Opinion
No. CVH-7330
March 14, 2008
MEMORANDUM OF DECISION
In this action plaintiff Francis J. Sponzo (hereinafter "Sponzo") sues defendant Astro Aircom, LLC (hereinafter "Astro") for breach of a certain lease and sues defendant Dariusz Demusz (hereinafter "Demusz") as guarantor on the lease. Defendant counterclaims on the ground that plaintiff breached the lease and constructively evicted Astro. The facts are as follows:
Defendants interposed a number of special defenses but they presented no evidence as to them nor briefed them, and, consequently, the special defenses are deemed abandoned.
The plaintiff Sponzo and defendant Astro entered into a lease, commencing September 1, 2003, of a property at 121 East Dudley Town Road, Rear, Bloomfield, Connecticut for a term of five years. The rent was $1,333.33 a month for the first year and increased in increments to $1,456.67 a month by the fifth year. Rent unpaid for ten days bore an interest of 12% per annum. The lease further provided that Astro would pay its proportionate share of maintenance of the parking area, including snow removal; real estate taxes and insurance. As to the maintenance and snow removal expenses, plaintiff was obligated to provide the defendant with "itemized bill for such costs and shall upon lessee's request therefor, substantiate such costs with copies of invoices, paid bills or other similar evidence reasonably requested by lessee, . . ." As to taxes, the plaintiff was obligated to "provide reasonable documentation of such taxes in advance of the due date. . ." As to the insurance, plaintiff was obligated "to provide reasonable documentation of such premiums."
Attached to the lease was a "guaranty" of the performance of all obligations of Astro under the lease by defendant Demusz and also an addendum to the effect that the plaintiff would purchase and install a front double glass door at a cost of $3,650.00 and Astro would pay said sum as additional rent in monthly installments of $161.77. The lease provided for attorney's fees in event of defendant's breach and also for a security deposit of $1,456.67, which defendant paid.
On October 13, 2003, the plaintiff sent to Astro notice of the pro rated real estate taxes due on the grand list of October 1, 2002 for the period from September 1, 2003 to June 30, 2004. The bill amounted to $2,763.36 and attached to the notice was a copy of the bills of the tax collector of Bloomfield. Astro made payments on the $2,763.36 bill over the period from May to November, 2004 in amounts which totaled $2,600.00 leaving a balance of $163.36. On July 6, 2004, plaintiff sent to the defendant the notice of taxes due on the grand list of October 1, 2003 for the period from July 1, 2004 to June 30, 2005. That notice also contained the actual bills of the Bloomfield tax collector totaling $3,531.10. Defendant paid against that bill $2,100.00, leaving a balance of $1,431.10.
On December 15, 2004, plaintiff sent defendant Astro the following letter: "This is to notify you that pursuant to paragraph 27(b) of your lease, untimely payment of real estate taxes, [sic] you have breached your lease and therefore the lease is broken." Karen Fillian (hereinafter "Fillian"), plaintiff's office manager, testified that after that notice was sent, Demusz came into the office and indicated he didn't have the funds to pay the taxes. Fillian told him that if he paid something on the taxes it would be alright.
Demusz testified that shortly after the letter was sent, Sponzo stated that Astro had sixty days to move out. Sponzo had no recollection he made such a statement. The testimony was that he wanted Astro very must to stay because it was winter and he did not want the premises vacant, because he had paid the full commission on the five year term of the lease which would result in a significant loss if Astro left, and the letter was only intended to get the defendant to pay the taxes. Sponzo never sent Astro another letter asking him to leave and never brought any proceedings to evict him.
During the period from December 2004, until May 2005, defendant continued to pay the rent and paid some amounts on taxes and some for snow removal. From time to time Mr. Demusz came to the office and Fillian allowed him to see the ledger which kept a running balance of the delinquency for the rent, taxes, insurance and snow removal. Fillian gave Demusz a copy of the ledger, indicating his balance owed.
Astro moved out of the premises on May 31, 2005, five and a half months after the letter of December 15, 2004. After Astro moved out, the plaintiff sent a listing to all of the major commercial real estate agents in greater Hartford notifying them of the availability of the premises formerly occupied by Astro. Although Sponzo was a licensed real estate broker, he never sought to share a commission with a broker but utilized an open listing so that the full commission would be available to the broker actually providing a tenant.
The premises were vacant from June 1st to December 1st when they were leased to A A School of Dog Training for a rental of $1,500.00 per month. The dog training school occupied the premises for the months of December 2005 through March 2006. The premises were vacant from April 1 through July 15, 2006 when they were rented to E S S Engineering at $1,500.00 per month through the balance of the term of Astro's lease.
In December of 2003, plaintiff billed the defendant for insurance in the amount of $447.07 which the defendant paid. The plaintiff billed the defendant on June 1st for insurance of $1,054.00 which the defendant did not pay and the plaintiff billed the defendant for insurance on May 10, 2005 which the defendant did not pay. The bills did not contain the underlying invoice of the insurance agency which was not sent until long after the defendant had vacated the premises and this action had been started. They did not constitute reasonable documentation of the premiums owed.
The plaintiff sent to the defendant on April 9, 2004 and April 11, 2005 bills for snow removal indicating the days the services were rendered. Demusz asked repeatedly for more details on these expenses but plaintiff did not provide them until a few months before this trial. Plaintiff breached the lease provision relating to plaintiff being required to give itemization and substantiation of these expenses.
In his complaint, the plaintiff claims damages of $1,635.48 for a replacement rug in the office of the leased premises which were damaged by oil. The plaintiff has not proven the condition of the rug before the defendant moved in, nor that the stain was in excess of reasonable wear and tear. The plaintiff also claims the balance due for the replacement of the glass door, per the lease addendum, in the amount of $639.09, plus interest.
Since the term of the lease ran until August 31, 2008 and defendant Astro moved out on May 31, 2005, Astro clearly breached the lease. The major issue is whether plaintiff Sponzo constructively evicted Astro.
The Supreme Court in Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248 (1932) enunciated the classic statement of what constitutes a constructive eviction. It said, "`A constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenable and has thereby caused a failure of consideration for a tenant's promise to pay rent.'" (Quoted with approval in Conference Center, Ltd. v. TRC, 189 Conn. 212, 220 (1983)). A constructive eviction can also occur when the tenant is compelled to yield possession to a third party with title paramount to that of its landlord. As pointed in out in Camp v. Clark, 47 Conn. 366, 369, 374 (1879), to prove a constructive eviction under such circumstances, the facts must demonstrate that a person with the paramount title "[made] a reentry on the premises, or in some other positive manner [asserted] the forfeiture of the lease." Whether or not a constructive occurs is very much dependent upon "an inquiry in every incidence [into] the facts of the particular case. By this is meant the situation of the parties to a lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which a tenant's use of the premises is interfered with by the injury claimed." Reed v. Mills, 118 Conn. 119 (1934); quoted with approval in Conference Center, Ltd. v. TRC, supra at 221. As stated in Dewart Building Partnership v. Union Trust Company, 4 Conn. App. 683 (1985) "The tenancy ends only when the leasor takes some action which unambiguously demonstrates his intent to terminate the tenancy."
In the instant case Astro claims it was constructively evicted because (1) the Sponzo letter of December 15, 2004 stated that Astro had failed to pay the real estate taxes and "therefore the lease is broken;" (2) Sponzo told Astro to leave within sixty days. The letter itself cannot constitute constructive eviction. Sponzo believably testified that the letter was meant only to get the tenant to pay the taxes. Sponzo testified he had no intention to force Astro out because it was then winter, a bad time for premises to be vacant, he had paid the broker a full commission for a five year lease; and, as his office manager testified, he was willing to allow Astro to pay the unpaid taxes as it was able to do so.
Conference Center, Ltd. v. TRC, supra, at 221 clearly holds that the initiation of a foreclosure action in which the mortgagee demands possession of the leased premises does not constitute a constructive eviction of the tenancy. Furthermore, as stated in Freeman on Leases, 5th Edition, § 16.22, Practicing the Law Institute (2005): "A notice of the landlord's election to terminate a lease by reason of tenant's default must manifest a clear intention to terminate. Giving notice of the tenant's breach, together with the statement of landlord's right to terminate, is no exercise of the right to terminate. Any such notice must announce an election to terminate and comply with any forfeiture provision relied upon."
In the instant case, the plaintiff took no further action whatsoever beyond that letter to seek to terminate the lease and oust Astro. Plaintiff never served Astro with a notice to quit or initiated a summary process proceeding. The letter, thus, is not a basis for a constructive eviction.
As to Demusz's testimony that Sponzo told him to leave within two months, the court finds that testimony not believable. After the letter was sent, Astro continued to pay the rent regularly and made some payments on back taxes and snow removal. Astro was allowed to remain in the premises for five and a half more months, until May 31, 2005. That, in and of itself, belies any claim that it was ousted by the landlord. Rather the court finds that Astro left voluntarily on May 31, 2005, and plaintiff did not constructively evict it.
A lease is a contract and when it is broken the plaintiff can sue for damages like in any breach of contract action. As stated in Rokalor, Inc. v. Connecticut Heating Enterprises, Inc., 18 Conn. App. 384. "Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been had the contract been fully performed. . .As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant's breach of the contract of lease. . .We conclude that the trial court correctly determined that, in an action for breach of lease, the amount of rent agreed to by the parties is a proper measure of damages."
Conn. Gen. Stat. § 47a-11c provides that if a landlord brings an action for damages for breach of a lease, "such damages shall include the amount of any rent agreed to by the parties unpaid by the tenant. . . . The landlord shall be obligated to mitigate damages." Rokalor, Inc. v. Connecticut Heating Enterprises, Inc., supra at 390 states, "The duty to mitigate requires a landlord to `make reasonable efforts' to minimize damages; . . .which includes taking steps to re-let the premises. What constitutes reasonable efforts is a question of fact for the trier."
Sponzo owns a number of individual properties. In the instant case he did what he always does when a property becomes vacant; he listed defendant's premises with the real estate brokers in the area. Moreover, he continued his practice of giving the successful broker the full real estate commission for a new lease without demanding that he share the commission when he himself had a real estate broker's license. The court finds this effort to be a reasonable attempt to mitigate damages under all of the circumstances.
The term of the lease was from September 1, 2003 until August 30, 2008. The rent for the first year was $1,333.33 per month; for the second year $1,360.00 per month; for the third year $1,386.67; for the fourth year $1,416.67 and for the fifth year $1,456.67 per month.
The defendant left the premises on May 31, 2005 and the premises were vacant until December 1, 2005 when A A School of Dog Training moved in at a rental of $1,500.00 per month. A A left on March 31, 2006. The premises were vacant on April 1, 2006 until July 15, 2006 when E S S Engineering moved in at a rent of $1,500.00 per month for a three year lease extending beyond September 1, 2008, the end of defendant's lease.
Plaintiff is entitled to damages for the unpaid rent over this period, as follows:
Unpaid Base Rental Less Rent Credits - 1,360.00 - 693.34 - 1,386.67 - 1,416.67 - 1,456.67 $14,366.48
6/1/05 — 9/1/05 3 mo. @ $1,360.00 $ 4,080.00 9/1/05 — 12/1/05 3 mo. @ $1,386.67 4,160.01 12/1/05 — 3/31/06 Leased to A A School of Dog Training (New England Dog Training) 4/1/06 — 7/15/06 3 ½ mo. @ $1,386.67 4,853.35 7/15/06 Leased to E S S Engineering Gross amount of rent owed $13,093.36 : 12/1/05 — 3/31/06 A A School of Dog Training (New England Dog Training) paid $1,500.00 per month $1,500.00 per month due from Astro Aircom $ 140.00 x 4 months = ($560.00) 7/15/06 — 8/31/08 E S S Engineering paid $1,500.00 per month 7/15/06-7/31/06 $750.00 per 1/2 month due from Astro $56.66 $56.66 8/1/06-8/31/06 $1,500.00 per month due from Astro $113.33 9/1/06-8/31/07 $1,500.00 per month due from Astro $83.33 x 12 = $999.96 9/1/07-8/31/08 $1,500.00 per month due from Astro $43.33 x 12 = $519.96 ($1,689.91) Total Rent Credits ($2,249.91) Net Rent Due $10,843.45 Finance Charges of 12% per annum (1 % per month) (pursuant to the lease from June 1, 2005 to March 13, 2005, 32.5 months). $ 3,523.00 Total Rent plus Finance charges due.The plaintiff is also entitled to unpaid taxes calculated as follows:Taxes on the Grand List of 10/1/02 Due 10/1/03 — 6/30/0 4 Taxes on the Grand List of 10/1/03 Due 7/1/04 — 6/30/0 5 $5,468.33
10/13/03 Billed $2,763.36 5/24/04 Paid $ 800.00 7/6/04 Paid 1,000.00 10/11/04 Paid 500.00 11/14/04 Paid 300.00 Balance Owed $163.36 7/1/04 Billed $3,531.10 8/7/04 Paid $1,600.00 3/15/05 Paid 500.00 Balance Owed $1,431.10 Unpaid Taxes 7/1/05 — 6/30/06 Town $21,218.93 Fire District 615.44 $21,834.37 x 667 = $14,563.52 x .1739 = $2,532.60 Taxes Due $4,127.06 Add Finance charges at 12% (1 % per month) from 6/1/05 to 3/13/08, 32.5 mths $1,341.29 Total unpaid Taxes plus Finance chargesPlaintiff seeks reimbursement for the expenses of snow removal. The lease specifically provided that the landlord would provide the tenant with itemized bills for such costs and "shall upon lessee's request therefore substantiate such costs with copies of invoices, paid bills or other similar evidence reasonably requested by lessee. . ." Defendant Demusz testified at trial that he knew he was overcharged for snow plowing, sanding, salt walks, shoveling, lawn mowing, and parking sweeping. He requested copies of the original invoices from the landscaping company. He tried to talk to the employees of the landscaping company without getting the information. In fact, in plaintiff Sponzo's deposition on August 17, Sponzo said that his son and employees did the landscaping work, including snow plowing at the premises. On September 5, 2007, upon a motion to compel, plaintiff's counsel finally deliver to the defendant documents corresponding to some but not all of the dates shown on invoices prepared by plaintiff's office manager. Based on this evidence, which this court believes, the court finds the plaintiff violated the provision of the lease requiring him to provide documentation of the snow plowing expenses, and, as a consequence, the plaintiff is not entitled to those expenses.
Plaintiff also seeks to be reimbursed for insurance premiums during the period of defendant's occupancy. Again, the lease provides that "the lessor shall provide reasonable documentation of such premiums. . ." Demusz testified that he had never received documentation of insurance premiums during the time of his occupancy. A statement was finally provided by the insurance company on September 6, 2007 and plaintiff's office manager confirms she never saw that document before that time. On that basis, the court finds that the plaintiff breached the lease by failing to provide adequate documentation and the plaintiff is not entitled to recover for insurance premiums.
Plaintiff seeks to recover for an oil stain on a rug in the premises occupied by Astro. However, there was no evidence whatsoever as to the condition of the rug before occupancy, nor any evidence as to whether the stain constituted reasonable wear and tear. As a consequence, the plaintiff cannot recover on this claim.
Plaintiff seeks the balance due for replacement of a glass door, per the lease addendum. Astro agreed to pay the cost of the door of $3,650.00 @ $161.77 per month. Astro made twelve payments and there is due $639.09. The agreement specified interest at 12% per year (1% per month), which for 32.5 months, totaled $207.67. Plaintiff is entitled to $846.76 for the glass door.
The court enters judgment against defendants on their counterclaims, enters judgment for the plaintiff and against the defendant Astro and against defendant Demusz on the guaranty, and awards the plaintiff damages as follows:($1,456.67) $19,224.90
— Unpaid rent, plus finance charges $14,366.48 — Unpaid taxes, plus finance charges $ 5,468.33 — Unpaid agreed upon cost of front door, plus finance charges $ 846.76 $20,681.57 — Less a security deposit of $1,456.67 TOTAL AMOUNT AWARDED TO PLAINTIFFRespecting plaintiff's attorney's fees, the court will hear the parties on that issue within thirty days from the date hereof, on a date convenient to the attorneys.