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ROGALIS, LLC v. MICHELLE LEE
VAZQUEZ ET AL.
(AC 44500)
Elgo, Moll and Suarez, Js.
Syllabus
The plaintiff sought, by way of summary process, immediate possession of
certain residential property that it had acquired and that was occupied
by the named defendant, V. The plaintiff alleged that it did not have a
tenancy agreement with V. Although the state had a temporary morato-
rium on evictions per the governor’s executive orders issued in response
to the COVID-19 pandemic, the plaintiff alleged one of the recognized
exceptions created by those orders, namely, that the plaintiff’s sole
member, R, had a bona fide intention to use the dwelling unit as his
principal residence. During trial, R testified that the plaintiff purchased
the premises in October, 2020, from S Co., and that he had a bona fide
intention to use the premises as his principal residence. V, however,
indicated that the plaintiff brought this action as a result of a loophole
in a prior summary process action brought by S Co. against V and her
estranged husband, D, and that she did not believe R had a bona fide
intent to occupy the premises as his principal residence. In that prior
summary process action, S Co., alleging that D was delinquent in his
rental payments, commenced its action shortly after V had commenced
a dissolution action against D. As a result, the trial court stayed S Co.’s
action through the pendency of the dissolution action, which was still
pending, and, therefore, temporarily removed S Co.’s right to maintain
the summary process action in the absence of an order from the family
court. S Co. thereafter conveyed the property to the plaintiff. Following
trial on the plaintiff’s summary process action, the court issued a memo-
randum of decision, concluding that the plaintiff had not established
that its ownership rights to the premises included the right to maintain
the summary process action. Thereafter, the trial court rendered judg-
ment dismissing the action, from which the plaintiff appealed to this
court. On appeal, the plaintiff claimed, inter alia, that the trial court
erred by dismissing the summary process action on the basis of its
posttrial consideration of extra-record evidence, namely, S Co.’s prior
summary process action. Although S Co.’s action was eventually dis-
missed for dormancy, the trial court observed that S Co. could not as
a matter of law have conveyed to the plaintiff the right to maintain a
summary process action against V because, as a result of the stay, it
did not have such a right of its own. Held that the trial court abused
its discretion in taking judicial notice of S Co.’s summary process action
without providing the parties an opportunity to address it either at trial
or in a posttrial brief: although notice is not always required when a
court takes judicial notice, parties are entitled to receive notice and
have an opportunity to be heard for matters susceptible of explanation
or contradiction; moreover, the trial court relied on the facts of S Co.’s
summary process action in concluding that the plaintiff did not have
the right to bring the present action but did not give the parties an
opportunity to address whether the stay that was entered in S Co.’s
action prevented the current plaintiff from pursuing its own action
against V; accordingly, the judgment was reversed and a new trial
ordered.
Submitted on briefs September 15, 2021—officially released February 8, 2022
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of Fairfield, Housing Ses-
sion at Bridgeport, and tried to the court, Spader, J.;
judgment of dismissal, from which the plaintiff
appealed to this court. Reversed; new trial.
Jonathan J. Klein, for the appellant (plaintiff).
Marissa Vicario and Nilda R. Havrilla, for the appel-
lee (named defendant).
Opinion
SUAREZ, J. The plaintiff, Rogalis, LLC, appeals from
the judgment of the trial court dismissing its summary
process action against the named defendant, Michelle
Lee Vazquez.1 On appeal, the plaintiff claims that the
trial court erred by (1) holding that the plaintiff did
not acquire from its predecessor in title, pursuant to a
quitclaim deed, the right to evict the defendant, (2)
dismissing the summary process action on the ground
that the plaintiff’s sole member did not have the bona
fide intention to use the dwelling as his principal resi-
dence, and (3) dismissing the summary process action
on the basis of the court’s posttrial consideration of
extra-record evidence, namely, a prior summary pro-
cess action brought by the plaintiff’s predecessor in
title against the defendant and her estranged husband.
We conclude that the trial court abused its discretion
in taking judicial notice of the prior summary process
action without providing the parties an opportunity to
address it either at trial or in a posttrial brief.2 We,
therefore, reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. By complaint dated October 30,
2020, the plaintiff commenced this summary process
action seeking immediate possession of the premises
located at 1335 James Farm Road in Stratford (prem-
ises). The plaintiff alleged that it had purchased the
premises on or about October 7, 2020, and, therefore,
had become the landlord of the premises. The plaintiff
further alleged that the defendant was in possession of
the premises, that the plaintiff and the defendant never
had an agreement as to monetary compensation for
the premises, and that it was the plaintiff’s ‘‘bona fide
intention to use the dwelling unit as the landlord’s prin-
cipal residence. (No tenancy agreement between the
parties.)’’ On October 19, 2020, prior to the commence-
ment of the summary process action, the plaintiff had
served a notice to quit on the defendant demanding that
she vacate the premises on or before October 25, 2020.
On November 6, 2020, the self-represented defendant
filed an answer, admitting the allegations of the plain-
tiff’s complaint except the allegation that it was the
landlord’s bona fide intention to use the dwelling as
the landlord’s principal residence. As to this allegation,
the defendant responded that she did not know.3 A
trial took place before the court on January 13, 2021.
Following trial, the court issued a memorandum of deci-
sion in which it concluded that the plaintiff had not
established that its ownership rights to the premises
included the right to maintain this action. The court
thereafter rendered judgment dismissing the summary
process action. The plaintiff then filed the present
appeal.
On appeal, the plaintiff claims, inter alia, that the trial
court erred by dismissing this action on the basis of its
posttrial consideration of extra-record evidence,
namely, a prior summary process action brought by the
former owner of the premises, Success, Inc., against the
defendant and her estranged husband, Dahill Donofrio.
This extra-record evidence reflected that Success, Inc.,
had commenced the prior action shortly after the defen-
dant had commenced a dissolution action against Dono-
frio. The trial court had stayed the prior action through
the pendency of the defendant’s dissolution action,
which was still pending. Thereafter, Success, Inc., con-
veyed its rights in the premises to the plaintiff. Although
the court noted that the prior action was eventually
dismissed for dormancy, it observed that Success, Inc.,
could not as a matter of law have conveyed to the
plaintiff the right to maintain a summary process action
against the defendant because, as a result of the stay,
it did not have such a right of its own.
As we explain in more detail later in this opinion,
the court expressly relied on the prior summary process
action in determining that the plaintiff did not have the
right to maintain the present summary process action
against the defendant. The defendant contends that the
trial court properly took judicial notice of the prior
summary process action. We conclude that the trial
court abused its discretion in taking judicial notice of
the prior summary process action without providing
the parties an opportunity to address it either at trial
or in a posttrial brief.
Before addressing the merits of the plaintiff’s claim,
we briefly set forth the legal basis pursuant to which
the plaintiff brought this summary process action. On
April 10, 2020, Governor Ned Lamont issued Executive
Order No. 7X, which modified General Statutes § 47a-
23 by placing a moratorium on the issuance of notices
to quit and the commencement of summary process
actions through June 30, 2020. This executive order
provided, in part, that ‘‘minimizing evictions during this
public health period is critical to controlling and reduc-
ing the spread of COVID-19 by allowing all residents to
stay home or at their place of residence . . . .’’ Execu-
tive Order No. 7X (April 10, 2020). An exception to
the moratorium was for notices to quit and summary
process actions brought on the basis of serious nuisance
as defined in General Statutes § 47a-15. Executive Order
No. 7DDD, issued on June 29, 2020, created another
exception to the moratorium ‘‘for nonpayment of rent
due on or prior to February 29, 2020 . . . .’’ Executive
Order No. 7OOO, issued on August 21, 2020, created
an exception to the moratorium ‘‘for a bona fide inten-
tion by the landlord to use such dwelling unit as [the]
landlord’s principal residence’’ provided that the notice
to quit is not delivered during the term of any existing
rental agreement. The present action was brought pur-
suant to Executive Order No. 7OOO.
We now set forth the following additional facts that
are necessary for the resolution of the plaintiff’s claim.
Prior to trial, the plaintiff filed the affidavit of Joseph
Rogalis, the sole member of the plaintiff. In the affidavit,
Rogalis averred, inter alia, that the plaintiff purchased
the subject premises on October 7, 2020, and that he had
a bona fide intent to use the premises as his principal
residence. Rogalis further averred that his mother lived
in Oxford and his father lived in Prospect and it was
his intention to relocate to Stratford so that he could
live in close proximity to his parents and care for them.
The plaintiff also filed a certified copy of a quitclaim
deed recorded on October 7, 2020, pursuant to which
the plaintiff acquired the premises from Success, Inc.
‘‘for One Dollar ($1.00) and other valuable consider-
ation . . . .’’ This deed was signed by Gus Curcio, Sr.,
the president of Success, Inc.
At trial, Rogalis testified, consistent with his affidavit,
that the plaintiff purchased the premises on or about
October 7, 2020, with a bona fide intent that he would
use the premises as his principal residence. Rogalis
testified that he was a resident of Tavares, Florida and
was relocating in order to assist in the health care of his
mother, who lived in Oxford. In response, the defendant
indicated that the plaintiff brought this action as a result
of a ‘‘loophole’’ in a prior judgment, and that she did
not believe that Rogalis had a bona fide intent to occupy
the premises as his principal residence.4
In its memorandum of decision, the court stated that,
‘‘[f]ollowing the conclusion of the trial, the court pieced
together what the defendant was referring to as a ‘loop-
hole.’ While the court did not recognize it until consider-
ing the case afterwards, the defendant had been a partic-
ipant in previous matters before it. Specifically, in the
matter of Success, Inc. v. Donofrio, Superior Court,
judicial district of Fairfield, Housing Session at Bridge-
port, Docket No. CV-XX-XXXXXXX-S, the court had con-
ducted a trial and, on January 10, 2020, entered a stay
of proceedings through the pendency of the defendant’s
divorce matter . . . . In the Donofrio case, the previ-
ous landlord testified that the defendant’s ex-husband
was delinquent in his rental payments on this very
[premises].’’ The court further noted that the previous
case had been dismissed for dormancy, but the divorce
was still pending and was scheduled for trial in the
coming months.
In its decision, the court stated that ‘‘[c]ertainly, the
court, when entering that stay, could not have antici-
pated that the divorce matter would still be pending a
year later. The pandemic’s impact on court dockets has
created many challenges. This court certainly believes
that there does come a time when possession must be
returned to the property owner absent rental or use
and occupancy payments by the defendant. That time
probably has come and would have been considered
by this court in an honest application before it to termi-
nate the stay. Instead, the plaintiff has come before this
court (with the same attorney who handled the prior
matter) without disclosing this prior case or the court’s
ruling in it at trial.’’
The court further stated that ‘‘[the plaintiff] could
only obtain through a quitclaim deed from Success,
Inc., rights that were still in Success, Inc.’s ‘bundle of
rights’ at the time of conveyance. The court, in Success,
Inc. v. Donofrio, supra, Superior Court, Docket No. CV-
XX-XXXXXXX-S, temporarily removed the right to maintain
a summary process action absent order from the Bridge-
port family court from Success, Inc.’s ‘bundle of rights’
it was able to convey. A conveyance of the property to
another owner does not create additional rights that
did not exist before the conveyance. Success, Inc., had
no ability, absent an additional court order, to maintain
a summary process action against this defendant. That
right does not magically rematerialize if an action is
brought by a new plaintiff.’’
According to the plaintiff, the court’s dismissal of
this action was predicated on its belief that the quitclaim
deed from Success, Inc., to the plaintiff did not confer
on the plaintiff the right to evict the defendant. The
plaintiff contends that the court’s conclusion was
‘‘solely the product of the trial court having considered
extra-record evidence, which it sought out after the
close of the evidence, namely, that a previous summary
process action brought by the plaintiff’s grantor, in
which the defendant and her estranged husband were
both defendants, [had] been interlocutorily stayed at
one point before it was dismissed for dormancy.’’
According to the plaintiff, the trial court should not
have considered that extra-record evidence without
affording the plaintiff an opportunity to address it at
trial or in a posttrial brief. The defendant contends, in
response, that the trial court properly took judicial
notice of the prior summary process action. We con-
clude that the court abused its discretion in taking judi-
cial notice of the prior summary process action without
providing the parties the opportunity to address it either
at trial or in a supplemental brief.
In considering this claim, we note that the trial court
did not expressly characterize its reliance on the facts
concerning the prior summary process action as it hav-
ing taken ‘‘judicial notice’’ of those facts. In its decision,
however, the court discussed the prior summary pro-
cess action and attached a copy of the order staying
that action pending the defendant’s divorce matter. As
‘‘ ‘[t]here is no question that the trial court may take
judicial notice of the file in another case, whether or
not the other case is between the same parties’ ’’; Drabik
v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995);
it appears that the court took judicial notice of the prior
summary process action. See Ferraro v. Ferraro, 168
Conn. App. 723, 731–33, 147 A.3d 188 (2016) (court
did not indicate, in its memorandum of decision or
articulation, that it had taken judicial notice of supple-
mental information in calculating defendant’s net
income, but if it did take judicial notice of certain facts,
it should have provided parties with opportunity to
be heard).
‘‘A trial court’s determination as to whether to take
judicial notice is essentially an evidentiary ruling, sub-
ject to an abuse of discretion standard of review. . . .
In order to establish reversible error, the [plaintiff] must
prove both an abuse of discretion and a harm that
resulted from such abuse. . . . In reviewing a trial
court’s evidentiary ruling, the question is not whether
any one of us, had we been sitting as the trial judge,
would have exercised our discretion differently . . . .
Rather, our inquiry is limited to whether the trial court’s
ruling was arbitrary or unreasonable.’’ (Internal quota-
tion marks omitted.) Scalora v. Scalora, 189 Conn. App.
703, 713, 209 A.3d 1 (2019).
‘‘Notice to the parties is not always required when a
court takes judicial notice.’’ Moore v. Moore, 173 Conn.
120, 121, 376 A.2d 1085 (1977). ‘‘The court may take
judicial notice without a request of a party to do so.
Parties are entitled to receive notice and have an oppor-
tunity to be heard for matters susceptible of explanation
or contradiction, but not for matters of established fact,
the accuracy of which cannot be questioned.’’ Conn.
Code Evid. § 2-2 (b). ‘‘Even when a fact . . . is not
open to argument, it may be the better practice to give
the parties an opportunity to be heard.’’ Moore v. Moore,
supra, 122; see also E. Prescott, Tait’s Handbook of
Connecticut Evidence (6th Ed. 2019) § 2.6.3, p. 112
(‘‘‘[b]etter practice,’ if not principles of due process,
clearly favors an opportunity to be heard on any matter
to be noticed, including such issues as the ‘noticeability’
of the matter, its ‘susceptibility’ to explanation or con-
tradiction, the ‘authoritativeness’ of the sources
advanced in support of the proposition, and the proper
use of the matter in the case at hand’’).
In concluding that the plaintiff did not have the right
to bring the present summary process action, the court
relied on the facts of the prior summary process action.
The court, however, did not give the parties an opportu-
nity to address whether the stay that was entered in
the prior summary process action prevented the current
plaintiff from pursuing its own action against the defen-
dant. Even assuming that the stay entered in the prior
action was binding on the plaintiff, the court did not
give the parties the opportunity to address whether the
stay was still in effect in light of the fact that the prior
action had been dismissed for dormancy. Under these
circumstances, we conclude that the court abused its
discretion in taking judicial notice of the prior summary
process action without affording the parties the oppor-
tunity at trial or in a posttrial brief to address its impact.
We likewise conclude that the proper remedy is to
reverse the judgment and remand the case for a new
trial.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The plaintiff also named John Doe I, John Doe II, John Doe III, Jane
Doe I, Jane Doe II, and Jane Doe III as defendants in this action. The plaintiff
later withdrew the action as to these defendants. We refer to Vazquez as
the defendant in this opinion.
2
Because our resolution of this claim is dispositive of the appeal, it is
unnecessary for us to consider the plaintiff’s remaining claims.
3
The defendant also disagreed with the allegation that the plaintiff did
not know the identity of John Doe I, John Doe II, John Doe III, Jane Doe
I, Jane Doe II, and Jane Doe III. As stated in footnote 1 of this opinion,
however, this action was withdrawn as to these defendants.
4
The following colloquy between the court, the plaintiff’s counsel, and
the defendant occurred at trial:
‘‘The Court: Ms. Vazquez, what do you want the court to know about
this action?
‘‘The Defendant: Well, on October 7th, there was actually a deposition
on Gus Curcio in which that’s when I found out–
‘‘[The Plaintiff’s Counsel]: Objection, Your Honor. Relevance.
‘‘The Court: Well, he’s the grantor on the deed that you presented to the
court. So, I’ll hear this.
‘‘[The Plaintiff’s Counsel]: Thank you, Your Honor.
‘‘The Defendant: Thank you. So, on October 7th, it was a deposition for
Gus Curcio in which that’s when he informed my lawyer and myself that
he sold the property that day. I just find that funny. He’s upset with the
deposition and the fact that you allowed me to stay there until the divorce
is final. So, my thing is they didn’t like the ruling, so they had to find
a loophole–
‘‘[The Plaintiff’s Counsel]: I’m going to object again, Your Honor. Who’s
they? I don’t know who she’s referring to as they.
‘‘The Defendant: Gus Curcio, Success, Inc., and Dahill Donofrio.
‘‘[The Plaintiff’s Counsel]: I’m going to object again because of relevance,
Your Honor.
‘‘The Court: It’s relevant because again they’re the grantors of this property
to the . . . plaintiff.
‘‘The Defendant: Thank you. So, what happens is that I believe–what
happened is they didn’t like the judgment, so they found a loophole to sell
the property to a friend. The property was never listed. He lives in Florida.
‘‘[The Plaintiff’s Counsel]: Objection, Your Honor. This is all out of scope
of her pleadings.
‘‘The Court: But it’s not out of the scope of what case you’re trying to
put forward, counsel, which is a bona fide intent of this individual to occupy
this premises as his primary residence. So, it’s a defense to the cause
of action.’’
The defendant later testified that ‘‘the only thing that makes sense is they
sell the house to a friend so that they can put a new eviction in to get me
out sooner because now it’s a totally different person instead of Gus Curcio,
Success, Inc., and Dahill Donofrio.’’