Amalgamated Produce, Inc. v. LLC (2014)

MEMORANDUM OF DECISION

The plaintiffs, Amalgamated Produce, Inc. and its principal, Richard Blackwell, commenced this action against the defendants, Specialty Farms, LLC and its principal, Richard Elwell.   This action arises from the defendant Specialty Farms, LLC's purchase of the assets of, and lease of premises from API on November 17, 2009.

In its revised complaint, the plaintiffs have brought actions against Specialty Farms and Elwell for breach of the sale and purchase agreement and conversion,¹ against Specialty Farms for breach of lease, and against Elwell for breach of a personal guarantee.   The defendants have filed an answer, special defenses and counterclaims.

At the time of the transaction, API's primary business was the operation on Kossuth Street in Bridgeport, Connecticut of a hydroponic sprout and wheat grass farm that sold its products to customers such as Stop & Shop, Whole Foods, Price Chopper, and other food stores.   The business operated out of an approximately 13,000 square feet block and steel constructed industrial building situated on slightly less than a half acre of land.   Specialty Farms was formed for the purpose of acquiring the assets and leasing the premises of API. Blackwell was the principal of API. Elwell was the principal of Specialty Farms.   Elwell personally guaranteed certain equipment lease agreements for which Specialty Farms assumed responsibility, and the lease of the property on which the business operated.

Approximately a year and a half after the closing of the transaction, API and Blackwell commenced an action against Specialty Farms and Elwell claiming breach of the sale and purchase agreement, breach of the lease, breach of the personal guarantee and conversion.   The defendants responded by filing an answer, special defenses and counterclaims.   Concerning the plaintiffs' claim that Specialty Farms breached the asset purchase agreement, the defendants assert as special defenses that they are not responsible to the plaintiffs because of intentional and negligent misrepresentations made by the plaintiffs, and as a result of these misrepresentations the plaintiffs are equitably estopped from pursuing a claim that Specialty Farms breached the agreement.   Additionally, the defendants claim that the plaintiff first breached the asset purchase agreement.   Concerning the claim that Specialty Farms breached the lease agreement, the defendants assert as special defenses that the plaintiffs first breached the asset purchase agreement;  constructive eviction;  breach of warranty of suitability for intended purpose of the lease;  failure to mitigate damages;  impracticability of performance;  lease subsequently modified by mutual agreement;  and that the leased premises were not suitable for its intended purpose.   Further, the defendants brought counterclaims for breach of the asset purchase agreement, breach of lease, defamation and violation of the Connecticut Unfair Trade Practices Act, commonly referred to as CUTPA.

The matter was tried to the court, and, in addition to the undisputed facts referred to above, the following facts are found to be credibly proven.   Blackwell operated a hydroponic sprouts business known as API.² He and Elwell were next door neighbors.   Elwell had no experience in the food business prior to his progressive involvement in API. Rather, his employment experience involved technical sales and consulting.

In 2005, Blackwell employed Elwell as a part-time management consultant for API. Blackwell became interested in employing Elwell because he perceived that Elwell was a detail orientated person in his work life.³  Elwell focused on the production side of the business, as opposed to business development and sales, and transitioned to a full-time employee after a few months.   Elwell had been associated with API for approximately a year and a half when in 2007 he was hired as its full-time operations manager.   Thereafter, he was certified in the requirements for Safe Quality Food. Elwell had more knowledge of food safety than anyone else in the company, and he used this knowledge and his technical experience to implement quality controls, policies and procedures concerning API's food production.

API was notified by governmental authorities in April 2009 that a pathogenic bacteria known as listeria monocytogenes (LM) contaminated certain of its products.   A product recall was issued, and sprout production ceased.   As a result, Blackwell hired Kendra Nightingale, Ph.D., an assistant professor at Colorado State University in the Center for Meat Safety and Quality, Food Safety Cluster of Infectious Disease Supercluster, and Department of Animal Science, to assist him in making the necessary changes to ensure that API's products would not be contaminated in the future with LM.

Nightingale visited the site for three days and made various recommendations, some of which Blackwell adopted.   In this regard, Blackwell caused API to make extensive improvements to its facility and improve its quality control program.   He provided funding for the remedial work by refinancing the mortgage on his personal residence and granting a second mortgage on the residence.   These preventive measures included installing a new floor in the growing room, and an automatic antimicrobial foaming system with stations in all product handling areas and entrances into the building from the break room and shipping areas.   Blackwell also hired an independent cleaning crew.   Elwell, as operations manager, was intimately involved in dealing with the contamination, including working with Nightingale.   Also, working in conjunction with the Federal Food and Drug Administration, Elwell developed written and detailed guidelines for LM remediation along with an action plan.   He was API's primary contact with the FDA.

The product recall and remediation proved successful.   On June 15, 2009, after a period of approximately two and one-half months, API was allowed to resume full product production and sale.   The company did not experience any further LM contamination from the restart of production through the date of the sale of API to Elwell months later.

The business interruption caused by the product contamination resulted in Blackwell suffering personal and financial problems.   Financially, it severely impacted API's cash flow to the point that Blackwell considered filing for bankruptcy protection and closing the company.   Personally, it caused him to suffer from depression and alcoholism.   During this troubling time, Blackwell appeared only intermittently at work.   He ceased going to work at some time in July 2009.   He gave his wife, Stephanie, a power of attorney that allowed her to manage the company.⁴  During this time period, Stephanie was responsible for operating the company and was the only person authorized to sign company checks.   Elwell was aware of API's and Blackwell's issues when the Blackwells asked him whether he would be interested in buying the business.   Elwell was interested enough to undertake a process of due diligence during the course of about thirty to forty-five days, which took place from approximately the beginning of October to Specialty Farms' purchase of the company in the middle of November.

The only financial document that Elwell reviewed as part of his due diligence was a five-year income statement of API.⁵ The statement reflected the years 2004 through 2008.   Elwell, however, had access to API's QuickBooks software for some time prior to the closing.   Stephanie personally saw Elwell sign onto the program multiple times, and Elwell told her that he created “a lot” of entries in QuickBooks.   Elwell never reviewed any of API's tax returns, had no understanding of the company's profit margins, and did not know what percentage of the business was related to sprouts versus repackaged product.   Elwell was represented by counsel in his purchase of the company.

In October 2009, Stephanie asked her friend, Carol Kenyhercz, a bookkeeper, to assist in keeping the financial records of API. Kenyhercz agreed to do so and, among other things, began the tasks of reconciling QuickBooks and reviewing the inventory.   Additionally, Elwell, himself, hired her to assist him in setting up the books of Specialty Farms in contemplation of his purchase of API. During the time period that Kenyhercz handled the books, she personally witnessed Elwell independently access QuickBooks,⁶ and worked with him on the system.   In preparation for the closing, Elwell had Kenyhercz show up at work on a Sunday to review information, including QuickBooks, which Elwell was using to make business projections.   Kenyhercz remained employed until sometime in January 2010, when she was succeeded by Lydia Jandreau.

Specialty Farms purchased API on November 17, 2009 without Elwell personally having to pay any out of pocket funds.   Elwell was aware that company sales had been increasing for a few years prior to the sale.   The Agreement of Sale and Purchase provided that Elwell's newly formed company, Specialty Farms, would, among other things, assume the listed liabilities ⁷ of API;  assume the equipment leases of the Isuzu and Freightliner trucks;  assume the lease of the Clarke Scrubber;  and agree to lease from API the Kossuth Street property.   There were some average consistent business volume goals set forth in the agreement that would have triggered the payment of monies by Specialty Farms to API, but those goals were never realized.   Elwell personally guaranteed the payment of the three equipment leases, and held Blackwell harmless for the nonpayment of them.   Specialty Farms entered into a separate lease of the premises for a twenty-five-month term and agreed to a $5,400 monthly rent.   The payment of the rent was personally guaranteed by Elwell.⁸

During a few months in 2010, the roof of API's building leaked a few times.   Pursuant to the lease, API was responsible to make repairs to the structural elements of the building, including the roof.   In furtherance API's obligation, Blackwell hired Rich Alchimio,⁹ an experienced contractor, to perform the repairs, and requested that Alchimio contact Elwell to conduct the repairs.   The first time, Alchimio met Elwell at the property and surveyed the leaking areas, which included the office area and the break room.   The repairs were made on a subsequent day.   Alchimio saw Elwell during the two times that he went to the property to perform the initial repairs to the roof.   The second time, Blackwell called Alchimio and informed him that other areas of the building were leaking, including over the garage area.   Although Alchimio could not remember whether he personally met Elwell when he went to fix the second leak, he was able to gain access to the building.   Blackwell communicated with Alchimio about a situation involving a third leak over the mechanicals room.   Alchimio showed up to perform the repairs, but no one was present to allow him access to the building.   Neither Elwell nor anyone associated with Specialty Farms requested that he return on another day to make repairs.

Alchimio never checked the repaired areas after he did the work.   However, after he made the first roof repairs, Elwell informed him that the problems were fixed.

The roof repair work performed by Alchimio took approximately one half day to a full day to complete.   Blackwell paid him on a time and material basis.

The cleaning and sanitary system under Specialty Farms was markedly different from the system utilized by API. Freddie Williams worked at API for a total of six or seven years over an approximately ten-year period, and for Specialty Farms for less than a year when he was fired in July 2010.¹⁰  He was the manager of the growing room and was personally involved in the daily cleaning and sanitary procedures.¹¹  The procedures under API were more extensive and stringently followed than were the procedures under Specialty Farms.   For example, Specialty Farms discontinued using the foaming system that Blackwell had installed and was operated three times a day by API. Specialty Farms used the system only in preparation for an inspection.   Specialty Farms utilized less chlorine in product cleaning than did API, and stopped using chlorine mats and buckets.   Also, Elwell took over the ordering of supplies and reduced them to a minimal amount.

The Department of Consumer Protection of the State of Connecticut performed an inspection of Specialty Farms on April 27, 2010.¹²  It noted, among other things, that a “floor mat with sanitizer not observed at the entrance to production area,” the confirmed presence of mouse droppings and that there was “water condensation [and] dripping water in the walk in cooler.”   Moreover, the inspector observed “employees mixing organic and nonorganic product into one package labeled ‘organic.’  “ The presence of LM was also found in a drain in the growing room.

As a result, the DCP had Specialty Farms destroy its product that was packed and in the company cooler.   Due to the presence of LM, the DCP requested that Specialty Farms recall its products, which Elwell did not want to do.   In lieu of a recall, Elwell, on behalf of Specialty Farms, signed with the DCP a document titled “Assurance of Voluntary Compliance.”   The document was signed by Elwell on May 24, 2010, and required Specialty Farms to pay a $1,000 fine.   Additionally, the company was required to perform particular cleaning and sanitizing, develop written policies and procedures for the separation of organic and nonorganic products, develop a comprehensive food safety plan, and institute a random sampling plan and product testing with a laboratory “for the presence of pathogenic bacteria.”

As a result of Specialty Farms mislabeling its organic versus nonorganic products, the DCP notified the United States Department of Agriculture.   A subsequent investigation resulted in Specialty Farms surrendering on August 6, 2010 its organic certification by the Northeast Organic Farming Association of New York.¹³ Additionally, the USDA imposed a civil penalty of $11,000, of which Specialty Farms only paid a few thousand dollars.   Elwell stated that Specialty Farms' organic business was a “decent percentage” of its business.

Specialty Farms experienced its own LM contamination of its sprouts products in July 2010.   The State of New York Department of Agriculture and Markets discovered LM in Specialty Farm's sprout product in Price Chopper, and the State of Connecticut Department of Public Health Laboratory Division confirmed the presence of LM in product at a Big Y store.   Specialty Farms notified its customers that received the affected products that it was recalling certain alfalfa sprout products.   Shortly thereafter, in August, the Connecticut DCP ordered an embargo ¹⁴ including “production of all sprouts product, except production of wheat grass, shallots, and dry fruits.”

In response to the contamination, Elwell used his own employees to clean and sanitize the facility.   Unlike Blackwell's response to API's contamination issue, Elwell did not hire an expert such as Nightingale, did not employ an independent clearing crew, and did not spend funds on replacement or additional equipment.   Elwell believed that by that time he had “learned enough about what steps to take” to remediate the situation.

Subsequent to experiencing the aforementioned business difficulties, Elwell became “absolutely” concerned about Specialty Farm's viability.   Elwell's concern is evident in an email to him dated August 9, 2010 from Frank Greene, of the DCP, in which Greene noted that Elwell “mentioned the previous week something about relocating, given that this [LM contamination] seems to be a recurring problem that seems to be a wise choice at this time.”   Elwell responded to Greene, in part, as follows:  “If you can please think about how to put me on notice that it would be prudent on my part to move to a new facility as soon as it becomes feasible it would be helpful.”   Two days later, Elwell received an email from Tim Spillane, of the DCP, in which Spillane asked Elwell to review a “proposed letter” from the DCP to Elwell set forth in the email.   The letter concerns the LM contamination experienced by Specialty Farms, and states that “it is [DCP'S] considered opinion that ․ strong consideration should be given to relocating your sprout business to newer facilities.  [DCP] believes this should be done as soon as practical.”   The “proposed letter” indicated that it was to be signed by Greene and not Spillane.

During 2010, Specialty Farms had experienced difficulty paying the monthly rent by the date that it was due.   Elwell testified that at some point during that year his “sales plunged.”   In September, due to dire financial constraints, Elwell requested that Blackwell reduce the $5,400 monthly rent until Specialty Farms vacated the premises.   As a result, Blackwell offered to accept a reduced rent of $2,700 per month for the months of October through December on the condition that the rent was received by the fifth day of each month.   Otherwise, the full monthly rent would be due.   Specialty Farms made rent payments in the amount of $2,700 for the months of October and November, despite that the payments were admittedly untimely under the agreement and the full amount of the rent was due and owing.

In the middle of December 2010, counsel for API and Blackwell contacted counsel for Specialty Farms and Elwell and informed them that a litigation was to be commenced based on Specialty Farm's breach of lease.   Counsel for Specialty Farms and Elwell responded that she was in the process of preparing a notice to terminate the lease based on the untenable condition of the building, and that Specialty Farms would most likely proceed to legally dissolve.   On January 21, 2011, counsel for API sent notice to Specialty Farms that rent was due and owing for the month of October 2010 through January 2011, along with taxes due and owing on July 1, 2010.   Therefore, pursuant to the lease, demand was made for payment in the amount of $30,683.50.

Blackwell received a notice letter from the City of Bridgeport Office of Housing & Commercial Code Enforcement dated January 26, 2011 that, as a result of an inspection of the Kossuth Street property two days earlier, certain housing code violations were discovered and were required to be corrected.   The violations included the following:  “Flat [r]oof to be cleared of all ice & snow—causing much exterior and interior damage.”   By letter dated February 1, 2011, Bridgeport's enforcement office informed Blackwell that a warrant would be issued for his arrest if he failed to promptly correct the violations.   In response thereto, API, acting through Blackwell, sent a notice dated February 3, 2011 to Specialty Farms and Elwell that Specialty Farms' failure to remove the ice and snow from the roof constituted a breach of lease and demanded that the conditions be immediately removed.   Specialty Farms failed to remove the snow and ice from the roof, and, in accordance with his letter, Blackwell had the snow removed at a cost of $7,500.

Specialty Farms surrendered the keys to the building to Blackwell on March 3, 2011.   On March 17, 2011, API signed an Exclusive Right to Sell Listing Contract with Fischer Real Estate, Inc. The realtor viewed the property, and notably did not see any roof leaks.   Based on a market analysis, the property was priced for sale at $495,000 and actively marketed.   The property was shown approximately eight to ten times, and an offer to purchase for $300,000 was rejected as too low an offer.   Another buyer failed to materialize after a final walk through the premises.   The exclusive listing expired without procuring a sale.   Blackwell sold the property in “as is” condition and as a shell sale for $245,000 in May 2012.   Additional facts will be set forth in this decision as necessary.

I

Breach of Asset Purchase Agreement

In the first count of the revised complaint, the plaintiffs claim that Specialty Farms breached the agreement by which it purchased the assets of API. In its post-trial brief, the plaintiffs contend that they proved that the defendants breached the purchase agreement by failing to pay property taxes due on the Isuzu and Freightliner vehicles.

Section 2 of the Agreement of Sale and Purchase provides that “Specialty Farms will assume the leases of the Isuzu and Freightliner trucks currently operated by API and hold API['s] and Richard Blackwell's personal guaranty harmless for any non-payment of said leases that may be sustained as a result of the assumption of the lease agreements.”   Attached to the agreement is a personal guarantee signed by Elwell pursuant to which he “guarantee[d] unconditionally the payment and performance of each and every obligation of the certain leases entered into by API and/or Richard Blackwell for the Isuzu automobile, Freightliner truck and Clarke scrubber, and hold Richard Blackwell, individually, harmless for any nonpayment of the leases.”

‘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.)  Ibar v. Stratek Plastic Ltd., 145 Conn.App. 401, 410, 76 A.3d 202 (2013).  “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed.”  (Internal quotation marks omitted.)  RBC Nice Bearings, Inc. v. SKF USA, Inc., 146 Conn.App. 288, 312, 78 A.3d 195 (2013).

Elwell admitted that Specialty Farms was obligated to pay the property taxes on the leased vehicles.   The better and weightier evidence is a document certified by the tax collector of Bridgeport showing that neither Specialty Farms nor Elwell paid the taxes on the vehicles that were due on July 1, 2010 and January 1, 2011 in the amount of $5,611.34,¹⁵ which failure constitutes a breach of the agreement.

The defendants assert four special defenses to count claiming breach of the asset purchase agreement.   In the first three defenses, the defendants respectively allege that they are not liable to the plaintiffs for breach of the agreement because the defendants were induced to enter into the agreement by the plaintiffs' fraudulent and negligent misrepresentations, and consequently are equitably estopped for proceeding against the defendants.

“Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006), citing Glazer v. Dress Barn, Inc., 274 Conn. 33, 73, 873 A.2d 929 (2005).

“The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance.”   (Citation omitted;  internal quotation marks omitted.)  Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777–78, 802 A.2d 44 (2002).  “In contrast to a negligent representation, [a] fraudulent representation ․ is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it.”  (Internal quotation marks omitted.)  Kramer v. Petisi, 285 Conn. 674, 684 n.9, 940 A.2d 800 (2008).  “This is so because fraudulent misrepresentation is an intentional tort.”  Id., 684.

“The standards governing the application of equitable estoppel are well established.   There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief;  and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.”  (Internal quotation marks omitted.)  O'Connor v. Waterbury, 286 Conn. 732, 757, 945 A.2d 936 (2008).

The defendants' first three special defenses to the first count are grounded on the following proposed statement of fact in their post-trial brief.  “Prior to entering into the purchase contract, Elwell attempted to perform a ‘due diligence’ examination of [API's] finances based on records provided by Blackwell.   Elwell requested but was not provided with [API's] income tax returns, and access to its books and records.   The financial record Blackwell and his accountant provided to Elwell was a five year income statement from 2003–2008 of [API] prepared by the accountant based on representations of management, i.e. by Blackwell ․ The income statement showed that [API] had been profitable in four of the five years.   The information used to produce the income statement was based on financial data that was provided to the accountants by Blackwell.   They contained misstatements regarding brokerage commissions, taxes, water and other expenses.   Elwell relied on the [i]ncome [s]tatement, and on a verbal representation made by Blackwell that he was ‘pulling’ around $250,000 per year from the business.   Elwell relied upon the statement in making a decision to purchase API's assets and leasing the premises from [API].”

The court rejects that proposed finding as not supported by the evidence.   Rather, the evidence shows that Elwell went forward with the asset purchase without conducting reasonable due diligence despite having the opportunity to do so, or with performing such diligence to his satisfaction.   Significantly, Elwell was represented by counsel in the transaction, and he admittedly engaged in the process of due diligence for thirty to forty-five days before the date of purchase.

The court concludes that Elwell was either not concerned with performing reasonable due diligence because he was not paying any out-of-pocket funds as part of the purchase, and he believed that he “minimize[d] his exposure financially” by limiting the lease of the property by Specialty Farms to a twenty-five-month period, or was satisfied with the diligence that he performed.   Elwell became associated with API in 2005 and began his employment with the company in 2007.   He became intimately familiar with, and involved in, the operations of the business.   During that time period, and despite his contrary testimony, Elwell accessed multiple times, on his own, the company's QuickBooks software program,¹⁶ and made data entries.   Moreover, Elwell used API's QuickBooks to obtain information that he used to make projections relating to API's business preclosing.

The defendants failed to prove that their special defenses to the first count of the complaint of fraudulent or negligent misrepresentations, and equitable estoppel.   First, the defendants failed to prove that the plaintiffs made any factual statements that were either untrue or known to be untrue.   Second, the commonality among the defenses is the element of inducement.   The evidence shows that plaintiffs certainly did not do anything induced the defendants to enter into the purchase of the assets of the company, and that Elwell, himself, either failed to perform due diligence or performed it to his satisfaction.   The defendants freely and voluntarily decided to close the transaction because Elwell believed that he understood enough of API's business based on the approximately four years that he was associated with it, was satisfied with the investigation that he performed, and had limited financial exposure post-closing.

In their fourth special defense to the first count, the defendants claim that the plaintiffs first breached the asset purchase agreement and are precluded from maintaining an action against the defendant for breach of the agreement.   The defendants have failed to provide any case law or legal analysis supporting this purported “first breach” defense, and can be reasonably viewed as abandoning the issue.   Moreover, as addressed in greater detail in the court's discussion of the defendants' counterclaims, the defendants failed to prove that the plaintiffs breached the asset purchase agreement.   Therefore, the defendants' fourth special defense to the first count fails.

The plaintiffs proved in the first count that Specialty Farms breached the asset purchase agreement.   The defendants have failed to prove their special defenses to the first count.   Therefore, judgment is rendered on the first count in favor of the plaintiffs, and damages are awarded in the amount of $5,611.34.

II

Breach of Lease and Personal Guarantee Agreements

In the third count of the revised complaint, API claims that Specialty Farms breached the lease agreement that it executed with API. In its post-trial brief, API contends that it proved that the defendants breached the lease by failing to pay the full amount of the rent beginning in October 2010, and by failing to remove a significant accumulation of snow on the roof.

The defendants filed the following seven special defenses to the third count:  the plaintiffs first breached the agreement, thereby precluding them from maintaining a breach of lease claim;  constructive eviction;  breach of the implied warranty of suitability;  failure to mitigate damages;  commercial impracticability;  modification of the lease by mutual agreement;  and the premises were not suitable for their intended purpose of hydroponic farming.

“[A] lease is a contract under which an exclusive possessory interest in property is conveyed ․ A lease is more than a mere license;  it is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other;  or, in other words, a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense ․ Its distinguishing characteristic is the surrender of possession by the landlord to the tenant so that he may occupy the land or tenement leased to the exclusion of the landlord himself.”  (Citations omitted;  internal quotation marks omitted.)  Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn.App. 517, 522–23, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001).  “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.)   Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.”  (Internal quotation marks omitted.)  Cadle Co. v. Ginsberg, 70 Conn.App. 748, 761, 802 A.2d 137, cert. denied, 262 Conn. 905, 8DP1⌑The defendants do not claim that the applicable provisions of the lease agreement are unclear or ambiguous.  “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 ․ 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 ․ 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.

“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 m the same position as he would have been in had the contract been performed ․” (Citations omitted;  internal quotation marks omitted.)   Brennan Associates v. OBGYN Specialty Group, 127 Conn.App. 746, 754, 15 A.3d 1094 (2011).

The lease was effective as of November 17, 2010, and was for a twenty-five-month term.   The agreement provides in paragraph 5 that the monthly rent was $5,400 “payable on the first day of each month in advance.”   A late charge of five percent applied to any untimely rent payment.   The lease additionally provided that Specialty Farms was required to pay to API as “ ‘Additional Rent’ any amounts due [API] other than Rent, which amounts shall be due and payable to [API] on demand unless otherwise provided.”   Finally, the agreement provided that it was a net lease, and all services and utilities were the obligation of Specialty Farms, as was the payment of real estate taxes.

Paragraph 10.1 of the agreement states that Specialty Farms was not “responsible for repairs to the structural elements of the building, including ․ the roof, walls, foundation and underground facilities.”   In accordance with paragraph 16.1(e), Specialty Farms was responsible “to keep the Leased Premises clear and free of snow and ice.”

Due to financial difficulties experienced by Specialty Farms, and Elwell request, API agreed to accept a reduced rent for the last three months of 2010 on the condition that the payments were made by the fifth of each month.   Elwell acknowledged his understanding of the agreement in an email to Blackwell dated September 29, 2010.   Specialty Farms failed to pay the reduced amount of rent in accordance with the agreement, and failed to pay the full rent payment that remained due and owing.   API provided notice of default to Specialty Farms, but Specialty Farms failed to pay the rent in breach of the lease.   On March 3, 2011, Specialty Farms surrendered the keys to the premises to Blackwell, which he accepted effectively terminating the tenancy on behalf of Specialty Farms.

The evidence sufficiently establishes that the plaintiffs used reasonable efforts to minimize their damages, and the defendants have not argued or briefed the issue to the contrary.   The property was ultimately sold in May 2012 as a shell building in “as is” condition.

API has proven that Specialty Farms breached the lease agreement and that it is entitled to damages.   The court will consider next the special defenses to this count raised by the defendants.¹⁷

In their first special defense to the third count, the defendants claim that they are not liable to the plaintiffs “because the plaintiffs committed the first breach of the [a]greement.”   The defendants have failed to cite to any case as to the legal sufficiency that the alleged defense and, more important, the evidence fails to establish the defense.   Therefore, the defendants have failed to prove their first special defense.

In their second special defense to the third count, the defendants claim that they were constructively evicted from the property.   The defendants have failed to provide any legal citations or analysis for their claim.

“Under that common-law doctrine, a tenant's failure to pay rent may be excused where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant's promise to pay rent.”  (Citations omitted;  internal quotation marks omitted.)  Coach Run Condominium, Inc. v. Furniss, 136 Conn.App. 698, 706, 47 A.3d 413 (2012).

It appears that the defendants premise this special defense on their contention that API failed in its obligation to repair the leaks in the roof of the building causing the premises to become uninhabitable for the business of a hydroponic farm.   Consequently, API constructively evicted Specialty Farms.

The evidence does not support the defendants' contention that Specialty Farms was constructively evicted from the premises.   The evidence establishes that the roof had been repaired and was not leaking at the time the Specialty Farms completed the purchase of API's assets and leased the premises.   There were a few leaks in 2010, which API addressed by employed a roofer, Alchimio.   He went to the premises a few times, met with Elwell, and repaired the leaks.   Alchimio was sent by Blackwell a final time to repair a leak, but was not able to access the building.   Elwell never followed up with Alchimio.   The court credits long-time employee Freddy Williams's observation that Alchimio “always came and fixed it.   Whenever Dick [Blackwell] called the guy he would always come out there.”

Moreover, the evidence demonstrates that Elwell was contemplating having Specialty Farms vacate the premises prior to the expiration of the lease.   The court infers from Elwell's correspondence to Greene and Spillane of the DCP that he, Elwell, requested their assistance in drafting a letter from DCP that, given the roof leak and LM problems, Specialty Farms should relocate.   The court found it more than passing strange that Elwell prompted DCP to draft such a letter rather than the department first sending such a correspondence to Specialty Farms and Elwell.

Additionally, that Specialty Farms continued to operate the business and seek a rent reduction in the latter part of 2010 is in contradistinction to his claim that Specialty Farms was constructively evicted.   The better evidence is that Specialty Farms was experiencing severe financial problems by August 2010, Elwell was concerned with the future of the company, and he was at least considering vacating the premises prior to the lease expiration, if not dissolving the company.   These facts must be viewed in conjunction with the circumstances that Elwell purchase the assets of API without conducting a reasonable review of the financial records, without understanding the percentage of sales of the products and their profitability, without investing funds into the company, and cause his own significant financial problems by mislabeling his products.   All he was concerned about was limiting his personal exposure, which Elwell apparently did to his satisfaction.¹⁸

In their third special defense to the third count, the defendants claim that they are not liable to the plaintiffs “because the plaintiffs breached an implied warranty of suitability for the intended purpose of the lease.”   The defendants have failed to provide any factual or legal support for this defense, and appear to have abandoned it.   To the extent that they have not abandoned it, the defendants have failed to prove it.   In this regard, at least one trial court has noted that “Connecticut does not recognize [an implied warranty of fitness] to commercial leases.”   Castelvetro v. Mills, Superior Court, judicial district of New Haven, Docket No. CV–320396 (January 31, 1994, Gray, J.) [11 Conn. L. Rptr. 29].

In their fourth special defense to the third count, the defendants claim that the plaintiffs have failed to mitigate their damages.   In part II, the court found that the plaintiffs used reasonable efforts to mitigate their damages.   Therefore, the defendants have failed to prove the fourth special defense.

In their fifth special defense to the third count, the defendants claim commercial impracticability.   Again, the defendants failed to address the issue in their post-trial brief.

“The impracticability doctrine represents an exception to the accepted maxim of pacta sunt servanda, in recognition of the fact that certain conditions cannot be met because of unforeseen occurrences.   Cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413, 538 A.2d 219 (1988).   A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that:  (1) the event made the performance impracticable;  (2) the nonoccurrence of the event was a basic assumption on which the contract was made;  (3) the impracticability resulted without the fault of the party seeking to be excused;  and (4) the party has not assumed a greater obligation than the law imposes.   2 Restatement (Second), Contracts 261;  E. Farnsworth, Contracts (1982) 9.6, p. 678.”  Dills v. Town of Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989).

Notwithstanding, in parts I and II the court has found that the defendants failed to prove facts in support of their claim of constructive eviction, and those facts do not establish any events giving rise to an impracticability defense.   The better and weightier evidence shows that any purported “impracticability” experienced by the defendants were caused by events that the defendants, and not the plaintiffs, were responsible.

In their sixth special defense to the third count, the defendants claim that the lease was modified in September 2010, and the base rent was reduced to $2,700 per month.   For the reasons discussed in part II, the defendants have failed to prove this defense.

In their seventh special defense to the third count, the defendants repeat their third special defense to the third count;  that is, that “the building was not suitable for the intended purpose state in the lease ․” For the reasons set forth in the court rejection of the third special defense, the court concludes that the defendants have failed to prove their seventh special defense.

In view of the foregoing, the court awards the following damages to the plaintiffs on the third count of the complaint for breach of lease:  $93,053.50, as measured by the outstanding lease payments owed by Specialty Farms through December 2012 plus applicable late charges;  $9,260 as measured by the balance owed by Specialty Farms under the lease to the WPCA;  and $2,801 as measured by the balance owed by the Specialty Farms under the lease to the Aquarian Water Company.

The plaintiffs failed to prove that their entitlement to damages for the cost of the removal of snow from the roof, or for repairs to the fence and gate encompassing the building.   Concerning the snow removal costs, the plaintiffs claim in their brief that Blackwell paid $7,500 as demonstrated by the checks submitted as evidence thereof.   Only two of the checks are drawn against API's bank account.   The other checks are drawn against accounts of Blackwell, and RB Cheshire, LLC, another Blackwell entity.   The checks are unclear both in terms of legibility and in content, and are given no weight in support of the claim.   Concerning the fence, the evidence was insufficient to show that Specialty Farms caused the damage.¹⁹

In view of the foregoing, judgment is rendered for API and against Specialty Farms on the third count.   The court awards the amount of $105,114.50 in damages.

Elwell's personal guarantee is part of the lease.   It states that he “personally secondarily guarantees the prompt and punctual payment of all moneys due under the above lease agreement in accordance with its terms and agrees to remain bound for payment.”

“A guarantee, similar to a suretyship, is a contract, in which a party, sometimes referred to as a secondary obligor, contracts to fulfill an obligation upon the default of the principal obligor ․ To illustrate more clearly, in a situation involving a guarantee, there are typically two contracts that exist, one between A and B, and a second contract between A and C, whereby C promises that if B does not fulfill its obligation to A, then C will be responsible to A for B's obligation ․ This type of agreement is generally subject to the same requisites of contract formation that apply to the formation of any other contract ․ Furthermore, [p]ursuant to the Statute of Frauds, a contract creating a secondary obligation is unenforceable as a contract to answer for the duty of another unless there is a written memorandum satisfying the Statute of Frauds or an exception applies ․ Specifically, “[a] promise to be surety for the performance of a contractual obligation, made to the obligee, is binding if (a) the promise is in writing and signed by the promisor and recites a purported consideration ․” (Citations omitted;  internal quotation marks omitted.)  73–75 Main Avenue, LLC v. Door Enterprises, Inc., 120 Conn.App. 150, 165–66, 991 A.2d 650 (2010).

The court has found that Specialty Farms breached the lease agreement and that API has sustained damages.   Therefore, Elwell is personally responsible for Specialty Farm's obligations, and judgment is rendered for the plaintiff and against Elwell on the fourth count for breach of the guarantee.   The court awards the same damages as pertains to the third count.

III

Defendants' CounterclaimsABreach of Asset Purchase Agreement/Lease Agreement Counterclaim

In its first and second counterclaims, Specialty Farms respectively claims that API breached the asset purchase agreement and the lease agreement in the same ways.   More particularly, Specialty Farms alleges that API failed to maintain the structural elements and integrity of the Kossuth Street building.   In their brief, the defendants assert that “[t]he central issue proven in this matter is the failure of Blackwell, through his alter ego,²⁰ API, to maintain the structural elements of the premises leased by Specialty [Farms] in accordance with the terms of the lease.”   The crux of the defendants' claim is that API breached the lease by failing to repair the leaks in the roof in 2010, and failing to clear the snow from the roof in early 2011.   The plaintiff do not dispute that API was responsible to repair the roof leaks, but claim that the snow removal was Specialty Farm's obligation under the lease.

The weightier evidence establishes that API, acting through Blackwell, reasonably responded each time to the roof leaks.   API hired a roofer, Alchimio, who successfully repaired the leaks the first two times he went to the property.   He was unable to gain access to the property to repair leaks for the third time, and neither Specialty Farms nor Elwell requested that he return in order to make the repairs.   API did not cause the LM problems experienced by Specialty Farms.   Rather, Specialty Farms and Elwell failed to reasonably cooperate or follow-up with the roofer.   Consequently, the court concludes that Specialty Farms failed to prove that API breached the asset purchase or lease agreements by failing to repair the roof leaks.

The lease provides in paragraph 10.1 that Specialty Farms “assume[d] the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Lease Premises.”   The removal of significant snow from the roof is a maintenance issue, and not a structural issue, under the lease.   It was Specialty Farms' responsibility under the lease to remove the snow from the roof, just as it was API's obligation under the lease to repair the roof leaks.   Furthermore, the approximately fifteen thousand dollars paid by Specialty Farms for repairs is not recoverable from API as Specialty Farms was obligated to make such repairs.   Therefore, the court concludes that Specialty Farms failed to prove that API breached the asset purchase or lease agreements by failing to remove the snow from the roof.

In view of the foregoing, judgment is rendered in favor of API on the defendants' first and second counterclaims.

B

Defamation Counterclaim

In the third counterclaim, Elwell claims that Blackwell is liable to him for defamation.  “Defamation is comprised of the torts of libel and slander ․ Slander is oral defamation.   Libel ․ is written defamation.”  (Internal quotation marks omitted.)  Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008).  “To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement.”   (Emphasis added;  internal quotation marks omitted.)  Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 678, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010).  “An indispensable element of an action of slander is injury to the reputation of the person defamed ․ The action fails unless that element is present.”  (Citation omitted.)  Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952).

“Defamation is comprised of the torts of libel and slander.   Defamation is that which tends to injure reputation in the popular sense;  to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him ․ Slander is oral defamation ․ While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod ․ A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication ․ When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover ․

“Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages ․ The distinction between libel per se and libel per quod is important because [a] plaintiff may recover general damages where the defamation in question constitutes libel per se ․

When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation.   He is required neither to plead nor to prove it ․ The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him ․ Whether a publication is libelous per se is a question for the court ․

“Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling ․ To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached ․

“Moral turpitude, [our Supreme Court has] observed, is a vague and imprecise term to which no hard and fast definition can be given ․ A general definition applicable to the case before us is that moral turpitude involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow man or to society in general, contrary to the accepted rule of right and duty between man and law.”  (Citations omitted;  internal quotation marks omitted.)  Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851–52, cert. denied, 267 Conn. 901 (2003).

In the present action, Elwell's counterclaim for defamation is based on his contention that Blackwell, orally and in writing, intentionally and falsely reported to the Bridgeport Police that Elwell had forged his name of business checks resulting in a theft in the amount of $13,563.23, and causing Elwell to suffer harm to his reputation and standing in the community and anguish.²¹  Blackwell essentially responds that the truth of his statements provides an absolute defense.

In Time Was Garage, LLC v. Giant Steps, Inc., Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV–10–6002895–S (Dec. 20, 2013, Danaher, J.), a case involving similar facts, the court provides a useful summary of the law of qualified immunity applicable to this case.   Therein, “[t]he defendants move[d] for summary judgment on the basis that any statements made in connection with a police investigation are qualifiedly privileged.   Id. The court found that statements at issue where “qualifiedly privileged” and cited to Gallo v. Barile, 284 Conn. 459, 467–68, 935 A.2d 103 (2007).²²  “Consequently, such statements, even if false, are protected in the absence of a showing of malice.   Id., 463 n.6. [T]he malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice.  Hopkins v. O'Connor, 282 Conn. 821, 845, 925 A.2d 1030 (2007).   Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false ․ A negligent misstatement of fact will not suffice;  the evidence must demonstrate a purposeful avoidance of the truth.  (Citations omitted;  internal quotation marks omitted.)  Abdelsayed v. Narumanchi, 39 Conn.App. 778, 781, 668 A.2d 378 (1995), cert. denied, 237 Conn. 915, 676 A.2d 397, cert. denied, 519 U.S. 868, 117 S.Ct 180, 136 L.Ed.2d 120 (1996).   Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives.  State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 57, 7 L.Ed.2d 33 (1961);  see Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985).”  (Internal quotation marks omitted.)   Time Was Garage, LLC v. Giant Steps, Inc., Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV–10–6002895–S (Dec. 20, 2013, Danaher, J.)

The court concludes that Elwell failed to prove that Blackwell's statements to the police were made with malice.   Because Elwell failed to rebut the qualified privilege, the court renders judgment on the third counterclaim for defamation for Blackwell.

C

Connecticut Unfair Trade Practices Act Counterclaim

Specialty Farms claims in its fourth counterclaim that API violated the Connecticut Unfair Trade Practices Act and caused Specialty Farms to suffer an ascertainable loss.   In its post-trial brief, Specialty Farms contends that API violated CUTPA intentionally providing Specialty Farms with false financial statements prepared by an accountant that understated expenses, including water usage.   Specialty Farms further claims that the false statements were provided “in lieu of providing tax returns when asked for them, for the purpose of inducing the purchase of API's assets and for inducing the execution of the associated lease.”

“Our jurisprudence regarding CUTPA is well settled.   It is remedial in character ․ and must be liberally construed in favor of those whom the legislature intended to benefit ․ CUTPA was designed to provide protection to businesses as well as to consumers.   CUTPA is not limited to conduct involving consumer injury ․ [A] competitor or other business person can maintain a CUTPA cause of action without showing consumer injury ․ CUTPA, by its own terms, applies to a broad spectrum of commercial activity ․ The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy.”  (Citations omitted;  internal quotation marks omitted.)  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379–80, 880 A.2d 138 (2005).

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.”  (Internal quotation marks omitted.)  Updike, Kelly, & Spellacy, P.C. v. Beckett, supra, 269 Conn. 613, 655–56.  “Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy.”  (Internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 82–83, 873 A.2d 929 (2005).  “Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.”  (Internal quotation marks omitted.)  Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 696, 804 A.2d 823 (2002).  “[The Supreme Court] has set forth a three part test for satisfying the substantial injury criterion:  [1] [the injury] must be substantial;  [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces;  and [3] it must be an injury that consumers themselves could not reasonably have avoided.”  (Internal quotation marks omitted.)   Hartford Electric Supply Co. v. Allen–Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999).

“Whether a practice is unfair and thus violates CUTPA is an issue of fact ․ The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.”  (Internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).

“[T]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ․ An ascertainable loss is a deprivation, detriment [or] injury that is capable of being discovered, observed or established ․ [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known ․ Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss ․ A plaintiff need not prove a specific amount of actual damages in order to make out a prima facie case [under CUTPA].”  (Citations omitted;  internal quotation marks omitted.)  Service Road Corp. v. Quinn, 241 Conn. 630, 638–39, 698 A.2d 258 (1997).

In part I, the court addressed and rejected the defendants' special defenses of negligent and intentional misrepresentation and equitable estoppel.   The court incorporates that discussion and findings in addressing this count.   Summarily, the court found that neither API nor Blackwell made the false statement claimed by Specialty Farms and Elwell, and that there was no inducement or reliance proven.   Similarly, the court agrees with the defendants that Specialty Farms has failed to prove that API acted deceptively or violated public policy within the meaning of CUTPA.

Therefore, the court renders judgment for API on the fourth counterclaim.

IV

Conclusion

In view of the forgoing, judgment is rendered as follows: ²³

1. For API on the first count and damages of $5,611.34 are awarded.

2. For API on the third count and damages of $105,114.50 are awarded.

3. For API on the fourth count for breach of guarantee, and the damages found under the third count are awarded.

4. For API and Blackwell on each of the defendants' counterclaims.

TYMA, J.

FOOTNOTES

FN1. The plaintiffs filed a withdrawal (174.00) of the conversion count on February 5, 2013..  FN1. The plaintiffs filed a withdrawal (174.00) of the conversion count on February 5, 2013.

FN2. Blackwell explained that hydroponic farming generally involves growing plants inside a structure such as drums using pure water but without soil.   API produced and sold sprouts such as alfalfa, radish and broccoli.   API also acquired and repackage certain products, including dried mushrooms and fruit..  FN2. Blackwell explained that hydroponic farming generally involves growing plants inside a structure such as drums using pure water but without soil.   API produced and sold sprouts such as alfalfa, radish and broccoli.   API also acquired and repackage certain products, including dried mushrooms and fruit.

FN3. Elwell had extensive technical experience in the electrical field.   He also worked for Digital Equipment selling computers.   As demonstrated by his work history, Elwell was knowledgeable about computers to the extent necessary for him to sell them..  FN3. Elwell had extensive technical experience in the electrical field.   He also worked for Digital Equipment selling computers.   As demonstrated by his work history, Elwell was knowledgeable about computers to the extent necessary for him to sell them.

FN4. Stephanie had experience with API, and provided funds to the company to assist with the remediation undertaken after the discovery of the presence of LM in April 2009..  FN4. Stephanie had experience with API, and provided funds to the company to assist with the remediation undertaken after the discovery of the presence of LM in April 2009.

FN5. The income statement was produced in a simple format.   It demonstrated gross sales less the cost of goods sold less operating expenses resulting in an operating income and net income..  FN5. The income statement was produced in a simple format.   It demonstrated gross sales less the cost of goods sold less operating expenses resulting in an operating income and net income.

FN6. As will be discussed later, Deborah LeConte, who worked for API for approximately ten years, most of that time as its office manager, said that she, Blackwell and Elwell were all independently able to access QuickBooks using the single password..  FN6. As will be discussed later, Deborah LeConte, who worked for API for approximately ten years, most of that time as its office manager, said that she, Blackwell and Elwell were all independently able to access QuickBooks using the single password.

FN7. The assumed liabilities were in the amount of $287,059.49..  FN7. The assumed liabilities were in the amount of $287,059.49.

FN8. Because the income statement was produced by an accountant, Elwell said that he “considered it to be an accurate document.”   When asked at trial why he went forward with the transaction where the only financial document that he reviewed was an uncertified income statement, Elwell said that he “made the decision to acquire the assets in the business and mitigated my exposure by not signing anything more than a two year lease, by not acquiring the property which is what was presented me as part of the initial deal.   I just backed out a lot of things to minimize my exposure financially.”   Elwell additionally testified that he did not put any money into the company during the period of time that he owned and operated it..  FN8. Because the income statement was produced by an accountant, Elwell said that he “considered it to be an accurate document.”   When asked at trial why he went forward with the transaction where the only financial document that he reviewed was an uncertified income statement, Elwell said that he “made the decision to acquire the assets in the business and mitigated my exposure by not signing anything more than a two year lease, by not acquiring the property which is what was presented me as part of the initial deal.   I just backed out a lot of things to minimize my exposure financially.”   Elwell additionally testified that he did not put any money into the company during the period of time that he owned and operated it.

FN9. The court finds Alchimio to be extremely credible concerning the roof repair issues..  FN9. The court finds Alchimio to be extremely credible concerning the roof repair issues.

FN10. Concerning the roof issues, Williams said that “the guy [Alchimio] always came and fixed it.   Whenever Dick [Blackwell] called the guy he would always come out there.”.  FN10. Concerning the roof issues, Williams said that “the guy [Alchimio] always came and fixed it.   Whenever Dick [Blackwell] called the guy he would always come out there.”

FN11. Williams discussed the cleaning protocols in detail during his testimony at trial.   The court found Williams to be very knowledgeable concerning the operations of API and Specialty Farms.   Also, notwithstanding that he was fired by Elwell for improperly handling product, his testimony was very credible..  FN11. Williams discussed the cleaning protocols in detail during his testimony at trial.   The court found Williams to be very knowledgeable concerning the operations of API and Specialty Farms.   Also, notwithstanding that he was fired by Elwell for improperly handling product, his testimony was very credible.

FN12. The department performed inspections once or twice a month..  FN12. The department performed inspections once or twice a month.

FN13. API also had an organic certificate..  FN13. API also had an organic certificate.

FN14. The embargo meant that Specialty Farms was not to remove or dispose of the subject product without the written permission of the department..  FN14. The embargo meant that Specialty Farms was not to remove or dispose of the subject product without the written permission of the department.

FN15. The court rejects the contrary testimony and evidence offered by Elwell as patently not credible..  FN15. The court rejects the contrary testimony and evidence offered by Elwell as patently not credible.

FN16. The court credits the testimony of Stephanie Blackwell and Kenyhercz, and discredits Elwell directly contradictory testimony.   The court found significant Kenyhercz's testimony that she and Elwell worked on a weekend prior to the closing to review company information, including QuickBooks, and that Elwell was using that information to make business projections..  FN16. The court credits the testimony of Stephanie Blackwell and Kenyhercz, and discredits Elwell directly contradictory testimony.   The court found significant Kenyhercz's testimony that she and Elwell worked on a weekend prior to the closing to review company information, including QuickBooks, and that Elwell was using that information to make business projections.

FN17. The court ordered that counsel submit post-trial briefs containing a statement of proposed facts set out in separate paragraphs, followed by citations to legal authorities and the parties' legal conclusions.   The format of the post-trial briefs submitted by the parties evinces this order.   Notwithstanding, the defendants' brief is completely bereft of any legal citations or analysis relating to the seven special defenses to the breach of lease claim.   In part I of this decision, the court discussed the obligation of a party to adequately brief the issues.   More pointedly, the court ordered that the parties set forth a factual and legal analysis of their claims.   It is not for the court to construct a legal template and place it over their proposed factual findings..  FN17. The court ordered that counsel submit post-trial briefs containing a statement of proposed facts set out in separate paragraphs, followed by citations to legal authorities and the parties' legal conclusions.   The format of the post-trial briefs submitted by the parties evinces this order.   Notwithstanding, the defendants' brief is completely bereft of any legal citations or analysis relating to the seven special defenses to the breach of lease claim.   In part I of this decision, the court discussed the obligation of a party to adequately brief the issues.   More pointedly, the court ordered that the parties set forth a factual and legal analysis of their claims.   It is not for the court to construct a legal template and place it over their proposed factual findings.

FN18. To the extent that the defendants claim that Specialty Farms was constructively evicted from the premises as a result of Stephanie storing pallets in a portion of the building, the court finds the credible testimony to be that the pallets were stored with the express permission of the defendants..  FN18. To the extent that the defendants claim that Specialty Farms was constructively evicted from the premises as a result of Stephanie storing pallets in a portion of the building, the court finds the credible testimony to be that the pallets were stored with the express permission of the defendants.

FN19. As correctly noted by the plaintiffs in their brief, the court reserved the issue of attorneys fee under the lease for a postjudgment hearing..  FN19. As correctly noted by the plaintiffs in their brief, the court reserved the issue of attorneys fee under the lease for a postjudgment hearing.

FN20. The defendants make repeated references in their brief to the legally significant phrase “alter ego.”   It is noted that the defendants have not made any claim, and there has been no evidence, that the corporate veil of API should be pierced to personally reach Blackwell..  FN20. The defendants make repeated references in their brief to the legally significant phrase “alter ego.”   It is noted that the defendants have not made any claim, and there has been no evidence, that the corporate veil of API should be pierced to personally reach Blackwell.

FN21. In his post-trial brief, Elwell provides a factual analysis of his defamation claim, but fails to legally analyze the claim.   Similarly, Blackwell offers scant legal analysis, and fails to raise the issue of qualified immunity..  FN21. In his post-trial brief, Elwell provides a factual analysis of his defamation claim, but fails to legally analyze the claim.   Similarly, Blackwell offers scant legal analysis, and fails to raise the issue of qualified immunity.

FN22. In Gallo v. Barile, 284 Conn. 459, 477, 935 A.2d 103 (2007), our Supreme Court concluded “that the defendants' allegedly false and malicious statements to the police are qualifiedly, rather than absolutely, privileged.”.  FN22. In Gallo v. Barile, 284 Conn. 459, 477, 935 A.2d 103 (2007), our Supreme Court concluded “that the defendants' allegedly false and malicious statements to the police are qualifiedly, rather than absolutely, privileged.”

FN23. In making this decision, the court gave great weight to Blackwell and the witnesses who testified in favor of the plaintiffs.   Despite his personal difficulties, the court found Blackwell to be direct, forthcoming and exhibited a detailed memory of the material facts.   As a result, the court found his testimony and related evidence extremely credible.   However, the court found the testimony of Elwell to be less than credible on many material issues..  FN23. In making this decision, the court gave great weight to Blackwell and the witnesses who testified in favor of the plaintiffs.   Despite his personal difficulties, the court found Blackwell to be direct, forthcoming and exhibited a detailed memory of the material facts.   As a result, the court found his testimony and related evidence extremely credible.   However, the court found the testimony of Elwell to be less than credible on many material issues.

Tyma, Theodore R., J.