Southland Corp. v. Vernon, 2114

• Decision Date: 20 March 1984
• Docket Number: No. 2114,2114
• Citation: 1 Conn.App. 439,473 A.2d 318
• Court: Connecticut Court of Appeals
• Parties: The SOUTHLAND CORPORATION v. Sheridan VERNON.

Page 318

473 A.2d 318

1 Conn.App. 439

The SOUTHLAND CORPORATION v. Sheridan VERNON.

No. 2114.

Appellate Court of Connecticut.

Argued Dec. 6, 1983.

Decided March 20, 1984.

Peter W. Benner, Hartford, for appellant (plaintiff).

Kathleen Eldergill, Manchester, with whom, on the brief, was Bruce S. Beck, Manchester, for appellee (defendant).

Before HULL, DUPONT and BORDEN, JJ.

BORDEN, Judge.

This is a summary process action in which the plaintiff appealed ¹ from the judgment of the trial court dismissing the action because it presented factual questions which the court deemed to be too complex for summary process. The plaintiff is the franchisor and lessor of a 7-Eleven store; the defendant is the franchisee and lessee. The franchise agreement, which the plaintiff describes as its standard franchise agreement, includes lease provisions which provide that the lease terminates upon termination of the franchise.

On July 16, 1982, the plaintiff delivered to the defendant, pursuant to General Statutes § 42-133f, notice of termination of the franchise effective sixty days thereafter, claiming several material breaches of the franchise agreement. On September 3, 1982, the defendant instituted an action in the Superior Court in the judicial district of Hartford-New Britain at Hartford against the plaintiff under General Statutes § 42-133g ² for an injunction against the termination of the franchise, and for money damages for violation of the Franchise Agreement Act; General Statutes §§ 42-133e through 42-133h; for violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes §§ 42-110a through 42-110q; and for violation of the Connecticut Anti-Trust Act. General Statutes §§ 35-24 through 35-45. After an evidentiary hearing, the court, M. Hennessey, J., on November 4, 1982, denied the motion for a temporary injunction. ³ The defendant continued to occupy the premises and operate the store.

On November 18, 1982, the plaintiff served the defendant with a notice to quit and, upon the defendant's failure to surrender the premises, brought this summary process action on November 30, 1982, to the housing division of the Superior Court in the judicial district of Hartford-New Britain at Hartford. See General Statutes § 47a-70(a); Practice Book § 5A. On December 9, 1982, the defendant moved to dismiss the summary process action, raising, inter alia, the claim of undue complexity. ⁴ On March 23, 1983, the plaintiff, in an attempt to meet the defendant's claim of complexity, moved to narrow and simplify the issues for trial by seeking an order from the court that, as a matter of law, it need not prove "good cause" for the termination of the franchise; see General Statutes § 42-133f(a); as a basis for its claim of termination of the lease.

Meanwhile, the plaintiff made two other efforts to gain possession of the premises. On December 8, 1982, it filed a counterclaim in the defendant's pending action; see footnote 3, supra; claiming termination of the franchise and seeking, inter alia, possession of the premises; and it instituted another action against the defendant, seeking to enjoin him from operating the store and to require him to deliver possession of it.

On April 12, 1983, all three cases ⁵ came before the court, N. O'Neill, J. The court noted that in the defendant's action for an injunction and for money damages, the pleadings were closed but discovery was not completed; in the plaintiff's action for an injunction and possession the pleadings were not closed. Turning to the summary process action, before us on appeal, the court ruled orally from the bench that the plaintiff must prove good cause for termination of the franchise in order to prove termination of the lease. It also granted the defendant's motion to dismiss on the ground that the questions involved were too complex for summary process. The basis for this determination was an amalgam of several factors: the requirement that the plaintiff prove good cause for termination of the franchise; the need for discovery; and the right of the defendant to present his defenses to the termination of the franchise, which presumably would include the claims relating to CUTPA and the Connecticut Anti-Trust Act. This appeal followed.

I

The ultimate issue in a summary process action is the right to possession. Rosa v. Cristina, 135 Conn. 364, 365, 64 A.2d 680 (1949); Urban v. Prims, 35 Conn.Sup 233, 236, 406 A.2d 11 (1979). We agree with the trial court that under the circumstances of this case the plaintiff must prove good cause for its termination of the franchise in order to prove termination of the lease and thus prove its right to possession.

Ordinarily, the allegation of facts allocates the burden of proof to the party pleading them. See Grecki v. New Britain, 174 Conn. 200, 201, 384 A.2d 372 (1978). The plaintiff's claim for possession rests on early termination of the lease provisions, which in turn rests on termination of the franchise. In support of this claim it alleged in the complaint that the "defendant's right to occupy the premises has terminated by termination of the [franchise] agreement." We need not decide whether, under all circumstances, the burden of proof of good cause for termination of a franchise rests on the franchisor. Where, however, as here, the franchisor seeks to regain possession of premises leased under a franchise agreement on the ground that early termination of the franchise has terminated the lease and where the franchisor alleges such termination, it has the burden of proof thereon, including necessarily proof of good cause for the franchise termination.

The plaintiff argues in effect that the issue of whether the franchise was terminated for good cause is lodged solely in the defendant's action against the plaintiff under General Statutes § 42-133g and that, once the defendant failed in his attempt to secure a temporary injunction in that action and once the sixty days for termination had expired, the issues in this case became factually simple: whether the plaintiff had in fact given notice of the termination of the franchise, thus terminating the lease, and whether the sixty day period had expired. Underlying this argument is the premise that General Statutes § 42-133g provides the sole remedy to a franchisee in a dispute with its franchisor over termination of the franchise. We disagree.

General Statutes §§ 42-133e and 42-133f, which form the heart of the Franchise Agreement Act, define the substantive rights and obligations of the franchisor-franchisee relationship. General Statutes § 42-133g provides that a franchisee may sue the franchisor in the Superior Court for violation of General Statutes §§ 42-113e and 42-113f; may recover damages, including attorney's fees; and where appropriate may apply for injunctive relief as provided in chapter 916, "Injunctions"; General Statutes §§ 52-471 through 52-483; and that the action is a privileged matter for trial. The Franchise Agreement Act, to which the Supreme Court has referred as legislation which "impose[s] limitations of just cause upon the power to terminate some contracts; see § 42-133f"; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980); is remedial in nature and thus should be liberally construed. Muha v. United Oil Co., 180 Conn. 720, 728-29, 433 A.2d 1009 (1980). We see nothing in General Statutes § 42-133g to suggest that it excludes the franchisee's use, as a defense to an action by his franchisor, of claims of violation of those substantive rights and obligations. Had that section not been included in the act, we have no doubt that a franchisee would nonetheless have a cause of action against his franchisor for such a violation and, would, "where appropriate," have had the right to request an injunction "as provided in chapter 916," which is simply the part of the general statutes stating the general rules on injunctions. Thus, except for the provisions involving privileged trial status and award of attorney's fees, General Statutes § 42-133g does no more than reaffirm remedies any franchisee would have had by virtue of General Statutes §§ 42-133e and 42-133f. Furthermore, the plaintiff's argument would interpolate the sixty day period for notice of termination, contained in General Statutes § 42-133f, into General Statutes § 42-133g as a statute of limitations attached to the franchisee's right to seek an injunction. We see no justification for such an interpolation.

II

The plaintiff next argues that, even if this action be complex, significant recent changes in the law require that it not be dismissed. We agree. In recent years both legislative and judicial actions have resulted in an expansion of the role of summary process. We are persuaded that those actions are sufficient to require a finding of error by the trial court in dismissing this case.

We recognize that summary process is a statutory proceeding which is "intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession." Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973). Because of its summary nature, the statute granting the remedy has been narrowly construed and strictly followed. Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953). Concomitant with its summary design, the legislature has mandated a truncated return day and appearance date; General Statutes §§ 47a-23a and 47a-26; and that pleadings shall advance in three day steps. General Statutes §§ 47a-26a and 47a-26c.

Consistent with the legislative purpose behind summary process there evolved a judicial gloss on the statute which limited its use "to cases where the issue of the expiration of the lease presents itself as a simple issue of fact, not complicated by questions as to the proper legal construction of the lease"; Davidson v. Poli, 102 Conn. 692, 695, 129 A. 716 (1925);...