Opinion
No. CV03 0407202 S.
December 12, 2006.
MEMORANDUM OF DECISION
The present matter is an action by a former tenant to recover an alleged overpayment of rent dating back almost twenty years. The defendant denied the material allegations of the complaint and filed a special defense alleging accord and satisfaction. A trial on the matter was held before the court on June 16, 2006. At the trial, the court heard in-person testimony from Thomas Febbraio, President of the plaintiff corporation. The court also received the deposition testimony of the defendant Norman Pollack, who is elderly and was unable to testify in person. In addition, the court heard in-person testimony from David Pollack, the son of the defendant Norman Pollack. David Pollack assisted his father in managing the various commercial properties owned by the defendant.
Following the close of evidence on June 16, 2006, the parties filed their respective trial briefs on or about July 31, 2006. In addition to his trial brief the defendant also filed a motion for leave to amend his answer pursuant to Practice Book §§ 10-60(a)(1) and 10-62 adding a second special defense of waiver, to conform the pleadings to the proof at trial. The amended answer and special defenses have not been objected to as of this date. Thereafter, the defendant filed a reply brief dated August 14, 2006.
Sec. 10-62 reads as follows:
In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. If such allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his or her prejudice in maintaining the action or defense upon the merits, or if such amendment requires postponement of the trial or additional expense to the adverse party and this is shown to the satisfaction of the judicial authority, such amendment shall be made only upon payment of costs or upon such terms as the judicial authority may deem proper; but in any other case, without costs. Immaterial variances shall be wholly disregarded.
I The Complaint, Answer and Special Defenses
The plaintiff has filed this action by way of a writ, summons and complaint dated October 16, 2003, bearing a return date of November 4, 2003. The plaintiff has alleged that by way of a lease dated October 1986, the plaintiff leased from the defendant, the premises known as 1418 Post Road, Fairfield, Connecticut. It is alleged that the lease was for an initial period of five years commencing January 1, 1991 with three five-year renewal periods. Beginning in January 1991, and continuing throughout the lease term with renewals until December 2002, the plaintiff claims to have paid the rent amount requested by the defendant. Subsequently, upon review of the subject lease, the plaintiff determined that it had been allegedly overcharged under the lease terms throughout its tenancy. The plaintiff, by way of letter dated May 7, 2002, requested that the defendant reimburse it for the amount of the alleged overpayments, but to date, the defendant has failed to do so.
In its Amended Answer, the defendant has admitted that the plaintiff leased the subject premises from the defendant, but denies that the tenancy was pursuant to a lease dated October 1986 or in accordance with the lease terms alleged by the plaintiff. The defendant, further, admits the plaintiff paid the rental amounts required of it, but denies that said payments were timely, and also denies that the plaintiff was overcharged in accordance with the claims made in the plaintiff's letter to the defendant, dated May 7, 2002. The defendant admits that it has refused to reimburse the defendant for alleged overpayments of rent, as the defendant denies that there were, in fact, any overpayments. Additionally, the defendant has filed the two special defenses of: (1) accord and satisfaction; and (2) waiver.
II Factual Findings
The plaintiff was a tenant of the defendant at the leased premises known as 1418 Post Road, Fairfield, Connecticut for many years until December 2002. Thomas Febbraio, President of the plaintiff Chittenden, Inc., has operated several restaurant businesses at this location prior to 1987 under various names. At all times the defendant Pollack was the owner of the premises and was the plaintiff's landlord. The specific time period at issue in this case is from January 1987 until December 2002.
In the Autumn of 1986, the parties commenced negotiations for a lease of the subject premises. Two documents, purporting to be the operative lease have been presented to the court. The first document, dated September 1986 is a standard preprinted lease form available through office form companies, where the parties would fill in terms and conditions specific to their agreement in the blank spaces. The September 1986 lease form provided that the plaintiff would lease the subject premises for a period of five years, commencing January 1, 1987 and ending December 31, 1991. The base rental amount for the five-year term is set forth as $216,000. It was to be payable at a yearly rate, as follows: $40,200 in 1987; $41,700 in 1988; $43,200 in 1989; $44,700 in 1990; and $46,200 in 1991. Paragraph 29 of the document provided for additional rent based upon a cost of living surcharge in the second and subsequent years of the lease. In addition, the tenant shall reimburse the landlord the sum of $500 on each January 1st for water and waste disposal. Paragraph 30 gave the tenant the option to renew the lease for three additional consecutive five-year terms at an annual rent equal to the annual rent of the last year of the immediately preceding term plus annual $1,500 increments together with the cost of living adjustments set forth in paragraph 29. This lease document carries no date other than September 1986 and is signed only by the defendant Norman Pollack.
The document does not designate a specific date other than September 1986.
The second document purporting to be the operative lease bears a date of October 1986. This document, also on a standard preprinted lease form purports to lease the subject premises from the defendant to the plaintiff for a five-year term commencing January 1, 1991, and ending December 31, 1995. The base rent for the five-year term is a typewritten total of $216,000. The yearly rental amount is set forth as, $46,200 for 1991; $47,700 for 1992; $49,200 for 1993; $50,700 for 1994; and $52,200 for 1995. While the lease document states the base rent is a total of $216,000 for the five-year term, the yearly totals set forth above equal a total amount of $246,000. The document then states that the rental amounts for each year are to be payable monthly, in advance, on the first day of each month in installments as follows: 1991 — $3,850; 1992 — $3,995; 1993 — $4,100; 1994 — $4,225; 1995 — $4,350. The court finds that when the monthly installments are multiplied by 12 months, the total rental due for the five-year term was $246,240. The discrepancy between the 5-year base rent total of $246,000 and the total computed by the court which is $246,240 is due to conflicting totals for 1992, wherein the yearly rent is stated as $47,700. The stated monthly rent of $3,995 when multiplied by 12 months actually totals $47,940, hence the $240 difference between $246,000 and $246,240. This second purported lease document also calls for additional rent in paragraph 29 for a cost of living adjustment. However, paragraph 29 of this October 1986 document provides that in addition to the rent amounts and the cost of living adjustments, the tenant shall also pay a tax surcharge amount "equal to 35% of the taxes assessed on the premises in excess of the taxes assessed on the October 1, 1975, grand list." The tenant was entitled to pay said surcharge in four equal payments on July 1, October 1, January 1 and April 1 of each tax year.
The October 1986 document also does not designate a specific date.
The discrepancy between the stated 5-year base rent of $246,000 and the total computed by the court which is $246,240 is due to conflicting totals for 1992, wherein the yearly rent is stated as $47,700. The monthly rent of $3,995 is computed instead, as a yearly rent for 1992 amounting to $47,940.
Paragraph 30 of the October 1986 purported lease gave the tenant the option to renew the lease for thee additional consecutive five-year periods "commencing at the end of the current term, at an annual rent equal to the annual rent of the last year of the immediately preceding term plus annual $1,500 increments, together with the cost of living adjustments as set forth in paragraph 29. Paragraph Nine provided for an annual water surcharge of $250 on January 1, of each year.
Unlike the September 1986 lease form, which was only signed by the defendant landlord Pollock, the October 1986 lease form was signed by Norman Pollack and Edmond Chittenden, Inc., the plaintiff, acting by Thomas E. Febbraio, its President.
Commencing January 31, 1987, the parties entered into a landlord tenant relationship. Correspondence from the defendant to the plaintiff indicates that the base rent for the year 1987 was $3,350, which is consistent with the terms of the September 1986 lease document. The $250 water surcharge is inconsistent with the September 1986 lease which provided for a $500 charge for "water and waste disposal." The $250 amount is consistent with the terms of the October 1986 lease. In addition, correspondence from the defendant to the plaintiff dated July 13, 1987, indicates that the defendant was charging the plaintiffs a tax surcharge consistent with paragraph 29 of the October 1986 lease document. The September 1986 lease contained no tax surcharge provisions.
By way of letter dated December 17, 1987, the defendant notified the plaintiff that the base monthly rent of $3,475 ($41,700 yearly) was being increased due to a cost of living adjustment, provided for in the September 1986 lease. The letter also states that the water surcharge was $250 for the year. Once again, the water surcharge amount of $250 is consistent with the terms of the October 1986 lease. A similar letter was sent by the defendant to the plaintiff on December 19, 1989, once again adjusting the rent as called for in the September 1986 lease. A cost of living adjustment is computed and the defendant is reminded, once again of the $250 water surcharge. However, this letter also informs the defendant of a quarterly tax payment that is due, which is inconsistent with the terms of the September 1986 lease and is consistent with the October 1986 lease.
On January 2, 1991, the defendant notified the plaintiff of rental adjustments for the calendar year 1991 based on the cost of living adjustment. The defendant also requested the water surcharge of $250 and a quarterly tax payment, both of which are consistent with the terms of the October 1986 lease. A similar letter was sent to the plaintiff on December 31, 1991 adjusting the base rent for 1992 per the cost of living increase. Once again the water surcharge is $250, and a quarterly tax payment check is requested.
Similar letters were sent by the defendant to the plaintiff in December 1993, 1994 and 1995, and January 1997, 1998, 1999, 2000, 2001 and 2002 adjusting rent for the calendar years 1994, through 2002. All letters state that the water surcharge is $250 and that quarterly tax installments would be due. Each annual rent adjustment letter beginning with the letter dated December 21, 1988 also states that the "annual rental is being increased by $1,500 or $125 per month." The cost of living adjustment is then added to this figure. The water bill surcharge of $250 and the quarterly tax payment is also requested. The $1,500 per year and $125 per month rental increase amounts are consistent with the terms of both the September 1986 and October 1986 lease documents. The plaintiffs paid the stated amounts in each letter to the defendant.
Beginning in December 1997, the plaintiff began to fall behind in its monthly rent payments. The evidence before the court indicates that this was not an isolated occurrence. The yearly rent adjustment letters from the defendant to the plaintiff from January 20, 1998 through January 17, 2002 reference unpaid rental balances due the defendant from the plaintiff. On January 17, 2002, the defendant demanded payment from the plaintiff in the amount of $25,736.91 representing rental payments for November 2001 in the amount of $7,592; December 2001 in the amount of $7,592; and $10,552.87 for January 2002.
The court finds that at no time prior to the Spring of 2002, did the plaintiff ever dispute the rent computations and calculations made by the plaintiff, as evidenced by the yearly rental adjustment letters sent by the defendant to the plaintiff. Febbraio stated that he never reviewed the statements despite the fact that Febbraio, the President of the plaintiff, was an experienced businessman, property owner and real estate agent who had operated many restaurant businesses. Febbraio stated at trial that he would receive the rental adjustment letters and give them to his book keeper who then made payment to the defendant. Febbraio also admitted that his business partner was Thomas Sargent, an attorney, whose law firm represented Edmond Crittenden, Inc. However, Sargent did not appear at the trial and, thus, did not testify.
In early 2002, the plaintiff decided that it would sell its restaurant which was located at the defendant's subject premises. Febbraio admitted that the plaintiff corporation paid "some rent" for January 2002, and then stopped paying rent and other related charges altogether. In response, the defendant commenced two separate summary process actions against the plaintiff corporation, the most recent being an action commenced in the Autumn of 2002. During the course of this action the plaintiff presented a buyer for the restaurant business to the defendant for the defendant's approval, as a new lease with a prospective buyer would need to be negotiated and signed. The summary process action was continued on several occasions to allow the sale of the restaurant to occur. A condition of the agreement of the parties to allow continuances of the summary process action was the agreement and stipulation that the plaintiff would pay in full all rent and related charges owed to the plaintiff; in full, at the time of the sale of its restaurant business. The defendant had computed a rent reconciliation statement for the plaintiff prior to the date of the sale of the restaurant indicating that the plaintiff owed the sum of $86,256.80. This sum represented the balances due for the monthly rent of $7,906.82 due for February 2002 though November 2002; a balance due for January 2, 2002 in the amount of $564.80; and April, July and October 2002 quarterly tax installment payments of $2,396.06 each.
Febbraio testified that in the course of preparing to sell the restaurant he noticed what he believed were rent computation discrepancies in the statements issued by the defendant to the plaintiff throughout the previous years. In late April 2002, or early May 2002, prior to the sale of he restaurant, Febbraio notified the defendant that he had reviewed the rent invoices and computations prepared by the defendant for the lease years 1991 through 1992. In doing so, the plaintiff claimed that the defendant had computed erroneous monthly rental amount dating back to January 1991, which resulted in the plaintiff overpaying rent in the total amount of $229,866. The plaintiff believed the amounts billed by the defendant appeared to be inconsistent with the terms of the October 1986 lease, which allegedly covered the tenancy period from January 1, 1991 through December 31, 1995 with an option to renew for three additional consecutive five-year periods, as set forth in paragraph 30 of the October 1986 lease.
The court finds no evidence that the plaintiff ever formally notified the defendant of its intent to exercise its options to renew the lease for a period from January 1, 1996 through December 31, 2001 or from January 1, 2002 until the time it vacated the premises.
The defendant by way of a letter from his attorney, dated May 7, 2002 denied any overpayment of rent to the defendant, stating that all rental computations and increases were consistent with the terms of the September 1986 lease, which the defendant claims is the governing lease.
The plaintiff's tenancy eventually terminated upon the sale of the restaurant, and on or about December 6, 2002. At that time a check was issued by Sargent and Sargent, Attorneys at Law, to the defendant for the sum of $86,256.80 in accordance with the balance due computation prepared by he defendant. Sargent and Sargent made this payment in behalf of the plaintiff, apparently from the proceeds of the sale of the restaurant to a third party. In the lower left hand corner of this payment check are the words "Disputed rent." However, Febbraio testified at trial that the plaintiff corporation surrendered the lease to "end the dispute" between it and the defendant. CT Page 22282
III Discussion
The court must determine whether the governing agreement between the parties is the September 1986 lease document, signed by only the defendant; the October 1986 lease document signed by both the plaintiff and the defendant; or whether both documents are relevant for the time periods involving this tenancy. The plaintiff's claim for an overpayment is based upon whether the monthly base rental amount in January 1991 was $3,850 or $4,621. The $3,850 amount is what is stated in the alleged lease of October 1986, while the sum of $4,621 represents the base rental amount for January 1991, plus various cost of living adjustments over the years since January 1987, the initial month of the lease term stated in the September 1986 lease. If the September 1986 lease is controlling, then no overpayment exists. If the October 1986 lease is the controlling document, then an overpayment is likely, subject to the special defenses of accord and satisfaction and waiver."To be enforceable, an agreement must be definite and certain as to its terms and requirements . . . Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact for the trier of facts." (Internal quotation marks omitted.) Sivilla v. Phillips Medical Systems of North America, Inc., 46 Conn.App. 699, 708, 700 A.2d 1179 (1997). "A fact finder's determination of whether a contract existed must be based on all of the evidence. Furthermore, `[t]o form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . .' " Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 410-11, 799 A.2d 1083 (2002) cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002). A lease is a contract, and therefore, should be subject to the same rules of construction as any other contract. Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1955); Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn.App. 426, 432, 863 A.2d 211 (2004).
It is well established that "[p]arties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, supra, 70 Conn.App. 411. In addition, "[w]hat the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact." (Internal quotation marks omitted.) Suburban Sanitation Service, Inc. v. Millstein, 9 Conn.App. 283, 287, 562 A.2d 551 (1989).
"One enjoying rights is estopped from repudiating dependent obligations which he has assumed; parties cannot accept benefits under a contract fairly made and at the same time question its validity." (Internal quotation marks omitted.) Green v. Connecticut Disposal Service, Inc., 62 Conn.App. 83, 95, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001); see also Schwarzchild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774 (1983) ("[i]n the absence of a statute requiring a signature . . . parties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated, such as by the acceptance of benefits under the contract" [(internal quotation marks omitted)]).
In light of the facts as found herein, the court finds the evidence supports the finding that the September 1986, lease is an enforceable lease that existed between the parties, despite the fact that there was a variance in the agreement and the actual behavior of the parties regarding the stated water and waste disposal fee of $500 and the water fee of $250, which was actually charged to the plaintiff. The plaintiff-tenant accepted this undercharge as a benefit and has provided no evidence that it notified the defendant and offered to pay the higher rate. See. Ullman, Perimutter Sklaver v. Byers, 96 Conn.App. 501, 505-06 (2006) 900 A.2d 602.
As for the tax adjustment surcharge, which was not provided for in the September 1986 lease, the plaintiff paid it without protest from the inception of the September 1986, and never questioned its right to enforcement by the defendant until the late Spring of 2002. The court has reviewed documentary exhibits that indicate that prior to January 1987 under a previous tenancy with the defendant, the plaintiff was already paying a yearly tax adjustment charge, and continued to adhere to this condition throughout this subject tenancy.
It is evident that both parties were confused as to the terms of both documents that are alleged to be the controlling lease. Neither fully enforced the provisions of either lease against the other. They had a longstanding relationship as tenant and landlord dating back years before September and October 1986. Both were professional and experienced in their given business ventures and the court is left to question how such confusion could have arisen, unless, the parties were, in fact, actually proceeding in accordance with the mutual agreement and consent of both. The court finds that the purpose of the October 1986 lease document was actually to extend the term of the September 1986 lease. Febbraio testified that the purpose of the October 1986 lease was to extend the "current lease" which had over 4 years to go. No evidence was presented regarding any lease other than the September 1986 lease and the October 1986 lease. The court is left to conclude that Febbraio was referring to the September 1986 lease, and that the parties operated under the terms of the September 1986 lease at least until January 1, 1991. The evidentiary exhibits regarding this period of time are consistent with that conclusion.
Shortly after becoming bound by the terms of the September 1986, plaintiff wanted to extend the lease term through December 31, 1995 and afterwards by way of three additional consecutive five-year periods, which would allow a tenancy through December 31, 2010. The rental structure of the September 1986 lease was continued in the October 1986 lease. The September 1986 lease called for a base monthly rental in the amount of $3,850 for 1991 ($46,200 annually). The October 1986 lease also called for a base rent of $3,850 per month or $46,200 annually. Thereafter, in each succeeding year through the balance of the term of the October 1986 lease, the annual rent would increase by $1,500 or $125 per month, the same rate of increase in the base rent as in the September 1986 lease. The October 1986 lease confirmed that the plaintiff would also be responsible for a cost of living adjustment, a property tax adjustment and a water surcharge. Except for the property tax adjustment charge, the October 1986 lease was very similar to the terms that existed under the September 1986 lease from January 1, 1987 through December 31, 1990.
The plaintiff claims that his base rent for 1991 was not to be subject for the cost of living increases that had already been applied for the years 1987, 1988, 1989 and 1990. By way of a letter from the defendant to the plaintiff dated January 2, 1991, the plaintiff was advised that the monthly rental for 1990 which the plaintiff had been readily paying had been $4,221.41. Applying the new cost of living increase, the defendant notified the plaintiff that the monthly rental for January 1991 was to be $4,620.80. This cost of living increase was then applied in succeeding years, as the base monthly rental for 1992 was computed as $4,930.60. In 1994, documentation shows that the plaintiff paid a base monthly rental in the amount of $5,510.02 once the cost of living adjustment was again applied. This pattern continued without question or protest by the plaintiff through January 2002, when the base monthly rental with cost of living adjustment was $7,906.82. Each year of the tenancy, the defendant sent the plaintiff letters detailing the computation of the monthly rent for the new year's term. It was not until the plaintiff was deeply behind in its rent in the Spring of 1992, that the plaintiff first raised the claim that it had overpaid rent and that the defendant had been unjustly enriched as set forth in the plaintiff's complaint dated October 16, 2003.
To believe the plaintiff's claim that the October 1986 lease was the only operable and governing lease, the court would need to accept that the parties operated without a written lease from January 1, 1986 through December 31, 1990 and yet, had the foresight and business acumen in October 1986 to execute a written lease to take effect, January 1, 1991 which could bind the parties through December 31, 2010. The court finds this atypical of accepted business practices for commercial properties and not credible given the evidence that was adduced at trial. The court also does not believe that the plaintiff expected to pay a lower monthly rent for 1991 than it had paid in 1990.
A. Unjust Enrichment
The plaintiff has claimed that the defendant has been unjustly enriched. "Unjust enrichment is a common-law doctrine allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefitted another." (Internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn.App. 436, 440 n. 2, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). "In an unjust enrichment case, damages are ordinarily not the loss to the plaintiff, but the benefit to the defendant, for which the fact finder may rely on the plaintiff's contract price when the benefit is too difficult to determine." United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 515, 802 A.2d 901 (2002).
"Unjust enrichment is a quintessentially equitable cause of action. It is based on the precept that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff." Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 (1935). Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine. "With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed to examine the circumstances and the conduct of the parties and apply this standard . . ." (Internal quotation marks and internal citations omitted.) Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 606-07 901 A.2d 720 (2006). "[A] claim for unjust enrichment has broad dimensions. Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. 5 Williston, Contracts (Rev. Ed.) § 1479." Id.
The court has reviewed both lease documents and notes that paragraph Twenty-third of each provides that if there is any dispute arising under the lease, the dispute shall be settled by arbitration and that "[t]he findings and award . . . shall be final and binding on the parties hereto." The plaintiff has provided no evidence that it requested binding arbitration to resolve this dispute. Recovery under the theory of unjust enrichment is not available to the plaintiff, as a contract contained a remedy of binding arbitration which was available. However, the plaintiff failed to avail itself of this remedy.
B. Waiver
The defendant has filed a special defense of waiver. "[W]aiver, as a special defense, must be specifically pleaded." Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn.App. 251, 263, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002); see also W. Horton K. Knox, 1 Connecticut Practice Book Series: Connecticut Superior Court Rules (4th Ed. 1998) § 10-50, pp. 382, 390. "Waiver consists of the intentional abandonment or voluntary relinquishment of a known right." Statewide Grievance Committee v. Brown, 67 Conn.App. 183, 188, 786 A.2d 1140 (2001), cert. denied, 259 Conn. 919, 791 A.2d 568 (2002). It "involves the idea of assent, and assent is an act of understanding . . . Intention to relinquish must appear, but acts and conduct [consistent] with intention to [relinquish] . . . are sufficient." (Internal quotation marks omitted.) Id.; Suffield Development v. National Loan In., 97 Conn.App. 541, 565, 903 A.2d 228 (2006). Whether a waiver has occurred is a factual question. Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 340, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).
Practice Book § 10-50 reads as follows:
No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.
When the plaintiff entered into an agreement with the defendant for the defendant to forgo further action to evict it from the premises for an alleged non-payment of rent, the plaintiff relinquished its right to make a claim against the defendant regarding the possible overpayment . . . "[Waiver] involves the idea of assent, and assent is an act of understanding." (Internal quotation marks omitted.) Gagne v. Vaccaro, supra, 80 Conn.App. 445. The plaintiff believed, on the basis of what the plaintiff believed was the operable lease between the parties, that it was paying the defendant additional moneys to obtain an end to the summary process action and the approval of a lease for the new buyer of the plaintiff's restaurant. The plaintiff could have refused to pay the defendant and submitted the matter to binding arbitration as provided in both lease forms. The plaintiff did not have to enter into this agreement to pay the plaintiff the sum of $86,256.80, but made a voluntary economic decision to do so. Ace Equipment Sales v. H.O. Penn Machinery Co., 88 Conn.App. 687, 695, 871 A.2d 402 (2005).
The plaintiff cannot argue that it was under duress to sell the restaurant and, therefore, was forced by circumstances to accept the defendant's computation of the rent that was due and owing. "For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will . . . Where a party insists on a contractual provision or a payment that he honestly believes he is entitled to receive, unless that belief is without any reasonable basis, his conduct is not wrongful and does not constitute duress or coercion under Connecticut law . . ." (Internal quotation marks omitted.) Id. at 696, quoting, Traystman, Coric Keramidas v. Daigle, 84 Conn.App. 843, 846, 855 A.2d 996 (2004). There is no doubt that the defendant honestly believed he was entitled to receive the sum of $86,256.80. Therefore, any duress felt by the plaintiff was not induced by the defendant.
An important factor in the court's waiver analysis waiver lies in the plaintiff's lengthy delay in questioning the amount of rent due and in bringing suit in late 2003, long after the plaintiff had paid the defendant the disputed sum. These delays by the plaintiff in questioning the rent and bringing suit against the defendant points toward a voluntary relinquishment of a known right. Id. at 697. The court finds that the defendant has established his burden of proof as to his special defense of waiver. The plaintiff by its delay in protesting the defendant's yearly computations of rent from January 1, 1987 through the spring of 2002 and by its subsequent delay in bringing suit, has waived its right to claim an overpayment of rent and the unjust enrichment of the defendant.
IV Conclusion CT Page 22288
For the foregoing reasons stated herein, the court finds the issues in favor of the defendant, Norman L. Pollack, as against the plaintiff, Edmond Chittenden, Inc., and enters judgment for the defendant.THE COURT
Sec. 10-60(a)(1) reads as follows;
(a) Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
(1) By order of judicial authority;