Brennan Associates v. Radioshack Corp.
2013 WL 9887
Conn. App. Ct.2013Background
- In Sep. 2008, Brennan Associates sued RadioShack for possession of 938 White Plains Rd, Trumbull, alleging nonpayment of rent, termination of occupancy rights, and lapse of time.
- In Jan. 2009 the court granted use and occupancy payments to be paid into court retroactive to Nov. 2008; RadioShack paid until vacating in Apr. 2011.
- In May 2011 Brennan Associates moved to disburse funds held by the court; a June 15, 2011 hearing was held; the court denied without final judgment and Brennan subsequently withdrew the summary process action.
- In Sept. 2011 Brennan moved again to disburse funds; RadioShack asserted a §47a-26f claim based on lease paragraph 41 allowing 3% of gross sales, arguing payments should be recalculated monthly.
- The court held RadioShack was not entitled to a §47a-26f hearing since the claim did not arise during the pendency after the order for payments and the dispute was a breach of contract not related to use/occupancy; a hearing before final judgment was not required and the later ruling on disbursement was harmless.
- The appeal followed seeking review of the initial use and occupancy amount and due process challenges surrounding the June 15, 2011 hearing. No later hearing was necessary given the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the §47a-26f hearing was required for disbursement. | Brennan argues funds should be distributed if claims arose during pendency after the order. | RadioShack argues a §47a-26f hearing is needed for claims arising during pendency, such as the 3% gross sales claim. | No §47a-26f hearing required; claims did not arise post-order and relate to use/occupancy; court did not abuse discretion. |
| Whether the 3% gross sales claim qualifies as arising during pendency for §47a-26f. | Brennan contends the claim relates to ongoing use/occupancy under the lease. | RadioShack maintains the 3% claim arises during the action and warrants a hearing. | Claim did not arise during pendency after the order; not reviewable under §47a-26f. |
| Whether the June 15, 2011 hearing satisfied §47a-26f requirements. | N/A. | Argument that the hearing was not evidentiary or post-judgment. | Court did not abuse discretion; evidentiary hearing not required; pre-final-judgment timing permissible and harmless. |
| Whether failure to hold a §47a-26f hearing after final judgment was reversible error. | N/A. | N/A. | Harmless error; no new testimony or arguments were raised beyond those at the June 15 hearing. |
Key Cases Cited
- Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 112 Conn. App. 1 (2009) (limits §47a-26f to disputes related to use/occupancy)
- MFS Associates, Inc. v. Autospa Realty Corp., 19 Conn. App. 32 (1989) (§47a-26f purpose: equitable disposition during pendency)
- Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294 (2007) (abuse of discretion standard for equitable relief)
- Groton Townhouse Apartments v. Marder, 37 Conn. Sup. 688 (1981) (distribution of use/occupancy payments; relevance to premises use)
- Ciavaglia v. Bolles, 38 Conn. Sup. 603 (App. Sess. 1982) (claims in §47a-26f hearing directly related to physical use/occupancy)