135 Conn. App. 276
Conn. App. Ct.2012Background
- Commercial lease of ~9 acres with building in Newington; term 1999–2005 with early termination on sale; nominal rent post-termination; tenant pays taxes, insurance, utilities, maintenance.
- Fire in August 2002 damaged electrical system; plaintiff installed 200A system then replaced with 400A after concerns; plaintiff paid all electrical repairs.
- Plaintiff marketed property for sale; anticipated sale helped keep tenant; defendant advised of machinery needs and potential relocation.
- Defendant signed a purchase agreement for a new building in January 2003 but did not notify plaintiff; defendant later vacated after new system installed.
- Trial court found defendant breached by vacating before termination; plaintiff awarded damages of $62,257.47; defendant awarded $31,980 on its counterclaim; attorney’s fees and costs awarded to plaintiff; cross-appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 18% contractual interest should be awarded on damages. | Cedar Mountain seeks 18% interest on damages per lease. | Interest denied; damages for repairs not awarded; waiver issue unaffected. | No contractual interest awarded on damages challenged on appeal. |
| Whether the court properly awarded damages on defendant's counterclaim despite waiver. | Waiver did not permit defendant recovery for power-loss damages. | Waiver occurred when plaintiff repaired/paid repairs; damages should stand. | Court proper in finding waiver; damages awarded on counterclaim upheld. |
| Whether damages calculation on counterclaim used correct measure (lost profits vs gross revenue). | Damages miscalculated by using gross revenue instead of lost profits. | Evidence supported loss due to downtime; numbers undisputed. | Court declined to review due to procedural waiver of appellate argument; use of lost profits not reviewed. |
| Whether the attorney’s fees and costs were properly awarded under the lease. | Fees justified under lease provision; costs appropriate. | Notice issue; some fees not covered by contract; discretion questioned. | Attorney’s fees and costs awarded; issues on notice and scope not reversible. |
| Whether the court properly awarded costs after previously denying them. | Costs follow the fee award; consistency maintained. | Court reversed itself without authority. | Costs upheld as part of fee order; reversal not improper. |
Key Cases Cited
- Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605 (1998) (adequacy of record for appellate review; burden on appellant)
- D'Angelo Development & Construction Corp. v. Cordovano, 121 Conn. App. 165 (2010) (clearly erroneous standard; waiver and contract interpretation facts)
- Esposito v. DiGennaro, 120 Conn. App. 627 (2010) (waiver as fact-based; review deferential to trial court)
- Ingels v. Saldana, 103 Conn. App. 724 (2007) (review of trial court’s factual determinations; ambush issues)
- Welsch v. Groat, 95 Conn. App. 658 (2006) (constructive eviction standards; premises untenantable)
- Fantasia v. Milford Fastening Systems, 86 Conn. App. 270 (2004) (whether court changes rationale on appeal; articulation)
- ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576 (2007) (American rule on attorney’s fees; contractual exceptions)
- Cooke v. Cooke, 99 Conn. App. 347 (2007) (review of appellate briefs and preservation of issues)