘‘[The Defendant’s Counsel]: I understand.
‘‘[The Attorney Trial Referee]: Because they haven’t
alleged or pleaded anything else—
‘‘[The Defendant’s Counsel]: Right.
‘‘[The Plaintiff’s Counsel]: Mm hmm.
‘‘[The Attorney Trial Referee]: —other than that to
show a CUTPA violation.
‘‘[The Defendant’s Counsel]: Right, right. So, the—
‘‘[The Attorney Trial Referee]: So, it’s either per se
or it’s not.
‘‘[The Defendant’s Counsel]: Right.
‘‘[The Attorney Trial Referee]: Or it’s [not] per se or
they can’t prevail.
‘‘[The Plaintiff’s Counsel]: That’s correct.’’ (Emphasis
added.)
As the colloquy over Betzios’ testimony wound down,
the attorney trial referee further stated: ‘‘[I]t seems to
me that . . . if a violation of . . . the security deposit
statute does not create in and of itself the CUTPA viola-
tion, then the plaintiff can’t prevail on the CUTPA viola-
tion because the plaintiff has elicited no other evidence
of CUTPA. They have not elicited anything about
unscrupulous, immoral, unethical conduct separate and
apart from violating the security deposit statute if that is
[in] and of itself sufficient to create a CUTPA violation,
similar to violating the [Home Improvement Act, Gen-
eral Statutes § 20-418 et seq.]. If you don’t comply with
the Home Improvement Act, it’s a per se violation of
CUTPA. . . . I’m hearing the same argument being
made [regarding the security deposit statute]. . . . If
that’s the case, then maybe it is [a violation of CUTPA].
If it’s not the case, then the plaintiff [is] sunk on that
count.’’ At that time, the defendant’s counsel stated that
he had no further questions for Betzios ‘‘in light of the
discussion and the objection,’’ and Betzios’ testimony
concluded.
Although the attorney trial referee at trial explicitly
stated, and the plaintiff’s counsel confirmed, that the
plaintiff’s sole claim was that the failure to comply with
§ 47a-21 constituted a per se violation of CUTPA, the
CUTPA finding in his report was predicated on an alto-
gether different basis. In that report, the attorney trial
referee stated in relevant part: ‘‘Even if one were to
ignore the fact that [the] defendant must be considered
to have ‘received’ the plaintiff’s forwarding address, the
defendant had the means, namely, a working [e-mail]
address, to contact the plaintiff for purposes of account-
ing for his security deposit. . . . Despite having such
means available to account for the plaintiff’s security
deposit, the defendant failed to do so. . . . [B]y failing
to recite the amount of [the] plaintiff’s security or the
interest accrued thereon, by failing to itemize the dam-
ages and their costs or even to include a total amount
of purported damages, the defendant’s [e-mail] to the
plaintiff on June 14, 2013 . . . falls short of meeting
[his] statutory obligations. Based upon the totality of
the facts, it is found that the defendant was recklessly
indifferent to the plaintiff’s right to an accounting and
engaged in wrongful conduct that offended public pol-
We conclude that the attorney trial referee’s conclu-
sion is flawed in two respects. First, it is predicated
on a basis that was not raised by the plaintiff in his
complaint. As our Supreme Court has explained, ‘‘[t]he
principle that a plaintiff may rely only upon what he
has alleged is basic. . . . It is fundamental in our law
that the right of a plaintiff to recover is limited to the
allegations of his complaint.’’ (Citations omitted; inter-
nal quotation marks omitted.) Matthews v. F.M.C.
Corp., 190 Conn. 700, 705, 462 A.2d 376 (1983). ‘‘More
than one century ago, our Supreme Court held that
[w]hen the facts upon which the court in any case
founds its judgment are not averred in the pleadings,
they cannot be made the basis for a recovery. . . .
The vitality of that bedrock principle of Connecticut
practice is unquestionable.’’ (Citation omitted; internal
quotation marks omitted.) Michalski v. Hinz, 100 Conn.
App. 389, 393, 918 A.2d 964 (2007). Accordingly, ‘‘a
plaintiff’s theories of liability, and the issues to be tried,
are limited to the allegations [in the] complaint.’’ (Inter-
nal quotation marks omitted.) Williams v. Housing
Authority, 327 Conn. 338, 397, 174 A.3d 137 (2017).
Nowhere in his complaint or answer to the defendant’s
special defenses did the plaintiff challenge the adequacy
of the written statement of damages provided by the
defendant. Moreover, both the attorney trial referee and
the plaintiff’s counsel acknowledged at trial that the
sole theory of recovery under CUTPA presented by the
plaintiff was the per se violation theory. For that reason,
the attorney trial referee improperly went beyond that
theory in finding a CUTPA violation in the present case.
Second, on its merits, the conclusion reached by the
attorney trial referee is untenable. Whether under a per
se violation theory or one predicated on the inadequacy
of the written statement provided by the defendant,
the plaintiff cannot prevail. This court previously has
rejected a claim that a landlord’s ‘‘failure to comply
with § 42a-21 (d) (2) is a per se CUTPA violation’’;
Pedrini v. Kiltonic, supra, 170 Conn. App. 353; when
the landlord had ‘‘complied with the statutory require-
ments’’ by sending ‘‘a written notification of damages
to the plaintiff within the thirty day time limitation’’
and ‘‘the amount of claimed damages exceeded the
amount of the security deposit [leaving] no balance to
return to the plaintiff . . . .’’ Id., 352. That precedent
compels a similar result here. Because we have con-
cluded that the June 14, 2013 written statement of dam-
ages provided by the defendant to the plaintiff satisfied
the statutory requirements of § 47a-21 (d) (2); see part
I A of this opinion; the attorney trial referee improperly
found a CUTPA violation on the basis of the inadequacy
of that written statement.
2
The defendant also claims that the trial court improp-
erly concluded that CUTPA damages were warranted
because the defendant’s written statement of damages
was pretextual in nature, despite the fact that no such
finding was made by the attorney trial referee. We agree.
As we have noted, the plaintiff’s CUTPA pleadings
are sparse, alleging merely that the defendant’s neglect
and refusal to return his security deposit constituted
a CUTPA violation ‘‘in that said action was immoral,
oppressive and unscrupulous, and caused substantial
injury to the plaintiff.’’ The plaintiff did not allege in his
complaint that the damages claimed by the defendant
in his written statement were pretextual.23 More import-
antly, the attorney trial referee never made such a fac-
tual finding in his report. To be sure, the attorney trial
referee found that several of the items of damage
claimed by the defendant were not proven at trial.24 At
the same time, the attorney trial referee also found that
the defendant had proven other damages for which the
plaintiff was liable.25
Later in his report, the attorney trial referee stated
that the defendant ‘‘met his burden of proof and proved
by a preponderance of the evidence that the plaintiff
either caused or should be held liable for certain dam-
ages to the property.’’ The attorney trial referee then
emphasized that the defendant ‘‘did not meet his burden
of proof and did not prove the balance of the physical
damage claims set forth in his [counterclaim].’’26
Pretext is a question of fact. See State v. Holmes, 334
Conn. 202, 226, 221 A.3d 407 (2019) (whether pretext
exists is factual question subject to clearly erroneous
review); see also Murray v. Groose, 106 F.3d 812, 814
(8th Cir.) (‘‘[t]he existence of pretext is a question of
fact’’), cert. denied, 522 U.S. 851, 118 S. Ct. 141, 139 L.
Ed. 2d 88 (1997); Cornwell v. Robinson, 23 F.3d 694,
706 (2d Cir. 1994) (claims of pretext are ‘‘pure questions
of fact’’ governed by clearly erroneous standard of
review (internal quotation marks omitted)). In his
report, the attorney trial referee did not find the defen-
dant’s claimed damages to be pretexual; indeed, that
word appears nowhere in his report. Instead, he found
those damages unproven. Furthermore, the attorney
trial referee did not predicate his finding that the defen-
dant violated CUTPA on such a basis. That conclusion
was based on the defendant’s purported failure to pro-
vide an adequate written statement of damages pursu-
ant to § 47a-21 (d) (2), not on any finding of pretext.
The record before us indicates that the report of the
attorney trial referee is silent on the issue of pretext.
So, too, is the trial court’s September 22, 2016 notice
of judgment. When this court subsequently ordered the
trial court to articulate the factual and legal basis of
its judgment, the court issued an articulation on August
24, 2017, that again made no mention of pretext.
It was only on November 15, 2018—more than two
years after it had rendered judgment in the present
case—that the court first raised the issue of pretext.
In articulating the basis of its award of attorney’s fees
under CUTPA, the court stated in relevant part: ‘‘The
[attorney trial referee] found that the damages claimed
by the [defendant] were either not suffered by the
[defendant] or proven at trial as obligations of the [plain-
tiff] and, therefore, were not properly withheld by the
[defendant] under § 47a-21 (d) (2). The language of the
statute allows for landlords to deduct from a tenant’s
security deposit actual damages, not pretextual dam-
ages. Carrillo v. Goldberg, [supra, 141 Conn. App. 310].’’
The court’s reference to ‘‘pretextual damages’’ is trou-
bling for several reasons. First and foremost, the attor-
ney trial referee never made such a finding. Although
he found some of the defendant’s claimed damages
unproven, the attorney trial referee did not find them
to be pretextual. Because those findings are supported
by the evidence adduced at trial, the court was obligated
to accept them and was not at liberty to substitute its
own findings for those of the trier of fact. Hees v. Burke
Construction, Inc., supra, 290 Conn. 6–7. In making
its own determination that the defendant’s claim of
damages was pretextual, the court disregarded that fun-
damental precept.
Second, the court’s recitation of precisely what the
attorney trial referee determined with respect to the
defendant’s damages is inaccurate. The attorney trial
referee did not find ‘‘that the damages claimed by the
[defendant] were either not suffered by the [defendant]
or proven at trial as obligations of the [plaintiff],’’ as
the court stated in its November 15, 2018 articulation.
To the contrary, the attorney trial referee found that
the defendant had proven several of his claimed dam-
ages, for which the plaintiff was liable. See footnote 25
of this opinion. For that reason, the attorney trial referee
recommended that judgment should enter in favor of
the defendant on his counterclaims in the amount of
$1506.45—a recommendation that the court expressly
adopted in its judgment.
Third, in making its own determination that the defen-
dant’s claimed damages were pretextual, the court
improperly invoked this court’s decision in Carrillo v.
Goldberg, supra, 141 Conn. App. 299. Carrillo was an
extraordinary case, as the defendant landlords had mis-
handled the security deposit funds and, following the
termination of the tenancy, had sent the plaintiff tenants
a concededly fraudulent statement of damages. Id., 303–
305. At trial, the defendants admitted that they ‘‘were
not entitled to any of the sum claimed as damages in
[the] accounting sent to the plaintiffs, except for $231.80
in fuel oil expenses.’’ Id., 305. As a result, the trial court
found that ‘‘the defendants’ claimed damages were pre-
textual, that is, they were calculated to camouflage the
defendants’ mishandling of the plaintiffs’ security
deposit.’’ Id., 310. In concluding that an award of double
damages was warranted, this court stated: ‘‘[T]he dam-
ages claimed by the defendants were neither suffered
by the defendants nor created by the plaintiffs’ failure
to comply with their obligations as tenants. Rather,
they were simply fabricated by the defendants and,
therefore, were not properly withheld by the defendants
under § 47a-21 (d) (2). The language of the statute
allows for landlords to deduct from a tenant’s security
deposit actual damages, not pretextual damages. While
the defendants complied, in form only, with the require-
ment that a written accounting of damages be sent to
the former tenant within the time frame prescribed by
[the security deposit statute] . . . they did not satisfy
the statutory requirements.’’ Id., 310–11.
By contrast, it is undisputed that the defendant in
the present case immediately alerted the plaintiff to the
alleged damage to the property, both through verbal
communication with the plaintiff’s brother-in-law and
via e-mail correspondence, on the very day that the
tenancy terminated. The defendant then sent a written
statement of damages that detailed various items of
damage to the property, some of which the attorney
trial referee found proven following trial. See footnote
25 of this opinion. Equally significant, the attorney trial
referee did not find that the other damages claimed
by the defendant were ‘‘pretextual’’ or ‘‘fabricated’’; he
simply found that the defendant had not satisfied his
burden of proof with respect to those damages. For
that reason, Carrillo is inapposite to the present case.
In light of the foregoing, the finding of a CUTPA
violation cannot stand. We, therefore, conclude that the
court improperly rendered judgment in favor of the
plaintiff on the third count of his complaint.
C
The defendant also claims that the court improperly
accepted the attorney trial referee’s findings that he
was not entitled to damages on his third and fifth counts
of his counterclaim. We disagree.
‘‘We accord plenary review to the court’s legal basis
for its damages award. . . . The court’s calculation
under that legal basis is a question of fact, which we
review under the clearly erroneous standard.’’ (Citation
omitted; internal quotation marks omitted.) Carrillo v.
Goldberg, supra, 141 Conn. App. 307. ‘‘A finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) McKay v. Longman, 332 Conn. 394,
417, 211 A.3d 20 (2019). In addition, we note that, ‘‘[i]t
is within the province of the [attorney trial referee],
when sitting as the fact finder, to weigh the evidence
presented and determine the credibility and effect to
be given the evidence.’’ (Internal quotation marks omit-
ted.) Reid v. Landsberger, 123 Conn. App. 260, 281, 1
A.3d 1149, cert. denied, 298 Conn. 933, 10 A.3d 517(2010). ‘‘No one other than the attorney trial referee is
authorized to assess the credibility of the witnesses
who appear before him.’’ Johnson Electric Co. v. Salce
Contracting Associates, Inc., 72 Conn. App. 342, 347,
805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864(2002). For these reasons, this court on appeal ‘‘cannot
retry the facts or pass on the credibility of the wit-
nesses.’’ (Internal quotation marks omitted.) McKay v.
Longman, supra, 417.
1
The defendant claims that the court improperly
accepted the finding of the attorney trial referee that
he was not entitled to $1422.86 in damages on the third
count of his counterclaim. We disagree.
In his third count, the defendant alleged in relevant
part that the plaintiff had breached the terms of the
lease agreements by ‘‘allow[ing] water and mud to accu-
mulate in the crawl space of the [property] and neither
repaired same nor advised [the defendant] of the accu-
mulation of water and mud in the crawl space. . . . As
a consequence of the foregoing, [the defendant] sus-
tained further damages in the amount of $1422.86 to
repair the damage.’’
In his report, the attorney trial referee found that
the defendant had ‘‘credibly established that mud was
discovered in the crawl space’’ in question. He nonethe-
less found that the defendant had not proven that this
‘‘condition occurred after the plaintiff [took] posses-
sion’’ of the property in May, 2011. As the attorney trial
referee stated: ‘‘[T]he question of how and when the
condition occurred is critical, since the property fronts
on the water and the plaintiff occupied the [property]
during a period of time that included two major Atlantic
hurricanes that severely impacted the Connecticut
coastline. Without establishing when the condition was
created or that the plaintiff did something to cause the
condition to occur, or for that matter was even aware
of the condition, this claim [of damages] cannot be
credited.’’ He further found that the defendant ‘‘failed
to prove that there was any nexus between the plaintiff’s
conduct and the accretion of mud and/or water in the
crawl space’’ and had ‘‘failed to prove that the plaintiff
was even aware that mud or water accreted in the
crawl space.’’
The evidence in the record before us supports that
determination. The defendant offered no evidence at
trial as to precisely when the accumulation of mud
occurred. Moreover, the home improvement contractor
hired by the defendant to perform repairs on the prop-
erty in June, 2013, testified at trial that the mud in the
crawl space ‘‘looked like it had been there for some
time’’ and that he did not know when the mud came
into the crawl space. Although the defendant claimed
that ‘‘the crawl space was immaculate’’ at the time that
the plaintiff’s tenancy commenced, the attorney trial
referee, as the sole arbiter of credibility, was free to
reject that assertion. He likewise was free to credit the
plaintiff’s unequivocal testimony that he did not allow
water and mud to accumulate in the crawl space. See
Johnson Electric Co. v. Salce Contracting Associates,
Inc., supra, 72 Conn. App. 347.
We agree with the attorney trial referee that there is
no evidence that the plaintiff was aware, never mind
the cause, of the accumulation of mud in the crawl
space. For that reason, his finding that the defendant
was not entitled to $1422.86 in damages on the third
count of his counterclaim is not clearly erroneous.
2
The defendant also claims that the court improperly
accepted the finding of the attorney trial referee that
he was not entitled to $2000 in damages for an unpaid
week of rent under the terms of the first lease. We do
not agree.
The applicable standard that guides our review is
well established. ‘‘The defendant’s claim presents a
question of contract interpretation because a lease is
a contract, and, therefore, it is subject to the same
rules of construction as other contracts. . . . Although
ordinarily the question of contract interpretation, being
a question of the parties’ intent, is a question of fact
. . . [when] there is definitive contract language, the
determination of what the parties intended by their
. . . commitments is a question of law [over which our
review is plenary]. . . . In construing a written lease
. . . three elementary principles must be [considered]:
(1) The intention of the parties is controlling and must
be gathered from the language of the lease in the light
of the circumstances surrounding the parties at the
execution of the instrument; (2) the language must be
given its ordinary meaning unless a technical or special
meaning is clearly intended; [and] (3) the lease must
be construed as a whole and in such a manner as to
give effect to every provision, if reasonably possible.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Bristol v. Ocean State Job Lot Stores of
Connecticut, Inc., 284 Conn. 1, 7–8, 931 A.2d 837 (2007).
In the fifth count of his counterclaim, the defendant
alleged in relevant part that the plaintiff had ‘‘failed
and refused to pay for the use and occupancy of the
[property] for the period [from] May 25, 2012, to May
31, 2012.’’ His claim stems in large part from what the
attorney trial referee aptly described as an ‘‘open-ended
commencement date for the first lease.’’ The first lease
specifies the ‘‘lease term’’ as follows: ‘‘The term of this
[l]ease . . . shall commence on the date that [the plain-
tiff] commences occupancy of the [d]welling which date
shall not be before May 15, 2011, and shall not be after
May 31, 2011 . . . . [The lease] shall end May 31, 2012
. . . .’’ The first lease further obligated the plaintiff to
pay rent on a monthly basis, which payment was ‘‘due
on the [c]ommencement [d]ate and on the same date
of each month thereafter.’’
In concluding that no damages were warranted on
the fifth count, the attorney trial referee rejected the
defendant’s claim that ‘‘some amount of pro rata rent
is due,’’ reasoning that the first lease ‘‘neither . . . indi-
cates [nor] implies an agreement that pro rata rent
would be due for the variable commencement window
at the beginning of the first lease.’’ The attorney trial
referee emphasized that, under the plain terms of the
first lease, ‘‘the commencement date [was] left open to
fall anywhere between May 15 and May 31, depending
on when the defendant could move out of the premises.’’
He further found that ‘‘the parties were free to, and did,
elect to negotiate a somewhat open-ended commence-
ment date for the first lease. The parties did not, how-
ever, agree that additional rent would be due for the
variable commencement date period of time. The defen-
dant cannot now add such a term.’’
We agree with that determination. In addition, we
note that the first lease expressly contemplated the
scenario in which monthly rent is ‘‘apportioned to the
number of days that [the plaintiff] occupies the [prop-
erty]’’ in the event that either party exercised the right
to early termination of the lease. The parties thus plainly
knew how to add a provision imposing a pro rata pay-
ment obligation in their lease agreement. They never-
theless declined to do so with respect to the open-ended
commencement date of the first lease. We, therefore,
conclude that the court properly adopted the attorney
trial referee’s determination that the defendant was not
entitled to $2000 in damages on the fifth count of his
counterclaim.
II
THE PLAINTIFF’S CROSS APPEAL
In his cross appeal, the plaintiff claims that the court
improperly (1) declined to award him the full amount
of attorney’s fees requested and (2) failed to rule on
his request for punitive damages pursuant to CUTPA.
In light of our conclusion in part I B of this opinion
that the court improperly rendered judgment in favor
of the plaintiff on the CUTPA count of his complaint,
there is no basis for the plaintiff’s recovery of attorney’s
fees pursuant to § 42-110g. See Winakor v. Savalle, 198
Conn. App. 792, 811, 234 A.3d 1122, cert. granted on
other grounds, 335 Conn. 958, 239 A.3d 319 (2020);
Gaynor v. Hi-Tech Homes, 149 Conn. App. 267, 280, 89
A.3d 373 (2014). Accordingly, we vacate the order of
the court awarding the plaintiff $13,434.28 in attorney’s
fees pursuant to CUTPA.
For similar reasons, we decline to address the plain-
tiff’s challenge to the court’s failure to rule on his
request for punitive damages pursuant to CUTPA. As
our Supreme Court has observed, because ‘‘the defen-
dant did not violate CUTPA, we need not address
whether the trial court abused its discretion by not
awarding . . . punitive damages to the plaintiffs as
part of the CUTPA award.’’ Lawson v. Whitey’s Frame
Shop, 241 Conn. 678, 691 n.13, 697 A.2d 1137 (1997).
Because there was no CUTPA violation in the present
case, no punitive damages can be awarded pursuant to
CUTPA.
The judgment is reversed only with respect to the
claim alleging a violation of CUTPA and as to the award
of double damages pursuant to § 47a-21 (d) (2), and the
case is remanded with direction to vacate the award
of attorney’s fees and to recalculate the damages award
in accordance with this opinion; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
All references to § 47a-21 in this opinion are to the 2013 revision of
that statute.
2
The first lease specifies the ‘‘lease term’’ as follows: ‘‘The term of this
[l]ease . . . shall commence on the date that [the plaintiff] commences
occupancy of the [d]welling which date shall not be before May 15, 2011,
and shall not be after May 31, 2011 . . . . [The lease] shall end May 31,
2012 . . . .’’ In his report, the attorney trial referee specifically found that
the first lease ‘‘was for a term of between one year and one year and two
weeks, depending upon an open-ended commencement date running from
a date between May 15 and May 31, 2011, and May 31, 2012.’’
3
At trial, the plaintiff admitted that the defendant continued to communi-
cate with him via e-mail after the plaintiff had vacated the property and
that he had ‘‘received several e-mails [from the defendant] making allegations
about the condition of the [property] upon our departure . . . .’’ In his
testimony, the defendant stated that the plaintiff had not responded to his
e-mails that were sent following the termination of the plaintiff’s tenancy.
4
At trial, the defendant testified that 26 Homeside Lane in White Plains
was his current address and that it was his address in June, 2013.
5
After incorporating by reference the allegations of the first count, count
three of the complaint states in full: ‘‘The action of the [d]efendant constitutes
violations of [CUTPA], in that said action was immoral, oppressive and
unscrupulous and caused substantial injury to the plaintiff.’’
6
In those counts, the defendant alleged that, pursuant to the terms of the
second lease, he was entitled to retain the security deposit due to (1)
‘‘physical damage’’ to the property for which the plaintiff was responsible,
(2) the plaintiff’s failure to ‘‘pay charges of the [Stamford] Water Pollution
Control Authority,’’ (3) the plaintiff’s allowance of water and mud in the
crawl space of the property and his failure to repair or notify the defendant
of that condition, (4) the plaintiff’s refusal to allow the defendant to make
necessary repairs to the property during the lease term, (5) the plaintiff’s
failure to ‘‘pay for the use and occupancy of the [property] for the period
[commencing on] May 25, 2012 [and ending on] May 31, 2012,’’ and (6)
additional damages to the property caused by the plaintiff.
7
In his report, the attorney trial referee found the testimony of both
parties to be generally credible, stating: ‘‘On balance, while [the attorney
trial referee] did not necessarily believe every utterance or agree with every
conclusion asserted by any witness, each witness was found to be generally
credible and appeared to be testifying to the best of their recollection and
with the intent to testify honestly.’’
8
‘‘The mailbox rule, a general principle of contract law, provides that a
properly stamped and addressed letter that is placed into a mailbox or
handed over to the United States Postal Service raises a rebuttable presump-
tion that it will be received.’’ (Internal quotation marks omitted.) Butts v.
Bysiewicz, 298 Conn. 665, 677 n.8, 5 A.3d 932 (2010). For a thorough discus-
sion of the mailbox rule in the context of certified mail, see Aurora Loan
Services, LLC v. Condron, 181 Conn. App. 248, 262–73, 186 A.3d 708 (2018).
9
In light of that conclusion, the attorney trial referee concluded that the
plaintiff could not prevail on his unjust enrichment count. The trial court
agreed and rendered judgment in favor of the defendant on that count. The
plaintiff does not challenge the propriety of that determination in this appeal.
10
In his affidavit of attorney’s fees, the plaintiff’s counsel had specified
an hourly rate of $350.
11
By order dated October 31, 2018, this court ordered that appeal to ‘‘be
treated as an amended appeal . . . .’’
12
The plaintiff filed an additional motion for review with this court, claim-
ing that the trial court had provided ‘‘no further explanation either granting
or denying punitive damages, let alone explaining why.’’ For that reason, the
plaintiff argued, further articulation of the court’s decision was necessary.
By order dated May 7, 2019, this court granted review but denied the relief
requested.
13
The defendant also claims that the court improperly concluded that he
violated the security deposit statute because the plaintiff failed to establish
that the defendant had received written notice of his forwarding address,
which the defendant argues is a prerequisite to recovery under § 47a-21 (d)
(2). See Johnson v. Mazza, 80 Conn. App. 155, 160, 834 A.2d 725 (2003) (‘‘a
tenant is first required to provide a forwarding address to a landlord to be
afforded the opportunity to receive the double damages remedy under § 47a-
21 (d) (2)’’). The defendant maintains that, read together, subdivisions (2)
and (4) of § 47a-21 (d) require actual receipt by the landlord of the tenant’s
forwarding address to trigger the time limitations contained therein. See
footnote 15 of this opinion. In light of our conclusion that the defendant
properly provided a written statement itemizing the nature and amount of
the damages allegedly suffered as a result of the plaintiff’s noncompliance
with his obligations as a tenant, we do not consider that alternative con-
tention.
14
Section 47a-21 (d) (2) subsequently was amended by Public Acts 2016,
No. 16-65, § 37, in ways immaterial to the present appeal.
15
We recognize that the security deposit statute, as it existed at the time
that the plaintiff commenced this action, contained an additional subdivision
that concerned a landlord’s receipt of written notice of the tenant’s forward-
ing address. General Statutes (Rev. to 2013) § 47a-21 (d) (4) provides: ‘‘Any
landlord who does not have written notice of his tenant’s or former tenant’s
forwarding address shall deliver any written statement and security deposit
due to the tenant, as required by subdivision (2) of this subsection, within
the time required by subdivision (2) of this subsection or within fifteen
days after receiving written notice of such tenant’s forwarding address,
whichever is later.’’ (Emphasis added.) For purposes of the present analysis,
which is focused on the propriety of the defendant’s written statement of
damages to the plaintiff, we assume, arguendo, that the court correctly
determined that the plaintiff provided proper notice of his forwarding
address in accordance with § 47a-21 (d) (2).
16
The defendant’s written statement came in the form of an e-mail sent
to the plaintiff on June 14, 2013. At trial, the plaintiff acknowledged that
he received the defendant’s June 14, 2013 e-mail correspondence. Moreover,
the plaintiff on appeal raises no claim regarding the manner in which the
defendant furnished his written statement of damages.
17
In his May 31, 2013 e-mail to the plaintiff, which was admitted into
evidence at trial, the defendant stated in relevant part: ‘‘After [Rumberger]
left [the property] this morning, I noticed three additional damage issues
(i) that [I] did not observe before he left, (ii) which were not in the damaged
condition when you moved in, and (iii) which are theoretically, at least,
capable of being repaired:
‘‘[1] The front storm door . . . was in an open position when . . . I
arrived. As I suspect you are aware, the mechanism to open and close the
door is broken.
‘‘[2] There are two small chunks of the deck behind the family room which
have been removed; they look like they were cut out.
‘‘[3] There is water damage in the wall to the side of the shower in the
third hall bathroom on the second level. . . .
‘‘Please let me know . . . whether you are going to assume responsibility
for repairing these additional items. . . . These items are in addition to the
other items that we talked about this morning that are capable of being
repaired such as the blinds in the family room . . . missing shelf in middle
hall bathroom, screen door in master bedroom and shower door in the
middle hall bathroom . . . . The subject matter of this [e-mail] is confined
to the issues identified above—all of which you are capable of repairing if
you elect to do so. This [e-mail] is not intended to deal with a variety of
other matters which we will address within the next thirty days. Thank you.’’
18
The defendant stated in relevant part: ‘‘These items, including the items
which I am allowing you to repair, include the following:
‘‘[1] The front storm door which I am allowing you to repair within one
week of today;
‘‘[2] Two small chunks of the deck behind the family room sliding glass
doors which I have arranged to have repaired;
‘‘[3] Water damage to the wall to the side of the shower in the third
hall bedroom on the second level of the house which I have arranged to
have repaired;
‘‘[4] In the third hall bedroom on the second level of the house, the shower
door was completely off the track and I will need to confirm whether or
not it was satisfactorily repaired;
‘‘[5] Blinds in the family room (which your brother-in-law took with him
to have repaired) and which I am allowing you to repair within one week
of today;
‘‘[6] Missing shelf in middle hall bathroom which I have replaced; and
‘‘[7] Screen door in master bedroom which I will have replaced.’’
19
The defendant stated: ‘‘Pursuant to Paragraph 4 of the Leases, [the
plaintiff] was obligated:
‘‘(a) to use the [property] in compliance with all building, housing and
fire codes affecting health and safety . . . .
‘‘(b) to keep the [property] clean, neat and safe,
‘‘(c) to remove from the [property] all garbage, trash and other waste in
a clean and safe manner. . . .
‘‘(f) to not willfully or negligently destroy, deface, damage, impair or
remove any part of the [property] or permit anyone else to do so. . . .
‘‘(i) to keep the [property] in good condition, normal wear and tear
excepted, and to pay the first $100 of any cost for each repair. . . . Tenant
will pay the cost of any repair required because of Tenant’s misuse or
neglect.’’
20
Paragraph 15 of the second lease provides in relevant part: ‘‘[The plain-
tiff] shall not unreasonably withhold consent to [the defendant] entering
[the property]. . . . [The defendant or its] agents may, with [the plaintiff’s
consent, enter [the property] to . . . make necessary or agreed repairs and
alterations . . . .’’
21
At trial, the parties stipulated that the interest on the $8000 security
deposit was $46.62, and the attorney trial referee so found in his report.
22
Neither party to this appeal has argued that the statutory language in
question is ambiguous.
23
Despite his failure to raise a claim of pretext in his complaint, the
plaintiff argues that he advanced such a claim in his February 1, 2016 posttrial
brief and February 19, 2016 posttrial reply memorandum of law. In those
filings, the plaintiff did not separately brief that claim. Rather, he merely
asserted that the defendant’s claim of damages was ‘‘ ‘fabricated’ ’’ and
discussed Carrillo v. Goldberg, supra, 141 Conn. App. 299, stating: ‘‘The
facts in Carrillo are eerily similar to those of the present case in that the
landlord was found to have ‘fabricated an accounting of damages in order
to avoid the sanctions of § 47a-21 (d) (2)’ . . . and that [the] ‘defendants’
claimed damages were pretextual.’ ’’
As this court has observed, ‘‘[i]t is well settled that [o]ur case law and
rules of practice generally limit this court’s review to issues that are distinctly
raised at trial. . . . [T]he reason for the rule is obvious: to permit a party
to raise a claim on appeal that has not been raised at trial—after it is too
late for the trial court or the opposing party to address the claim—would
encourage trial by ambuscade, which is unfair to both the trial court and
the opposing party. . . . After the close of evidence, the defendant raised
its [claim] for the first time in a posttrial brief, effectively ambushing the
plaintiff. . . . The defendant has provided no authority, nor are we aware
of any, indicating that such strategy satisfies the preservation requirement
. . . . [T]o permit the appellant first to raise posttrial an issue that arose
during the course of the trial would circumvent the policy underlying the
requirement of timely preservation of issues. . . . It therefore is not surpris-
ing that the trial court did not address the [claim raised for the first time
in the posttrial brief] in any manner in its memorandum of decision. To
afford review to a claim that the defendant did not raise during trial as
a matter of strategy would contravene the purpose of the preservation
requirement.’’ (Citations omitted; emphasis in original; internal quotation
marks omitted.) AS Peleus, LLC v. Success, Inc., 162 Conn. App. 750, 758–60,
133 A.3d 503 (2016). Perhaps mindful of that precept, the attorney trial
referee in the present case did not address the plaintiff’s pretext argument
in his report. See, e.g., E & M Custom Homes, LLC v. Negron, 140 Conn.
App. 92, 98 n.4, 59 A.3d 262 (2013) (‘‘[t]he court concluded that the defendants
had raised this argument for the first time in their posttrial briefs and,
therefore, declined to consider it as it would be highly prejudicial to the
plaintiff’’), appeal dismissed, 314 Conn. 519, 102 A.3d 707 (2014).
24
In his report, the attorney trial referee found in relevant part: ‘‘The
defendant did not prove what caused the clothe[s] [dryer] to fail or malfunc-
tion or that there was any nexus between [the] plaintiff[’s] conduct and said
failure or malfunction. . . .
‘‘The defendant did not prove what caused the shower head and/or faucet
in the bedroom bath to fail or malfunction or that there was any nexus
between [the] plaintiff’s conduct and said failure or malfunction. . . .
‘‘The defendant did not prove what caused any of the claimed electrical
outlet and/or . . . switch failures or malfunctions, nor did the defendant
establish that there was any nexus between [the] plaintiff’s conduct and
said failure or malfunction. . . .
‘‘The defendant did not prove what caused the shower doors in either
bath to fail or malfunction or that there was any nexus between [the]
plaintiff’s conduct and said failures or malfunctions. . . .
‘‘The defendant failed to prove that the plaintiff was even aware that mud
or water accreted in the crawl space. . . .
‘‘The defendant failed to prove that there was any nexus between the
plaintiff’s conduct and the accretion of mud and/or water in the crawl
space. . . .
‘‘The plaintiff did not unreasonably deny the defendant access to the
property for the purpose of replacing windows. . . .
‘‘The defendant did not prove that the replacement of the windows on
the waterside of the premises, and which the evidence established were old
and had been in poor repair for an extended time, were of any immediate
necessity. . . .
‘‘The defendant did not prove that the plaintiff failed to pay for a week
of occupancy [in May, 2012]. . . .
‘‘The defendant did not prove that the damages caused by the plaintiff
[were] even a cause, much less the . . . proximate cause of his inability
to rent the property immediately.’’
25
The attorney trial referee found in relevant part: ‘‘The defendant proved
that the plaintiff failed to pay the sum of $506.45 due to the Stamford Water
Pollution Control Authority. . . .
‘‘The defendant proved that a shelf was missing from [the second] bath-
room in the upper hallway and that he was forced to replace the same at
a cost of $110. . . .
‘‘The defendant proved [that] the damages occurred to a screen door in
the master bedroom during the plaintiff’s possession of the premises and
that the defendant expended the sum of $120 to repair the same. . . .
‘‘The defendant proved that blinds, in addition to blinds repaired by the
plaintiff, were damaged and/or missing in the master bedroom and living
room and that the defendant expended the sum of $550 to replace the
same. . . .
‘‘The defendant proved that water damage had occurred to the wall adja-
cent to the shower in the third bathroom and that the defendant was forced
to expend the sum of $220 to rectify the damage. . . .
‘‘As a function of the foregoing damages proven by the defendant, the
plaintiff owes the defendant the sum of $1506.45.’’
26
In discussing those claims, the attorney trial referee noted that they
suffered from ‘‘evidentiary deficiencies . . . .’’ The attorney trial referee
found, as but one example, that, although ‘‘the defendant credibly established
that mud was discovered in the crawl space [on the property], no evidence
or testimony was submitted as to how or when this condition was created.
. . . Without establishing when the condition was created or that the plain-
tiff did something to cause this condition to occur, or for that matter was
even aware of the condition, this claim [of damages] cannot be credited.’’