Putnam Park Associates v. Fahnestock & Co.

• Decision Date: 15 October 2002
• Docket Number: (AC 21789)
• Citation: 73 Conn. App. 1,807 A.2d 991
• Court: Connecticut Court of Appeals
• Parties: PUTNAM PARK ASSOCIATES v. FAHNESTOCK AND COMPANY, INC.

73 Conn. App. 1

807 A.2d 991

PUTNAM PARK ASSOCIATES v. FAHNESTOCK AND COMPANY, INC.

(AC 21789)

Appellate Court of Connecticut.

Argued June 4, 2002

Officially released October 15, 2002

Schaller, Flynn and West, Js. James A. Fulton, for the appellant-appellee (defendant).

William J. O'Sullivan, with whom, on the brief, was Gale S. Dwyer, for the appellee-appellant (plaintiff).

Opinion

FLYNN, J.

This is an appeal from a judgment awarding $31,413.27 in liquidated damages to the plaintiff, Putnam Park Associates, for breach of a written lease contract by the defendant, Fahnestock and Company, Inc.. The trial court found that the defendant, who was the tenant under the lease, had breached its duty to pay "additional rent," over and above a base level of rent, to cover certain variable "excess expenses." The defendant claims that the trial court improperly (1) refused to hold that the plaintiff's allegations in its complaint were insufficient to sustain the judgment, (2) found that the plaintiff had provided statements to the defendant detailing the additional rent due within the time frame required in the lease and (3) found that the statements provided were certified in accordance with the provisions of the lease. The plaintiff cross appeals from that part of the court's judgment that denied the plaintiff's request for interest, late charges and attorney's fees and costs. The plaintiff claims that (1) the court's denial of interest and late charges was clearly erroneous, and (2) the trial court abused its discretion when it denied the plaintiff's request for attorney's fees and costs. We affirm that part of the judgment awarding damages for the defendant's breach of the additional rent terms of the lease. We reverse that part of the judgment denying the plaintiff's request for interest, late charges and attorney's fees and costs.

The following undisputed facts and procedural history are relevant to our resolution of these appeals. The defendant is a corporation that leased the second floor of a commercial building from the plaintiff for a five year term from November 25, 1987, through November 24, 1992. Pursuant to the written lease agreement for a Wethersfield office building, the defendant agreed to pay the lessor, the plaintiff, as additional rent its proportional share of the cost of certain real estate property taxes to the town of Wethersfield and certain other operating expenses, all as more particularly set forth in the rider to the lease agreement, which states in relevant part as follows:

"(d) (i) On or before March 1 of each calendar year (or as soon thereafter as is practical), Landlord shall deliver to Tenant a statement, certified by a partner of Landlord, of Tenant's proportionate share of Excess Expenses for the preceding year. If Tenant's proportionate share of the actual Excess Expenses for the preceding year exceeds the aggregate of the estimated monthly payments made by Tenant during such year, Tenant shall within ten (10) days of the receipt of such statement, tender to Landlord an amount equal to such excess as Additional Rent."

This dispute arises because the plaintiff did not bill the defendant until September of 1994 for the additional rent for the years 1990, 1991 and 1992. The five year lease between the parties had expired by its terms in November of 1992.

In count one of its two count complaint, the plaintiff claimed that for a period of three years, the defendant breached its contractual duty to pay "additional rent" to the plaintiff to cover variable "excess expenses," which included a share of the real estate taxes and operating expenses of the real property subject to the lease. The plaintiff's second count sounded in quantum meruit and was not addressed by the court.

In its answer, the defendant denied any current obligation to furnish the plaintiff with additional rent under the lease. The defendant advanced several special defenses. First, the defendant claimed that the plaintiff failed to follow the procedures described in the lease for obtaining additional rent. Specifically, paragraph (d) (i) of the rider to the lease stated: "On or before March 1 of each calendar year (or as soon thereafter as is practical), [the plaintiff] Landlord shall deliver to [the defendant] Tenant a statement, certified by a partner of Landlord, of Tenant's proportionate share of Excess Expenses for the preceding year." The defendant alleged that those procedures constituted a condition precedent to recovering additional rent. The defendant also claimed that the plaintiff waived its right to collect additional rent and that it was barred from recovering additional rent by the applicable statute of limitations and the doctrine of laches. The defendant also claimed that the plaintiff was not entitled to recover damages under its second count, which sounded in quantum meruit. Finally, the defendant alleged that it had surrendered the leased premises in 1992 and that any obligation to furnish additional rent terminated at that time.¹ The court found that the plaintiff's procedures for billing additional rent did not constitute the failure of a condition precedent to recovering additional rent. Although the plaintiff did not provide statements detailing the amount of additional rent due for the calendar years 1990, 1991 and 1992 until September 12, 1994, the court found that this delay was "commercially understandable." In its memorandum of decision, the court found that the litigants had established "an atmosphere in which late statements would be tolerated" through the course of the parties' performance. For the years 1989 and 1990, the defendant paid without objection invoices for additional rent that were sent to the defendant after the time permitted in the additional rent provisions of the lease. The plaintiff alerted the defendant that it had been embroiled in a dispute with its mortgagee concerning the proper amount of additional rent, which explained the delay in providing the statements. The court also noted that the lease provisions governing the procedure for obtaining additional rent contained flexible language and that the lease did not indicate that "time was of the essence." Paragraph (d) (i) of the rider to the lease stated: "On or before March 1 of each calendar year (or as soon thereafter as is practical), [the plaintiff] Landlord shall deliver to [the defendant] Tenant a statement...." (Emphasis added.) The court found that the plaintiff had sufficiently performed its duty to provide certified statements because a partner of the plaintiff, P. Christopher Henney, had "written and signed" the letter accompanying the statements.

The court awarded damages of $31,413.27, reflecting the amount of additional rent originally invoiced to the defendant for 1990, 1991 and 1992. The court did not award any damages for interest, late charges or attorney's fees and costs because it found that the defendant had raised and proven equitable claims, including laches, that should bar recovery of such damages. The present appeal and cross appeal followed. Further facts and procedural history will be set forth where necessary.

I

We first address the defendant's claim that the plaintiff is not entitled to judgment because it did not plead in its complaint that it complied with the terms of the lease. The defendant claims that a lease is like any other contract and that to succeed in a breach of contract claim, a plaintiff must plead in his complaint that he has performed his obligations under the terms of the agreement. The defendant cited Sortito v. Prudential Ins. Co., 108 Conn. 163, 167, 142 A. 808 (1928), and New Haven Metal & Heating Supply Co. v. Flanagan, 6 Conn. Sup. 488, 490 (1938), as purportedly supporting this proposition.

The trial court never decided the pleading issue in its memorandum of decision. It did not do so because when it inquired of the defendant's counsel during post-trial argument whether he was requesting the court to decide the case on that technical basis after a full trial, the defendant's counsel answered, "No."² The defendant never moved for an articulation or rectification from the trial judge. Appellants bear the burden of furnishing this court with an adequate record to review their claims. Practice Book § 61-10; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 386. Absent a clear record of the factual and legal basis underlying the trial court's resolution of an issue, we are unable to afford review. Accordingly, where the appellant claims that the trial court's decision is ambiguous, unclear or incomplete, an appellant must seek an articulation or rectification; Practice Book § 66-5; or this court will not review the claim. See CB Commercial/Hampshire, LLC v. Security Mutual Life Ins. Co., 61 Conn. App. 144, 149-50, 763 A.2d 32 (2000), cert. denied, 255 Conn. 940, 767 A.2d 1211 (2001). That is the case with regard to this claim. See Hunter's Ambulance Service, Inc. v. Shernow, 70 Conn. App. 96, 113, 798 A.2d 991 (2002).

Further, the defendant has not cited any authority standing for the proposition that an issue not decided by the trial judge may be reviewed on appeal, where that issue was not decided at trial because the defendant conceded to the trial judge that it need not be decided. We therefore decline to review this claim.

II

The defendant next claims that the 1990, 1991 and 1992 statements billing additional rent under the lease were delivered in breach of paragraph (d) (i) of the lease rider requiring that these statements be delivered on or before March 1 of each calendar year or as soon thereafter as is practical. The court found that "a statement sufficient to meet the terms of paragraph (d) (i) was presented to the defendant as soon after the March 1 date as `practical.'" It based this finding on several other subordinate findings. First, the parties were "sophisticated in dealing with leases and additional...