Tinaco Plaza, LLC v. Freebob's, Inc.

• Decision Date: 04 February 2003
• Docket Number: (AC 21992)
• Citation: 74 Conn. App. 760,814 A.2d 403
• Court: Connecticut Court of Appeals
• Parties: TINACO PLAZA, LLC v. FREEBOB'S, INC.

74 Conn. App. 760

814 A.2d 403

TINACO PLAZA, LLC v. FREEBOB'S, INC.

(AC 21992)

Appellate Court of Connecticut.

Argued September 24, 2002

Officially released February 4, 2003

Flynn, Bishop and Landau, Js.

Lloyd L. Langhammer, for the appellant (defendant).

Kevin J. Burns, for the appellee (plaintiff).

Opinion

LANDAU, J.

In this summary process action, the trial court granted the motion for summary judgment filed by the plaintiff, Tinaco Plaza, LLC. The issues before us are whether the court properly determined that, pursuant to General Statutes § 47a-26d,¹ (1) the plaintiff was entitled to possession of the premises and (2) the special defenses alleged by the defendant were inapplicable to the cause of action and facts here. We affirm the judgment of the trial court.

There is no disagreement as to the following facts. In 1985, the plaintiff's predecessor in title leased the premises at 273 Clarks Fall Road in North Stonington to the defendant's predecessors in interest. The lease was for a ten year term and provided the option of renewal for two additional five year terms.² About the time that the original lease was signed, the defendant obtained rights to the leasehold. In May, 1995, the defendant and the plaintiff's predecessors signed an amendment to the lease that memorialized the defendant's right to an additional five year term and included, among other things, the rent to be paid for the additional five year term, through April 30, 2000. One of the covenants contained in the amendment concerned an option to renew the lease for yet another five year term.³ The plaintiff purchased the premises in 1996.

By letter dated July 30, 1999, the defendant attempted to exercise its option to renew the lease for an additional five year term. The plaintiff rejected the defendant's attempted renewal. In 2000, unlike the events that transpired in May, 1995, the parties did not memorialize an agreement concerning the defendant's desire to exercise its option to renew, and they did not negotiate the rental for an additional five year term. On May 4, 2000, the plaintiff caused a notice to quit the premises by May 12, 2000, to be served on the defendant. Although the time given in the notice to quit has passed, the defendant continues in possession of the premises.

In June, 2000, the plaintiff commenced a summary process action against the defendant seeking immediate possession of the premises. The plaintiff subsequently amended its complaint, which was in three counts. The factual allegations of the complaint are consistent with the undisputed facts. The first count sought possession of the premises on the basis of termination of the lease by lapse of time. The second count sounded in breach of contract, and the third count alleged waste on the premises, unauthorized alterations, injury, misuse and termination by expressed stipulation in the lease. The defendant answered the complaint and alleged a number of special defenses, including the equitable doctrine of laches, equitable forfeiture and promissory estoppel.

At the time it filed its amended complaint, the plaintiff also filed a motion for summary judgment. The defendant objected to the motion for summary judgment. The plaintiff sought summary judgment in its favor on the basis of the allegations in the first count of its amended complaint. Specifically, the plaintiff claimed that the lease has expired, that there is no new lease and that notice to quit was served properly on the defendant. The defendant objected, arguing that it was entitled to remain in possession of the premises pursuant to the renewal option contained in the original lease. The parties disagree as to whether the renewal option was enforceable, as a matter of law, because it required the amount of rent due during the second five year term, if any, to be negotiated after the defendant had exercised its right pursuant to the option to renew.

The court did not reach the issue of enforceability, concluding, on the basis of the undisputed facts, that the plaintiff was entitled to summary judgment regardless of the enforceability of the renewal clause. That is, as a matter of law, the defendant was unable to demonstrate that it had title in the premises at the time the notice to quit was served. Specifically, the court concluded, citing Platt v. Cutler, 75 Conn. 183, 52 A. 819 (1902), that the defendant's notice of its intention to renew the lease did not renew the lease because the language of the lease renewal clause required the written consent of the plaintiff if the defendant held over, or the negotiation of the rent due under the new five year term. The term of the amended lease had expired, there was no signing by the plaintiff permitting the defendant to hold over and there was no new lease. The court also concluded, as a matter of law, that the special defenses addressed by the defendant in its brief in support of its objection to the motion for summary judgment were inapplicable to the facts of this summary process action.

"On appeal, the scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact [and] a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Richter v. Danbury Hospital, 60 Conn. App. 280, 286, 759 A.2d 106 (2000). "To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or brief." (Citations omitted; internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).

With respect to a motion for summary judgment, "[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings." (Citations omitted; internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn. App. 699, 703, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998). Summary judgment should be denied if the defendant "raises at least one legally sufficient defense that would bar the plaintiff's claim . . . ." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).

I

We first consider whether the court properly determined that the plaintiff was entitled to possession of the premises because the defendant could not show evidence of title in itself at the time the notice to quit was served.⁴ See General Statutes § 47a-26d. "The ultimate issue in a summary process action is the right to possession." Southland Corp. v. Vernon, 1 Conn. App. 439, 443, 473 A.2d 318 (1984).

"A lease is a contract. In its construction, three elementary principles must be kept constantly in mind: (1) the intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. Hatcho Corp. v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985). In determining the meaning and effect of the controverted language in the lease, the inquiry must focus on the intention expressed in the lease and not on what intention existed in the minds of the parties. Lampson Lumber Co. v. Caporale, 140 Conn. 679, 682, 102 A.2d 875 (1954)." (Internal quotation marks omitted.) Warner Associates v. Logan, 50 Conn. App. 90, 94-95, 718 A.2d 48 (1998).

The issue in the case before us can be stated succinctly as whether the contract called for an extension of the existing lease or a renewal of the lease. "It is the general rule that no new lease is necessary upon exercising an option for the extension of the term of the lease for a further specified period after the expiration of the original term, and many courts apply the same rule in the case of options for renewal. . . . The view has been taken that a lease for a specified term with the privilege of a renewal on the same terms is equivalent, where such privilege is exercised, to a demise for the full period of the two terms, without any necessity for the execution of a new lease, and this would seem to be the view which a court of equity would take in case the rights of the lessee under the privilege of renewal is there called in question, as equity regards that as done which ought to be done. . . .

"A technical difference is frequently recognized, however, between the effect of a covenant for renewal and one for extension, especially as to the effect of retention of possession after the original term, it being held that a stipulation for renewal does not, like a covenant to extend, of itself and alone continue the tenancy for the renewal period, but calls for a new lease, a formal extension of the existing lease or something equivalent thereto, performance by the lessee of everything required for him to entitle him to a new lease, or, at least, some affirmative act by way of creation of an additional term. . . . But it is recognized that the technical difference may be controlled by the intention of the parties as manifested by the entire lease or by their...