Sproviero v. J.M. Scott Associates, Inc.

• Decision Date: 17 June 2008
• Docket Number: No. 28135.,28135.
• Citation: 948 A.2d 379,108 Conn.App. 454
• Court: Connecticut Court of Appeals
• Parties: Luciano SPROVIERO et al. v. J.M. SCOTT ASSOCIATES, INC.

948 A.2d 379

108 Conn.App. 454

Luciano SPROVIERO et al. v. J.M. SCOTT ASSOCIATES, INC.

No. 28135.

Appellate Court of Connecticut.

Argued March 10, 2008.

Decided June 17, 2008.

Bruce L. Elstein, Bridgeport, for the appellant (defendant).

James Ryan Mulvey, with whom was David F. Bennett, Danbury, for the appellees (plaintiffs).

GRUENDEL, LAVINE and PELLEGRINO, Js.

PELLEGRINO, J.

The present case arises from a lease dispute between the tenant plaintiffs, Luciano Sproviero and Anthony Bernardo, and the landlord defendant, J.M. Scott Associates, Inc. The defendant appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs. The defendant claims that the court improperly concluded that the plaintiffs (1) were not liable for costs incurred by the defendant in repairing and maintaining the property's septic system, (2) were not liable in nuisance and (3) did not breach the lease. We affirm the judgment of the trial court.

The facts and procedural history of this case have turned an ordinary lease dispute into a tangled web of litigation. We delve into this matter by first setting forth the facts as found by the court in its memorandum of decision. The parties entered into a twenty year lease, commencing September 1, 1979, for 1440 square feet of commercial property to be used by the plaintiffs for operating a Laundromat and dry cleaning business. The rent was payable monthly at the rate of $360 and was to remain unchanged throughout the term of the lease, except to account for increases in insurance and taxes. The plaintiffs had an option to renew the lease for an additional twenty years, at a mutually agreed on rental rate, by notifying the defendant in writing two years prior to the expiration of the original lease.

Attached to and made part of the lease was a document dated August 1, 1979, entitled "Conditions to Lease." The conditions provided, among other things, that "[t]he septic tank and system is to be maintained by the lessee, and the septic tank is to be cleaned out not less than twice a year by him and once a year by Mr. Ed of Ed's Beauty Salon next door." Mr. Ed never cleaned the septic tank and ceased being a tenant around 1990.

The parties entered into a supplemental agreement dated July 10, 1986. By this agreement, the defendant granted the plaintiffs the right to expand the septic system in exchange for their promise to maintain the entire system and perform all routine maintenance. "Routine maintenance" is not defined in the agreement. The agreement, however, does provide that the plaintiffs "shall not be responsible for any damages or problems caused by the increased use or misuse of said septic system by other tenants. . . ." The plaintiffs spent $40,000 of their money to expand the septic system and thereafter maintained it in compliance with their lease obligations through December 13, 1999.

On August 18, 1997, the plaintiffs timely notified the defendant of their intent to exercise their option to renew the lease and asked that the parties meet to agree on a new rental rate. The defendant contacted the plaintiff by letter dated December 23, 1998, and acknowledged the plaintiffs' desire to renew the lease, but stated that the plaintiffs must agree to certain additional terms before it would agree to renew the lease. The plaintiffs did not agree to those terms. On June 23, 1999, the defendant sent another letter to the plaintiffs, stating that it was willing to enter into a new lease. This letter contained six conditions that the defendant required the plaintiffs to agree to before it would enter into a new lease. None of the conditions was in the original lease or the renewal clause of the original lease. The letter also stated that the rate for the new lease would be $5 per square foot plus taxes, insurance and maintenance. The plaintiffs again did not agree to any of the new conditions set forth by the defendant. On August 31, 1999, the lease expired.

Around September 1, 1999, Bernardo was contacted by telephone by the defendant and informed that the new rent would be $583 per month plus taxes, insurance and maintenance, for a total monthly rate of $806. The plaintiffs paid this monthly rate from September, 1999, through July, 2002.

By letter dated July 12, 2002, the defendant notified the plaintiffs of an increase in their total monthly rent. The letter stated that their present monthly rent was $583 plus taxes, insurance and maintenance. Increases for cost of living, insurance, taxes and maintenance raised the total monthly rent to $940.¹ From July 12, 2002, the plaintiffs have continued to pay $940 monthly.

The facts of this case resulted in two separate legal actions. The first was a summary process action² (summary process action) begun by the defendant on December 13, 1999, when it served a notice to quit possession on the plaintiffs, demanding that the plaintiffs vacate the premises by December 31, 1999. The notice stated that any payments tendered after December 31, 1999, would be accepted for use and occupancy only and not for rent. The defendant thereafter filed a three count summary process complaint, with a return date of May 31, 2000. An answer to the complaint was not filed until February 12, 2003.³

Meanwhile, the plaintiffs filed their complaint (plaintiffs' action), with a return date of March 7, 2000, alleging that (1) the defendant's failure to renew the lease was a breach of contract and (2) the defendant breached the lease by permitting other tenants to use the septic system. On November 10, 2004, the defendant amended its answer to set forth a two count counterclaim. The counterclaim sought legal and equitable relief for (1) the plaintiffs' breach of lease by their failure to maintain the septic system and (2) damage caused by the septic system's failure.

The court found that the facts supporting the defendant's counterclaim arose between August, 1999, and November, 2004. Specifically, water began surfacing at some point in 2000. The plaintiffs fixed this problem, which was caused by a toilet that was left running when another tenant of the defendant vacated the premises. In 2003, another breakout occurred, and the plaintiffs called their engineer, Dudley Ashwood, who had designed the 1986 addition to the septic system. Ash-wood inspected the septic system on February 6, March 5 and April 16, 2003, and observed no active leaching system failure. He did find that the plaintiffs substantially reduced their water usage between 1997 and 2002. The plaintiffs resisted making any substantial repairs to the septic system during this period because the defendant was trying to evict them.

In January, 2004, counsel for the defendant notified the plaintiffs that they had failed to maintain the septic system, that the system was failing and that breakouts were occurring. On April 12, 2004, the Pomperaug district department of health (department) cited the defendant for the sewage overflow that was occurring at its property. The department did not cite the plaintiffs. Between 2004 and 2006, the defendant spent $125,000 in pumping the septic tanks to prevent breakouts. The cost of replacing the entire septic system would have been approximately $30,000.

The summary process action and the plaintiffs' action were consolidated for trial and, subsequently, tried to the court on August 30, 2006. In the summary process action, the court found in favor of the plaintiffs on all counts, concluding that the lease was renewed and that they were not breaching its provisions. Neither party appealed from that judgment, and, accordingly, it is not part of this appeal.

In the plaintiffs' action, the court likewise found that the lease was renewed. The court found that the defendant's actions in contacting the plaintiffs and informing them of a rent increase was a proposal for a new rent, as contemplated by the option to renew, which the plaintiffs accepted by paying. The parties, therefore, had an enforceable twenty year lease, commencing September 1, 1999, under the same terms as the original lease except for the rent. The court concluded that the defendant's failure to recognize the renewed lease was a breach of contract. Accordingly, the court rendered judgment for the plaintiffs as to their breach of contract claim.

In the breach of lease claim, the court found that the proof presented at trial did not establish by a preponderance of the evidence that the defendant breached the lease by permitting other tenants to use the septic system. The court accordingly rendered judgment in favor of the defendant as to that claim.

Turning to the defendant's counterclaim, the court found that the defendant had not sustained its burden of proof on either count. Specifically, the court found that the evidence did not show that the plaintiffs failed to maintain the septic system in accordance with the lease. Moreover, the court found that other parties were responsible for the septic system's failure and that other parties failed to maintain the septic system. The plaintiffs, therefore, were not liable for damages caused by the system's failure. Accordingly, the court rendered judgment in favor of the plaintiffs on the defendant's counterclaim.

The defendant has appealed from the court's judgment on its counterclaim. It is helpful at the outset, however, to note what is not at issue in this appeal. There is no challenge to any aspect of the court's ruling pertaining to the summary process action. Similarly, there is no challenge to the court's finding that the plaintiffs exercised their option to renew the lease. The defendant, in fact, concedes that the parties have a valid twenty year lease that commenced September 1, 1999, under the same terms as the original lease except for the rent. Accordingly, we need not review any of these issues. We now address the defendant's claims.⁴

I

The defendant's first claim is that the court...