Hawley Avenue Associates, LLCv.Russo

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Connecticut Superior Court Judicial District of Fairfield at BridgeportJun 17, 2010
2010 Ct. Sup. 10566 (Conn. Super. Ct. 2010)
2010 Ct. Sup. 105662010 Ct. Sup. 12727

No. CV 1008037

June 17, 2010



This action brought by the Plaintiff, hereinafter called Hawley, against the Defendant, hereinafter referred to as Russo, in a two-count complaint. In the first count, the plaintiff claimed non payment of rent from December 2008 and thereafter and charges under the lease consisting of taxes and utilities (additional rent) from February 2009 and thereafter. The second count claimed detrimental reliance for real estate commissions paid as a result of the parties entering into the lease.

The Defendant filed an answer, a special defense and a setoff in which they admit some allegations, deny some allegations and lack sufficient evidence to admit or deny plaintiff's claim or assertion. The special defense asserts that Hawley is barred from recovery by then material breach of the lease, in failing to grant to the defendant access to the parking area described in the lease despite numerous demands by the defendant to correct the problem. By way of setoff, Russo claimed any money paid by them for parking while denied access to parking at the lease premises or any rent due to Hawley by the plaintiff's failure to provide access to the parking area.

The relevant facts are as follows: On or about February 5, 2002 the plaintiff entered into a written lease with the defendant for the use and occupancy of 6,973 square feet at the premises located at 63 Hawley Avenue, Bridgeport, Connecticut. Said lease was for a term of fifteen (15) years commencing February 1, 2002 and contained a clause which allowed an area of parking for Russo's vehicles. The parties agree that the same law firm, Quatrella and Rizio, represented the plaintiff and the defendant during the execution of the lease and continued to represent the parties for years after the signing of the lease.

In or about 2004, Hawley constructed a fence on the property to prevent or to limit illegal dumping occurring at the site. On or about June 9, 2005, Russo through his attorney Quatrella, claimed the inability to park his vehicles because of Hawley's fence. Said complaint was further voiced in letters by Russo's attorney dated July 21, 2005, November 11, 2007 and August 21, 2008. While there were discussions between Hawley and his attorney Rizio, and a discussion between Hawley and a business associate of Russo, and there may have been discussions between Rizio and Quatrella, there was never an actual discussion between the parties and the problem was never resolved. In December 2008, Russo abandoned the property citing the failure of the plaintiff to correct the parking question as a breach of the lease and has not paid any monies due and owing by Russo under the lease. In January 2009, the parties executed a surrender agreement and Hawley regained the property. Hawley commenced this action in April 2009.

"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." Sagamore Corporation v. Willcutt , 120 Conn. 315, 317-18 (1935). "When the landlord elects to terminate the tenancy, however, the action is one for breach of contract. Sagamore Corporation v. Willcutt , supra; and . . . the tenant is released from his obligations under the lease and is, therefore, no longer obliged to pay rent. K R Realty Associates v. Gasnon , 33 Conn. App. 815, 819 (1994)." In this case, a surrender agreement was executed by the plaintiff on January 26, 2009 and possession of the premises were regained by Hawley. The law clearly sees this action as a surrender or a termination of the tenancy. The plaintiff cannot claim that it has not terminated the lease or that the lease remains in effect to date.

"Although the termination of the tenancy releases a tenant from his obligations under the lease, such release does not leave the landlord without legal recourse to recover damages. Where a landlord, as in this case, elects to terminate the tenancy and to gain possession of the premises, although he cannot institute an action for rent under the lease, he may sue for a breach of the lease. Where the action is one for breach of the lease, basic contract principles apply." Rokalor, Inc. v. Connecticut Eating Enterprises, Inc. , 18 Conn. App. 384,388-89,558 A.2d 265 (1989). This appears to be the situation in this matter and the court will now proceed with it analysis under basic contract principles.

As previously noted, on or about February 5, 2002, the parties signed a lease setting the terms and conditions for the use and occupancy of the premises located at 65 Hawley Avenue. The plaintiff, by this action, has asked the court to enforce the obligations of Russo as required by that lease. Russo, by way of its special defense, has alleged a breach of the contract by the plaintiff in its failure to comply with paragraph 32.03 of a said lease and hence, claims it is relieved of any obligation under the lease. "A lease is nothing more than a contract." Robinson v. Weitz , 171 Conn. 545, 551, 370 A.2d 1066 (1976). "The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence." (Internal quotation marks omitted.) MP Drilling Blasting, Inc. v. MLS Construction, LLC , 93 Conn. App. 451, 454, 889 A.2d 850 (2006). Therefore, the court must first determine that a contract existed between the parties.

The court was presented with two copies of the lease, Plaintiff's Exhibits A and B. The exhibits differ only in that some language contained in paragraph 32.03 of Plaintiff's Exhibit B which is not found in Plaintiff's Exhibit A and that a drawing is attached to Plaintiff's Exhibit A which is not attached to Plaintiff's Exhibit B. The court was offered no testimony or evidence as to why Exhibit B had no drawing attached. Paragraph 32.03 of both exhibits state, in relevant part, "The lessee shall have the right to park in the parking lot immediately in front of the demises [sic] premises, which shall be reserved for Lessee's use. Lessee shall have the right and option to construct a fence around said parking area 55 feet by 35 feet existing from the entrance to the building,. . . ."

Mr. Scott Polatsek, the managing member for Hawley and the signer of the lease, testified that he believed the parking area consisted of an area of the parking lot surrounding the loading ramp. In support of his testimony, he referred to the drawing attached to Plaintiff's exhibit A which showed an area of 35 feet by 55 feet around the ramp leading to the loading dock. On cross examination, Mr. Polatsek acknowledged that the drawing also showed a pedestrian entrance but maintained the parking area should be as depicted by the diagram. In addition, Mr. Polatsek testified that the drawing wasn't originally a part of the lease but was created within a couple of days of the signing of the lease.

Dr. Robert Russo, the principal member of Russo and the signer of the lease, testified that he measured the parking area by walking off a box consisting of 55 feet by 35 feet from the pedestrian entrance located several feet to the right of the loading ramp. Additionally, he testified that he did not see the diagram attached to Exhibit A until it was produced as part of the discovery process for the current action. He further testified that he would have not accepted the diagram had he saw it before that time as it did not comply with his understanding for the parking area. This portion of Dr. Russo's testimony was echoed also by his attorney, David Quatrella.

"In order for an enforceable contract to exist, the court must find that the parties' minds had truly met. . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Internal quotation marks omitted.) MD Drilling Blasting, Inc. v. MLS Construction. LLC , supra, 456. This is clearly the situation in this case. The parties never agreed where the parking area would be located. Although the lease states "from the entrance to the building," the parties advocate different points for the entrance, Hawley indicating the loading dock door and Russo indicating the pedestrian door. Obviously, there is a misunderstanding between the parties, and a misapprehension by one or both so that their minds have never met.

Furthermore, the parties did not even agree on how the parking area would be shaped. Paragraph 32.03 indicates a parking area 55 feet by 35feet (emphasis added), yet Mr. Polatsek points to an area on the drawing which measures 35 feet by 55 feet. The court recognizes that these two measurements, which will produce the same square footage, however, will not produce the same shaped property. The court cannot and will not fashion an agreement for the parties that they themselves had not met. Mr. Polatsek's testimony shows even a greater distance in the parties' agreement in that his thoughts of the parking area included the loading dock ramp which would have reduced the square footage for parking which would have conflicted with Russo's desire for a particular sized parking area. The testimony shows that the sketch was added, at best, days after the signing of the lease by the defendant, at the request of his attorney, for the purposes of paragraph 1.01 of the lease and not for paragraph 32.03. For these reasons, the court cannot find a meeting of the minds concerning paragraph 32.03.

The question remains as whether the failure of the parties to have a meeting of the minds in regards to paragraph 32.03. constitutes an invalid contract, thereby relieving the defendant from any and all obligation under the lease. The plaintiff argues that since this is a commercial lease that, even if the parking clause fails, the defendant is not relieved of its obligations under the rest of the lease. Upon review of the case law of this state, there appears to be several cases which speak to the issue of independent or dependent clauses of a commercial lease. However, this court will note that these cases were decisions of Superior Court judges and not necessarily binding on this court.

In this case, the court finds that the parking issue was a major consideration to the signing of the lease. Dr. Russo testified that one of the prime reasons for leasing this location was the parking space being made available to the defendant. The parties spent appreciable time in fashioning the language concerning the parking and in fact, even added language to the parking clause which comprised one of the differences between Plaintiff's Exhibit A and B. Moreover, the court finds that the evidence shows that the additional language and the drawing attached to Plaintiff's Exhibit A were added after the signing of the lease by Russo and finds credible the testimony which indicates that the lease would not have been signed by Russo had they saw the drawing. Russo's complaints concerning the misunderstanding of the parking area relatively early in the term of the lease add further support to the importance of issue to the defendant. For these reasons, the court finds that the parking clause was an integral part of the lease and the failure to have a meeting of the minds concerning this clause relieves the defendant from any and all obligation under the lease. Consequently, the court finds for the defendant as to the first count.

Next, the court is not persuaded that the plaintiff has met its burden as to the second count of detrimental reliance. The defendant relies on Rodia v. Coppola , 2005 Conn. Supp. 14253, Docket No. CV05-4002816S, in support of its claim. However, Rodia , which is a Superior Court decision on a motion to strike turns, inter alia, on the issue of promissory estoppel. It does mention another Superior Court decision that recognizes that detrimental reliance may be enough to survive a motion to strike. Sorrentino v. Weber , 37 Conn. Rptr. 498 (2004). The cases do not provide any precedent nor is the court required, as previously noted, for the court to follow. Nonetheless, it is the finding of this court that in order to support a claim of detrimental reliance, there must be a showing that the party claiming the detrimental reliance did something extraordinary in reliance to a specific promise or promises made by the other

party. Here, Hawley's payment of the real estate commission was not based on any specific promise by Russo. Hence, the court finds for the defendant as to the second count.

Accordingly, judgment of the court shall enter for the defendant as to all counts.

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