Opinion
DBDCV186024772S
06-03-2019
E.W. BATISTA FAMILY LIMITED PARTNERSHIP v. 74 ROUTE 37, LLC
UNPUBLISHED OPINION
OPINION
Krumeich, J.
For thirty years plaintiff E.W. Batista Family Limited Partnership ("Tenant") operated a Dunkin Donuts franchise at rented premises in New Fairfield (the "Premises") now owned by defendant 74 Route 37, LLC ("Landlord"). The Premises were rented pursuant to a lease between the parties dated November 1, 2003, as amended on November 24, 2015 (the "Lease"). The Landlord is holding a security deposit of $10,000. The Tenant commenced this action to recover the security deposit and alleged claims of breach of lease, breach of covenant of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), C.G.S. § 42a-110 et seq. The Landlord alleged as a special defense the "exculpation" clause of the Lease and counterclaimed alleging breach of the "Repairs" covenant of the Lease. The case was tried to the Court.
The original lease when the tenancy started in 1990-91 was with a different landlord. No evidence was presented as to the terms of any lease with the predecessor landlord. Tenant rented the space when it was new in a "vanilla box" condition; all improvements over the years were installed by Tenant.
The credible evidence showed that the Tenant notified the Landlord that it was vacating the Premises at the end of the term of the Lease on January 31, 2017. The Tenant invited the Landlord to meet at the Premises before termination to discuss the condition of the Premises after the Tenant vacated, including what should stay and what should be removed and what repairs should be done. The Landlord refused to meet the Tenant and merely referred it to the Lease ("look at the lease") when asked to do a walk through prior to Tenant’s surrender of the Premises. Mr. Christopher Santomero ("Santomero"), the owner of the Landlord, explained that his practice is not to meet with a vacating tenant but to conduct an inspection after the tenant has vacated the demised premises. The Premises were left broom-clean with all the counters, shelving, display cases and furniture related to the doughnut shop removed. The Tenant left behind a built-in cooler, two additional electric boxes, three air conditioning compressors, two roof vents, certain wall coverings, tile floors and hung ceilings. The walls, floors and ceilings did not look new but looked like they have been subjected to years of wear and tear but were serviceable. The concrete at the exterior main entrance also looked deteriorated by wear and tear and exposure to the elements.
Tenant’s principal, Edward Battista ("Battista"), testified he has owned twenty Dunkin Donut franchises over forty-six years and his usual practice is to do a walk-thru with the landlord before vacating rental space. The Landlord refused numerous invitations to inspect the Premises before termination.
Santomero testified Landlord owns approximately 90 properties, mostly retail stores, in Westchester County, New York, and Fairfield County, Connecticut. Santomero testified he also owns Lordae Property Management, the company that manages these properties, and the construction company that maintains and improves the properties.
Santomero testified that the Tenant breached the Lease because it did not leave the Premises in rentable condition, which he described as a "vanilla box" with walls prepared for painting, floors prepared down to the subfloor, ceilings uniform and useable with correct lighting. Santomero testified that the Landlord has not returned the security deposit because the cost to renovate exceeded the deposit and he intends to bill the Tenant soon for the balance of the Landlord’s costs to return the space to a rentable condition. No bill has been sent or itemized list of deductions provided to Tenant although the space was vacated over two years ago. Santomero testified that in the two years since the Tenant vacated the store his construction company and subcontractors had demolished and discarded items left behind by the Tenant and transformed the space to a "rent ready" condition he described as an "enhanced vanilla box," with newly carpeted floors, walls stripped and re-skimmed, new dropped ceilings, upgraded electrical boxes, a repaired roof, new sheetrock, new insulation, new lighting, and new locks. Santomero testified the project was completed recently and explained that the project took two years because of delays in permitting and building inspection, the scope of the project and the absence of a prospective new tenant. He admitted that certain upgrades were necessary because of new code compliance issues and Landlord was "forced" to improve the property to bring things up to the current code. The total cost of the project was $105,892.47. Santomero testified he intended to bill Tenant at a twenty percent discount for enhancements for eighty percent of the cost of the work and materials which totals $84,713.98.
Santomero testified he anticipated the Tenant would either leave the Premises "as is," a rentable doughnut shop, or as a "vanilla box," ready for fit out by a new tenant. Santomero’s definition of "as is" seemed to include repairs to bring the store to what he described as "rent ready" condition, not that he would have accepted the surrendered premises "as is" at the end of the term.
Santomero also testified that the Tenant violated the Lease when he removed the counters, display cases and furniture. Santamero testified that these fixtures and improvements should not have been removed and Tenant should have left behind a rentable doughnut shop.
The relationship between a commercial tenant and landlord are largely governed by the lease and the implied covenant of good faith and fair dealing. See Warner v. Konover, 210 Conn. 150, 154 (1989). See generally Noble F. Allen, Connecticut Landlord and Tenant Law Ch. 1-4 p. 5 (2d ed. 2014) ("Noble"). CUTPA, C.G.S. § 42-110a et seq., also governs the conduct of a landlord whose primary business is leasing properties. See Ingels v. Saldana, 103 Conn.App. 724, 728 (2007); Dominick v. Rivas, 2009 WL 1957630 *2 (Conn.Super. 2009) (Shapiro, J.) (failure to return security deposit under C.G.S. § 47a-21). See generally Noble Ch. 5-2 p. 53.
Many provisions of the statutes relating to rights and obligations of landlord and tenant, C.G.S. § 47a-1 through 47a-22, only govern residential tenancies, including the Securities Deposit Act, C.G.S. § 47a-21. See generally Noble Ch. 1-4 & n.37 and Ch. 5-2 & n.24.
As a contract a lease is construed under the rules of contract interpretation in accordance with the intentions of the parties as expressed in the language of the lease. See City of Bristol v. Ocean State Job Lot Stores of Conn., Inc., 284 Conn. 1, 7-8 (2007).
" ‘In construing a written lease ... three elementary principles must be [considered]: (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; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.’ ... Furthermore, when ‘the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms. A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a [lease] must emanate from the language used in the [lease] rather than from one party’s subjective perception of [its] terms.’" Bristol, 284 Conn. at 7-8.
"We reiterate the long-standing principle of contract interpretation that [t]he intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." Bristol, 284 Conn. at 12. When the Lease was entered into in 2003 the Premises had been operated as a Dunkin Donuts for thirteen years.
Any ambiguities in a lease are construed against the drafter, which here was the defendant. See Bristol, 284 Conn. at 8 n.4; Young v. Vlahos, 103 Conn.App. 470, 485 (2007). Santomero testified that the Lease is the form used by Landlord for all its properties.
Santomero complained that plaintiff took away certain items that were fixtures that belonged to the Landlord and failed to take away other items that should not have remained like electrical boxes, vents, compressors and a large cooler.
The historic reason for treating fixtures differently than other personal property of a tenant is that "[t]he installation of fixtures in a building became a part of the real estate such that to remove them would cause injury and damage to the property." Noble Ch. A-16 p. 177-78 citing Webb v. New Haven Theater Co., 87 Conn. 129 (1913).
"The law is indulgent to the tenant as between him and the lessor in determining what fixtures are removable by him at the termination of the lease. When he leases premises not at the time adapted to the purposes for which both parties understand that it is to be used, and he installs such fixtures thereon as his trade or business requires or when during the term of the lease he makes additions to the fixtures and equipment of the building existing at the time he took the lease, he is generally permitted to remove them, unless they are so permanently annexed to the realty that they cannot be removed without material injury to it or to them. The law finds in such annexation no intent on the part of the tenant that the articles shall become a part of the realty ... But the case is different when a tenant removes and disposes of fixtures belonging to the landlord and adapted to the purposes for which the leased premises were used and substitutes others of a similar character and adapted to the same uses in their plea. In the absence of any agreement between the parties, the tenant is presumed in such a case to have intended that the substituted articles should be permanently attached to the premises ... In such case they become an accession to the freehold as soon as annexed, and cannot be thereafter removed by the tenant as personal property." Webb, 87 A. at 276 (citations omitted).
The removal of fixtures that were supposed to remain on the property on termination is a breach of lease. See e.g., Riverbend Executive Center, Inc. v. Modern Telecommunications (CT), Inc., 2000 WL 765500 *6 (Conn.Super. 2000) (Mintz, J.).
In Waterbury Petroleum Products v. Canaan Oil & Fuel, 193 Conn. 208, 215-16 (1984), the Supreme Court held that whether property is a "fixture" depends upon the manifested intentions of the tenant when the property is annexed to the realty:" ‘To constitute a fixture, it is essential ‘that an article should not only be annexed to the freehold, but that it should clearly appear from an inspection of the property itself, taking into consideration the character of the annexation, the nature and the adaptation of the article annexed to the uses and purposes to which [the realty] was appropriated at the time the annexation was made, and the relation of the party making it to the property in question, that a permanent accession to the freehold was intended to be made by the annexation of the article.’ As is clear from our recent cases, our test focuses on the objectively manifested intent of the annexor [sic] ... ‘Ordinarily, if not invariably, the character of personal property attached to realty is to be determined as of the date when the property is attached ... ‘The intent sought is not the subjective intent or undisclosed purpose of the annexer, but the intent manifested by his actions.’" (Citations omitted.)
In Vallerie v. Town of Stonington, 253 Conn. 371, 373 (2000), the Supreme Court summarized its holding in Waterbury Petroleum Products: "[t]o constitute a fixture, we must look at the character of how the personalty was attached to real estate, the nature and adaptation of the [personal property] to the uses and purposes to which they were appropriated at the time the annexation was made, and whether the annexer intended to make a permanent accession to the realty. The character of the personal property attached to the real estate is determined at the time that the property is attached to the real estate."
Defendant argued that the removal of the shelves, counters, display cases and furniture affixed to the realty was a breach of the lease. Plaintiff used these items in connection with its business operation as a Duncan Donuts franchisee and were removable with minimal damage. These items qualified as trade fixtures. "For an item to qualify as a trade fixture, the tenant must annex the fixture to leased property for the purposes of the tenant’s business without the intention that the fixture become a part of the leased property, and the removal of the fixture from the leased property must not result in serious injury to the leased property." Riverbend, 2000 WL 765500 *6 citing Slosberg v. Callahan Oil Co., 125 Conn. 651, 653 (1939). See generally Vol. 2 Friedman on Leases, § 25:1 at 25-4, § 25:2 at 25-7, § 25:3 at 25-17-23 (6th ed. 2017) ("Friedman"). The evidence confirmed the removal of the trade fixtures did not cause serious injury to the Premises, but rather any damage was immaterial and easily repairable.
Battista testified the Tenant removed everything related to operation of Dunkin Donuts (except the cooler and compressors) and explained that one of the reasons he wanted to walk through the Premises with the Landlord was to find out whether the Landlord wanted him to remove counters and walls and what to repair. He testified he did this with other landlords at different locations prior to surrender over the years. The Landlord did not respond to emails and calls from the Tenant about a walk through and did not answer what to remove and what to leave.
In Slosberg the Supreme Court held the tenant was entitled to a credit for trade fixtures left behind by the operator of service stations: "The defendant as tenant of the plaintiff installed in each of the retail gas stations rented by it from the plaintiff certain tanks, lights and other fixtures used by it in connection with its business of selling gasoline and other petroleum products. These were trade fixtures installed without intention that they become a part of the real estate and could have been removed without serious injury to the real estate." 125 Conn. at 164.
Trade fixtures were excluded from the property of the Landlord in the Lease. The Eleventh covenant of the Lease provides: "[a]ll improvements made by the Tenant to or upon the demised premises, except said trade fixtures, shall when made, at once be deemed to attach to the freehold, and at the end or other expiration of the term, shall be surrendered to the Landlord in as good order and condition as they were when installed, reasonable wear and damages by the elements excepted." The removal of the trade fixtures did not violate the Lease.
Defendant’s counterclaim alleges breach of the "Repairs" provision in the Second covenant of the Lease which provides, in pertinent part: "What throughout said term the Tenant will take good care of the demised premises, fixtures and appurtenances, and all alterations, additions and improvements to either; make All repairs in and about the same necessary to preserve them in good order and condition, which repairs shall be, in quality and class, equal to the original work; promptly pay the expense of such repairs, suffer no waste or injury ... and at the end of the term, to quit and surrender the demised premises with all alterations, additions and improvements in good order and condition."
Santomero interpreted the Second Covenant as requiring the Tenant to leave the premises in a rentable "vanilla box" condition. Santomero also cited the "Improvements" covenants quoted above and the "Maintenance" provision in paragraph 47 of the Rider to the Lease, which provides in pertinent part: "Tenant will maintain, keep in good repair and replace when necessary (if applicable) all bathroom utilities, light fixtures, hot water heater, air conditioning units, heating units, plumbing, electric circuits, wall and floor covering and hung ceiling during the term of this Lease. All are the property of the Landlord and are not to be removed upon vacating the premises."
When the Lease commenced in 2003, plaintiff had been operating as a Dunkin Donuts on the site for approximately thirteen years. Nothing in the Lease informed the Tenant that at the end of the term it was to deliver the premises as a rentable "vanilla box." The Lease did not provide that the space be returned to its condition at the beginning of the Tenant’s tenancy. The Lease permitted the Tenant to remove its trade fixtures. There is nothing in the Lease that would inform the Tenant that these items were intended to become part of the realty and no evidence was introduced that the Tenant had such intention. See generally Friedman § 25:6 at 25-36. Therefore, the removal of the counters, display cases, shelving and furniture used in the doughnut business was proper. Similarly, nothing in the Lease required the Tenant to remove "alterations, additions and improvements"; to the contrary, the Lease provided these items were the property of the Landlord and must remain. Thus, the roof vents, the wall and floor coverings, the air conditioning units, the electrical circuits, the bathroom utilities, the hung ceiling and light fixtures were required to be left on the Premises.
There is no implied duty for a tenant to remove improvements he erected with the landlord’s consent. See Friedman § 25:4 at 25-53.
Santomero testified defendant demolished the fixtures, improvements and alterations left behind by the Tenant and replaced them in many cases with new replacements. There was no evidence that the demolished items were not in working condition but merely that they either were disconnected from trade fixtures (i.e., the roof vents and one electric board) when those fixtures were removed or appeared used and worn.
As to the property of the Landlord, Tenant under the Second covenant was required "at the end of the term, to quit and surrender the demised premises with all alterations, additions and improvements in good order and condition." The issue then is what is meant by "good order and condition" in the "Repairs" covenant. Presumably, the parties also meant this term to be interpreted the same as the identical phrase in the "Improvements" covenant: "good order and condition as they were when installed, reasonable wear and damages by the elements excepted." The rider provision for "Maintenance" should be construed in a complimentary manner when it provides the items addressed should be kept "in good repair and replace when necessary (if applicable) ... Upon completion of repairs, the premises must be in the same condition as it was previously."
These provisions cannot reasonably be read as requiring the Tenant to replace items that were in working condition at the end of the term. Further, the parties obviously intended that the items need not be in new, mint condition, but rather they are subject to reasonable wear and tear. This interpretation is informed by the covenant to surrender implied at common law. See Friedman § 18:1 at 18-2. "This implied covenant requires the tenant to return the premises in substantially the same condition as received, subject to normal deterioration and wear and tear." Id. Case law in other jurisdictions summarized in Friedman, § 18:1 at 18-5, have interpreted the exception of reasonable use and wear in surrender provisions "no different from the implied covenant to surrender ..." Also Friedman observed: "... a tenant’s covenant to surrender possession on expiration of the term, in good order etc., except for reasonable wear and tear, leaves the tenant without responsibility for conditions resulting from gradual deterioration by use or lapse of time, whether the deterioration becomes manifest suddenly or by gradual process." Id., § 18-1 at 18-9. "A requirement of surrender in good condition is construed not in the abstract but in light of the age, construction and nature of the improvements." Id., § 18:1 at 18-11. Repair provisions have also been construed not to require improvements or to replace something worn out or to install something new, without specific requirements in the lease. Id., Vol. I § 10:8.1 at 10-156-57. Accord, Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 7 (1955). "In one form or another, the word ‘repair’ appears many times throughout the lease. In the use made of the word there is nothing to suggest that the parties employed it in any special or technical sense. Hence, the word must receive its ordinary meaning, namely, the restoration to a sound or good state after decay, dilapidation or injury ... It does not mean to make something new but rather to refit or restore an existing thing." Id.
In Rogers v. Pisano Bros. Auto, Inc., 2011 WL 1835307 *1 (Conn.Super. 2011) (Tierney, J.), Judge Tierney applied the "ordinary wear and tear" exception to the tenant’s duty to surrender the premises in "good condition": "Although the lease in paragraphs 9 and 14 does require tenant to maintain the premises in good condition and keep the premises in a neat and orderly condition, the general rule of ordinary wear and tear has not been replaced by explicit lease terms. Flagg Energy Development Corp. v. General Motors, Corp., 244 Conn. 126, 148 (1998); Gateway Co. v. Di Noia, 232 Conn. 223, 225, 235 (1995). ‘The words ordinary wear and tear apply to situations of gradual deterioration resulting from use.’ ‘To decide what is reasonable wear and tear requires the court to consider the use of the premises. In general, a tenant is not liable for damages caused by the use for which the property was leased.’ MTM Industries v. D’Amato Investments, LLC, Superior Court, judicial district of Ansonia-Milford at Milford, Docket Number CV05-4003128 S (April 21, 2006, Petroni, J.T.R.) . ‘Wear and tear also includes normal repainting and cleaning which occurs at the end of a tenancy.’ DeMatteo v. Villana, Superior Court, judicial district of New Haven, Housing Session, Docket Number CVNH-9604-7493 (July 10, 1997, Levin, J.)."
Defendant has not met its burden of proving that the items left behind when Tenant vacated were not in "good order and condition." See generally Friedman, § 18:1 at 18-23. The Court rejects the argument that wear and tear is limited to wear attributed to exposure to the elements. Nor has defendant met its burden of proving that Tenant is liable to pay the costs to restore the premises to a tenantable condition. These costs are properly borne by the Landlord. See Hackbarth v. Ross, 1997 WL 633548 *2 (Conn.Super. 1997) (Levin, J.) ("[w]ear and tear also includes normal repainting and cleaning which occur at the end of a tenancy"). The Court also does not agree with the Landlord that the Tenant committed waste. The conditions about which the Landlord complains were the result of wear and tear from years of use, not waste. Compare, Gargano v. Heyman, 203 Conn. 616, 623-24 (1987). Nor did the Tenant "gut" the premises, as the Landlord charged, it merely removed the trade fixtures as permitted under the Lease with minimal damage that would have been easily repairable if the Landlord had not decided to demolish everything to create the "enhanced vanilla box," Santomero described and photographs confirmed, with new floor, ceiling, lighting, electrical and utilities.
The built-in cooler, which Santomero described as custom-built, may either be a trade fixture that should have been removed by the Tenant or a fixture or improvement that belonged to the Landlord. There is no evidence the cooler was not in working order. There was no evidence as to its removability or any damage to the Premises from its removal. Defendant also did not provide any basis for calculating the cost of removal of the cooler or whether any proceeds were derived from possible sale of the cooler so the Court declines to resolve such issue except to conclude defendant has not proven its right to recover for the cooler. Similarly, although there was vague testimony about a roof leak, no evidence was presented relating to the leak or the cost to repair, other than speculation the leak came through the unconnected roof vents and contradictory testimony from Santomero whether the leak occurred during the tenancy.
Defendant breached the Lease by its failure to return the security deposit. The damages for breach of the Lease is $10,000 plus prejudgment interest for wrongfully withholding funds under C.G.S. § 37-3a at the annual rate of ten percent (10%) from February 1, 2017, which as of June 1, 2019 totaled $2,333.33 for a breach of contract damages award of $12,333.33.
The exculpation clause in paragraph 46 of the Rider to the Lease that purports to limit satisfaction of any judgment "soley to Landlord’s interest in the real property of which the demised premises are a part and Landlord’s personal property used in connection therewith" is unenforceable as against public policy because it impermissibly shifts the risk of non-collection to the tenant and dilutes the enforcement of duties owed by landlords to comply with leases and applicable law. See generally Brown v. Soh, 280 Conn. 494, 48-51 (2006); Hanks v. Powder Ridge, 276 Conn. 314, 326-30 (2005). This type of exculpatory clause may effectively deny a tenant a reasonable remedy for lease violations, even intentional and willful violations of the sort found here, or for statutory violations. See Friedman § 17:4 at 17-27.
Plaintiff has also claimed that defendant’s failure to return the security deposit also breached the defendant’s duty of good faith and fair dealing and violated CUTPA. Covenant Twenty-Seven of the Lease provides that "[i]f the Tenant faithfully performed all the covenants and conditions on his part to be performed, then the sum deposited shall be returned to said Tenant." Two years after the premises were vacated the Landlord has returned no portion of the security deposit and has not provided an itemized list of deductions to justify the failure to refund. Santomero made it clear that he had no intention of returning the security deposit and intended to charge the Tenant with the cost of bringing the space up to a "rentable" condition at the Tenant’s expense, with the costs largely to be paid to his own construction company. He testified that defendant never did a walk-through with a vacating tenant and that his practice was to do a final inspection after the premises were vacant and to bill the tenant for the cost to bring the space to a "vanilla box" suitable for attracting a new tenant. There is nothing in the lease that would notify plaintiff that the Tenant would face this added expense. By refusing to meet with Tenant to discuss the move out or to otherwise notify plaintiff of its interpretation of the surrender provision in the Lease, defendant acted in bad faith to conceal its plans to withhold the security deposit and to charge Tenant for the cost of renovating the space. See Murphy v. Grigas, 1992 WL 436241 *5 (Conn.Super. 1992) (Holzberg, J.) (bad faith refusal to return security deposit violated CUTPA).
The Lease provides no specific time to return the security deposit so the law implies a reasonable time. See Christophersen v. Blount, 216 Conn. 509, 512 (1990). The interest award assumes that two weeks was a reasonable time to return the security deposit, but this is somewhat arbitrary since the Landlord did not intend to return the security deposit.
" ‘The common-law duty of good faith and fair dealing implicit in every contract requires that neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement ... Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.’ ... ‘To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff’s right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.’" Harley v. Indian Spring Land Co., 123 Conn.App. 800, 837 (2010).
"Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive ... Bad faith means more than mere negligence; it involves a dishonest purpose." Capstone Building Corp. v. American Motorist Ins. Co., 308 Conn. 760, 795 (2013) quoting De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33 (2004).
Santomero testified that it is his general business practice to hold tenants like plaintiff responsible to restore retail space to "rent ready" condition. Santomero testified "we do it all the time, this is not a one-off case." He explained the Landlord paints, carpets, puts in ceiling tiles and deducts from the security deposit "every time." If so, it would appear highly unlikely a long-term tenant like plaintiff would ever receive his security deposit back, given reasonable wear and tear from long-term occupancy, particularly since plaintiff would not be on notice of defendant’s practice until after the Tenant vacated the space so could not anticipate these practices. If, as he testified, that Santomero expected the Tenant to leave a "rentable" doughnut shop the Landlord should have informed Tenant before it removed its trade fixtures. However, as noted above, the lease terms in defendant’s form tease do not require the Tenant to leave behind trade fixtures or upgrade the condition of the premises to a "vanilla box" so the Lease does not support Santomero’s unfair and deceptive business methods, which leads the Court to conclude defendant acted in bad faith to obtain unjustified financial advantages at the Tenant’s expense.
Notably, if demolition and restoration work was done by a tenant prior to surrender, the costs likely would not be paid to Santomero’s construction company.
Conduct that breaches a duty of good faith and fair dealing may also violate CUTPA. See Harley, 123 Conn.App. at 837." ‘[General Statutes § ]42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons].’ ... Moreover, ‘[a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ... Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy.’" Id. at 834 (citations omitted).
The Court finds that defendant’s concealment of its plan to have the Tenant pay for the renovation of the space to a "vanilla box," its refusal to return the security deposit and account for the deposit and its use of the funds to pay its affiliate for renovation of the space not called for under the Lease were unfair and deceptive trade practices in violation of CUTPA. The Court finds that the CUTPA violations resulted in ascertainable loss and were intentional and done in willful and wanton disregard of the Tenant’s rights. In addition to the actual damages awarded above for withholding the security deposit, the Court awards punitive damages of $10,000, an amount equal to the withheld security deposit, pursuant to C.G.S. § 42-110g(a). See Shaw v. Wirth, 2014 WL 4186779 *6 (Conn.Super. 2014) (Rodriguez, J.). See also Murphy, 1992 WL 436241 *5.
" ‘If a landlord engages in conduct that constitutes a reckless indifference to a tenant’s rights or intentional and wanton violation of those rights, a court may, in its discretion, award punitive damages.’ Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). Indeed, ‘[o]ur Supreme Court has perceived the disparity of power between landlords and tenants, and has recognized that the chances of deterring landlords’ abuses of power are materially increased by subjecting them to the payment of punitive damages.’ Nielsen v. Wisniewski, 32 Conn.App. 133, 138, 628 A.2d 25 (1993), citing Freeman v. Alamo Management Co., 221 Conn. 674, 683-84, 607 A.2d 370 (1992). In addition, ‘General Statutes § 42-110g(d) provides in relevant part that, in any action in which a person alleges damages resulting from an unfair trade practice prohibited by § 42-110b of CUTPA, the court may award, to the plaintiff ... costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of the recovery.’ (Emphasis removed; internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 470, 839 A.2d 589 (2004)." Shaw, 2014 WL 4186779 *6.
Plaintiff is also entitled to recover its costs and reasonable attorneys fees pursuant to C.G.S. § 42-110g(d). On or before June 14, 2019, plaintiff shall file an affidavit and other proofs relating to costs and fees. Any objection thereto shall be filed on or before June 28, 2019.