RENAISSANCE MANAGEMENT COMPANY, INC. v.

ANDRE BARNES ET AL.

(AC 38879)

Lavine, Mullins and Bear, Js.

Syllabus

The plaintiff landlord sought, by way of a summary process action, to obtain

possession of an apartment that had been rented to the defendant tenant.

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-20 barred the action and that the plaintiff had failed to 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), did not apply in the circumstance of a municipal agency’s

finding of housing code violations as set forth 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

of the apartment. In their briefs, both parties argued that the issue raised

on appeal, that Visco applied to retaliatory eviction defenses brought

under § 47a-20 (2), satisfied the capable of repetition, 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 of the challenged action, as this court was

not persuaded that this court or our Supreme Court would not be able

to resolve in a later appeal, with a more complete factualrecord concerning the fitness and habitability aspect of each of the subject health code

violations, whether the fitness and habitability requirements enunciated

in Visco are applicable to a finding of municipal code violations pursuant

to § 47a-20 (2); furthermore, there was no merit to the plaintiff’s assertion

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 named
defendant’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).

Wesleigh Anderson, certified legal intern, with whom

was Jeffrey Gentes, forthe appellee (named defendant).
Opinion

BEAR, J. In this summary process action for possession of an apartment in New Haven, the plaintiff, Renaissance Management Co., Inc., appeals from the summary

judgment of the trial court rendered in favor of the

defendant Andre Barnes.1 The court granted the defendant’s motion for summary judgment on the ground that

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, did not apply. 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’s special defense ofretaliatory eviction under

§ 47a-20;(2) determined that its complaint did not allege

nonpayment of rent; and (3) interpreted the definition

of rent in § 47a-20a to include the United States Department of Housing and Urban Development’s payment of

its share of the agreed total rent for the premises such

that the total amount of money received by the plaintiff

was unaffected by the defendant’s alleged underpayment. Following oral argument before this court,

but before this courtrendered its judgment, the plaintiff

obtained possession of the apartment. Notified of this

fact, we ordered the parties to submit supplemental

briefs on the issue of mootness. Following ourreview of

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 of the 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 complained to a municipal authority about housing 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 summary judgment on the ground that § 47a-20 prohibited

the plaintiff from maintaining a summary process action

within six months of a complaint to, or notice by, a

government agency of a housing code violation. On

September 8, 2015, the plaintiff submitted its memorandum in opposition to the motion for summary judgment,

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 required
that the claimed defects constituting a violation of the

housing code materially affect health and safety, and

that the defendant failed to submit detailed information

regarding the requested repairs. The court granted the

defendant’s motion for summary judgment on February

5, 2016.

In its corrected memorandum of decision, the court

determined that § 47a-20 barred the plaintiff’s action,

and that the plaintiff had 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 of such code violations in the defendant’s

apartment, thereafter entering an order requiring remediation by the plaintiff within twenty-one days under

threat of criminal liability. The court also determined

that the exception claimed by the plaintiff under § 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 of this fact, we ordered supplemental briefing

on the issue of mootness and any possible exceptions

thereto because the sole remedy sought by, and available to, the plaintiff in its summary process action was

possession of the 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 plaintiff will continue without a decision

and, thus, the appeal is not moot.

‘‘Mootness is a question of justiciability that must be

determined as a threshold matter because it implicates

this court’s subject matter jurisdiction.’’ 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 of the controversy will result in practical

relief to the complainant.’’ (Internal quotation marks

omitted.) State v. McElveen, 261 Conn. 198, 217, 802
A.2d 74 (2002). ‘‘An actual controversy must exist not

only at the time the appeal is taken, but also throughout

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

an appellate court from granting any practical relief

through its disposition of the merits, a case has become

moot.’’ (Internal quotation marks omitted.) In re Emma

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 of the appeal, the defendant is no longer in possession 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,the appeal is clearly moot, unless an exception

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

retaliatory eviction defenses brought under § 47a-20 (2),

satisfies the capable of repetition, yet evading review

exception to the mootness doctrine. The plaintiff also

argues thatthe collateral consequences doctrine applies

because the court’s interpretation of § 47a-20 (2) will

allow other tenants to utilize it as a defense, and, therefore, the appeal is not moot. We determine that neither

of the claimed exceptions applies and, thus, the appeal

is moot.

‘‘To qualify under the capable of repetition, 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

either the same complaining party or a reasonably identifiable group for whom that party can be said to act

as surrogate. Third, the question must have some public

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 of the exception. If an

action or its effects is not of inherently limited duration,

the action can be reviewed the next time it arises, when

it will present an ongoing live controversy. Moreover,

ifthe question presented is not strongly likely to become

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 reach
out 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 re Priscilla A., 122 Conn.

App. 832, 836–37, 2 A.3d 24 (2010).

The present appeal fails to meet the first requirement

of the capable of repetition, yet evading review exception. The action challenged in this case is that the plaintiff commenced a summary process action in violation

of § 47a-20 (2) within six months of a finding by a

municipal agency of a 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 of Presidential Village, LLC v. Phillips, 325Conn. 394, A.3d (2017),

and Fairchild Heights, Inc. v. Dickal, 305 Conn. 488,

45 A.3d 627 (2012). This court recently also has reached

the merits of appeals in summary process cases, including the residential cases of Holdmeyer v. Thomas, 167

Conn. App. 544, 144 A.3d 1052 (2016) (reversing trial

court and holding that plaintiff failed to meet any exceptions to § 47a-20), Housing Authority v. Weitz, 163

Conn. App. 778, 134 A.3d 749 (2016) (judgment of possession reversed and trial court ordered to vacate

default judgment), 136 Field Point Circle Holding 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 summary process proceedings as resident of mobile home park), and Konover

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 by this court. In light of this recent

history, we are not persuaded that this court or our

Supreme Court will not be able to resolve in a later

appeal, with a more complete factualrecord concerning

the fitness and habitability aspect of each of the code

violations, whether the Visco fitness and habitability
gloss 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 of this appeal, after review of the parties’ arguments in support of the application of the capable of

repetition, yet evading review mootness exception, and

in light of the somewhat limited contents of the 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 plaintiff also argues that it faces collateral consequences from the decision of the trial court such that

the appeal is not moot. ‘‘Our Supreme Court . . . has

allowed us to retain jurisdiction where the matter being

appealed creates collateral consequences prejudicial to

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 on justiciability 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 a surrogate, calling for a determination 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 applicable to § 47a-20 (2) would give rise to prejudicial 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 Recovery
Authority, 291 Conn. 489, 497 n.17, 970 A.2d 570 (2009)

(contempt finding has collateral consequences on party

as case continues); Office of the Governor v. Select

Committee of Inquiry, 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, of the 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 of possible

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 of Children and Families proceedings if she wanted to become

foster parent again); State v. McElveen, supra, 261 Conn.

212–16 (appeal from conviction of violation of probation was not rendered moot by defendant’s completion

of sentence because conviction could impact his reputation and ability to obtain employment or preconviction

bail in future); Crest Pontiac Cadillac, Inc. v. Hadley,

239 Conn. 437, 439–40 n.3, 685 A.2d 670 (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

summary process action resulting from eviction, 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 potentially
applicable 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

not moot or that an exception to mootness applies to them. The other claims

also became moot when the defendant vacated and surrendered possession

of the apartment to the plaintiff.