LLC v. LLC (2010)

MEMORANDUM OF DECISION

This case was tried to the court for four days beginning on May 11, 2010.   The parties were represented by experienced trial counsel who submitted extensive post-trial briefs.   The defendant, Pocket Knife Square, LLC (“Pocket Knife”), owns a building (“restaurant building”) in the Lakeville section of Salisbury, Connecticut, which it leased to the plaintiff, Old Factory, LLC (“plaintiff”) in 2008 for the operation of a restaurant.   The two members of Old Factory are Philip Milano (“Milano”) and Norman Del Tufo (“Del Tufo”).   The defendant, Harry de Polo (“de Polo”), is the sole member of Pocket Knife.   The defendant, Daphne Naylor (“Naylor”), is de Polo's administrative assistant.

The plaintiff's amended complaint of April 21, 2010 is in four counts.   In summary, the plaintiff alleges that the defendants failed to disclose that there was an unpleasant septic odor in the restaurant building which forced them to close the restaurant within about four months after opening.   The first count is based upon the alleged negligence of all defendants in failing to investigate and eliminate the odor before leasing to the plaintiff, and in failing to disclose the odor problem to the plaintiff.   The second count, which is directed against Pocket Knife only, alleges a breach of a covenant of good faith and fair dealing.   The third count as to all defendants alleges violation of CUTPA.   The fourth count against all defendants alleges a claim for reckless indifference.   The defendants deny the material allegations of the amended complaint and set forth four special defenses which essentially deny that there are facts which support the plaintiff's claims.   The defendants also set fourth counterclaims for a breach of the lease against the plaintiff, and separate counts against Milano and Del Tufo, for breaches of their written guarantees of the lease.   The plaintiff has filed special defenses to the counter claims alleging constructive eviction and breach of an obligation of good faith.

There is no substantial dispute about the vast majority of the evidence.   The case turns on a small bit of disputed evidence.   As the trier of fact, the court must resolve issues of credibility.   See, State v. Nowell, 262 Conn. 686, 695 (2002);  Laic v. Thomas, 78 Conn.App. 406, 409-10, cert. denied, 266 Conn. 922 (2003).  “The determination of a witness' credibility is the special function of the trial court.”  (Internal quotation marks omitted.)   State v. Knight, 266 Conn. 658, 674 (2003).  “It is the trier's exclusive province to weigh conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony.”   (Internal quotation marks omitted.)  Hoffer v. Swan Lake Assn., 66 Conn.App. 858, 861 (2001).   The court finds the following facts and credits the following evidence.

Constructed in 1866, the restaurant building is constructed on three levels, the lowest of which is used for the restaurant.   This level is below the elevation of the town sewer line, thereby requiring that sewage from the restaurant be pumped up to the sewer line.   The plumbing system for the restaurant empties sewage from the building into two pits.   One is located outside of the building on the north (“north pit”), the other is located in the mechanical room floor (“mechanical room pit”).   Each pit has floats which rise with the level of sewage and activate the pumps when the level reaches a certain point.   The pumps then pump the sewage up to the town sewer line.

The north pit has a grease trap adjacent to it to capture any grease before it gets into the pit and fouls the pumps and floats in the pit.   Grease on the floats and pumps can result in the pumps not emptying the pits in a timely fashion.   If this happens, the pits will fill with sewage and cause an odor in the restaurant.   There is an alarm in the restaurant which is activated so that the sewage system can be stopped while repairs can be made to the pumps and floats.   The mechanical room pit does not have a grease trap.

The floor of the restaurant has no basement below it.   Pipes for the plumbing system are buried beneath the brick covered stone floor and within the walls and ceilings of the building.   Breaks or leaks in these pipes can cause an odor in the restaurant.

Soon after Pocket Knife purchased the restaurant building in 1999 it leased the restaurant space to the West Main Restaurant for four years, November 1, 1999 to October 31, 2004.   There was no evidence that there had been septic odors during the previous use of the property as a restaurant.   Sometime before March 17, 2002 West Main began experiencing problems with unpleasant septic odors in the restaurant, especially in the restroom area.   Pocket Knife arranged to have Scoville Plumbing and Heating (“Scoville”) try to determine the source of the odors.   Scoville had installed the grease trap in the north pit in December 1999 and had been performed service whenever there was a problem with the pits.

When Scoville investigated, it became clear that West Main was not always diligent about keeping grease out of the mechanical room pit which has no grease trap.   Second, West Main was not always diligent about keeping excessive amounts of grease out of the north pit, even though it has a grease trap.   Excessive amounts of grease would shut down the pumps and allow the pits to fill with sewage and cause an odor in the restaurant.   The pits would have to be pumped out and the pumps cleaned.   Rules were developed to prevent this from happening.   These included the restriction of any grease going into the mechanical room pit which does not have a grease trap.   Also, West Main was required to add biological treatments to all drains leading to the grease trap at the north pit so as to improve the functioning of the trap.

Scoville also spent a great deal of time and effort tracking down other sources of odors.   Scoville's workers performed smoke and peppermint tests to find any leaks in the plumbing system.   The first smoke test showed that there was a leak around the electrical conduits from the north pit to the electrical control panel.   Scoville sealed this leak.   They also sealed the top on the mechanical room pit and the drains in the ladies room and outside the mechanical room.   They also located and improved the performance of the vent pipe in the chimney, cleaned out the debris in the chimney which was blocking the exhaust fans in the restrooms, and installed a chimney exhaust fan near the top of the chimney.

The history of Scoville's work on the plumbing at the restaurant was supplied at trial by the testimony of Terry Smyth, who was Scoville's supervisor on this project.   There are records of Scoville's work to service the pit pumps beginning on February 11, 2000 when one of the pumps failed.   Thereafter, Scoville returned to the property several times to find the pumps hung up with grease.   Evidence of Scoville's attempts to deal with a septic odor date to March of 2002.   In December 2002 Scoville plugged a floor drain in the ladies restroom.   In January 2003 they capped a mechanical vent in the ladies restroom closet.   A smoke test in January 2003 found no smoke finding its way into the ladies restroom.   But, they found that the sewage ejector pump in the north pit was backing water into a conduit.   As a result, they sealed the conduit line.   In January 2003 they replaced two ejector pumps in the north pit.   In March 2003 they cleaned the grease from the ejector floats in the boiler room pit and searched for a possible odor source in the old chimney area, the bath exhaust fans and the sewer vents.

Scoville performed the peppermint test on March 25, 2003.   Scoville put peppermint in the north pit to see if, after a passage of time, the smell of peppermint could be detected in the ladies restroom.   Mr. Smyth testified that a peppermint smell was noticeable in the ladies restroom after 45 minutes.   Mr. Smyth admitted that he was not present for this test and was relying upon the Scoville invoice which reflects that there was a “mint smell in ladies room.”   He explained that this indicated that there was an open or cracked pipe in the wall or under the floor of the ladies room which was providing an avenue for odors from the pit to make their way into the building.   He testified that he told this to Ms. Naylor once or twice at the time and recommended that they begin digging up the floor and opening the walls to try to find the pipe or pipes.   Mr. Smyth testified that Ms. Naylor never responded to this advice.

Ms. Naylor, who was present during the peppermint test, disputes that there was a mint smell in the ladies restroom and does not recall Mr. Smyth giving a recommendation to rip up the floor and walls of the ladies room.   It is probable that Mr. Smyth is correct about the peppermint test and that he made the recommendation about ripping up the floor and walls.   Although Ms. Naylor was a highly credible witness, it is probable that she was mistaken about the peppermint test, and that she simply does not remember Mr. Smyth's recommendation about the walls and floors.   There is no dispute that Ms. Naylor did not give Mr. Smyth authority to go ahead and open the walls or the floor.   During his testimony in court, Mr. Smyth acknowledged that the peppermint smell in the ladies restroom during the test could have been caused by things other than a cracked pipe in the walls or floor.   It would have been extremely expensive and disruptive to have begun tearing up the walls and floors.

Thereafter, Scoville continued to respond to complaints of odor and to make repairs.   In July 2003 Scoville performed another smoke test.   Five different times they found smoke going into the coffee room.   They found and capped a pipe in the wall.   They also found an open pipe in the pit and capped it.   At that time there was a septic smell only when the air conditioning was operating in the dining room.   As a result, Scoville snaked a vent up through the chimney and repaired the mens room flush valve.   They also cleaned the floats in the boiler room pit and cycled the pumps.   Scoville performed a smoke test in the pump chamber and restrooms in August 2003.   They found that the north pit was full and the pumps were not working when the switches were on automatic.

Scoville was not called for service again until April 2004 when they found that the pumps were air locked and that the control panel need to be replaced.   West Main continued to operate until October 31, 2004.   Between August 2003 and October 2004, there is no evidence that Scoville was called about any further work.   There was evidence from former employees of West Main that there was a septic odor in the restaurant until October 2004 when West Main closed but that they were able to mask the odor with air fresheners, candles and the like so that the restaurant could continue to function.   There is no evidence that the owners of West Main ever attempted to withhold rent or to take any other action on account of the odor.   The plaintiff was unable to prove that any lingering septic smell after August 2003 was caused by anything other than West Main's inability to follow the grease handling procedures and to add the enzymes and chemicals as directed.   Milano ate at the West Main restaurant and detected no odor.

After West Main vacated the premises on October 31, 2004, Pocket Knife leased the space to Wilborg Enterprises, LLC commencing January 14, 2005.   Wilborg soon opened a new restaurant.   The lease with Wilborg required it to add enzymes and chemicals to the plumbing to break up grease, and to follow a designated procedure regarding grease.   The lease specifically warned the new tenant that failure to follow the desiguated procedures may lead to an undesirable odor.   Wilborg operated a restaurant at the premises until it was evicted in April of 2006.   The principal of Wilborg, Tyrus Williams, testified that he had septic odors in the restaurant throughout the tenancy.   Ms. Naylor testified that Mr. Williams never made any complaints about septic odors.   Ms. Naylor kept copious notes of all of her interactions regarding the building and was entirely credible.   There are no notes reflecting any complaints by Mr. Williams.

Mr. Williams was not a credible witness for several reasons.   First, and most important, Mr. Williams filed a pleading dated May 26, 2006 in his eviction case in which he listed seven deficiencies in the property which he claimed Pocket Knife had a duty to repair.   A septic odor is not mentioned in the entire pleading.   If there had been a septic odor during his tenancy it is almost certain that he would have raised it in this pleading as a basis for avoiding liability for the rent.   Mr. Williams claimed that he called a plumber himself to deal with the odor but he could not remember the name of the plumber.   Finally, Mr. Williams pled guilty and was convicted of the felonies of forgery and identity theft in 2009 but did not testify truthfully about these convictions.   Mr. Williams demonstrated a clear bias against Pocket Knife for having evicted him.   The court concludes that his testimony was crafted to retaliate against the defendants.   None of the testimony of Mr. Williams can be believed.   It is significant that the plaintiff presented the testimony of several witnesses who testified to experiencing septic odor at various times during the West Main tenancy, but, other than the testimony of Mr. Williams, there was no evidence of septic odor in the restaurant during the sixteen months of the Wilborg tenancy.   In fact, the only patrons of Wilborg/Williams who testified were Milano and Del Tufo. Milano ate there once and smelled no septic odor.   Del Tufo played in a band which performed at the restaurant;  he smelled no septic odor.   Therefore, there is no credible evidence that there was any septic odor in the restaurant between January 2005 and April 2006 when Williams was in possession of the property.

After Wilborg was evicted in April 2006, the property was vacant until it was leased to the plaintiff as of May 1, 2008.   During this period, Pocket Knife upgraded the pumps in the north pit to increase the efficiency of the sewage disposal system.

Between July of 2007 and April of 2008, Milano and Del Tufo looked at the restaurant accompanied by Naylor and negotiated to rent the space for a restaurant.   Milano had owned and operated two separate restaurants, the first in Sharon, and the second in Pine Plains, New York. Del Tufo had also operated a restaurant.   They were given a tour of the premises by Naylor in July 2007.   They saw the plumbing system and the septic pits and were given preliminary figures for leasing the property.   They visited the property a second time at which time Naylor again explained in detail the operation of the plumbing and sewage disposal system.   In April 2008 the parties reached agreement on the terms of the lease which was put into a written form.   Naylor went through the entire lease with Milano and Del Tufo. The parties dispute what Naylor actually said about the history of the septic odors.   It is probable that Naylor told them that there had been a history of odors and that strict observance of the guidelines for care of the pits was necessary.   Milano and Del Tufo reviewed the proposed written lease with two separate attorneys.

On April 28, 2008 the parties signed the written lease.   The written lease, entitled “Commercial Lease” is highly one-sided in favor of Pocket Knife concerning the issues involved in this case.   It provides that:  1) Pocket Knife is not required to make any repairs:  2) the plaintiff acknowledges that it has examined the premises and accepts them “AS IS” and “WITH ALL FAULTS” (capitals in the original) and is not relying upon “any representations, information, warranty, or promises” made by Pocket Knife which are not specifically set forth in the lease “as to the character, quality, use, value, quantity, condition, or any other matter related thereto.”

In the lease, the plaintiff specifically agrees to maintain and keep the restaurant building in good order and repair at its own expense including “plumbing, plumbing fixtures, drains and pumps that exclusively serve the leased premises” as well as “plumbing and drain pipes to sewer pits and grease trap.”   Even more specifically, the lease requires the plaintiff to buy and use certain products in the drains leading to the grease trap.   It informs the plaintiff that dishes should be washed only in sinks whose drains lead to the grease trap, and that no cooking oils or collected grease should be put down the drains.   Finally, the lease informs the plaintiff that failure to follow these procedures including pumping the grease trap in a timely manner “may lead to an undesirable odor, which the LESSOR cannot be expected to remedy and LESSOR shall not be responsible for.   LESSEE agrees to hold harmless LESSOR for any loss of revenue as a result of any uncontrolled odors.”   The plaintiff paid the defendant a security deposit of $9,000.

Simultaneously with the execution of the lease, both Milano and Del Tufo signed guarantees by which they guaranteed performance of the lease by the plaintiff, up to a limit of $13,000 each.   They also executed a bill of sale to acquire kitchen and restaurant equipment at a cost of $6,000.   Beginning on about May 1, 2008, the plaintiff began cleaning the building and making preparations to open the restaurant.   The plaintiff opened the restaurant on August 8, 2008, soon after it acquired the liquor license.   Although the plaintiff had not done any advertising prior to the opening, the plaintiff's business began at a brisk clip and increased week by week.   September was the busiest month of the plaintiff's operation.

There was no odor in the restaurant during the period from May 1, 2008 until approximately October 7, 2008.   On or about that day, an unpleasant septic odor appeared in the building.   The plaintiff immediately notified Naylor who immediately arranged for a plumber to try to determine the source of the odor.   The plumber, Will Case, was assisted by an engineer, Patrick Hackett, and a company called American Router.   Mr. Case is a true professional and an expert diagnostician.   An especially articulate witness, Mr. Case's entire testimony was highly credible.   He undertook a methodical approach to the problem, eliminating one potential cause after the next.   This was a painstaking process which took a very long time.   After almost two months, Mr. Case finally determined that the cause of the odor was a broken pipe between the north sewer pit and a junction in a closet of the office in the restaurant.   This pipe ran under both restrooms and came into the office behind these restrooms.   The break in that pipe was leaking raw sewage under the floor of the building.   Mr. Case capped and abandoned that pipe, and installed a new line along the exterior of the building from the north pit to the junction in the closet adjacent to the office.   By December 9, 2008 these repairs had been completed and the sewage odor problem eliminated.   There has been no odor in the building since that time.   The court accepts Mr. Case's opinion that it is probable that a septic odor would have been noticeable in the building had the pipe been broken during the month of September 2008 when the plaintiff's business was at its peak.

Once the odor appeared in the restaurant in early October, the plaintiff saw a decline in its business.   At times the odor was so severe that customers would leave the restaurant before ordering.   There was abundant evidence that the odor made the restaurant so unpleasant that at times that it was impossible for customers to enjoy a pleasant dining experience.   The gross revenues from the restaurant operation were $28,472 in September, $21,340 for October and $19,995.72 for November plus another $3,312.03 which was not received until December.   By November, most of the staff had left.   On November 29, 2008 the plaintiff closed its doors and stopped paying rent.   The plaintiff argues that the defendant is responsible for destruction of the business.

The defendant took immediate steps to find a substitute tenant.   A new tenant was obtained in June 2009 at $2,000 per month, a lower rent than the plaintiff had been paying.   The poor economy made it impossible for the defendant to find a tenant at the same rent that the plaintiff had been paying.   The plaintiff's lease obligated it to pay rent at a beginning rate of $3,000 per month and gradually increasing to $3,376.53 per month by the end of the term in April 2013.   Over the entire term of the plaintiff's lease, there is a difference of $82,128.92 between the rent which the plaintiff was obligated to pay and the rent which will be paid by the substitute tenant.

The defendant paid Will Case $18,102.26 for all of his work in remedying the septic odor problem experienced in October, November and December 2008.   The defendant also paid CL & P the sum of $1,619.04 for electricity supplied to the premises after the plaintiff vacated the property until June 2009 when the defendant was able to re-rent the property.   Under the lease, the plaintiff had the sole obligation to pay for utilities.   The defendant also paid $812.50 to Patrick Hackett and $1,342.76 to American Router for assistance in remedying the odor problem.

Based upon the facts found above, the court concludes that the plaintiff has not proven, by a fair preponderance of the evidence, that the septic odor experienced by the plaintiff beginning on or about October 7, 2008 was caused by a condition which existed before the property was leased to the plaintiff on April 28, 2008.   There is no credible evidence that there was any septic odor in the restaurant building between at least October 31, 2004 and about October 7, 2008.   The odor which existed during the tenancy of West Main was less severe than the odor experienced by the plaintiff.   The odor during the West Main tenancy appeared in various places and was addressed by the defendant as it was reported.   West Main was able to continue operation.   There was no evidence that they suffered a loss of business.   The odor which began on or about October 7, 2008 was ultimately determined to be a broken pipe in the wall or under the floor of the building.   There is no credible evidence which would entitle the court to find that this broken pipe was the cause of any of the septic odors which had existed during the tenancy of West Main almost three years earlier.   A more likely conclusion is that the pipe broke sometime during late September or early October 2008 and began to manifest itself soon thereafter.   It was severe enough that the plaintiff experienced a loss of business during October and November 2008.

The plaintiff has the burden of proof on its allegation that the defendant knew, or should have known, that there was an unresolved odor problem in the restaurant before it was rented to the plaintiff.  Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 463-64 (2004).   The plaintiff has been unable to prove this allegation because it failed to prove that the break in the pipe, which was discovered and remedied by Will Case, was an old condition which the plaintiff knew about or should have known about.   On the contrary, it is more likely than not that the break in the pipe discovered by Will Case was a new condition which occurred just before the odor was first detected on or about October 7, 2008.

Further, the court must conclude that there was no reason for the defendants to think that there was an ongoing, unresolved septic issue at the property before it leased the property to the plaintiff on April 28, 2008.   The plaintiff relies heavily on the advice given by Terry Smyth during the West Main tenancy that the plaintiff begin ripping up the floors and walls to find a source or sources of the odors.   The plaintiff claims that this should supply the basis of a conclusion that the defendants were aware of an unresolved problem, the presence of which should have been conveyed to the plaintiff before the lease was signed.

The court is unable to draw this conclusion because of the countervailing evidence that there were no credible reports made to the defendants that there was any septic odor in the building between October 31, 2004 and April 28, 2008 when the lease between the parties was signed.   More than three and one-half years had passed without any reports of odor.   Certainly this entitled the defendants to conclude that, apart from the continued necessity to operate the septic pits properly, the odor problems experienced during the West Main tenancy were gone, and that Mr. Smyth's advice had been proven to be unfounded.   While the court is entitled to draw reasonable conclusions from the evidence, the court is not permitted to engage in speculation or guesswork to arrive at conclusions drawn from the evidence.  Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 522-23 (1992).

The court's conclusions stated above make it impossible for the plaintiff to recover on any of its theories of liability.   Count one is based on negligence.   Allegedly, the defendants acted negligently in failing to investigate and eliminate the odor before leasing to the plaintiff.   This theory must fail because of the plaintiff's inability to prove, by a fair preponderance of the evidence, that the defendants knew, or should have known, about an unresolved septic odor before the property was leased to the plaintiff.   The evidence is that the defendants acted reasonably in concluding that there would be no septic odor provided that the plaintiffs followed the proper procedures for handling grease and for caring for the septic pits.   No reasonable person could have foreseen that a pipe would break in a wall more than three and one-half years after the last reports of odor.

The second count alleges that Pocket Knife breached a covenant of good faith and fair dealing by failing to disclose the presence of a septic odor problem.   The specific allegation made in the fifteenth paragraph of that count is:  “In leasing the premises to the plaintiff, the defendant knowingly and in bad faith intentionally concealed from the plaintiff the longstanding odor problem on the premises which it knew had not been remedied and was likely to reoccur during the plaintiffs' tenancy, and which would substantially interfere with its business.”   This count must fail because of the lack of evidence that there was an ongoing problem to be disclosed.   The evidence does not permit the court to find that the plaintiff knowingly and in bad faith intentionally concealed anything.

The third count alleges a violation of CUTPA.   The amended complaint merely repeats the allegations of the second count and alleges that these action are violations of C.G.S. § 42-110b.   There is no need to determine whether there are sufficient allegations to make out a cause of action for violation of CUTPA.   This count must fail because the plaintiff did not prove by a fair preponderance of the evidence that the defendant engaged in unfair or deceptive acts or practices.   The plaintiff did not prove by a fair preponderance of the evidence that the defendants made any representations, omissions or other practice likely to mislead the plaintiffs.

The fourth count is entitled “reckless indifference.”   It repeats the allegations of the third count and adds an allegation that:  “The actions of the defendants evinced a reckless indifference to plaintiff's rights or an intentional and wanton violation of those rights.”   The court need not consider whether these allegations actually constitute a cause of action.   The plaintiff did not prove, by a fair preponderance of the evidence, that the defendant did anything which evinced a reckless indifference to the rights of the plaintiff or an intentional and wanton violation of those rights.

It having determined that the plaintiff is unable to recover on its complaint, the defendant's counterclaim must be considered.   The first count of the defendant's counterclaim sets forth a cause of action for breach of the written lease between the parties.   There is no question that the plaintiff stopped paying rent as of December 2008 and that there was a breach of the lease.   But, before rendering judgment on this count, the plaintiff's special defenses must be considered.   The plaintiff's first special defense is constructive eviction.   In order to establish a defense of constructive eviction, the plaintiff would need to prove that the defendant, while not actually depriving the tenant of possession of any part of the leased premises, has done or suffered any act by which the premises were rendered untenantable, and has thereby caused a failure of consideration for the plaintiff's promise to pay rent.  Amsterdam Realty Co. v. Johnson, 115 Conn. 248 (1932).

The lease is clear that the plaintiff had the sole responsibility to perform all repairs;  the defendant had no obligation to perform any repairs.   The plaintiff accepted the premises as is and “with all faults.”   The defendant did not cause the broken pipe nor, as discussed previously, did it fail to disclose it to the plaintiff.   Therefore, the defendant did nothing to render the premises untenantable.   The defense of constructive eviction simply does not apply.   The second special defense to the breach of lease claim is that the defendant breached an obligation of good faith.   As already discussed, the facts do not support such a claim.

The defendant's damages for breach of lease have been proven by a fair preponderance of the evidence.   Despite the defendant's best efforts to mitigate its damages, the defendant suffered reduced rent over the term of the lease in the amount of $82,128.92.   In addition, the defendant paid Will Case the sum of $18,102.26, CL & P the sum of $1,619.04, Patrick Hackett the sum of $812.50 and American Router the sum of $1,342.76.   The court rejects the plaintiff's argument that the defendant essentially volunteered to pay for the cost of repair because it hired Mr. Case and was tardy in billing the plaintiff for his services.   The lease is unambiguous in shifting to the plaintiff the entire responsibility for all repairs, including plumbing.   This is undoubtedly an unusual and entirely one-sided lease.   But, Milano and Del Tufo were experienced in business and had legal assistance in arranging this commercial lease.   Perhaps an accommodation could have been reached with the defendant about the cost of repairs if the plaintiff had not made the choice to breach the lease within days of the repairs being completed and to bring suit immediately.   The plaintiff must live with that choice.

The plaintiff is entitled to a credit of $9,000 for the security deposit retained by the defendant.   Judgment shall enter for a net damage award to the defendant on the counterclaim in the amount of $95,850.22 against the plaintiff, Old Factory, LLC.

The guarantors, Philip Milano and Norman Del Tufo, each jointly and severally guaranteed the obligations of Old Factory, LLC up to $13,000 each.   Accordingly, judgment shall enter against each of them to be jointly and severally liable with Old Factory, LLC up to a limit of $13,000 each.

The lease provides that the plaintiff agrees to pay “all costs incurred by Pocket Knife in the enforcement of any provision of this lease ․ in which Pocket Knife was the prevailing party, and/or in the collection of any sums due hereunder including a reasonable attorneys fee.”   It was agreed at trial that an additional hearing would be held if attorneys fees were recoverable by either party.   The parties are ordered to confer with the clerk's office about the date for this hearing.

BY ORDER OF THE COURT,

John W. Pickard

Pickard, John W., J.