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DOMINICK BOCCANFUSO ET AL. v.
NADER DAGHOGHI ET AL.
(AC 40559)
Keller, Prescott and Pellegrino, Js.
Syllabus
The plaintiff landlords, D, C, and B Co., sought, by way of summary process,
to regain possession of certain premises leased to the defendant tenants,
N, S, and S Co. Since 1970, the plaintiffs’ property was used as an
automobile repair facility, and the plaintiffs had installed underground
gasoline and waste oil storage tanks on the property but failed to follow
proper protocols for their removal, which resulted in environmental
contamination. Subsequently, in July, 2014, seven months after the par-
ties entered into a lease of the property, the Department of Energy and
Environmental Protection issued an enforcement order directed to B
Co. and commenced a civil action that resulted in a stipulated judgment.
During trial in the present case, the defendants asserted the special
defense of equitable nonforfeiture and argued in their posttrial brief
that they withheld rent payments because of their counsel’s advice to
hold the rent in escrow, because they were unaware of the contamina-
tion, and because they were concerned that one of their two businesses
would not be permitted to open due to the plaintiffs’ failure to extend
their rent abatement period, despite the delay of the plaintiffs’ property
manager and leasing agent in obtaining certificates of occupancy for
retail or food service uses. The trial court rendered a judgment of
possession in favor of the plaintiffs, from which the defendants appealed
to this court. Held:
1. The defendants could not prevail in their claim that the trial court applied
an incorrect legal standard in determining that they failed to prove their
special defense of equitable nonforfeiture: that court properly applied
the doctrine of equitable nonforfeiture to the facts of this case, as it
determined that the defendants, who had admitted that they deliberately
stopped paying rent upon advice of their counsel because they were
upset about the contamination, failed to prove the first element of the
equitable nonforfeiture test, namely, that the nonpayment of rent was
not wilful or grossly negligent, and the court, having made that determi-
nation, was not required to address the other elements; moreover, the
court determined that the defendants failed to prove they made a good
faith effort to comply with the lease or had a good faith dispute as to
its meaning, and it reasonably could have reached the conclusions it did
on the basis of certain testimony presented, which it was free to credit.
2. The defendants’ claim that the trial court erred in finding that the plaintiffs
were unaware of contamination until after July 1, 2014, was unavailing,
as there was evidence in the record to support that finding; D testified
that he believed any contamination detected in 2011 was within accept-
able limits and that he told the defendants that there was some contami-
nation, but if there was any problem, he would take care of it, and even
if the existence of contamination on the property requiring action prior
to July 1, 2014, was concealed from the defendants, the court also found
that the plaintiffs had complied with their obligation under the lease
and had taken care of the problem, and that the remediation had no
effect on the progress of the defendants’ renovations or their ability to
open both of their businesses on the property, and, therefore, even if
the court’s finding that the plaintiffs were unaware that the tank graves
contained gasoline type contaminants above action levels was errone-
ous, any error was harmless.
3. The defendants’ claim that the trial court abused its discretion in finding
that they failed to prove their special defenses of unjust enrichment
and violation of the implied covenant of good faith and fair dealing
was not reviewable, the defendants having failed to brief the claim
adequately; the defendants’ analysis appeared in a single paragraph of
their brief, they did not distinguish between their third or fifth special
defenses, both of which alleged a violation of the implied covenant of
good faith and fair dealing, there were no legal authorities cited or an
analysis of whether the special defenses were legally viable, and the
defendants did not cite any standard of review governing this court’s
review and inaccurately asserted that the court failed to make any factual
findings as to the fourth and fifth special defenses, and that the court
failed to refer to the special defenses alleging a violation of the implied
covenant of good faith and fair dealing.
4. The trial court did not abuse its discretion in denying the defendants’
request for a continuance so that T, an enforcement officer employed by
the department, could testify: the defendants failed to make an adequate
showing as to why T, who purportedly was under subpoena, was not
available to testify as scheduled, or why T’s deposition was not taken
beforehand and offered into evidence in lieu of live testimony, they
made no proffer to the court as to the necessity of T’s testimony or
why the denial of a continuance would impair their defense, nor did
they request a capias to compel T’s presence, and the court appropriately
considered that counsel for the defendants moved for a continuance
on the day of trial; moreover, even if the court abused its discretion,
any error was harmless, because even though the defendants argued
before this court that denying their request effectively kept out of evi-
dence department documentation concerning the history of contamina-
tion on the property, the trial court considered the contamination issue
to be ‘‘pretextual’’ and found that the defendants suffered no detriment
as a result of the contamination and remediation, and that they did not
offer any evidence that they complained about the issue until they filed
their answer in this case, and, thus, the defendants did not demonstrate
that they were harmed by the court’s purported error.
Argued February 11—officially released October 1, 2019
Procedural History
Summary process action brought to the Superior
Court in the judicial district of Stamford-Norwalk, Nor-
walk Housing Session, and tried to the court, Rodri-
guez, J.; judgment for the plaintiffs, from which the
defendants appealed to this court; thereafter, the court,
Rodriguez, J., denied the defendants’ motion for articu-
lation; subsequently, this court granted in part the
defendants’ motion for review and the court, Rodri-
guez, J., issued an articulation; thereafter, this court
granted in part the defendants’ motion for review, and
the court, Rodriguez, J., issued an articulation.
Affirmed.
Eugene E. Cederbaum, with whom was Ryan Dris-
coll, for the appellants (defendants).
Matthew B. Woods, for the appellees (plaintiffs).
Opinion
KELLER, J. This summary process action involves a
lease of commercial premises located at 936-940 Post
Road East in Westport (property). The defendants,
Nader Daghoghi (Nader), Sassoon Daghoghi (Sassoon)
and 940 Post Road East, LLC, doing business as Savoy
Rug Gallery (defendant LLC), appeal from a judgment of
possession rendered in favor of the plaintiffs, Dominick
Boccanfuso (Dominick), Crescienzo Boccanfuso (Cres-
cienzo), and Boccanfuso Bros., Inc. (plaintiff corpora-
tion). The defendants claim that the trial court (1)
applied an incorrect legal standard in determining that
they failed to prove their special defense of equitable
nonforfeiture; (2) erred in finding that the plaintiffs
were unaware of environmental contamination at the
property until after July 1, 2014; (3) abused its discretion
in finding that the defendants had failed to prove their
special defenses of unjust enrichment and violation of
the implied covenant of good faith and fair dealing; and
(4) abused its discretion by not granting the defendants
a continuance so that a witness could testify. We affirm
the judgment of the trial court.
The following facts, as stipulated to by the parties
or as found by the court in its original decision or
subsequent articulations, and procedural history are
relevant to this appeal.
The property was owned by the plaintiff corporation,
and, at all times relevant to this litigation, Dominick
was a shareholder, director and officer of the plaintiff
corporation. Since at least 1970 and through the date
of Dominick’s retirement at the end of 2013, the prop-
erty was used as an automobile repair facility. In or
about 1989, the plaintiffs installed a 2000 gallon gasoline
underground storage tank under the front parking lot
of the property. Sometime thereafter, they also installed
a 330 gallon waste oil underground storage tank in the
rear of the property. Both underground storage tanks
were removed in 2013 for reuse elsewhere, but the
plaintiffs failed to follow proper procedures and proto-
cols for the removals.
Dominick received a letter from Absolute Tank Test-
ing, Inc. (Absolute), dated October 31, 2011, advising
him that soil samples taken from the area around the
perimeter of the 2000 gallon gasoline underground stor-
age tank contained ‘‘detectable concentrations of
[Extractable Total Petroleum Hydrocarbons] 540 parts
per million,’’ and that Absolute had notified the Depart-
ment of Energy and Environmental Protection (depart-
ment). (Internal quotation marks omitted.)
In March, 2013, Dominick’s nephew, Giuseppe Boc-
canfuso (Giuseppe), who was not licensed to remove
underground storage tanks, removed the 2000 gallon
gasoline underground storage tank. In March or April,
2014, Giuseppe removed the 300 gallon waste oil under-
ground storage tank. The department was not notified
of the removal of either of the tanks. Additionally, no
test of the soil surrounding the waste oil underground
storage tank was conducted.
On November 22, 2013, the parties entered into a
lease of the property. The five-year lease, with an option
of extending the term for five additional five-year terms,
provided that the defendants were to convert the prop-
erty from an automobile repair facility to spaces in
which they would operate their two businesses, the
Savoy Rug Gallery and a Subway sandwich shop. The
defendants intended to use a portion of the space to
sell handmade oriental rugs and the remainder to house
their Subway franchise.
Richard H. Girouard, Sr., was the leasing agent for
the property and also the property manager for the
Boccanfuso family. Girouard negotiated the terms and
conditions of the lease and drafted it on behalf of the
plaintiffs.1 The monthly base rent for the property
was $16,338.
Prior to the signing of the lease, on October 29, 2013,
Girouard, on behalf of Klein New England,2 sent a letter
to the defendants regarding the renovation of the retail
space. In this letter, Girouard offered to provide the
defendants consulting and design services for the demo-
lition and renovation of the property. Two of Klein
New England’s undertakings were to obtain the building
permits and certificates of occupancy for the retail
space. The defendants paid Klein New England the
$22,500 fee set forth in Girouard’s letter.
On July 1, 2014, over seven months after the lease
was signed, the department, after finding evidence of
environmental contamination, issued an enforcement
order directed to the plaintiff corporation. The depart-
ment later commenced a civil action against the plaintiff
corporation in the Superior Court for the Judicial Dis-
trict of Hartford at Hartford, alleging a violation of the
enforcement order. On August 15, 2016, the court, Hon.
Susan A. Peck, judge trial referee, rendered a judgment
upon the stipulation of the parties to that action.
Paragraph 33 of the lease provides in pertinent part:
‘‘Lessor will be responsible for any environmental
issues which may arise with the [d]emised [p]remises.’’
The plaintiffs addressed the contamination issues at
their expense, and the property has been remediated
in accordance with the stipulation between the plain-
tiffs and department.
On June 11, 2014, the defendants obtained a building
permit to renovate a portion of the property into the
retail rug gallery, and a certificate of occupancy for that
renovated space was issued on February 26, 2015.
At the direction of the plaintiffs, on June 27, 2014,
Girouard informed the defendants by letter that the rent
commencement date pursuant to paragraph 10 of the
lease would be July 1, 2014, and to commence payment
of all water and electric charges.3 In the letter, Girouard
also informed the defendants that the plaintiffs had
instructed him to handle all lease and building matters
exclusively and that the plaintiffs did not want to be
called or visited by the defendants about lease or build-
ing matters.
On August 1, 2014, Girouard, on behalf of Klein New
England, sent a letter to the defendants regarding the
renovation of the Subway space. The defendants paid
Klein New England a $9000 consultation fee regarding
the renovation of this space.
On September 15, 2014, the defendants obtained a
building permit for the renovation of the Subway space
and a certificate of occupancy was issued for that reno-
vated space on June 5, 2015.
The defendants did not pay rent for the month of
December, 2014, or make any other rent payments
thereafter.4 On January 7, 2015, the plaintiffs served the
defendants with a notice to quit for nonpayment of rent
when due for commercial property, thereby terminating
the lease. The defendants remained in possession of
the property beyond the date specified in the notice to
quit. On January 17, 2015, the plaintiffs commenced this
summary process action.
In their answer to the complaint, the defendants
raised six special defenses. All but the first special
defense, which alleged a lack of standing on the part of
the plaintiff corporation, are the subjects of this appeal.
In their second special defense, the defendants
alleged that the plaintiffs had violated paragraphs 14
and 33 of the lease by failing to remediate environmental
contamination they caused and were aware of prior to
the execution of the lease.5 In their third special defense,
the defendants alleged that the plaintiffs, by failing to
remediate the environmental contamination, had vio-
lated the implied covenant of good faith and fair
dealing.
The defendants’ fourth special defense alleged unjust
enrichment as a result of the failure of the plaintiff’s
property manager, Girouard, to properly oversee the
extensive renovations to the property pursuant to ‘‘an
agreement’’ he had with the defendants.6 The defen-
dants asserted that Girouard failed to obtain a certifi-
cate of occupancy until fourteen months after the lease
was signed, which caused the defendants to pay basic
and additional rent to the plaintiffs, unjustly enriching
them, for a period when the defendants were unable
to physically occupy any portion of the leased premises.
In their fifth special defense, the defendants alleged
that, despite the failure of the plaintiffs’ property man-
ager and agent, Girouard, to properly oversee the prog-
ress of their renovations, the plaintiffs required them
to pay basic and additional rent. The plaintiffs’ demand
of these payments prior to the defendants’ ability to
physically occupy any portion of the property, they
allege, was a violation of the implied covenant of good
faith and fair dealing owed to them by the plaintiffs.
The sixth special defense alleged that the plaintiffs’
claim for possession of the leased premises was barred
by the equitable doctrine against forfeitures. This spe-
cial defense, however, failed to allege or incorporate
any facts. In the defendants’ posttrial brief, the defen-
dants argued to the court that their justifiable reasons
for withholding of rent were due to (1) being unaware
of long existent on-site contamination of the property
until the fall of 2014, nine months after the lease was
signed, and their concern that the Subway would not
be permitted to open due to the contamination, which
had not yet been remediated in breach of the plaintiffs’
obligations under paragraph 33 of the lease; (2) the
plaintiffs’ failure to extend the rent abatement period
despite Girouard’s failure to obtain expediently certifi-
cates of occupancy for either the retail or food service
uses; and (3) counsel’s advice to hold the rent in escrow.
In their reply, the plaintiffs essentially denied the
allegations contained in the defendants’ special
defenses.
A trial was held before the court over three days:
February 2, 2016, May 19, 2016, and April 4, 2017. At
the court’s request, during trial on February 2, 2016,
counsel for the parties acknowledged that the court, in
deciding the issues, could rely on a joint stipulation
that the parties had prepared and filed with the court
on May 19, 2015.
On February 2 and May 19, 2016, the court chose
only to hear evidence and rule on the viability of the
defendants’ fourth special defense, unjust enrichment.
This special defense was based on the fact that the
plaintiffs required the defendants to make rental pay-
ments despite the fact that Girouard, who allegedly had
been acting as an agent of and on behalf of the plaintiffs,
had failed to obtain necessary permits and approvals
in a timely fashion. The court found that the defendants
had failed to prove this special defense.7 The court
stated, ‘‘[a]ny agreement entered into between [Girou-
ard] and the defendants . . . was entered into sepa-
rate from and independent of the agreement between
the plaintiffs . . . and the defendants . . . . [T]here
was no control by [the plaintiffs] over the actions of
[Girouard], nor was there any form of supervision, nor
was there any benefit to the [plaintiffs] from the agree-
ment between Girouard and [the defendants]. Simply
put, the agreement was separate from and independent
of the agreement between [the plaintiffs] and [the defen-
dants]. The defendants . . . are free to seek, from [Gir-
ouard], any claim for damages allegedly resulting from
the fit-up delays and any delay in not timely producing
a certificate of occupancy. This is not the fault or
responsibility of [the plaintiffs]. The court finds that
[Girouard] was acting for and solely on behalf of the
defendant tenants in all of his undertakings to fit-up the
property and in obtaining any certificate of occupancy.’’
On June 13, 2017, after hearing evidence on the plain-
tiff’s complaint and the remainder of the defendants’
special defenses, the court rendered a judgment of pos-
session in favor of the plaintiffs. The court found that
the defendants had breached the lease agreement by
nonpayment of rent, and had failed to sustain their
burden of proof as to their ‘‘special defense,’’ referring
only to the sixth special defense of equitable nonforfei-
ture. The court cited to Cumberland Farms, Inc. v.
Dairy Mart, Inc., 255 Conn. 771, 627 A.2d 386 (1993),
as illustrative of the ‘‘guidance needed to resolve a claim
regarding equitable nonforfeiture.’’ The defendants filed
the present appeal.
On July 20, 2017, the defendants filed a motion for
articulation, which the court denied without comment.
On September 29, 2017, the defendants filed a motion
for review of this denial of articulation with this court.
This court ordered that the trial court articulate ‘‘(1)
whether it considered the defendants’ good faith intent
to comply with the lease and their good faith dispute
over the meaning of the lease in reaching its decision
on the special defense of equitable nonforfeiture and,
if so, how its consideration of these matters impacted
its decision on the special defense of equitable nonfor-
feiture; and (2) whether it decided the defendants’ sec-
ond and third special defenses, and, if so, to articulate
any findings it made in connection therewith regarding
whether the plaintiffs knew of the existing environmen-
tal contamination on the property prior to the signing
of the subject lease, whether the plaintiffs were respon-
sible for that contamination and whether they disclosed
the existence of the contamination to the defendants
prior to the signing of the subject lease.’’
The trial court complied with this court’s order. In
an articulation dated November 21, 2017, it stated that
it had ‘‘considered and rejected the defendants’ claimed
good faith intent to comply with the lease and also
rejected the defendants’ alleged good faith dispute over
the meanings of the lease.’’ The court found that the
defendants were ‘‘well advised of the property and were
ill advised by their counsel to withhold rent and breach
their obligation to pay rent to the plaintiff[s].’’ With
respect to the second and third special defenses, the
court stated only that the defendants had ‘‘failed to
sustain [their] burden of proof as to all the special
defenses.’’
Dissatisfied with the court’s articulation, on Novem-
ber 30, 2017, the defendants filed a second motion for
review with this court, given the first articulation of
the trial court. On March 20, 2018, this court issued
a second order for articulation that was substantially
similar to the first order. On April 24, 2018, the trial
court issued a supplemental articulation, which it cor-
rected on April 26, 2018. The court articulated that the
second and third special defenses were not proven by
a preponderance of the evidence submitted at trial. The
court found that ‘‘[u]ntil July 1, 2014, the plaintiffs and
the defendants were unaware that the tank graves con-
tained gasoline type contaminants above action levels.
Accordingly, on November 23, 2013, the date when the
lease was signed, neither party knew of the existence
. . . of the contamination. . . . The plaintiffs have
addressed the contamination issues at their expense
and the property has been remediated in accordance
with a [department] stipulation. . . . Neither the con-
tamination itself nor the remediation thereof affected
the renovation timelines of the retail space or the Sub-
way space, nor did the contamination and remediation
affect the operation of either business. . . . Not only
did the property have a long history of use as an automo-
tive repair shop, but the defendants knew this, not only
because of the proximity of their businesses before
moving into the property, but also because they were
longtime customers of the plaintiffs. The lease obligated
the plaintiffs to clean up any contamination on the
property and they did so. The [defendants’] alleged con-
cerns about the contamination are pretextual, since
neither the contamination nor the remediation had any
effect on the critical path of the defendants’ renovations
to the property. The [defendants’] real issue centers on
the delays in renovation, and therefore in openings of
business operations, beyond the rental grace period,
thereby obligating them to pay rent under the lease
and to their existing landlords. The plaintiffs were not
responsible for the delays because of the following pro-
visions of the lease, paragraphs 31 and 32. . . .8 The
defendants failed to prove that they were justified in
withholding the rent because of the contamination
issues affecting the [property].’’
The court, in finding that the defendants had failed
to prove their second and third special defenses, stated
that the plaintiffs had not breached the lease in failing
to remediate the contamination, as alleged by the defen-
dants. It found that the plaintiffs promptly addressed
the environmental issues affecting the exterior of the
property, as required by paragraph 33 of the lease, and
did not breach the implied covenant of good faith and
fair dealing. The court further concluded that the defen-
dants suffered no detriment as a result of the contamina-
tion and remediation. ‘‘They failed to offer any evidence
that they ever even complained about the contamina-
tion and remediation until they filed their answer in
this case on March 24, 2015.’’ Additional facts will be
set forth as necessary.
I
The defendants’ first claim is that the court applied
an incorrect legal standard in determining that they
failed to prove their special defense of equitable nonfor-
feiture. We disagree.
The plenary standard of review applies to the prelimi-
nary issue of whether the court applied the correct legal
standard in evaluating this special defense. ‘‘[I]t is well
established that [t]he . . . determination of the proper
legal standard in any given case is a question of law
subject to our plenary review . . . .’’ (Internal quota-
tion marks omitted.) Cathedral Green, Inc. v. Hughes,
174 Conn. App. 608, 619, 166 A.3d 873 (2017).
With respect to the issue of whether the court com-
mitted error in applying the correct legal standard to
the unique facts of the present case, we observe that
a trial court’s exercise of its equitable powers is gov-
erned by the abuse of discretion standard. ‘‘Any chal-
lenge to how the court exercised its equitable authority
. . . is entitled to considerable deference.’’ Id., 619–20.
‘‘Although we ordinarily are reluctant to interfere with
a trial court’s equitable discretion . . . we will reverse
[if] we find that a trial court acting as a court of equity
could not reasonably have concluded as it did . . . or
to prevent abuse or injustice. . . . In reviewing claims
of error in the trial court’s exercise of discretion in
matters of equity, we give great weight to the trial
court’s decision. . . . [E]very reasonable presumption
should be given in favor of its correctness. . . . The
ultimate issue is whether the court could reasonably
conclude as it did.’’ (Citation omitted; internal quotation
marks omitted.) Presidential Village, LLC v. Phillips,
325 Conn. 394, 407, 158 A.3d 772 (2017).
The defendants’ sixth special defense alleged that
the equitable doctrine against forfeiture barred their
eviction. The burden of establishing an equitable
defense in a summary process action falls on the party
asserting that defense. See Lynwood Place, LLC v.
Sandy Hook Hydro, LLC, 150 Conn. App. 682, 690, 92
A.3d 996 (2014) (summary process defendant had bur-
den of proving equitable defense of laches).
‘‘In determining whether a defendant is entitled to
equitable relief from forfeiture of a tenancy, our
Supreme Court has reiterated that courts should look
to the test arising from its decision in Fellows v. Martin,
217 Conn. 57, 66–67, 584 A.2d 458 (1991). . . . In Fel-
lows, the court clarified that, under Connecticut law,
equitable defenses and counterclaims implicating the
right to possession are available in a summary process
proceeding. . . . The court in Fellows also made clear,
however, that [a] court of equity will apply the doctrine
of clean hands to a tenant seeking such equitable relief;
thus, a tenant whose breach was wilful or grossly negli-
gent will not be entitled to relief. . . .
‘‘Accordingly, Fellows established that an equitable
nonforfeiture defense can succeed only if (1) the ten-
ant’s breach was not [wilful] or grossly negligent; (2)
upon eviction the tenant will suffer a loss wholly dispro-
portionate to the injury to the landlord; and (3) the
landlord’s injury is reparable. . . . This enumerated
test, formulated from the holding in Fellows, is stated
in the conjunctive, and, therefore, the failure of any
prong of that test means that equitable relief is unavail-
able.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Cathedral Green, Inc. v.
Hughes, supra, 174 Conn. App. 620–21; see also BNY
Western Trust v. Roman, 295 Conn. 194, 207 n.11, 990
A.2d 853 (2010) (limiting appellate review to one ele-
ment of applicable conjunctive test); Berzins v. Ber-
zins, 105 Conn. App. 648, 654, 938 A.2d 1281 (same),
cert. denied, 289 Conn. 932, 958 A.2d 156 (2008).
In addition to applying the three part test enunciated
in Fellows, our Supreme Court has also stated that ‘‘[t]he
doctrine against forfeitures applies to a failure to pay
rent in full when that failure is accompanied by a good
faith intent to comply with the lease or a good faith
dispute over the meaning of a lease.’’ Fellows v. Martin,
supra, 217 Conn. 69; see also Cumberland Farms, Inc.
v. Dairy Mart, Inc., supra, 225 Conn. 778.
As to the first element of the Fellows test, whether
the defendants’ breach of the lease was wilful or grossly
negligent, the defendants maintain that they justifiably
withheld their rent because it was very shocking to find
out about the environmental violations and contamina-
tions—information that they assert Dominick had with-
held from them. They assert that they were fearful that
Subway might have revoked its franchise if it had
learned about the contamination. They essentially claim
that Girouard had a conflict of interest in working for
the benefit of both the plaintiffs and the defendants,
and that when he failed to complete the renovations in
a more expedient fashion, the plaintiffs were responsi-
ble for their agent’s derelictions and should have agreed
to extend the rental abatement period until the defen-
dants’ businesses could occupy the property.
In addition, the defendants claim that the court failed
to determine whether their failure to pay rent in full
when due was accompanied by a good faith intent to
comply with the lease or a good faith dispute over the
meaning of the lease. The defendants claim they acted
in good faith given Nader’s testimony that after they
were informed of their nonpayment, they acted in good
faith to avoid a forfeiture by informing the plaintiffs
that the unpaid rent was going into an escrow account.
They further indicate in support of their claim that
Nader also testified that he offered to pay the money
back to the plaintiffs immediately. Nader testified that
the defendants ‘‘immediately’’ offered to pay the plain-
tiffs the three months of rent they had placed in escrow.
The plaintiffs argue that the defendants are not enti-
tled to the equitable nonforfeiture defense because the
trial court properly applied the standard and found that
the defendants had intentionally breached the lease
by refusing to pay rent due in December, 2014, and
thereafter, because of the delay in the completion of
their renovations, for which paragraphs 31 and 32 of
the lease held the defendants responsible. The plaintiffs
maintain that the defendants’ nonpayment of rent was
deliberate and wilful, as they used ‘‘self-help in an effort
to impose on the [plaintiffs] a unilateral extension of
the rent concession period.’’ Furthermore, the plaintiffs
argue that the defendants never exemplified a willing-
ness to comply fully with the lease and cure the full
rental default because they deliberately failed to pay
over $100,000 in real estate taxes and sewer charges
that had accrued since the date of the January, 2014
tax installment and for which they were responsible
under paragraph 7 of the lease.9
The court’s decision rejecting the sixth special
defense was set forth piecemeal. Nonetheless, in its first
articulation, the court not only cited to Cumberland
Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 771,
a case which fully discusses the defense of equitable
nonforfeiture, but it properly applied the doctrine of
equitable nonforfeiture to the facts of the present case.
The court determined that the defendants had failed
to prove the first element of equitable nonforfeiture
pertaining to the absence of wilful or grossly negligent
nonpayment. In finding that the defendants failed to
prove the first element of equitable nonforfeiture, the
court was not required to address the other two ele-
ments. The court also determined that the defendants
failed to prove that they made a good faith effort to
comply with the lease or that they had a good faith
dispute with the plaintiff as to its meaning.
As to the first element, the defendants admit that
they deliberately stopped paying the rent upon advice
of their counsel. In particular, they noted that they were
upset about the contamination and the plaintiffs’ refusal
to extend the rent abatement period due to the delay
in the renovations, which they blamed on Girouard’s
purported conflict of interest in his capacities as both
the plaintiffs’ agent and the defendants’ renovation con-
sultant.
In the court’s initial memorandum of decision, it cited
to Cumberland Farms, which the defendants claim the
court ignored. The court therein found that ‘‘[t]he ele-
ments necessary to sustain the defense of equitable
nonforfeiture do not exist in this case because the
defendant[s] caused the breach [of nonpayment of rent]
intentionally.10 That finding alone negates any finding
of equitable nonforfeiture.’’11 (Footnote added.) After
determining that the defendants had failed to prove the
first prong of the test set forth in Fellows—that their
breach of the lease for nonpayment of rent was not
wilful or grossly negligent—the court was not required
to, and did not, address the second and third prongs.12
Later, in its first articulation in response to this court’s
order, the court also found that the defendants’ claims
of a good faith intent to comply with the lease and a
good faith dispute over the meaning of the lease had
not been proven.
The defendants argue that they were justified in with-
holding rent because they had not been informed of
the existence of contamination on the property. In its
corrected supplemental articulation, the court found
that in an attempt to justify their intentional breach of
the lease by nonpayment, the defendants raised ‘‘pre-
textual’’ concerns about their lack of knowledge of the
contamination of the tank graves, and that they actually
were seeking to avoid having to simultaneously pay
rent to the plaintiffs and to pay the existing rents for
their two businesses’ prior locations because the rent
concession period in the lease had expired before their
renovations were completed. The court noted that the
plaintiffs met all of their obligations under the lease
with respect to remediating the environmental contami-
nation, and that the contamination had no effect on the
progress of the defendants’ renovations. It found that
the defendants failed to offer any evidence that they
had ever complained about the contamination and
remediation work until they filed their answer in the
present case on March 24, 2015.13 The court also con-
cluded that the plaintiffs were not responsible for the
renovation delays because paragraphs 31 and 32 of the
lease imposed responsibility for repairs, replacements,
alterations and improvements on the defendants.
The court further found, with respect to the defen-
dants’ claim that they were justified in withholding their
rent because the plaintiffs refused to extend the com-
mencement date for the payment of rent beyond July
1, 2014, as a result of Girouard’s allegedly inefficient
consulting work, that there was no evidence that Girou-
ard delayed the progress of the renovations so as to
benefit the plaintiffs. The court stated that ‘‘[b]ased
upon the credible evidence presented in this matter,
with regards to the fourth special defense and the rea-
sonable inferences which may be drawn therefrom, the
court finds that the defendant has failed to prove its
fourth special defense.14 Any agreement entered into
between [Girouard] and the defendants, Nader and Sas-
soon . . . was entered into separate from and indepen-
dent of the agreement between the plaintiffs . . . and
the defendants . . . . The court finds that there was
no control by [the plaintiffs] over the actions of . . .
Girouard, nor was there any form of supervision, nor
was there any benefit to the [plaintiffs] from the agree-
ment between Girouard and [the defendants]. Simply
put, the agreement was separate from and independent
of the agreement between [the plaintiffs] and [the defen-
dants]. The defendants . . . are free to seek, from [Gir-
ouard], any claim for damages allegedly resulting from
the fit-up delays and any delay in not timely producing
a certificate of occupancy. This is not the fault or
responsibility of [the plaintiffs]. The court finds that
[Girouard] was acting for and solely on behalf of the
defendant tenants in all of his undertakings to fit-up
the property and in obtaining any certificate of occu-
pancy.’’15 (Footnote added.)
We have thoroughly reviewed the exhibits and the
testimony of the witnesses as to the claim that the
defendants were justified in withholding rent as a result
of their lack of knowledge of environmental contamina-
tion or the plaintiffs’ failure to extend their rent abate-
ment as a result of Girouard’s allegedly deficient con-
sulting work. We conclude that the court, exercising
its equitable authority, to which we afford considerable
deference, could reasonably have reached the conclu-
sions it did.
The court could have credited Dominick, who testi-
fied that the department in 2010 wanted him to put
a leak detection device on his gasoline underground
storage tank. He did not recall receiving any violation
notice from the department in May, 2010. He decided
to remove the two underground storage tanks rather
than install any device and had his nephew do the
removal work. He believed soil testing done in 2011 by
Absolute, authorized by the plaintiffs, showed some
contamination but it was at satisfactory levels and did
not exceed acceptable limits. Dominick stated that he
told the defendants that there was some contamination
but if there was a problem, he would take care of it.
The parties provided for that contingency in paragraph
33 of the lease.16
Girouard testified that when the plaintiffs received
the July 1, 2014 notice from department, they asked
Girouard to look into it. Girouard testified that he hired
Enviro Shield to remediate any contamination, in addi-
tion to hiring a licensed environmental professional,
Sherry Hartman, to supervise the project. He did not tell
the defendants about the department notice. Dominick
testified that the defendants never complained that the
contamination related to the underground tanks inter-
fered with their ability to renovate the property.
During his testimony, Nader indicated that he found
out about the July 1, 2014 department order in the
early fall of 2014, when he heard media reports and
encountered Omar Z. Tyson, an enforcement officer
employed by the department, on the property. He admit-
ted that the remediation work, which began in August,
2014, did not interfere with the progress of the defen-
dants’ renovations, which had commenced in July, 2014.
Girouard indicated that he had had nothing to do
with the removal of the two underground storage tanks
or the testing that took place on the property between
2010 and 2013. Girouard testified that he first became
aware of the contamination on July 3, 2014, which the
court could have credited.
During the discussions between the parties prior to
the signing of the lease, Nader testified that Dominick
and Crescienzo had recommended Girouard to assist
the defendants with their renovations. Nader and Girou-
ard negotiated the lease. In addition, Sassoon knew that
Girouard was the leasing agent for the plaintiffs prior
to signing the lease, having attended a meeting with
Dominick and Crescienzo in September, 2013, to dis-
cuss a possible lease where Girouard was present at
the plaintiffs’ request. Prior to signing the lease, Nader
entered into a consulting contract with Girouard to
assist with the renovations on October 29, 2013, and
paid him $11,250.
Girouard testified that there were a number of rea-
sons for the delays in the issuance of the certificates
of occupancy for the rug gallery and Subway spaces.
Initially, the defendants did not intend to immediately
renovate space for their Subway franchise because their
current lease for the operation of their franchise would
not expire for four more years. A preliminary drawing
dated December 28, 2013, provided to the defendants
by Girouard, showed no renovations for a retail food
space. Prior to the signing of the lease, the defendants
had not selected a contractor for the renovation work.
The Westport Architectural Review Board (board)
slowed the progress of the renovations due to its con-
cern about the exterior design. Girouard had to attend
three hearings, and the board’s requirements for the
exterior added to the cost. Girouard thereafter obtained
three different contractors’ proposals. He denied that
he ever estimated the cost of the renovations or the
amount of time needed for their completion for the
defendants. The defendants were not satisfied with any
of the three proposals. Ultimately, the defendants, after
having two other contractors bid for the job, one of
which, Alpha Additions, would not set a price, hired
MK Remodeling, which estimated that it would cost
$420,000 just to renovate the retail space for the rug
store.
There were additional costs for electrical, plumbing,
fireproofing, exterior doors and heating, ventilation,
and air conditioning. The defendants obtained a build-
ing permit only for the rug gallery retail space on June
11, 2014.
On May 28, 2014, and June 27, 2014, the defendants
received two letters from Girouard, which he had writ-
ten on behalf of the plaintiffs. The letters identified
Girouard as ‘‘Boccanfuso Family Property Manager, 611
Riverside Avenue, Westport.’’17 The first letter reminded
the defendants that pursuant to paragraph 10, rent for
the property was due on June 1, 2014, and that payment
of utilities for the property should be assumed by then.
The June 27, 2014 letter addressed to the defendants
rejected revising the lease as suggested in a letter from
the defendants’ attorney to Girouard. Girouard advised
the defendants that Dominick and Crescienzo had
granted them an additional one month rent concession,
but that the July, 2014 rent was due by July 10. He
reminded them again that the utilities must be assumed
by them and put in their business’ name. The letter
concluded with a paragraph that stated that the individ-
ual plaintiffs did not want to be called or visited at their
residences or places of business by the defendants, and
that Girouard would exclusively handle all future lease
and building matters on their behalf. On July 1, 2014,
Dominick and Crescienzo sent a letter to the defendants
indicating that Girouard had made them aware of the
defendants’ desire to meet concerning the lease. The
brothers indicated that they no longer wanted to be
involved in any discussions concerning the lease and
that no further concessions of any kind would be
granted. They stated that they were fully expecting
rental payments starting July 1, 2014, and that all mat-
ters concerning the lease were to be handled exclusively
by Girouard. Although the defendants also were to pay
the property taxes and sewer charges for the property
as part of the rent, they never did so.
In July, 2014, after Girouard had sent the letters to
the defendants on behalf of the plaintiffs demanding
that they commence paying rent and utilities, Nader
discussed with Girouard that the defendants had
decided to begin renovating the space for the Subway.
The addition of the Subway space required more exten-
sive sewer work and the addition of sidewalks.
Despite their purported resentment toward Girouard
and the plaintiffs for the delays which they claim were
attributable to Girouard, and the failure of the plaintiffs
to grant them a further extension of the rent abatement
period, on August 1, 2014, the defendants again agreed
to hire Girouard as their consultant to assist in the
renovation of the retail space for the Subway. For this
work, they agreed to pay Girouard $9000. At this point,
the defendants were fully aware that Girouard served
as both a property manager and leasing agent for the
plaintiffs.
Sassoon testified that by the end of 2014, Girouard
was no longer communicating with the defendants, and
that the defendants stopped paying rent as an ‘‘act of
desperation’’ because they were then paying three rents,
but had not yet occupied the property. Sassoon admit-
ted that they did not pay rent beginning in December,
2014, which led to the plaintiffs’ commencement of
this action.
Sassoon testified inconsistently. He first testified that
the defendants informed Girouard that they wanted to
bring both businesses, the rug gallery and the Subway,
under the same roof as soon as the lease was signed,
but later admitted that the consulting agreement they
entered into with Girouard on October 28, 2013, did
not include renovation of the Subway space.
Dominick testified that he was uninvolved with the
consulting arrangements Girouard had with the defen-
dants or with their contractors. This was confirmed by
Girouard. Dominick indicated that Girouard was never
the property manager for the property the defendants
leased.
Affording the court every reasonable presumption in
favor of upholding its decision, we conclude that the
court, on the basis of the facts and the reasonable infer-
ences drawn from them, did not abuse its discretion in
applying the doctrine of equitable nonforfeiture. The
court indicated it understood the parameters of the
doctrine and properly determined that the defendants
failed to prove the first Fellows element, that their with-
holding of the rent was not wilful or grossly negligent,
and that the defendants failed to prove that they made
a good faith effort to comply with the lease or that a
good faith dispute as to the meaning of any of its terms
existed.18 Accordingly, the defendants have failed to
demonstrate that the court improperly chose or applied
the law on equitable nonforfeiture.
II
The defendants’ next claim is that the court erred in
finding that the plaintiffs were unaware of environmen-
tal contamination on the property until after July 1,
2014.19 We disagree.
When reviewing findings of fact, we defer to the trial
court’s determination unless it is clearly erroneous. ‘‘A
finding of fact is clearly erroneous when there is no
evidence 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 mistake has been committed. . . . In making
this determination, every reasonable presumption must
be given in favor of the trial court’s ruling.’’ (Internal
quotation marks omitted.) State v. Dunbar, 188 Conn.
App. 635, 641, 205 A.3d 747, cert. denied, 331 Conn. 926,
207 A.3d 27 (2019).
The defendants argue that Dominick had withheld
information about environmental contamination on the
property prior to the date that they signed the lease,
justifying their withholding of their rental payments,
as well as supporting their second and third special
defenses that the plaintiffs had breached paragraphs
14 and 33 of the lease and violated the implied covenant
of good faith and fair dealing.
The court found that ‘‘[u]ntil after July 1, 2014, the
plaintiffs and the defendants were unaware that the
tank graves contained gasoline-type contaminants
above action levels. Accordingly, on November [22],
2013, the date when the lease was signed, neither party
knew of the existence . . . of the contamination.’’ As
a result, the court found no merit to the defendants’
second and third special defenses.
Our review of the testimony and other evidence
related to the environmental contamination issues,
which we discuss in part I of this opinion, reveals that
there was evidence in the record to support the court’s
finding that the plaintiffs were unaware of contamina-
tion levels requiring action on the property until after
July 1, 2014. Dominick testified that he believed any
contamination detected in 2011 was within acceptable
limits and that he told the defendants that there was
some contamination, but if there was any problem, he
would take care of it.
Moreover, even if the existence of contamination on
the property requiring action prior to July 1, 2014, was
concealed from the defendants, the court also found
that the plaintiffs had complied with their obligation
under paragraph 33 of the lease and had taken care of
the problem. Furthermore, the court found that the
remediation had no effect on the progress of the defen-
dants’ renovations or their ability to open both of their
businesses on the property. The court stated that the
plaintiffs had addressed the contamination issues at
their expense and the property had been remediated
in accordance with the stipulation between the depart-
ment and the plaintiffs.
Accordingly, even if the court’s finding that the plain-
tiffs were unaware that the tank graves contained gaso-
line type contaminants above action levels was errone-
ous, such an error would be harmless, as the plaintiffs
complied with their obligation under the lease to rem-
edy the conditions. Neither the contamination nor the
remediation process had any effect on the defendants’
use of the property or the progress of their renovations.
Therefore, the court properly concluded that the con-
tamination did not justify the defendants’ nonpayment
of rent.
III
The defendants’ third claim is that the court abused
its discretion in finding that they had failed to prove
their special defenses of unjust enrichment and viola-
tion of the implied covenant of good faith and fair deal-
ing. We decline to reach the merits of this claim because
it is inadequately briefed.
It is well established that ‘‘[w]e are not required to
review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue
properly.’’ (Internal quotation marks omitted.) State v.
Fowler, 178 Conn. App. 332, 345, 175 A.3d 76 (2017),
cert. denied, 327 Conn. 999, 176 A.3d 556 (2018).
The defendants’ analysis of this claim appears in a
single paragraph of their brief. Moreover, in referring to
their special defense alleging a violation of the implied
covenant of good faith and fair dealing, the defendants
do not distinguish between their third or fifth special
defenses, both of which allege a violation of the implied
covenant of good faith and fair dealing. There are no
legal authorities cited, let alone any analysis of whether
the special defenses at issue were legally viable. We
note, as well, that the defendants do not cite to any
standard of review that governs our review of this
claim.20
Moreover, in their scant analysis of this claim, the
defendants inaccurately assert that the court failed to
make any factual findings as to the fourth and fifth
special defenses.21 The defendants also inaccurately
assert that the court failed to refer to the special
defenses alleging a violation of the implied covenant
of good faith and fair dealing.22 On the basis of the
foregoing, we decline to review the merits of this claim.
IV
The defendants’ final claim is that the court abused
its discretion by not granting the defendants a continu-
ance so that Tyson, an enforcement officer employed
by the department, could testify on their behalf. We
disagree.
The following additional facts are relevant to this
claim. At the beginning of the hearing on April 4, 2017,
which was a Tuesday, counsel for the defendants indi-
cated to the court that he had subpoenaed one witness,
a ‘‘state employee,’’ whom he anticipated would testify
on Thursday. The court responded that the case had
been scheduled for ‘‘today’’ for quite some time; counsel
for the defendants knew the Stamford-Norwalk Housing
Session sits on alternate days, Tuesdays and Thursdays;
and the court had a lot of other cases going forward. The
court noted that counsel had not requested permission
from the court for a later date, there had been ‘‘many,
many meetings’’ and hearings concerning the case, and
it was one of the oldest summary process cases in the
Norwalk Housing Session. The court stated, ‘‘it’s going
forward without any further delay.’’ The court, however,
then stated, ‘‘we’ll see what happens with . . . the evi-
dence,’’ and then it would make a ruling on the defen-
dants’ request.
Counsel for the defendants then stated that he
thought the case had been scheduled for Tuesday and
Thursday. The court stated, ‘‘[t]his case has not been
designated to be a two day trial. Be very clear about
that.’’ Counsel for the defendants replied, ‘‘[a]t the first
break, Your Honor, I will call the witness and see if he
can be here this afternoon.’’
The plaintiffs then put on their case for summary
timony of Nader, counsel for the defendants advised
the court that he had attempted to call the witness from
the department: ‘‘I’ve called him on cell phone and I’ve
called him at his office desk. I have not heard back
from him and I will call him now again.’’ The court
stated, ‘‘I want to make the record pretty clear. At no
time were you told by the clerk’s office that you would
have Thursday to continue with this trial. It’s completely
inconsistent with how we do business because again
as I said earlier, we work on Tuesdays and Thursdays
in Norwalk and time is very scarce in terms of having
a contested hearing.’’
Nader finished testifying just before the lunch break.
Counsel for the defendants indicated to the court that
he would be calling Sassoon to testify after lunch. The
court stated, ‘‘And that will conclude, assuming you
don’t locate the individual that you . . . .’’ Counsel for
the defendants indicated he would do his best, and the
court responded, ‘‘Well I’m not going to hear it if he’s
not here. Just be very clear. This is it. This is your day.
I’m not going to continue this case. It’s been dragging
and dragging and dragging very, very long, as I said
earlier.’’
After the lunch recess, the defendants continued with
their presentation of their case, and Sassoon gave brief
testimony. After Sassoon finished testifying, the court
stated, ‘‘I’m not going to entertain any continuance
request for any witness who’s out there on the road or
whatever, [defense counsel]. And I don’t know if I’m
really going to need testimony from someone from the
[department] based on what I’ve heard in this case.’’
Counsel for the defendants did not respond to this
statement.
The court then discussed a date for the filing of simul-
taneous posttrial briefs in lieu of closing arguments. At
the conclusion of the hearing, the court inquired of both
the plaintiffs’ and the defendants’ counsel if there was
anything else. Counsel for the defendants replied,
‘‘[t]hank you, Judge. Nothing else.’’
We briefly set forth the standard of review. ‘‘The
determination of whether to grant a request for a contin-
uance is within the discretion of the trial court, and
will not be disturbed on appeal absent an abuse of
discretion. . . .
‘‘A reviewing court is bound by the principle that
[e]very reasonable presumption in favor of the proper
exercise of the trial court’s discretion will be made.
. . . To prove an abuse of discretion, an appellant must
show that the trial court’s denial of a request for a
continuance was arbitrary. . . . There are no mechani-
cal tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every
case, particularly in the reasons presented to the trial
judge at the time the request is denied. . . . In the
event that the trial court acted unreasonably in denying
a continuance, the reviewing court must also engage
in harmless error analysis. . . .
‘‘Among the factors that may enter into the court’s
exercise of discretion in considering a request for a
continuance are the timeliness of the request for contin-
uance; the likely length of the delay; the age and com-
plexity of the case; the granting of other continuances in
the past; the impact of delay on the litigants, witnesses,
opposing counsel and the court; the perceived legiti-
macy of the reasons proffered in support of the request;
the [defendants’] personal responsibility for the timing
of the request; [and] the likelihood that the denial would
substantially impair the [defendants’] ability to defend
[themselves]. . . . We are especially hesitant to find
an abuse of discretion where the court has denied a
motion for continuance made on the day of the trial
. . . .
‘‘Lastly, we emphasize that an appellate court should
limit its assessment of the reasonableness of the trial
court’s exercise of its discretion to a consideration of
those factors, on the record, that were presented to the
trial court, or of which that court was aware, at the
time of its ruling on the motion for a continuance.’’
(Internal quotation marks omitted.) State v. Godbolt,
161 Conn. App. 367, 374–75, 127 A.3d 1139 (2015), cert.
denied, 320 Conn. 931, 134 A.3d 621 (2016).
For several reasons, we conclude that the defendants
have not demonstrated that the court abused its discre-
tion by denying their request for a continuance in an
over three year old summary process case for the pur-
pose of presenting Tyson’s testimony. April 4, 2017,
was the third day of a trial in an action that had been
commenced in January, 2015. On April 4, 2017, the
defendants failed to make an adequate showing as to
why Tyson, purportedly under subpoena for that day,
was not available to testify as scheduled, or why his
deposition could not have been taken beforehand and
offered into evidence in lieu of live testimony.23 The
defendants made no proffer to the court as to the neces-
sity for Tyson’s testimony or why the denial of a continu-
ance would substantially impair their defense. Cer-
tainly, they are unable to advance any such theory of
relevance for the first time before this court.24 They
also made no request for a capias to compel Tyson’s
presence. Finally, it was appropriate for the court to
consider the timing of the request and the fact that the
defendants’ counsel moved for a continuance on the
day of trial. See, e.g., State v. Godbolt, supra, 161 Conn.
375–76 (late hour of request weighed in favor of court’s
denial of request for continuance).
Moreover, we conclude that, even if the court did
abuse its discretion in refusing to grant a continuance
for the presentation of Tyson’s testimony, any error
was harmless. The defendants argue before this court
that failing to grant the request for a continuance had
the effect of excluding Tyson’s testimony, which ‘‘effec-
tively kept out of evidence extremely relevant [depart-
ment] documentation concerning the history of contam-
ination on the [plaintiffs’] property.’’ In discussing the
prejudice they allegedly suffered as a consequence of
the court’s ruling, however, the defendants do not
address the significance of the fact that the court con-
sidered the environmental contamination issue to be
‘‘pretextual.’’ As the court found, ‘‘[t]he defendants suf-
fered no detriment as a result of the contamination and
remediation. They failed to offer any evidence that they
ever even complained about the contamination and
remediation until they filed their answer in this case on
March 24, 2015.’’ The defendants have not demonstrated
that the court’s rationale in this respect was flawed
and, thus, are unable to demonstrate that they were
harmed by the court’s purported error. We therefore
reject the defendants’ claim that the court abused its
discretion by not granting their request for a continu-
ance in order to call Tyson as a witness.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Nader negotiated the lease on behalf of the defendants.
2
The letter is on the stationery of ‘‘Klein New England.’’ Sassoon testified
that Girouard operates under another company called Klein New England
and that he and that business were one and the same. Girouard testified
that he had purchased a business known as Victor Klein Associates, a
business and restaurant brokerage firm, in 1996, and that he sent his propos-
als to the defendants for his consulting work on Klein New England sta-
tionery.
3
Paragraph 10 of the lease provides in pertinent part: ‘‘Rent shall com-
mence on the date (the ‘Rent Commencement Date’) which is the earlier
of (a) the date the [l]essee opens for business to the public or (b) the 180th
day after a fully executed [l]ease is delivered to the [t]enant.’’ The 180th
day following the execution of the lease occurred on May 21, 2014. On May
29, 2014, the individual plaintiffs met with the individual defendants and
Girouard and agreed to extend the 180 day rent abatement period for an
additional one month and one week. The defendants commenced paying
rent in July, 2014.
4
Apart from three missed rental payments for December, 2014, January,
2015, and February, 2015, the defendants claim, and the plaintiffs do not
dispute, that pursuant to a court order, they deposited monthly payments
of $16,388 with the clerk of the court for use and occupancy. The defendants,
however, initially objected to paying any use and occupancy fees.
5
Paragraph 14 of the lease provides: ‘‘Quiet Enjoyment. Lessor covenants
with the said [l]essee that it has good right to lease said premises in manner
aforesaid and that it will suffer and permit said [lessee] (it keeping all the
covenants on its part, as hereinafter contained) to occupy, possess and
enjoy said premises during the term aforesaid, without hindrance or molesta-
tion from it or any person claiming by, from or under it.’’
Paragraph 33 of the lease provides: ‘‘Lessor’s Work. Lessor will be responsi-
ble for any environmental issues which may arise with the [d]emised [p]rem-
ises. Lessor will also be obligated to remove the hydraulic lifts in a
timely manner.’’
6
The evidence actually revealed that the defendants entered into two
consulting agreements with Girouard, one in October, 2013, and another in
August, 2014.
7
The court did not provide a written ruling that specifically addressed
the merits of the related fifth special defense, which alleged that the plaintiffs
breached the implied covenant of good faith and fair dealing by insisting
on rental payments before Girouard had completed renovations of either
special defense. The court did, however, in its first articulation, find that
the defendants ‘‘had failed to sustain [their] burden of proof as to all the
special defenses.’’ (Emphasis added.)
The fifth special defense is derivative of the fourth special defense,
because the fourth special defense alleged that the plaintiffs, despite knowl-
edge of Girouard’s failure to obtain the necessary permits and approvals,
required the defendants to commence paying rent, thereby breaching the
implied covenant of good faith and fair dealing. The court found that there
was no agreement between the plaintiffs and the defendants with respect
to any expectations as to Girouard’s performance of his consulting agree-
ments with the defendants as to the renovations. It concluded that there
was only a separate and independent agreement between Girouard and
the defendants.
We note that a breach of the implied covenant of good faith and fair
dealing can only occur when there is already a contract, i.e., an enforceable
obligation, because ‘‘[t]he implied covenant is derivative, that is, it does not
create or supply new contract terms but grows out of existing ones.’’ (Internal
quotation marks omitted.) Goldwater v. Ollie’s Garage, Superior Court,
judicial district of New Haven, Docket No. CV-XX-XXXXXXX (June 5, 1995);
see also Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620,
638, 804 A.2d 180 (2013) (‘‘the existence of a contract between the parties
is a necessary antecedent to any claim of breach of the duty of good faith
and fair dealing’’ [emphasis in original; internal quotation marks omitted]);
Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d
1144 (2000) (same). We conclude that in finding that the plaintiffs were
under no contractual obligation to monitor or control the activities Girouard
performed for the defendants, the court impliedly applied those factual
findings in rejecting the defendants’ fifth special defense.
8
Paragraph 31, titled ‘‘Maintenance of Leased Premises,’’ states: Lessee
agrees to take good care of and maintain the [l]eased [p]remises in good
condition throughout the term of the [l]ease.
‘‘Lessee, at his expense shall make all necessary repairs and replacements
to the [l]eased [p]remises, including the repair and replacement of pipes,
electrical wiring, heating and plumbing systems, fixtures and all other sys-
tems and appliances and their appurtenances. The quality and class of all
repairs and replacements shall be equal to or greater than the original worth.
If [l]essee defaults in making such repairs or replacements, [l]andlord may
make them for [l]essee’s account, and such expenses will be considered
[a]dditional [r]ent.’’
Paragraph 32, titled ‘‘Alterations and Improvements,’’ states: ‘‘Lessee shall
not make any alterations or improvements to, or install any fixtures on
the [l]eased [p]remises without [l]andlord’s prior written consent. If such
consent is given, all alterations and improvements made, and fixtures
installed by [l]essee shall become [l]andlord’s property at the end of the
[l]ease term. Landlord may, however, require [l]essee to remove such fix-
tures, at [l]essee’s expense, at the end of the [l]ease term.
‘‘All alterations and improvements to the [p]remises are the [l]essee’s sole
responsibility. All expenses and costs associated with the required zoning
change of use are the [l]essee’s sole responsibility.’’
9
Paragraph 7 of the lease provides: ‘‘Taxes. From and after the [r]ent
[c]ommencement [d]ate, and for and during the remaining [t]erm(s) of this
[l]ease, [l]essee hereby covenants and agrees to pay as [a]dditional [r]ent
the [d]emised [p]remises annual real estate and sewer taxes in lawful money
of the United States. Lessor shall furnish [l]essee copies of the municipal
tax statements. Penalties for late payments are the sole responsibility of
the [l]essee.’’
10
‘‘Whether a party’s conduct is wilful is a question of fact.’’ Saunders v.
Firtel, 293 Conn. 515, 530, 978 A.2d 487 (2009). Wilful commonly means
intentional or deliberate, as opposed to accidental. Id., 531. At times, the
term has been used to describe conduct deemed highly unreasonable or
indicative of bad faith. Id. Although the term is subject to multiple meanings,
reviewing some of the court’s explicit findings, such as its finding that the
claims regarding the contamination were ‘‘pretextual,’’ and not raised until
after this action was commenced, in addition to finding that it had rejected
‘‘the defendants’ claimed good faith intent to comply with the lease and
. . . alleged good faith dispute over the [meaning] of the lease,’’ we conclude
that the court used the term to mean highly unreasonable or in bad faith.
11
In Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 777,
the trial court determined, and our Supreme Court agreed, that a tenant
was entitled to equitable relief from forfeiture in light of the fact that there
had been confusion on the part of the tenant about the identity of the
landlord and where to send the rental payments, and the tenant had diligently
sought to obtain necessary calculations from a confused landlord as to the
amount it owed the landlord.
12
The defendants argue that the court, in rendering its decision, failed to
consider the second and third elements of the equitable nonforfeiture test
that pertain to whether, upon eviction, the defendant would suffer a loss
wholly disproportionate to the injury to the plaintiffs and whether the plain-
tiffs’ injuries were reparable. The court made no findings as to the nature
of any losses the defendants would suffer upon eviction or whether the
plaintiffs’ injuries were reparable. See, e.g., Fellows v. Martin, supra, 217
Conn. 66–67. Although the parties have briefed the issue of whether the
evidence proved the second and third elements of the equitable nonforfeiture
test, we see no need to address those additional arguments raised in connec-
tion with the present claim.
13
As of March, 2015, the defendants had obtained certificates of occupancy
for both businesses.
14
These findings also pertain to the fifth special defense. See footnote 8
of this opinion.
15
We agree with the plaintiffs that the defendants’ claim appears to be
based on the doctrine of constructive eviction, a doctrine that would not
permit them to withhold rent payment yet remain in possession of the
property. ‘‘[A] constructive eviction arises where a landlord, while not actu-
ally depriving the tenant of possession of any part of the premises leased,
has done or suffered some act by which the premises are rendered untenanta-
ble, and has thereby caused a failure of consideration for the tenant’s promise
to pay rent. . . . In addition to proving that the premises are untenantable,
a party pleading constructive eviction must prove that (1) the problem was
caused by the landlord, (2) the tenant vacated the premises because of the
problem, and (3) the tenant did not vacate until after giving the landlord
reasonable time to correct the problem.’’ (Citation omitted; internal quota-
tion marks omitted.) Heritage Square, LLC v. Eoanou, 61 Conn. App. 329,
332, 764 A.2d 199 (2001).
16
We note that there is no provision in the lease in which the plaintiffs
warranted to the defendants that no environmental contamination on the
property existed.
17
Dominick had testified that Girouard was not the property manager for
his garage at the property, although he did negotiate the lease for the
plaintiffs. Dominick stated that Girouard was the property manager for other
properties the plaintiffs owned, including 611 Riverside Avenue in Westport.
18
The defendants, in their brief, do not enlighten us as to any dispute
between the parties as to the meaning of any particular provision of the
lease, nor do they question the court’s ultimate interpretation of any of its
relevant provisions. They also fail to adequately brief their argument that
their withholding of rent upon the advice of counsel satisfies the requisite
proof for the defense of equitable nonforfeiture set forth in Fellows. We
consider both of these unarticulated arguments in their first claim to be
abandoned.
19
The defendants misrepresent the court’s actual finding on the issue of
existing contamination on the property before July 1, 2014. The court’s
actual finding was that the parties were ‘‘unaware that the tank graves
contained gasoline type contaminants above action levels.’’ (Emphasis
added.)
20
The defendants’ statement of the claim suggests that the abuse of discre-
tion standard of review applies, yet the issue of whether a contract has
been breached ordinarily is a question of fact, subject to the clearly erroneous
standard of review, as we previously cited in part I of this opinion. See
Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 59, 829 A.2d
102 (2003).
21
The defendants ignore the court’s oral ruling, at the conclusion of the
second day of trial on May 19, 2016, in which it ruled on the viability of the
fourth special defense pertaining to the delays in the property renovations
allegedly caused by Girouard. We are particularly perplexed by this omission
because the defendants included a copy of the signed transcript containing
the court’s factual findings relevant to the fourth special defense in the
appendix to their appellate brief.
22
In its original order, its first articulation, and its corrected supplemental
articulation, the court specifically found that the defendants had failed to
prove their third special defense.
23
In the appendix of their brief to this court, the defendants have provided
a copy of the subpoena served on Tyson. It reflects that he was served by
a state marshal on March 29, 2017, to appear on Tuesday, April 4, 2017, not
Thursday, April 6, 2017. It would appear that, prior to April 4, 2017, the
defendants, with the exercise of due diligence, could have ascertained
whether Tyson would appear and could have apprised the court of a problem
with Tyson’s compliance.
24
The defendants argue in their brief that the court’s denial of a continu-
ance ‘‘effectively kept out of evidence extremely relevant [department] docu-
mentation concerning the history of contamination . . . and Tyson’s . . .
repeated contact with Dominick . . . .’’ The defendants, however, made no
proffer whatsoever to the trial court as to what evidence Tyson might have
contributed in support of their defense.