Robinson v. Weitz

• Decision Date: 14 September 1976
• Citation: 171 Conn. 545,370 A.2d 1066
• Parties: Frank N. ROBINSON et al., Trustees (T. H. Canty and Company, Inc.) v. Anna WEITZ et al.
• Court: Connecticut Supreme Court

Page 1066

370 A.2d 1066

171 Conn. 545

Frank N. ROBINSON et al., Trustees (T. H. Canty and Company, Inc.) v. Anna WEITZ et al.

Supreme Court of Connecticut.

Sept. 14, 1976.

Jordan R. Lustig, Bridgeport, for appellants-appellees (defendants).

Joseph E. Meuser, Bridgeport, with whom was Kenneth J. Damato, Bridgeport, for appellees-appellants (plaintiffs).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The defendants, Anna Weitz, Bertha Schwartz, and the S and W Holding Company, own an office building located in Norwalk. On June 20, 1966, the defendants leased that building to T. H. Canty and Co., Inc., an insurance company that invested in and managed real property. On December 15, 1971, the shareholders voted to liquidate T. H. Canty and Co., Inc., and a certificate of dissolution was filed with the secretary of the state on November 21, 1972. Therefore, although this action was brought by T. H. Canty and Co., Inc., the trustees appointed to liquidate the company have been substituted for it as plaintiffs.

The term of the lease between the parties was from July 1, 1966, to January 31, 1978, with an option in T. H. Canty and Co., Inc., to renew the lease for an additional period of ten years. On May 16, 1972, T. H. Canty and Co., Inc., notified the defendants that it intended to assign the lease to Frank, Ralph and Robert DiNardo. T. H. Canty and Co., Inc., presented financial statements of the proposed assignees and requested that the defendants give written consent to the assignment. By letter dated May 22, the defendants noted that most of the proposed assignees' assets were real property subject to mortgages, and requested that the financial statements be certified by a certified public accountant and that information as to net income of the assignees be provided. Notwithstanding the defendants' request, T. H. Canty and Co., Inc., did assign the lease to the DiNardos in an agreement dated May 26, to be effective on June 1, 1972. The defendants informed T. H. Canty and Co., Inc., in letters dated May 30 and June 1, that the assignment made without the defendants' written consent violated the terms of the lease.

Subsequently, about June 26, the defendants received individual and joint financial statements of the assignees. One of the DiNardos had prepared all three individual statements and had provided the information used to prepare the joint statement. Attached to the joint statement was Note D, which stated: 'Estimated values disclosed in this report have been determined by Ralph, Robert and Frank DiNardo based on ten times annual net rentals or appraised values.' Also attached was a letter from a firm of certified public accountants which stated: 'Estimated values have been determined as outlined in Note D attached hereto. We express no opinion on the amounts shown as estimated values. Assets and Liabilities could exist which would not necessarily be revealed by our examination because of the lack of accounting records and control over the acquisition and disposition of personal liabilities. Because of the possible material effect of such items, if any, we are unable to express an opinion on the accompanying Statement of Assets and Liabilities.'

On August 2, the defendants notified T. H. Canty and Co., Inc., that because it had violated the terms of the lease by the assignment, the defendants had elected to terminate the lease. The defendants gave notice to T. H. Canty and Co., Inc., to quit possession of the office building on or before August 26.

T. H. Canty and Co., Inc., brought an action requesting that the court declare that the assignment was valid, order the defendants to give written consent to the assignment, enjoin against the institution by the defendants of a summary process action against T. H. Canty and Co., Inc., and award to T. H. Canty and Co., Inc., damages and '(s)uch other relief which the Court may deem appropriate.' In addition to alleging seven special defenses, the defendants filed a cross complaint in which they requested a judgment declaring the assignment invalid and declaring the lease to be in default and therefore terminated. The trial court found the issues for the defendants on the complaint, but found the issues for the plaintiffs on the cross complaint, holding that although the assignment was invalid the lease was not terminated. The defendants have appealed from the judgment rendered for the plaintiffs and the plaintiffs have cross appealed from the judgment rendered in favor of the defendants. The parties have made numerous assignments of error. As to the plaintiffs' assignments, many have not been briefed and are therefore considered abandoned, and several requested corrections to the finding will not be made because they are not material to the outcome of the case. See Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 134, 357 A.2d 910, and the citations contained therein. The issues raised by the plaintiffs' remaining assignments and by the defendants' assignment of errors are considered in the opinion.

We first consider whether the trial court erred in holding the assignment was invalid

Paragraph five of the lease between T. H. Canty and Co., Inc., and the defendants provided: 'Tenant may, without being relieved of liability or responsibility, sub-let or sub-lease premises or any part thereof, without the necessity of procuring the Landlord's consent therefor. However, it is expressly agreed between the parties that Tenant may not assign this Agreement without first procuring the consent of the Landlord in writing, which consent will not be unreasonably withheld provided assignee is of good character and financially responsible.' Generally, where a lease simply provides that the lessor's written consent to an assignment is required, the lessor may refuse consent and his reason is immaterial. See Segre v. Ring, 103 N.H. 278, 279, 170 A.2d 265, and the citations contained therein. If, however, the terms of the lease also provide that the lessor's consent to an assignment will not be unreasonably withheld, the lessor may not arbitrarily refuse his consent where the proposed assignee is an unobjectionable and responsible person. See the cases cited in 49 Am.Jur.2d Landlord and Tenant, § 423 and in annot., 31 A.L.R.2d 831, 835 § 4.

From the record in this case, it is clear that the defendants were concerned with the financial responsibility of the proposed assignees and that the assignees' character was not at issue. The plaintiffs contend that in view of the information contained in the financial statements and presented...