Ucci v. Mancini

• Decision Date: 22 July 1975
• Docket Number: No. 73-77-A,73-77-A
• Citation: 115 R.I. 182,344 A.2d 367
• Parties: Filomena UCCI, Administratrix of the Estate of Louis Ucci v. James MANCINI et ex. ppeal.
• Court: Rhode Island Supreme Court

Page 367

344 A.2d 367

115 R.I. 182

Filomena UCCI, Administratrix of the Estate of Louis Ucci v. James MANCINI et ex.

No. 73-77-Appeal.

Supreme Court of Rhode Island.

July 22, 1975.

Joseph F. Penza, Jr., Providence, for plaintiff.

William F. Hague, Jr., providence, for defendants.

OPINION

KELLEHER, Justice.

In this litigation ¹ the plaintiff seeks specific performance of an option to purchase certain real estate situated in the city of Warwick, while the defendants in their counterclaim ask that the plaintiff be ordered to vacate the property and pay them damages. A jury-waived trial was held in the Superior Court. The trial justice ordered specific performance and dismissed the counterclaim. The defendants have appealed. Since the defendant wife had little or no connection with the incidents that have led up to this litigation, we shall hereafter refer only to the defendant husband and then by his last name.

The parcel of land in dispute is situated on the northerly side of Occupasstuxet Road. On September 29, 1964, Mancini leased the parcel to plaintiff's husband Louis. The husband operated a roadside fruit and vegetable stand on this location.

The lease had a 10-year term and called for a monthly rental of $175. It also gave plaintiff's husband an option to purchase the property at any time during a 5-year period beginning on July 1, 1968. The lease contained a series of covenants stipulating duties that were to be performed by the lessee. One covenant stipulated that the lessee obtain and maintain a public liability insurance policy which would protect himself and the lessors and that he deliver a copy of the policy of Mancini. The minimum coverage of the policy was to be $50,000 for one injury, $300,000 for one accident, and $25,000 for property damage.

Because plaintiff's husband also owned a wholesale fruit and produce business, he found it necessary to delegate the responsibility for the day-to-day operation of his Occupasstuxet Road venture to his brother Henry. Louis died in November 1965 and his wife was appointed administratrix of the estate. Mancini refused to accept the December 1965 rent unless and until plaintiff and her brother-in-law Henry entered into some sort of an agreement which would guarantee that Henry would continue to run the business. The necessary details were worked out. Henry took charge. The December rent was accepted and each payment made thereafter was accepted up through March 1968.

At that time plaintiff went to Mancini and told him that Henry was not living up to his agreement with her and that she was going to terminate his connection with the business. Mancini then declined to accept any more rent. When the April 1968 rent was tendered, it was refused. On May 7, 1968, a notice was sent to plaintiff telling her that because of her violation of several of the lease's provisions, the lease was terminated, and that she was to vacate the premises on or before June 1, 1968. One of the specified violations was plaintiff's failure to furnish the lessors with a copy of the requisite insurance policy. It is conceded that at this particular point in time plaintiff had failed to purchase the necessary insurance policy. The plaintiff did not vacate the premises and on August 19, 1968, plaintiff notified the lessors that she desired to exercise the option to purchase the property. Mancini never acknowledged this attempted exercise. The plaintiff's attempts to pay the rent from April 1968 through December 1968 were fruitless. Sometime in the fall of 1968 plaintiff brought an eviction action against her brother-in-law Henry. On November 12, 1968, a judgment was entered in the District Court ordering the sheriff to deliver possession of the premises to plaintiff. The plaintiff initiated this suit in January 1969. ²

In finding for plaintiff the trial justice rendered a very thorough and discursive bench decision. He found that the option was an integral part of the lease and that the lease permitted plaintiff as the administratrix of her husband's estate to exercise the option. The trial justice specifically found, however, that plaintiff breached the lease by her failure to insure the premises beginning on March 18, 1968. Mancini had taken advantage of this breach by notifying plaintiff on May 7, 1968 that this omission terminated the lease and ordering her to vacate the premises on or before June 1, 1968.

The trial justice ruled that plaintiff was a trespasser during the period of May 7 to June 1, 1968, but in determining her status from that point on, he found that Mancini's subsequent conduct was clearly at odds with his termination of the lease. Consequently, he held that Mancini by his later actions recognized plaintiff as the lessee and that therefore the option was properly exercised. The trial court acknowledged that if on August 19, 1968 plaintiff was something other than a lessee, her exercise of the option was a nullity.

The trial justice in finding a lessor-lessee relationship between the litigants in August 1968 relied on three incidents which occurred much later in that year. He referred to the November 1968 District Court eviction proceedings between plaintiff and her brother-in-law and the fact that Mancini, who was plresent during the trial, never questioned plaintiff's right to bring such a suit. Again in November 1968 Mancini came onto the property, removed a sign that had been placed there by plaintiff, and told her that the lease did not allow such a sign. In December 1968 Mancini complained that the location of Christmas trees that plaintiff was selling created a traffic hazard. The trial justice ruled that Mancini's silence at the District Court and the sign and tree episodes indicated to him that the lessor recognized plaintiff as holding possession under the lease.

The defendant's appeal is limited to the narrow issue of whether these three incidents justify the invocation of a doctrine which we shall call, for want of a better phrase, 'retroactive revivification' of a lease that had been terminated some 6 months earlier. We believe that they cannot.

One seeking specific performance of an agreement has the burden of establishing by clear and convincing evidence the propriety of the grant thereof. DiBiasio v. DiFazio, 103 R.I. 565, 239 A.2d 719 (1968); Reed v. Rathbun, 91 R.I. 421, 164 A.2d 387 (1960). Furthermore, in this controversy plaintiff, if she is to prevail, must show that the option was in full force and effect at the time she sought to exercise it. Moore v. Northwest Fabricators, Inc., 51 Wash.2d 26, 314 P.2d 941 (1957).

It is well established that, although a lease gives a lessor an election to terminate a lease upon the lessee's default and to declare the term ended, unless the lessor makes a reentry or performs some other unequivocal act to terminate the lessor-lessee relationship, the lease will continue to remain in full force and effect. Tseka v. Scher, 135 Conn. 400, 65 A.2d 169 (1949); Gradle v. Warner, 140 Ill. 123, 29 N.E. 1118 (1892); Shannon v. Jacobson, 262 Mass. 463, 160 N.E. 245 (1928); Padilla v. Sais, 76 N.M. 247, 414 P.2d 223 (1966); 3 Thompson, Real Property § 1111 at 382-83 (Replacement ed. 1959). In this jurisdiction a tenant who remains after having been given due notice of the termination of his tenancy and ordered off the premises, becomes either a trespasser or a tenant at sufferance. Donnelly Realty Co. v. Langevin, 78 R.I. 333, 82 A.2d 173 (1951); Mathison v. Griffin, 76 R.I. 16, 67 A.2d 833 (1949); Union Trust Co. v. National Coal Co., 66 R.I. 485, 20 A.2d 373 (1941). This court has recognized that there may be instances when there is a waiver of forfeiture and subsequent revival of a lease. Lenzini v. Gianetti, 49 R.I. 174, 142 A. 139 (1928).

Although there are numerous cases ³ holding that a forfeiture has been waived in various circumstances, most of the circumstances involve the acceptance of rent after knowledge of a breach. Such decisions focus on the forfeiture of the lease rather than the question of whether the option was viable prior to the waiver. Most of the cases in which a waiver has been found and specific performance ordered concern an attempted exercise which occurred before the attempted termination of the lease.

Here, it is obvious that in August 1968, plaintiff was not Mancini's lessee. Since the trial justice found that the option was an integral part of the lease, it is exercisable only so long as the lease is operative. The converse of this proposition is also true-an option cannot be exercised if at the time the exerciser does not enjoy the status of a lessee. Assuming that the breach was waived some time in late 1968, the plaintiff has failed to prove that the lease was in effect on August 18, 1968, the date on which she notified Mancini of her intention to purchase his property.

The defendants' appeal is sustained, the judgment appealed from is vacated, and the case is remanded to the Superior Court with a direction to enter judgment for the defendants.

Mr. Chief Justice Roberts, concurring. I concur in the conclusion of Mr. Justice Kelleher. The facts as found by the trial justice disclose that the parties entered into a lease for the tract involved here for a period of 10 years, the term to begin on July 1, 1963, and to end on July 1, 1973. The lease contained provisions giving the lessee an option to purchase at any time after July 1, 1968. Among other covenants contained in the lease was one requiring the lessee to procure liability insurance and to provide the lessors with certified copies of the insurance policies. It further appears that from the beginning the rent was paid promptly through March of 1968.

The record further discloses that in March of 1968 the lessors became aware of the fact that the lessee had breached the covenant requiring her to provide insurance coverage on the property. Beginning with April 1968 the lessors refused to accept rent payments...