RENAISSANCE MANAGEMENT COMPANY, INC. v.

ANDRE BARNES ET AL. (AC 38879)
Lavine, Mullins and Bear, Js.

Syllabus

The plaintifflandlord sought, byway ofa summaryprocess action, to obtain possessionofanapartmentthathadbeenrentedtothe defendanttenant. The plaintiff served the defendant with a notice to quit possession of the apartment and soon thereafter commenced this action. The defendant filed a special defense claiming that the retaliatory eviction statute (§ 47a-20) barred the plaintiff’s action because the defendant had complained to a municipal authority about housing code violations related to certain repairs in the apartment and that authority had found violations of the housing code within six months of the commencement of the action. The defendant then filed a motion for summary judgment

on that ground. The trial court granted the motion, concluding that § 47a-20barredthe actionandthattheplaintiffhadfailedto demonstrate that any of the statutory (§ 47a-20a) exceptions to § 47a-20 applied. The trial court specifically determined that the fitness and habitability requirements enunciated in Visco v. Cody (16 Conn. App. 444), wherein this court held that the defects alleged to be in need of repair must materially affect a leased unit’s fitness and habitability to be a violation of§ 47a-20 (3), didnot applyinthe circumstance ofamunicipal agency’s finding ofhousing codeviolations as setforth in § 47a-20 (2). Thereafter, the defendant appealed to this court, claiming, inter alia, that the trial court erred in determining that Visco was inapplicable to his defense of retaliatory eviction under § 47a-20. Following oral argument before this court, but before the court rendered its judgment, the defendant vacated and relinquished possession of the subject apartment to the plaintiff, and the court ordered supplemental briefing on the issue of mootness and any possible exception thereto because the sole remedy available to the plaintiff in its summary process action was possession ofthe apartment. Intheirbriefs, bothparties arguedthatthe issue raised

on appeal, that Visco applied to retaliatory eviction defenses brought under § 47a-20 (2), satisfiedthe capable ofrepetition, yet evading review exception to the mootness doctrine. Held that the plaintiff’s appeal

was dismissed because it was moot and no exception to the mootness doctrine was applicable to the facts and circumstances of the appeal: in the specific context of this appeal and in light of the limited factual record regarding the mootness issue and the recent procedural history of the case, the parties failed to satisfy the first prong of the capable of repetition, yet evading review exception to the mootness doctrine, which pertains to the length ofthe challenged action, as this court was not persuaded that this court or our Supreme Court would not be able toresolveinalaterappeal, withamore completefactualrecordconcerning the fitness and habitability aspect ofeach ofthe subject health code violations, whetherthe fitness and habitability requirements enunciated in Visco are applicableto afinding ofmunicipal codeviolationspursuant to § 47a-20 (2); furthermore, therewasnomerittotheplaintiff’sassertion that the failure of this court to determine in this appeal whether the fitness and habitability gloss previously applied to § 47a-20 (3) in Visco

was applicable to § 47a-20 (2) would give rise to prejudicial collateral consequences to landlords in future summary process cases, our appellate courts having applied the collateral consequences doctrine only to instances in which the decision of the trial court gave rise to consequences specific to a party to the case. Argued March 16—officially released August 22, 2017

Procedural History Summary process action brought to the Superior Court in the judicial district of New Haven, Housing Session, where the court, Foti, J ., denied the nameddefendant’s motion to dismiss; thereafter, the court, Ecker, J., granted the named defendant’s motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court; subsequently, the court, Ecker, J., issued a corrected memorandum of decision. Appeal dismissed

. Hugh D. Hughes, with whom was David E. Schancupp, for the appellant (plaintiff). WesleighAnderson, certified legal intern, with whom

wasJeffreyGentes, forthe appellee (nameddefendant).Opinion BEAR, J. In this summary process action for possessionofanapartmentinNewHaven, theplaintiff, Renaissance Management Co., Inc., appeals fromthe summary judgment of the trial court rendered in favor of the defendant Andre Barnes.1 The court granted the defendant’smotionforsummaryjudgmentonthe groundthat the plaintiff was prohibited by the retaliatory eviction statute; General Statutes § 47a-20; from initiating the action and that the exceptions claimed by the plaintiff under General Statutes § 47a-20a, which would preclude application of § 47a-20 and thereby allow it to initiate the action, didnotapply. On appeal, the plaintiff claims that the trial court erred when it (1) determined that this court’s holding in Visco v. Cody, 16 Conn. App. 444, 547 A.2d 935 (1988), was inapplicable to the defendant’sspecialdefense ofretaliatoryevictionunder § 47a-20; (2) determinedthatitscomplaintdidnotallege nonpayment of rent; and (3) interpreted the definition ofrent in § 47a-20ato include the United States Department ofHousing and Urban Development’s payment of its share of the agreed total rent for the premises such that the total amount ofmoney received bythe plaintiff

was unaffected by the defendant’s alleged underpayment. Following oral argument before this court, butbeforethis courtrendereditsjudgment, theplaintiff obtained possession of the apartment. Notified of this fact, we ordered the parties to submit supplemental briefs onthe issue ofmootness. Following ourreviewof the parties’ supplemental briefs, we dismiss the appeal because it is moot and no exception to the mootness doctrine is applicable to the facts and circumstances of this appeal.
The following facts and procedural history are not in dispute. The defendant was served with a notice to quit possession ofthe apartment on September 3, 2014. This summary process action was commenced on September 15, 2014. The defendant filed a special defense claiming that the retaliatory eviction statute, § 47a-20, barred the plaintiff’s summary process action because he had complainedto amunicipal authorityabouthousing code violations and such authority had found violations of the housing code within six months of the commencement of the action.
On August 10, 2015, the defendant moved for summaryjudgment on the ground that § 47a-20 prohibited theplaintifffrommaintainingasummaryprocessaction within six months of a complaint to, or notice by, a government agency of a housing code violation. On September8, 2015, the plaintiffsubmitted its memoranduminoppositiontothemotionforsummaryjudgment, arguing that the reason for the action was the ‘‘fraud committed by the defendant in failing to report his income, which constitut[ed] a material violation of his lease.’’ The plaintiff also argued that Visco requiredthat the claimed defects constituting a violation of the housing code materially affect health and safety, and thatthe defendantfailedto submit detailed information regarding the requested repairs. The court granted the defendant’s motion forsummaryjudgment on February 5, 2016.
In its corrected memorandum of decision, the court determined that § 47a-20 barred the plaintiff’s action, and that the plaintiffhad failed to demonstrate that any exception under § 47a-20a to the § 47a-20 bar applied. Specifically, the court concluded that, contrary to the plaintiff’s assertion, the fitness and habitability requirements enunciated in Visco, relating to requested ‘‘repairs’’ as set forth in § 47a-20 (3), did not apply in the circumstance of a municipal agency’s finding of housing code violations as set forth in § 47a-20 (2). The court determined that § 47a-20 (2) required an actual finding by a municipal agency of a code violation, and concluded that New Haven’s Livable City Initiative, the relevant municipal agency in the present case, found the existence ofsuch code violations in the defendant’s apartment, thereafter entering an orderrequiring remediation by the plaintiff within twenty-one days under threat of criminal liability. The court also determined that the exception claimed by the plaintiffunder § 47a20a (a) (1) was inapplicable to the facts of this case. Accordingly, the court granted the defendant’s motion for summary judgment. This appeal followed.
The parties agree that, following oral argument before this court on March 16, 2017, the defendant vacated and relinquished possession of the plaintiff’s property on May 10, 2017. After the parties apprised this court ofthis fact, we ordered supplementalbriefing

on the issue of mootness and any possible exceptions thereto because the sole remedy sought by, and available to, the plaintiffin its summary process action was possession ofthe premises. The parties have since submitted supplemental briefs, and each argues that the ‘‘capable of repetition, yet evading review’’ exception to mootness applies to this case. The plaintiff also argues in its supplemental brief that collateral consequences to the plaintiffwill continue without a decision and, thus, the appeal is not moot. ‘‘Mootness is a question ofjusticiability that must be determined as a threshold matter because it implicates this court’s subject matter jurisdiction.’’ Wendy V. v. Santiago, 319 Conn. 540, 545, 125 A.3d 983 (2015). ‘‘Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute

. . . (2) that the interests of the parties be adverse

. . . (3) that the matter in controversy be capable of being adjudicated by judicial power

. . . and (4) that the determination ofthe controversywill result inpractical relief to the complainant.’’ (Internal quotation marks omitted.) State v. McElveen, 261 Conn. 198, 217, 802A.2d 74 (2002). ‘‘An actual controversy must exist not onlyatthe time the appeal is taken, but also throughout the pendency ofthe appeal.

. . . When, during the pendency ofan appeal, events have occurred that preclude

an appellate court from granting any practical relief through its disposition ofthe merits, a case has become moot.’’ (Internalquotationmarks omitted.)InreEmma F., 315 Conn. 414, 423–24, 107 A.3d 947 (2015). ‘‘This court has consistently held that an appeal from a summary process judgment becomes moot where, at the time ofthe appeal, the defendant is no longerinpossession of the premises.’’ (Internal quotation marks omitted.) Friedman v. Gomez, 172 Conn. App. 254, 260, A.3d (2017).
As the defendant is no longer in possession of the property,theappealisclearlymoot, unlessanexception applies and the parties do not contest this conclusion. Recognizing this, the parties argue that the issue raised

on appeal, that this court’s holding in Visco applies to retaliatoryevictiondefensesbroughtunder § 47a-20 (2), satisfies the capable of repetition, yet evading review exception to the mootness doctrine. The plaintiff also arguesthatthe collateralconsequencesdoctrineapplies because the court’s interpretation of § 47a-20 (2) will allow othertenants to utilize it as a defense, and, therefore, the appeal is not moot. We determine that neither ofthe claimed exceptions applies and, thus, the appeal is moot. ‘‘To qualify under the capable ofrepetition, yet evading review exception, three requirements must be met. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation

can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending

case will arise again in the future, and that it will affect eitherthe same complainingparty or areasonablyidentifiable group for whom that party can be said to act
as surrogate. Third, the questionmusthave somepublic importance. Unless all three requirements are met, the appeal must be dismissed as moot.’’ (Internal quotation marks omitted.) Wendy V. v. Santiago, supra, 319 Conn. 545–46.
‘‘The first element in the analysis pertains to the length of the challenged action.

. . . The basis for this element derives from the nature ofthe exception. Ifan action orits effects is not ofinherentlylimited duration, the action canbe reviewed the nexttime it arises, when it will present an ongoing live controversy. Moreover, ifthequestionpresentedisnotstronglylikelytobecome moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced. Thus, there is no reason to reachout to decide the issue as between parties who, by hypothesis, no longer have any present interest in the outcome.

. . . [A] party typically satisfies this prong if there exists a functionally insurmountable time [constraint]

. . . or the challenged action had an intrinsically limited lifespan.’’ (Citations omitted; internal quotation marks omitted.) In rePriscillaA., 122 Conn. App. 832, 836–37, 2 A.3d 24 (2010).
The present appeal fails to meetthe first requirement of the capable of repetition, yet evading review exception. The action challenged in this case is thatthe plaintiff commenced a summary process action in violation of § 47a-20 (2) within six months of a finding by a municipal agency ofa housing code violation. The specific legal issue raised by the plaintiff is whether the holding in Visco, that the defects alleged to be in need of repair must materially affect a leased unit’s fitness and habitability to be a violation of § 47a-20 (3) (repairs), was also applicable in the circumstance of a municipal agency’s finding of housing code violations pursuant to § 47a-20 (2).
Our Supreme Court recently has reached the merits of appeals in summary process cases, including the residential summary process cases ofPresidential Village, LLCv.Phillips, 325Conn. 394, A.3d (2017), and Fairchild Heights, Inc

. v. Dickal, 305 Conn. 488, 45A.3d 627 (2012). This court recently also has reached the merits ofappeals in summaryprocess cases, including the residential cases ofHoldmeyer v. Thomas, 167 Conn. App. 544, 144 A.3d 1052 (2016) (reversing trial courtandholdingthatplaintifffailedto meetanyexceptions to § 47a-20), Housing Authority v. Weitz, 163 Conn. App. 778, 134 A.3d 749 (2016) (judgment ofpossession reversed and trial court ordered to vacate defaultjudgment), 136FieldPoint CircleHolding Co., LLC v. Razinski, 162 Conn. App. 333, 131 A.3d 1213 (2016) (defendants entitled to hearing on merits of motion for judgment of possession), Kenosia Commons, Inc

. v. DaCosta, 161 Conn. App. 668, 129 A.3d 730 (2015) (defendant subject to summaryprocess proceedingsasresidentofmobilehomepark), andKonover Residential Corp. v. Elezazy, 148 Conn. App. 470, 87 A.3d 1114 (judgments of possession affirmed), cert. denied, 312 Conn. 908, 93 A.3d 592 (2014).
In the present case, as previously noted in this opinion, the appeal was argued in March, 2017, approximately two and one-half years after the service of the September 3, 2014 notice to quit. When the defendant vacated the premises in May, 2017, this appeal was under consideration bythis court. In light ofthis recent history, we are not persuaded that this court or our Supreme Court will not be able to resolve in a later appeal, withamore completefactualrecordconcerning the fitness and habitability aspect of each of the code violations, whether the Visco fitness and habitabilitygloss to the meaning of repairs, as set forth in § 47a20 (3), is applicable to a finding of code violations, pursuant to § 47a-20 (2). Accordingly, in the specific context ofthis appeal, after review ofthe parties’ arguments in support of the application of the capable of repetition, yet evading review mootness exception, and in light ofthe somewhat limited contents ofthe factual record on which we must rely in part to resolve the Visco issue, we conclude that the first prong of that exception has not been satisfied by the parties. See In

re Priscilla A., supra, 122 Conn. App. 832.
The plaintiffalso arguesthatitfaces collateral consequences from the decision of the trial court such that the appeal is not moot. ‘‘Our Supreme Court

. . . has allowed us to retainjurisdictionwhere the matterbeing appealed creates collateral consequences prejudicialto the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot.

. . . [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations onjusticiability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available from the reversal of the judgment

. . . the collateral consequences doctrine acts as asurrogate, calling for adetermination whether a decision in the case can afford the litigant some practical relief in the future.’’ (Citation omitted; internal quotation marks omitted.) Iacurci v. Wells, 108 Conn. App. 274, 277, 947 A.2d 1034 (2008).
The plaintiff argues that the failure of this court in this appeal to determine whether the Visco fitness and habitability gloss previously applied to § 47a-20 (3) is also applicableto § 47a-20 (2) wouldgiverisetoprejudicial collateral consequences to landlords in future summary process cases.2 The plaintiff, however, argues for

an overbroad application of the collateral consequences doctrine.
Our appellate courts have applied the doctrine to instances in which the decision of the trial court gave rise to collateral consequences specific to a party to the case. In Putman v. Kennedy, 279 Conn. 162, 175, 900 A.2d 1256 (2006), our Supreme Court applied the doctrine in a mooted case where the trial court’s decision would harm the defendant’s reputation. Although there are a diverse ‘‘array of collateral consequences that will preclude dismissal on mootness grounds’’; id., 169; we are not aware of our courts having applied the doctrine to collateral consequences that do not directly and specifically affect the appealing party. See, e.g., New Hartford v. Connecticut Resources RecoveryAuthority, 291 Conn. 489, 497 n.17, 970 A.2d 570 (2009) (contemptfinding has collateral consequences onparty
as case continues); Office of the Governor v. Select Committee ofInquiry, 271 Conn. 540, 549–50, 858 A.2d 709 (2004) (appeal not rendered moot by investigative committee statement that it would not enforce subpoena directly ‘‘because of the collateral consequence of the potential for an article of impeachment on the basis, at least in part, ofthe governor’s noncompliance with the subpoena’’); Wallingford v. Dept. of Public Health, 262 Conn. 758, 769–70, 817 A.2d 644 (2003) (appeal not rendered moot by passage of special act addressing issue in case because administrative ruling that town is ‘‘water company’’ for purposes ofpossible construction of golf course on watershed land ‘‘potentially subjects’’ town to collateral consequences of Department of Public Health’s jurisdiction and other statutory obligations); Williams v. Ragaglia, 261 Conn. 219, 227–31, 802 A.2d 778 (2002) (appeal from revocation of plaintiff’s special study foster care license as consequence for violating foster care regulations was not rendered moot by grant to plaintiff of permanent custody of foster children at issue because of revocation’s effect on her reputation and fact that revocation could be used against her in future Department ofChildren and Familiesproceedings ifshe wantedto become fosterparentagain);Statev.McElveen, supra, 261 Conn. 212–16 (appeal from conviction of violation of probation was not rendered moot by defendant’s completion ofsentencebecause convictioncouldimpacthisreputation and ability to obtain employment or preconviction bail in future); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439–40n.3, 685A.2d670 (1996) (outcome of other case party had pending affected by court’s determination in appeal); Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993) (potential prejudicial consequences to defendant in summaryprocess actionresultingfromeviction, including ability to obtain future housing).
In summary, the defendant has vacated and surrendered possession of the premises to the plaintiff. In the absence of either party demonstrating the application of a recognized exception to the mootness doctrine, the appeal is moot.3
The appeal is dismissed.
In this opinion the other judges concurred.

1 The plaintiff brought this action against Barnes, Jane Doe, and John Doe. Jane Doe and John Doe are not parties to this appeal and, therefore, all references to the defendant herein are to Barnes.

2 The plaintiff also argues that other tenants may report minor potential housing code violations to authorities rather than to their landlord when the tenant is in violation of its lease to prevent eviction for six months. Without opining on the meaning of the provisions of § 47a-20 (2), we note that this may be one of those instances where the plaintiff’s sought after remedy lies with the General Assembly because the current statutory language omits any requirement that a health code violation must implicate a leased unit’s fitness and habitability. Additionally, the alleged consequences that are of concern to the plaintiff are general consequences potentiallyapplicable to any residential landlord, not specific consequences unique to the plaintiff. We see this argument, therefore, as addressed to the capable of repetition and public interest prongs of the capable of repetition, yet evading review exception to mootness rather than the collateral consequences exception.

3 The parties’ arguments regarding the exceptions to mootness concern only the court’s determination of the nonapplicability of Visco to § 47a-20 (2). Neither party has argued that the other claims raised on appeal are notmoot orthat an exceptionto mootness applies to them. The other claims also became moot when the defendant vacated and surrendered possession of the apartment to the plaintiff.