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LYNWOOD PLACE, LLC v. SANDY HOOK HYDRO, LLC
(AC 35483)
Sheldon, Keller and Harper, Js.
Argued March 5—officially released June 3, 2014
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Douglas J. Lewis, for the appellant (defendant).
Linda Pesce Laske, with whom, on the brief, was Joel
Z. Green, for the appellee (plaintiff).
Opinion
KELLER, J. In this summary process action, the
defendant, Sandy Hook Hydro, LLC, appeals from a
judgment of immediate possession rendered by the trial
court in favor of the plaintiff, Lynwood Place, LLC,
regarding demised commercial premises located at 75
Glen Road, Newtown. The defendant claims that the
court improperly (1) found that the defendant had not
paid certain additional rent that was due and owing
under the terms of the parties’ lease (lease) and (2)
failed to find that the plaintiff was barred by the doctrine
of laches from denying that the defendant had paid the
additional rent. We disagree and, accordingly, affirm
the judgment of the trial court.
The following facts, found by the court, and proce-
dural history are relevant to our review of the defen-
dant’s claims. The plaintiff is the owner of the 75 Glen
Road property, and the defendant is a business that
operates a hydroelectric generating station located on
the property. The parties entered into a thirty year lease
on July 2, 2004, for the use and occupancy of a portion
of the property, which consists of a hydroelectric tur-
bine pit area located on the first floor of an office
building on the property, and an open canal located
elsewhere on the property. The lease also provided the
defendant with the right to pump water in and out of
the turbine pit area through an existing pipe. Pursuant
to the terms of the lease, the defendant agreed, inter
alia, to pay a base annual rent of $1500 and, starting in
the second year of the lease, to pay additional rent that
was to be calculated as a proportionate share of any
increase in yearly operating expenses.1 The lease pro-
vided: ‘‘As used herein, the term ‘proportionate share’
shall mean six (6%) percent.’’ At the time the lease was
negotiated and executed, both parties were represented
by counsel.
The defendant paid its base annual rent in full in
accordance with the terms of the lease; however, a
dispute arose in 2005 over the plaintiff’s calculation
of additional rent pursuant to the operating expenses
clause of the lease. The defendant refused to pay the
additional rent as billed by the plaintiff. After multiple
discussions and negotiations with the defendant regard-
ing its continued failure to pay in full the additional
rent due and owing under the lease, and providing the
defendant with opportunities to cure its breach, on
November 29, 2011, the plaintiff served the defendant
with a notice to quit possession and to vacate the prem-
ises by December 16, 2011. The defendant did not com-
ply with the notice to quit possession, and,
consequently, the plaintiff commenced this summary
process action. The summary process complaint alleged
that the defendant had breached the lease by failing to
pay additional rent due to the plaintiff thereunder for
the years 2007 through 2010, and that the plaintiff had
served a notice to quit possession terminating the lease,
but the defendant had remained in possession without
any right or authority. The plaintiff sought immediate
possession of the premises and the forfeiture of the
defendant’s possessions and personal effects in accor-
dance with General Statutes § 47a-42a.
The defendant filed an answer and special defenses
on February 28, 2012. The defendant denied that it had
breached its lease with the plaintiff and raised several
special defenses, including the equitable defense of
laches. In support of that defense, the defendant alleged
that it had begun disputing the plaintiff’s calculation of
additional rent in September, 2005, and that the plaintiff
had ‘‘accepted the defendant’s tendered base rent, and
the tendered ‘additional rent’ in 2005, and for the years
up and through the time the plaintiff caused the notice
to quit to be served.’’ The defendant further alleged
that it had spent significant sums in maintenance and
improvements to the premises in reliance upon the
plaintiff’s acceptance of those tendered payments.
According to the defendant, the plaintiff should be
estopped from trying to enforce the lease and to collect
additional rents some seven years later. In its reply to
the special defenses, the plaintiff acknowledged the
receipt of partial payments toward the additional rent
due, but denied the allegation that it should be estopped
from enforcing the lease by collecting the balance due
above and beyond the amount of additional rent
already tendered.2
The matter was tried to the court, Pavia, J., on
December 17, 2012. On March 8, 2013, the court issued
a memorandum of decision in which it found, on the
basis of the evidence adduced at trial and its assessment
of the testimony and credibility of the witnesses, that
the plaintiff had proven, by a fair preponderance of the
evidence, all of the elements necessary to secure a
judgment of possession in its favor. With regard to its
rejection of the defendant’s special defense of laches,
the court stated: ‘‘The court credits the testimony of
[Jack] Braverman, [the plaintiff’s] manager, that he had
made multiple attempts to collect the additional rent
pursuant to the terms of the lease. Detailed itemized
bills were provided to the defendant, who rebuffed the
submitted costs. The defendant and the plaintiff dis-
cussed and negotiated the utility costs on multiple occa-
sions during the period of time in which the defendant
asserts undue delay. The court finds that this was an
ongoing issue which both sides attempted to resolve
for many years. As such, the defendant has failed to
prove an inexcusable delay with resulting prejudice,
both of which are necessary for a valid defense of
laches.’’ The court rendered a judgment of immediate
possession in favor of the plaintiff. This appeal
followed.
I
The defendant first claims that the court erroneously
found that the defendant had failed to pay additional
rent due to the plaintiff in accordance with the terms
of the parties’ lease. The defendant argues that there
was an ambiguity in the lease as to what operating
costs properly should have been included in calculating
additional rent for any given year. Further, it argues
that it made partial payments of additional rent on the
basis of its own calculations and that those payments
were accepted by the plaintiff. The defendant also main-
tains that the court never calculated with certainty how
much additional rent was due at any particular time
and that the plaintiff failed to produce any expert testi-
mony or other evidence proving that the plaintiff’s cal-
culation of additional rent was correct or that the
defendant’s calculations were incorrect. In light of the
admission of the defendant’s representative at trial that
the defendant never paid 6 percent of the increase in
operating expenses, irrespective of how operating
expenses were calculated, the defendant’s arguments
are unavailing with respect to the claim raised on
appeal.
Whether a summary process defendant has paid rent
in accordance with the terms of a lease presents a
question of fact for the trier. See 19 Perry Street, LLC
v. Unionville Water Co., 294 Conn. 611, 626, 987 A.2d
1009 (2010). ‘‘Factual findings are subject to a clearly
erroneous standard of review. . . . It is well estab-
lished that [a] finding of fact will not be disturbed unless
it is clearly erroneous in view of the evidence and plead-
ings in the whole record. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed . . . . Our authority, when
reviewing the findings of a judge, is circumscribed by
the deference we must give to decisions of the trier of
fact, who is usually in a superior position to appraise
and weigh the evidence. . . . The question for this
court . . . is not whether it would have made the find-
ings the trial court did, but whether in view of the
evidence and pleadings in the whole record it is left
with the definite and firm conviction that a mistake has
been committed.’’ (Citation omitted; internal quotation
marks omitted.) Ursini v. Barnett, 124 Conn. App. 855,
858, 10 A.3d 1055 (2010), cert. denied, 299 Conn. 924,
11 A.3d 152 (2011).
‘‘A lease is a contract . . . .’’ Robinson v. Weitz, 171
Conn. 545, 551, 370 A.2d 1066 (1976). ‘‘A contract must
be construed to effectuate the intent of the parties,
which is determined from the language used interpreted
in the light of the situation of the parties and the circum-
stances connected with the transaction. . . . [T]he
intent of the parties is to be ascertained by a fair and
reasonable construction of the written words and . . .
the language used must be accorded its common, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the contract.
. . . Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’’ (Internal quotation marks
omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn.
678, 686, 697 A.2d 1137 (1997). ‘‘Although ordinarily the
question of contract interpretation, being a question of
the parties’ intent, is a question of fact . . . [w]here
there is definitive contract language, the determination
of what the parties intended by their contractual com-
mitments is a question of law.’’ (Internal quotation
marks omitted.) Tallmadge Bros, Inc. v. Iroquois Gas
Transmission System, L.P., 252 Conn. 479, 495, 746
A.2d 1277 (2000). When a contract is commercial in
nature and is ‘‘made by sophisticated commercial par-
ties with the advice of counsel during an extensive
drafting process,’’ there exists a ‘‘presumption of defini-
tiveness.’’ Id., 496–97.
The defendant concedes in its brief to this court that
‘‘the terms of the lease in question were committed to
writing, as between sophisticated parties, each repre-
sented by counsel . . . .’’ Accordingly, the trial court
was entitled to impart a presumption of definitiveness
as to the language of the lease. See Tallmadge Bros,
Inc. v. Iroquois Gas Transmission System, L.P., supra,
252 Conn. 496–97. Article III, § 4, of the lease governed
the payment of ‘‘additional rent,’’ and provided that,
beginning one year after the lease commenced, the
defendant, as the tenant, would pay, in addition to the
base annual rent, ‘‘the [t]enant’s proportionate share of
the increase in the [o]perating expenses incurred by
the [plaintiff] during the calendar year commencing
January 1, 2003 and ending December 31, 2003 . . . .’’
The lease further provided that ‘‘[a]s used herein, the
term ‘proportionate share’ shall mean six (6%) percent.’’
Read together, it is clear and unambiguous that, begin-
ning in year two of the lease, the defendant agreed to
pay additional rent equal to 6 percent of any increase
in operating expenses incurred by the plaintiff as set
forth in the lease.
Richard Fattibene, the defendant’s owner and opera-
tor, testified at trial on behalf of the defendant that
the defendant had disputed many of the items that the
plaintiff included in its calculation of the relevant
operating expenses. In addition, he testified that the
defendant also believed that it should only be required
to pay 1.77 percent of any applicable operating
expenses because 1.77 percent equated to the percent-
age of space that the defendant occupied in the office
building.3 During cross-examination, the plaintiff’s
counsel asked: ‘‘When you negotiated this lease you
absolutely knew that your [pro]portional share of the
additional rent was 6 percent. Correct?’’ Fattibene
answered: ‘‘Yes, it was written in the lease.’’ The plain-
tiff’s counsel then asked: ‘‘And you’ve never paid 6 per-
cent of the operating expenses for the building, have
you?’’ To which Fattibene responded: ‘‘No.’’ Fattibene
later agreed with the plaintiff’s counsel that even with
respect to those operating expense items for which
the defendant agreed it was responsible for paying a
proportionate share, and for which the defendant had
tendered its partial payment to the plaintiff, the defen-
dant had never attempted to tender 6 percent. Thus,
there was ample evidence in the record to support the
court’s factual finding that the defendant did not contest
its nonpayment of the additional rent, because, by its
own admission, the defendant had never paid additional
rent in accordance with the clear and unambiguous
terms of the lease.
II
The defendant additionally claims that the court
improperly failed to find that the plaintiff was estopped
pursuant to the doctrine of laches from claiming that the
defendant had failed to pay additional rent. We disagree.
Laches is an equitable defense; Florian v. Lenge, 91
Conn. App. 268, 281–82, 880 A.2d 985 (2005); and equita-
ble special defenses may be raised in summary process
actions. General Statutes § 47a-33a; Tinaco Plaza, LLC
v. Freebob’s, Inc., 74 Conn. App. 760, 775–76, 814 A.2d
403, cert. granted on other grounds, 263 Conn. 904, 819
A.2d 840 (2003) (motion to dismiss granted February
4, 2004). ‘‘[T]he burden is on the party alleging laches
to establish that defense.’’ (Internal quotation marks
omitted.) Carpender v. Sigel, 142 Conn. App. 379, 387,
67 A.3d 1011 (2013). ‘‘Laches consists of two elements.
First, there must have been a delay that was inexcus-
able, and, second, that delay must have prejudiced the
defendants. . . . A mere lapse of time does not consti-
tute laches unless it results in prejudice to the defen-
dants. Such prejudice results if the defendants are led
to change their position with respect to the matter in
question. . . . Whether a plaintiff is guilty of laches is
a question of fact for the trier and not one to be
answered by this court unless the subordinate facts
found make such conclusion inevitable as a matter of
law.’’ (Citations omitted.) Haggerty v. Parniewski, 11
Conn. App. 37, 40–41, 525 A.2d 984 (1987). As previously
set forth in this opinion, we review a court’s factual
finding only to determine if that finding is clearly errone-
ous, meaning it is wholly unsupported by evidence in
the record. See Ursini v. Barnett, supra, 124 Conn.
App. 858. Here, there was ample evidence to support
the court’s determination that the plaintiff’s delay in
initiating this summary process action was excusable.
The defendant argued at trial that six years had
passed between the date that the parties first exchanged
letters about their dispute over the calculation of the
additional rent due and the date that the plaintiff served
its notice to quit possession. The court, however, deter-
mined that the period of delay by the plaintiff in initiat-
ing the present summary process action was excusable
because, during that time, the parties had been engaged
in continuous discussions and negotiations to resolve
their differences concerning the additional rent pay-
ments. The court’s finding that the delay was excusable
is supported by the testimony of Braverman, the plain-
tiff’s principal owner and general manager, whose testi-
mony the court specifically credited. Braverman
testified on cross-examination in response to counsel’s
question about the delay in serving a notice to quit on
the defendant that the parties ‘‘were constantly having
discussions . . . [a]nd we constantly had meetings to
try and get [the defendant] . . . to come to some
agreement on this.’’ He later explained that he usually
had been able to work out disputes with tenants and
that this was the first tenant against whom he had to
bring a legal action. Fattibene also testified that the
parties had engaged in ‘‘numerous, numerous discus-
sions’’ over the issue of proper allocation of operating
expenses. Evidence that parties had engaged in contin-
ual negotiations or discussions to resolve a legal dispute
prior to one of the parties initiating a legal action ordi-
narily would preclude a finding that there was unreason-
able delay in bringing the action. See, e.g, Dochelli v.
Dochelli, 125 Conn. 468, 471, 6 A.2d 324 (1939) (laches
not applicable in divorce action where parties in contin-
ual negotiation over support and education of children
from time of separation); 30A C.J.S. 463, Equity § 156
(2007) (‘‘[e]fforts to obtain a settlement or satisfaction
without litigation will generally excuse a delay in bring-
ing suit’’). The court’s finding that the defendant had
failed to prove an inexcusable delay in the present case
is fully supported by evidence in the record and, thus,
was not clearly erroneous. The court properly rejected
the defendant’s laches defense on the basis of that
finding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Operating expenses are defined in the lease as including ‘‘all costs of
maintaining and repairing (which includes replacement) and all other costs
related to the [p]remises and any [p]remises common area as allowed under
the generally accepted accounting principles accepted by the Internal Reve-
nue Service for similar commercial buildings and real estate.’’
2
We note that the defendant never asserted the defense of accord and
satisfaction, which must be specially pleaded. See Practice Book § 10-50;
Fogil v. Boody, 76 Conn. 194, 196, 56 A. 526 (1903). To the extent that the
defendant’s arguments on appeal could be construed as raising this defense,
it is not properly considered by us in resolving this appeal because the
defense never properly was raised and litigated before the trial court. See
Sloan v. Kubitsky, 48 Conn. App. 835, 842, 712 A.2d 966 (1998), appeal
dismissed, 248 Conn. 670, 728 A.2d 1095 (1999).
3
Braverman, the plaintiff’s manager, testified that the 6 percent provision
in the lease was not based on square footage. Instead, it was based on the
anticipated disproportionate impact that the plaintiff expected would result
from the defendant’s use of the demised premises for its hydroelectric
generating facility.