42 Conn. App. 426 | Conn. App. Ct. | 1996
The issues in this case turn on whether the plaintiffs,
The trial court found the following facts. On or about May 4, 1959, the common council of Middletown approved a redevelopment project whereby the city was to acquire, clear and develop three parcels of land, later designated as AA, AB and AC. The parcels were adjacent to one another with AB being the middle piece. The redevelopment plan obligated the city to provide a multilevel parking facility on parcel AB (garage parcel).
On or about March 6,1963, the River Valley Development Corporation (redeveloper) entered into an agreement with the city whereby the redeveloper would purchase and develop parcels AA and AC. On October 9, 1963, the redeveloper and the city entered into a parking agreement by separate instrument. Pursuant to this agreement, the city was required to construct a parking garage for not less than 600 cars on the garage parcel and to operate and maintain that facility. The redeveloper was given rights of ingress and egress as well as one hour of free parking for customers of its
In 1989, the plaintiffs acquired parcel AA and the south two thirds of parcel AC.
In this action, the plaintiffs claim that the city and One Court Street breached the plaintiffs’ contract rights as successors in interest to the parking agreement and wrongfully took, or interfered with, their rights as owners of an easement appurtenant in the garage parcel. At trial, the court bifurcated the issues of liability and damages. The trial court found that the defendants were
I
The plaintiffs first claim that they are entitled to enforce the parking agreement because they are successors in interest to the original developer. The trial court did not directly address this claim. Rather, the trial court found that the plaintiffs had no right to enforce the agreement because there was no privity of contract with the defendants and the parking agreement had never been assigned to the plaintiffs.
The complaint expressly alleges that the plaintiffs are “successors-in-interest to the Redeveloper,” not that they are assignees. At trial and on appeal, the plaintiffs expressly disavow any claim that they are assignees of the parking agreement. In support of their claim that they are successors in interest, the plaintiffs rely primarily on Safer v. Perper, 569 F.2d 87 (D.C. Cir. 1977).
In Safer, Winthrop Lawrence Corporation (Winthrop) signed a contract with the Donohoe Construction Company (Donohoe) whereby Donohoe was to erect a motel. Somerset Properties Limited Partnership (Somerset) thereafter leased the land on which the motel was erected and took title to the improvements. The construction contract was never assigned to Somerset. The construction contract provided in pertinent part: “ ‘The owner and the contractor each binds himself, his
In determining whether Somerset was a successor in interest, the Court of Appeals for the District of Columbia noted that successor in interest “is a [term] with many legal applications and that it is therefore difficult to define precisely. ... To determine the meaning of ‘successor [in interest]’ in the area of labor law, Mr. Justice Marshall appears to endorse a case-by-case approach with emphasis on the facts of each case. . . . The same fact-oriented approach has also been employed by courts in defining the limits of purely contractual successorship. . . . ‘[Successor [in interest]’ has often been defined as ‘one who takes the place that another has left, and sustains the like part or character.’ ” (Citations omitted.) Id., 95.
The court noted that “[Somerset] ‘took the place’ that Winthrop ‘had left’ and ‘sustained the like part or character.’ ” Id. The court further stated, “Under the construction contract, it was the ‘part’ of Winthrop to pay money. It was [Somerset] who ultimately completed this obligation. Thus, with respect to the very obligations created by the construction contract itself, [Som
We find the reasoning of Safer persuasive. Pursuant to the parking agreement, the original redeveloper here was obligated to pay only for the parking privileges for its tenants and their customers. The plaintiffs, in sustaining a like part or character as the original redevelopers, are obligated to pay only pursuant to the schedule set forth in the agreement. The plaintiffs have paid the agreed amount in return for the parking privileges. Under the factual circumstances here, we discern no reason why the plaintiffs should not be considered successors in interest to the original developer.
The city’s claim that the use of the words “successors and assigns” in the parking agreement merely makes the agreement assignable is not supported by citation to any case law. The defendants cite 6 Am. Jur. 2d, Contracts § 10 (1963), and 3 Restatement (Second), Contracts § 323, comment (b) (1991), for the proposition that the use of words such as “successors” can indicate the parties’ intention that the contract be assignable. Nothing in the cited material suggests, however, that there can be no successors in interest without an assignment.
The plaintiffs are not strangers to the contract. The city accepted monthly payments totaling $9000 per year from the plaintiffs without objection. Our Supreme Court has said: “One enjoying rights is estopped from
First, the trial court ruled that the $9000 per year payments “are the functional equivalent of the payment of rent” and that the “arrangement between the city and the defendants can best be categorized, de facto, as a month-to-month tenancy.” Our review of the evidence discloses nothing that would support such conclusions.
Second, the defendants claim that the city accepted the payments in consideration for free monthly parking for Sears employees, rather than pursuant to the parking agreement. The trial court made no such finding. Moreover, the evidence on which the defendants rely indicates only that representatives of the city were of the unilateral opinion that the payments were for parking for the Sears employees. We discern no reason why the estoppel principle enunciated in Schwarzchild and Sawmill Brook should not apply to the city’s claim that it may accept the plaintiffs’ payments, yet incur no obligations pursuant to the parking agreement.
The defendants further claim that the word “successor” means one who takes property pursuant to the laws of descent and distribution. Because the plaintiffs did not take the property pursuant to the laws of descent and distribution, the defendants assert that they cannot be successors. The defendants rely on the following language from this court: “The term ‘successor’ is
In asserting this claim, the defendants ignore the fact that the plaintiffs have always claimed to be successors in interest, not successors. The defendants also ignore the distinction made in Drazen between successors and successors in interest. Drazen interpreted General Statutes § 47-19,
The trial court improperly concluded that the plaintiffs had no rights in the parking agreement.
II
The trial court ruled that even if the plaintiffs had rights in the contract, there was no breach by the city. This conclusion was based on the court’s interpretation that the contract requires that “a reasonable number of spaces” be available for the plaintiffs’ tenants and customers and its further finding that “since the advent of the parking agreement, there are hundreds more spaces in the vicinage of the project area. These include the reopened Arcade, the Metro parking area, the Middlesex Mutual parking garage, the newly opened courthouse garage and the spaces available in the parking areas enterable from Washington Street and Court Street lying between the Main Street stores and the old courthouse.” Because of these spaces, the trial court found that there were “a reasonable number of parking
The parking agreement does not state how many spaces must be made available for the plaintiffs’ tenants and customers. “The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the clearly erroneous standard of review. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citations omitted; internal quotation marks omitted.) Larsen v. Jacobson, 38 Conn. App. 186, 189, 659 A.2d 753 (1995).
The trial court used the method of examining the available parking in the vicinage to arrive at its conclusion that the parking agreement terms were satisfied. The court’s conclusion is not legally correct because the issue before it was whether the parking garage had a sufficient number of spaces pursuant to the agreement, not whether such parking was available elsewhere. The purpose of the parking agreement between the original redeveloper and the city was to provide convenient parking for the shopping center with at least one hour of free parking for the shopping center customers. This is precisely what the original redeveloper bargained for in return for the $9000 per year minimum payment to the city.
The plaintiffs make no claim that they are entitled to the exclusive use of all of the parking spaces. Clearly, the agreement gives the plaintiffs no such rights. We agree with the trial court’s legal interpretation that the parking agreement does not give the plaintiffs exclusive
On remand, in determining whether the city breached the contract, the trial court should take into account all of the circumstances surrounding the parking needs of the plaintiffs, including, but not limited to, automobile traffic into the garage, the number of parking validations, the number of tenants and their particular parking requirements.
The plaintiffs make two other related contract claims: (1) that the city violated the covenant of good faith and fair dealing that is implicit in all contracts, and (2) that the city “took” its rights in the contract without paying just compensation.
The trial court did not decide whether the defendants had breached the implied covenant of good faith and fair dealing because it concluded that the plaintiffs had no rights in the parking agreement. Because we conclude otherwise, the trial court should address this claim on remand.
Resolution of the “taking” claim is unnecessary in view of our earlier conclusion that the plaintiffs may enforce the agreement. If the trial court finds that the city’s actions do not constitute a breach of the contract, those same acts could not be found to be a “taking” of
Ill
A
The plaintiffs claim that the parking agreement created an easement that ran with the land. The trial court rejected this claim.
The plaintiffs’ rights of ingress, egress and parking are much more akin to a license than an easement. “[A] license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property .... Since a license does not convey a possessory interest in land ... a license does not run with the land to bind a subsequent purchaser.” (Citations omitted.) Clean Corp. v. Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993).
“[A]n easement implies an interest in land, which ordinarily is created by grant and is permanent .... In determining whether an interest relating to real property is a lease, easement or license, the intent of the parties is the controlling factor.” 25 Am. Jur. 2d, Easements and Licenses § 137 (1996). The parking agreement does not use the language of grant, nor is it executed with the formalities normally associated with the grant of an interest in real property. The word “easement” is not used in the parking agreement. Moreover, the general public has virtually the same rights of ingress and egress as do the plaintiffs. The only significant difference is that the plaintiffs do not pay for the first horn of parking for noncustomers. We note also that the parties created the parking agreement by way of
B
Because we conclude that the parking agreement did not create an easement, the plaintiffs’ claims that the easement was taken by the city without payment of just compensation need not be discussed.
IV
A
The plaintiffs also claim that One Court Street was liable for breach of the parking agreement. The trial court disposed of that issue in summary fashion by stating that “[t]here has never been an assignment of any contractual rights in the parking agreement and no assumption of any contractual obligations, under said agreement, by One Court Street.”
The linchpin of the plaintiffs’ claim against One Court Street is that it entered into the agreement with the defendant city to acquire a part of the parking garage with full knowledge of the parking agreement. The plaintiffs rely primarily on K-Mart Corp. v. First Hartford Realty Corp., 810 F. Sup. 1316 (D. Conn. 1993). There, the court found a transferee lessor liable to a lessee for performing the terms of the lease because the transferee had actual knowledge of the terms of that lease at the time it purchased the property.
In the present case, the trial court made no finding whether One Court Street purchased the property with
B
The plaintiffs also claim that the trial court improperly granted summary judgment in favor of One Court Street on the equitable estoppel count of the plaintiffs’ complaint. The trial court ruled that equitable estoppel may not be pleaded as a cause of action, and, therefore, the count failed to state a cause of action.
“[T]here are two elements which must be established in order to find an estoppel: one party must do or say something that is intended or calculated to induce another into believing in the existence of certain facts and to act upon that belief, and the other party must thereby actually change his position or do some act to his injury which he otherwise would not have done. . . . Estoppel rests on the misleading conduct which results in prejudice to the other and absent such prejudice an estoppel cannot exist.” (Citations omitted.) John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984).
We agree with the trial court’s conclusion but for a different reason. Our review of the complaint reveals that it completely lacks any factual allegations that One Court Street did anything to mislead the plaintiffs or to induce them into believing in certain facts or to act to their detriment.
V
The plaintiffs’ last claim is that the trial court improperly refused to allow them to amend their complaint to add Middletown Realty Associates Limited Partnership as a party plaintiff. The motion is dated September 2, 1994 and the trial was scheduled to commence on September 13, 1994.
“The decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court. ... In reviewing the trial court’s exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness . . . .” (Citations omitted; internal quotation marks omitted.) Wicker Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760, 596 A.2d 1331 (1991); see also Avon Plumbing & Heating Co., Inc. v. Fey, 40 Conn. App. 351, 356, 670 A.2d 1318 (1996). “We reverse discretionary rulings of the trial court only where such discretion has been abused and has caused prejudice or injustice.” Whalen v. Ives, 37 Conn. App. 7, 20, 654 A.2d 798 (1995). The trial court denied the motion to amend without comment and the plaintiffs did not request an articulation. On this record, we find
VI
The city claims three alternate grounds for affirming the trial court’s judgment: (1) the applicable statute of limitations bars the plaintiffs’ claims; (2) the plaintiffs waived any rights they might have in the parking agreement by not protesting the city’s monthly parking agreements that reduced the number of spaces available to the plaintiffs’ customers and tenants; and (3) the doctrine of sovereign immunity precludes relief against the city.
The city claims that because the original parking garage provided 565 rather than 600 spaces, there was a breach of the contract when the garage opened in 1965. The city asserts that because the plaintiffs failed to bring an action within six years after the garage opened, any breach of contract claim is now barred by the statute of limitations.
The second alternate ground, waiver by the plaintiffs by not protesting the monthly parking arrangements, is without merit. No one disputes the trial court’s conclusions that the plaintiffs are not entitled to the exclusive use of any particular spaces. It would be illogical
Because the city’s claim with respect to sovereign immunity was not briefed, we consider it abandoned. Gallagher v. Gallagher, 29 Conn. App. 482, 484, 616 A.2d 281 (1992); Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 148, 613 A.2d 853, cert. denied, 224 Conn. 919, 920, 618 A.2d 527 (1992).
The judgment is reversed only as to the defendant city and the case is remanded for further proceedings to determine whether the city breached the parking agreement and, if so, the damages to which the plaintiffs are entitled.
In this opinion the other judges concurred.
The plaintiffs are Simon Konover and Middletown Commercial Associates Limited Partnership.
Although the parking agreement required the city to construct and maintain a 600 car garage, the trial court found that the number of parking spaces did not exceed 565.
The defendants are the city of Middletown, the Middletown parking authority and One Court Street, Inc. The trial court found that the Middle-town parking authority is an agency of the city and the plaintiffs make no assertion that the parking authority is liable independently. References to the city include the parking authority.
There were numerous intervening transfers of parcels AA and AC to various entities prior to the plaintiffs’ acquisition.
The proposal was submitted by a team associated with One Court Street. For ease of reference, we refer to the proposal as that of One Court Street. The One Court Street team’s proposal was selected over a competing proposal that was submitted by Konover and Associates, Inc.
Prior to the demolition, the plaintiffs sought unsuccessfully to erijoin the closing and demolition of the north portion of the garage parcel.
The trial court reasoned that Somerset had such contract rights because it became the owner of the property. The Circuit Court of Appeals agreed that Somerset was a successor in interest, but that its contract rights arose because of its successor in interest status, not because it became the owner of the property.
This resolution disposes of the plaintiffs’ equitable estoppel claims with respect to the city and its parking authority.
General Statutes § 47-19 provides: “Leases for more than one year. No lease of any building, land or tenement, for life or for any term exceeding one year or which provides for the renewal thereof or an option to purchase such building, land or tenement, shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land, provided a notice of lease in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land and containing (1) the names and addresses, if any are set forth in the lease, of the parties to the lease, (2) a reference to the lease, with its date of execution, (3) the term of the lease with the date of commencement and the date of termination of such term, (4) a description of the property contained in the lease, (5) a notation if a right of extension or renewal is exercisable, (6) if there is an option to purchase, a notation of the date by which such option must be exercised and (7) a reference to a place where the lease is to be on file shall be sufficient.”
Our determination that the plaintiffs may enforce the contract makes it unnecessary for us to resolve the claim that the city ratified the parking agreement.
Collins v. Sears, Roebuck Co., 164 Conn. 369, 321 A.2d 444 (1973), may furnish helpful guidance with respect to the breach of contract issue. Collins involves the same parking garage as here and lease provisions between the original redeveloper and Sears regarding garage parking that are similar to the provisions of the parking agreement here. Sears claimed that it was partially evicted from the garage by the assignment of 103 to 350 of the 600 parking spaces to monthly parkers. The factors that the trial court considered in resolving that issue are similar to the factors that the trial court must consider in resolving the breach of contract issue here.
The plaintiffs assert in their brief that “a takings claim may be premised upon the taking of contract rights.” They cite to 26 Am. Jur. 2d, Eminent Domain § 81 (1966), and two cases involving the taking of franchise rights, Gray Line Bus Co. v. Greater Bridgeport Transit District, 188 Conn. 417, 423, 449 A.2d 1036 (1982), and State v. Suffield & Thompsonville Bridge Co., 81 Conn. 56, 62, 70 A. 55 (1908). No analysis is offered as to how the plaintiffs’ contract rights here are akin to a franchise. We would decline to review this claim in any event because it is inadequately briefed. See State v. Prioleau, 235 Conn. 274, 664 A.2d 743 (1995); Drabik v. East Lyme, 234 Conn. 390, 662 A.2d 118 (1995).
The plaintiffs had earlier applied for a temporary injunction seeking to prevent the partial destruction of the parking garage that was necessary to make way for the new courthouse facility. In denying that application the trial court, Austin, J., found that the parking agreement did not constitute an easement. In rendering judgment on the trial of the case, the trial court, Spa,Hone, J., adopted the reasoning of Judge Austin in finding that the parking agreement did not constitute an easement.
This language is instructive even though the Clean Corp- court did not have to decide whether the contracts at issue created licenses. Clean Corp. v. Foston, supra, 33 Conn. App. 203 n.5. We also note that we did not determine in Clean Corp. whether the defendant transferee was bound because he accepted benefits under the contract. Such a claim had not been pled or proven at trial, therefore, the plaintiff could not properly raise it on appeal.
The plaintiffs’ principal allegation in the subject count is that “[t]he City, as agent for One Court Street, has bound One Court Street by the terms of the parking agreement and One Court Street is estopped from
General Statutes § 52-576 provides that “[n]o action ... on any simple or implied contract, or in any contract in writing, shall be brought but within six years after the right of action accrues . . . .”