MEMORANDUM OF DECISION

DAVID R. TOBIN, J.

The parties to this action are both orthopedic surgeons. On May 13, 1981 they formed a partnership, known as G B Associates, for the purpose of sharing office space, equipment and personnel. The written partnership agreement (ex. 1) provided for equal sharing of all expenses incurred by the partnership on a monthly basis. The partnership did not, at any time, involve the merging of the practices of the two physicians. The plaintiff, Dr. Brown, and the defendant, Dr. Garver, had principal staff affiliations with different hospitals. By mutual agreement the plaintiff and the defendant arranged their schedules so that while one was at a hospital operating on patients, the other was at the office seeing his patients. This dovetailing of schedules allowed the parties to efficiently share a waiting room, examining rooms, x-ray equipment and staff within a relatively compact office suite.

The terms of the partnership agreement provided that either partner had the right to "retire" from the partnership after the first two years following the signing of the agreement. In such event the non-retiring partner was required to assume all ongoing expenses of the shared facilities and hold the retiring partner harmless from such expenses. The agreement provided that unless sooner terminated, the partnership would terminate on June 30, 2001. This provision of the partnership agreement reflects the reality that the office suite which the parties shared was appropriately sized for a single medical practice.

On approximately August 1, 2001, the plaintiff and the defendant signed a new lease with their landlord, Commerce Park Associates, LLC, covering the suite at 4747 Main Street in Bridgeport, which they had occupied for many years. However, the lease was signed by the partners individually as co-tenants rather than in the name of the partnership. The term of the lease was from May 1, 2001 to April 30, 2008. In 2002 the defendant began to experience severe back problems. He consulted with a number of physicians, including the plaintiff. Over the next three years he had six back surgeries and several injections. In April 2005, the defendant traveled to Virginia where he endured another back operation. Unfortunately, the operation did not have a favorable outcome. The defendant became partially disabled and was no longer able to perform surgery. During the remainder of 2005, the defendant limited his practice to seeing patients in his office on a part-time basis. He reduced his office staff, releasing the physician's assistant he had previously employed as well as other members of his staff. The revenue from the defendant's practice declined by 80% to 85%. In August 2005, the plaintiff agreed to reduce the defendant's share of rent from $4,089 a month to $2,089 a month. By that time, Dr. Scott Waller, another orthopedic surgeon, had joined the plaintiff's practice as an employee and was seeing patients at the 4747 Main Street suite.

Toward the end of 2005, the defendant offered to sell his interest in the partnership to the plaintiff for $1.00 and to sell his practice to the plaintiff for any reasonable amount the plaintiff might wish to offer. In the expectation that the plaintiff would be purchasing his practice the defendant began referring his patients to the plaintiff. The plaintiff failed to respond to the defendant's offer for several months. The defendant then set an asking price for his practice at $250,000. The plaintiff responded with an offer to buy the defendant's practice for $1.00. The defendant's pride was hurt by the nominal amount the plaintiff had offered for the practice which had been his life's work.

Following the failed negotiations for the sale of the defendant's practice to the plaintiff, the parties were unable to reach an agreement as to how the affairs of the partnership were to be wound up. In the first quarter of 2006, the partnership was running a physical therapy department which was located in other space owned by the landlord. In March 2006, the landlord allowed the parties to surrender the physical therapy space and relocate that department to empty portions of the 4747 Main Street suite formerly occupied by the defendant's staff. This move saved the partnership the cost of additional rent of $1,960 a month that it had been paying. After March 31, 2006, the plaintiff retained all income generated by the physical therapy department.

On February 1, 2006, the defendant resigned his active staff privileges at St. Vincent's Medical Center. (Ex. 43) The resignation became effective on April 3, 2006. Shortly after sending his resignation to St. Vincent's Medical Center, the defendant notified the plaintiff that he would be leaving the suite at 4747 Main Street, effective March 31, 2006.

After March 31, 2006 the rent under the lease remained an obligation of the partnership. However, John Kimball, the landlord's property manager, testified that the landlord would have been willing to downsize the suite by partitioning it or allowing the plaintiff to relocate to smaller quarters either in the same building or a different one owned by the landlord. The plaintiff instead elected to remain in the 4747 Main Street premises.

After March 31, 2006, the defendant no longer maintained his medical practice at the suite. The defendant's sole remaining employee, an office manager, continued to occupy space in the suite until the end of August 2006 to process billing and payments relating to the defendant's practice. After March 31, 2006, the defendant ceased making payments for the expenses associated with the lease. When the plaintiff only paid one-half of the rent for March, April and May of 2006, the landlord initiated a summary process action against both parties. The action was resolved when the plaintiff paid the landlord the back rent and agreed to pay all rent due under the lease for the remainder of the term. Following the departure of the defendant's office manager in August 2006, the plaintiff was in sole and exclusive possession of the entire suite.

For a period of time after March 31, 2006, the defendant worked part-time as a physician with Orthopedic Specialty Group in Stratford and Shelton. His practice was limited to consultations. Because of his persistent back pain, he only worked two hours a day, four days a week and three weeks a month. In this endeavor, the defendant did not pay expenses, but shared revenues with Orthopedic Specialty Group. By the time of trial the defendant had terminated his relationship with Orthopedic Specialty Group and no longer engaged in any employment.

In this action the plaintiff sues to recover damages from the defendant for one-half of the previously shared expenses which the plaintiff incurred from March 31, 2006 to April 30, 2008. Initially, the plaintiff asserted only an equitable claim based on contribution. Thereafter, the plaintiff asserted a "cross complaint" which, essentially, added a second count claiming breach of the partnership agreement.

The defendant's answer (#114) denied that he is indebted to the plaintiff and asserted three special defenses and three counter claims. The first special defense asserts that the plaintiff has occupied the entire suite since March 31, 2006. The second special defense asserts abandonment or waiver of the plaintiff's claim for rent by reason of the plaintiff's occupancy of the entire suite. The third special defense asserts that if the defendant is liable to the plaintiff for a share of the rent for the suite, then the plaintiff is liable to the defendant in the same amount for the "use and occupancy" of the suite to the exclusion of the defendant.

In his first counterclaim, the defendant asserts that since April of 2005, he has been "virtually disabled from the practice of medicine" and that the plaintiff was aware of this disability. He further alleges that the plaintiff allowed Dr. Scott Waller to occupy space previously used by the defendant. He claims that after March 2006, when the defendant ceased to pay any share of the rent for the suite, the plaintiff failed to pay the entire rent and that thereafter the landlord brought an action to evict both the plaintiff and the defendant from the suite for non-payment of rent. In connection with the eviction action, the defendant was subjected to having his name published, and that such publication caused him humiliation and embarrassment. The first count also contains a claim for damages for the plaintiff's exclusive use of medical, diagnostic, physical therapy and other equipment which is owned, in part, by the defendant. The first count also includes claims for conversion of the equipment; wrongful denial of access to certain financial information related to the defendant's practice; and wrongful interference with the defendant's practice of medicine in various and sundry ways. The defendant's first counterclaim improperly combines a number of causes of action.

The second count of the counterclaim sets forth a claim for use and occupancy of the suite from March 31, 2006. The third count of the counterclaim seeks partition by sale of the assets of the G B Associates partnership.

The plaintiff filed an answer denying the allegations of the counter-claim and asserting a "cross complaint" against the defendant alleging breach of the partnership agreement. (#117.) The defendant closed the pleadings by filing an answer denying the essential allegations of the "cross complaint" and asserting seven special defenses and a "counter cross complaint." At trial, the parties abandoned the claims set forth in a majority of their pleadings and tried the case as if the plaintiff had asserted two counts, the first asserting the viability of the partnership agreement and the defendant's breach thereof, and the second asserting the right to equitable contribution as an alternative.

On January 14, 2009, the parties stipulated that the defendant is entitled to a credit in amount of $8,500 representing the value of his claims against the plaintiff. This stipulation resolved any issues arising out of the defendant's counterclaims. In this decision, the court will address only those causes of action, special defenses and counterclaims which the parties briefed and did not subsequently abandon.

DISCUSSION THE PARTNERSHIP AGREEMENT

The plaintiff claims that the partnership agreement continued in effect after June 30, 2001, the termination date specified in the agreement, and that the parties' obligations to each other would be controlled by that agreement. The plaintiff also claims that the August 2001 lease was an obligation of the partnership and the defendant breached the partnership agreement by failing to reimburse the partnership for his share of the rent after March 31, 2006. The plaintiff further asserts that even if the court finds that there was a voluntary termination of the partnership pursuant to paragraph 14 of the agreement, the defendant is still liable to plaintiff for one-half of the rent for the entire term of the August 1, 2001 lease under the equitable principal of contribution.

The plaintiff claims that, in his pleadings, the defendant has conceded that the partnership agreement remained in effect after June 30, 2001. In his brief, the defendant concedes that after June 30, 2001 the parties "continued the partnership under the same terms and conditions as set forth in the partnership agreement." Accordingly, the court finds that the rights and obligations of parties are governed by the partnership agreement.

This finding is consistent with the provisions of General Statutes § 34-340 which states, in relevant part:

a) If a partnership for a definite term . . . is continued without an express agreement, after the expiration of the term . . . the rights and duties of the partners remain the same as they were at the expiration or completion, so far as is consistent with a partnership at will.

b) If the partners, or those of them who habitually acted in the business during the term or undertaking, continue the business without any settlement or liquidation of the partnership, they are presumed to have agreed that the partnership will continue.

The evidence supports the plaintiff's claim that the parties continued the partnership after the June 30, 2001 termination date provided in the partnership agreement. There was no distribution of the partnership assets or any other action consistent with the winding up of the business of the partnership at that time. Until 2006, the partnership continued to maintain a bank account to which deposits were made on a monthly basis by the partners and the partnership wrote checks to the landlord of the suite for payment of the rent. Moreover, the partnership continued to file partnership income tax returns for 2001, 2002, 2003 and 2004.

The lease was signed in the names of the individual partners and not that of the partnership. Nevertheless, from 2001 until March 2006, the partnership paid the basic rent and other charges due under the lease. Under these circumstances, the court agrees with the plaintiff that the tenants' obligations under the lease were partnership obligations. The court finds that the partnership did not terminate on June 30, 2001 as provided in the partnership agreement. The court also finds the partnership was continued after that date as a partnership at will, pursuant to the provisions of General Statutes § 34-340.

The plaintiff asserts that the defendant did not "retire" from the partnership at the end of March 2006 and thus remained liable for a proportionate share of partnership expenses through the end of the lease on April 30, 2008. The plaintiff relies on the provisions of paragraphs 14, 15 and 21 of the partnership agreement. Paragraph 15 allows either partner, after January 1, 1984, to "retire" from the partnership by giving sixty days written notice to the other partner. The non-retiring partner is required to purchase the retiring partner's interest in partnership assets and to be responsible for all partnership liabilities accruing after the effect date of the retirement. Paragraph 21 states that if the non-retiring partner "fails to elect to purchase the retiring partner's interest in the partnership provided for under Paragraph 15 of the partnership agreement, the retirement shall be treated as voluntary termination of the partnership agreement by both partner's pursuant to Paragraph 14 of the partnership agreement."

Paragraph 14 covers the distribution of assets in the event of liquidation. With respect to liabilities, the agreement contemplates that partnership assets would be used to "pay or provide for the payment of all partnership liabilities and liquidating expenses and obligations."

Although the defendant claims that he "retired" from the partnership, there was no evidence presented to the court that a written notice, as required by the partnership agreement, was given to the plaintiff. The defendant's reliance on letters from his counsel to plaintiff's counsel (ex. 21 and ex. 23) is misplaced. Neither letter can be reasonably construed as a notice of "retirement" from the partnership under Paragraph 15 of the partnership agreement.

Paragraph 20 of the partnership agreement provides, in relevant part: "In the event either partner to this agreement loses his license to practice medicine in the State of Connecticut by involuntary act or loses the privileges to admit patients to at least one hospital in the Bridgeport, Connecticut area, this shall constitute a default under the partnership agreement, and the partner so defaulting shall be considered to have served notice on the other partner of the defaulting partners' voluntary retirement from the partnership."

After April 3, 2006, the defendant no longer enjoyed staff privileges at St. Vincent's Medical Center by reason of his resignation dated February 1, 2006. There was no evidence presented that after that date the defendant had privileges at any other hospital in the Bridgeport area. The language of paragraph 20 of the partnership agreement does not apply in the event that a partner voluntarily gives up his license to practice medicine. However, it appears that the loss of admitting privileges can be the result of either a voluntary or an involuntary act. In any event, the evidence establishes that the defendant's physical condition compelled him to resign from the staff of St. Vincent's Medical Center and that resignation was not intended to avoid any obligations under the partnership agreement.

Under the provisions of paragraph 15, retirement from the partnership is effective upon sixty days notice. Pursuant to paragraph 20, the effective date of the defendant's loss of admitting privileges, April 4, 2006, would be considered to be the date of a retirement notice. Given the requirement of sixty days prior notice under paragraph 15, such retirement would become effective on June 3, 2006 (sixty days after April 4, 2006).

The plaintiff claims that the defendant did not "retire" from the partnership because, after April 1, 2006, he associated himself with another orthopedic practice and saw patients on a part-time basis. There is nothing in the terms of the partnership agreement or the circumstances surrounding the parties at the time of its execution which suggests that "retirement" from the partnership required or implied retirement from professional practice. There was no requirement under paragraph 15, that a "retiring partner" give up the practice of medicine. The provisions of paragraph 20 are triggered either by either the involuntary loss of professional license in Connecticut or the loss of admitting privileges at Bridgeport area hospitals.

General Statutes § 34-340 expressly provides that where a partnership is continued beyond the stated term, "the rights and duties of the partners remain the same as they were at the expiration or completion, so far as is consistent with a partnership at will." General Statutes § 34-372 is the only provision of the Connecticut Uniform Partnership Act to define any aspects of a partnership at will. That statute provides: "A partnership is dissolved, and its business must be wound up, only upon the occurrence of any of the following events: (1) In a partnership at will, the partnership's having notice from a partner, other than a partner who is dissociated under subdivisions (2) to (10), inclusive, of section 34-355 of that partner's express will to withdraw as a partner, or on a later date specified by the partner . . ." The evidence did not show that any of the events described under General Statutes § 34-355(2) through (10) occurred. Such events include, inter alia, expulsion as a partner, bankruptcy, death, judicial determination of incompetency, and loss of fiduciary position.

General Statutes § 34-302 provides, in relevant part: "a) A person knows a fact if the person has actual knowledge of it. (b) A person has notice of a fact if the person: (1) Knows of it; (2) has received a notification of it; or (3) has reason to know it exists from all of the facts known to the person at the time in question. (c) A person notifies or gives a notification to another by taking steps reasonably required to inform the other person in ordinary course, whether or not the other person learns of it. (d) A person receives a notification when the notification: (1) Comes to the person's attention; or (2) is duly delivered at the person's place of business or at any other place held out by the person as a place for receiving communications."

The court concludes that the provisions of Paragraph 15 and 20 of the partnership agreement are not inconsistent with the provisions of the Uniform Partnership with respect to the rights and duties of partners at will. The court finds that the plaintiff had sufficient notice under General Statutes § 34-302 of the defendant's intention to retire from the partnership. The court further finds that the termination of the defendant's admitting privileges on April 4, 2006 also served as notice of retirement, effective June 3, 2006.

For the reasons set forth below, the court finds that it need not determine whether notice of the defendant's retirement from the partnership in accordance with General Statutes § 34-302 took effect prior to June 3, 2006.

The court also finds that the provisions of Paragraph 15 of the partnership agreement requiring the remaining partner to indemnify and hold the "retiring" partner harmless from after accruing partnership obligations are not inconsistent with the rights and duties of partners at will under the Uniform Partnership Act. The plaintiff urges that even if the defendant "retired" from the partnership, other provisions of the partnership agreement do not necessarily require that he hold the defendant harmless from the obligations accruing under the lease. In particular, the plaintiff relies on the provisions of paragraph 21, which provides: "In the event that a partner retires from the partnership and the remaining partner fails to elect to purchase the retiring partner's interest in the partnership provided under Paragraph 15 of the partnership agreement the retirement shall be treated as a voluntary termination of the partnership by both partners pursuant to Paragraph 14 of the partnership agreement."

The evidence does not support the plaintiff's position. After the defendant's retirement from the partnership, the plaintiff remained in sole possession of all personal property owned by the partnership and used that property exclusively in his medical practice. The plaintiff took no action to avoid the expenses associated with maintaining the suite at 4747 Main Street, although he was aware that the landlord was willing to partition the suite or to relocate the plaintiff and his practice to a smaller suite. There are no documents in evidence establishing that the plaintiff claimed that the partnership had been voluntarily terminated pursuant to paragraph 14. Moreover, the evidence does not support the plaintiff's reliance on paragraph 21 to invoke the requirements of paragraph 14. Paragraph 14 contemplates a sequence events connected with liquidation of the partnership and winding up of its affairs which the plaintiff neither initiated or participated in.

Indeed, the documentary evidence is inconsistent with the plaintiff's position. Exhibits 6 and 7 show that on September 26, 2006, the plaintiff wrote to the defendant claiming that he was entitled to be paid one-half of the rent on the suite from April 2006 to September 2006. The letter advised the defendant that he was in default under paragraph 19 of the partnership agreement because of his failure to make contributions to the partnership for one-half the rent. Paragraph 19 provides that failure to cure a default in monthly payments may, at the option of the non-defaulting party, be construed as the equivalent to a notice of voluntary retirement under paragraph 15. This letter is inconsistent with a claim that the partnership was in the process of a voluntary termination under paragraph 14. The court finds no evidence supporting the plaintiff's claim that following the defendant's "retirement" from the partnership he failed to "elect to purchase the retiring partner's interest in the partnership" under paragraph 21. The failure of the plaintiff to pay the defendant his share of the value of partnership assets and to sign a written indemnification and hold harmless agreement pursuant to paragraph 15 are insufficient indicia of a rejection of such an election when coupled with the plaintiff's retention of all partnership assets and his exclusive possession of the suite.

The plaintiff testified that following March 31, 2006, he, along with Dr. Waller occupied the entire suite at 4747 Main Street. Following the expiration of the lease on April 30, 2008, the plaintiff continued to occupy the same premises as a tenant at will, up to the time of trial. The court finds that the plaintiff could have avoided paying any rent for any space which he did not need to occupy for his practice, and that of Dr. Waller. Any damage which the plaintiff claims to have suffered as the result of his continued occupancy of the suite at 4747 Main Street was not the result of an unavoidable partnership obligation which the defendant was obligated to share, but the result of the plaintiff's decision not to relocate his practice or downsize the suite.

The court finds that the effective date of the defendant's retirement as a partner was June 3, 2006. Under the terms of the partnership agreement the defendant is obligated to pay his share of the rent for the period April 1, 2006 through June 3, 2006.

CONTRIBUTION

"Contribution is a payment made by each, or by any, of several having a common interest or liability of his share in the loss suffered, or in the money necessarily paid by one of the parties in behalf of the others . . . The right of action for contribution, which is equitable in origin, arises when, as between multiple parties jointly bound to pay a sum of money, one party is compelled to pay the entire sum. That party may then assert a right of contribution against the others for their proportionate share of the common obligation." (Citations omitted; emphasis in original; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 639-40 (1999).

The court finds that the evidence does not support the defendant's claim that he ceased to occupy the suite on March 31, 2006. The parties agree that from April 1, 2006 until approximately August 31, 2006, the defendant's bookkeeper continued to work in suite. Based on the plaintiff's first count claiming equitable contribution, the court finds that the defendant is liable to the plaintiff for a proportionate share of the rent for the period June 4, 2006 to August 31, 2006.

DAMAGES

The evidence shows that as the defendant began winding down his practice as Dr. Waller joined the plaintiff's practice, the parties agreed to reduce the defendant's share of rent from $4,089 a month to $2,059 a month because of his reduced income, reduced staff and reduced presence at the suite. The defendant paid this amount through March 31, 2006 and the plaintiff accepted the amount without reservation. The court finds that this arrangement superceded the requirements of paragraph 7 of the partnership agreement that the parties share joint expenses on a fifty-fifty basis. The court rejects the plaintiff's contention that the reduction of the defendant's rent was partial consideration for the prospective purchase of the defendant's practice by the plaintiff. The parties never engaged in meaningful discussions as to the financial aspects of such a purchase and the court finds no evidence that the reduction of the defendant's share of rent was conditional and not permanent.

After March 31, 2006, the defendant never returned to the 4747 Main Street suite. The defendant's only occupancy was the presence of his office manager through August 31, 2006. After March 31, 2006, Dr. Waller occupied the office in the suite which the defendant had formerly occupied. The court finds that the defendant's "retirement" from the partnership was effective June 3, 2006. He was responsible for his share of the partnership expenses up to and including that date. Moreover, the evidence shows that the plaintiff is equitably entitled to compensation for occupancy of the suite by the defendant's office manager June 4, 2006 through August 31, 2006.

At the rate of $2,089 a month for the five months from April 1, 2006 through August 31, 2006, the defendant owes the plaintiff a total of $10,445. The court would have been required to award the plaintiff the same amount of damages even if it had determined that the plaintiff had notice, pursuant to General Statutes § 34-302, which operated to make the defendant's retirement from the partnership effective prior to June 3, 2006. Pursuant to the parties' stipulation, the defendant is entitled to a credit of $8,500. Judgment may enter in favor of the plaintiff for $1,945 without costs to either party.

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