Opinion
No. CV-03-0193985-S
July 28, 2003
FINDINGS OF FACT REGARDING HEARING ON PLAINTIFF'S MOTION FOR FINDINGS RE PREJUDGMENT REMEDY DATED APRIL 23, 2003
The court finds the following facts.
1. Tenny was the general partner and chief executive of a Connecticut limited partnership known as Union Pen and Pencil Company ("UPPC, L.P.").
2. UPPC, L.P. owned a successful business that sold promotional and advertising materials, including pens and pencils, to businesses.
3. Robert Rosenthal ("Rosenthal") worked for UPPC, L.P. as its financial officer, and was considered by Plaintiff's principal, Joel Banker ("Banker") to be Tenny's "right hand man."
4. On or about March 23, 1987 UPPC, L.P. as Tenant and Plaintiff as Landlord, entered into a Lease for premises located at 70 Riverdale Avenue, Greenwich, Connecticut (the "Premises").
5. Tenny, as the general partner of UPPC, L.P., negotiated the 3/23/87 Lease with Banker.
6. Banker is sophisticated and experienced in the field of commercial leasing and is familiar with the various kinds of business entities, such as partnerships and corporations.
7. Tenny executed the 3/23/87 Lease on behalf of the Tenant, UPPC, L.P., and Banker executed the 3/23/87 Lease on behalf of the Landlord, Plaintiff. Exhibit 1, 3/23/87 Lease.
8. UPPC, L.P. and Plaintiff amended the Lease in writing on two occasions (6/24/94 and 12/22/95). See Exhibit 1.
9. Both the June 24, 1994 Lease Amendment and the December 22, 1995 Lease Amendment were negotiated and executed by Tenny on behalf of UPPC, L.P.
10. On or about February 29, 2000, Tenny sold his interest in UPPC, L.P. The UPPC, L.P. business was acquired by a group of investors, including Rosenthal, who organized a corporate entity, UPC, Inc., to own and operate the business. Rosenthal became the President of UPC, Inc.
11. Upon the sale of the UPPC, L.P. business to UPC, Inc., UPC, Inc. occupied the leased premises at 70 Riverdale Avenue and UPPC, L.P. ceased paying rent to Plaintiff for the premises.
12. After the sale of UPPC, L.P.'s business to UPC, Inc., Tenny had no ownership or managerial relationship with UPC, Inc.
13. Tenny's sole connection with UPC, Inc. after the sale in February of 2000 was to provide marketing consulting under a consulting agreement for about three months after the sale and then only sporadically for a few months thereafter; Tenny's consulting activities ceased altogether in the Fall of 2000.
14. Before the sale, Tenny had communicated with Banker frequently, both by telephone and in person. Banker came by the premises and visited Tenny at his office at the leased premises from time to time. Tenny and Banker also went out to lunch together several times a year.
15. In or about 1999, during at least one of the lunch meetings between Tenny and Banker, Tenny told Banker about his retirement plans, including that (1) he intended to sell the UPPC, L.P. business soon, probably to Robert Rosenthal, (2) he was purchasing another house in Florida and (3) he expected to live in Florida full time in retirement.
16. After the sale in February of 2000, Tenny never communicated with Banker again, either by telephone or in person. Terry had no involvement in any decisions regarding the Lease or the condition of the Leased premises. Nor did UPPC, L.P. continue to pay rent, communicate with Plaintiff, or participate in any other matter as a Tenant.
17. After the sale, Plaintiff dealt solely with Rosenthal with respect to Lease issues. Rosenthal identified himself as "President" in at least one letter sent to Banker in July of 2000 regarding the Lease. Exhibit C.
18. At some point after the sale, Banker became aware that Rosenthal moved into Tenny's former office at the leased premises.
The Novation
19. In the Fall of 2001, Plaintiff began negotiating a new amendment to the Lease with Rosenthal. At Plaintiff's request, its attorney forwarded a draft Lease amendment to "Robert M. Rosenthal, President" by letter dated October 13, 2000. Exhibit E.
20. On or about January 4, 2001, Plaintiff entered into a written agreement with UPC, Inc., amending the Lease, as follows:
a. Substituting UPC, Inc., as the "Tenant" under the Lease; Exhibit 1, 1/4/01 Lease Amendment, p. 1;
b. Describing "Union Pen and Pencil Company" as the "predecessor in interest to Tenant" ["Tenant" was defined as UPC, Inc. in the 1/4/01 Lease Amendment]; Exhibit 1, 1/4/01 Lease Amendment, Second Whereas Clause;
c. Changing the notice provision of the Lease; Exhibit 1, 1/4/01 Lease Amendment, pp. 3-4, ¶ 5;
d. Changing the term, yearly rental and amount of space reserved under the Lease. 1/4/01 Lease Amendment, ¶¶ 7 (sic). 2 and 6, pp. 2-3;
e. Reducing the amount of a security deposit that UHPC, Inc., as Tenant, was required to maintain on deposit with Plaintiff Exhibit 1, 1/4/01 Lease Amendment, p. 3, ¶ 7 (sic).
21. Paragraph 9 of the 1/4/01 Agreement provided that "[i]n all other respects, the Lease, as amended by the 1994 and 1995 Amendments and this Amendment, shall remain in full force and effect." Exhibit 1, 1/4/01 Lease Amendment, p. 5, ¶ 9.
22. One of the amendments to the Lease made pursuant to the 1/4/01 Lease Amendment was to change the definition of "Tenant" from UPPC, L.P. to UPC, Inc. Compare 1/4/01 Lease Amendment, p. 1, First Paragraph (defining Union Pen Company, Inc. as the "Tenant") with 12/22/95 Lease Amendment, p. 1, First Paragraph (defining Union Pen and Pencil Company, a Connecticut Limited Partnership as the "Tenant").
23. UPC, Inc. was not referred to in the 1/4/01 Lease Amendment as an assignee or sublessee of UPPC, L.P. but was expressly defined as the "Tenant" under the Lease.
24. The 1/4/01 Agreement provided that it would be binding "upon the Landlord and the Tenant [UPC, Inc.] . . . and each of their respective permitted successors and assigns," but made no mention of any binding effect on prior Tenants such as UPPC, L.P. Exhibit 1, 1/4/01 Lease Amendment, p. 5, ¶ 10.
25. The 1/4/01 Agreement provided that neither UPC, Inc. nor Plaintiff required the approval of any other party to amend the Lease; Exhibit 1, 1/4/01 Lease Amendment, p. 5, ¶ 8; and no such approval was sought or obtained from Terry or UPPC, L.P.
26. Rosenthal executed the 1/4/01 Lease Amendment on behalf of UPC, Inc., as UPC, Inc.'s President and was expressly identified as such in the written agreement. Exhibit 1, 1/4/01 Lease Amendment, p. 6, Second Acknowledgment Paragraph.
27. Plaintiff knew and agreed, at least as of the time that the 1/4/01 Lease Amendment was executed, that UPPC, L.P. was no longer occupying the leased premises and that the premises were now occupied by UPC, Inc.
28. Plaintiff knew and agreed, at least as of the time that the 1/4/01 Lease Amendment was executed, that Rosenthal was the President of UPC, Inc. and was exercising the authority to bind UPC, Inc. as Tenant under the Lease.
29. Plaintiff knew, at least as of the time that the 1/4/01 Lease Amendment was executed, that Tenny had retired from the business now conducted by UPC, Inc.
30. Neither Terry nor UPPC, L.P. became aware, until 2002, at the earliest, that the Lease had been amended pursuant to the 1/4/01 Lease Amendment.
31. After the 1/4/01 Agreement was executed, Plaintiff made no effort to deal with Tenny regarding the Lease or claim any amounts were due from UPPC, L.P. until Plaintiff became aware, in the Fall of 2002, that UPC, Inc. was experiencing financial difficulties.
32. Plaintiff currently is claiming that solely UPPC, L.P. is liable as the "Tenant" under the Lease, and that UPC, Inc. is jointly and severally liable merely as an assignee or sublessee of UPPC, L.P. pursuant to Article 10.03 of the Lease.
33. Plaintiff's claim that the sole "Tenant" under the Lease is UPPC, L.P. and that UPC, Inc. is solely an unpermitted assignee or sublessee of UPPC, L.P. is inconsistent with the express definition of UPC, Inc. as "Tenant" in the Lease, as amended by the 1/4/01 Lease Amendment.
34. UPPC, L.P. is not the "Tenant" under the Lease, as amended by the 1/4/01 Lease Amendment.
35. UPPC, L.P. is not an assignee or sublessee of UPC, Inc., the "Tenant" under the Lease, as amended by the 1/4/01 Lease Amendment.
So Found.
KARAZIN, J.