74 Conn. App. 412 | Conn. App. Ct. | 2003
The defendant Summer Street Properties, LLC, appeals from the judgment of the trial court granting the plaintiff, Marquardt & Roche and Partners, Inc., injunctive relief and attorney’s fees.
We note that some of the events which are pertinent to this appeal occurred before the lease, which is the focus of this case, was assigned to the defendant by the former lessor, Riverbend Executive Center, Inc. (Riverbend). The trial court could reasonably have found the following facts.
On December 11,1996, the plaintiff leased office and parking space from Riverbend in a building located at
In negotiations prior to the execution of the lease, the plaintiffs representatives drafted a paragraph regarding the plaintiffs rights to parking and a map of the parking area as an attachment to the lease. Riverbend agreed to these changes and the paragraph numbered 1 (z) and the map designated exhibit B were incorporated into the signed lease. Paragraph 1 (z) states in part: “Parking: A designated area as shown on Exhibit B on Parking Level C, the closed area inside the control point is to be for the exclusive use of [the plaintiff]. Nine (9) additional designated parking spaces outside of the control point (as shown on Exhibit B Parking Plan as spaces 27-35) will also be provided to [the plaintiff]. [The plaintiff] acknowledges that Landlord has provided enough space to park at least Thirty-Four (34) cars in total. Landlord will provide metal signage on the walls to clearly indicate that the above mentioned parking is for the exclusive use of [the plaintiff]. [The plaintiff] may, at its option and cost, install a mechanical gate to restrict others from the closed area inside the control point. [The plaintiff] may at its option and cost, install a rope/ chain or similar device to restrict use of the nine (9) additional designated parking spaces outside the control point. ...”
After the lease signing, but prior to its February 14, 1997 commencement date, the plaintiff requested and Riverbend agreed to paint three curbside spaces marked “Reserved” in the closed area within the control point (control area). These three spaces became the focus of this dispute. The map of the parking area was drawn to reflect the condition of the parking area at the time of the execution of the lease and, so, does not show the location of the three curbside spaces. The three curbside spaces are within the control area, and
In December, 1998, Riverbend assigned its interest in the lease to the defendant. After the assignment, Riverbend continued to act as the property manager on the defendant’s behalf. After several complaints to the defendant’s agents regarding unauthorized vehicles parking in the three curbside spaces, the defendant gave the plaintiff permission to tow unauthorized vehicles parked in those spaces. The towing, however, caused other tenants of the defendant and their customers to become upset.
In March, 2000, without any notice to the plaintiff, the defendant replaced the signs on the wall beside the curbside spaces that formerly read, “Reserved M&R/M& H,” with signs that read, “Property Maintenance Service Vehicles Only.” The plaintiff repeatedly requested that the defendant return the curbside spaces to their former condition, but the defendant consistently refused. Subsequently, the plaintiffs employees and clients no longer parked in the curbside spaces, but the defendant’s employees did park there occasionally.
In August, 2000, the defendant resurfaced the parking area, thus removing the word “Reserved” that had been painted on the spaces themselves. The defendant then had the surface painted to read, “Property Maintenance Service Vehicles Only,” thus echoing the language of the signs on the wall beside the curbside spaces. After the plaintiff contacted the defendant about this latest development, the defendant, in September, 2000, painted “no parking” on the surface of the parking area
The plaintiff commenced the present action in September, 2000, when it served Riverbend with the original complaint. Riverbend responded by filing a motion for summary judgment based, in part, on the fact that, since the assignment of its interest to the defendant, Riv-erbend was no longer a party responsible under the lease. The plaintiff realized its error and filed a motion to cite in and to substitute Summer Street Properties, LLC, as the defendant. Our review of the record indicates that the plaintiff was billed substantial attorney’s fees in connection with the action against the wrong defendant, Riverbend, and its motion for summary judgment. At the hearing on Riverbend’s motion, the court granted the plaintiffs motion to cite in Summer Street Properties, LLC, and ordered the plaintiff to file an amended complaint. In December, 2000, the plaintiff filed an amended complaint against the defendant, and the matter was withdrawn as to Riverbend.
A trial was held in May, 2001, in which the court found the issues for the plaintiff, enjoined the defendant from interfering with the plaintiffs leasehold, issued an injunction ordering the defendant to paint stripes to mark the three curbside spaces, which would be for the plaintiffs exclusive use, and ordered the defendant to pay the $24,270.31 in attorney’s fees and costs requested by the plaintiff.
The defendant raises six separate claims on appeal. The defendant’s first claim is simply a question of the extent of the parties’ rights under the lease. The parties agree that the lease was not modified after it was executed. The defendant claims that the court’s decision
“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct . . . .” (Citations omitted; internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235-36, 737 A.2d 383 (1999).
“In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly 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; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998). “A determination of contractual intent ordinarily presents a question of fact for the ultimate fact finder, although where the language is clear and unambiguous, it becomes a question of law for the court.” Id., 276.
The parties’ dispute centers on the three curbside spaces located within the control area. The language of the lease that relates to parking is clear and unambiguous in this regard: “[T]he closed area inside the control point is to be for the exclusive use of [the plaintiff].”
The defendant argues that the lease did not identify the three curbside spaces and that the lease could not grant the curbside spaces because they were not created until after the lease was executed. We do not find this contention persuasive because the lease grants the plaintiff the exclusive use of the entire area within the control point and not just the parking spaces that were delineated before the lease was executed.
The defendant calls our attention to paragraph 2 (c) (ii) of the lease, which the defendant claims grants it the right to make changes to the plaintiffs parking area. In considering the defendant’s claim, we are mindful of the fact that “the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Id., 275. Paragraph 2 (c) of the lease states in part: “Landlord reserves the right from time to time upon reasonable notice to [the plaintiff] (except in emergency situation, in which event no notice will be required) without unreasonable interference with [the plaintiffs] use . . . (ii) To make changes to the Common Areas including, without limitation, changes in the location, size, shape and number of . . . parking spaces . . . (no changes may be made to [the plaintiffs] parking spaces as provided in Exhibit B without [the plaintiffs] consent which consent shall not be unreasonably withheld) . . . .” Despite the defendant’s claim, however, this paragraph does not grant it the power to act in the manner it did for several reasons.
Finally, this paragraph applies solely to “common areas.” Paragraph 2 (b) of the lease demonstrates quite clearly that the closed area within the control point does not fall within the term “common areas.” Paragraph 2 (b) states that “[the plaintiff] shall have the nonexclusive right to use in common with the Landlord or any other tenants in the Building . . . the following areas (‘Common Areas’) appurtenant to the Premises . . . .” The defendant fails to explain how the “closed area within the control point is to be for the exclusive use of [the plaintiff] ” under paragraph 1 (z) while simultaneously being a common area that the plaintiff has “the nonexclusive right to use in common with the Landlord or any other tenants” under paragraph 2 (b). Such an interpretation of the lease would result in contradictory provisions. We conclude, on the basis of the ordinary meaning of the language of the lease, that the term “common areas” does not include the control area in which the plaintiff has “exclusive use.”
We further conclude that the court was correct to conclude that “[t]he provisions of the lease clearly indicate that the [plaintiff] was entitled to the exclusive use of the area sited in exhibit B of the lease.”
The defendant’s second claim is that the court improperly found that the plaintiff suffered irreparable harm.
“The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the
The defendant claims that “no evidence of any harm, much less actual harm, was presented at trial . . . .” We disagree. The court had before it ample evidence in the form of testimony and photographs from which the court could determine that the defendant removed the plaintiffs signs and repainted the three curbside spaces for the defendant’s own use. The defendant took these actions without any notice to the plaintiff and without the plaintiffs consent even though it took such action within the area which the lease designated for the plaintiffs exclusive use. We conclude in light of the record that the court properly found that “[a] leasehold was taken away from the plaintiff and . . . that is sufficient to constitute irreparable harm.”
The defendant argues that it proved that the plaintiff always had other parking spaces available to it. The defendant believes that such a showing would preclude a finding of harm in this case. We are not persuaded. The plaintiff is not required to use every inch of its parking area constantly in order to prevent the defendant from entering and taking part of that area for its own use. Such an argument by the defendant could just as easily be used to support a decision by any interloper to take a portion of a tenant’s office space if the tenant happened to let a leased room he idle for too long.
We conclude that the plaintiff carried its burden of proving irreparable harm, and, therefore, that the court
The defendant’s third claim is an evidentiary one, but our decision on this third claim is closely tied to the outcome of the issue of irreparable harm in the second claim. The defendant claims that it was improper for the court to exclude from evidence, on relevancy grounds, the documentary and photographic evidence offered by the defendant concerning the number of vacant parking spaces that were available for use by the plaintiff in its exclusive parking area.
We begin our analysis of the defendant’s third claim by setting forth our standard of review when considering the court’s evidentiary rulings. “[Our Supreme Court has] held generally that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580, 803 A.2d 311 (2002).
The defendant argues that photographic and documentary evidence of parking spaces available to the plaintiff was relevant to the issue of irreparable harm. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. State v. Blake, 69 Conn. 64, 76, 36 A. 1019 (1897). . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. State v.
We previously concluded that the plaintiff is not required by the lease constantly to be using eveiy inch of its parking area in order to prevent the defendant from entering and taking part of that area for its own use. No number of photographs of empty parking spaces could have prevented a determination by the court that the defendant had interfered with the plaintiffs leasehold, unless those photographs showed that the defendant had not, as the plaintiffs witness testified, taken down the plaintiffs signs, replaced those signs with the defendant’s own signs, removed the “reserved” markings from the parking surface, and painted “Property Maintenance Service Vehicles Only” and “no parking” on the parking surface in an area that was for the plaintiffs exclusive use. The documentary and photographic evidence offered by the defendant did not contradict the testimony of the plaintiffs witness on any of those facts. We conclude that the court acted within its discretion by excluding such evidence.
The defendant’s fourth claim is, as was its third claim, an evidentiary one. Specifically, the defendant claims
The court thought that the defendant wanted to use Barber’s statement as substantive evidence to prove that the parking spaces were unsafe.
The couxt, however, did not consider the fact that the question of difficulty of backing a vehicle is one which our legislature expects all operators of motor vehicles to consider on a regular basis when using public streets. See General Statutes § 14-243 (b) (“[n]o person shall back a vehicle unless such movement can be made with reasonable safety and without interfering
The defendant stated, however, that the testimony was not being offered for its truth, but rather to show what the defendant was told. Absent a claim by the defendant that Barber’s statement should have been considered in a determination of whether the parking spaces were unsafe, such testimony does not even fall within the rubric of opinion testimony by an expert. We must yet determine, however, whether Barber’s testimony was relevant to an issue before the court.
The defendant argues that Barber’s testimony was relevant to the defendant’s motive and intent in repainting the three curbside spaces, namely, that the defendant’s representatives had learned of concerns as to the safety of the three curbside spaces. The defendant argues that, in deciding whether to grant an injunction,
The language of the lease is clear when it states that “the closed area inside the control point is to be for the exclusive use of [the plaintiff].” The defendant had no right to repaint the plaintiffs parking area for the defendant’s exclusive use or to mark it “no parking.” The plaintiffs evidence demonstrated that the defendant’s agents continue to use the three curbside spaces despite “no parking” being painted there. The court’s injunction required the defendant to return the plaintiffs parking area to the condition it was in prior to the defendant’s wrongful acts. “It would be contrary to equity and fairness to allow a defendant to retain a benefit at the expense of the plaintiff.” United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 513, 802 A.2d 901 (2002). Where the benefit taken by the defendant was the plaintiffs lease rights to park on certain property, the plaintiff had a right to have that property returned to its use, the defendant’s motive and intent notwithstanding.
The fifth claim raised by the defendant is also eviden-tiary in nature. The defendant claims that it was improper for the court to exclude the letter sent from the plaintiffs attorney to the defendant’s attorney in April, 2000, because the letter contains a statement of fact that was separate from any offer of compromise. We disagree.
Although there were statements within that letter that the defendant wanted introduced into evidence, the defendant never sought an introduction of only those portions it claims were admissible; it sought, rather, to introduce the entire letter. Because the inadmissible statements of an offer of compromise were contained in the letter offered in its entirety, the court properly refused to admit that letter into evidence.
The defendant’s sixth and final claim pertains to the amount of attorney’s fees the court ordered the defendant to pay to the plaintiff. Specifically, the defendant argues that it was improper for the court to award the full amount of attorney’s fees requested by the plaintiff when a portion of that amount was attributable to the plaintiffs actions in erroneously filing suit against Riv-erbend. We agree with the defendant on this issue.
“[A]bsent contractual or statutory authorization, there can be no recovery, either as costs or damages,
Paragraph thirty-two of the lease states that, in an action brought due to a breach of any provision of the lease, “all reasonable costs and expenses, including without limitation, actual professional fees such as appraisers’, accountants’, and attorneys’ fees, incurred by [the] prevailing party shall be paid by the other party . . . .” The defendant argues that the court abused its discretion when it awarded attorney’s fees incurred before the defendant was made a party to this action.
The court awarded the plaintiff attorney’s fees of $23,488.75, costs of $502.97 and abill of costs of $318.59. The court was aware of the fact that the plaintiff mistakenly had named Riverbend as a defendant before citing in the defendant Summer Street Properties, LLC. We have reviewed the affidavit in support of the plaintiffs request for attorney’s fees. The record discloses that the total amount of legal fees and costs awarded included
The judgment is reversed as to the award of attorney’s fees and costs only, and the case is remanded with direction to recalculate said award to eliminate the fees and costs incurred as a result of the plaintiffs mistakenly bringing an action against Riverbend. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
The plaintiff represents that “Marquardt & Roche and Partners, Inc.” is its present name, although when this case began the plaintiff was known as “Marquardt & Roche/Meditz & Hackett, Inc.”
Riverbend Executive Center, Inc., is no longer a defendant in this case. Prior to trial, Summer Street Properties, LLC, was joined as a defendant, and the action was withdrawn as against Riverbend Executive Center, Inc. We refer in this opinion to Summer Street Properties, LLC, as the defendant.
Portions of the plaintiffs requested relief appear to be in the nature of specific performance. For example, the plaintiff sought an injunction preventing the defendant from interfering with the plaintiffs parking rights under the lease. We note that the analysis is the same whether we label the relief a prohibitive injunction or specific performance. “Under the traditional views, specific relief will be denied when . . . the legal remedy is regarded as adequate or the plaintiff is not subjected to irreparable harm by the breach .... The specific performance remedy is a form of ipjunctive decree in which the court orders the defendant to perform the contract. . . . The specific performance decree originated in the old equity courts and continues today to be thought of as an equitable remedy, with the usual attributes of such remedies.” 3 D. Dobbs, Law of Remedies (2d Ed. 1993) § 12.8 (1), pp. 190-91.
The defendant argues that “a finding of irreparable harm is a conclusion of law” without citing any authority for the proposition. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 436, 759 A.2d 1050 (2000). Because the defendant failed to support its argument, we rely solely on the standard of review previously set forth.
In sustaining the plaintiffs objection to Barber’s testimony, the court stated that “[essentially what [the defendant] want[s] me to do is to take [Barber’s] opinion, and I can only take his opinion if he is an expert.”
When asked by the court why Barber’s testimony should be admitted, the defendant’s counsel responded: “You wouldn’t let my client testify about how he came to his knowledge about a safety concern, and I am trying to get to his knowledge about a safety concern.”