914 N. Colony v. 99 W.

319 A.3d 815

226 Conn.App. 720

914 NORTH COLONY, LLC

v.99 WEST, LLC

(AC 46943)

Appellate Court of Connecticut.

Argued May 16, 2024

Officially Released July 16, 2024

John A. Farnsworth, Greenwich, with whom, on the brief, was Robert L. Rispoli, for the appellant (plaintiff).

Jonathan A. Kaplan, Hartford, with whom was Sean M. McAuliffe, for the appellee (defendant).

Bright, C. J., and Cradle and Seeley, Js.

BRIGHT, C. J.

₇₂₁The plaintiff, 914 North Colony, LLC, appeals from the judgment of the trial court dismissing its summary process action against the defendant, 99 West, LLC. On appeal, the plaintiff claims that the court improperly concluded that the plaintiff had reinstated the tenancy by accepting the defendant’s tendered payments after service of the notice to quit, despite the fact that the notice to quit included a use and occupancy disclaimer. We disagree with the plaintiff’s characterization of the court’s judgment and conclude that the court properly found that the plaintiff’s actions rendered the notice to quit equivocal, thereby depriving the court of subject matter jurisdiction over the summary process action. Accordingly, we affirm the judgment of the trial court.

The following undisputed facts are relevant to our analysis.¹ On December 1, 2017, the plaintiff purchased a parcel of land located at 914 North Colony Road in Wallingford and consented to the assignment and assumption of a preexisting lease agreement (lease) ₇₂₂with the defendant, which operates a restaurant on the premises.² The initial term of the lease began on April 19, 1999, and expired on April 18, 2019, but the lease allowed the defendant to exercise a series of four options to extend the lease for additional five year terms, and the defendant had exercised the first of these four options to extend the lease until 2024. Under the lease, the defendant is responsible for payment of the base rent on the nineteenth day of each month and a 5 percent late fee for any late payments. The base rent amount is subject to an increase at the start of each five year term extension of the lease; throughout the events at issue in this appeal, the monthly base rent was $8078.34. The lease also requires the defendant to pay charges for real estate taxes as "additional rent" and water and sewer assessments. Customarily, the defendant pays the base rent on the first of each month and pays the other charges when billed by the plaintiff.

On March 10, 2020, Governor Ned Lamont declared a state of emergency because of the COVID-19 pandemic. Following this declaration, Governor Lamont issued Executive Order No. 7D, which prohibited restaurants from serving food or drink for on premises consumption. Following this restriction, the defendant started to offer takeout food but still suffered financially. On March 27, 2020, the defendant’s corporate affiliate, 99 Restaurants, LLC, sent a letter to the plaintiff stating that, due to the financial impact of the pandemic and related restrictions, the defendant was excused from performance under the lease and would "not be paying the rent and other amounts due under the lease for the month of April, 2020." The plaintiff did not reply to this ₇₂₃letter. After the defendant did not pay the base rent when due on April 19, 2020, the plaintiff served the defendant with a notice to quit for nonpayment of rent on May 4, 2020, directing the defendant to vacate the premises on or before May 12, 2020. The notice to quit included a disclaimer stating that "[a]ny payments tendered after the service of this notice to quit will be accepted as use and occupancy only and not as rent, with full reservation of rights to continue the eviction action."

On May 8, 2020, the defendant tendered $16,156.68 for the April and May base rent, which the plaintiff received on May 11, 2020, one day prior to the quit date on the notice. Shortly after this payment, Peter DiNardo, a representative of the plaintiff, and Chad Corrigan, a representative of the defendant, discussed the status of the lease. At trial, DiNardo testified that, during this conversation, he stated, "[Y]ou will not be reinstated on your lease. The lease is terminated." On May 12, 2020, DiNardo emailed Corrigan an offering memorandum for an adjacent property to demonstrate that the defendant’s base rent was lower than the market rate. The offering memorandum included a lease summary that reflected a base rent for the adjacent property that was more than double the amount of the defendant’s base rent. Over the next few months, DiNardo and Corrigan continued to have discussions regarding the defendant’s tenancy at the premises, and DiNardo testified that, at some point, he offered to let the defendant stay at the premises under a new lease agreement with a higher base rent. DiNardo also explained that the plaintiff commenced this action seeking to recover possession of the premises in October, 2020, only when it became apparent that the defendant would not agree to a new lease.

During the months when discussions were taking place between DiNardo and Corrigan, as well as after ₇₂₄the underlying action was commenced, the plaintiff continued to send invoices to the defendant itemizing charges accruing under the lease, while also at times requesting use and occupancy payments. Specifically, on May 20, 2020, the plaintiff sent an invoice for "Rent (06/2020)" and "Water (05/2020)." On June 19, 2020, the plaintiff sent an invoice for "Use & Occupancy (07/ 2020)," "Legal (06/2020)," and "Late Fees (06/2020)." On July 13, 2020, the plaintiff sent a letter requesting that the defendant pay real estate taxes. On August 20, 2020, the plaintiff sent an invoice for "Use & Occupancy (09/2020)" and "Water (08/2020)." On September 18, 2020, the plaintiff sent an invoice for "Use & Occupancy (10/2020)" and "Late Fees (09/2020)." On October 21, 2020, the plaintiff sent an invoice for "Use & Occupancy (11/2020)." On November 20, 2020, the plaintiff sent an invoice for "Use & Occupancy (12/2020)" and "Water (11/2020)."

On December 31, 2020, the plaintiff sent an invoice for "Rent (01/2021)" and "Real Estate Taxes (01/ 2021)." From January, 2021, to July, 2022, the plaintiff continued to send invoices for "Rent," late fees, water, and real estate taxes. The defendant made payments in response to each invoice and remains in possession of the premises.

A trial on the plaintiff’s summary process complaint was held on September 21, 2023. Following the plaintiff’s case-in-chief, the defendant’s counsel made an oral motion to dismiss, arguing that the evidence showed that the plaintiff, through its actions, had equivocated the notice to quit it had served on the defendant, thereby depriving the court of subject matter jurisdiction. In particular, the defendant’s counsel argued that any termination of the lease was equivocated by the plaintiff’s offers to reinstate the lease and its requests for payment of items such as the water bill, real estate taxes, and ₇₂₅late fees, which arise solely under the lease. In response, the plaintiff’s counsel argued that DiNardo explicitly stated that the lease was terminated and would not be reinstated; the discussions following the notice to quit did not evidence an intent to reinstate; and the payments following the notice to quit were accepted for use and occupancy only, per the disclaimer in the notice to quit.

After hearing from the parties, the court granted the motion to dismiss, finding that the plaintiff’s conduct after service of the notice to quit had rendered the notice to quit equivocal. In its oral decision, the court explained that "[t]he fact that the complaint wasn’t brought for another five, six months [after service of the notice to quit] while these communications were going on, while statements went out asking for rent, while the items that went for taxes, water, sewer, which are items on the rent, while late fees are still showing up on invoices, and a complaint got served five, six months later as a negotiation tactic probably, but I think by that point this lease was reinstated by the actions of the parties by the acceptance of the payment. … [B]ased on the testimony before the court, I can’t find that this was not equivocated. The intent, the waiting the five months … during a global pandemic, the motion to dismiss is granted. The notice to quit was equivocated. The lease was reinstated as of the acceptance of that payment." This appeal followed.

[1, 2] On appeal, the plaintiff claims that the court improperly concluded that the plaintiff had reinstated the tenancy by accepting the defendant’s tendered payments after service of the notice to quit despite the fact that the notice to quit included a use and occupancy disclaimer. It argues that the court’s conclusion is "unsupported₇₂₆ by applicable law and [is] not supported by facts in the record."³ We are not persuaded.⁴

[3] We begin our analysis by setting forth the applicable standard of review and relevant legal principles regarding summary process. Whether the court properly concluded that the plaintiff reinstated the defendant’s tenancy through its course of conduct following the service of an unequivocal notice to quit "presents a mixed question of law and fact to which we apply plenary review. … We must therefore decide whether the court’s conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Centrix Management Co., LLC v. Valencia, 132 Conn. App. 582, 586-87, 33 A.3d 802 (2011).

[4] ₇₂₇When determining whether a landlord’s conduct rendered a notice to quit equivocal, courts apply an objective standard that evaluates whether the words and actions of the landlord "could create reasonable doubt in the mind of a reasonable tenant as to whether the lease, in fact, remained terminated." Id., at 589, 33 A.3d 802. In the present case, the facts are undisputed, and the court credited the testimony of DiNardo,...