Opinion
No. CVH-7040
June 4, 2010
MEMORANDUM OF DECISION
The plaintiff has brought this action for damages claimed to have been sustained in connection with the defendant's removal of the plaintiff and his property from the defendant's commercial premises following a summary process judgment entered in favor of the defendant landlord on December 23, 2002. The defendant has counter claimed seeking damages from the plaintiff for past due rent and costs claimed to have been sustained by the defendant to repair and restore the leased premises to their former condition.
Both parties were represented by counsel at trial. The plaintiff also filed his pro se appearance and participated in the examination of witnesses. The defendant was represented on his counterclaim by additional counsel. The trial required testimony for a period of nine days. The plaintiff submitted 103 full exhibits and the defendant submitted 61 full exhibits.
BACKGROUND
On June 11, 1999, the plaintiff, Richard Koslik, doing business as "The Ready Company" entered into a commercial lease (the "Lease") with the defendant, Frank Sponzo, for industrial zoned premises located at 121 West Dudley Town Road, Bloomfield, Connecticut. (Plaintiff's Exhibit 1-A). The leased premises consisted of approximately 4,000 square feet and, pursuant to paragraph 3 of the Lease, the plaintiff was to use the premises as "an office, warehouse, storage, shop assembly and showroom." The term of the Lease was for a five year period commencing July 15, 1999.
The parties' relationship was not smooth. The plaintiff commenced a summary process action in January, 2001, HDSP-112945, for nonpayment of rent which was settled by a stipulated judgment on April 5, 2001.
In August, 2002, the plaintiff stopped paying rent. The defendant served the plaintiff with a notice to quit on September 25, 2002 for nonpayment of rent. On December 23, 2002, the defendant obtained judgment of possession of the premises as a result of the plaintiff's failure to appear at the trial. The plaintiff was incarcerated at the time that the judgment was entered. On December 26, 2002, the plaintiff filed a motion to open the judgment of possession. The plaintiff, by habeas corpus, appeared at the hearing on the motion to open which was denied by the court on January 7, 2003. ( dos Santos, J.). The plaintiff was released from custody on or about January 9, 2003. On January 10, 2003, Marshal Abraham Glassman served the plaintiff with a residential execution directing the plaintiff to vacate the premises by January 16, 2003.
On January 15, 2003, the plaintiff filed an appeal of the denial of his motion to open the judgment of possession.
At 8:00, a.m. on January 17, 2003, Marshal Glassman arrived at the premises and informed the plaintiff that he needed to vacate the premises and remove his possessions by 12:00 noon. Marshal Glassman removed the plaintiff from the premises on January 17, 2003. On the afternoon of January 17, 2003, the plaintiff filed a verified "lockout" complaint pursuant to General Statutes § 47a-43. (Defendant's Exhibit A).
On January 27, 2003, the court held a hearing on the lockout complaint, Hartford Housing Session, CVH 6994, at which the plaintiff was represented by counsel. The court dismissed the complaint on January 27, 2003 after trial. (dos Santos, J.)
The plaintiff's appeal of the denial of his motion to open the judgment of possession was dismissed on February 26, 2003 as not having been timely filed.
THE PLAINTIFF'S CLAIMS
The plaintiff filed suit by summons and complaint filed on May 12, 2003. The plaintiff filed an amended complaint on June 23, 2005 and a second amended complaint dated November 3, 2006. The plaintiff's second amended complaint is brought in five counts.
The First Count
The first count of the plaintiff's second amended complaint alleges after the defendant obtained judgment of possession of the premises, the plaintiff requested "access to the premises and the ability to remove his trade fixtures, business and personal property, and displays located on the subject premises" from the defendants but the defendants "failed and/or refused to let the Plaintiff do so." The first count further alleges that the defendant "damaged and/or threw away the Plaintiff's said trade fixtures, displays and business and personal property" as a result of which "the Plaintiff was unable to conduct its (sic) business, all to his great loss and detriment."
Marshal Abraham Glassman was cited in as an additional defendant but Glassman's motion for summary judgment in his favor was granted on March 16, 2007. (Bentivegna J.)
The Second Count
The second count claims that the plaintiff's removal from the premises was "improper, illegal and was not legally effective to remove the Plaintiff from the commercial premises occupied by him" because the State Marshal served him with a residential execution. The plaintiff further alleges in count two that Marshal Glassman "failed to complete an inventory of the personal and business property in the premises as required by law" and that despite demand by the plaintiff, the defendant refused to allow the plaintiff to "re-enter and remain in the premises" in violation of Connecticut General Statutes Section 47a-43 et. seq. (Entry and detainer).
The Third Count
The third count alleges that the defendant's actions constitute a violation of Connecticut General Statutes Section 47a-16 et. seq.
The plaintiff withdrew the Third Count at trial.
The Fourth Count
The fourth count of the complaint alleges that "The Defendants' actions constitute a violation of Connecticut General Statutes Section 52-564." (Civil theft).
The Fifth Count
The plaintiff's fifth count alleges that the defendant's actions constitute "an unfair trade practice within the purview of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes Section 42a-110a et. seq."
The plaintiff's request for relief seeks monetary damages for personal property damage, lost income, statutory damages and attorneys' fees as the same may be awarded under the statutes alleged to have been violated by the defendant.
THE DEFENDANT'S REPLY
The defendant denied the allegations in the plaintiff's complaint, asserted special defenses to each count and filed a counterclaim for damages.
The defendant's special defense to the first count of the plaintiff's complaint asserts that "Any losses or damages alleged to have been incurred by the plaintiff were the proximate result of his own negligence."
The defendant's special defense to the second count alleges that the court's finding of not guilty in an earlier entry and detainer action brought by the plaintiff in connection with his eviction results in the court's ruling having become the law of the case.
As special defenses to the second, third, fourth, and fifth counts, the defendant claims that the defendant entered the premises "only after a judgment of possession was entered in his favor and the state marshal served a summary process execution on the plaintiff."
As special defenses to the fourth and fifth counts of the complaint, the defendant alleges that he "removed some of the Plaintiff's property only after the Plaintiff had been given ample opportunity to remove it, but refused and failed to do so, and the town was insisting on removal of the illegal buildout."
THE DEFENDANT'S COUNTERCLAIM
The defendant has filed a three count counterclaim.
The first count of the counterclaim alleges breach of contract and seeks to recover unpaid rent, attorneys' fees and other costs of collection.
The second count of the counterclaim seeks attorneys' fees and costs incurred by the defendant in connection with his summary process action against the plaintiff.
The third count of the counterclaim alleges that the plaintiff made alterations to the premises without the permission of the defendant and without proper licenses and permits which caused the defendant to incur substantial costs to restore the premises and losses during the period of restoration.
DISCUSSION
The plaintiff testified that approximately six months after the Lease was signed, he constructed an addition on the second floor which added approximately 3,000 square feet of space to the 4,000 square feet on the first floor space. The addition on the second floor consisted of a bedroom, kitchen, bathroom, living room, lounge and office. The plaintiff also constructed several improvements he described as "displays" which were shown to prospective customers as examples of his work. (Plaintiff's Exhibit 55). The improvements included two or three bars, one which was fully stocked with liquor. At least one of the bars had full plumbing and running water. The plaintiff installed hardwood floors and wall to wall carpeting was installed by a third party. Two gas fireplaces were installed. The plaintiff "ran" the gas lines through the premises but the connections and balancing of the gas pressure was done by a third party. The plaintiff also installed a satellite dish on the roof and apparently vented the gas fireplaces through the roof. The plaintiff admitted that he did the electrical and plumbing work and that he held no professional electrician's or plumber's license. On cross examination, the plaintiff acknowledged that he had "a full apartment" on the second level. None of the work on the second floor was done with any license from the Town of Bloomfield nor was any certificate of occupancy issued by the town.
Because the gravamen of the plaintiff's complaint is primarily founded on his claim that the summary process procedure followed to remove him from the premises was improper, the court will address the counts in the following order: two, one, four and five.
Count Two
A. Improper Summary Process Execution
The plaintiff's first claim in the second count of his complaint is that his removal by the marshal pursuant to a residential summary process execution under General Statues § 47a-42 was wrongful. The plaintiff argues that his eviction should have been conducted pursuant to General Statues § 47a-42a.
Sec. 47a-42. (Formerly Sec. 52-549). Eviction of tenant and occupants from residential property. Removal and sale of unclaimed possessions and personal effects. (a) Whenever a judgment is entered against a defendant pursuant to section 47a-26, 47a-26a, 47a-26b or47a-26d for the recovery of possession or occupancy of residential property, such defendant and any other occupant bound by the judgment by subsection (a) of section 47a-26h shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects unless execution has been stayed pursuant to sections 47a-35 to47a-41, inclusive. If execution has been stayed, such defendant or occupant shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects upon the expiration of any stay of execution. If the defendant or occupant has not so removed himself or herself upon entry of a judgment pursuant to section 47a-26,47a-26a, 47a-26b or 47a-26d, and upon expiration of any stay of execution, the plaintiff may obtain an execution upon such summary process judgment, and the defendant or other occupant bound by the judgment by subsection (a) of section 47a-26h and the possessions and personal effects of such defendant or other occupant may be removed by a state marshal, pursuant to such execution, and such possessions and personal effects may be set out on the adjacent sidewalk, street or highway. (b) Before any such removal, the state marshal charged with executing upon any such judgment of eviction shall give the chief executive officer of the town twenty-four hours notice of the eviction, stating the date, time and location of such eviction as well as a general description, if known, of the types and amount of property to be removed from the premises. Before giving such notice to the chief executive officer of the town, the state marshal shall use reasonable efforts to locate and notify the defendant of the date and time such eviction is to take place and of the possibility of a sale pursuant to subsection (c) of this section. Such notice shall include service upon each defendant and upon any other person in occupancy, either personally or at the premises, of a true copy of the summary process execution. Such execution shall be on a form prescribed by the Judicial Department, shall be in clear and simple language and in readable format, and shall contain, in addition to other notices given to the defendant in the execution, a conspicuous notice, in large boldface type, that a person who claims to have a right to continue to occupy the premises should immediately contact an attorney. (c) Whenever the possessions and personal effects of a defendant are set out on the sidewalk, street or highway, and are not immediately removed by the defendant, the chief executive officer of the town shall remove and store the same. Such removal and storage shall be at the expense of the defendant. If such possessions and effects are not called for by the defendant and the expense of such removal and storage is not paid to the chief executive officer within fifteen days after such eviction, the chief executive officer shall sell the same at public auction, after using reasonable efforts to locate and notify the defendant of such sale and after posting notice of such sale for one week on the public signpost nearest to the place where the eviction was made, if any, or at some exterior place near the office of the town clerk. The chief executive officer shall deliver to the defendant the net proceeds of such sale, if any, after deducting a reasonable charge for removal and storage of such possessions and effects. If the defendant does not demand the net proceeds within thirty days after such sale, the chief executive officer shall turn over the net proceeds of the sale to the town treasury.
Sec. 47a-42a. Eviction of tenant and occupants from commercial property. Disposition of unclaimed possessions and personal effects, (a) Whenever a judgment is entered against a defendant pursuant to section47a-26, 47a-26a, 47a-26b or 47a-26d for the possession or occupancy of nonresidential property, such defendant and any other occupant bound by the judgment by subsection (a) of section 47a-26h shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects unless execution has been stayed pursuant to sections47a-35 to 47a-41, inclusive. If execution has been stayed, such defendant or occupant shall forthwith remove himself or herself, such defendant's or occupant's possessions and all personal effects upon the expiration of any stay of execution. If the defendant or occupant has not so removed himself or herself upon entry of a judgment pursuant to section 47a-26,47a-26a, 47a-26b or 47a-26d, and upon expiration of any stay of execution, the plaintiff may obtain an execution upon such summary process judgment, and the defendant or other occupant bound by the judgment by subsection (a) of section 47a-26h and the possessions and personal effects of such defendant or other occupant may be removed as provided in this section. (b) The state marshal charged with executing upon any such summary process judgment shall, at least twenty-four hours prior to the date and time of the eviction, use reasonable efforts to locate and notify the defendant or occupant of the date and time such eviction is to take place. Such notice shall include service upon each defendant and upon any other person in occupancy, either personally or at the premises, of a true copy of the summary process execution. Such execution shall be on a form prescribed by the Judicial Department, shall be in clear and simple language and in readable format, and shall contain, in addition to other notices given to the defendant or occupant in the execution, a conspicuous notice, in large boldface type, that a person who claims to have a right to continue to occupy the premises should immediately contact an attorney. Such execution shall contain a notice advising the defendant or occupant that if he or she does not remove such defendant's or occupant's possessions and personal effects from the premises by the date and time set for the eviction and thereafter fails to claim such possessions and personal effects from the landlord and pay any removal and storage costs within fifteen days after the date of such eviction, such possessions and personal effects will be forfeited to the landlord. (c) The state marshal who served the execution upon the defendant or occupant as provided in subsection (b) of this section shall return to the premises at the date and time such eviction is to take place. If the defendant or occupant has not removed himself or herself from the premises, the state marshal shall remove such defendant or occupant. If the defendant or occupant has not removed such defendant's or occupant's possessions and personal effects from the premises, the plaintiff, in the presence of the state marshal, shall prepare an inventory of such possessions and personal effects and provide a copy of such inventory to the state marshal. The plaintiff shall remove and store such possessions or personal effects or shall store the same in the premises. Such removal and storage or storage in the premises shall be at the expense of the defendant. If such possessions and effects are not called for by the defendant or occupant and the expense of such removal and storage or storage in the premises is not paid to the plaintiff within fifteen days after such eviction, the defendant or occupant shall forfeit such possessions and personal effects to the plaintiff and the plaintiff may dispose of them as the plaintiff deems appropriate.
Marshal Abraham Glassman served the plaintiff on January 10, 2003 with a residential execution directing the plaintiff to vacate the premises by January 16, 2003. Marshal Glassman testified that the plaintiff, when served, requested that he be given one additional day to vacate, which request Glassman granted.
At 8:00 a.m. on January 17, 2003, Marshal Glassman arrived at the premises and informed the plaintiff that he needed to vacate the premises and remove his possessions by 12:00 noon.
Marshal Glassman testified that he proceeded to remove the plaintiff from the premises in accordance with the residential summary process eviction procedures because he "was told that the plaintiff was living there." Glassman testified that he had never before encountered a situation where a tenant was living in a commercial or industrial building.
The plaintiff argues that, even if it was proper to conduct the eviction as a residential eviction, Glassman failed to remove his property from the premises to the sidewalk as required by § 47a-42. Marshal Glassman testified that he did not move the plaintiff's possessions to the sidewalk because the plaintiff told Glassman, while the eviction was in progress, that he would "move himself out" and the plaintiff was, in Glassman's opinion, taking all his things out of the premises. Glassman said that he often granted the same courtesy of permitting a tenant to pack up his or her possessions, rather than put them on the sidewalk, as long as the tenant continued to do so. Glassman pointed out that under § 47a-42, if a tenant's possessions are put on the sidewalk, the town is required to move and keep them in storage at the tenant's expense.
Glassman testified that he witnessed the plaintiff removing the "tools of his trade" and other items from the premises for a period of four hours on January 17, 2003. Glassman testified that when 12:00 noon came, the plaintiff indicated that he had not completed the removal of all his property from the premises. Glassman said he then entered the premises and observed only "a whole bunch of wood" on the first level. The second level appeared to Glassman to be an apartment with a built-in bar and cabinets which he considered "part of the premises." He also observed water running in the bar sink. Glassman testified that he did not consider it to be part of his responsibility to deal with the built-in property that remained in the premises. Marshal Glassman testified that he then told the plaintiff that "if he wanted to come back to the property, he would have to make arrangements with Mr. Sponzo." Glassman also credibly testified that he told the plaintiff that he had fifteen days to remove the rest of his property or it would be forfeited. Shortly after 12:00 noon, Glassman told the defendant to change the locks on the doors to the premises and left.
A review of the available legislative history of § 47a-42a, enacted in 1997, furnishes little assistance in resolving the present case. The only discussion of the impact of House Bill 7058 (now § 47a-42a) on a residential tenancy in a nonresidential setting is the following colloquy:
"REP. KNOPP: (137TH): Well, I guess my question is, if there's a person residing in a property based on an agreement with the owner of that property pursuant to a landlord/tenant agreement, whether I say at sufferance, month to month, or a different kind of lease, does that constitute residential property? Through you Mr. Speaker.
REP. DOYLE: (28TH): Through you Mr. Speaker, I think it would constitute a residential property if it conforms with the zoning laws. If it is a commercial property and then there's somebody there illegally living, in terms of if there's an illegal residential tenancy there, I think that might be problematic. But in a situation, and if there is a residential agreement, I think that would apply.
REP. KNOPP: (137TH): Through you Mr. Speaker. I hope that this law will be construed by courts in the manner so that if in fact there is a person residing in a structure according to lease as I say, whether it's at sufferance, month to month, or some other kind of longer term lease, that the residential elements of summary process will apply and the mere fact that the property may be zoned commercial, even though somebody is residing in it on a landlord/tenant agreement, that the residential part would apply to the disposition of that person's personal effects. Thank you, Mr. Speaker."
40 H. R. Proc., Pt. 12, 1997 Sess. P. 4267-8.
A review of the published and available unpublished Connecticut court decisions discloses that § 47a-42 and § 47a-42a have never been cited in the same opinion. In one case where the tenant resided in his commercial space in violation of the terms of his lease and was served with a notice to quit for nonpayment of rent without allowing the nine day residential grace period, the court found the "actual use to be residential" and the notice premature. Riverdale Associates v. Canas, No. SPNO 9508-17836 (Sep. 28, 1995, Tierney, J.). Our Connecticut courts have never squarely addressed the issue of the proper procedure for the removal of a tenant from a hybrid occupancy.
On his Verified Lockout Complaint, the plaintiff claimed, under oath, that the defendant entered his "dwelling unit" on January 17, 2003 and took possession of the plaintiff's personal property. (Defendant's Exhibit A). The lockout complaint was filed on January 17, 2003, the same day the plaintiff was removed from the premises.
The plaintiff argues that if his removal was conducted under § 47a-42a, he would have been served with a nonresidential execution form which would have informed him of the proper procedures required to be observed by the parties. General Statute § 47a-42a provides in pertinent part: "Such execution shall be on a form prescribed by the Judicial Department, shall be in clear and simple language and in readable format, and shall contain, in addition to other notices given to the defendant or occupant in the execution, a conspicuous notice, in large boldface type, that a person who claims to have a right to continue to occupy the premises should immediately contact an attorney. Such execution shall contain a notice advising the defendant or occupant that if he or she does not remove such defendant's or occupant's possessions and personal effects from the premises by the date and time set for the eviction and thereafter fails to claim such possessions and personal effects from the landlord and pay any removal and storage costs within fifteen days after the date of such eviction, such possessions and personal effects will be forfeited to the landlord."
The plaintiff also argues that if his removal was conducted under § 47a-42a, the defendant would have been required to prepare an inventory of his possessions and personal effects in the presence of the marshal and provide a copy of the inventory to the marshal. At trial, the plaintiff offered a detailed "inventory" of property which he claimed was at the premises on January 17, 2003. Since § 47a-42a only requires a landlord to provide the marshal with a copy of the inventory and since the plaintiff compiled and submitted his own inventory at trial, the court is hard pressed to find that the plaintiff's claim that the defendant's failure to provide the marshal with an inventory has resulted in any material harm to the plaintiff.
The plaintiff argues that the residential execution form failed to advise him of his need to remove his property within fifteen days following his eviction. Although the residential execution form does not notify a tenant that his property will be forfeited if not claimed within fifteen days, it does notify the tenant that if the tenant's possessions and personal effects are not claimed within fifteen days, the tenant's property will be sold at auction and any net proceeds remaining after expenses of removal and sale will be delivered to the tenant if demanded within thirty days, in default of which, the town retains the proceeds.
General Statutes § 47a-42 and § 47a-42a both require that the execution served include a "conspicuous notice in boldface type" that the tenant "should immediately contact an attorney." The record reflects, and the plaintiff acknowledged, that he was represented by counsel in the lockout proceeding filed the same day as his removal. There is no similar requirement of conspicuous boldface type in the statute concerning the disposition of a tenant's unclaimed property.
As noted above, Marshal Glassman testified that he told the plaintiff on January 17, 2003 that he had to claim any remaining property within fifteen days or it would be forfeited. The plaintiff testified that he was advised by his attorney that by filing his appeal of the denial of his motion to open the judgment of possession on January 15, 2003, the appeal would take 90 days and that he could remain in possession until his appeal was decided.
Even if, as the plaintiff argues, his removal should have been conducted by a nonresidential execution pursuant to § 47a-42a, the plaintiff failed to prove that he claimed his possessions and personal effects within the fifteen days and paid the defendant for the storage as required by the statute. Subsection (c) of § 47a-42a provides in relevant part: "The plaintiff shall remove and store such possessions or personal effects or shall store the same in the premises. Such removal and storage or storage in the premises shall be at the expense of the defendant. If such possessions and effects are not called for by the defendant or occupant and the expense of such removal and storage or storage in the premises is not paid to the plaintiff within fifteen days after such eviction, the defendant or occupant shall forfeit such possessions and personal effects to the plaintiff and the plaintiff may dispose of them as the plaintiff deems appropriate."
The plaintiff admitted that he did not send any written demand or claim to the defendant during the fifteen day period following his removal from the premises. The only evidence offered by the plaintiff to support his claim that he attempted to reclaim his property during the fifteen day period following his eviction was his testimony. The plaintiff offered no written evidence that he made demand for his property prior to his letter to the defendant's attorney, John Labelle, dated February 28, 2003 and received by Labelle on March 3, 2003. (Plaintiff's Exhibit 55). It is worthy to note that the letter was dated two days after his appeal of the denial of his motion to open was dismissed. The plaintiff also submitted a letter dated March 21, 2003 from an attorney, written directly to the defendant, demanding "reimbursement" for the plaintiff's property by March 28, 2003. (Plaintiff's Exhibit 95). The plaintiff also offered no proof that he paid, or offered to pay, the defendant for the expense of storage of his property in satisfaction of the second requirement under the statute to avoid forfeiture of the property.
Under the facts of this case, the court finds that the evidence clearly established that, despite the character of the building in which the premises were situated, the plaintiff resided in the premises and that the actual use of the premises was residential. Accordingly, the court finds that the use of the residential summary process execution to remove the plaintiff from the premises pursuant to General Statutes § 47a-42 was not improper and that the plaintiff has failed to demonstrate that he suffered damage solely as a result of any failure to serve him with a nonresidential execution.
THE PLAINTIFF'S ADDITIONAL CLAIMS
Having found that the removal of the plaintiff from the premises pursuant to General Statutes § 47a-42 was proper the court needs to consider the plaintiff's claims that he suffered damages as a result of the defendant's actions on the other grounds alleged.
The plaintiff's claims for the loss or damage to his property fall into two general categories. The first category consists of his personal and business personal property. The second consists of his claim for compensation for the loss or destruction of his "displays" which he claims were trade fixtures.
The Plaintiff's Personal Property and Business Personal Property
The plaintiff claims damages for loss of his personal possessions valued by the plaintiff at $16,964.57 and business personal property including, materials and tools valued by the plaintiff at $5,308.83. The plaintiff also seeks $8,839.50 for "other items".
The testimony from the parties and Marshal Glassman clearly established that the plaintiff was afforded four hours on January 17, 2003 to remove his possessions. Marshall Glassman testified that he saw the plaintiff removing his possessions and the tools of his trade during that time.
It is undisputed that, on January 31, 2003, the plaintiff and his cousin, Mark Tracy, filled a truck and a van with more of the plaintiff's possessions, although the length of time given to the plaintiff on that day was disputed by the parties. Tracy testified that he and the plaintiff removed shop equipment, heavy tools, including a table saw and an industrial vacuum and the plaintiff's "more expensive" personal possessions such as television sets and other electronics. The plaintiff was also given two additional opportunities to remove his possessions in February 2003, but the exact dates and times of access were not agreed on by the parties.
The defendant testified that when the plaintiff failed to come to the premises to get his property, he drove a 28-foot truck full of the plaintiff's property to his new leased space in Windsor Locks. The defendant testified that there were two truckloads delivered to Windsor Locks and that at the same time, the plaintiff had pickup trucks running "back-and-forth" bringing the plaintiff's property from the premises to the plaintiff's new location. Although the plaintiff disputed whether it was the defendant who drove the truck, he agreed that two truckloads were taken to his new location. The items delivered were furniture, including a sofa, the plaintiff's water bed, clothing, groceries and training weights. Thedefendant testified that several of his employees assisted with the move by loading and unloading the truck which was not disputed by the plaintiff. The defendant offered photographs of some of the property delivered and the trucks at the dock. (Defendant's Exhibits K,L,M,N,O,P,Q and R.) The parties agreed that one truckload was unloaded on the dock but the plaintiff instructed to leave the second truck unloaded.
Sergeant Fredericks of the Bloomfield Police Department interviewed the plaintiff on February 25, 2003 in response to a complaint filed by the plaintiff concerning the defendant's actions. Sergeant Fredericks testified that on that date, the plaintiff told him "that he had removed most of his property from the commercial building but that he had left materials worth an estimated $200,000" which statement was contemporaneously recorded in his police report dated February 25, 2003 (Defendant's Exhibit S).
The Tax Assessor for the Town of Bloomfield, Walter Topliff, testified that every person owning business property is required to file a written declaration with the town by November 1 of each year listing all business property owned for purposes of determining its taxation. Topliff testified that during the years 1999, 2000, 2001, 2002 and 2003, there were no records of any declarations of property filed nor taxes paid by the plaintiff, The Ready Company, or in the name of the plaintiff's new business, Custom Fabrication. On cross examination, the plaintiff admitted that he did not file a declaration with the Town of Bloomfield reporting the displays or any other business property, nor did he pay any personal property taxes to the town.
The court also takes judicial notice of the plaintiff's entry and detainer action filed on January 17, 2003, Hartford Housing Session, CVH 6994. The court may take judicial notice of the court file in another suit between the parties, especially when the relevance of that action is expressly made an issue during the instant trial. State v. Fagan, 280 Conn. 69, 101, 905 A.2d 1101 (2006). On the plaintiff's application for a waiver of the court entry fee and expenses of service of process dated January 17, 2003, the plaintiff reported, under oath, that he owned personal property having a value of only $4,000.
"It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . ." Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . . (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997); see also Wasko v. Manella, 87 Conn. App. 390, 396, 865 A.2d 1223 (2005).
"To recover damages, the plaintiff must offer evidence sufficient to prove the claimed loss." (Citations omitted.) Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 541, 546 A.2d 216 (1988). The rule is "well established . . . that damages are essential to the plaintiff's proof and must be shown with reasonable clarity." Id., 542-43.
"The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant. Id.
Although the plaintiff submitted lists of his personal and business property that he claimed was damaged or discarded by the defendant, the testimony was compelling that whatever personal and business property the plaintiff owned, was either recovered by the plaintiff or delivered to him by the defendant.
The Plaintiff's Displays
The plaintiff claims that the defendant destroyed or discarded valuable property which he claims were trade fixtures. The plaintiff described the model kitchens and other structures that he constructed on the second level as his "displays." (Plaintiff's Exhibit 57).
The plaintiff claims the following damages for the value of the displays:
The "Bar"................................... $101,358.75 The "Green" Room............................ $52,447.50 The "White" Kitchen......................... $60,300.00 The "Office "............................... $95,208.75The Applicable Lease Provisions
The rights and obligations of the parties concerning additions and improvements to the premises and the removal of trade fixtures are addressed in the Lease.
Paragraph 7 of the Lease provides that the Lessee "Will at the end, expiration of (sic) the term hereby granted, or any extension thereof, deliver up the demised premises in as good order and condition as they were at the commencement of said term, reasonable wear and tear excepted."
Paragraph 16 of the Lease provides that the Lessee "Will make no addition or alteration, or make or drill any hole in the leased premises, or the building the premises are located in, without the written consent of the Lessor in each instance; which consent shall not be unreasonably withheld, and, if such consent is given, Lessee will, at the termination of the lease, or when Lessee shall no longer make use of the alteration, addition or hole, restore the premises to their original condition, or to any other condition approved by Lessor. NOTWITHSTANDING THE ABOVE, the Lessee shall have the right to install such trade fixtures as the Lessee requires to conduct its business upon the Lessor's approval which will not be unreasonably withheld. Any work performed by Lessee hereunder shall be done with materials of like kind and quality of the materials comprising said premises; and shall be completed in a workmanlike manner."
Paragraph 43 of the Lease reads as follows "All alterations, additions and improvements in or upon the demised premises or the building in which the leased premises are located, made by either party, shall become the property of Lessor and shall remain upon and be surrendered with the leased premises as a part thereof at the termination or other expiration of the term hereby granted. Lessee shall have the right to remove its trade fixtures providing Lessee shall restore the premises to the original condition." (Emphasis added).
The Displays as Trade Fixtures
Although disputed by the defendant, the plaintiff claimed that his displays were removable trade fixtures. Clearly, none of the "additions or improvements" constructed by the plaintiff in the portion of the premises occupied by him as his "apartment" can be considered trade fixtures. The plaintiff also makes no claim for damages for the loss of the "Blue" kitchen on Exhibit 57 which was not part of his apartment. Furthermore, the court finds that there was insufficient evidence to show that the office, which was admitted to have been used by the plaintiff, was anything more than an "improvement" to the premises which, pursuant to paragraph 43 of the Lease, became the property of the defendant.
"A trade fixture is "[r]emovable personal property that a tenant attaches to leased land for business purposes, such as a display counter . . . Despite its name, a trade fixture is not usu[ally] treated as a fixture — that is, as irremovable." Black's Law Dictionary, (7th Ed.); see Slosberg v. Callahan Oil Co., 125 Conn. 651, 653, 7 A.2d 853 (1939); see also Beebe v. Richards, 115 Cal. App. 2d 589, 590-91, 252 P.2d 688 (1953). A trade fixture is an article owned and attached to a rented space of a building by a tenant and used in conducting business (Appraisal Institute, The Appraisal of Real Estate, at 9).
For an item to qualify as a trade fixture, the tenant must annex the fixture to leased property for the purposes of the tenant's business without the intention that the fixture become a part of the leased property, and the removal of the fixture from the leased property must not result in serious injury to the leased property. See Slosberg v. Callahan Oil Co., supra, 125 Conn. 653.
"Trade fixtures are a separate class of goods from other fixtures. In distinguishing between trade fixtures and building fixtures, courts consider the three-part test employed to determine whether an item is a fixture or personal property, that is, the courts consider annexation, adaptation, and intent." 35A Am. Jur. 2d, Fixtures, 868, § 35. (2007). "The question as to whether a particular piece of property is personalty or a fixture is a question of fact." ATC Partnership v. Town of Windham, 268 Conn. 463, 479 (2004).
As noted above, the plaintiff testified that the displays were shown to prospective customers as examples of his work. The plaintiff testified that he had never brought any of the displays to a home show. Although the plaintiff acknowledged that no one had ever purchased a display, he said that he would sell one if he were asked and received the right price.
"To constitute a fixture, it is essential that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which [the realty] was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article." (Internal quotation marks omitted, Emphasis added). Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 215-16, 477 A.2d 988 (1984); see also Vallerie v. Stonington, 253 Conn. 371, 372, 751 A.2d 829 (2000); ATC Partnership v. Town of Windham., 268 Conn. 463, 472 (2004).
As far as annexation is concerned, the evidence clearly shows that there can be no question that the displays were firmly annexed to the premises. The displays were custom built and the degree of their attachment was described as having been installed in the same manner as they would have been if they were installed in a home. Applying the adaptation test, the displays were not articles which were important to the use or purposes to which the defendant's building was devoted. The parties agree that the building was industrially zoned and when the plaintiff took occupancy, the leased premises were described as "open" space. In this case, the plaintiff's testimony made it clear that, as the annexer, he intended to treat the displays as trade fixtures.
Paragraph 3 of the Lease sets forth the permitted uses for the premises. The following handwritten permitted use is inserted in the space provided: "An office, warehouse, storage, shop assembly and showroom." (Emphasis added).
The court finds on the basis of the factual evidence presented that the displays constructed by the plaintiff on the second level were trade fixtures.
The Time for Removal
The parties did not specifically address the time limit for the removal of the plaintiff's trade fixtures in the Lease. In the absence of any express provision in the Lease, the court must look to common law principles for the time limitation. The time within which a tenant is required to remove annexations from leased premises is addressed in Section 12.3 of The Restatement (Second) of Property (Landlord Tenant).
Section 12.3 provides:
"When the time specified in this section is controlling under the rules stated in § 12.2, in regard to the restoration of the leased property to its former condition by the tenant, or in regard to the removal by the tenant of annexations he has made to the property,
(1) that time is a reasonable time after the lease terminates, if the termination of the lease is not due to a breach by the tenant of his obligation and the date is not foreseeable by the tenant sufficiently far in advance to enable him to make the restoration or to accomplish the removal on or before the date the lease terminates (Emphasis added); and
(2) in situations not governed by subsection (1), that time is on or before the lease terminates, unless equitable considerations justify some extension of time, in which case, that time is on or before the expiration of the extended period, but the tenant is liable for the special damages sustained by the landlord as a result of the period of restoration or removal being extended beyond the termination of the lease (Emphasis added)."
Under the provisions of subsection (1), a tenant should be granted a reasonable time after his lease terminates to remove his annexations to the property and restore the premises if the termination is not due to a breach by the tenant and the termination date is not sufficiently foreseeable. Subsection (2) provides that in situations, other than those governed by subsection (1), the tenant must remove his annexations and restore the premises on or before the termination of the lease unless equitable considerations justify an extension. In this case, the court was not presented with any equitable considerations which would justify an extension. Moreover, the plaintiff offered no evidence that the defendant waived performance by the plaintiff to restore the premises within the time permitted.
"Where a tenant has the privilege of removing an article brought onto the premises, some courts require that a tenant for a definite term remove the article by the end of its term, or at least by the end of its possession as tenant. This forfeiture rule resulting from delayed removal of trade fixtures is sometimes based on a presumption of abandonment." Powell on Real Property, Vol. 8, Ch. 57, § 57.06[5][b].
In Connecticut, absent agreement, a tenant is required to remove his fixtures upon termination of the lease whether by expiration of the term or otherwise. "Where the term is surrendered, or is put an end to by the lessor under a forfeiture clause for some act or omission of the tenant, and he is put out of and the lessor is put into possession, the right of the tenant to remove his fixtures, in the absence of special agreement or special circumstances affecting his right to remove, is gone as effectually as if the term had expired by lapse of time." Morey v. Hoyt, 62 Conn. 542, 546-47, 26 A. 127 (1892).
Accordingly, the court finds that the plaintiff was under a duty to remove the displays on termination of the Lease.
Termination of the Lease
The defendant claims that the plaintiff breached his obligations under the Lease. Under Connecticut law, a lease is a contract and as such, is subject to the same rules of construction as other contracts. (Citation omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007). Whether there was a breach of contract is ordinarily a question of fact. Czaplicki v. Ogren, 87 Conn. App. 779, 785, 868 A.2d 61 (2005).
"It is well settled that breach of a covenant to pay rent does not automatically result in the termination of a lease . . . rather, it gives the lessor a right to terminate the lease which he may or may not exercise. . . . In order to effect a termination, the lessor must perform some unequivocal act which clearly demonstrates his intent to terminate the lease. (Citations omitted.)." Waterbury Twin v. Renal Treatment Centers-Northeast, 292 Conn. 459, n. 17. 974 A.2d 626 (2009).
In the present case, the plaintiff admitted that he ceased paying rent in August, 2002. When the plaintiff failed to pay the rent, the defendant served the plaintiff with a notice to quit on September 25, 2002. "The issuance by a landlord of a notice to quit is an unequivocal act terminating the lease agreement with the tenant." (Citation omitted). O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372, 576 A.2d 469 (1990). Here, the plaintiff's lease was terminated by the defendant's service of a valid notice to quit on September 25, 2002.
Forfeiture
A tenant may remove buildings or improvements pursuant to the terms of its lease, but failure to do so ordinarily causes title to the improvements to merge into the real estate. Merrell v. Garver, 54 Ind. App. 514, 525, 101 N.E. 152, 156 (1913). See also Time Within Which Tenant's Right to Remove Trade Fixtures Must Be Exercised, 109 A.L.R. 5th 421, 2003 WL 21026910 (West 2003).
"The annexer of an article may waive the right to remove a fixture, such as by failing to remove the article during the period set out in a valid agreement, or within the applicable period established by law. Trade fixtures, if left attached to realty and abandoned by the lessee, become part of the realty of the lessor." 35A Am. Jur. 2d, 933, Fixtures, § 123. (2007). Failure to remove trade fixtures can result in a forfeiture which means the fixtures become part of the realty and the owner of the fee is vested with title in the fixtures. Vermillion v. Fidel, 256 S.W.2d 969 (Tex.Civ.App.-1952 Amarillo, no writ).
The plaintiff admitted that that he took no action to remove any of his possessions, including the displays, from the time that he was served with the notice to quit on September 25, 2002 until January 17, 2003 when the state marshal put him out. As noted above, the plaintiff made no written demand for the return of his property until his letter to the defendant's attorney dated February 28, 2003.
The plaintiff apparently had the means to store his trade fixtures if he acted timely. The defendant offered evidence that the plaintiff entered into a lease for storage space in Bloomfield with U-STORE IT on November 4, 2002. (Defendant's Exhibit G). The plaintiff also acknowledged that he had secured a new business location in Windsor Locks.
The plaintiff testified that the defendant told him he could not return to the premises. The defendant denied the plaintiff's claim and testified that he told the plaintiff he could return but that he needed to come during the week because the defendant did not work on Saturday or Sunday. The plaintiff's cousin, Mark Tracy, who assisted the plaintiff in removing his property acknowledged that they desired access to the premises on the weekend because it was "more convenient." Although the testimony was conflicting, the plaintiff requested at least two months from the defendant to remove the displays.
The defendant testified that the plaintiff constructed the second floor addition without his consent and without any permits or approvals from the Town of Bloomfield. The defendant also testified that the second floor addition on which the displays were built was fastened to the walls and constructed without adequate weight bearing support other than a used trolley rail. The defendant testified that he was under pressure from the Bloomfield Building Inspector to remove the second floor apartment since it was not a permissible use, was built without permits, the electrical and other work was performed by the unlicensed plaintiff and the structure constituted a continuing safety hazard.
Conclusion Re: Displays
The displays were trade fixtures which, when installed, became annexed to the premises. When the plaintiff failed to remove them at, or prior to, the foreseeable termination of the Lease, or even within a reasonable period of time following termination of the Lease, the displays were forfeited to the defendant and became part of the realty. On the facts of the present case, the court finds that when the plaintiff was removed from the premises on January 17, 2003, and at all times thereafter, the defendant was under no legal obligation to return the displays to the plaintiff.
B. Illegal Entry and Detainer
The plaintiff's second count also claims that the defendant committed a forcible entry and detainer in violation of General Statutes § 47a-43.
The defendant's special defense asserts that the dismissal of the plaintiff's previous § 47a-43 lockout complaint is dispositive of the plaintiff's claim under the doctrine of the law of the case.
Where an issue has been ruled on in the course of litigation it is considered the law of the case and is not lightly changed. McCarthy v. McCarthy, 55 Conn. App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000). The doctrine is a flexible one, but the reasons behind it are compelling. "A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." Bowman v. Jack's Auto Sales, 54 Conn. App. 289, 293, 734 A.2d 1040 (1999).
The plaintiff's complaint fails to clearly state whether the entry complained of in the second count is the same entry which was the subject of his previous verified lockout complaint which was dismissed or whether count two alleges some other entry by the defendant. Any illegal entry complained of or which could have been be raised prior to January 17, 2003 was disposed of with the dismissal of the plaintiff's previous lockout complaint on January 27, 2003. To prosecute an action for illegal entry after January 17, 2003, the plaintiff would need to show that he was in actual possession of the premises. "A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed." Communiter Break Co. v. Scinto, 196 Conn. 390, 393, 493 A.2d 182 (1985).
In addition to his inability to show possession after he was removed by the marshal on January 17, 2003, the plaintiff's claim of entry and detainer in count two, however, suffers from an additional infirmity.
Under the provisions of General Statutes § 47a-43 (a), a person who is put out of possession or who claims to have been otherwise aggrieved by the actions of a landlord or other wrongdoer "may exhibit his complaint to any judge of the Superior Court." General Statutes § 47a-43 (b) mandates that "Such judge shall forthwith issue a summons to the party complained of . . . to notify him to appear within eight days from the exhibition of such complaint. . . ." General Statutes § 47a-43 (c) further mandates that "Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial." General Statutes § 52-589 provides that "No complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of."
In the present case, the plaintiff's original one count complaint filed on May 12, 2003, alleged that the defendant "damaged and/or threw away the Plaintiff's said trade fixtures, displays and business and personal property, to the Plaintiff's financial loss and detriment." On May 24, 2005, the plaintiff's claim under General Statutes § 47a-43 was added as count two of the plaintiff's amended complaint.
In the present case, the court has not been presented with a complaint under oath, has not been requested to issue a summons nor has it issued one as provided for in § 47a-43 (b), nor has any such summons be served on the defendant six days prior to the day appointed for trial.
As the issues raised by the plaintiff have already been decided within the context of the previous entry and detainer action and since the plaintiff has failed to present a justiciable claim in this action, the court enters judgment in favor of the defendant on the plaintiff's claim that the defendant violated Connecticut General Statute § 47a-43.
Count One
The first count of the plaintiff's second amended complaint claims that as a consequence of the defendant's tortious conduct, the plaintiff was unable to conduct his business.
"`[F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously.' (Citations omitted.)" Blake v. Levy, 191 Conn. 257, 261 (1983) quoting Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-02, 374 A.2d 179 (1977); see also Jones v. O'Connell, 189 Conn. 648, 650, 458 A.2d 355 (1983). The burden is on the plaintiff "to plead and prove at least some improper motive or improper means" on the part of the defendants. Blake v. Levy, supra, 262; Solomon v. Aberman, 196 Conn. 359, 365 (1985).
"Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort." (Citations omitted; internal quotation marks omitted.) Biro v. Hirsch, 62 Conn. App. 11, 21-2, cert. denied 256 Conn. 908 (2001).
"A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously. . . ." Jones v. O'Connell, 189 Conn. 648, 660, 458 A.2d 355 (1983).
"A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Citations omitted). Appleton v. Board of Education, 254 Conn. 205, 212-13 (2000).
Tortious interference with business expectancy is a recognized cause of action in Connecticut. Biro v. Hirsch, supra 11. However, the elements of such a claim require the existence of a business relationship between the plaintiff and another party. Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000).
Here, the plaintiff not only failed to offer evidence of the defendant's knowledge of a business relationship with a third party with the intent to interfere with that relationship, the plaintiff failed to offer any proof of the existence of any such business relationship. The plaintiff acknowledged at trial that he could produce no evidence of any contracts that he lost as a result of the defendant's conduct.
The plaintiff's prospects appeared limited by his acknowledgement that he held no certificate of registration required by the Connecticut Home Improvement Act, General Statutes § 20-418, which is required to perform home improvement work. The plaintiff also admitted that he had more than ten convictions for performing home improvements without a certificate of registration as required by the Act. Moreover, the plaintiff's federal income tax returns for the calendar years 1999, 2000, 2001, 2002 and 2003 show reported losses of $28,427, $32,677, $44,858, $51,333 and $53,989 respectively. (Defendant's Exhibits B, C, D, E, and F).
The plaintiff, having failed to prove the elements of a claim of tortious interference with a business expectancy, cannot prevail on count one of his complaint.
Count Three
As noted, the plaintiff withdrew count three on the first day of trial.
Count Four
The plaintiff alleges in count four that the defendant's actions violated Connecticut General Statute § 52-564. The defendant asserts as a special defense that he "removed some of the Plaintiff's property only after the Plaintiff had been given ample opportunity to remove it, but refused and failed to do so, and the town was insisting on removal of the illegal buildout."
Connecticut General Statute § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
"Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.). Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).
The elements of civil theft are also largely the same as the elements to prove the tort of conversion, but theft "requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Id., 771. The plaintiff, here, failed to allege a cause of action for conversion.
The plaintiff's burden to prove statutory theft pursuant to § 52-564 was by clear and convincing evidence. See Suarez-Negrete v. Trotta, 47 Conn. App. 517, 520, 705 A.2d 215 (1998). "Clear and convincing proof is a demanding standard denot[ing] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Citation omitted; internal quotation marks omitted.) Chernick v. Johnston, 100 Conn. App. 276, 280, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).
As noted above, the defendant credibly testified that his conduct was motivated by the pressure he was receiving from the Town of Bloomfield to remove the unauthorized and unsafe second floor construction. Moreover, the testimony at trial clearly showed that the defendant's actions were well intended and even helpful to the plaintiff.
The plaintiff has failed to prove that the defendant's intention was to deprive the plaintiff of his property or to appropriate the same to himself or a third person. Judgment is entered for the defendant on count four.
Count Five
The plaintiff alleges in count five that the defendant's actions constituted an unfair trade practice within the purview of the Connecticut Unfair Trade Practices Act, General Statutes Section 42a-110a et. seq. ("CUTPA"). In this case, any CUTPA violation would be derivative from the other counts addressed above.
Although not alleged in his complaint, the plaintiff argues that the defendant's failure to remove him and his possessions from the premises in proper compliance with the summary process execution procedure constitutes a "per se" violation of CUTPA.
Our courts have only held conduct to be a per se violation of CUTPA when a statute specifically deems that conduct to be an unfair or deceptive trade practice under CUTPA, § 42-110b (a). See Hees v. Burke Construction, Inc. 290 Conn. 1, 14, 14 n. 11, 961 A.2d 373 (2009); Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 727, 652 A.2d 496 (1995); D'Angelo Development Construction Corp. v. Cordovano, 121 Conn. App. 165, 181, A.2d (2010); Scrivani v. Vallombroso, 99 Conn. App. 645, 652, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007).
Most recently, our Supreme Court rejected an argument that a violation of the Warranties Act, General Statutes § 47-116 et seq., is a per se CUTPA violation because no provision of that statute makes the warranties act a CUTPA violation. Naples v. Keystone Building Development Corp., supra, 295 Conn. 229 n. 17. The court, in Naples, said: "Unlike the Home Improvement Act; General Statutes § 20-418 et seq.; which provides specifically that a violation `shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b'; General Statutes § 20-427 (c); the warranties act contains no such per se provision." Id.
Since there is no language in either § 47a-42 or § 47a-42a which imposes per se liability for violation, the plaintiff's argument that any such violation of either statute is a per se CUTPA violation must fail.
Having found that a failure to comply with the statutory procedures set forth in § 47a-42 or § 47a-42a does not constitute a per se CUTPA violation, the court is required to determine whether the defendant's conduct in connection with the removal of the plaintiff's possessions and personal effects and restoration of the premises violated CUTPA.
In the absence of a per se CUTPA violation, "[i]t is well settled that in determining whether [an act or] practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when [an act or] practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. . . ." Jacobs v. Healey Ford-Subaru, Inc., supra, 231 Conn. 725-26.
In the present case, the plaintiff has failed to prove that the actions of the defendant support a finding of unfairness or deceptive practice under any of the three criteria set forth in the cigarette rule.
The court finds for the defendant on count five.
THE DEFENDANT'S COUNTERCLAIM
The defendant filed the following three count counterclaim.
The first count of the counterclaim alleges breach of contract and seeks to recover unpaid rent, attorneys' fees and other costs of collection.
The second count of the counterclaim seeks attorneys' fees and costs incurred by the defendant in connection with his summary process action against the plaintiff.
The third count of the counterclaim alleges that the plaintiff made alterations to the premises without the permission of the defendant and without proper licenses and permits which caused the defendant to incur substantial costs to restore the premises and losses during the period of restoration.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn. App. 719, 728, 916 A.2d 834 (2007).
"The general rule is that the burden of proving a counterclaim is on the defendant." Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 166, 411 A.2d 1371 (1979); see Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 413, 144 A.2d 60 (1958).
Count One
In count one of his counterclaim, the defendant seeks damages for unpaid rent, use and occupancy, late charges and lost future contractual rent.
"When the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender . . . Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages." (Citations omitted.) Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 388, 558 A.2d 265 (1989). "When the landlord elects to terminate the tenancy . . . the action is one for breach of contract . . . and, when the tenancy is terminated, the landlord is obliged to mitigate his damages. When the tenancy ends, the tenant is released from his obligations under the lease and is, therefore, no longer obliged to pay rent." (Citations omitted). Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., supra, 388-89. "[T]he unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant's breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach . . . [I]n an action for breach of a lease, the amount of rent agreed to by the parties is a proper measure of damages." (Citations omitted; internal quotation marks omitted.) Id., 389-90.
Under the terms of the Lease the plaintiff was obligated to pay the monthly sum of $1,543.33 plus $416.67 as additional rent for taxes and insurance during the period of July 15, 2002 through July 15, 2004. The defendant submitted evidence that the plaintiff is responsible for rent or use and occupancy for twelve months until the premises were relet. (Defendant's Exhibits T and U). The defendant leased the premises to a new tenant at a monthly rent of $1,333.33 (Defendant's Exhibit U), leaving the plaintiff liable for the difference of $626.67. The court awards damages for lost rent under count one of the counterclaim in the sum of $31,040.04. The court also awards late charges of $200 at the rate of $100 per month for the two months prior to service of the notice to quit. The court denies the request for the real estate commission in the sum of $4,172.00 to secure the new tenant.
Count Two
The second count of the defendant's counterclaim seeks attorneys' fees and costs incurred in connection with the defendant's summary process action. Specifically, the defendant requests attorneys' fees of $743.25 for the 2001 summary process action which was settled and $3,780.75 for the summary process action which led to this action. The court finds the plaintiff liable to the defendant for attorneys' fees in the sum of $4,524.00 pursuant to paragraph 21 of the Lease.
CT Page 9986
Count Three
In the third count of the defendant's counterclaim, the defendant seeks reimbursement for the cost to remove the second floor addition installed by the plaintiff without his consent, to restore the premises to their original condition prior to the plaintiff's occupancy and for additional damage to the defendant's building.The defendant claims damages in the amount of $24,000 for the installation of a new roof on the building. The plaintiff admitted that he installed a satellite dish on the roof of the building. The defendant offered evidence of holes in the roof for the satellite dish and to vent a gas fireplace or other device. (Defendant's Exhibit HHH, Photos 2 and 4). The defendant offered testimony from a principal in the firm that replaced the roof who testified that the areas of the roof where the holes were made were improperly sealed by someone who used the wrong kind of sealing material. The defendant claims that the replacement of the roof was necessary to "keep his existing tenant" in adjacent space and to "lease the space formerly occupied by the plaintiff." The roof was replaced August 19, 2003.
The defendant submitted a "Roof Investigation and Service Report" from C M Exterior Renovations, LLC dated November 18, 2002 (Defendant's Exhibit Y-1). The report shows that the holes in the roof were repaired. The invoice for the cost of the repairs (Defendant's Exhibit Y) was $1,116.71. The report form, however, has three "Roof Evaluation" boxes, marked "Good," "Fair" and "Poor". The roof evaluation box on the form checked by the repair person is "Good". (Defendant's Exhibit Y-1).
"[T]he mere fact of damage does not necessarily make the tenant liable. Proof of property damage requires evidence. The landlord bears the burden of proof on all elements of a damage claim. This means that the landlord must prove that (a) the damage occurred, (b) it exceeded normal wear and tear, and (c) it was caused by the tenant. Damage may be shown either by direct evidence or circumstantially. However, a tenant is not liable for damages that already existed when he moved into the apartment or for damage which occurred after he vacated. Similarly, he is not liable for damage caused by persons for whom he is not responsible." (Citations omitted). Baroudjian v. Stribling, No. CVWA 9703-1419 (Nov. 19, 1997, Levin, J.). The court finds that the defendant failed to sustain his burden to prove that the six year old roof over the entire 8,000 square foot building needed to be replaced. The court awards damages for the repairs to the roof evidenced by Defendant's Exhibits Y, AA, BB and CC for a total of $1,896.74.
The defendant also submitted a claim for $7,972.50 from Roby Clough (Defendant's Exhibit MM). The vendor, Clough, did not testify. His undated invoice for the installation of sheet rock and four doors was supported only by the testimony of the defendant's office manager, Karen Fillian, who described the work as necessary to restore the premises to their original condition. On cross examination, Fillian acknowledged that she did not know the condition of the premises at the time that the plaintiff took occupancy and had no direct knowledge of the actual work done. Furthermore, although the office manager testified that she had been employed by the defendant for six years at the time of her testimony, it was not clear whether she was employed by the defendant during the controversy. The defendant has failed to provide sufficient evidence to support the claim in Exhibit MM.
The defendant submitted an invoice from Scobar Electrical Contractors (Defendant's Exhibit OO) in the amount of $2,616.08 for electrical work. The invoice describes the work as having installed "owner supplied high bay lights" and for the repair of bathroom lights on the "FIRST AND SECOND LEVEL." The invoice reports that the work was done between June 12, 2003 and July 29, 2003. The reference in the invoice to the bathroom on the second level contradicts the defendant's claim that the second level, which included the bathroom constructed by the plaintiff, needed to be removed. There was no explanation for the discrepancy. Furthermore, the defendant's rent ledgers report that the new tenant was given a rent credit for the build out of the new tenant's space. Finally, the testimony was clear that when the plaintiff took occupancy, the premises were "open" space.
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim of defense." (Citations omitted). Tait's Handbook of Connecticut Evidence (3rd Ed. 2001) Sec. 3.3.1, p. 136. The lack of precision in identifying and distinguishing the work that was necessary to restore the premises from the work that was done to make the premises suitable for the new tenant makes it impossible for the court to properly determine the damages sustained by the plaintiff's breach without resorting to speculation. The court finds that the plaintiff is liable for the cost of restoring the premises to their open space condition but not for the costs of fitting out the space for a new tenant.
In accordance with the foregoing, the court finds that the defendant has provide sufficient evidence to support his claim for the following invoices were necessary to restore the premises to their prior condition.
CT Page 9988
1. Windsor Sanitation (Removal, Exhibit RR)..............$5,689.76
2. Labor to Remove Illegal Build-Out, Exhibit 78).......$21,411.25
CONCLUSION
The court finds and awards the defendant the following damages on the counterclaim. Unpaid rent, $31,040.04. Unpaid late charges, $200.00. Attorneys' fees and costs, $743.25 plus $3,780.75 for a total of $4,524. Repairs to the roof, $1,896.74. Unpaid CLP bill, $169.89. Unpaid CNG bill, $12.98. Expenses of restoring the premises, $27,101.01. Total judgment in the amount of $64,944.66 is entered against the plaintiff in favor of the defendant on the counterclaim.
SO ORDERED.