Dinardo Seaside Tower, Ltd. v. Sikorsky Aircraft Corp.

153 Conn.App. 10

100 A.3d 413

DINARDO SEASIDE TOWER, LIMITED

v.SIKORSKY AIRCRAFT CORPORATION.

No. 35510.

Appellate Court of Connecticut.

Argued Feb. 4, 2014.

Decided Sept. 23, 2014.

J. Christopher Rooney, with whom were Anne D. Peterson and, on the brief, Kurtis Z. Piantek, New Haven, for the appellant (plaintiff).

Edward V. O'Hanlan, with whom were Thomas J. Donlon, Stamford, and Michele Maresca, Hartford, for the appellee (defendant).

DiPENTIMA, C.J., and LAVINE and DUPONT, Js.

Opinion

DiPENTIMA, C.J.

The plaintiff, DiNardo Seaside Tower, Ltd., appeals from the judgment rendered in favor of the defendant, Sikorsky Aircraft Corporation, following a twenty-three day jury trial. On appeal, the plaintiff claims that the trial court (1) improperly granted the defendant's motion for a directed verdict as to the second count of the complaint alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., (2) improperly charged the jury, and (3) committed harmful error in a number of evidentiary rulings. We are not persuaded by these claims of impropriety, and, accordingly, affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the plaintiff's appeal. This action arose out of a lease between the parties concerning certain industrial property owned by the plaintiff in Bridgeport. The lease commenced on November 23, 1987, whereby the defendant agreed to occupy buildings consisting of approximately 220,000 square feet with an initial annual rental fee of $1.2 million dollars. The defendant was responsible for payment of all property taxes, sewer use charges and public utilities charges and for maintaining security.¹

In April, 2000, the defendant notified the plaintiff that it intended to “complete” the lease at the end of the year. In a December 30, 2000 completion agreement signed by the parties, the defendant agreed to make payments pursuant to the terms of the lease covering the time period of January 1, 2001, through November 30, 2002. The parties agreed that the defendant had satisfied all of the conditions for the return of the leased property, subject to a few minor duties that the defendant agreed to perform.

In 2001, the defendant needed space to manufacture H–66 Comanche helicopters for the United States Army. On March 1, 2002, the parties executed “AMENDMENT NO. 3 TO LEASE AGREEMENT” (third amendment), which terminated the completion agreement and ratified, adopted and restated the provisions of the lease agreement between the parties, except as expressly amended by the terms of third amendment. The third amendment extended the terms of the lease until November 30, 2007. From March, 2002, through November, 2002, the monthly rent was $100,000, and for the balance of the lease the monthly rent increased to $110,000. Paragraph 6 of the third amendment provided: “[The defendant] may, at [the defendant's] option and at [the defendant's] sole cost and expense, construct the improvements to the Premises (“the [defendant] Improvements”) described in the plans and specifications to be attached hereto and made a part hereof as Exhibit A in a mutually agreeable form by [the plaintiff] and [the defendant]. Such plans and specifications shall be attached hereto within sixty (60) days after execution hereof. After completion of the [defendant] Improvements, such [defendant] Improvements shall be deemed as part of the Premises and not subject to restoration or removal upon expiration or termination of the Lease term.

“Notwithstanding any provision to the contrary contained herein or in the Lease, upon completion of the Phase I and Phase II [defendant] Improvements (as delineated and set forth on Exhibit A), such [defendant] Improvements (other than [the defendant's] furniture, equipment and removable trade fixtures) shall become property of [the plaintiff] and [the defendant] shall not be required to remove or restore the Factory Area [defendant] Improvements (as delineated and set forth on Exhibit A ) at the end of the Lease term, provided, however, that [the plaintiff] may, by written notice to [the defendant] at least sixty (60) days prior to the end of the Lease term, designate any or all of the Factory Area [defendant] Improvements to remain as property of the [plaintiff] and not be removed or restored at the end of the Lease term, as such term may be extended.” (Emphasis in original.)

The defendant proceeded to modify the interior of the property, including the construction of office space with workstations that required electric, data and telephone wires. The defendant gained the approval of the plaintiff to replace the existing 90 ton chilled water air conditioning system with a 270 ton version, but due to budgetary concerns, elected to install a direct expansion (DX) air conditioning system.

In 2004, the Army canceled the Comanche helicopter program. The defendant's lease obligation, however, did not terminate until the end of 2007. As the end of the lease approached, Alan David Mortensen began to review the condition of the property on behalf of the plaintiff. Specifically, in the summer of 2007, Mortensen took photographs of the parking lot and building exteriors. Later, he conducted a walk through of the buildings with representatives of the defendant. On September 28, 2007, Mortensen drafted a memo with attached photographs of the walk through. Mortensen indicated in this report that many certifications and records of testing were either missing or expired. With respect to the exterior of the building, Mortensen determined that the parking lot, catch basins and curbs were in need of repair; specifically, the cracks needed to have weeds removed and be filled and the parking lots lines needed to be redone. Mortensen also noted that the building exterior was in need of repair; namely, the windows and frames were in poor condition and the DryVit stucco exterior was fractured and sagging. Mortensen further indicated that the telephone switch and the data/voice and power infrastructure had been removed from the building and that a DX air conditioning system had been installed rather than the chilled water system approved by the plaintiff.

The plaintiff sent various notices to the defendant regarding its assessment of the condition of the property. Representatives of both parties attended a meeting on November 29, 2007, just prior to the expiration of the lease, regarding the plaintiff's concerns regarding the condition of the property. At that meeting, no one on behalf of the defendant offered to address or remedy the plaintiff's issues. Two days later, the plaintiff acknowledged the receipt of the keys to the property but rejected the defendant's attempted surrender of the premises.

In 2009, the plaintiff commenced the present action with a two count complaint. Count one alleged that the defendant had breached the terms of the lease agreement. Specifically, the plaintiff alleged that the defendant improperly had removed telecommunications, data and electrical power wiring, had cut wires, had disabled the telephone system to the point that a replacement was necessary, had disabled the energy management, security and fire alarm systems that had been connected to an off-site property owned by the defendant, had disabled the card access aspect of the security system, had removed security cameras and had cut various pipes throughout the building. The plaintiff further alleged that, in breach of the lease agreement, the defendant had failed to maintain the property, including failing to clean and caulk thermal windows, which allowed water to damage the building and caused the DryVit stucco exterior to fail, and failing to maintain the parking lot and sidewalks. Finally, the plaintiff claimed that employees of the defendant had vandalized the interior of the buildings and removed property belonging to the plaintiff.

In count two of the complaint, the plaintiff alleged that the conduct of the defendant constituted a violation of CUTPA. Specifically, it claimed that the intentional destruction of the property constituted an unfair trade practice and was done with malice toward the plaintiff and/or to prevent another occupant from using the property.

During the trial, the defendant presented evidence that the air conditioner it had installed was less expensive, but either system would “do a fine job.” Additionally, its evidence contradicted the plaintiff's contention that the plaintiff's approval was necessary to replace the air conditioning system. The defendant also produced evidence that would permit the jury to conclude that the terms of the lease permitted the defendant to remove its equipment, furniture and trade fixtures, namely, the modular furniture from the office space work stations and the associated wires that supplied those stations. The defendant also produced evidence that abandoned data wiring needed to be removed because it constituted a fire and structural hazard and that new tenants often preferred to install their own wiring to meet the needs of their particular business. Finally, the defendant noted that the terms of the lease placed the maintenance of the DryVit stucco exterior with the plaintiff.

At the conclusion of the plaintiff's case, the defendant moved for a directed verdict with respect to both counts. The court reserved judgment on the motion in accordance with Practice Book § 16–37.² At a later date, the court requested the parties to submit case law addressing whether leasing of the property was part of the defendant's trade or commerce. After considering the materials submitted by the parties, the court granted the defendant's motion for a directed verdict with respect to the CUTPA count. Specifically, the court determined that the plaintiff had failed to establish that the defendant was in the trade or commerce of renting or leasing properties and its ...