LLC v. Paulette Payne Hill dba Underground Kutz and Cehj (2013)

MEMORANDUM OF DECISION

This is an action by the plaintiffs relating to commercial premises (hereinafter referred to as the “subject premises”) located at 444 Farmington Avenue, first floor, Hartford, Connecticut.

The plaintiffs assert, pursuant to a one-count complaint, breach of written monthly leases based upon nonpayment of rent.   The plaintiffs further claim attorneys fees pursuant to the lease agreements.   The defendant's answer denies certain of the allegations and asserts a special defense regarding the tenantability of the premises.

On April 26, 2013, the 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.

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

Breach of Contract

The plaintiff argues that the defendant owes 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).

“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).

“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).

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).

Mitigation of Damages after Termination of Tenancy

Connecticut law is clear that “[i]n an action for rent due, a lessor of commercial property is generally under no obligation to mitigate his damages after the lessee fails to pay rent.  White v. Miller, 111 Conn. 53, 58, 149 A. 237 (1930).   Such an obligation arises only if the lessor manifests an intent to terminate the tenancy either by taking an unequivocal act showing this intent or by bringing an action for damages based on the tenant's breach of contract.  Sagamore Corp. v. Willcutt, 120 Conn. 315, 318, 180 A. 464 (1935).”  Dewart Building Partnership v. Union Trust Co., 4 Conn.App. 683, 687, 496 A.2d 241 (1985).   In other words, “[w]hen the lessee breaches a lease for commercial property, the lessor has two options:  (1) to terminate the tenancy;  or (2) to refuse to accept the surrender ․

Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease.   Under this course of action, the landlord is under no duty to mitigate damages ․ When the landlord elects to terminate the tenancy, however, the action is one for breach of contract ․ and, when the tenancy is terminated, the landlord is obliged to mitigate his damages.”  (Citations omitted;  internal quotation marks omitted.)  K & R Realty Associates v. Gagnon, 33 Conn.App. 815, 819, 639 A.2d 524 (1994).

“The duty to mitigate damages [does] not require the plaintiff [landlord] to sacrifice any substantial right of its own ․ or to exalt the interests of the tenant above its own ․ It [is] required to make reasonable efforts to minimize damages.   What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier ․ [T]he general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed ․” (Citations omitted.)  Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980).

FINDINGS OF FACT

1. The plaintiff and the defendant entered into a written three-year lease agreement for the first floor of the subject premises (Plaintiff's exhibit 1);

2. The lease term commenced on March 1, 2011 and terminated February 28, 2014;

3. Pursuant to the aforementioned leases, the defendant accepted the premises in their current condition.   Further, the defendant agreed to bear responsibility for the electricity, telephone and heat within the subject premises.   Finally, the defendant agreed to pay the plaintiffs' attorneys fees related to enforcing the lease (Exhibit 1);

4. The agreed upon monthly rental was one thousand three hundred ($1,300.00) dollars for the first floor within the subject premises (Exhibit 1);

5. The defendant provided oral notice to the plaintiff of her intent to vacate the premises;

6. The defendant asked the plaintiff to sign a release from plaintiff's lease contract on September 28, 2011 which plaintiff refused;  (Exhibit B);

7. The defendant failed to pay rent for the months of October, November and December 2011;

8. The defendant failed to pay rent for the months January, February, March and April 2012;

9. The defendant vacated the first-floor unit on October 1, 2011;

10. The plaintiff testified that he advertised the premises for rent in the newspaper.

11. The plaintiff seeks back rent, interest and attorneys fees.

The Court finds the plaintiff has proven their case by a fair preponderance of the evidence.

The Court finds that the plaintiff did make reasonable efforts to mitigate his damages.

Special Defenses

The defendant asserts that she should not be held liable for the entirety of the unpaid rents as the premises were uninhabitable.   Evidence was presented that some of the conditions occurred in 2008 prior to the execution of the current lease.   Additionally, the conditions presented within the premises did not render the premises untenantable as related to commercial tenancies.

Accordingly, the court finds that the defendant has failed to establish her special defense by a fair preponderance of the evidence.

Ruling

As to the sole count, the court finds that the plaintiff has established the defendant's default under the lease agreement.   Accordingly, this court finds for the plaintiff as against PAULETTE PAYNE HILL dba UNDERGROUND KUTZ and CEHJ the following damages:

Damages:

Unpaid rent (October, November, $3,900.00

December 2011 at $1,300.00

Unpaid rent:  January, February, March, $5,200.00

April 2012 ($1,300.00 per month)

$9,100.00

Fees and Costs

Attorneys Fees $ 500.00

Total Judgment:  $9,600.00

Payment of Judgment is ordered by June 4, 2013.   Payment is to be made to Plaintiffs' attorney as trustee for the plaintiffs.

The Plaintiffs' attorney is located at:

Kevin Carroll, Trustee

Law Offices of Kevin Carroll

597 Farmington Avenue

Hartford, CT 0610

By the Court

Hon. Kathleen McNamara

McNamara, Kathleen E., J.