No. CV04 040 88 37S
July 11, 2005
MEMORANDUM OF DECISION
The plaintiff, Sprouts for Better Living, LLC, brings this action against four defendants: Lake Hills Shopping Center, a General Partnership, Samuel Roberts and Albert J. Kleban, its general partners and Lake Hills Shopping Center, LLC.
On January 24, 1977, the plaintiff entered into an agreement with Lake Hills Shopping Center to lease a portion of a shopping center, located at 2250 Black Rock Turnpike, Fairfield, for a period of five years.
Within a few months, the plaintiff, which operated a health food emporium, modified the lease to encompass additional space. The Modification was concluded by the parties on June 18, 1997.
During the terms of the lease, Lake Hills Shopping Center, a partnership, became Lake Hills Shopping Center, LLC, a limited liability company. Sprouts, Inc. also assumed a different organizational form, and became Sprouts for Better Living, LLC in 1999.
Sprouts for Better Living, LLC admits that it was unable to make the rental payments required under the lease, and was in arrears in September 2001.
According to Marc Salkovitz, president of Sprouts for Better Living, LLC, the Lessor gave Sprouts until April 1, 2002 to cure the default, and bring the rental payments current.
If Sprouts failed to pay all rent due, eviction proceedings would be instituted.
In April of 2002, according to Salkovitz, Sprouts cured the default, and tendered back rent for eight months on April 29, 2002.
Salkovitz claims that at the time the back rent was paid, a representative of Lake Hills informed him that the existing lease could be renewed, as if the default had never occurred (see Affidavit of Marc Salkovitz, April 25, 2005).
In June of 2002, Sprouts agreed to relinquish one-half of its leased premises, to enable Lake Hills to rent the space to another tenant, Trader Joe's.
According to Sprouts, Lake Hills, acting through an authorized agent, agreed to enter into a new lease arrangement, and that a written document would be drawn up reflecting the agreement.
The promise to enter into a new lease was allegedly confirmed by Jacqueline Morris, the Lake Hills project manager, at the time the July 2002 rent was tendered.
In August of 2002, Salkovitz received a letter from Lake Hills informing him that Sprouts should vacate the premises by September 20, 2002, and that Lake Hills would not be a party to another lease agreement with Sprouts.
Lake Hills subsequently initiated eviction proceedings, based upon non-payment of rent. A judgment for immediate possession was entered, and Sprouts vacated the premises.
This action was begun, returnable January 13, 2004.
Sprouts claims damages based upon the failure of Lake Hills to enter into a new lease agreement as promised, following Sprouts, surrender of a portion of its leased premises in order to accommodate a lease to Trader Joe's.
Count One seeks recovery based upon the theory of promissory estoppel, while Count Two claims breach of a contract to enter into a lease agreement, and Count Three seeks damages for breach of the implied covenant of good faith and fair dealing.
A final count seeks damages under the Connecticut Unfair Trade Practices Act. (CUTPA), § 42-110a et seq. of the General Statutes.
All of the defendants have moved for Summary Judgment. They claim that this action is barred, under the doctrine of res judicata, because the issues could have been litigated in the summary process action begun in the fall of 2002.
They further claim that the oral promise to enter into a new lease is unenforceable, and that the plaintiff cannot prevail on either the promissory estoppel or the contract counts.
STANDARD OF REVIEW
A trial court may appropriately render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law. Bartha v. Waterbury House Wrecking, Co., 190 Conn. 8, 11 (1983); Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986).
Connecticut Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
In determining a motion for summary judgment, a trial court must view all of the evidence in the light most favorable to the nonmoving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995). The burden is upon the party seeking summary judgment to show quite clearly what the law is, and that it excludes any real doubt as to the existence of any genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984); Yanow v. Teal, 178 Conn. 262, 268 (1979).
A material fact is a fact that will make a difference in the outcome of a case. The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict, were the issue to be submitted to a jury. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969).
PLAINTIFF'S CLAIMS ARE NOT BARRED BY RES JUDICATA
The defendants claim that Sprouts could have litigated its right to possession of the premises in the summary process action, yet chose not to do so. They therefore urge that this action is barred through application of the doctrine of res judicata.
This claim is not persuasive.
The present action is not based upon any breach of the lease agreement entered into in January of 1997. The plaintiff does not seek to enforce any rights it might have under that agreement, or to regain possession of the premises it has vacated.
The claim made here is that the defendant promised to enter into an agreement for a new lease, and that the breach of that promise in August of 2002, when it declined to draft a new lease, caused damage to the plaintiff.
The plaintiff could not have argued in a summary process action for nonpayment of rent, that it was entitled to possession of the premises, based upon rights contained in a document which had not been finalized, or reduced to writing.
Furthermore, although equitable defenses are available in a summary process action, because equity abhors a forfeiture, the application of equitable principles is determined based upon a case-by-case analysis, and would not be susceptible to summary judgment on the facts provided. Fellow v. Martin, 217 Conn. 57, 65-67 (1991).
Fellows v. Martin involved a situation where, for the want of paying $21.01, monies withheld due to a parking space dispute, the tenant was claimed to have forfeited a 99-year lease, and advance rental payments of $9,900.
Even assuming resort to equity was appropriate, the determination is uniquely fact-based, and not ripe for summary judgment.
CLAIM OF PROMISSORY ESTOPPEL PROVIDES ISSUES OF FACT
The plaintiff claims that it reasonably relied upon the promise of Lake Hills to enter into a new lease, when it vacated space to accommodate Trader Joe's needs.
In order to prevail in a claim of promissory estoppel, the plaintiff must prove the existence of a clear and definite promise which the promisor reasonably expected to induce reliance. The promise need not be the equivalent of an offer to enter into a contract. Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05 (2003).
The promise must reflect a present intention to commit, and cannot be a mere expression of hope, desire or opinion. A promise upon which the promisor should reasonably expect to induce action is binding, if injustice can be avoided only by enforcing the promise. I Restatement (Second) Contracts, § 90. Whether a representation rises to the level of a promise, is a question of fact, in light of all of the circumstances. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6 (1995).
Here, a trier of fact could find that the plaintiff relied upon the promise to enter into a new lease, when it voluntarily relinquished half its leased space to Trader Joe's. Since issues of credibility are reserved for the trier of fact, whether the plaintiff's reliance was reasonable, and whether the alleged statement by the defendants' representative was sufficiently definite to constitute a promise, cannot be determined in a summary judgment proceeding.
WHETHER A CONTRACT WAS FORMED PRESENTS A QUESTION OF FACT
The plaintiff claims that the defendants are bound by an agreement to enter into a new lease agreement, on terms substantially similar to the January 1997 lease.
The plaintiff cites, as consideration for the contract, the abandoning of its space, something it was not required to do until the lease expired.
In order for a contract to exist, in addition to consideration, a plaintiff must demonstrate a present intention to undertake contractual obligations. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 215 (1927). There must be an actual agreement. Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406 (1974).
An agreement need not contain all terms. Even if an agreement may be too indefinite in its terms to be enforced, it may be certain enough to constitute a valid agreement for breach of which damages may be recovered. Augeri v. C.F. Wooding, Co., CT Page 11561 173 Conn. 426, 430 (1997). However, an agreement must be definite and certain as to its terms and requirements, and the meaning must be ascertained either from express terms, or by a fair implication. Augeri v. C.F. Wooding, Co., supra, 430; Corbin, Contracts (Rev. Ed. 1996) § 8.9, p. 29.
Whether the plaintiff can demonstrate that the promise was sufficient to give rise to a contract, and whether all necessary terms were agreed upon, represent questions of fact yet to be determined. The Motion for Summary Judgment as to Counts Two and Three must therefore be denied.
The defendant's Motion for Summary Judgment is denied as to all counts.