LLC v. LLC (2011)

MEMORANDUM OF DECISION

This is an action by the plaintiff, The Cast Iron Associates, LLC, relating to commercial retail space (hereinafter referred to as the “subject premises”) located at 241 Asylum Street, Hartford, Connecticut.   The plaintiff asserts, pursuant to an amended six-count complaint, unpaid rent and unjust enrichment.   The Defendant's answer denies the substance of the plaintiff's allegations and asserts counterclaims of unjust enrichment and breach of lease.

On November 24, 2010 and February 16, 2011, all parties were present for the trial of this matter.   Testimony was taken and evidence was submitted.   The court has weighed all the evidence and assessed the testimony and credibility of the witnesses and reaches the conclusions set forth herein by a fair preponderance of the evidence.

STANDARD OF PROOF

The standard of proof in civil actions, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).

BURDEN OF PROOF

“While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it.”  Lukas v. New Haven, 184 Conn. 205, 211 (1981).   The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence.  Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923 (1982).   Failure to do so results in judgment for the defendant.  Id. “[W]hat is necessarily implied [in an allegation] need not be expressly alleged.”  Pamela B. v. Ment, 244 Conn. 296, 308 (1998).

THE PROCEEDINGS

“The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties.”  (Internal quotation marks omitted.)  Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005).

“It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ it is the quintessential function of the factfinder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].”  Smith v. Smith, 183 Conn. 121, 123 (1981).  “[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony.”  (Citation omitted;  internal quotation marks omitted.)  Toffolon v. Avon, 173 Conn. 525, 530 (1977).  “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.”  Smith v. Smith, supra, 183 Conn. 123.  “Then determination of credibility as a function of the trial court.”  Heritage Square, LLC, v. Eoanou, 61 Conn.App. 329, 333 (2001).

“[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible ․ it is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses ․ the trier of fact may accept or reject the testimony of any witness ․ the trier can, as well, decide what—all, none, or some—of the witnesses' testimony to accept or reject.”  (Citations omitted;  internal quotation marks omitted.)  State v. Osborne, 41 Conn.App. 287, 291 (1996).   The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.”  In re Christine F., 6 Conn.App. 360, 366, cert. denied, 199 Conn. 808 (1986).

DISCUSSION

Leases as Contracts—Generally

“A lease is simply a type of contract and ordinary rules of contract interpretation and general rules of contract law apply to leases.”  Warner Associates v. Logan, 50 Conn.App. 90, 94–95 (1998).  “[W]hen a landlord specifies the terms for the future occupancy of the dwelling unit and the tenant continues in possession without objecting to those terms, it may be construed that the tenant has accepted those terms and a contract will be implied from the conduct of the parties.”  Welk v. Bidwell, 136 Conn. 603, 607 (1950).  “[A]cceptance may be shown by acts or conduct indicating assent to an offer or under appropriate circumstances, acceptance may be implied by the offeree's silence and inaction ․ moreover, regardless of actual intent, if the offeree's conduct leads the offeror reasonably to conclude that the offer is being accepted, acceptance has taken place as a matter of law.”   Greenfield v. Lawrence & Memorial Hospital, superior court, judicial district of New London, Docket No. 560884 (August 26, 2002).

“The rules governing contract formation are well settled.   To form a valid and binding agreement contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties ․ to constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to be based on an identical understanding by the parties.”  Duplissie v. Devino, 96 Conn.App. 673, 688, cert. denied, 280 Conn. 916 (2006).   Mutual assent presents a question of fact.  M.J. Daly & Sons, Inc. v. West Haven, 66 Conn.App. 41, 48, cert. denied, 258 Conn. 944 (2001).   Mutual assent is based on the parties written or spoken words or by other acts.  Precision Mechanical Services, Inc v. Shelton Yacht & Cabana Club, Inc., 97 Conn.App. 258, 263, cert. denied, 280 Conn. 928 (2006).

Breach of Contract

The plaintiff argues that the defendants owe the plaintiff under a theory of breach of contract.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Chiulli v. Zola, 97 Conn.App. 699, 706–07, 905 A.2d 1236 (2006).  “An ‘agreement’ is [t]he union of two or more minds in a thing done or to be done;  a coming together of parties in opinion or determination ․” (Internal quotation marks omitted.)  Viera v. Cohen, 283 Conn. 412, 429, 927 A.2d 843 (2007).

“It is [well] established ․ that parties are free to contract for whatever terms on which they may agree.   This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract.”  (Internal quotation marks omitted.)  Scoville v. Shop–Rite Supermarkets, Inc., 86 Conn.App. 426, 431, 863 A.2d 211 (2004), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005).  “If there was a meeting of the minds of the parties, without fraud or unfair conduct on either side, the contract must stand, although subsequent events may show that either party made a bad bargain ․” (Internal quotation marks omitted.)  Ross v. Koenig, 129 Conn. 403, 406–07, 28 A.2d 875 (1942).

“Whether there was a breach of contract is ordinarily a question of fact ․ We review the court's findings of fact under the clearly erroneous standard ․ The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole ․ We cannot retry the facts or pass on the credibility of the witnesses ․ A finding of fact is clearly erroneous when there is no evidence in the record to support it ․ or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed ․” (Citation omitted;  internal quotation marks omitted.)  Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn.App. 462, 471–72, 823 A.2d 438 (2003).

“Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time ․ What is a reasonable length of time is ordinarily a question of fact for the trier.”  (Citations omitted;  internal quotation marks omitted.)  Putnam Park Associates v. Fahnestock & Co., 73 Conn.App. 1, 11, 807 A.2d 991 (2002).   The materiality of a contractual breach is also question of fact.   See 669 Atlantic Street Associates v. Atlantic Rockland Stamford Associates, 43 Conn.App. 113, 128, cert. denied, 239 Conn. 949 (1996).

Factors to be considered in determining whether a party's failure to render performance is a “material” breach of contract include:  a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;  b) the extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived;  c) the extent to which the party failing to perform will suffer forfeiture;  d) the likelihood that the party failing to perform will cure his failure;  and d) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing.  Id., 126 citing 2 Restatement (Second), Contracts § 241 (1981).

Subsequent Contract Alteration

“Parties may alter any term of an existing contract by entering into a subsequent contract ․ The contract as modified becomes a new contract between the parties.”  (Citation omitted;  internal quotation marks omitted.)   Spicer v. Spicer, 33 Conn.App. 152, 159, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994).  “The meaning to be given subsequent agreements ․ depends on the intention of the parties.   As intention is an inference of fact, the conclusion is not reviewable unless it was one which the trier could not reasonably make.”  (Internal quotation marks omitted.)   Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn.App. 559, 564, 559 A.2d 241 (1989).

Unjust Enrichment

In the second count of the plaintiff's complaint, the plaintiff alternatively claims sums due from the defendant on the basis of unjust enrichment.  “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ․ A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.”  (Internal quotation marks omitted.)  Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

“With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ․ Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ․ Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Internal quotation marks omitted.)  Breen v. Judge, 124 Conn.App. 147, 158–59, 4 A.3d 326 (2010).   It has also been said that “the word ‘unjustly’ as used in the equitable maxim that one shall not be allowed unjustly to enrich himself at another's expense means unlawfully.”  Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 130, 239 A.2d 519 (1968).

“[E]quitable remedies are not bound by formula but are molded to the needs of justice ․ Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine ․ That doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated ․ The question is:  Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?  ․ Review of a trial court's resolution of that question is deferential.   The court's determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings ․ that are subject only to a limited scope of review on appeal ․ Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion ․ This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.”  (Internal quotation marks omitted.)   Stewart v. King, 121 Conn.App. 64, 71, 994 A.2d 308 (2010).

“[P]roof of an operative contract [is] incompatible with recovery on an unjust enrichment theory.  Meaney v. Connecticut Hospital Ass'n., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999) (‘express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter’ [internal quotation marks omitted] ).”  Vertex v. Waterbury, supra, 278 Conn. 570 n.12. “[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations ․ Proof of a contract enforceable at law precludes the equitable remedy of unjust enrichment ․ at least in the absence of a breach of the contract by the defendant ․ a nonwillful breach by the plaintiff ․ or a mutual rescission of the contract.”  (Citations omitted;  internal quotation marks omitted.)  Polverari v. Peatt, 29 Conn.App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).

An action which seeks damages for unjust enrichment and quantum meruit is allowable as an alternative basis for recovery in the event of a failure to prove a breach of contract claim.   See Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986).   However, “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract.”  Burns v. Koellmer, 11 Conn.App. 375, 383 (1987).

Breach of Lease/Constructive Eviction

“A substantial interference with the tenant's beneficial enjoyment of the premises resulting from a failure to furnish essential services would be sufficient to constitute a constructive eviction if the tenant had actually vacated the premises for that reason ․ It is clear, however, that the defendant could not prevail upon such a ground so long as he continued to remain in possession of the premises.”  (Citations omitted.)  S.H.V.C., Inc. v. Roy, 37 Conn.Sup. 579, 585–86, 428 A.2d 806 (1981).

“The classic statement [of the Connecticut law of constructive eviction] is that found in Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248, 161 A. 339 (1932), where this court held that [a] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant's promise to pay rent.”  (Internal quotation marks omitted.).   Conference Center LTD v. TRC, 189 Conn. 212, 220, 455 A.2d 857 (1983).  “In addition to proving the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord;  (2) the tenant vacated the premises because of the problem;  and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem.”  (Citations omitted;  internal quotation marks omitted.)  Heritage Square, LLC v. Eoanou, supra, 61 Conn.App. 332;  see also Thomas v. Roper, 162 Conn. 343, 349, 294 A.2d 321 (1972).

Moreover, “[w]hether the premises are untenantable is a question of fact for the trier, to be decided in each case after a careful consideration of the situation of the parties to the lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant's use of the premises is interfered with by the injury claimed ․ That factual determination will not be disturbed by [a reviewing] court unless the conclusion is such that it could not reasonably be reached by the trier.”   (Internal quotation marks omitted.)  Johnson v. Fuller, 190 Conn. 552, 556–57, 461 A.2d 988 (1983).

“Any disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in part, for the purposes for which they were leased amounts to a constructive eviction ․” (Emphasis added;  internal quotation marks omitted.)   Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248, 161 A. 339 (1932).

FINDINGS OF FACT

Niro Career Services, LLC

On February 3, 2010, the court granted the plaintiff's motion to default Niro Career Services, LLC for failure to appear.   The purpose for filing a motion for judgment is to put the other parties on notice that they risk the entry of a judgment against them.  CAS Construction Co. v. Dainty Rubbish Service, Inc., 60 Conn.App. 294, 300 (2000), cert. denied, 255 Conn. 928 (2001).  “In Connecticut, a corporation may not appear pro se.”  Triton Associates v. Six New Corp., 14 Conn.App. 172, 175, cert. denied, 208 Conn. 806 (1988).

If a defendant is defaulted for failure to appear at trial, judgment may be rendered without notice to the defendant.  Danise v. Budget Rent–A–Car of Westchester, Inc., 41 Conn.App. 297, 300 (1997);  Connecticut National Bank v. Oxenhandler, 30 Conn.App. 541, 547, cert. denied, 225 Conn. 924 (1993);  People's Bank v. Horesco, 205 Conn. 319, 322 (1987).

The First Floor Lease

On or about September 24, 2008, the plaintiff and the defendants contracted for the lease of the subject premises for the defendant's use of the premises as a “Retail” space (Plaintiff's Exhibit 7).   The term of the lease was two years at an annual base rent of $30,000.00 payable in the amount of $2,500.00 monthly.   The Tenant agrees to pay the costs of litigation for recovery of amounts related to the tenant's default, including reasonable attorneys fees (Plaintiff's Exhibit 7, Article XXI).   The individual defendants, Naimah Spann and Rondelynn Bell, executed a Guaranty accepting liability for rent, damages or default of the defendant LLC (Plaintiff's Exhibit 7).

The lease agreement indicates that the “[l]andlord at its expense shall maintain and operate heating, ventilating and air conditioning systems and shall furnish heat, ventilating and air conditioning ․ [s]uch heating, ventilating and air conditioning shall be furnished during regular hours (that is, generally customary day time business hours)” (Plaintiff's Exhibit 7, Article XIII).

Additionally, the lease agreement requires the landlord to “keep and maintain the Building and common areas in good condition and repair ․ [and to] ․ keep and maintain and make all repairs to the Building, the common areas, the facilities of the Building, including all structural repairs to the demised premises and all repairs to all mechanical systems, elevators, pumps, heating, ventilation and air conditioning system and all other utilities servicing the building and the Demised premises (Plaintiff's Exhibit 7, Article XIV).

Further, the lease agreement provides that “in the event any services to be provided to Tenant by Landlord under this Lease shall cease to be provided for any reason other than due to the negligence or willful misconduct of Tenant and shall continue for more than 4 business days and Landlord does not dispute such fact and is not working continuously and diligently to restore such services, then Tenant shall have the right to abate the rent due hereunder from the date the services ceased until such time the services have been restored (Plaintiff's Exhibit 7, Article XXII).

Finally, the lease agreement requires the landlord to reimburse the tenant for expenditures related to curing the landlord's default (Plaintiff's Exhibit 7, Article XXIX).

The Second and Third Floor Lease

On or about September 1, 2007, the plaintiff and the defendants contracted for the lease of the subject premises for the defendant's use of the premises as a “Retail” space (Plaintiff's Exhibit 1).   The term of the lease was three years at an annual base rent of $44,800.00 payable in the amount of $3,733.33 monthly.   Beginning on September 1, 2008, the rent increased to $4,000.00 monthly for one year.   Beginning on September 1, 2009, the rent increased to $4,266.66 monthly for one year.   The Tenant agrees to pay the costs of litigation for recovery of amounts related to the tenant's default, including reasonable attorneys fees (Plaintiff's Exhibit 1, Article XXI).   The individual defendants, Naimah Spann and Rondelynn Bell, executed a Guaranty accepting liability for rent, damages or default of the defendant LLC (Plaintiff's Exhibit 1).

The lease agreement requires the tenant to pay the “[t]enant's full share of the cost of electricity and gas (including hot water) furnished to the Demised Premises which utility meters ․ are # 328529829 & # 329874325” (Plaintiff's Exhibit 1, Article XII).

Additionally, the lease agreement requires the landlord to “keep and maintain the Building and common areas in good condition and repair ․ [and to] ․ keep and maintain and make all repairs to the Building, the common areas, the facilities of the Building, including all structural repairs to the demised premises and all repairs to all mechanical systems, elevators, pumps, heating, ventilation and air conditioning system and all other utilities servicing the building and the Demised premises (Plaintiff's Exhibit 7, Article XIV).

The lease agreement also states that access to space within the demised premises used for “electric or other Facilities” for the purposes of “operation, maintenance, decoration and repair” is reserved to the landlord” (Plaintiff's Exhibit XV).

Further, the lease agreement provides that “in the event any services to be provided to Tenant by Landlord under this Lease shall cease to be provided for any reason other than due to the negligence or willful misconduct of Tenant and shall continue for more than 4 business days and Landlord does not dispute such fact and is not working continuously and diligently to restore such services, then Tenant shall have the right to abate the rent due hereunder from the date the services ceased until such time the services have been restored (Plaintiff's Exhibit 7, Article XXII).

Finally, the lease agreement requires the landlord to reimburse the tenant for expenditures related to curing the landlord's default (Plaintiff's Exhibit 7, Article XXIX).

Additional Findings of Fact

The Second and Third Floor

1.  From September 2007 through May 2009, the Defendants were charged, and paid for, the electrical usage for a second floor tenant, common areas in the building and space in the basement in the premises;

2.  On or about December 18, 2008, the defendants notified the plaintiff, in writing, of their discovery that the defendants had been billed for the electrical usage of other occupants of the premises (Defendant's Exhibit C);

3.  The electrical meters were separated in May 2009;

4.  The defendant's paid in excess of their share of the costs for electricity;

5.  The plaintiff benefited directly from the defendant's excess payments as the electrical costs were otherwise payable by the plaintiff;

6.  The additional financial obligation to Connecticut Light and Power caused a financial hardship to the defendants;

7.  The plaintiff estimated that the defendant's are owed approximately $100.00 per month for the period in question;

8.  The defendant's estimate their overpayment at $15,178.00;

9.  The defendant's also had to deposit the sum of $4,000.00 with Connecticut Light and Power;

10.  The plaintiff failed to reimburse the defendants any sum of money based on the electrical “overcharge”;

11.  The evidence suggests that the defendants paid an estimated $8,000.00 in excess electrical payments through November 2008, not including the $4,000.00 deposit (Defendant's Exhibit B);

12.  In July 2009 there was a burglary reported at the premises (Defendant's Exhibit F);

13.  The defendants asked the plaintiff to change the locks to certain portions of the premises;

14.  The defendants also experienced intermittent losses of electricity during 2009 that negatively impacted their business;

15.  The plaintiffs were not responsive to the defendant's complaints regarding the premises under the lease agreement;

16.  In a summary process action against the defendants claiming nonpayment of rent, the plaintiff obtained a judgment for possession of the premises on December 30, 2009.   An execution issued January 7, 2010;

17.  The defendants signed a new lease for other premises on November 2009;

18.  The defendants vacated the premises in December 2009;

19.  The defendants vacated the premises based on the issues related to the excess costs of electricity in the premises;

20.  Although the subject of a separate lease agreement, an additional basis upon which the defendants vacated the second and third floors were the heating and cooling issues with the first floor.

The First Floor

1.  The defendants operated a retail clothing store in the first floor of the premises;

2.  On or about December 2008, the defendant experienced a loss of heat based on a malfunction of the heating system;

3.  The loss of heat continued through the winter months of 2009;

4.  In the warmer months of 2009, the defendants experienced a lack of air conditioning in the premises;

5.  The lack of air conditioning continued through the warmer months of 2009;

6.  The heating and cooling issue was not adequately addressed until December 2009 (Plaintiff's Exhibit 9);

7.  The lack of heating and cooling had a substantial negative impact of the defendant's business;

8.  The plaintiffs were not responsive to the defendant's complaints regarding the premises under the lease agreement;

9.  In a summary process action against the defendants claiming nonpayment of rent, the plaintiff obtained a judgment for possession of the premises on December 30, 2009.   An execution issued January 7, 2010;

10.  The defendants signed a new lease for other premises on November 2009;

11.  The defendants vacated the premises in December 2009;

12.  The defendants vacated the premises due to the heating and cooling issues at the premises.

RULING

ComplaintDefendant Niro Career Services, LLC

Pursuant to statute, the Defendant Niro Career Services, LLC is found liable for the Counts directed against it:  Count One (unpaid rent—second and third floor);  Count Two (Unjust Enrichment—second and third floor);  Count Three (unpaid rent—first floor);  Count Four (unjust enrichment—first floor).   Judgment enters in favor of the plaintiff against the Defendant LLC only.

Defendant Naimah Spann

As to Count Five, the court finds that the plaintiff did not maintain the subject premises in the condition originally bargained for to allow the defendant to operate the premises.   As to the second and third floors, the electrical overcharge issue was a direct cause of the defendant's decision to vacate the premises.   As to the first floor, the court finds the premises to have been untenantable.   Accordingly, this court finds for the defendant.

Defendant Rondelynn Bell

As to Count Six, the court finds that the plaintiff did not maintain the subject premises in the condition originally bargained for to allow the defendant to operate the premises.   As to the second and third floors, the electrical overcharge issue was a direct cause of the defendant's decision to vacate the premises.   As to the first floor, the court finds the premises to have been untenantable.   Accordingly, this court finds for the defendant.

Counterclaim

As to Count One, unjust enrichment, the court finds that the plaintiff/counterclaim defendant was indeed unjustly enriched based on the collection of rents under both of the subject leases when the premises were not suitable for business purposes contracted for by the defendants.   Accordingly, the court finds for the defendants/counterclaim plaintiffs.

As to count two, breach of contract, the court further finds a breach of contract by the plaintiff/counterclaim defendants in that it failed to make the necessary repairs to maintain the premises in the manner bargained for with the defendants.   Accordingly, the court finds for the defendants/counterclaim plaintiffs.

The court orders the matter scheduled for a hearing in damages for a more particular determination of the damages due to and from each party.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J.