Bloomfield Early Learning Center, Inc. v. Town of Bloomfield, Connecticut (2011)

MEMORANDUM OF DECISION RE TEMPORARY INJUNCTION

This is an action by the plaintiff, Bloomfield Early Learning Center, Inc., relating to commercial premises (hereinafter referred to as the “subject premises”) located at 73 Rockwell Avenue, Bloomfield, Connecticut.

On November 7, 2011, the plaintiff filed a verified lockout complaint and application for temporary injunction.   The plaintiff asserts, pursuant to an amended four-count complaint, violation of the entry and detainer statute, Connecticut General Statutes § 47a–43, violation of Connecticut General Statutes § 47a–7, a CUTPA violation pursuant to Connecticut General Statutes § 42–110a et seq., and breach of lease.   The plaintiff, in its prayer for relief, requests, among other relief, a temporary injunction requiring the defendant to provide heat, hot water, electricity and such other services at the subject premises as necessary to restore the premises to a condition fit for use as an early learning center.

The court, after reviewing the pleadings, declined to issue an ex parte injunction.   The matter was scheduled for a hearing in order that the plaintiff might show cause to justify the issuance of an injunction ordering the relief requested.

On November 15, 2011, the parties appeared for the “show cause” hearing, at which time the plaintiff filed in court its motion for temporary injunction and requested an immediate hearing on the motion.   There was no objection from the defendant to an immediate hearing.   On November 15, November 21 and November 22, 2011, the parties presented evidence to the court.   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.

In sum, the plaintiff argues that the defendant illegally locked the doors to the subject premises, keeping the plaintiff from entering.   The plaintiff argues this “lockout” in the context of an ongoing “negotiation” for the plaintiff's right to continue to operate its business within the subject premises, or at all, within municipal property.   Further exacerbating the situation were the expenses relating to the failing heating system within the subject premises.   In the midst of the negotiations between the parties for either repair to the subject premises, the provision of alternative space, or the termination of any relationship between the parties, snowstorm Alfred arrived to blanket the state with snow and temporarily cause a severe outage of electricity, and other weather-related emergencies, to the town of Bloomfield, including the subject premises.

The plaintiff argues that the contract between the parties, the lease agreement, clearly indicates the relief requested, in the form of repairs, are the defendant's contractual obligations.   Further, the plaintiff argues that money damages, if recovered, are not an adequate remedy.   The plaintiff is asking, in this motion for temporary injunction, for an order directed to the defendant to return the premises to the plaintiff in a condition fit for use as a child early learning center.

The defendant first argues a lack of subject matter jurisdiction, asserting that the plaintiff has initiated the instant action instead of seeking and exhausting available administrative remedies with municipal boards or State officials.   In the alternative, the defendant argues that, in balancing the equities, the expense occasioned by the requested repairs are overly burdensome on the Town, especially in light of the defendant having given the plaintiff notice of its intent to terminate the lease agreement and the plaintiff's tenancy within the subject premises on December 31, 2011.

Law

In order to obtain a temporary injunction, the plaintiff must demonstrate the following:  1) likelihood of success on the merits;  2) imminent, substantial and irreparable injury;  3) lack of an adequate remedy at law;  and 4) that a balancing of the equities favors the granting of the injunction.  Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 457–58 (1985).  “The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted.   Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm.”   Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001).

“Whether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered.”  (Internal quotation marks omitted.)  Patry v. Board of Trustees, 190 Conn. 460, 472, 461 A.2d 443 (1983);  Burroughs Wellcome & Co. v. Johnson Wholesale Perfume Co., 128 Conn. 596, 604–05, 24 A.2d 841 (1942).  “A remedy at law, to exclude equity jurisdiction, must be as complete and beneficial as the relief in equity.”   Berin v. Olson, 183 Conn. 337, 342 (1981);  Beach v. Beach Hotel Corporation, 117 Conn. 445, 453, 168 A. 785 (1933);  Winestine v. Rose Cloak & Suit Co., 93 Conn. 633, 638, 107 A. 500 (1919).

Since the plaintiff herein is seeking a mandatory injunction, its burden is even greater.   It must meet a higher standard than in the ordinary case by showing “clearly” that he is entitled to relief or that “extreme or very serious damages” will result from a denial of the injunction ․ [t]his heightened showing is also required where the issuance of the injunction would provide the movant with substantially all the relief he or she seeks and where the relief could not be undone, even if the non-moving party later prevails at trial.  (Internal citations omitted;  internal quotations omitted.)  Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650 (2004).

“A mandatory injunction ․ is a court order commanding a party to perform an act.”  Tomasso Bros., Inc. v. October Twenty–Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994).  “Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances ․ Ordinarily, an injunction will not lie where there is an adequate remedy at law.”  (Citation omitted;  internal quotation marks omitted.)  Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982);  accord Harvey v. Daddona, 29 Conn.App. 369, 377, 615 A.2d 177 (1992) (“Injunctions should not be issued when damages can adequately protect the injured party”).  “Adequate remedy at law means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely, without let or hindrance.”  Wheller v. Bedford, 54 Conn. 244, 249 (1886).   If the plaintiff has an adequate remedy at law, he is not entitled to an injunction.  Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183 (1916).

“[I]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction.”  (Internal quotation marks omitted.)  Wallingford v. Werbiski, 274 Conn. 483, 494, 877 A.2d 749 (2005).  “Where the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, it may be held inequitable to grant a mandatory injunction and the plaintiff may be remitted to her remedy by way of damages.”  Moore v. Serafin, 163 Conn. 1, 6–7, 301 A.2d 238 (1972).

We have repeatedly held that the issuance of an injunction rests in the sound discretion of the trial court.  O'Neill v. Carolina Freight Carriers Corporation, 156 Conn. 613, 618, 244 A.2d 372 (1968);  Taylor v. Conti, 149 Conn. 174, 181, 177 A.2d 670 (1962);  Adams v. Greenwich Water Co., 138 Conn. 205, 83 A.2d 177 (1951).

Connecticut General Statutes § 47a–43(a):  Entry & Detainer

As to the plaintiffs' claim for forcible entry and illegal lockout and detainer, the plaintiff cites to General Statutes § 47a–43(a), which provides:  “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”  Conn. Gen.Stat. § 47a–43(a).

“The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property.   This process is for the purpose of restoring one to a possession which has been kept from him by force ․ for a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry ․ [General Statutes § ]47a–43 was made to protect a person in such possession ․ from disturbance by any but lawful and orderly means.”  (Citations omitted;  internal quotation marks omitted.)  Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987).

“Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land ․ The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact.”  (Internal quotation marks omitted.   Internal citations omitted.)  Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn.App. 517, 520, 772 A.2d 154 (2001).   Continuous presence is not required, but there must be evidence of actual physical control, with the intent and apparent purpose of asserting dominion.”   (Internal quotation marks omitted.)  Fleming v. City of Bridgeport, 284 Conn. 502, 512–13, 935 A.2d 126 (2007).

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 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).

FINDINGS OF FACT

1.  The Plaintiff operates a child early learning center on the subject premises;

2. The lease term was for a one-year term and automatically renewable for successive one-year terms;

3.  The agreed upon yearly rental payment was One dollar;

4.  The subject premises is 73 Rockwell Avenue, Bloomfield, Connecticut;

5.  The agreed and acknowledged purpose of the plaintiff's possession was for the use of the premises as a child early learning center;

6.  The subject premises is municipal property;

7.  The plaintiff serves approximately eighty-six children and their families;

8.  The plaintiff receives state and federal grants for the operation of its business;

9.  The state and federal grant funds are delivered to the defendant Town of Bloomfield;

10.  The lease agreement between the parties obligates the defendant to maintain and repair as necessary the heating, ventilation, utilities and other equipment with the subject premises;

11. The defendant and the plaintiff have been recently cited by the regional health district for health code violations based on a failure to provide adequate heat to the occupants;

12.  Winter Storm Alfred caused an electrical outage in the premises leading to severe flooding within the basement of the subject premises;

13.  The basement flooding caused the municipal building official to advise preventing further occupancy of the premises based on concerns surrounded the exposure of electrical systems within the subject premises to large amounts of water;

14.  The building official “placarded” the premises, ordering no further occupancy;

15.  The subject premises have been chained and padlocked, preventing entry by the plaintiff;

16.  To date, minimal efforts have been made by the defendant to restore the premises to the premises to a condition adequate to pass inspection by appropriate officials to allow its use for its contracted purpose;

17.  The defendant has given the plaintiff written notice of its intent to terminate the lease and have the plaintiff vacate the premises as of December 31, 2011.

Exhaustion of Administrative Remedies

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.  Connecticut Life & Health Ins. Guaranty Ass'n. v. Jackson, 173 Conn. 352, 358–59, 377 A.2d 1099 (1977).”  (Internal quotation marks omitted.)  Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989);  see also Pet v. Dept. of Health Services, 207 Conn. 346, 350–51, 542 A.2d 672 (1988);  Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987);  Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987);  LaCroix v. Board of Education, 199 Conn. 70, 78–80, 505 A.2d 1233 (1986).   The exhaustion doctrine “reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment.”  Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980).   It also “relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.”  Owner–Operators Independent Drivers Ass'n. of America v. State, 209 Conn. 679, 692, 553 A.2d 1104 (1989).

Here, the defendant claims that the plaintiff was required to appeal to the relevant municipal and state boards and officials before seeking injunctive relief and that the plaintiff's failure to do so deprives this court of subject matter jurisdiction.

“Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim ․ [B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.”  (Internal quotation marks omitted.)  Neiman v. Yale University, 270 Conn. 244, 251, 851 A.2d 1165 (2004). ).  “We note at the onset that ․ a claim that this court lacks subject matter jurisdiction [may be raised] at any time.   Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ The objection of want of [subject matter] jurisdiction may be made at any time ․ and the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings ․ If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.”  (Internal quotation marks omitted.)  Dowling v. Slotnik, 244 Conn. 781, 787–88, 712 A.2d 396, cert. denied sub nom Slotnik v. Considine, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998).

The plaintiff counters that the plaintiff had no notice of its right to appeal and accordingly should not be required to pursue remedy in that manner.

“It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.”  O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429;  see, e.g., Labbe v. Pension Commission, supra, 229 Conn. 814;  Kosinski v. Lawlor, 177 Conn. 420, 425, 418 A.2d 66 (1979).   “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed ․ We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if:  recourse to the administrative remedy would be futile or inadequate ․ or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm.”  (Citation omitted;  internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005);  Levine v. Sterling, 300 Conn. 521, 528 (2011).

This court holds based on the evidence presented, that the “exhaustion doctrine” is inapplicable in this action.   In the present case, the plaintiff does not seek review of adverse action taken by a building official;  rather they seek an order requiring the defendant to remedy the situation that led to the involvement and adverse action of the building official.   It would be inequitable and frustrate the public policy of building, zoning, fire and health codes if a property owner could “hide behind” a closure order or “placarding” of a premises by an official as a basis for refusing to meet a legal obligation.

Discussion

Likelihood of Success on the Merits

Based on the testimony and exhibits submitted, this court is persuaded that the plaintiff has a likelihood of success on the merits as to Count Four of its First Amended Complaint, premised on the defendant having violated the provisions of the operative lease agreement relating to the maintenance and repair of the subject premises to keep it on good working order as a child early learning center.

Irreparable Harm

This court finds that the plaintiff has demonstrated the potential for irreparable harm in the absence of the requested injunctive relief.   The testimony and exhibits clearly establish not only severe monetary loss to the plaintiff, but the immediate impact that continued dispossession would have on its very existence, not simply its ability to operate in the short-term.

Lack of Adequate Remedy at Law

The plaintiff has proven that an action for monetary damages is an inadequate remedy at law.   For the reasons previously stated, the defendant's continued delay in failing to provide the premises as contractually obligated in the lease agreement has not only immediate financial implications for the plaintiff, but long-term consequences that jeopardize its ability to operate at all.   Additionally, there is no adequate remedy at law for the low and moderate income children and families who have been educationally, socially and financially displaced as a result of the continued dispossession.

Balancing of the Equities

The court, in balancing the equities, finds that the expenditure of certain sums for permanent or temporary heating systems are not overly burdensome on the defendant when compared to the potential losses to the plaintiff and the losses to the clients served by the plaintiff.   Even when considered in the context of the plaintiff's potential future displacement through a summary process action for possession of the premises, expenditures for sums related to bring the heating and electrical systems in compliance with applicable health, fire and building codes, when compared with the potential harm to the plaintiff and its “customers” tips the scale in favor of the injunctive relief requested.

Conclusion

The Court, considering law and equity, grants the plaintiff's motion for temporary injunction and orders the following injunctive relief.

Order

The Court orders the defendant, the Town of Bloomfield, Connecticut:

1.  To restore the Plaintiff, Bloomfield Early Learning Center, to possession of the subject premises previously occupied by it at 73 Rockwell Avenue, Bloomfield, Connecticut, and to remove all locks and other obstacles which prevent the plaintiff from regaining possession of the premises;  and

2.  Make any and all repairs as necessary, as stated in the lease agreement, including the evacuation of water and/or hazardous liquid substances, the provision of heating, ventilating, air conditioning, utilities, hot water, natural gas, electricity, telephone and communications equipment, to restore and preserve the subject premises in a clean, safe and sanitary condition fit for use as a child early learning center, in compliance with all state and municipal applicable health, fire and building codes for such facilities;  and

3.  The above-referenced repairs must be completed by the Defendant by December 23, 2011;  or

4.  The Defendant, Town of Bloomfield must provide an alternative space for the Plaintiff to conduct the business for which it bargained with the Defendant, namely a child early learning center.   This alternative space must be in compliance with all applicable state and municipal health, fire and building codes for such facilities.   This alternative space must be available for the possession and use of the plaintiff for the purposes specified in the lease by December 16, 2011;

5.  This Order remains in effect until the Court dissolves the temporary injunction, issues a permanent injunction, or until the conclusion of a summary process action in the defendant's favor, whichever comes first.

The matter will be scheduled for a future date to assess the defendant's compliance with this Court's orders on the temporary injunction, as well as a future hearing on the plaintiff's request for a permanent injunction.

By the court

Hon. Vernon D. Oliver

November 25, 2011

Oliver, Vernon D., J.