NECG v. Saud Alkulaib (2013)

MEMORANDUM OF DECISION

INTRODUCTION

The instant action was filed on May 23, 2012 seeking immediate possession of the property at 47 Wolcott Road, Wolcott, Connecticut.   The matter was filed by NECG Holdings who entered into a Unitary Lease and Net Sublease Agreement dated April 12, 2012 between Getty Properties Corp. and NECG Holdings Corp. (Plaintiff's Exhibit 5.) This lease agreement consists of a Schedule A of the Properties which includes 47 Wolcott Road, Wolcott, Connecticut.   Getty Properties Corp. is the lessor of the property.  (Exhibit 321 G.) Getty Properties Corp. has been the lessor since 1983.   On November 2, 2000, Getty leased the property at 47 Wolcott Road, Wolcott to Getty Petroleum Marketing, Inc. (GPMI) through a Master Lease (Exhibit 1).   GPMI subleased the property to Green Valley Oil, LLC (GVO) (Exhibit 2) Green Valley Oil entered into a sub sublease with the defendant, Saud Alkulaib, defendant in this action.   The defendant operates a retail service station.   The matter was assigned to the complex litigation docket on July 18, 2012 with 34 other actions that involve the same plaintiff and similar issues.¹  The plaintiff seeks to take possession of the property which had been sub subleased to the defendant.   The plaintiff contends the sub sublease was terminated as a result of the termination of the Master Lease and leases under the Master Lease including this leased property, the termination of the lease between GPMI and GVO, the termination letter from GVO to the defendant and the order of the Bankruptcy Court confirming termination of the lease between Getty and GPMI for failure to meet the obligations of the Master Lease.   This order was dated April 30, 2012 and the GVO termination letter effectuating termination with the defendant as of April 30, 2012.

This court conducted hearings on January 24, January 25, February 4 and February 5, 2013.   The parties were permitted an opportunity to file post-trial briefs by February 28, 2013.   The plaintiff filed a post-trial brief in accordance with this order and the defendants filed a brief dated February 28, 2013 on March 1, 2013.   The plaintiff and defendants filed reply briefs on March 5, 2013.²

FINDINGS OF FACT

The plaintiff NECG Holdings leased the commercial premises from Getty Properties Corp. Getty Properties Corp. (Getty) is the lessor of the property at 47 Wolcott Road, Wolcott, Connecticut.   This property and a number of other service station properties were leased to Getty Petroleum Marketing Inc., (“GPMI”) pursuant to a Consolidated Amended and Restated Master Lease (“Master Lease”) from Getty (Exhibit 1).   The Master Lease agreement is dated November 2, 2000.   The lease between Getty and GPMI provided that Getty could terminate the lease, among other causes, upon GPMI's failure to pay rent.   This lease also provided that any sublease would terminate automatically upon termination of the Master Lease.  (Exhibit 1, §§ 1.59 and 16.3.)   GPMI thereafter entered into subleases for all of the properties.   GPMI entered into a lease with Green Valley Oil, LLC (“GVO”) for a number of these sites which it listed as Exhibit C to the Sublease.  (Plaintiff's Exhibit 2.) The sublease includes 47 Wolcott Road as site # 687 for sublease.  (Exhibit A and C to Plaintiff's Exhibit 2.) GVO in turn entered into a sub sublease with Saud Alkulaib for the property at 47 Wolcott Road, site # 687.  (Stipulation entered into at Trial, January 24, 2013 Tr. at 87:7–25.)

The sublease between GPMI and GVO contains a provision that refers to the Master Lease, Paragraph 36.   It provides that the “[t]enant acknowledges that Landlord derives its interests in the Premises pursuant to the terms of the Master Lease and certain Third Party Subleases (the “Over Leases”) ․ If any of the Over Leases terminates, the Sublease shall terminate with respect to any Sites affected ․” (Exhibit 2.)

The lease agreement between GVO and the various retail service stations provided that the lease was subordinate to and would terminate upon the termination of Getty's lease with its lessee.   In other words, the lease between GVO and Saud Alkulaib would terminate if the lease with the original lessor terminates.  (Stipulation, January 24, 2013 Trial Transcript at 87:26, 88:7.)

In August 2011, Getty and GPMI had a legal dispute as a result of the failure of GPMI to pay rent in accordance with the terms in the Master Lease.   The parties became involved in a legal action in New York as a result of the failure to meet the obligations of the Master Lease.   The New York court set a deadline until November 2011 to cure this nonpayment.   GPMI failed to make a timely payment of rent for November 2011 and failed to cure the default by the deadline date set by the New York court.   As a result of the failure to meet its rent obligation, Getty served notice of termination of the Master Lease effective December 22, 2011.  (Exhibits 400 and 400A.) ³

GPMI filed bankruptcy on December 5, 2011 and the action was temporarily stayed as a result of the filing of bankruptcy.

As GPMI was involved in the legal dispute with Getty, GVO stopped paying rent due under its lease agreement with GPMI for December 2011.   On December 22, 2011 a notice of default was served by GPMI to GVO with a date of January 6, 2012 for termination if the default was not cured.   GVO failed to cure and on January 7, 2012 GPMI issued a notice of termination of the sublease as of January 9, 2012.

As a result of the action filed in the Bankruptcy Court, the parties, GPMI and GVO, entered into a January 24, 2012 stipulated agreement for unpaid rent and an agreement by GVO to vacate the property by March 31, 2012.  (Exhibit 203.)

By letter dated April 18, 2012 GVO notified the defendant that the Underlying lease agreement was terminated as of April 30, 2012.  (Trial Stipulation.)   The notice indicated in part:  “The leased marketing premises (the “Station”) being leased to you is subject to the terms of a Master Lease, which Master Lease is subject to a more restrictive Underlying Lease.   As of April 30, 2012, the Underlying Lease will terminate, resulting in the termination of the Master Lease.”

Prior to this notice by GVO, on April 2, 2012 when the Bankruptcy Court entered orders, GPMI entered into a Stipulation in the Bankruptcy Court which set the effective date for the rejection of the Master Lease as April 30, 2012 at which time the Master Lease shall be deemed terminated and the debtors relinquish possession of the premises.  (Exhibit 205.)   On April 30, 2012, the U.S. Bankruptcy Court for the Southern District of New York issued an Order Rejecting the Master Lease with Getty Properties.  (Exhibit 207.)   The Rejection Order provided, “Effective as of the Rejection Date, as set forth in the Stipulation, without further action or proceeding or order of this Court, the Debtors shall relinquish possession of and deliver the Premises to Getty Properties or as Getty Properties directs, free and clear of all liens and encumbrances.”   Prior to the April 30, 2012 rejection order date, the owner of the property, Getty Properties Corp. offered a revocable license to the defendant for the property.  (Exhibit 321 D.) The defendant did not accept the offer but continued to remain in possession of the property.

On May 16, 2012, the plaintiff served a notice to quit on the defendant by serving in hand upon Saud Alkulaib Mohammad, person in charge at the commercial establishment at 47 Wolcott Road, Wolcott, Connecticut for the defendant Saud Alkulaib the Notice to Quit. (Exhibit 321 F.) The notice included a description of the reason for the notice to quit, the address and a date of May 22, 2012 to quit the premises.

The defendant has failed to terminate its occupancy of the premises and remains on the property to this date.

DISCUSSION

This action is a claim for summary process pursuant to C.G.S. § 47a–26d.   “Summary process is a special statutory procedure designed to provide an expeditious remedy ․ It enable(s) landlords to obtain possession of leased premises without suffering the delay, loss and expenses to which, under the common-law actions they might be subjected by tenants wrongfully holding over their terms ․ Summary process statutes secure a prompt hearing and final determination ․ Therefore, the statutes relating to summary process must be narrowly construed and strictly followed ․” (Citations omitted;  internal quotation marks omitted.)  Young v. Young, 249 Conn. 482, 487–88, 733 A.2d 835 (1999).  Gen.Stat. § 47a–26d states:  “If, on the trial of a summary process complaint it is found that the defendant is the lessee of the complainant and holds over after the termination of the lease or rental agreement or, if there was no lease or rental agreement, that the defendant is the occupant of such premises and has no right or privilege to occupy the same and that notice to quit has been given as provided in this chapter, yet that the defendant holds possession or occupancy after the expiration of the time specified in the giving of the lease or rental agreement, if any, or if the defendant does not show a title in himself existing at the time the notice to quit possession or occupancy was served upon him, the court shall forthwith enter judgment that the complainant recover possession or occupancy of the premises with his costs, and execution shall issue accordingly subject to the provisions of sections 47a–35 to 47a–41, inclusive.”

General Statute § 47a–23(a) governs summary process actions and provides in pertinent part:  “When the owner or lessor ․ desires to obtain possession or occupancy of any land or building, any apartment in any building, [or] any dwelling unit ․ and (1) when a rental agreement or lease of such property whether in writing or by parol, terminates for any of the following reasons:  (a) By lapse of time;  (b) by reason of any expressed stipulation therein, ․ (E) nonpayment of rent when due for commercial property;  ․ (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated ․ such owner or lessor ․ shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit ․” General Statutes § 47a–23(b) also directs that a notice to quit shall include the reasons that the lessee or occupant must quit the premises, using statutory language or words of similar import ․”

The plaintiff contends that summary process is the appropriate procedure and argues that there are at least three bases for this court to grant the summary process and return possession of the property.   The failure of GPMI to pay rent for the properties in accordance with the Master Lease began the process of termination.   This failure was followed up with the filing of bankruptcy and the agreements that followed thereafter, in particular, the Rejection Order.   Additionally, the separate and unconnected failure of GVO to pay rent in January 2012 was a basis to find default of the lease between GPMI and GVO which subjected the service station leases to termination in accordance with the leases between GVO and the retail service stations.   Lastly, GVO gave notice of termination of the lease to each of the retail service station dealers who are defendants.   Based upon each of these events separately and together the plaintiff contends the court should find that C.G.S. § 47a–23 permits a summary process action that results in a determination that the defendant has no legal right to remain on the property.

The defendant in its post-trial briefs states that the plaintiff has failed to satisfy its burden of proof.   The defendant challenges every aspect of the evidence introduced by the plaintiff in support of this action beginning with the title to the property, to the lease agreements that it contends are not complete and then focusing their argument on the claim that the Bankruptcy Stipulation and the Rejection Order do not affect the rights of the defendant retail service station operator.

Much of the argument by the defendant challenges the legality of the termination of the lease by other parties, that is, GPMI and GVO. Although impacted by these defaults, the defendant was not a party to these defaults.   However, the sub sublease agreement is contingent upon the legality of the over leases.

The defendant has raised some ancillary issues and incorporated a number of special defenses to the claim for summary process.   The court will address each in the context in which they have been argued by the defendant.   Some of the arguments have already been decided by this court in the Memorandum of Decision issued on January 13, 2013.

TITLE TO THE PROPERTY

The first element of this action for summary process is a determination that the plaintiff is the owner, lessor of the property in question.   Getty Properties Corp. (Getty) has provided testimony and evidence that it is the lessor of the property at 47 Wolcott Road, Wolcott Connecticut.  (Trial Testimony of Shea, January 24, 2012, Plaintiff's Exhibit 321 G.) ⁴

A). The subject property is part of the Unitary Lease that was entered into with NECG Holdings, LLC after the Rejection Order entered in the bankruptcy action.  (Exhibit 5.) On November 2, 2000, Getty entered into a Master Lease for a number of properties with Getty Petroleum Marketing, Inc. (“GPMI”).  This lease also lists each of the properties that are subject to the Master Lease and the GPMI sublease 47 Wolcott Road, Wolcott listed as property # 687.   The Notice of Termination for the November 2, 2000 Master Lease contains a listing of all properties that were subject to the Master Lease.  (Exhibits 400 and 400A.) This again listed the property of 47 Wolcott Road # 687.

Additionally, the defendants have included for purposes of their special defenses a Second Amended Complaint dated September 12, 2012 filed in the United States District Court Civil Action No. 3:12 cv–00474 (AWT), in which they state:  “It is understood that the properties are owned, or were owned by Getty Properties Corp. or Getty Realty Corp. which leased the properties to Getty Petroleum Marketing, Inc.” (Second Amended Complaint, ¶ 10.)

The plaintiff has satisfied its burden of proof that it is the lessor of the property at 47 Wolcott Road, Wolcott, Connecticut and thus it has satisfied the first element of the summary process action.

NOTICE TO QUIT

A lease is terminated only by a valid notice to quit.  Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 134, 561 A.2d 1365 (1989).  General Statutes 47a–23(b) states:  The notice shall be in writing substantially in the following form:  “I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit ․ ) now occupied by you at (here insert the address ․ ) on or before the (here insert date) for the following reasons (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice) ․”

In the present action, the notice to quit, dated May 14, 2012 ordered the defendant to quit the premises because the right or privilege to occupy such premises had been terminated.  (Plaintiff's Exhibit 321 F).⁵  The notice further identifies the property and the date of May 22, 2012 as the date to end possession.   The notice was served in hand to Saud Alkulaib Mohammad, person in charge at the time of service for the within named defendant, Saud Alkulaib at the commercial establishment affected by this Notice to Quit located at 47 Wolcott Road, Wolcott, Connecticut.  (Exhibit 321 F.)

The defendant does not argue that the notice to quit does not satisfy the criteria outlined in the statute nor does the defendant argue that the notice is legally insufficient.   The defendant did raise the issue as to the original signature of counsel on the notice in their motion to dismiss, and this court has ruled on this argument in the Memorandum of Decision dated January 23, 2013.   The defendant has not raised any new arguments that would change the decision denying the motion to dismiss.

Accordingly, the court concludes that the notice to quit complied with the statutory requirements and formed a valid basis for the plaintiff's summary process action.

TERMINATION OF RIGHTS OR PRIVILEGE TO OCCUPY

As noted above, the plaintiff has argued that there are three separate events that the plaintiff interprets as a default of the lease agreements which support the summary process action.   The defendant has argued that it has the right to occupy the property pursuant to the lease agreement entered into with GVO. The defendant contends that the termination of the Master Lease and the subleases as well as the Bankruptcy Rejection Order have no impact on its right to occupy the premises.   The defendant has set forth a multitude of arguments in its post trial briefs including a number of special defenses.   However, as noted below, the defendant provided little support for its positions.

Putting aside the issues raised by the defendant as to the Bankruptcy action having no impact on the defendants' right to possession, the summary process issues can be determined based upon an application and interpretation of the Master Lease to the sublease and the sub subleases with the defendant.   A consistent provision with each of the lease agreements is the termination of possessory rights upon a default by any of the parties to the stream of leases following the Master Lease.   Under the terms of the Master Lease, if there is a failure to meet the obligations set forth in the Master Lease it results in a termination of the lease.   All subleases that follow in the stream of leases are also terminated.  (Exhibit 1 Section 16.3.)   The same is true for the lease with GPMI and GVO. (Exhibit 2 Section 36.)   The last lease in the series of subleases to this defendant contains a similar provision that if the lease under which the company (GVO) holds the Station is canceled or terminated, its lease shall be automatically canceled.  (Trial Stipulation.)

In its post trial brief the defendant offers no additional evidentiary support for its original claim that the termination of the Master Lease agreement does not terminate its right to possession.   Instead the defendant argues that the Master Lease which was admitted as an Exhibit during the hearing in support of the plaintiff's claims did not contain the attachment of properties to prove that the instant property is subject to the Master Lease.   The defendant argues the court should give no weight to the document.   The defendant further contends that the testimony of Mr. Shea or others are not credible and thus the plaintiff falls short of proving the elements for a summary process.   The defendant has focused this argument very narrowly to the Master Lease.   (Exhibit 1.) The defendant contends that without the attachments included within the exhibit, it violates the best evidence rule.   Again this is a narrow interpretation of the law by the defendant.   In Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 9, 10, 513 A.2d 1218 (1986), the court determined that the original documents or duly certified copies are not always required pursuant to the “best evidence” rule.   The court went on to analyze the rule that it rejected as a mandatory requirement.   Instead the court looked to the facts of the action to determine if there is a necessity for the production of the original records.   It stated that oftentimes when there is a question of fraud or a situation where the variation in words may create a great difference of rights it is necessary to produce the original.   But the court looked to other factors such as the availability of the records to be examined by the defendant or the nature of the records in determining that the original records were not necessary when the court had an affidavit of the individual responsible for the records as well as testimony from a witness competent to testify in the matters.   The court also referred to the fact that this rule should not be considered exclusionary but instead only preferential.   Viewing the testimony in this action as well as the complete set of exhibits, there is no basis to discredit that the testimony of Mr. Shea or to determine the exhibit is unreliable so as to preclude it from admission.   In short, this is not an action where there is any question of fraud or a questionable change in the language or description of the original records.   It is clear from the language of the Master Lease that there are multiple properties involved.   The testimony of Mr. Shea, who handles the leases, did not waiver that this property and all of the properties owned in various locations by the plaintiff are subject to the Master Lease.   Mr. Shea has been employed with Getty Properties since 1984.   In 1994 he began working with the real estate and acquisitions.   From 2000 to the present time he has been responsible for asset management and acquisitions.   He testified that he is familiar with the Restated Master Lease.  (Exhibit 1.) He has been in charge of compliance for Getty and is familiar with the tenants under the Lease.   The plaintiff provided convincing evidence that connected the Master Lease and the multitude of properties in the submission to the Site and Facilities Sublease between GPMI and GVO. (Exhibit 2.) The Site and Facilities Sublease provides a series of definitions which includes the “premises,” “Master lease” and “Sites” that incorporates a lengthy list of all of the properties as referred to in the testimony of Mr. Shea. The definition of “Sites” in the agreement is the “approximately two hundred fifty-four (254) real estate premises which Landlord leases from Prime Landlord and which are more particularly described on Exhibit A attached hereto and made a part hereof.”   The Exhibit includes the property at issue.   The defendant's argument that the property in question has not been properly identified is rejected by this court.

The defendant next argues that the language which is contained in the subleases is misapplied by the plaintiff and the defendant's right of possession is not contingent upon the terms of the Master Lease or sublease between GPMI and GVO. An examination of the series of leases beginning with the Master Lease and focusing on the impact to the provisions within the lease between GVO and the defendant does not lead the court to this conclusion․  The long standing principle of contract interpretation that “[t]he intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.”  (Internal quotation marks omitted.)   Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109, 900 A.2d 1242 (2006).   A lease is a contract.   In its construction, three elementary principles must be kept in mind:  “(1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument;  (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended;  [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.”  (Citations omitted;  internal quotation marks omitted.)  Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 8, 931 A.2d 837 (2007).   Similarly, any ambiguity in a [lease] must emanate from the language used in the [lease] rather than from one party's subjective perception of [its] terms.”  (Internal quotation marks omitted.)   Connecticut Light & Power Co. v. Lighthouse Landings, Inc., supra, 279 Conn. 10.   Beginning with the Master Lease that is referred to in the Site and Facilities Sublease, it provides in part:  “Notwithstanding anything to the contrary contained, herein, all Subleases shall be subject and subordinate to the terms and conditions of this Restated Lease (as Restated Lease may be renewed, amended, supplemented, modified, replaced or restated from time to time) and, unless Landlord elects otherwise, shall automatically terminate upon any termination of this Restated Lease.”  (Plaintiff's Exhibit 1, ¶ 16.3.) Thereafter, on April 2, 2009, there was a sublease entered into between GPMI and GVO in which there is a specific provision entitled “Master Lease.”   (Plaintiff's Exhibit 2, Paragraph 36.)   This provision states in part:  “Tenant acknowledges that Landlord derives its interests in the Premises pursuant to the terms of the Master Lease and certain Third Party Subleases (the “Over Leases”) ․ If any of the over Leases terminates, the Sublease shall terminate with respect to any Sites affected provided that if either or both of the Over Leases terminates as a result of a default or breach by Tenant under this Sublease and/or Master Lease, then Tenant shall be liable to Landlord for the damage suffered, subject to Section 14 hereof, as a result of such termination.”   In addition, the sublease states in part:  “This Sublease is subject and subordinate to the Master Lease ․” (Plaintiff's Exhibit 2, Paragraph 20.)   Thereafter, the defendant, Saud Alkulaib entered into Retail Gasoline Station Lease Agreement with Green Valley Oil, Inc. (Trial Stipulation.)   This lease agreement includes paragraph 32 which states:  “If Company is not the owner of the Station, then this lease shall be subject to all of the terms, provisions and conditions of the lease or other arrangement under which the Company holds the Station, and if such lease or other arrangement shall be canceled or terminated, this lease shall be automatically terminated or canceled, without any liability on the part of Company to Lessee.”

Each of the provisions in the agreements from the very first with GPMI has language that terminates the lease if the over lease is terminated.   The language is clear and unambiguous.   The language does not set conditions.   It does not require a review of the rationale.   The language does not leave room to question the legality of the termination but states if the Master Lease (Over Leases) is terminated your lease ends.   The language and the intention could not be any clearer.

Neither GPMI nor Green Valley Oil are challenging the default for failure to pay rent.   Each has accepted the terms of the lease provisions and acknowledged the termination of their right of possession.⁶  Green Valley acknowledged such in its letter to the defendant dated April 18, 2012 in which it states:  “The leased marketing premises (the “Station”) being leased to you is subject to the terms of a Master Lease which Master Lease is subject to more restrictive Underlying Lease.   As of April 30, 2012, the Underlying Lease will terminate, resulting in the termination of the Master Lease.   On or about March 30, 2012, the Company was notified by the owner of Station, which you occupy pursuant to the Franchise, that the owner was terminating discussions with the Company concerning a lease between the Company and the owner.   Accordingly, the Company is unable to secure continued possessory rights in and to the Station after April 30, 2012 and after April 30, 2012, the Company will no longer have the right to grant possession of the Station to you ․” (Trial Stipulation.)

All of the documents are consistent with a finding that the retail stations lease agreement would terminate if the owner or lessor that it leased the property from no longer has possessory rights.   The law also provides a strong support for the conclusion that once either GPMI or GVO loses its possessory rights, the defendant has no possessory rights.  “The right of the sublessee to the possession of the premises, as against the original lessor, terminates with the lease or term of the original lease.   Village Linc v. The Children's Store, Superior Court, judicial district of New Haven, Docket No. 9109–29271 (February 3, 1992, Vertefeuille, J.), aff'd., 31 Conn.App. 652, 626 A.2d 813 (1993);  Ridgewood Road Development, LLC v. Schede, 2002 WL 31888184 at 1, 2 (Conn.Super.Dec. 9, 2002), citing Bargain Mart, Inc. v. Lipkis, supra, 212 Conn. 127.   As “a subtenant holds the premises subject to the performance of the terms and conditions impressed upon the estate by the provisions of the original lease, his rights are generally held to be terminated when the original lessor declares a forfeiture of the original lessee's term based upon the latter's nonperformance of obligations imposed on him.”  (Internal quotation marks omitted.)  Bargain Mart, Inc. v. Lipkis, supra, 212 Conn. 127.   In this light both GPMI and GVO have defaulted on their lease agreements and thus there are no possessory rights available to the defendant.

The defendant next argues that the termination of the original lease within the bankruptcy action was voluntary and thus the sublease is not necessarily terminated.   The defendant relies upon Bargain Mart, Inc. for support of its position that the termination was voluntary and thus the sublease is not terminated with the overlease.   The plaintiff correctly notes the factual distinctions between Bargain Mart, Inc. and the instant action.   In Bargain Mart, the original owners (Malleys) leased the building to G. Harold Welch who thereafter subleased to Outlet Department Store who subleased to Bargain Mart. The sublessee, Outlet Department Store, underwent bankruptcy and rejected the lease.   Years passed and neither Welch nor the Malleys took any action as to the lease with Bargain Mart. They continued to accept rent from Bargain Mart for a period of time after the voluntary termination.   The factual distinctions between Bargain Mart and the instant action are significant.   The plaintiff in the instant action did not sit back and allow the sublease to continue without actively pursuing the termination.   The plaintiff and GPMI were involved in a contentious bankruptcy action.   GPMI had breached its obligations to pay rent and received a notice of termination prior to filing bankruptcy.   The plaintiff had ceased accepting the rent from the defendant and it pursued this summary process action for possession of the property.   The final decision of Stipulation that entered in the Bankruptcy Court as to GPMI was the deciding action in terminating the Master Lease.   The parties were involved in a multi-layer process to finalize and confirm the Rejection Order.   Thus the facts of this action clearly indicate that this was not a voluntary surrender.

The defendant presents an argument that its lease cannot be unilaterally disturbed by a debtor landlord.   In particular, the defendant argued that the Rejection Order upon which the plaintiff relies for a termination of the lease cannot be applied to them.   The defendant refers to Paragraph 21 of the April 2, 2012 Stipulation from the Bankruptcy action as support for this argument.   Even though the court has already addressed the impact of the Master Lease or overleases upon this defendant, the court addresses the bankruptcy argument in order to fully address the arguments and defenses propounded by the defendant.   The Stipulation and Orders of the Bankruptcy Court which were entered into were extensive documents involving well analyzed decisions.   The defendant refers to a portion of ¶ 21 which provides in part:  “Notwithstanding any other provisions herein, this Stipulation and Order is without prejudice to any rights that third party tenants or occupants of the Premises have (if any) as of the date of this Stipulation and Order under applicable law.”   The last sentence of this section which was not included in the defendant's argument states:  “For the avoidance of doubt, it is the position of Getty Properties and the Debtors that such third-party tenants or occupants have no such rights if the Master Lease is rejected or in the event of any Disposition.”   Contrary to the defendant's position, this paragraph does not provide specific terms excluding consideration of their legal rights as part of the Rejection Order.   The Stipulation is an agreement that was entered into as part of the process for a rejection order pursuant to § 365(d) which allows a trustee at any time before the confirmation of a plan to decide whether to assume or reject an executory contract.   This provision of the bankruptcy law allows the trustee to enter a rejection order based upon the ultimate review which is a business judgment criteria.   The defendant argues that the bankruptcy law expressly protects the defendant in this matter and cites to the Paragraph as noted above.⁷  This interpretation is not supported by any substanitive law.   The defendant improperly relies upon In re Minges, 602 F.2d 38 (1979), for the interpretation that the Rejection Order cannot apply to the subtenant who remains in possession for the balance of the lease term.   In fact, the Minges court stands for the proposition that the trustee in the bankruptcy is an overseer of the bankruptcy estate and can determine based upon business judgment whether a rejection order should enter.   There is no provision in the law that gives the tenant unfettered rights to remain on the property for the remainder of the lease term.   Such a finding would severely handicap or impact landlords in a summary process action.   The Minges case was followed by the Orion Pictures Corp. v. Showtime Networks, Inc., 4 F.3d 1095 (2d Cir.1993), in which the court was found to act as an overseer of the bankruptcy estate property to determine if the debtor—in possession should assume the contract or whether it is rejected.   This law gives discretion to the debtor to determine if they will assume or reject.   In the instant action the Stipulations which were entered into by the parties to the bankruptcy do address the clear rejection of the lease in the April 2, 2009 agreement.   The January 24, 2012 Stipulation clearly provides that GVO will vacate the Properties by March 31, 2012.  (Exhibit 203.)   Thereafter, the April 2, 2012 Order, ¶ 4 sets a rejection for the Master Lease as of April 30, 2012 pursuant to section 365(d)(4)(B).  The Stipulation and Order dated April 2, 2012 states:  “Notwithstanding the foregoing or any other provision in this Stipulation and Order, upon the effective date of any rejection of the Master Lease, the Master Lease shall be deemed terminated and the Debtors shall immediately and without further action or proceeding or order of this Court relinquish possession and deliver the Premises to Getty Properties or as Getty Properties shall direct, in the condition required by the Master Lease, free and clear of all liens and encumbrances suffered or incurred by the Debtors ․ If the Debtors fail to so relinquish possession and deliver the Premises to Getty Properties, and in addition to any and all other rights and remedies available to Getty Properties, under the Master Lease, the January 10 Order, this Stipulation and Order, and/or under applicable law, the Debtors agree that Getty Properties shall have all of the following rights and remedies:  (i) to evict the Debtors, and Getty Properties is authorized to present an order to this Court (“Further Order”) on three (3) days' notice to the Debtors, granting Getty Properties (A) the right to immediately evict the Debtors and any and/or all other persons or entities occupying the Premises ․ (ii) in state or other court, to:  (A) obtain and/or enter an immediate judgment of possession, order of ejectment or similar order or judgment ․ in favor of Getty Properties against Debtors and any and all other persons or entities occupying the Premises by summary proceeding ․” (Plaintiff's Exhibit 205.)   Unquestionably, the bankruptcy orders provide the authority for the plaintiff to pursue the rejection order and this summary process to gain possession of the property.   Both GPMI and GVO have recognized the validity of this Rejection Order.   The defendant contends that because it was not a party to the bankruptcy action and did not engage in settlement discussions which resulted in the Rejection Order it cannot be held to the Bankruptcy order and to do such violates its due process rights.   The defendant relies upon the case of Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778 (1975), for its claim of due process violation.   This action is factually and legally distinguishable from Roundhouse which was a challenge to the filing of a mechanic's lien with no notice or opportunity to challenge prior to the filing.   The mechanics lien adversely affected the clear title to the property.   This is not similar to the instant action which is now subject to the lease provisions entered into by the defendant as well as the summary process action which provides notice from the landlord to enforce the provisions of the lease and obtain possession.   The defendant continues to focus the issue on the GPMI lease and loses sight of the very lease it entered into with GVO which provided for termination in the event of a termination of its lease.   The defendant also misconstrues the application of the bankruptcy order which applies directly to the rights of possession of GPMI who has filed the bankruptcy.   The order of the Bankruptcy terminated the right to possession for GPMI as of the April 30, 2012 date.   Once this was accomplished there were no further rights of possession to GVO which in turn acted upon the termination by GPMI under the Rejection Order.   GVO acted upon this termination and sent a notice of the termination from GVO only, dated April 18, 2012, to the defendant consistent with the dates and order of the Bankruptcy court but also consistent with its lease agreement with the defendant.   This termination was followed with a May 3, 2012 letter from Getty Properties who took possession of the property after the Rejection Order.  (Plaintiff's Exhibit 305 E.) This notice of eviction and judgment of possession was based upon the sublease agreements as well as the Bankruptcy orders which set them into motion.

In further argument that the plaintiff does not have an interest in the property, the defendant contends the court should apply the finding in Monarch Accounting Supplies v. Prezioso, 170 Conn. 659, 368 A.2d 6 (1976).   This action found that the tenant's possessory interest prevented use by the landlord who retains only a future reversionary estate.   This argument ignores all other relevant facts and documents which apply to the defendant.   There is no similarity between the court's findings in Monarch and the facts of this action.  Monarch has no application to this summary process.   It was an action by the tenant of a building who discovered that the landlord had leased the roof of the very building it had leased in its entirety to Murphy Inc. for placement of an advertising sign.   The plaintiff filed an action for unjust enrichment and relief from the placement of a sign on the building they leased.   The tenant was also concerned with the structural integrity of placing the sign on the roof and protections to the building.   The court found once the building was leased to the plaintiff the landlord had no authority to lease to another or no authority to enter on the leased property.   In viewing the lease in Monarch, the court notes that the landlord in Monarch had an ownership interest in the property for an undefined period.   It had title to the property.   The owner gave a right to use of the property for a defined term with no conditions for termination.   The lease agreement did not contain terms such as in the instant action which terminated the lease agreement in accordance with the terms of a Restated Master Lease for default and as was carried forward to the lease with GPMI and GVO as well as GVO and the plaintiff.   The facts of the Monarch case involve a landlord that allowed direct and uncompromised interest to one direct tenant.   It is not at all similar to this action where the plaintiff contends that the tenant has no right to the property once there is a default as provided in the Master Lease or the subleases that followed.   In other words, the tenant in Monarch had a right to the complete possession of the property unless the tenant himself defaulted in some manner.   Even if the court agrees that the defendant has what it contends is a possessory interest with a reversionary interest to Getty, its interest cannot be any greater than the possessory interest which was given to GVO in its lease agreement.   GVO was entitled to possession only if they satisfied the terms of the sublease that requires among other conditions the payment of rent and if there was no breach of the Master Lease.   Paragraph 32 of the sub sublease between GVO and the defendant states in part:  “If [GVO] is not the owner of the Station, then this lease shall be subject to all of the terms, provisions and conditions of the lease or other arrangement under which [GVO] holds the Station, and if such lease or other arrangement shall be canceled or terminate, this lease shall be automatically terminated or cancelled or terminated, this lease shall be automatically terminated or canceled, without any liability on the part of [GVO] to Lessee.”   GVO breached the very agreement that gave it possession and thus the defendant who had only GVO's possessory interest also has no valid right to possession of the property.   The defendant is searching for a new cause of action which cannot be found given the facts and restrictions of default and reliance upon Master Leases to these leases and the sub subleases that apply to the retail service stations.

Based upon the above, the lease agreement between GVO and Saud Alkulaib at 47 Wolcott Road, Wolcott, Connecticut terminated and the plaintiff is entitled to immediate possession.

CLAIMS OF EQUITABLE DEFENSES

The defendant indicated prior to the hearing scheduled by the court that they were entitled to judgment in their favor as a result of many claims of equitable defenses.   The court heard argument regarding this claim and indicated that although the law is not clear as to whether and under what limited circumstances the equitable defenses are appropriate for a summary process action that it “is the wiser choice” to allow the defendant to present testimony on the equitable defenses.  (Tr. Transcript Feb. 7, 2013 at 3.) Therefore, the defendant was permitted to present testimony as to its special defenses including the equitable defenses.⁸  The defendant chose to present the testimony of one witness, Mr. Richard Theiling, at the hearing.   Mr. Theiling offered testimony that addressed a licensing agreement and the temporary supply agreement that was offered to the dealers but did not address the lease provisions.   His testimony indirectly referred to the right of first refusal that the defendant has argued is an equitable defense and is addressed below.

Other than Mr. Theiling and the argument before this court regarding the motion to dismiss, the court has not been presented with any supporting testimony or evidence for the various defenses.   Some of the legal claims were made at the time of the motion to dismiss which was decided by this court.   Those rulings remain unchanged without any evidence, testimony or law to this court that provides additional support.

The defendant contends in his post-trial brief that the equitable defenses of waiver, protection under the Petroleum Marketing Practices Act and C.G.S. § 42–133mm apply and preclude a decision by this court to terminate possession in the summary process.   Since the court has determined that the plaintiff satisfied its burden to support the claim for summary process, it will determine whether the defendant has satisfied its' burden as to the defenses.

The defendant argues in its post-trial brief that the dealers obtain the rights of Green Valley Oil and GPMI pursuant to the federal and state law.   Some of these very claims are being pursued in the federal district court.   The defendant's arguments in this regard are not clear.   The defendant claims that C.G.S. § 42–133mm provides it with the right of first refusal.   The language of the statute provides in part:  “(a) When a franchisor intends to sell, transfer or assign to another person the franchisor's interest in a single marketing premises that is not part of two or more marketing premises marketed as a package to sell, transfer or assign more than a single marketing premises, that the franchisee has occupied under a lease, sublease or other grant of authority to occupy such premises, such franchisor shall first:  (1) Make a bona fide offer to see, transfer or assign to the franchisee such franchisor's interests in such single marketing premises;  or (2) if applicable, offer the franchisee a right of first refusal of a bona fide offer made by another acceptable to the franchisor, to purchase such franchisor's interest in such single marketing premises.”   The defendant has raised this as a special defense to the summary process action.   Other than raise this as an issue and provide the testimony of Mr. Theiling as noted above there is no factual and legal basis for the application of this defense to preclude the summary process action.   The defendant has raised this right of first refusal in the action presently being pursued in the federal district court.   The claim has no bearing on the present action of summary process for the right to immediate possession of the property.

Additionally, this argument has been addressed in the Memorandum of Decision dated January 23, 2013.   The January 23, 2013 decision recognized that the federal action is distinct from the present facts.   It involves Green Valley Oil as the defendant and is not an action against the plaintiff to this claim, that is, Getty Realty Properties or NECG.⁹ The federal action also involves damages separate and distinct from the request for possession in this summary process action.   The defendant has not provided additional testimony, evidence or law that would provide any basis to change the court's decision on these issues.¹⁰

Therefore, the defendants have not satisfied their burden as to the special defenses.

CONCLUSION

The plaintiff has sustained its burden of proof on its claim pursuant to C.G.S. § 47a–26d in favor of immediate possession in that, the plaintiff is the owner, lessor of the property, has properly served the notice to quit upon the defendant, and the defendant has no right or privilege to occupy the property as noted above.

The court further finds that the defendant has not sustained its burden of proof on its special defenses.

Accordingly, judgment for immediate possession of the premises is ordered in favor of the Plaintiff because the right or privilege to occupy the premises has terminated.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. During the course of proceeding a number of the original actions have been resolved.   There are presently 29 actions which remain to be decided by this court..  FN1. During the course of proceeding a number of the original actions have been resolved.   There are presently 29 actions which remain to be decided by this court.

FN2. As part of the post-trial briefing the court allowed the parties to set forth their proposed “Findings of Fact.” The defendant did not include proposed findings but only an Argument.   The defendants also indicated that the prior arguments in the motion to dismiss were incorporated..  FN2. As part of the post-trial briefing the court allowed the parties to set forth their proposed “Findings of Fact.” The defendant did not include proposed findings but only an Argument.   The defendants also indicated that the prior arguments in the motion to dismiss were incorporated.

FN3. Exhibit 400A is a list of the properties and includes 47 Wolcott Road as location # 687..  FN3. Exhibit 400A is a list of the properties and includes 47 Wolcott Road as location # 687.

FN4. This exhibit is the 1983 Lease agreement and the 1990 and 2009 modifications and extensions of the lease from Brundage..  FN4. This exhibit is the 1983 Lease agreement and the 1990 and 2009 modifications and extensions of the lease from Brundage.

FN5. C.G.S. § 47a–23(a)(3) provides for possession, “when one originally had the right or privilege to occupy such premises but such right or privilege has terminated ․”.  FN5. C.G.S. § 47a–23(a)(3) provides for possession, “when one originally had the right or privilege to occupy such premises but such right or privilege has terminated ․”

FN6. The defendant argues that the plaintiff has failed to establish that GPMI defaulted in accordance with the provisions of ¶ 18.1.1 and thus there is no termination as to it.   The defendant ignores the Stipulation entered into in the Bankruptcy action as well as the testimony of Mr. Shea as to the failure to pay rent by GPMI to Getty.   This argument also ignore the termination letter of GVO for its failure to meet its obligations.   The defendant also argues that both GPMI and GVO could have litigated the claim in bankruptcy but chose not to do so and thus the settlement is voluntary and cannot disturb the defendant's lease.   This argument ignores the basic rationale for filing bankruptcy, that is, nonpayment of rent which violates the lease agreement.  (Even after negotiating an extended period to pay.).  FN6. The defendant argues that the plaintiff has failed to establish that GPMI defaulted in accordance with the provisions of ¶ 18.1.1 and thus there is no termination as to it.   The defendant ignores the Stipulation entered into in the Bankruptcy action as well as the testimony of Mr. Shea as to the failure to pay rent by GPMI to Getty.   This argument also ignore the termination letter of GVO for its failure to meet its obligations.   The defendant also argues that both GPMI and GVO could have litigated the claim in bankruptcy but chose not to do so and thus the settlement is voluntary and cannot disturb the defendant's lease.   This argument ignores the basic rationale for filing bankruptcy, that is, nonpayment of rent which violates the lease agreement.  (Even after negotiating an extended period to pay.)

FN7. The defendant has also argued that 11 USC § 365(h)(A)(ii) protects its right to possession.   This statute states:  “[T]he lessee may retain its rights under such lease (including rights such as those relating to the amount and timing of payment of rent and other amounts payable by the lessee and any right of use, possession, quiet enjoyment, subletting, assignment, or hypothecation) that are in or appurtenant to the real property for the balance of the term of such lease and for any renewal or extension of such rights to the extent that such rights are enforceable under applicable non-bankruptcy law.”   This argument would not provide a different result of possession given the court's findings as to the application of the termination of the over leases that applied directly to the sub sublease..  FN7. The defendant has also argued that 11 USC § 365(h)(A)(ii) protects its right to possession.   This statute states:  “[T]he lessee may retain its rights under such lease (including rights such as those relating to the amount and timing of payment of rent and other amounts payable by the lessee and any right of use, possession, quiet enjoyment, subletting, assignment, or hypothecation) that are in or appurtenant to the real property for the balance of the term of such lease and for any renewal or extension of such rights to the extent that such rights are enforceable under applicable non-bankruptcy law.”   This argument would not provide a different result of possession given the court's findings as to the application of the termination of the over leases that applied directly to the sub sublease.

FN8. The court entered a ruling on the Motion to Dismiss which addressed some of the claims raised in the special defenses and incorporates the Memorandum of Decision dated January 23, 2013 as to these equitable claims..  FN8. The court entered a ruling on the Motion to Dismiss which addressed some of the claims raised in the special defenses and incorporates the Memorandum of Decision dated January 23, 2013 as to these equitable claims.

FN9. The federal court complaint was provided as Exhibit N in the plaintiff's opposition to the motion to dismiss.   This complaint consists of Nine Counts relating to Green Valley Oil and Cambridge..  FN9. The federal court complaint was provided as Exhibit N in the plaintiff's opposition to the motion to dismiss.   This complaint consists of Nine Counts relating to Green Valley Oil and Cambridge.

FN10. The defendant has also raised the same argument as to the application of PMPA 15 USC § 2802 et seq. which is presently being addressed in the federal court.   The defendant offers no new evidence or law that would support the claim..  FN10. The defendant has also raised the same argument as to the application of PMPA 15 USC § 2802 et seq. which is presently being addressed in the federal court.   The defendant offers no new evidence or law that would support the claim.

Brazzel–Massaro, Barbara, J.