Modzelewski v. William Raveis Real Estate, Inc.

• Decision Date: 18 September 2001
• Citation: 783 A.2d 1074,65 Conn. App. 708
• Court: Connecticut Court of Appeals
• Parties: ANN MODZELEWSKI ET AL. v. WILLIAM RAVEIS REAL ESTATE, INC.

65 Conn. App. 708

783 A.2d 1074

ANN MODZELEWSKI ET AL. v. WILLIAM RAVEIS REAL ESTATE, INC.

(AC 20580), (AC 21150)

Appellate Court of Connecticut.

Argued May 29, 2001.

Officially released September 18, 2001.

Spear, Mihalakos and Peters, Js. Richard L. Albrecht, with whom was Barbara M. Schellenberg, for the appellant (defendant).

Thomas G. Parisot, with whom was Patrick W. Finn, for the appellees (plaintiffs).

Opinion

MIHALAKOS, J.

The defendant, William Raveis Real Estate, Inc., appeals from the summary judgment rendered in favor of the plaintiffs, Ann Modzelewski, Theodore Modzelewski, Lenora White and Gordon White, in this summary process eviction proceeding. On appeal, the defendant claims that the trial court improperly (1) granted the plaintiffs' motion for summary judgment, thereby denying the defendant a full evidentiary hearing on its equitable defenses and (2) dismissed the defendant's counterclaim seeking a declaratory judgment of constructive or actual notice. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On November 4, 1996, the defendant entered into a written lease agreement with the plaintiffs with respect to a commercial condominium located in Southbury. Paragraph fourteen of an addendum to the lease provided in pertinent part: "At the expiration of the initial term, IF this lease shall be in full force and effect and Tenant shall have fully performed all of its terms and conditions, the Tenant shall have the option to extend this Lease for two separate and successive extended terms .... The Tenant shall exercise the option for an extended term by notifying the Landlord in writing at least six months prior to the expiration of the then current term. Upon such exercise this lease shall be deemed to be extended without the execution of any further lease or instrument." Paragraph twenty-five of the lease provided in pertinent part: "Any notice which either party may or is required to give, shall be given by mailing the same, postage prepaid to ... Lessor at the address shown below, or at such other places as may be designated by the parties from time to time." Paragraph twenty-six further provided in pertinent part: "Any holding over after the expiration of this lease, with the consent of Lessor, shall be construed as a month-tomonth tenancy...."

The defendant was required to notify the plaintiffs of its intention to renew the lease no later than May 5, 1999. On November 30, 1999, the defendant gave the plaintiff written notice of its intention to renew the lease. That notice was received by the plaintiffs on December 4, 1999. The defendant claimed that it inadvertently had deleted a notation regarding the date for furnishing notice to the plaintiffs from its office computer. The plaintiffs rejected the defendant's notice of renewal by certified letter on December 10, 1999. In the certified letter, the plaintiffs informed the defendant that they had contracted to sell the premises to a third party, William Pitt Real Estate Limited Partnership (Pitt), a direct competitor of the defendant. On December 10, 1999, the plaintiffs served the defendant with a notice to quit possession of the premises on or before January 17, 2000.

On December 17, 1999, the defendant brought an action against Lisa Giordano, Lenora White, Gordon White, Ann Modzelewski, Theodore Modzelewski and Pitt, claiming that (1) Giordano, Lenora White and the Modzelewskis were fiduciaries of the defendant, (2) Giordano, Lenora White and the Modzelewskis breached the fiduciary duty that they owed to the defendant, (3) Giordano owed the defendant the duties of faithfulness, honesty and loyalty and breached those duties, (4) Giordano owed the defendant the duty of good faith and fair dealing and breached that duty, (5) Giordano, the Whites, the Modzelewskis and Pitt had engaged in unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or business in violation of General Statutes § 42-110b (a)¹ of the Connecticut Unfair Trade Practices Act, and (6) Giordano, Lenora White and the Modzelewskis had constructive notice of the defendant's intent to renew the lease and therefore were estopped from denying the defendant the right of occupation.

In that action, the defendant sought (1) a temporary and permanent injunction enjoining the lessors from leasing the premises to anyone other than the defendant for the first extended term of the lease, (2) a temporary and permanent injunction enjoining Pitt from occupying the premises, (3) a temporary and permanent injunction compelling Giordano to return to the defendant any documents or materials of any kind that she had taken from the defendant, (4) a judgment declaring that the defendant gave the lessors constructive notice of its intent to renew the lease, (5) a judgment declaring that the lessors and Giordano are estopped from denying that the defendant has the right to occupy the premises during the first extended term of the lease (from November 5, 1999, to November 5, 2002), (6) a judgment declaring that the defendant is in lawful possession during the first extended term of the lease, (7) compensatory damages, (8) punitive damages pursuant to the common law and General Statutes § 42-110g,² (9) treble damages pursuant to General Statutes § 52-564,³ (10) attorney's fees pursuant to General Statutes § 42-110g,⁴ (11) interest and costs and (12) such other relief as the court deemed just and proper. That case is still pending in the Superior Court.

On February 1, 2000, the plaintiffs commenced the present summary process action, seeking to evict the defendant. The defendant asserted several equitable defenses, as well as a counterclaim for a declaratory judgment. In its counterclaim, the defendant claimed that (1) Giordano, Gordon White and Ann Modzelewski were fiduciaries of the defendant and (2) the plaintiffs had constructive notice of the defendant's intent to renew the lease. On February 4, 2000, the plaintiffs filed a motion to dismiss the defendant's counterclaim. On March 1, 2000, the trial court granted the plaintiffs' motion to dismiss the defendant's counterclaim, and the defendant appealed to this court. On March 3, 2000, the defendant sought to add a fourth special defense of constructive or actual notice. The court did not rule on that request. On May 12, 2000, a motion for summary judgment was filed by the plaintiffs. On August 28, 2000, the court granted the plaintiffs' motion for summary judgment. The defendant filed a separate appeal with this court.

I

We address the defendant's appeal in AC 20580 first. The defendant claims that the court improperly dismissed its counterclaim for a declaratory judgment of constructive or actual notice. We do not agree.

"The standard of review of a motion to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... Accepting as true the allegations in the complaint and all facts provable thereunder, in deciding whether a declaratory judgment action in a given case is appropriate, we allow the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete.... In sum, at least when there is a prayer for general equitable relief, it is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." (Internal quotation marks omitted.) Vincenzo v. Chairman, Board of Parole, 64 Conn. App. 258, 260-61, 779 A.2d 843 (2001).

In this case, the plaintiffs claimed in their motion to dismiss that the defendant's counterclaim should be dismissed under the prior pending action doctrine in that the same claim was brought by the defendant against the plaintiff and others in a separate action.

"We have explicated the prior pending action doctrine as follows: The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are...