Kettle Creek, LLC v. Greenig

Full title: KETTLE CREEK, LLC v. DOUGLAS GREENIG and ALISON GREENIG

Court: Connecticut Superior Court Judicial District of Stamford/Norwalk at Norwalk Housing

Date published: Aug 23, 2007

2007 Ct. Sup. 14160 (Conn. Super. Ct. 2007)

Opinion

No. CVNO-5866

August 23, 2007

MEMORANDUM OF DECISION

GROGINS, J, JTR.

The plaintiff, Kettle Creek, LLC (hereinafter called "Kettle") brought suit against the defendants, Douglas and Alison Greenig, (hereinafter called "Greenig"), and by revised complaint the plaintiff sought damages for an alleged failure to pay rent, late charges, brokerage commissions and repairs pursuant to the lease provisions. The plaintiff also sought attorney's fees, interest and costs. The defendants responded by their answer and counterclaim. The counterclaim sought return of their security deposit; alleges failure of "Kettle" to itemize claimed damages, and twice the value of the security deposit pursuant to Connecticut General Statutes § 47a-21.

On December 16, 2003, the plaintiff made an offer of judgment in the amount of $60,000.00 (sixty thousand dollars), which the defendants did not accept.

The primary issue is whether the parties agreed to an extension of the lease at 85 Eleven O'Clock Road in Weston, Connecticut, commencing July 1, 2002 through June 30, 2003.

FINDINGS OF FACT

The following evidence was introduced at trial. The plaintiff owns the premises at 85 Eleven O'Clock Road in Weston, Connecticut. The initial lease covered a two (2) year period from July 1, 1999 to June 30, 2001 (Plaintiff's Exhibit A). According to the lease provisions recited in paragraph 10," any modifications must be in writing signed by the landlord and tenant."

On April 16, 2001, the plaintiff wrote to the defendants stating that it would be willing to extend the term of the lease for an additional year for a rental of $7,000.00 (seven thousand dollars) a month (Plaintiff's Exhibit B). Ultimately the lease was renewed and extended to June 30, 2002, at the agreed rental of $7,000.00 per month.

On May 12, 2002, the plaintiff wrote to the defendants inquiring if the defendants wanted to extend the lease for another year, or if they wanted to vacate by June 30, 2002. Following this communication, the plaintiff again wrote the defendants that the rent for the extended term would be $7,300.00 (seven thousand three hundred dollars) per month. On May 10, 2002, the defendant A. Greenig responded by confirming that she and her husband would renew the lease for one year at the agreed rental. The language of the letter stated "Please accept this letter as our consent to renew the lease on 85 Eleven O'Clock Road in Weston, Connecticut, through June 30, 2003. The rent, as you stated in your letter, will be $7,300.00 per month. As part of the lease agreement, we would appreciate that you address the improvement items you outlined in your letter dated April 1^st, 2002." . . . Further, this letter stated:" assuming that the inside work would require about one week to finish, as you suggested, we propose that the jobs be scheduled during the second, third or fourth week of August while we plan to be away on vacation. Please let us know which week at your earliest convenience." (Plaintiff's Exhibit 1).

Thereafter, the defendants occupied the premises in July, 2002, and paid the rent for that month of $7,300.00 (Plaintiff's Exhibit K). On July 22, 2002, the defendant A. Greenig sent a letter to Valia Anderson which reads in part "As you know, my husband and I have been looking for sometime for a home to buy. At long last, we found a suitable property in Greenwich in early July. . . . We plan to move before September and we'll be vacating our house at that time. We have enjoyed our stay in Weston these last 3 years. I understand that you plan to do various interior repairs in August . . . when the house is ready for the next tenancy, I think my husband can be of some assistance to you" (Plaintiff's Exhibit L). The defendants actually moved out on August 19, 2002. "A lease is a contract." Hatcho Corp. v Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985). "To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties." (Internal quotation marks omitted.) Senco, Inc. v Fox-Rich Textiles, Inc., 75 Conn. App. 442, 445, 816 A.2d 654, cert denied. 263 Conn. 916, 821 A.2d 770(2003). "It is elementary that to create a contract there must be an unequivocal acceptance of an offer. In the case of a bilateral contract, the acceptance of the offer need not be express but may be shown by any words or acts which indicate the offeree's assent to the proposed bargain. . . The acceptance of the offer must, however, be explicit, full and unconditional And the burden rest[s] on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract." (Citations omitted.) Bridgeport Pipe Engineering Co. v DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970). Finally, "[t]he law. . . does not require an express acceptance. . . Acceptance may be shown by acts or conduct indicating assent to an offer or, under appropriate circumstances, acceptance may be implied by the offeree's silence and inaction." (Citation omitted.) Pleines v Franklin Construction Co., 30 Conn. App. 612, 617, 621 A.2d 759 (1993).

In the present case, the defendants' May 10, 2002 letter did not unconditionally accept the plaintiff's offer to extend the lease. Instead, the defendants sought to introduce new terms that were absent from the plaintiffs' offer. Specifically, they conditioned an extension upon the plaintiffs' agreement to make certain repairs. This Court finds that the defendants' letter constituted a counteroffer. Additionally, the Court finds that the only difference between the plaintiffs' original offer and the defendants' counteroffer is the requirement that the plaintiffs make certain repairs.

Although the plaintiffs did not expressly accept the defendants' counteroffer, the Court infers such an acceptance from the plaintiffs' conduct.¹ Specifically, the Court finds that the plaintiff made or was prepared to make, the requested repairs in accordance with the defendants' request. The Court also finds that the defendants were aware that the plaintiffs had accepted their counteroffer. Indeed, the defendants remained in possession of the premises after the termination of the prior lease. Further, the defendants delivered, and the plaintiffs accepted, a rent check in the amount of $7300.00 for the month of July. Finally, in their July 22, 2002 letter to the plaintiffs, the defendants acknowledge that the plaintiffs had agreed to make the requested repairs. Accordingly, the Court finds that the plaintiff accepted the defendants' counteroffer and

1 It should be noted that, following the defendants' counteroffer, the plaintiffs sent the defendants a copy of the lease agreement that did not contain the additional terms requested by the defendants. Nevertheless, it appears that neither party interpreted that communication as a rejection of the defendants' counteroffer.

thus formed a valid contract. It is most striking to the Court that although the defendants refer to anticipated repairs during August as previously arranged and discussed, these repairs are never mentioned in the context of grounds for the termination of defendants' renewed lease; whereas their purchase of a new home was clearly the sole compelling reason for their termination of this renewal. It should also be noted that both the plaintiff and the defendant mentioned during their respective testimony that certain repairs had been requested, to wit: the fence around the tennis court; the wooden lattice above the deck; flooding of the bays of the garage, and the rotting deck boards and steps leading to the deck. None of these repairs can be considered a material breach of the underlying lease and as previously mentioned, the landlord was prepared to make the repairs in August at the time requested by the defendants.

Finally, the defendants claim that since only Allison Greenig signed the disputed one year extension in question that her husband could not be bound to this extension. This Court clearly finds it established that she had authority to bind herself and her husband. Accordingly, this Court finds for the plaintiff on the issue of liability and that the plaintiff has satisfied its burden in proving an additional extension of the one year lease from July 1, 2002 to June 30, 2003. "A lease is a contract." Cohn v Fennelly, 138 Conn. 474, 476; 86 A. 2d 183 (1952). "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances construed with the transaction . . . [T]he intent of the parties to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (internal quotation marks omitted) Poole v Waterbury, 266 Conn. 68, 87-88; 831 A2d 211 (2003). [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous" Ibid. pg 88.

DAMAGES

Having found for the plaintiff that the defendants breached the lease extension, this Court will now determine what damages the plaintiff has suffered as a consequence thereof. Had the defendants not terminated the lease on August 19^th, they would have been obligated under the lease terms to pay for ten and a half (10 ½ ) months at $7,300.00 per month, or $76,650.00 less the rent recouped from another tenant who occupied from February 1, 2003 to June 15, 2003, a period of four and a half (4 ½ ) months for $15,750.00, resulting in a net loss to the plaintiff of $60,900.00 The defendants are also entitled to have the security deposit of $12,500.00 applied to the plaintiff's loss, further reducing their recovery to $48,400.00. The plaintiff claims of $2963.85 for repairs, maintenance and yard work. Paragraph 8 of the original lease (Plaintiff's Exhibit A) states" Tenant will keep the premises in good condition

and . . . Tenant will pay all costs of the repair if required because of misuse or neglect by Tenant . . . Landlord will pay for all structural repairs (repairs to the roof, walls, foundation). . . unless caused by misuse or neglect described above." Under paragraph three of the Tenant's Covenants, it is stated, "Tenant will, at tenant's own expense, keep the lawn mowed. . . and the grounds in good and neat order." This Court finds the following claimed repairs or maintenance items, the responsibility of the tenant: to wit, Plaintiff's Exhibit W (tree removal for $333.90, lawn cutting [5x $65] or $325.00, and the repair of the tennis courts for $875.35 for a total of $1534.25. All other maintenance items are disallowed.

Next, the plaintiff claims $1,400.00 for the broker's commission for the replacement tenant as per Exhibit O. The Court allows this expense and awards the plaintiff the sum of $1,400.00.

On the issue of late charges or fees, the Court is referred to page three of the original lease which states, "Tenant agrees to pay an additional rent, a late charge of $50.00 for any rental payment not fully paid within 10 (ten) days of the due date." This Court will allow late charges for August 2002, through June 2003, exclusive of the four (4) months when occupied by a replacement tenant, an allowance of $300.00. Having awarded the plaintiff the sum of $51,634.25 from the above damages, the Court now takes up the issue of reasonable attorney's fees as provided in the lease. The matter of attorney's fees will be assigned for a hearing at a future date.

Finally, the plaintiff filed an offer of judgment for $60,000.00 (sixty thousand), and the Court will reserve decision until the amount of attorney's fees awarded to the plaintiff is decided, to determine whether interest is also awarded pursuant to the offer of judgment statute, Connecticut General Statutes 52-192a. As set forth in Crowther v Gerber Garment Technology, Inc., 8 Conn. App. 254, 266, 267 , the Court stated: "This award, also punitive in nature and authorized by legislation enacted to promote fair and reasonable compromise of litigation without trial, was predicated on the recovery of damages by the plaintiff in excess of his offer of judgment. . . This, the defendant claims, was error because the amount recovered by the plaintiff. . . only after the Court's award of reasonable attorney's fees. . . was added to the calculation." Again the Court stated: "We disagree with the defendant's contention.," Ibid, 267.

DEFENDANT'S COUNTERCLAIM

By way of counterclaim, the defendant is seeking the return of the security deposit, interest on said security deposit, and double damages. This Court has already considered the security deposit which was applied to the plaintiff's award, so that matter has been resolved.

On the question of whether the defendant's provided a forwarding address to the plaintiff on or after their vacating the premises, the Court is referred to page twenty-one of the transcript of the testimony of Avalia Anderson, a principal of Kettle Creek. Under direct examination she testified as follows: "I believe it was the nineteenth (19^th) of August (2002) that I met with Alison (Greenig — last name supplied) to exchange keys. Did she provide you with an address for where she was going? No." Under cross-examination by Attorney Rothberg, the Court discerns no contradiction to the absence of a forwarding address as of August 19, 2002. Examination of the court's file discloses the defendants' address of 138 Pecksland Road, Greenwich, CT 06831, as of May 7, 2003, when the suit was instituted. Accordingly, the defendants are entitled to interest from that date forward at one and a half percent (1 ½%) (May 7, 2003 to August 23, 2007), a period of four years and three and a half months for a total of $804.52, which is deducted from the plaintiff's recovery.

Since the Court has determined that the forwarding address was known to the plaintiff as of May 7, 2003, and the damages were set forth in detail by this complaint; the Court denies any recovery of double damages and that the defendants have not satisfied their burden of proof. In accordance with this memorandum, the plaintiff may recover $51, 634.25 without interest and without prejudice until the determination of attorney's fees.