Estate Of Stephen E. Owens v. Ctre LLC, 31401.
| Decision Date | 03 August 2010 |
| Docket Number | No. 31401.,31401. |
| Citation | 123 Conn.App. 61,998 A.2d 1285 |
| Court | Connecticut Court of Appeals |
| Parties | ESTATE OF Stephen E. OWENS v.CTRE, LLC. |
Karl Fleischmann, West Hartford, for the appellants (named plaintiff et al.).
Robert J. Piscitelli, East Hartford, for the appellee (defendant).
HARPER, ALVORD and PETERS, Js.
The principal issue in this action for breach of contract is whether a commercial tenant waived its right to enforce a provision in its lease warranting that “a permanent certificate of occupancy or equivalent certificate has been or prior to Tenant's occupancy will be issued covering the Building and permitting the use of the Premises for such purpose.” It is undisputed that, because of preexisting zoning violations on the premises, the landlord could not obtain such a certificate at the time the lease was signed. It is equally undisputed that, because of changes in its professional needs, the tenant never conducted business at the leased premises. The trial court concluded that the tenant nonetheless established, in other ways, that it had been an occupant of the leasehold and therefore was entitled to terminate the lease because of the landlord's breach of warranty. The landlord's successor in interest has appealed. We affirm the judgment of the court.
The plaintiff, Lewis R. Labbadia, executor of the estate of Stephen E. Owens, brought an action for unpaid rents allegedly due pursuant to a commercial lease between the decedent and the defendant, CTRE, LLC, doing business as Prudential CT Realty, for premises at 21 East Main Street in Mystic. The defendant filed both a denial and a counterclaim for breach of warranty to recover the amount of its rental payments and other related expenses. After a court trial, the court rendered judgment in favor of the defendant on the complaint and on its counterclaim in the amount of $171,833.33.1 The plaintiff has appealed.
The underlying facts are undisputed. On November 29, 2004, Owens entered into a five year commercial lease with the defendant for part of the premises at 21 East Main Street in Mystic, a section of the town of Stonington. The stipulated annual rent was $43,200, payable in monthly installments of $3600.
The lease contained three provisions that are relevant to the present controversy. Paragraph 5.1 stated that the defendant would use the premises as a real estate brokerage and for related uses incidental or accessory thereto. That paragraph also provided that “a permanent certificate of occupancy or equivalent certificate has been or prior to Tenant's occupancy will be issued covering the Building and permitting the use of the Premises for such purpose.” Further, paragraph 18 warranted that the building “is zoned to permit the full and complete operation of a real estate business office” and stated that the lease “shall be voidable at the Tenant's option if the Landlord cannot warrant the above.”
Within a year of the signing of the lease, the defendant decided that it no longer needed the rented space. Because of the absence of a certificate of zoning compliance, the defendant was unsuccessful in its effort to sublease the property. Consequently, in two letters dated June 20 and August 16, 2007, the defendant notified Owens of its intention to rescind the lease because of his breach of warranty.2 The defendant's own application to obtain such a certificate subsequently was denied by the Stonington zoning enforcement officer on August 24, 2007. Although site plan approval is a prerequisite to a zoning permit in Stonington, the plaintiff did not obtain site plan approval for use of the property as a real estate brokerage until August 19, 2008.
The trial court addressed four issues in its memorandum of decision. It held that (1) the defendant's failure to occupy the premises as a real estate office did not operate as a waiver of the defendant's right to enforce Owens' breach of warranty, (2) Owens' failure to obtain a certificate of occupancy or a certificate of zoning compliance was a breach of his obligations under the lease, (3) because of Owens' breach, the plaintiff was not entitled to recover unpaid rentals for the remainder of the rental term and (4) the defendant sustained its burden of proof in its claim for return of its rental payments in its amended counterclaim and proved its right to damages of $171,833.33.
In reaching these conclusions, the court relied on the unchallenged and uncontradicted testimony of two Stonington zoning enforcement officers, Wayne Greene and Joseph M. Larkin. They described at length the zoning implications of the contemplated use of the first floor of the main building at 21 East Main Street as a real estate brokerage. The court found credible their testimony that a history of zoning violations on the property and the absence of a zoning permit for its currently contemplated use would have precluded the issuance of the certificate of zoning compliance that was required by the lease.3
The plaintiff's appeal raises four issues. He maintains that the trial court improperly (1) determined that the defendant had not waived Owens' obligation to obtain a certificate of occupancy, (2) relied on evidence of irrelevant zoning violations, (3) failed to assign dispositive weight to a letter from the Stonington town planner and (4) failed to find that the plaintiff had proven his claim for damages.4 We are not persuaded.
The plaintiff's principal claim on appeal, as it was at trial, is that Owens never became obligated to obtain a certificate of occupancy for use of the leasehold premises as a real estate office because the defendant never occupied the premises. He emphasizes that the defendant never installed telephones or desks on the premises and did not conduct its real estate business there. We agree with the plaintiff that, in the absence of a dispute about the underlying facts, he is entitled to plenary review of this claim of law. Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109, 900 A.2d 1242 (2006). We are not, however, persuaded of the merits of his claim.
In its determination that the defendant had become an occupant of the property, the court relied on the Black's Law Dictionary definitions of “occupancy” as the “period or term during which one owns, rents or otherwise occupies property,” and of “occupant” as “[o]ne who has possessory rights in, or control over, certain property or premises.” See Black's Law Dictionary (8th Ed.2004). It held that the defendant met the definition of occupant because, The period of rental payments, the court earlier had observed, was two and one-half years.
The plaintiff takes issue with the court's holding on two grounds. He maintains that the court improperly 1) relied on and applied the Black's Law Dictionary definition of occupancy to the facts of record and (2) failed to assign dispositive weight to two letters in which the defendant's counsel had informed Owens that, “because of other business opportunities ... [the defendant] never occupied the premises” and wanted “to rescind the lease.”
Criticizing the trial court's reliance on Black's Law Dictionary, the plaintiff complains that the dictionary takes “too loose” a view of the meaning of occupancy. He has not, however, cited any more authoritative source on which we should rely. Our courts regularly have relied on a law dictionary to ascertain the meaning of otherwise undefined terms.6 Like the trial court, we do not finding illuminating the examples of “occupancy” that the plaintiff proffers as paradigmatic. The plaintiff's references to the meaning of “occupancy” in military contexts, in the regulation of restaurant crowds or the management of public lavatories have no bearing on the issues in this case.
Specifically, we agree with the trial court that the defendant's failure to use the leased premises for the anticipated professional purpose does not outweigh the significance of its exercise of control over the premises through its possession of the keys thereto, its expenditure of funds to ready the property for use as a place of business and its payment of the stipulated rent even after its business needs changed. Further, when the defendant's professional needs changed, it conducted its affairs in a manner consistent with that of an occupant by investing its own resources to search for a subtenant for the leased property.
The two 2007 letters from the defendant's counsel to Owens do not require a different conclusion. Although these letters refer to a change in the defendant's business plans, each also contains a demand for rescission of the defendant's lease because of Owens' breach of warranty and a concurrent demand for repayment of past rent. Read in their entirety, these letters are not inconsistent with the defendant's present claims.
More important, however, although the trial court early in its memorandum of decision acknowledged the plaintiff's claim that these letters manifested an “anticipatory repudiation of the lease [that] constitutes a breach of the lease,” the court's opinion did not thereafter address this claim on its merits. The plaintiff has not rectified this gap in the record, either by filing a motion for articulation; see Practice Book § 66-5; or by filing a motion for reargument. See Practice Book § 66-2. “Because ...
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