LLC v. LLC (2013)

MEMORANDUM OF DECISION

The plaintiff, Clintonville Associates, LLC (Clintonville), commenced this action on July 16, 2013 to recover possession of the premises known as 398 Clintonville Road, North Haven in a single count based on alleged violations of the provisions of a written lease agreement against the defendant, Marsal, LLC (Marsal).   This commercial summary process matter went to trial commencing on September 10, 2013.

FACTS

The court makes the following findings of fact.   Clintonville is a Connecticut limited liability company, solely owned by Michael Monaco.   Clintonville is the owner of 398–400 Clintonville Road, North Haven.   The property consists of mixed commercial and residential uses with two commercial storefront units to the front of the property and one residential unit to the rear.   The commercial use of the storefront units constitutes a pre-existing non-conformity in a residential R–40 zone under the Zoning Regulations of the Town of North Haven.   The demised premises is the commercial storefront unit designated as 398 Clintonville Road.

On January 27, 2005 the original owners of the property, Frank F. Albarella and Karen C. Albarella, leased the premises to Marsal for a term of ten years, terminating on February 28, 2015.   Marsal is solely owned by Nolasco Saldanha.   At the time the lease was entered into Saldanha was operating a liquor store in the adjacent storefront unit at 400 Clintonville Road pursuant to a lease agreement for a term of ten years which he entered into in 2001.   The lease for 398 Clintonville Road contained the following provision under paragraph two, “Lessee agrees to use Leased Premises for the following purposes only:  Grocery-deli store, during the hours of 5:00 a.m. to 12:00 p.m. Lessee agrees to have the Premises vacated by 1:00 a.m. every morning.”   At the time of trial the parties stipulated that the closing time of 12:00 p.m. was a scrivener's error and the intention of the parties was a 12:00 a.m. or midnight closing time.   Saldanha operated businesses, the liquor store and the grocery-deli, successfully through 2006 but business began to fall off at the grocery-deli during 2007.   As a result he curtailed hours of operation at the store and closed completely during the winter months from December 2007 through February 2008.   The store has also been closed during the same period of time for each succeeding winter since.

Saldanha's original lease for the liquor store premises, 400 Clintonville Road, lapsed by the end of 2011 and he continued on as a month-to-month tenant.   Sometime in early 2013 pipes froze and burst in the liquor store causing extensive damage to both the liquor store and grocery-deli.   As a result the Albarellas, still the owners at that time, notified Saldanha that they did not wish to renew his liquor store lease and they intended to terminate his month-to-month tenancy.   Saldanha closed the liquor store during February 2013 and surrendered possession of 400 Clintonville Road by March 1, 2013.   Some of Saldanha's stock and supplies from the liquor store (several cases of beer and one or two cases of liquor) were moved to the grocery-deli store.   There is no evidence that Saldanha sold alcoholic beverages from the grocery-deli premises or that the beverages stored there were even accessible to the areas of the store frequented by the general public.   At the time of trial counsel for Clintonville advised the court that his client does not contend that Marsal sold alcoholic beverages from the grocery-deli and that such does not form the basis for Clintonville's assertion that Marsal breached the lease agreement.

There is little evidence to indicate that the grocery-deli at 398 Clintonville Road has been open for business since the close of the liquor store on March 1, 2013.   Saldanha testified that he has been open sporadically from that time to the present because business has been poor, he has been tending to his mother's health problems and he has been under extreme stress because of the loss of the liquor store business.   The court heard ample testimony from several witnesses that the grocery-deli has not been open at all during this time period.   Indeed, pictures taken by Monaco of the interior of the store on August 8, 2013 when he entered the premises ostensibly to investigate a safety issue with the electrical service depict a store which has not been open for business for quite some time.   A small amount of canned goods and packaged pasta appear on the shelves as well as the aforementioned cases of beer and liquor stacked in a corner.   In general the store appears in a state of disarray.

On May 31, 2013 the Albarellas sold the property in which the premises is located to Clintonville and executed an assignment of lease to Clintonville.   On June 4, 2013 Clintonville served a pre-termination notice upon Marsal pursuant to the provisions of paragraph 20 of the lease.   The relevant provision of the lease provides that if “[l]essee shall fail to faithfully perform and fulfill any of the covenants, terms and conditions contained in this Lease ․ then, after receiving thirty (30) days written notice specifying said breach of covenant, term or condition;  then this Lease shall, at the option of the Lessor, thereupon be terminated ․” The notice advised Marsal that “you are in default of your obligations under the terms of the lease in that you have failed and refused to use the premises as a grocery-deli store as required by Paragraph 2 of the Lease Agreement.”   Clintonville served a notice to quit on Marsal on July 10, 2013 and subsequently commenced the present action.   Further factual findings are set forth below when necessary to resolve the parties' specific claims.

DISCUSSION

The plaintiff, Clintonville, contends that the defendant, Marsal, is in default of the covenants and the terms of the lease solely on the basis that it has failed to actively operate the grocery-deli.   Clintonville concedes that there is no reported case law in Connecticut with respect to whether or not the lessee of a store is required to actively operate it as specified other than cases interpreting specific operating covenants in commercial leases.   Nonetheless, Clintonville urges the court to divine the intent of the parties and to consider “the existence of any special injury caused to the lessor by the failure of the lessee to operate a store” as indicia of intent, citing A.L.R.3d 971, § 2[a].   In further support, Clintonville cites an Arkansas decision.   See Childs, III et ux v. Goode et al., 261 Ark. 382, 548 S.W.2d 827 (1977).   Clintonville asserts that if the non-conforming commercial use of the premises is discontinued for a period of one year its right to continue the non-conforming use will be extinguished under the North Haven Zoning Regulations.

The defendant, Marsal, asserts two defenses.   First, Marsal contends that it has operated the grocery-deli, albeit sporadically, and the lease sets no minimum number of hours or days during which it must be open for business.   Second, Marsal contends that the pre-termination notice is deficient in that it contains no notice of a right to cure.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence.”  (Citations omitted, internal quotation marks omitted.)  Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn.App. 234, 238, 907 A.2d 1274 (2006).  “[A] lease is a contract, and, therefore, it is subject to the same rules of construction as other contracts ․ The standard of review for the interpretation of a contract is well established.   Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [when] there is definitive contract language, the determination of what the parties intended by their ․ commitments is a question of law ․ In construing a written lease ․ three elementary principles must be [considered]:  (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 ․ Furthermore, when the language of the [lease] is clear and unambiguous, [it] is to be given effect according to its terms.   A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for ambiguity ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7–8, 931 A.2d 837 (2007).

The court finds the language of the lease in question to be clear and unambiguous.   There is no need to embark upon an inquiry to determine the intent of the parties at the time of the signing of the lease.   The language is a restriction on the use of the premises to a grocery-deli between the hours of 5:00 a.m. and 12:00 a.m. midnight.   There is nothing in the plain language of the lease that mandates any minimum number of hours per day or days per week during which or on which the store must be open.   Further, the court finds Clintonville's claims of potential harm dubious in light of the evidence that Clintonville has made no attempt to market for commercial rental the adjacent storefront unit, the former liquor store unit at 400 Clintonville Road, despite having possession and control of the premises since March 1, 2013.

The court finds that Clintonville has failed to prove the central issue of its cause of action, that Marsal has violated the covenants and terms of the lease.   Because the resolution of this matter is resolved by this determination, the court does not address Marsal's alternate defense that the pre-termination notice was deficient and fatally flawed.

CONCLUSION

For the foregoing reasons and on the basis of the court's factual findings, the court finds that the plaintiff has failed to prove the allegations of the complaint.   Judgment will enter in favor of the defendant.

Michael G. Maronich, Judge

Maronich, Michael G., J.