Won Yong Ha et al. v. Albert Alexander et al. (2010)

MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY DATED OCTOBER 7, 2009 (# 100.30)

The defendant, Albert Alexander (Alexander), is the owner of a commercial building at 142 Mason Street, Greenwich, Connecticut in which the individual plaintiffs are occupants and the corporate plaintiff is a tenant.   Multiple disputes have arisen between the parties both before and after the execution of a March 1, 2007 commercial lease.   Ex. # 4.   One of the issues involves the demand and payment of “key money” by a landlord, an issue never decided by any trial or appellate court in Connecticut.

The court has applied the well-known standards for determining a prejudgment remedy.  New England Land Company, Ltd v. DeMarkey, 213 Conn. 612, 619-21 (1990);  Ledgebrook Condominium Association, Inc. v. Lusk Corporation, 172 Conn. 577, 584 (1977).   The plaintiffs are claiming a $1,000,000 prejudgment remedy.   The lawsuit has not been commenced.   The defendants appeared by counsel on October 27, 2009 and defended.   The defendants did not file any written notices of defenses.   The defendants did not fill out nor execute “Section III-Defendant's Claim and Request for Hearing” on form JD-CV-53 Rev. 7-01.   See Gen.Stat. § 52-278c(g) for the significance of Section III. No briefs were filed by either party.   A prejudgment remedy evidentiary hearing commenced on November 9, 2009 and ended on April 7, 2010.   Extensive oral argument was furnished at the end of the seven days of evidence.

The court makes the following findings of fact and legal conclusions.

The defendant, Albert Alexander, is the owner of a one-story multi-tenant commercial building located at 142 Mason Street, Greenwich, Connecticut.   The plaintiff, E.W. Cleaners, Inc., is a Connecticut corporation and is a tenant at 142 Mason Street under a March 1, 2007 lease.   The “Premises” described in the lease is “that certain rental space, located at and known as 142 Mason Street, Greenwich, Connecticut, consisting of approximately 2,831± rentable square feet, as more particularly shown as the cross-hatched area on the floor plan attached hereto as Schedule A.” A one-page floor plan is attached to the lease as Schedule A. There is no scale or date on Schedule A. There are a number of other tenants shown on Schedule A. The northerly portion of Schedule A is an interior store marked with horizontal lines and that space is delineated “MASON CLEANER 2,831.585 SF.” Schedule A also contains the phrase “AREA TOTAL EXISTING-10094.38 SQ FT.” The lease runs from the effective day of March 1, 2007 until February 28, 2018.   The plaintiff, Won Yong Ha (Ha), is married to the plaintiff, Eun Ha (Eun Ha), his wife.   From the fair inference from testimony of all the parties, the Court finds that Mr. & Mrs. Ha, jointly or individually, are the only shareholders in the corporate plaintiff, E.W. Cleaners, Inc. E.W. Cleaners, Inc. conducts a dry cleaning and laundry business commonly known as Mason Cleaners at 142 Mason Street, Greenwich, CT. Ha signed the March 1, 2007 lease as the President of E.W. Cleaners, Inc., and he also signed a personal guaranty of the lease.

The operative complaint is the unsigned thirteen-count Amended Proposed Complaint dated January 22, 2010 (# 105.00).   The lawsuit has yet to be commenced.   The second defendant is Babylon Family, LLC. Babylon is not a party to these prejudgment remedy proceedings.   Count Thirteen is not involved in these prejudgment remedy proceedings since it deals with real property in Stamford, Connecticut.   Of the remaining twelve counts;  three refer only to the plaintiff, Ha;  injury to person, intentional infliction of extreme emotional distress and negligent infliction of emotional distress.   The other nine counts refer to all three plaintiffs and sound in fraud, unjust enrichment, civil theft, Connecticut Unfair Trade Practices (CUPTA), breach of contract, breach of covenant of fair dealing, per se tortious conduct, trespass and negligent misrepresentation.

The plaintiff, Ha, became a tenant of a portion of the property at 142 Mason Street under a February 19, 1992 lease with the landlord, Alexander.   Ex. 8. The two tenants under this 1992 lease were Won Yong Ha and Boo Young Lee (Lee).   That lease ran from February 15, 1992 to February 28, 1997.   There was no floor plan attached to the 1992 lease.   The rented premises was “a store known as 142 Mason Street ․ comprising approximately 3,400 square feet, more or less and excepting from said store known as 142 Mason Street, Greenwich Connecticut, a space comprising approximately 200 square feet more or less.”   The 1992 lease required the premises to be used for a laundry and/or dry cleaning business.

Ha suffered a heart attack and had to give up the laundry/dry cleaning business for health reasons.   Ha testified that the heart attack occurred in July 1992 after the effective date of the 1992 lease.   The medical records seem to reflect a 1994 heart attack.   In any event Ha's heart attack occurred during the 1992 lease term.   Lee continued to run the laundry/dry cleaning business.   Lee and Ha were related.   The 1992 lease permitted the tenant to renew the lease from March 1, 1997 to February 28, 2002 at a new rent rate set forth in the 1992 lease.   Lee exercised the option to renew and the 1992 lease was extended to February 28, 2002.

On November 1, 1995 Alexander and Lee executed a Modification of Lease, which stated that the original 1992 lease named Ha and Lee as tenants and Lee alone exercised the option to renew the lease until February 28, 2002.   Ex. 10.   The Modification of the Lease stated in paragraph 1:  “Boo Yong Lee is the sole Tenant under the Renewed Lease.”   Paragraph 2 stated:  “The leased premises is modified to exclude an area of approximately 550 square feet on the southwesterly side of the leased premises (now or formerly occupied by Einar Graphics).”   A second version of the Modification of Lease also dated November 1, 1995 executed by Alexander and Lee contained the same paragraph 1 language.   This second version contained a reduction of the rent due to the exclusion of the approximately 550 square feet from the rented premises.   Ex. 9. This Modification of Lease did not reduce the Tenant's Proportionate Share of the common charges.   This second version also contained an Option to Renew for the period of March 1, 2002 through February 28, 2007 with a rent increase for the five-year renewal.   Ex. 9 also stated:  “This option shall be exercised, if at all, by so notifying the landlord, in writing, no later than May 1, 2006.”   Why the exercise of the option to renew must be exercised by May 1, 2006 when the option period commenced over four years earlier and ran from March 1, 2002 through February 28, 2007, was not addressed by the evidence.   In any event no written document signed by Alexander and/or any tenant was offered into evidence extending the lease from March 1, 2002 through February 28, 2007.

The demised premises at 142 Mason Street was continuously occupied as a laundry/dry cleaning business with Alexander continuing to be the landlord for the period from February 15, 1992 through February 28, 2007.   All rent and other tenant required payments were made to Alexander through February 28, 2007 and Alexander accepted these payments.   Ex. 6. The new tenant, E.W. Cleaners, Inc., was credited with the previously paid security deposits paid under Exhibits 8, 9 and 10.   Ex. 6. When this lease was signed Alexander accepted a check from Ha for $24,100 in which the Memo line stated “lease renewal.”   Ex. 6.

Sometime during the March 1, 2002 to February 28, 2007 period Lee sold the laundry/dry cleaning business to Song Bin Lee. No copies of the sale of business documents nor the acceptance by Alexander of the new subtenant, Song Bing Lee were offered in evidence.   A dispute arose between the purchaser of the new business and Lee and Ha. In 2002 Lee and Ha filed a lawsuit in the Superior Court Housing Session at Norwalk.   Lee hired Attorney Howard Wolfe to represent Lee in the litigation as against the subtenant who had purchased the business.   Alexander was not a party to this housing session lawsuit.   After a few days of trial, a stipulation was executed and the subtenant vacated the demised premises and turned the business over to Ha. This stipulation occurred prior to February 28, 2007, the termination date of the option period on the Alexander/Lee Modification of Lease.   Ex. 9. In 2002 Ha then took over the sole ownership and control of the laundry/dry cleaning business and Ha continued to pay rent to Alexander pursuant to Ex. 9. No documents, attornments, assignments or assumptions of the lease were executed by Alexander and Ha prior to February 28, 2007.   Ha was in possession operating Mason Cleaners at all times after the disposition of the Housing Session lawsuit.

The current lease was negotiated and executed in July 2008 retroactive to March 1, 2007.   The two plaintiffs, Ha and E.W. Cleaners, Inc., claim that they were tenants in possession from March 1, 2002 through February 28, 2007.   They are claiming money damages by reason of landlord's violation and overcharging in the various leases.   Alexander disputes that Ha was a tenant prior to March 1, 2007.   The court finds that E.W. Cleaners, Inc. and Alexander have a landlord/tenant relationship commencing on March 1, 2007.

Under certain circumstances the obligations of a landlord and tenant to each other continue even though there may no longer be a rental agreement between them.  Rivera v. Santiago, 4 Conn.App. 608, 610 (1985).   For example, in a tenancy at sufferance, the tenant no longer has the duty to pay rent but the tenant at sufferance is still obligated to pay the fair rental value in the form of use and occupancy for the premises in question.  Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131 (1975).   So too a landlord is required to fulfill statutory obligations as to the tenant at sufferance.   Ciavaglia v. Bolles, 38 Conn.Sup. 603, 605-06 (1992).  “A landlord/tenant relationship, in its most common and traditional form, is one in which there is an oral or written rental agreement between the parties containing the terms and the conditions for the use and occupancy of the subject unit.”  Rivera v. Santiago, supra, 4 Conn.App. 609.   Based upon all the circumstances and evidence the court finds that Ha was a tenant at sufferance in 142 Mason Street from March 1, 2002 through February 28, 2007.  Welk v. Bidwell, 136 Conn. 603, 609 (1950);  O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372 (1990);  Sippin v. Ellam, 24 Conn.App. 385, 391 (1991).

The court is going to discuss each of the monetary claims made by the plaintiffs in this prejudgment remedy application.   A number of the plaintiffs' claims are based on the additional rent provisions of the various leases.   For example, the current March 1, 2007 lease requires that E.W. Cleaners, Inc., to pay a proportionate share of the “Cost of Operation and Maintenance” of the entire building including utilities, insurance, water and maintenance of the entire building for each calendar year.   The “Tenant's Proportionate Share” for E.W. Cleaners, Inc. is 28.05% of the Cost of Operation and Maintenance and 27% of the water (through June 30, 2008 the water share was 30.0%).   Ex. 4, page 2. In addition the “Tenant's Proportionate Share” for E.W. Cleaners, Inc. of the real estate taxes for the entire building is 28.05%. Ex. 4, page 3. There are nine separate monetary claims.   The court has performed detailed mathematical calculations in order to reach certain findings and conclusions.   Those mathematical calculations will not be set forth in this Memorandum of Decision.   The parties may file a Motion for Articulation to obtain those mathematical calculations.

(1) The plaintiffs claim money damages for Alexander's overcharging for the tenant's 28.05% of the insurance premiums for the entire building.   Exhibits 27, 29 and 30 are the insurance policies for the periods January 3, 2006 through January 4, 2009.   The plaintiffs' claim that the average overcharge for the insurance premiums was $456.67 annually and the plaintiffs seek $7,763.39 damages for the 17 years from February 15, 1992 to date.   The plaintiffs claim that the evidence shows that Alexander fabricated the numbers for the insurance premiums and did not just make a good faith estimate.   In addition, the plaintiffs claim treble damages for each overcharge for statutory theft under Gen.Stat. § 52-564:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”  “Statutory theft under § 52-564 is synonymous with larceny under Gen.Stat. § 53a-119.”  Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309 (1993).

The plaintiffs failed to prove the actual amount that they paid despite Alexander's billings in Ex. 11, 12, and 13.   Photocopies of checks written on a Mason Cleaners account were offered in evidence.   All were signed by Ha;  ten checks for 2007, sixty checks for 2005, and twelve checks for 2006 were attached to Exhibit 11.

The court tried to verify the January 31, 2005 landlord's billing statement for the 2004 calendar year.   As with all billing statements there were four categories:  taxes, insurance, water and gardener.   The typed billing statement contains one column labeled “Total” with a number for each of the four categories and a second typed column labeled “2004” with a number for each of the four categories.   The body of the billing statement stated:  “This is your share of 2004 operating expenses based on your lease share of 30%.”   The 1992 lease sets the lease share at 33 1/3% for a 3,400 square foot premises.   Ex. 8. The 1995 Modification of Lease reduced the square footage of the 1992 lease by 550 square feet but did not change the lease share of 33 1/3%.   No document was offered reducing the 33 1/3% lease share until the March 1, 2007 lease that reduced Tenant's Proportionate Share to 28.05%. Ex. 4. These billing statements are proof that the parties did enter into some further modification of the lease, but those modification documents were not before the court.   For the 2004 Operating Expenses billing statement the typed numbers in the “2004” column were 30% of the “Total” column except that the water for 2004 was 33 1/3%.   The 2004 billing statement contains many hand written notes and numbers.   A handwritten column appears to the immediate right of the “2004” column with a number handwritten for each of the four categories.   The total of these four handwritten numbers is $9,895.28 whereas the total of the “2004” column was a much higher figure:  $13,042.18. Each of these handwritten numbers is 23% of the “Total” column.   No document was offered into evidence indicating that the parties further reduced the “Tenant's Proportionate Share” to 23%.   Stapled to this 2004 billing statement were 72 checks issued in 2005 and 2006.   Many were written to entities and persons not mentioned at the PJR hearing.   A few were payable to Albert Alexander in the amount of $7,223.97, which the court assumes is the base monthly rent.   In addition there were six checks that totaled $9,895.28 issued from June 1, 2005 through February 8, 2006, four of which contained the word “tax” on the memo line of the check.   The January 31, 2005 billing statement contains a handwritten list of these six checks with the amount and check number of each of the six checks.   No one testified as to the meaning of those handwritten notes, who made them or whether these handwritten notes contained an agreed adjusted billing statement.

No attempt to match each check with the Alexander annual common charges billing was made.   The common charge billings offered in evidence were for the years 2004, 2005, 2006 and two separate billings for 2008.   Ex. 11, 12 and 13.   There were no billings for the years before 2004, none for 2007 and none for 2009.   Exhibits 11 and 13 contain handwritten notes and no explanation of these notes was offered at the PJR hearing.   The plaintiffs have the burden of proof to demonstrate how these jumbled records prove the common charges cost incurred by the landlord, the billing of the percentage common charges to the tenant, any modification of Tenant's Proportionate Share agreed to by the parties and the payment by the tenant of those common charges.

The court carefully reviewed each of the insurance policies and other exhibits offered in relation to the insurance overcharge claim.   A portion of one insurance policy covered a New Canaan, Connecticut property.   Ex. 27.   The court performed various calculations.   The court could not verify the $456.67 per year claim.   There was no evidence of insurance premiums before January 4, 2006.   Ex. 27.   The court therefore had no evidence of any overcharge earlier than 2006.   The court's calculations based on Exhibits 27, 29 and 30 do not substantiate any insurance overcharge.   The court notes that this lawsuit commenced in October 2009.   Alexander prepared an operating expense bill for the 2008 year on July 15, 2009 for taxes, insurance, water and gardener.   Ex. 13.   After the commencement of this lawsuit Alexander submitted an operating expense bill for the same period with different numbers dated November 1, 2009.   Ex. 12.   The plaintiffs have failed to sustain this probable cause burden on the insurance overcharge claim.

(2) The plaintiffs claim money damages for Alexander's overcharging for gardening.   142 Mason Street has no grass area and only some small shrubbery near the store fronts.   The rest of the property is surrounded by either paved driveways, parking lots and/or sidewalks.   Exhibits 11, 12 and 13 were offered showing the billings that were made by Alexander for the years 2004 through 2008.   The corrected November 1, 2009 billing for the year 2008 states that the total gardening cost incurred by Alexander was $1,905.   The tenant was billed $534.35, which is the 28.05% set forth in the March 1, 2007 lease for the plaintiff's share of the gardening cost.   On the face of this 2008 billing there appears to be no gardening overcharge.

There was no documentary evidence demonstrating what Alexander actually paid the gardener.   There was testimonial evidence that the gardener was not paid directly by Alexander;  he received barter compensation for his gardener's services for 142 Mason Street.   The gardener occupied an apartment owned by Alexander and was charged a reduced rent.   The court concludes that Alexander paid the gardener for his services by this barter arrangement.   There is no evidence that the gardener services were not performed by this gardener for 142 Mason Street.   The plaintiffs are claiming that there was a gardening overcharge of $538 for each year and that the 17 years of overcharges is $9,146.   The plaintiffs are claiming treble damages under civil theft.   The gardener occupied Alexander's residential rental premises that had a fair market rent of $1,500 per month and the gardener paid $700 per month.   Ex. 23.   This is a reduction of $800 a month.   The court finds that Alexander was furnishing barter consideration to the gardener in the annual amount of $9,600 for gardening services at 142 Mason Street, a sum far greater than any amount that was billed in Exhibits 11, 12 and 13.   The plaintiffs have not sustained their burden of proof on the claimed gardening overcharge.

(3) The plaintiffs claim money damages for Alexander's overcharging for water.   Exhibits 11, 12, and 13 itemize the water charges.   The plaintiffs offered no proof that they paid these charges.   The plaintiffs offered no proof of the actual water charges for 142 Mason Street.   The plaintiffs have not sustained their burden of proof or the claimed water overcharges.

(4) The plaintiffs claim an interference with their right to park vehicles on 142 Mason Street.   Although not clearly stated within the body of the operative complaint, the plaintiffs have filed claims against Alexander for breach of contract, breach of covenant of fair dealing and trespass.   The first witness offered by the plaintiffs demonstrated that there appears to be a dispute between the parties concerning the right to park on certain portions of the premises known as 142 Mason Street.   Exhibit # 2 is a photograph of Alexander's daughter-in-law vehicle parked on the north side of 142 Mason Street in a paved driveway.   The demised premises are 2,831 plus or minus square feet at 142 Mason Street, which consists of two rectangular portions of the interior of the building.   The first portion runs along the full length of the north side of the building and is bounded on the east by the store frontage on Mason Street, on the west by a paved driveway, on the south by the interior space of other tenant's and on the north by a paved driveway.   The store front door enters from the sidewalk on Mason Street.   There is also a door on the north side of the building that has access to a paved driveway located on the north portion of 142 Mason Street.   There is an overhead garage door immediately adjacent to the side door on the north side of the building that can be used by the plaintiffs for ingress/egress and for delivery of items to and from the demised premises.   The lease is silent concerning the two paved portions of the exterior of the premises immediately adjacent to the demised premised;  to wit, a paved right of way that runs between the building and the public parking lot on the north and a paved driveway that runs along the entire westerly side of the building.   The March 1, 2007 lease contains the following clause:  “All loading and/or unloading of goods, materials, or the like or provision of services to Tenant (and Tenant's subtenants and/or assignees, if any) from trucks of any size shall be made and accomplished at and through the rear entrance of the Premises, if any.   All such delivery trucks shall promptly provide the service to Tenant (or Tenant's subtenants and/or assignees, if any) and promptly and efficiently depart.”   Ex. 4, page 18.   E.W. Cleaners, Inc. has two rear entrances;  a door and a garage door.   Both face and access directly onto the paved driveway located on the north side of the building.   Alexander cannot interfere with the tenant's right to use this delivery driveway.

The plaintiffs are entitled to the full and complete use of the interior of the premises including the full ingress and egress and use of the three described entrances and exits.   Therefore, for the full and complete use of the premises, no person or entity can block or impede those areas.   The court therefore concludes that the plaintiffs have proven by probable cause standards that E.W. Cleaners, Inc., has the sole and exclusive right to that driveway located at the north section of the property at 142 Mason Street.   The court concludes that the parking of vehicles by the landlord or anyone representing the landlord, even temporary, is in violation of the terms and conditions of the March 1, 2007 lease.   Ex. 4.

The plaintiffs produced no evidence of any monetary damage caused by the occasional parking by the landlord, his agents and/or family members.   The court has insufficient evidence to grant a PJR for a trespass, breach of contract and/or breach of the covenant of good faith and fair dealing in relation to the north driveway.

(5) The plaintiffs claim money damages since Alexander and his family obtained free laundry and dry cleaning services and these free services were not contained in any lease.   Mrs. Albert Alexander testified that she and her family members bring clothes to Mason Cleaners and have not paid for them for quite a number of years.   Such free laundry and/or dry cleaners service is not contained in any lease or signed agreement in evidence.   The plaintiffs claim that this free laundry and dry cleaning services are extra rent not required by any lease.   The plaintiffs claim that this is a breach of the lease and the breach of a covenant of good faith and fair dealing.   Exhibit 15 consisting of 33 pages are cleaning tickets for Joseph Alexander, son of Alexander.   They are for charges for dry cleaning and/or laundry services of $1,763.19 for the period of September 8, 2007 to September 18, 2009.   Exhibit 16 is a two-page summary with 71 numbered tickets for laundry and/or dry cleaning services for Alexander from January 24, 2006 through September 18, 2009 in the amount of $3,641.32 Exhibit 17 is a three-page summary with 113 numbered tickets for laundry and/or dry cleaning services for Cathy Alexander, the daughter of Alexander, from January 13, 2006 through October 2, 2009 in the amount of $2,573.25.   Exhibit 1 appears to be a six-page reconciliation of the Alexander laundry and/or dry cleaning charges exhibits for the period of January 20, 2006 through September 26, 2009.   Exhibit 1 demonstrates that Alexander owes $1,351.25, Cathy Alexander owes $1,035.09 and Joseph Alexander owes $1,254.45.   Exhibit 1 totals $3,640.79.   Exhibits 15, 16, and 17 total $7,977.76.   The court concludes that the plaintiffs have not kept accurate and mathematically correct records of the Alexander family free laundry and/or dry cleaning services.   The court finds credible Ha's testimony that in fact such free services were performed to the Alexander family.   Based on a review of Exhibits 1, 15, 16, and 17 and the actual tickets, the court finds that the Alexander family received $5,800 of free laundry/dry cleaning services as additional rent Such additional rent is not only a breach of lease but a breach of covenant of good faith and fair dealing.   Repeated breaches of contracts are sufficient to support a CUTPA claim.   The court finds that the $5,800 was a continuous breach of the lease and supports a CUTPA claim.  State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556 (2010);  Greene v. Orsini, 50 Conn.Sup. 312, 316 (2007);  Cadle Co. v. Multi Unit Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number 0393187 (May 12, 2003, Levin, J.);   Ameripride Services, Inc. v. U.S. Food Service, Inc., Superior Court, judicial district of Hartford at Hartford, Docket Number CV-04-0835453 (June 7, 2006, Tanzer, J.);   Rosenfield v. Klein, Superior Court, judicial district of New Haven at New Haven, Docket Number NNH CV 08-5020892 S (September 30, 2008, Zoarski, J.T.R.) The plaintiffs have proven a CUTPA violation with an ascertainable loss of $5,800.

(6) The plaintiff, Ha, is claiming personal injuries in Count Seven, intentional infliction of extreme emotional distress in Count Eight and negligent infliction of emotional distress in Count Nine. The allegations relating to Ha's medical and physical conditions are as follows:  Injury to Person “By the foregoing acts, Defendant Alexander injured Plaintiff Won Ha, causing severe and debilitating and life threatening high blood pressure, hypertension, stress, fatigue, anxiety and sleeplessness.”   Intentional Infliction of Extreme Emotional Distress by Means of Outrageous Conduct “By the foregoing acts, the Defendant Albert Alexander engaged in outrageous conduct which caused the Plaintiff Won Ha severe emotional disturbance, and resulting physical and personal injury and harm, psychic pain, anxiety, fear and sleeplessness.”   Negligent Infliction of Emotion Distress:  “By virtue of the foregoing, the Defendant Alexander negligently inflicted emotional distress on the Plaintiff Won Ha, resulting in physical and personal injury and harm, psychic pain, anxiety, fear and sleeplessness.”   Ha claims that he has a preexisting heart condition.   He was 54 when this lawsuit commenced.   He has a history of cardiac, circulation and blood pressure problems beginning in 1994 with a Greenwich Hospital admission.   No medical testimony was offered and no medical bills were offered.   No degree of permanency or opinion of causation was offered by any expert either in written or testimonial form.   Exhibit 3 is thirty-eight pages of plaintiff's medical records, which this court has carefully read.   They are the only medical records in evidence.   In Exhibit 3 is a two-page letter dated November 6, 2009 written:  “To Whom It May Concern,” from Myung-Ho Lee, M.D. of Rye Brook, New York, who specializes in cardiology and vascular medicine.   The letter states:  “After all the gastroenterology and cardio-vascular work-ups, it was considered that the stress conditions which probably occurred secondary to the worsening relationship with his landlord, appear to have a negative effect on his cardio-vascular system and signs recently.”

The court notes that Ha had a routine annual examination with Dr. Lee scheduled in the fall of each year.   Notes for each of those examinations were contained in Exhibit 3. Dr. Lee's November 6, 2009 letter notes that Ha's cardio-vascular condition was in a steady state until January 7, 2009 when he “complained of chest pain, shortness of breath, and dyspnea in exertion.”   Ha underwent a Stress-Echo cardiography and a gastroenterology work up on January 7, 2009.   Dr. Lee's office notes of January 7, 2009 and January 10, 2009 are silent as to the cause.   There is no mention of landlord or work stress in Dr. Lee's January 7, 2009 medical notes nor his follow up January 10, 2009 notes after the completion of the cardio-vascular and gastroenterology work up.   In the fall of 2009 his annual examination occurred on September 28, 2009 and these office notes state:  “Had bad episode with his landlord at work.   Complains of headaches/light headed as a result of the verbal harassment by the landlord?”   An office note for the October 7, 2009 visit in which his blood pressure was elevated at home stated “? verbal harassment from his landlord at work.”

Ha first conferred with his attorney that represents him in this lawsuit just before his September 28, 2009 Dr. Lee exam.   The attorney's authorization letter dated September 30, 2010 is in these medical records.   Ex. 3. The PJR papers were signed on October 2, 2009.   September 28, 2009 was the first complaint Ha made about his landlord to his doctor and yet the evidence demonstrates that Ha has had a landlord/tenant relationship on and off with Alexander since 1992.   Ha last had an EKG on January 10, 2009.   He did not have an EKG at either the September 28, 2009 or October 7, 2009 examinations.   Each of the office notes indicate that this was a “regular exam” and/or a “follow-up exam.”   The September 28, 2009 was noted as a regular exam.

Exhibit 22 was an audio tape in CD format recorded by Eun Ha of approximately 15 minutes in length.   The CD was very difficult to understand.   A transcript of the CD was typed by the plaintiffs.   Ex. 23.   The court listened to the CD on two occasions and could not follow the recorded words with the typed transcript.   In the CD the court could hear Alexander interrupting Ha and Eun Ha. Eun Ha also interrupted Alexander on many occasions.   Eun Ha's voice seems to be the only one that was louder than normal.   Ha did not complain about any verbal harassment on Ex. 22 and Ex. 23.   The CD consists of general discussions about the gardening bill and a number of other matters.   The plaintiffs claimed Alexander's abusive conduct was recorded in the Exhibit 22 CD. The court cannot find evidence of that abusive conduct in either the transcript or the CD. The CD recording may have taken place prior to the September 28, 2009 medical exam.   Exhibit 22 contains a CD in a plastic container.   There is a sticker attached to the plastic container with typewritten numbers and words.   The sticker on Exhibit 22 contains the date of September 15, 2009.   The transcript claims that the date of the CD recording is September 30, 2009.   It appears the “VOICE” at the beginning of the transcript was added after the actual recording, most likely on another later date.   Ex. 22, Ex. 23, page 1.

The court finds that the plaintiff Ha has failed to sustain his burden of proof as to the negligence of Alexander and the causation of any injuries allegedly sustained by Ha. The court will not award any PJR damages to Ha for injury to persons or negligent infliction of emotional distress.

To state a claim for intentional infliction of emotional distress, a plaintiff must establish four elements:

(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury ․ Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ (Citations omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).   Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!  ․ Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.  (Citations omitted;  internal quotation marks omitted.)

Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43 (2003).

No evidence of elements (2) and (4) have been offered in evidence in this PJR proceeding.   The Exhibit 22 tape shows no evidence of extreme and outrageous conduct.   The Exhibit 3 medical records do not demonstrate a severe emotional distress.   No PJR damages can be awarded for Ha's claim of intentional infliction of extreme emotional distress.

(7) Plaintiffs claim that the square footage in the various leases was and is incorrect.   Schedule A is a diagram attached to the lease and it described the demised premises as 2,831.585 square feet.   The upper right hand side of that Schedule A contains a number indicating the square footage of the entire building.   Schedule A is not to scale and does not contain a legend or a scale.   The tenant's expenses for gardening, water, real estate taxes and insurance may have been calculated using the demised premises square footage compared to the square footage of the entire building.   No witness offered any evidence on this subject.

No engineer or architect testified.   Ha testified that he hired someone to measure the square footage of his store.   That person did not testify.   Ha did not provide the results of that square footage measurement.   No analysis was given to the court on how the square footage was, could be or would be measured:  for example, from the exterior wall or from the interior wall.   The Standard Method of Floor Measurement of the Real Estate Board of New York was not offered into evidence.   Ex. 4, page 10.   The court performed its own measurement of Schedule A utilizing the interior diagrams to obtain a scale of 1 inch equates 10 feet.   The court then measured the square footage of the demised premises using the exterior walls.   By the court's own calculation the square footage of the demised premises would be 2,593 square feet.   By this standard the court could conclude that the square footage court number mentioned in the lease of 2,831 is 8.4% greater than the square footage actually measured.   The court then calculated the square footage of the entire building using the exterior walls and found that the total square footage of the building is not the 10,094.38 contained in Schedule A but is much less;  slightly just over 8,742 square feet.   Comparing the recalculated 8,742 square feet with the recalculated 2,593 square feet, the court finds that the resulting percentage is 29.6614%. Using the two numbers in the Schedule A 10,094.38 and 2,831 the resulting percentage is 28.05%. The March 1, 2007 lease used 28.05% as the Tenant's Proportionate Share of the real estate taxes and Costs of Operation and Maintenance to be paid by the E.W. Cleaners, Inc. The court notes a slight difference on the water percentage (30.0% prior to June 30, 2008 and 27.0% after June 30, 2008).

In addition, the Modification of Lease indicated that there had been an agreed reduction of 550 square footage sometime after 1992 by a portion of the interior square footage being removed from the laundry/dry cleaning premises and added to another tenant's premises.   Ex. 9. No testimony was offered as to the exact location of this 550 square foot reduction.

An examination of Schedule A to the lease, Exhibit 4, indicates that there is no interior portion of 142 Mason Street that is attributable to any common area or landlord's area.   All of the square footage in this one-story rectangular building is 100% attributable to the tenants.   The court has added all the tenants' square footage listed in Schedule A and it correctly adds to the 10,094.35 square feet, the total listed in the upper right corner of Schedule A.

The court finds that based upon probable cause standards that Alexander has miscalculated the square footage for both the demised premises and the total building.   There is no evidence that the amount of rent established by the parties after a good faith negotiations on March 1, 2007 was attributable to the actual square footage of the building and/or the demised premises.   The premises had been used as a laundry/dry cleaning business for years and the area of the premises used for the laundry/dry cleaning business prior to March 1, 2007 after the 1995 adjustment of the square footage had not changed.   Therefore, the plaintiffs knew what interior dimensions they were getting at the time that E.W. Cleaners, Inc. entered into the March 1, 2007 lease.   The only effect of the miscalculation of the square footage would be an overcharge as to the common expenses for real estate, insurance, water, and gardening.

In paragraph 12 of the January 22, 2010 Amended Proposed Complaint the plaintiffs alleged:  “Next, Defendant partitioned off and leased to an adjoining business a small area in the back of Plaintiff's store.   No modification was made for this unilateral forfeiture of space.   Instead, Plaintiff continued to be charged the same per square feet rental, and the same percentage of allocated maintenance, insurance and taxes were assigned against his shrunken space.” (# 105.00.) There was no testimony to support this claim.   No dates for this shrinking of space was furnished to the court.   The Modification of Lease did reduce the rental space in 1995 by approximately 550 square feet and the rental rate was also changed.   There was no evidence that the paragraph 12 allegations either were directed to this 1995 reduction of 550 square feet or to some other reduction of space.

This court has already found that there has been inadequate proof based upon probable cause standards as any landlord's overcharges for common charges.   The court therefore finds that, although there is probable cause that the square footage and the “Tenant's Proportionate Share” percentage may not be accurate, the plaintiffs failed to sustain their burden of proof that the inaccurate square footage caused the plaintiffs any money damages.

(8) The plaintiffs claim money damages for improper entry by the landlord.   Paragraph 30a of the operative complaint states:  “That the landlord had no right to enter the property for purposes of threatening intimidating Plaintiff, or to show the property to people intending to rent it until 2017 or 2018.   Likewise, he had no right to come into the store to demand free services for himself, his estranged wife, his adult child, or his friends.” (# 105.00.) The evidence has only established that Alexander came to the laundry/dry cleaning store area for the purpose of discussing the excess payments relating to gardening, etc.   Ex. 22, Ex 23.   This was not a trespass.   Alexander had the right to come into the premises for this discussion.   Exhibit 22 does not demonstrate any trespass whatsoever.   Entry into the premises by any of the Alexander family members for the purpose of utilizing dry cleaning or laundry services is not a trespass.   They were there for ordinary business purposes.   There was no proof of any trespass on behalf of the Alexander family by using the dry cleaning and laundry services.   There was no evidence of Alexander showing the premises “to people intending to rent it.”   Ha's testimony as to other entries to the store by Alexander were vague and contained no specifics as to date, purpose or any other details of the visits.   The plaintiffs have failed to sustain their burden of proof as to trespass.

(9) The plaintiffs claim damages for Alexander's demand for extra money in order for a new March 1, 2007 lease to be executed.   In the negotiations prior to the new lease Alexander demanded that Ha pay a one-time cash payment of $150,000.   Although the lease was signed in July 2008 it was back dated to be effective on March 1, 2007 to be co-terminus with the prior lease extension date that ended February 28, 2007.   Ex. 4, Ex. 9. The new lease contains no reference to any payments, other than rent and the percentage of landlord increased Costs and Operating Maintenance and real estate taxes and neither does the 1992 lease and the Modification of Lease in evidence.   The lawyer who represented Ha in the 2007 negotiations, T. Lawrence Payne, knew nothing about any extra payments.   Alexander told Ha not to mention the extra payments to his attorney and to keep it quiet.   Eventually, Alexander lowered his extra payment demand and Ha gave Alexander four checks, each postdated for August 4, 2008, August 4, 2009, August 4, 2010 and August 4, 2011 and each in the amount of $20,000.   Ex. 21.   Alexander told Ha that on the due date, he would return one check uncashed providing Ha paid $20,000 cash.   There was no evidence that Ha paid $20,000 cash by any of the due dates or at any other time.   When the September 2008 payment was not made Alexander pressured Ha for the payment.   Alexander continued to pressure Ha for the then due $20,000 payment.   Ha returned to Attorney Payne's office and informed him for the first time of the demand of extra money.   Ha was then referred to the plaintiffs' current counsel who filed this instant lawsuit.

Paragraph 21 of the Amended Proposed Complaint states:  “Defendant's attorney told Plaintiff he had to pay the extra Eighty Thousand Dollars ($80,000), which the attorney (and Defendant henceforth) termed ‘Key money.’  “ “Key money” has been defined in the complaint by footnote 1 “Key money, as that term is used and understood in the business community in the vicinity of this business, is a one-time charge or premium which a departing tenant collects for the surrender of fixtures, for the sale of an ongoing business, or other considerations of the departing tenant associated with the re-letting commercial space.   Except for the transaction which is the basis of this suit, it is unheard of for a commercial landlord to demand ‘key money’ from a renewing tenant is in good standing after nineteen years.” (# 105.00.)

The issue of key money is the principal issue in this case.   The plaintiffs claim that the demand of money outside the lease when the lease contains a merger clause and a no representation clause is a breach of the lease, a breach of the covenant of good faith and fair dealing and a violation of CUTPA.  “This Lease and the Riders attached hereto, if any, set forth the entire agreement between the parties.   Any prior representations, conversations or writings are superseded hereby and/or merged herein and extinguished.   No subsequent amendment to this Lease shall be binding upon Landlord or Tenant, unless same is in writing and signed by both parties.”   Ex. 4, page 16.

“Our Supreme Court has previously explained that to prevail on a CUPTA claim, the plaintiff must prove, pursuant to General Statutes § 42-110b(a), that the defendant engaged in unfair or deceptive acts or practice in the conduct of any trade or commerce and that as a result of the use of the act or practice prohibited by § 42-110b(a), the plaintiff suffered an ascertainable loss of money or property.”   DiAngelo Development & Construction Corp. v. Cordovano, 121 Conn.App. 165, 181 (2010).

In addition to proving the CUTPA violation in order to establish a prejudgment remedy, the plaintiff has the obligation to prove actual damages.  “Although the likely amount of damages need not be determined with mathematical precision ․ the plaintiff bears the burden of presenting evidence that affords a reasonable basis for measuring her loss.”  Crotty v. Tuccio Development, Inc., 119 Conn.App. 775, 781-82 (2009).   Even though the plaintiff may prove a CUTPA violation, the plaintiff must prove that it also sustained actual monetary damages in order to receive a CUTPA award.   There is no automatic entitlement to damages.  Conaway v. Prestia, 191 Conn. 484, 493-95 (1983);  Campagnone v. Clark, 116 Conn.App. 622-33 (2009).

There is no Connecticut trial court or Appellate Court decision that discusses the legality of key money.   Two Connecticut trial court cases discuss the phrase “key money.”

In the first case two lawsuits were consolidated and tried by an attorney trial referee.   The consolidated cases involve a dispute between the owner of the shopping center and the tenant who conducted a photo shop business within the shopping center.   Mr. Slater, an agent of the shopping center owner, insisted on receiving one-half of the sales price of the tenant's business as a condition of agreeing to a new lease for a prospective purchaser who would take over the lease.   The tenant, the owner of the photo shop, sued the landlord for duress, breach of covenant of good faith and fair dealing, intentional infliction of emotional distress, tortious interference with business expectancy, CUTPA conversion, civil theft, conspiracy and fraud.   The attorney trial referee found that the plaintiff had been a tenant of the shopping center for about ten years and his lease was due to expire on January 31, 2002.   He wanted to sell his business since it was suffering financial difficulties.   In February 2001 he found a prospective purchaser who agreed to buy the photo business for $60,000 but the purchaser wanted a new lease since the existing lease was going to expire in less than a year.   The plaintiff spoke with the landlord's managing agent, Slater, who informed him that he would give him a new lease but the landlord insisted on receiving one-half of whatever the amount that the purchaser was going to pay to the plaintiff for the purchase of the business;  i.e., the sum of $30,000.   The plaintiff at the closing reluctantly and under financial pressure paid Slater, the managing agent for the landlord, the sum of $30,000.   The plaintiff claimed that he had to make the payment or otherwise he would have lost the entire transaction.   The new tenant, the purchaser Mr. Lee, agreed to a new lease with the landlord at a rent was approximately 30% higher than the current rent with the plaintiff.   The landlord claimed that the $30,000 he received from the plaintiff was “key money” or a “bonus to compensate the landlord for the risks attendant to accepting a new tenant.”   Those claims were found both untenable by the attorney trial referee and by the Superior Court Judge that affirmed the attorney trial referee's report.   The trial court, affirmed the ATR's recommendation and awarded the plaintiff, Pinanin $30,000 as CUTPA damages upon the finding of a CUTPA violation and awarded attorneys fees for the CUTPA violation against the landlord.   The trial court's decision contained the ATR's report and stated as follows:  “The referee determined that Slater's conduct violated CUTPA and that Slater knew that Pinanin was in dire financial straits and refused to give a new lease to the purchaser of Pinanin's business unless Pinanin agreed to pay one-half of the sales proceeds.   Morever, the new lease to Lee had a higher rent than the lease to Pinanin.”   The trial court after affirming the report of the attorney trial referee referred the matter back to the attorney trial referee to conduct further hearings to determine the amount of attorneys fees to be awarded under CUTPA.   Pinanin v. Thru-Way Shopping Center, LLC, Superior Court, judicial district of Stamford/Norwalk at Stamford Docket No. FST CV 01-0186828 S (August 24, 2005, Lewis, J.T.R.).

The plaintiff was looking for a suitable place to rent for his violin business.   J.C. Corporation was the owner of the building.   Tea House of Riverside, Inc. was a tenant in possession.   Julie Chen and Hsiou-Won Chen were the sole stockholders of J.C. Corporation.   Hsiou-Won Chen was a stockholder of Tea House of Riverside, Inc. The plaintiff paid $110,000 to Tea House of Riverside, Inc., for “key money” to obtain the tenant's rights in the building.   The plaintiff alleged that Tea House and J.C. were so interrelated that the payment to Tea House of the $110,000 was essentially a payment to J.C. A fire destroyed the premises prior to the commencement of the lease and thus the plaintiff could not take occupancy.   The plaintiff filed a lawsuit seeking the return of the $110,000 key money.   Hsiou-Wen Chen, as President of Tea House, and as a stockholder in J.C., took the $110,000 and removed it from Tea House and deposited the $110,000 into his personal checking account.

Paragraph 29 of the lease provided that the plaintiff could get out of the lease in the event that there was such a fire providing there was evidence of gross negligence.   The court found that the actions of Interstate Fire Alarm in providing inadequate fire protection systems was the cause of the damages and these acts were gross negligence.   The court inputted that gross negligence to the landlord on the theory of vicarious liability.   The trial court concluded:  “What is clear from this provision is that if lessor committed gross negligence, and the lessee is prevented from taking initial possession of the premises, then the lessee may recover any sums paid by the lessee to acquire the right to enter into the lease.   That sum was clearly the $110,000 in key money.   So that, if there is gross negligence which caused the lessee not to be able to occupy the premises, that money is to be returned.”   Based upon the paragraph 29 of the lease, the finding of gross negligence by Interstate Fire Alarm, that gross negligence being imputed to the defendant and the close interrelation between J.C. and Tea House, the court held that the plaintiff was entitled to recover the $110,000 key money.   Judgment entered for the plaintiff for the return of the $110,000 key money, additional security deposit, prejudgment interest under Gen.Stat. § 37-3a, $50,000 for attorneys fees and certain other expenses that were incurred by the plaintiff for a total monetary judgment of $204,406.79.   Atelier Constantin Popescu et al. v. J.C. Corporation et al., Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number CV 07-6000546S (December 14, 2009, Karazin, J.)

These two cases hold that key money is to be paid by a future tenant to a former tenant to occupy the leased premises but that key money cannot be paid to the landlord.   This rule is consistent with New York law.   New York statutes have three degrees of rent gouging.   Gouging is defined in New York Penal Law § 180.54. Rent Gouging in the third degree in violation of New York Penal Law § 180.55 states:  “A person is guilty of rent gouging in the third degree when, in connection with the leasing, rental or use of real property, he solicits, accepts or agrees to accept from a person some consideration of value, less than two hundred fifty dollars, in addition to lawful rental and other lawful charges, upon an agreement or understanding that the furnishing of such consideration will increase the possibility that any person may obtain or renew the lease, rental or use of such property, or that a failure to furnish it will decrease the possibility that any person may obtain or renew the same.”   Rent gouging in the third degree is a class B misdemeanor.   Rent gouging in the second degree is a class A misdemeanor when the value is $250 or more.  New York Penal Law § 180.56.

New York trial court and Appellate Court decisions also discuss the term of “key money” especially in regarding to New York City Rent Stabilization law.   Key money is a common problem in New York. The New York Attorney General has received a number of complaints by tenants and tenant associations relating to overcharging of rents, demands for illegal “key money” paid in order to obtain vacant apartments in violation of Section 180.55 Penal of the Penal Law, and diminution of building services.  Matter of Wiener v. Abrams, 119 Misc.2d 970 (1983).

The definition of “key money” was also discussed in a 1984 New York Supreme Court decision involving a loft in lower Manhattan partially used for the business of art and dance therapy.   The defendant, tenant, agreed to sell her leasehold interest and the loft improvements to a prospective tenant for $64,000 but was required to offer these same terms to the plaintiff, landlord.  “There is a substantial dispute as to whether the landlord must agree to match the $64,000 offered by the proposed new tenants.   It is noted that that sum includes not only such items as may be properly categorized as ‘improvements,’ but the assignment of the leasehold as well (the equivalent of ‘key money’) and the sale of movable personalty.   The law permits the outgoing tenant to sell only the ‘improvements' for an amount equal to their fair market value.   The Loft Board has not yet enacted the rules and regulations called for by statute, which became effective over two years ago.”  Gavish v. Rapp, 127 Misc.2d 255, 258 (1984).   In 1978 the Civil Court of the City of New York also discussed the definition of key money in a commercial/residential loft.  “Each tenant paid from $2,000 to $5,500 to prior tenants as ‘fixture or key’ money except the Pikuses;  who made their own extensive capital improvements.”   Lipkis v. Pikus, 96 Misc.2d 581, 586 (1978).   The defendant's, landlord, motion for summary judgment was denied in a claim by the corporate plaintiff that key money was illegally paid to Lana Chin, an individual stockholder of the corporate landlord, in a commercial tenancy involving a Korean restaurant.  Lam v. Wing Woh Lung Co, Inc., 181 A.D.2d, 495 496 (1st Dept.1992).

In January 2002 California passed a statute making it unlawful for the payment of “key money” in initiating, continuing or renewing a commercial or non residential rental agreement.

It shall be unlawful for any person to require, demand, or cause to make payable any payment of money, including, but not limited to, ‘key money,’ however denominated, or the lessor's attorneys fees reasonably incurred in preparing the lease or rental agreement, as a condition of initiating, continuing, or renewing a lease or rental agreement, unless the amount of payment is stated in the written lease or rental agreement.

California Civil Code Section 1950.8(b).

A violation of this subdivision subjects a person to a “civil penalty of three times the amount of actual damages proximately suffered by the person seeking to obtain the lease or rental of real property,” as well as an award of costs, including reasonable attorneys fees, incurred in connection with obtaining the civil penalty.

California Civil Code Section 1950.8(c).

Rather, in order for liability to attach under the statute, a plaintiff must allege that the landlord (1) made a demand for key money as a condition of initiating, continuing or renewing a lease or rental agreement, and (2) failed to state the amount of the demanded payment in the resulting written lease or rental agreement between the parties.

Edamerica, Inc. v. Superior Court, 114 Cal.App.4th 819, 822 (2003).

The California legislative history of Section 1950.8 indicates that “the purpose was to eliminate the prevalent ‘underground’ or ‘under-the-table’ pressure tactic used by some landlords of requiring cash payments of ‘key money’ that are not reflected in the formal written lease.”  Id. 828

The court finds that the demand for key money in this case was a demand by a landlord to have an existing tenant at sufferance in occupancy continue on with a written lease by demanding $80,000.   That $80,000 payment was not in the lease.   Key money in Connecticut is limited to payments between tenants where the improvements that were made by the previous tenant would be passed on to the new tenant as well as the right to occupy under the then existing lease.   New York law defines “key money” in that same fashion, a tenant to tenant payment.   A tenant to landlord payment under as somewhat cryptically defined in New York Penal Law § 180.54 is illegal;  a violation of the criminal code.   A tenant to landlord payment in Connecticut is neither a violation of any criminal or civil statutes.   The court finds that a tenant to landlord payment without reflecting that payment in the lease is a violation of public policy and by making a demand for $80,000 not provided for in a negotiated lease that contains a merger closure and a no representation clause to be paid by an existing tenant at sufferance to execute a lease for an existing business that has been operating in the same premises since 1992 without stating that payment with lease is a violation of CUTPA.

None of the $20,000 checks were cashed, no plaintiff made any key money payments to Alexander.   Based upon the status of Ha's health, the promises of secrecy, the fact that Alexander knew or should have known that Ha had to leave the business because of a heart condition, the requirement by Alexander that the negotiations of the key money be outside the lease and the fact that Alexander demanded that Ha keep the key money issue from his attorney, the court finds the CUTPA violation to be egregiousness of the first class.   This continued demand for key money prompted Ha to hire his current counsel for the purpose of correcting this deficiency.   The failure to pay the $80,000 is hanging over the plaintiff's head.

A separate lawsuit has been filed by Alexander as against E.W. Cleaners, Inc. and Won Yong Ha returnable to the Superior Court on May 11, 2010 in the Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 10-6004688 S. The $80,000 key money is sought to be recovered in that lawsuit.   The two plaintiffs are required to hire counsel to defend that lawsuit.   That new lawsuit by is inextricably connected to the demand for the $80,000.

The court finds therefore that the plaintiff has sustained an ascertainable loss for the key money CUTPA violation by the obligation to hire attorneys to both prosecute this PJR lawsuit and to defend the other lawsuit.   Koslosky v. C & S Home Improvements, LLC, Superior Court, judicial district of New London at New London, Docket Number CV 07-5005254S (April 6, 2010, Cosgrove, J.).

There was no evidence offered in the PJR hearing of the amount of attorney fees that plaintiffs have incurred to date nor of the attorney fees that would be needed in the future.   The attorney's retainer agreement was not offered in evidence.   No hourly rate was established by the evidence.   No contemporary time sheets were furnished.  Smith v. Snyder, 267 Conn. 456, 477 (2004), establishes the method of proving attorney fees.   That rule is not applicable to future attorney fees.  Bizzocco v. Chinitz, 193 Conn. 304, 310-11 (1984) was overruled by Smith v. Snyder.  Id. 478-79.   The general knowledge of the trial court is an insufficient basis by itself to award attorney fees.   The court may rely in part on its general knowledge but it needs more.   In this case that further information has been obtained by this court's presiding over seven days of prejudgment hearings.   A number of legal issues were raised that caused additional out of court attorney preparation.   The issue of key money is an issue of first impression.   The admissibility of New York medical records had to be researched.   The court assumes that the plaintiff's attorney hourly rate is $250 an hour, which is reasonable based upon his counsel's years of trial experience.   Based on the hours that the plaintiff's counsel must have spent in court during the seven days, and a court estimation of the out of court preparation, the court finds a reasonable attorneys fees for the prejudgment remedy hearing alone to be $15,000.   If either party so requests, the court will conduct further hearings on the issue of attorney fees.  P.B. § 11-21.

This court has examined the insurance policies in evidence, Ex. 27, 29, and 30, as well as the December 7, 2009 Reservation of Rights letter, Ex. 28, and the November 19, 2009 Reservation of Rights letter, Ex. 26.   The court finds that there is no insurance coverage for the $5,800 and $15,000 PJR award.

The prejudgment remedy is granted to the plaintiff, E.W. Cleaners, Inc., in the amount of $20,800 for an attachment of the defendant, Albert Alexander's, interest in real property located at 142 Mason Street, Greenwich, Connecticut.   The court notes that the plaintiffs did not seek a real estate attachment in their October 5, 2009 Application for a Prejudgment Remedy of Attachment (# 100.30).   The plaintiffs stated in that Application:  “The property sought to be attached is all rent fees, security deposit, monies paid, payable and to be paid under that certain lease agreement by or between Albert Alexander, landlord, and E.W. Cleaners dated July 2008 in the amount of One Million and 00/100 Dollars ($1,000,000.00).”   Since the July 2008 lease stated that Albert Alexander is the owner of the real property at 142 Mason Street, Greenwich, Connecticut, the court reasonably infers that the plaintiffs were also seeking a real estate attachment on 142 Mason Street, Greenwich, Connecticut.

This $20,800 real property attachment is awarded without the plaintiffs posting a bond.  Gen.Stat. § 52-278d(a)(4);  Gen.Stat. § 52-278d(d).  The plaintiff has filed a Motion for Disclosure of Assets dated October 5, 2009 (# 100.35).   In the event that this real property attachment is insufficient, then the plaintiff, E.W. Cleaners, Inc., may reclaim the Motion for Disclosure of Assets (# 100.35) for a hearing.   The court may then consider ordering the defendant, Albert Alexander, to disclose additional assets either in affidavit, documentary and/or testimonial form.  Gen.Stat. § 52-278n.   Thereafter, the court may permit further prejudgment remedies subject to the consideration, if any, of an appropriate bond.  Gen.Stat. §§ 52-278d(a)(4) and 52-278d(d).

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.