T.J.L., LLC v. Kelly

Full title: T.J.L., LLC et al. v. Larry Kelly dba East Windsor Golf Center

Court: Connecticut Superior Court Judicial District of Hartford, Housing Session at Hartford

Date published: Jan 2, 2007

2007 Ct. Sup. 121 (Conn. Super. Ct. 2007)

Opinion

No. HDSP-136536

January 2, 2007

MEMORANDUM OF DECISION

JAMES M. BENTIVEGNA, J.

SUMMARY PROCESS ACTION I STATEMENT OF CASE

This is a summary process action based on nonpayment of rent and breach of lease. The plaintiff seeks immediate possession of the premises and forfeiture of the defendant's possessions and personal effects pursuant to General Statutes § 47a-42a. The defendant has raised the following special defenses: (1) rent was mailed to the plaintiff, but the plaintiff or his agents, servants and/or employees refused to accept the tendered rent; (2) by unilaterally changing the rent collection procedure, the plaintiff has forced the defendant into a breach of the lease; and (3) failure to provide the defendant with adequate notice of breach and time to cure breach.¹ The case was tried on May 5, 2006, and June 16, 2006. The last post-trial brief was filed on November 16, 2006.

1 "Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
Practice Book § 10-50, entitled "Denials; Special Defenses," provides in relevant part: "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."

II FINDINGS OF FACT

In his answer, dated March 1, 2006, the defendant admitted the following material allegations of the complaint.² The defendant agreed to pay rent, took possession of the premises pursuant to the lease, and still occupies the premises. On January 9, 2006, the plaintiff's attorney sent a letter to defendant's attorney which provided written notices of the lease violations. On February 3, 2006, the plaintiff served the defendant with a notice to quit possession, with a quit date of February 8, 2006. Although the time given in the notice to quit has passed, the defendant remains in possession of the premises. The defendant contested the remaining allegations of the complaint.

2 "The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader." Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260, 262 (1977); "An admission in pleading dispenses with proof, and is equivalent to proof." (Internal quotation marks omitted.) Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909).

The Court finds the following facts are proved by a fair preponderance of the evidence.³

3 The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The genera burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." (Citation omitted.) Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087 (1992). The standard of proof in summary process actions, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

One of the plaintiffs, T.J.L. Investment Trust, LLC, is the record owner of the premises at 12 South Main Street Wagner Lane, East Windsor, Connecticut.⁴ Elizear Rodrigue, aka Al Rodrigue, is the acting managing member of the LLC. On April 5, 2004, the property was transferred by deed from Rodrigue to the T.J.L. Investment Trust, LLC.

4 Evidence presented during the trial demonstrated that one of the named plaintiffs T.J.L., LLC is actually not the record owner of the property. Rather, the record owner is TJL Investment Trust, LLC. Initially, the defendant raised the issue of whether the issuance of a notice to quit and the bringing of a summary process action by a party that is not the record owner of the subject premises deprive the court of subject matter jurisdiction.
The plaintiff has argued that the designation of T.J.L., LLC was simply a misnomer and the court may consider the defect to be a non-jurisdictional defect. "When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misidentification is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction . . ." Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414 (2005). Furthermore, Practice Book § 10-62 provides that, "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." The plaintiff has asked the court to permit amendment of the pleadings to conform to the proof.
In his post-trial brief, the defendant adopted the conclusion in the plaintiff's post trial brief and conceded the issue. Defendant's Post Trial Brief, 10/20/06, p. 3.
Accordingly, pursuant to Practice Book § 10-62, the court grants the plaintiff's request to amend the pleadings to conform to the proof that TJL Investment Trust, LLC is the record owner of the property in question.

For the past thirteen years, a golf driving range has operated on the premises. In order to open the driving range, the plaintiff had to secure a special use permit from the Town of East Windsor. The plaintiff operated the range for a while and then leased it to several other operators (Riggs, Great Golf, Banks). During this period, business was not conducted on the premises during the winter months.

From 2002 through 2003, Banks leased the property from the plaintiff and operated the range. During his tenancy, the netting was not in good condition. Banks repaired the netting once in two years. He mowed the buffer areas approximately four times per season. On a few occasions, the plaintiff asked Banks to mow the buffer areas when the grass became too long. His lease, however, did not include any provisions regarding mowing the buffer area or repairing the netting. During the winter months, Banks occupied the property only when he was preparing for the coming season.

In December 2003, the defendant approached the plaintiff about operating the driving range after he learned that Banks was considering not renewing his lease. The defendant drafted a lease agreement which the parties discussed at several meetings. The final agreement was drafted by the defendant and signed on March 20, 2004.⁵

5 Lease/Rental Agreement

Larry Kelly (LK) at 28 Maple Ave., Broad Brook, CT. and or assigns, agree to lease property for the use of a Driving Range (approximately 12 acres) located at 12 South Main Street (Rte. 5) East Windsor, CT. from Al Rodrique under the following terms and conditions.

1) LK agrees to lease property for 3 years at a rent of $800 per month commencing on April 1st 2004. (1st year there will be a 60-day delay on payments to allow tenant to market business more effectively) the two months rent delay will be paid off by the end of year one or sooner.

2) LK agrees to rent property on a seasonal basis April 1 through October 31 until property is converted to year-round occupancy, but has the right to occupy property in the winter months for business improvements.

3) LK agrees to have property converted to year-round use by year three (3).

4) LK has the option to continue to lease property for an additional 20 years with rent increases every other year according to the CPI. (Four, 5-year options).

5) LK also has the option to purchase property at a price no greater then $ _________ per acre for the first three years of lease agreement, with 50 percent of the paid rent to be applied to the down payment.

6) LK will also have the first right of refusal on any outside purchase agreements.

7) LK is responsible for utility expenses including well and pump and maintenance of it.

8) LK is responsible for upkeep and landscape of said property including buffer areas.

9) LK has the right to make property improvements such as signage, chipping areas, putting greens, target greens, sand traps, fencing, irrigation systems and or anything that will improve business property potential.

10) LK has the right to expand business and rent barn at a cost no greater then $400.00 per mo., or square foot equivalent.

11) In the event there is any violation of lease agreement tenant shall be sent a certified letter stating violation and given 45 days to correct.

12) All improvements shall be the property of the tenant except for permanent ones.

13) LK as the option to sublet property and or portions of his business.

14) LK agrees to carry adequate insurances covering driving range (one million liability) and adequate fire insurance.

15) LK agrees to be responsible for personal property tax for equipment and improvements.

16) LK has the right to purchase existing range equipment and supplies from owner at an agreed upon price of $3500.00 to be paid in quarterly payments over a 12-month period. (June, September, December, March). See attached list.

17) LK agrees to repair portions of the barrier netting.

18) LK agrees to maintain irrigation system.

Under the lease, the defendant was obligated to pay $800 per month for rent. The initial lease term was for three years with four, five-year options. The defendant had the right to purchase the property and the first right of refusal on any outside purchase agreement. The purchase price was no greater than $960,000 with a rent credit provision. The defendant was to operate the premises on a seasonal basis from April through October, until the business was converted to year-round use by year three. The defendant had the right to occupy the property in the winter months for business improvements without paying additional rent. The lease provided that the defendant was responsible for upkeep and landscaping of the property including the buffer areas. He also agreed to repair portions of the barrier netting.

The lease was silent as to the payment procedure. Early on, the plaintiff instructed the defendant to make payments to the plaintiff's business office at 350 Chapel Road, South Windsor. Although the plaintiff owned A2Z Self Storage located immediately adjacent to the golf range, he did not have a business office there. Over the next year, the defendant repeatedly made payments in accordance with the plaintiff's payment procedure.

During the negotiations, the parties discussed the defendant's purchase of some range equipment. The defendant examined the equipment and agreed to purchase the equipment in "as is" condition. The purchase agreement was signed by the parties on or about March 20, 2004. The defendant agreed to make quarterly payments of $875 over a twelve-month period ending March 1, 2005. Paragraph sixteen of the lease also provided for the sale of equipment to the defendant. After beginning operations, the defendant complained to the plaintiff about the condition of the range equipment. He also expressed that he was having some financial difficulties. The plaintiff responded to the defendant's complaint by agreeing not to require equal quarterly payments, as long as the defendant paid the outstanding balance by March 1, 2005. The evidence failed to demonstrate that the plaintiff ever agreed to a price reduction.

In the Spring 2004, the defendant commenced business as East Windsor Golf Center. The lease provided for a two-month rent deferment to give the defendant an opportunity to get the business going. The first rent payment was due June 1, 2004. During the first season, the defendant paid all the rent on a timely basis. The defendant delivered the payments to the plaintiff's business office at 350 Chapel Road. He tendered checks in various amounts but never for $1,500. Some of the defendant's payments went only to rent, while other checks were applied first to rent and the balance to equipment.

During the first season, the defendant made several improvements. The pro shop was located in part of a barn located on the property. The defendant painted and sided the exterior part of the shop. In the inside, he did some painting and installed a new door, electric heating system, carpet, and slat wall. The defendant also developed a short game practice area. During the construction, some light poles and fixtures were removed. The parties disagreed regarding the removal of the light poles and fixtures. The defendant testified that the plaintiff knew about his plans for a short game practice area and did not object. The plaintiff denied that he gave the plaintiff permission to remove the light poles and fixtures. He was upset when he found out about it and demanded that the defendant reinstall the light poles and fixtures. According to the plaintiff, the defendant refused and stated that he intended to cut up the poles. The poles were never cut up and are presently stored on the property. The defendant did not obtain permits for any of the work.

The defendant also parked a storage trailer behind the barn where he kept range balls for sale. Besides running the driving range, the defendant also operated a business buying and selling range balls. The defendant testified that the parties discussed the trailer, and the plaintiff did not ask for it to be removed. The plaintiff denied that he gave the defendant permission to park the trailer on the property and made it clear that the trailer was only supposed to be parked there on a temporary basis.

In the middle of Summer 2004, the plaintiff mentioned to the defendant several times that the buffer areas were overgrown and needed to be mowed. The plaintiff also asked the defendant when he was going to start repairing the netting. The defendant indicated that he had someone to take care of those things. The plaintiff testified that he continued to remind the defendant about problems concerning the maintenance of the property. These issues, however, were not resolved to the plaintiff's satisfaction before the end of the 2004 season. The parties agreed that after the first season the property was not used on a year-round basis.

In the beginning of the 2005 season, the plaintiff testified that he reminded the defendant that he was obligated under the lease to properly maintain the property, including the buffer areas and the netting.

The defendant started the 2005 season paying the rent on a timely basis. On or about April 1, 2005, the defendant gave the plaintiff a check number 225 for $800 for the April 2005 rent. On or about May 1, 2005, the defendant gave the plaintiff check number 236 for $1,200. The check was applied first to rent ($800) and the balance to equipment ($400). These payments were delivered to the plaintiff's business office at 350 Chapel Road.

On April 20, 2005, the parties met and the plaintiff told the defendant that he had a buyer for the property and had a purchase agreement in-hand. Under paragraph six of the lease, the defendant had the first right of refusal on any outside purchase agreement. The purchase price was $12 million, and the defendant was required to post a $100,000 nonrefundable deposit. The plaintiff asked the defendant whether he was going to invoke his first right of refusal. The defendant indicated that he did not think he could afford to buy the property; however, the plaintiff gave him several days to decide.

On or about April 25, 2005, the defendant indicated that he was not going to exercise his first right of refusal. The plaintiff presented the defendant with a handwritten document that could be characterized as a release. The defendant signed it and initialed next to language indicating that the plaintiff had delivered to him a copy of the purchase agreement. The document stated that the defendant had reviewed the offer and presently had no interest in purchasing the property based on these terms and released his interest in the property so that the plaintiff could proceed with the sale of the property. The defendant later denied that this was a legally enforceable release.

On May 10, 2005, the plaintiff mailed the defendant a letter reminding the defendant of his obligations under the lease. The plaintiff notified the defendant of lease violations, including failure to pay balance of $1,500 due for equipment purchase, failure to provide 2005 insurance certificate, failure to mow buffer areas, unallowable improvements, failure to remove accumulating debris, failure to remove temporary storage trailer, and failure to repair or replace netting. Under the lease and purchase agreement, the last equipment payment was due by March 1, 2005. The plaintiff demanded immediate payment.

On or about May 15, 2005, the plaintiff took a number of pictures of the property. The pictures showed that the buffer areas were overgrown, and the netting was in a state of disrepair. The storage trailer was still parked on the property. The plaintiff claimed that the special use permit required the mowing of the buffer areas and did not allow the storage trailer to be parked on the property indefinitely. The netting had numerous holes and sagged in many places.

On or about June 3, 2005, the defendant hand-delivered an envelope to A2Z Self Storage. Enclosed was check number 264, dated June 1, 2005, for $1,500. There was no notation on the check as to how it should be applied. The amount matched the overdue equipment balance, which the plaintiff had recently demanded. The plaintiff applied the check to the equipment balance because it was the exact amount due, and the defendant had not specified or designated otherwise. When the plaintiff applied the check to the overdue equipment balance, he expected another check for the rent would be forthcoming.

The defendant also enclosed a letter in which addressed the plaintiff's complaints and claimed that he was in compliance with the lease. As to the overdue equipment payment, the defendant claimed that, as agreed upon by both parties, an adjustment of price and payment schedule had been made due to the poor condition of the equipment. The evidence, however, did not show that the plaintiff had agreed to a post-sale price reduction. The defendant claimed that the insurance policy had been in effect and a copy delivered to the plaintiff. As to the mowing issue, the defendant claimed that last year the buffer area was mowed to a schedule which will remain the same for 2005. The defendant disagreed with the plaintiff's contention that the defendant had not received approval for the property improvements and the characterization of certain property as debris. According to the defendant, the plaintiff was aware of the storage trailer and acquiesced to its presence. He claimed that the netting was getting repaired on a regular basis and netting by the barn was in place. The pictures in evidence did not support the defendant's position regarding the buffer areas and the netting.

On June 13, 2005, the plaintiff sent, by certified mail, another letter to the defendant setting forth lease violations. The plaintiff's letter referenced that on or about June 3, 2005, the defendant had hand-delivered a letter to A2Z Storage. The letter indicated that "[a]ll payments and correspondence are to be sent to my office located at 350 Chapel Road, South Windsor, CT 06074 as you did last year." The plaintiff notified the defendant of numerous lease violations. The letter was returned undelivered.

By this time, the plaintiff had realized that his relationship with the defendant had deteriorated to the point that he felt intimidated by the defendant. The plaintiff decided that he only wanted to have contact with the defendant through an attorney.

On June 22, 2005, the plaintiff's attorney sent the defendant a letter, which stated that the plaintiff had not yet received the rent for June 2005 and, therefore, the defendant was in default. The letter claimed that any subsequent payments were considered use and occupancy and the plaintiff considered the lease void for nonpayment of rent. The defendant was instructed to make all future payments to the plaintiff's attorney. The undelivered June 22, 2005 letter was also enclosed. The mail was not returned.

On or about June 25, 2005, the plaintiff took more pictures of the property. The pictures were very similar to the earlier ones. They showed the netting in a state of disrepair and the buffer areas overgrown with grass and weeds. In many places, the netting was not hanging from the cables where it was supposed to be. On or about July 5, 2005, the defendant ignored the June 22, 2005 payment instructions and hand-delivered the next payment to A2Z Self Storage. Enclosed was check number 298 in the amount of $1,500. The A2Z Self Storage staff accepted it and gave the defendant a receipt. At that time, the check did not have any notation regarding how it was supposed to be applied. The plaintiff testified that his employee accepted the check because she thought it was a payment for one of the storage units.

On July 6, 2005, the plaintiff's attorney returned the check to the defendant by mail. The attorney indicated that the check did not cover the rent payments due for June and July (2 x $800), and the plaintiff considered the defendant in default of his obligations under the lease. The letter also instructed the defendant to make payments pursuant to the June 22, 2005 letter. The mail was not returned.

On July 15, 2005, the defendant again ignored the June 22, 2005 payment instructions and sent by certified mail an envelope to 350 Chapel Road. The mail was refused by the plaintiff's staff because the plaintiff had instructed them not to accept any correspondence from the defendant. Enclosed was check number 298 in the amount of $1,500. The check now had a notation that it was for "$800 lease/bal eqp." In the accompanying letter, the defendant expressed confusion about why the check was returned. He expressed his belief that he was current in terms of payments. Based on their past dealings, he believed that the checks for June and July had covered the $800 rent with the balance to be applied toward the equipment purchase. The defendant claimed that the plaintiff gave him more time to pay because the defendant had to purchase new equipment to replace the old equipment which was not usable. The defendant indicated that he wanted the check number 298 applied $800 to the lease payment and the balance to the equipment. The defendant also indicated that he was still waiting to receive a copy of purchase agreement and a legal release concerning his right of first refusal. The defendant noted that the plaintiff had promised it several times.

During July 2005, the defendant had written to the plaintiff complaining about the plaintiff entering the premises without the defendant's permission and disrupting his business. The lease was silent on this issue.

On July 20, 2005, the plaintiff served the defendant with a notice to quit based on nonpayment of rent and lease violations with a quit date of August 5, 2005. On October 4, 2005, a complaint alleging nonpayment of rent for June 2005 was served. The summary process action was filed on October 11, 2005. The plaintiff withdrew the action on January 11, 2006.

From August 2005 through October 2005, the defendant sent several checks by certified mail to the plaintiff's business address. The defendant never complied with the June 22, 2005 payment instructions, On August 2, 2005, the defendant sent check number 325 for $800. On September 1, 2005, the defendant sent check number 344 for $800. On October 1, 2005, the defendant sent check number 360 for $800. All these envelopes were returned undelivered.

During the trial, the defendant offered evidence that he made efforts to mow parts of the buffer areas. He had help from third parties. Some parts were mowed more regularly than others. But it was difficult to do so because the ground was uneven. The defendant offered one receipt, which reflected that he paid someone to mow the buffer area on June 20, 2005.

In regards to the netting, the defendant stated that the netting was in a state of disrepair. Even though the netting was in poor condition, he made efforts to patch and repair the netting. The defendant thought that the netting needed to be replaced. The defendant also claimed that the netting had been vandalized, but no evidence was offered to substantiate this allegation.

The plaintiff took more pictures of the property on or about August 21, 2005. The pictures again showed that the buffer areas were overgrown, and the netting was in a state of disrepair.

After the 2005 season ended, the plaintiff started charging the defendant for rent. The plaintiff believed that the defendant was operating year-round following the 2005 season based on a number of factors. Under paragraph three of lease, the defendant agreed to have the property converted to year-round use by year three. The defendant's sign now indicated that the business was open all year-round for indoor lessons and repairs. The parking area was plowed during the winter, and cars were frequently parked there. The defendant denied that the property had been converted to year-round use. He testified that he was on-site during the winter months preparing for the following season. But while he was there he also engaged in his range ball business and did some selling on eBay. In addition, customers came into the shop to buy gift certificates, although lessons were given elsewhere. He also charged a minimal amount to people who wanted to use the driving range when the weather would allow it. The defendant testified his usage of the property was comparable for the winter months of 2004 and 2005. The defendant's tax records indicated sales for the first winter were comparable to the second winter sales.

On January 9, 2006, the plaintiff's attorney sent a letter by certified mail to the defendant's attorney notifying him that the plaintiff was withdrawing the pending eviction action. The letter indicated that the plaintiff "by withdrawal of the suit and the notice to quit, hereby reinstates [defendants] lease." The defendant was given nine days to cure the lease detailed violations.

On February 3, 2006, the plaintiff served the defendant with a second notice to quit with a quit date of February 8, 2006. The notice was based on nonpayment of rent, breach of lease, right or privilege to occupy has terminated, and never had a right or privilege to occupy. On February 10, 2006, the plaintiff served the defendant with a complaint based on nonpayment of rent for the months of April 2005 through January 2006 and violations of the lease.

After the second notice to quit was served, the defendant attempted to make payments to the plaintiff by certified mail. On March 10, 2006, the defendant sent check number 394 for $800. On March 30, 2006, the defendant sent check number 405 for $800. The envelopes were sent to 350 Chapel Road and were refused by the plaintiff. During the 2006 season, the defendant remained on the premises and continued to operate the driving range.

On May 6, 2006, the plaintiff took more pictures of the property. The pictures showed that the netting was still in a state of disrepair and the buffer areas were still overgrown. The storage trailer was still on the property.

III DISCUSSION A Issues

A number of issues must be considered by the court in reaching a decision in this case.

(1) Special defense not raised in answer In his post-trial brief, the defendant has contended that he cannot be evicted because the lease agreement does not contain a provision that the lease would terminate upon nonpayment of rent and does not allow the remedy of summary process. The plaintiff has argued that the defendant should be precluded from raising this special defense because it was not pleaded in his answer. See Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 651 A.2d 281 (1994). In Oakland Heights Mobile Park, Inc., the Appellate Court held that the trial court improperly addressed a special defense that was not properly raised by the defendant. Id., 434. There, "[t]he defendant did not raise the equitable defense of relief from forfeiture in his pleadings. The only defense asserted was that he attempted to make partial payment to the plaintiff, but that such attempts were rebuffed. He did not assert any counterclaims against the plaintiff." Id. The Appellate Court reasoned that, "It has long been established that the purpose of pleadings is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until after the close of the evidence . . . Practice Book § [10-50] provides that [f]acts which are consistent with [the plaintiff's statements of fact] but show, notwithstanding, that [the plaintiff] has no cause of action, must be specially alleged . . . Therefore, the . . . defense . . . must be pleaded as a special defense . . .

"A defendant's failure to plead a special defense precludes the admission of evidence on the subject . . . Therefore, the defendant's failure to assert the . . . defense . . . in his pleadings constituted a waiver of that defense and it should not have been considered by the trial court . . . It would be fundamentally unfair to allow any defendant to await the time of trial to introduce an unpleaded defense. Such conduct would result in 'trial by ambuscade' to the detriment of the opposing party . . .

"The defendant did not properly raise the . . . defense . . . and, therefore, the trial court should not have considered it. (Citations omitted; internal quotation marks omitted.) Id., 435-37.

Here, the defendant's failure to assert this defense in his answer constituted a waiver. Nevertheless, for the sake of completeness, the court will consider this special defense.

(2) Absence of default provision in lease agreement The defendant has argued that the plaintiff is unable to evict the defendant for failure to pay rent in a commercial setting if the written lease agreement does not contain a provision stating that the lease would terminate upon nonpayment of rent when due. In support of this defense, the defendant has cited Sullivan v. Nameaug Walk-In Medical Center, P.C., 35 Conn.App. 185, 644 A.2d 398 (1994). In Sullivan, the Appellate Court held that, "the lease, drafted by the plaintiff, did not contain a provision stating that the lease would terminate upon nonpayment of rent when due. Therefore, the trial court was correct in concluding that the commercial lease was not terminated by virtue of nonpayment of rent, and that § 47a-23 could not be invoked on this basis." Id., 189.

The plaintiff has countered that the defendant's argument is overly simplistic and, in addition, the argument is not applicable to this case. In support of its position, the plaintiff has cited Levin v. Roman, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 9501-79573 (May 25, 1995, DiPentima, J.). In Levin, Judge DiPentima thoroughly analyzed the holding in Sullivan. "Citing the recent Appellate Court case Sullivan v. Nameaug Walk-In Medical Center, P.C., 35 Conn.App. 185 (1994), the defendant claims that the law of summary process does not provide nonpayment as a basis for eviction unless the written lease provides for it . . . The [Appellate] Court cites Webb v. Ambler, 125 Conn. 543, 550 (1939), for this proposition. In that case, the court interpreted the predecessor statute to § 47a-23, which did not include a provision for nonpayment of rent for commercial property . . .

"C.G.S. § 47a-23 provides for a landlord to proceed with a summary process action upon termination of the lease or rental agreement. Courts have consistently interpreted this statute to find that the termination is effected through the notice to quit, the condition precedent to the summary process action . . . As the Appellate Court noted in Bridgeport v. Barbour Daniels Electronics, Inc., 16 Conn.App. 574, 583 (1988), [a]lthough many unequivocal acts may be sufficient to terminate all rights arising under a lease, the only foundation for a summary process action is a notice to quit . . .

"Here, the plaintiff served a notice to quit stating grounds explicitly authorized under the statute. Notwithstanding the absence of a lease provision regarding default upon nonpayment of rent, the court finds that the plaintiff has met his burden to prove that due to the nonpayment of rent under the lease the notice to quit terminated the lease under C.G.S. § 47a-23(a)(1)(E)." Levin v. Roman, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 9501-79573 (May 25, 1995, DiPentima, J.).

Having considered Sullivan, Judge DiPentima held that a summary process action may be based on General Statutes § 47a-23(a)(1)(E) in the absence of a default provision in the lease agreement. Clearly, a landlord is authorized by statute to issue a notice to quit for nonpayment of rent by a commercial tenant. In Thomas E. Golden Realty Co. v. Society for Savings, 31 Conn.App. 575, 579, 626 A.2d 788 (1993), the Appellate Court held that, "Section 47a-23 dictates the form of a notice to quit, as well as the reasons for a notice to quit. The statute provides that the reasons supporting a notice to quit include . . . (5) the nonpayment of rent when due for commercial property . . ." In this case, the notice to quit stated "nonpayment of rent" as one of the grounds for eviction. The phrase "nonpayment of rent" "substantially tracks the language in the statute and conveys a sufficient ground for the notice to quit." Id., 580.

This court has carefully considered both Sullivan and Levin. It is clear that the Appellate Court in Sullivan relied on Webb in reaching the conclusion that a landlord could not bring a summary process action based on nonpayment of rent unless the written lease provided for termination on that basis. However, the decision in Webb was based on the predecessor statute to § 47a-23, which was subsequently amended in 1989 to include subsection (a)(1)(E), expressly specifying "nonpayment of rent when due for commercial property" as one of the statutory grounds for eviction. The court has reviewed the relevant legislative history and has found that it does not provide any illumination as to this issue.

The court is persuaded by Judge DiPentima's reasoning in Levin that a commercial tenant may be evicted based on nonpayment of rent pursuant to § 47a-23(a)(1)(E), even absent an express lease provision providing for eviction based on nonpayment of rent. Accordingly, this special defense fails to demonstrate that the plaintiff has no cause of action.

(3) Application of a payment

On or about June 3, 2005, the plaintiff received from the defendant check number 264 in the amount of $1,500. The plaintiff applied this check to the overdue equipment balance. The defendant has contended that the check should have been applied first to the June 2005 rent, and then to the equipment balance. If the plaintiff had to apply the check first to the disputed rent for June 2005, then the plaintiff would not be entitled to possession based on nonpayment of rent. See South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 749, 899 A.2d 642 (2006). However, if the plaintiff was required, or was permitted, to apply the check to the overdue equipment balance of $1,500, then the plaintiff would be entitled to seek possession based on nonpayment of rent. See Id.

The defendant has argued that the court can look not only at the written agreement but can also take into account the surrounding circumstances in determining the proper application of the check number 264 for $1,500. In Putnam Park Associates v. Fahnestock Co., 73 Conn.App. 1, 10-11, 807 A.2d 991 (2002), the Appellate Court held that, "We first examine the pertinent lease language . . . The course of performance the parties followed over the years is strong evidence that the parties did not interpret the lease language . . . in the draconian manner the defendant now urges. See 2 Restatement (Second), Contracts § 202(4) (1981) ('[w]here an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement'); see also 11 S. Williston, Contracts (4th Ed. Lord 1999) § 32:14, pp. 491-501 ('Practical Interpretation or Construction — Given that the purpose of judicial interpretation is to ascertain the parties' intentions, the parties' own practical interpretation of the contract — how they actually acted, thereby giving meaning to their contract during the course of performing it — can be an important aid to the court . . . Courts . . . give great weight to the parties' . . . practical interpretation . . . unless it is contrary to the plain meaning of the contract . . .')."

In South Sea Co. v. Global Turbine Component Technologies, LLC, supra, 95 Conn.App. 750-51, the Appellate Court held that, "Where a debtor has two or more obligations to the same creditor, the debtor possesses the power to direct the manner in which his payment is to be applied . . . The obligor must manifest his direction to the obligee, but he need not manifest it in words. A direction may be inferred from other circumstances, including the performance itself. It is often clear from the nature of the performance that it is to be applied to a particular duty . . . In resolving doubts as to whether a direction has been made, the fact that one application is obviously more advantageous to the obligor than another is a factor to be given weight. In extreme situations a particular application may be so disadvantageous to the obligor that it is not permitted to the obligee even absent a contrary direction by the obligor." (Citations omitted; internal quotation marks omitted.)⁶

6 In South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 751-53, 899 A.2d 642 (2006), "The court found and the parties agree that [w]hen the defendant sent the check dated October 28, 2004, to the plaintiff, it intended to pay the fixed rent due for November 2004, but [the check] did not include the disputed 'additional fixed rent.' Under the circumstances in this case, the plaintiff could infer only that the defendant was directing the plaintiff to apply the check to the defendant's November rent obligation. Prior to August 1, 2004, the monthly fixed rent due under the lease was $5188. On August 1, 2004, the monthly fixed rent increased by an amount, which is disputed by the parties. Despite agreeing that it had an increased obligation as of August 1, 2004, the defendant sent checks in the amount of $5188 for the purpose of paying rent for the months of August, September and October. The defendant sent a check in the amount of $5188, less than its obligation, for August. The plaintiff notified the defendant of its failure to pay the full August obligation. The defendant, nevertheless, sent a check in the amount of $5188, less than its obligation, for September and October. In October, the plaintiff again notified the defendant of its failure to pay its full obligation for August, September and October. Having not received any of the additional fixed rent under the lease, the plaintiff caused a notice to quit possession to be served on the defendant on October 29, 2004. In an envelope, which was postage stamped October 28, 2004, and date stamped October 29, 2004, the defendant sent a check in the amount of $5188 . . .
"It was clear from the nature of the defendant's performance that the check was to be applied to its November rent obligation. The facts of this case leave no doubt as to whether the defendant directed the plaintiff to apply the check to a particular obligation. In their course of dealing, the defendant sent checks to the plaintiff in the amount of $5188 in three prior months. The plaintiff applied each check to the defendant's monthly rent obligation. As the months passed, the defendant's debt for additional fixed rent accrued. In two letters, the plaintiff notified the defendant of his failure to pay the additional fixed rent. Despite having information that the plaintiff was applying the checks to the defendant's basic rent obligation for the next month, the defendant failed to give the plaintiff a contrary direction with regard to which obligation his checks should be applied. In fact, the defendant openly admits that it intended that the check be applied to the November rent obligation . . ."
Because there is no ambiguity as to whether the defendant directed the plaintiff to apply the October 28, 2004 check to the November rent obligation, we need not consider the fact that applying the check to the disputed additional fixed rent would have been more advantageous to the defendant. Furthermore, the defendant fails to make any argument as to why these circumstances should be considered so extreme that the particular application should not be permitted. The defendant, in fact, argues only that the plaintiff was free to apply the check to the past due additional rents. The law does not permit the creditor to override the direction of the debtor . . . As such, the check, dated October 28, 2004, did not constitute a tender of the additional fixed rent. Furthermore, the letters of the plaintiff to the defendant made it clear that rent in the disputed amount was due and owing, at least since August 1, 2004, and the defendant acknowledged that an additional sum, albeit disputed, was due and owing as of October 20, 2004. The notice to quit possession was not premature. Because there are no other contested issues of fact, the plaintiff is entitled to judgment as a matter of law." (Citations omitted; internal quotation marks omitted.)

Applying the reasoning of South Sea, the court may consider the surrounding circumstances in determining the proper application of a payment, including, but not limited to, the defendants conduct, the parties' course of performance, the defendant's failure to give a contrary direction, and the advantages of a particular application. Id., 751-53.

In the present case, after the plaintiff received June 3, 2005 check number 264 for $1,500, the plaintiff applied the check to the outstanding equipment charge instead of the June 2005 rent. This check was preceded by the plaintiff's May 10, 2005 letter demanding immediate payment of the $1,500 overdue equipment balance. By this time, the defendant had tendered numerous checks to the plaintiff, but none in the amount of $1,500. The lease and the purchase agreement required the equipment to be paid off by March 1, 2005.

In ascertaining the defendant's intentions relating to check number 264, the court gives weight to the defendant's conduct, the failure to express a contrary intention, and the advantages of the particular application. The defendant tendered check number 264 only a few weeks after the plaintiff notified him that the last payment was overdue, and he was considered in breach of the lease. He did not make any notation on the check indicating how the check was to be applied. The defendant failed to clearly manifest a contrary intention. On June 3, 2005, it was more advantageous to the defendant for the payment to be applied to the equipment balance because it was long overdue. At that time, the defendant had already paid the rent for April 2005 and May 2005.

The preponderance of the evidence supports the application of check number 264 to the overdue equipment balance rather than the June 2005 rent.

(4) Payment procedure

On June 22, 2006, the plaintiff's attorney sent a letter to the defendant which included the instruction that all subsequent payments were to be made to the plaintiff's attorney. The lease had not specified a payment procedure, and the plaintiff had earlier instructed the defendant to make payments to his business office at 350 Chapel Road. The defendant had complied with this payment procedure from June 2004 through early June 2005. Given the deteriorating landlord-tenant relationship, the plaintiff now wanted to limit his contact with the defendant by having his attorney deal with payment issues.

"Where no place is appointed for payment, the rent is ordinarily payable at the demised premises, but the place of payment may be controlled by custom, statute, or an agreement of the parties." 52A CJS, Landlord Tenant, Sec. 1047. "Where a lease is silent as to the place at which the rent is to be paid, the course of conduct of the parties may establish the place of payment. A tenant has a right to regard such a place as the proper place for payment until the tenant is notified by the landlord that he or she will no longer be bound in this respect." 52A CJS, Landlord Tenant, Sec. 1047.

Although the instant lease was silent as to the place at which the rent was to be paid, the demised premises was never the place of payment. The initial place of payment was the plaintiff's business address, 350 Chapel Road. By the June 22, 2005 letter, the plaintiff, through his attorney, notified the defendant that he would "no longer be bound in this respect." See 52A CJS, Landlord Tenant, Sec. 1047. The defendant was notified that the new place of payment was the office of the plaintiff's attorney. After the June 22, 2005 letter, the defendant never made a payment to the plaintiff's attorney. Instead, he tendered payments to either 350 Chapel Road or A2Z Self Storage.

A similar issue arose in Hathaway v. Combs, Superior Court, judicial district of Tolland, Docket No. CV 03080506 (June 18, 2003, Hammer, J.T.R.). In that case, the tenant raised as a special defense in an eviction action that rent was offered to the landlord prior to the service of the notice to quit. The court held that, "A tender must be unconditional and unqualified, and if there is an express demand that the money shall be received in full, it will vitiate the tender if the court finds it to be conditional and therefore invalid . . . The rules which govern tenders are strict and are strictly applied in that the tenderer must do and offer everything that is necessary on the debtor's part to complete the transaction and must fairly make known his purpose without ambiguity, and the offer or tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction.

"In other words, with respect to tender, it is the debtor's responsibility to make an unambiguous tender of the entire amount due or else suffer the consequence that the tender is of no effect . . . The seminal case on tender under Connecticut law held that [i]n the case of a debt or pecuniary claim, to constitute an offer to pay it, as a general rule, the actual production of money, and the placing it in the power of the person who is entitled to receive it, is requisite [but] such production of it is not necessary, when it is prevented by the party entitled to it, or he expressly waives its production, or does what is equivalent . . .

"In . . . Sands [v. Lyon, 18 Conn. 18, 21 (1846)] . . . the defendant debtor based his claim of lawful tender on the fact that he was on his way to the plaintiff creditor's home when he met the defendant and told him that he had the money to pay him and was about to tender the full amount of the debt to him when Sands walked away from him after saying that he wanted nothing to do with Lyon . . . The defendant then went to the Sands' home and made the same offer to his wife which she utterly refused to receive . . .

"Our Supreme Court, in the later case of Ashburn v. Poulter, 35 Conn. 553 (1869), followed the holding in Sands v. Lyon, supra, 18 Conn. 18, by restating the general rule that although the money for the payment of the debt must be actually produced and given to the creditor, when its production is prevented by the creditor himself or dispensed with by his refusal to receive it or by language or conduct by word or act tantamount to such refusal, then the tender is valid because no person is required to do a futile act. In that case, the creditor told the debtor that he had to make the payment to the plaintiff creditor's attorney and emphasized the fact that it is the intention of the creditor not to receive, intentionally and unequivocally expressed by words or conduct calculated and intended to convince the debtor that presentation is useless, which excuses the actual production or presentation of the money . . .

"The doctrine of tender as articulated by the Supreme Court in the cases cited above has been applied consistently to rental payments made by tenants to their landlords where the tenant had attempted to pay "the rent by check in good faith and in pursuance of an implied agreement and custom then existing between [the tenant] and the plaintiff [landlord] . . . In Burritt [v. Lunny, 90 Conn. 491, 496 (1916)], when the payment by check was attempted by the defendant tenant, it was refused by the plaintiff landlord's attorney who then demanded that the payment should be made in cash because the alleged tender was legally insufficient despite the tenant's willingness to pay, but the Court rejected the demurrer to the tenant's defense of tender thereby implicitly adopting the rule that a landlord cannot complain of delay in payment of rent caused by his own acts . . .

"It is essential in a summary process action initiated because of the nonpayment of rent that the plaintiff landlord prove, in order to prevail, that there had been no tender or its legal equivalent before the declaration of a forfeiture by some unequivocal act by the landlord, such as the service of a notice to quit based on such alleged nonpayment." (Citations omitted; internal quotation marks omitted.) Hathaway v. Combs, Superior Court, judicial district of Tolland, Docket No. CV 03 080506 (June 18, 2003, Hammer, J.T.R.).

After considering these cases, the court in Hathaway found that if the tenant had tendered a rent check, the landlord or her attorney would have accepted and deposited it. Id. The court held that, "There has been no showing that it was the intention of the [landlord] not to receive, intentionally and unequivocally expressed by words or conduct calculated and intended to convince the [tenant] that presentation is useless, which excuses the actual production of the money." (Emphasis omitted; internal quotation marks omitted.) Id.

In Burritt, the defendant tendered a check for the full amount of the rent to the plaintiff's attorney that was refused. Burritt v. Lunny, supra, 90 Conn. 493. The next day the defendant's attorney tendered the full amount in cash that the plaintiff's attorney also refused. Id., 494. The court found the facts showed that "the defendant was ready, willing and in good faith attempted to pay his rent when it became due." Id., 495. The court held that the defendant was not at fault. Id.

The parties' course of performance relating to the payment procedure is relevant. A course of performance "relates to the way the parties have acted in performance of the particular contract in question. The judicial inquiry on this point is limited to the way the parties have acted in carrying out the particular contract that is in controversy . . ." Black's Law Dictionary (7th Ed., 1999).

Here, the lease agreement failed to provide for a payment procedure. In the spring 2004, the plaintiff instructed the defendant to make payments to 350 Chapel Road. Thereafter, the defendant repeatedly made payments pursuant to the plaintiff's instruction. A course of performance was established between the parties that the plaintiff would designate the payment procedure.

On June 22, 2005, the plaintiff, through his attorney, instructed the defendant to make payments to the plaintiff's attorney. The landlord-tenant relationship had seriously deteriorated by this time, and the plaintiff sought to avoid conflict with the defendant. Under the circumstances, the new payment procedure was a reasonable.

There was no showing that the defendant ever expressly objected to the new payment procedure, rather he chose to ignore the June 22, 2005 letter. The next payment made by the defendant was on July 5, 2005, when he hand-delivered check number 298 for $1,500 to A2Z Self Storage. The defendant's explanation as to why he did not make payments as instructed was that he did not know who the plaintiff's attorney was and did not know he was representing the plaintiff. The defendant's explanation is inconsistent with common sense. The June 22, 2005 letter from Attorney Constantine to the defendant was sufficient to put the defendant on notice that the plaintiff was represented by counsel. The language in Constantine's letter was clear and unambiguous. If the defendant had any real doubts about whether Constantine represented the plaintiff, he could have contacted Constantine, by phone or mail, to confirm his representation of the plaintiff. The defendant chose not to do so.

The defendant did not necessarily act in good faith. "Good faith" in this context includes "acting in the belief that a prudent and sensible man would hold in the ordinary conduct of his business affairs." Ballentine's Law Dictionary (3rd Ed., 1969), p. 528. When the defendant chose not to send payments to the plaintiff's attorney, he was still frustrated over the condition of the equipment. But he had examined the equipment before the sale and agreed to buy it in "as is" condition. The plaintiff had given the defendant some relief by not requiring equal quarterly payments, as long as the balance was paid by March 1, 2005. The defendant was also upset that the plaintiff had a buyer for the property. The defendant had put a significant amount of money and effort into improving the business. Nevertheless, the plaintiff had the right to sell the property conditioned on the defendant's first right of refusal. There was no showing that the plaintiff ever invoked his first right of refusal or had the financial wherewithal to do so. The defendant was still obligated to meet his financial obligations under the lease. It was the defendant's responsibility to make an unambiguous tender of the entire amount of the rent due or else suffer the consequences that the tender was of no effect. See Hathaway v. Combs, Superior Court, judicial district of Tolland, Docket No. CV 03 080506 (June 18, 2003, Hammer, J.T.R.).

Based on the prior course of performance, it was reasonable for plaintiff to designate a new payment procedure. The plaintiff did not refuse to receive payments, rather he directed payments to be made to his attorney. No convincing evidence was presented that the plaintiff was trying to avoid accepting payments. Unlike Burritt, the plaintiff's attorney never refused to accept a payment from the defendant. In fact, the preponderance of the evidence showed that the plaintiff would have accepted payments from the defendant if they were paid through the plaintiff's attorney. First of all, the plaintiff readily accepted the defendant's payments in April 2005 and May 2005. He accepted the $1,500 payment in early June 2005, which was applied to the overdue equipment balance. In addition, on January 9, 2006, the plaintiff, through his current attorney, indicated that he would accept payment from the defendant as long as the payment was made to his attorney. Before the notice to quit was served on February 3, 2006, the plaintiff provided the defendant with an opportunity to cure the nonpayment issue by making payment to the plaintiff's attorney. The defendant chose not to make any physical tender of payment to the plaintiff between January 9, 2006 and February 3, 2006.

(5) Legal effect of first notice to quit

Issues have been raised regarding the legal effect of the first summary process action that was later withdrawn.

On July 20, 2005, the plaintiff served the defendant with a notice to quit based on nonpayment of rent and violation of lease. On October 4, 2005, the plaintiff served the defendant with a complaint, which was filed on October 11, 2005. The plaintiff withdrew the summary process action on January 11, 2006.

In Housing Authority v. Hird, 13 Conn.App. 150, 535 A.2d 377 (1988), the plaintiff initiated three summary process actions before finally evicting the defendant. The first action began with a pretermination notice. Id., 153. A notice to quit was served based on nonpayment of rent. Id. The first eviction action ended with judgment for the defendant. Id. A week or so after the judgment entered, the plaintiff served a second notice to quit followed by a summary process action based on nonpayment of rent. Id. The second eviction action was withdrawn by the plaintiff before judgment was rendered. Id., 154. The defendant sought to make arrangements for the reinstatement of the defendant as a tenant, but the plaintiff refused to do so because the defendant had a substantial arrearage and had stopped making payments. Id. Less than a week after the second eviction action was withdrawn, the plaintiff served a third notice to quit based on nonpayment of rent. Id., 153-54. After the third eviction action was filed, the trial court rendered judgment for the plaintiff. Id., 154. "The trial court found that . . . because the eviction action following the [second] notice to quit possession [had] been withdrawn, [it] had no legal effect or consequence on the preexisting lease between the parties." Id., 155.

In affirming the judgment, the Appellate Court held that, "Of similar import is the subsequent summary process action predicated upon the notice to quit possession . . . [T]he plaintiff . . . withdrew this summary process action pursuant to its statutory right . . . We conclude that the defendant's lease also survived this summary process action because of its withdrawal by the plaintiff before a hearing and judgment thereon. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of a case from the docket . . . The withdrawal of the summary process action . . . effectively erased the court slate clean as though the eviction predicated on the [second] notice to quit possession had never been commenced." (Citations omitted; internal quotation marks omitted.) Id., 156-57.

During the period in question, the plaintiff made numerous efforts to notify the defendant of the lease violations. On May 10, 2005, the plaintiff mailed the defendant a letter notifying the defendant of his obligations under the lease and detailing the lease violations. On June 13, 2005, the plaintiff sent, by certified mail, another letter to the defendant setting forth the lease violations. The mail was returned undelivered. On June 22, 2005, the plaintiff's attorney sent the defendant a letter which stated that the plaintiff had not yet received the rent for June 2005, and, therefore, the defendant was in default. The undelivered June 13, 2005 letter was also enclosed. On July 6, 2005, the plaintiff's attorney sent a second letter to the defendant. He returned the $1,500 check to the defendant and indicated that the check did not cover the rent payments due for June 2005 and July 2005. On January 9, 2006, the plaintiff's current attorney sent a letter by certified mail to the defendant's attorney notifying him that the plaintiff considered the defendant in breach of the lease and giving the defendant a final opportunity to cure the breaches. While the June 13, 2005 letter was returned undelivered, the other mail was not returned.

Applying the reasoning of Hird to this case, the lease agreement survived the first summary action that was withdrawn on January 11, 2006. Consequently, the defendant's obligation under the lease and the plaintiff's efforts to notify the defendant of the lease violations also survived.

(6) Cure period

The plaintiff has argued that the defendant was provided with the required notice to cure under the lease. Paragraph eleven of the lease provides that: "In the event there is any violation of lease agreement tenant shall be sent a certified letter stating violation and given 45 days to correct."

In Norwalk Mall Venture v. Mijo, Inc., 11 Conn.App. 360, 363, 527 A.2d 1202 (1987), the Appellate Court found that the trial court correctly found that "the plaintiff failed to provide the defendant with adequate notice — particularly the fifteen days notice required by the lease — of its intent to enforce paragraph three of the lease agreement and was, therefore, estopped from seeking to enforce the provision with respect to continuous operation." (Internal quotation marks omitted.)

However, in Thomas E. Golden Realty, the Appellate Court held that the plaintiff gave adequate notice of the default under the lease. Thomas E. Golden Realty Co. v. Society for Savings, supra, 31 Conn.App. 580. The Court found that, "The defendant was notified of the reasons for the default on November 27, 1990. For several months thereafter, the parties were involved in negotiations regarding the cure of the defaults. In fact, the plaintiff extended the time to cure these defaults at the request of the defendant. It is disingenuous for the defendant to argue now that it did not have notice of the reasons for the notice to quit. Here, too, it would be the height of hypertechnicality to hold this notice to quit defective." (Internal quotation marks omitted.) Id., 581.

"In [ Southland Corporation v. Vernon, 1 Conn.App. 439, 473 A.2d 318 (1984)], the defendant made similar claims. There, the plaintiff informed the defendant that it was terminating its franchise agreement. The defendant then filed an application for an injunction preventing such termination, which the trial court denied. The plaintiff, in a separate action, served the defendant with a notice to quit. The defendant claimed that it did not have notice of the reasons for the notice to quit. We held that it was inconceivable that the defendant did not know that the basis for the claim of termination of his right to occupy the premises was the claimed termination of the franchise. Even under the strict construction rule of Jo-Mark Sand Gravel Co. v. Pantenella, [ 139 Conn. 598, 600-01, 96 A.2d 217 (1953)], it would be the height of hypertechnicality to hold this notice to quit defective." (Internal quotation marks omitted.) Id., 581.

In this case, the lease required "[i]n the event there is any violation of lease agreement tenant shall be sent a certified letter stating violation and given 45 days to correct." As previously stated, the plaintiff provided the defendant with numerous notices of lease violations. These notices survived the first eviction action. Some of the notices were sent by certified mail, others by regular mail. The plaintiff provided the defendant with sufficient notice under the lease. The defendant had much more than forty-five days to cure the breaches.

Applying the reasoning in Southland and Thomas, it would be inconceivable that the defendant did not know that the plaintiff was treating him as being in breach of the lease. Moreover, it would be the height of hypertechnicality to hold that the plaintiff did not provide adequate notice to the defendant and did not provide the defendant with the required forty-five days to cure.

B Plaintiff's Case (1) Nonpayment of Rent

In a summary process action based on nonpayment of rent in a commercial setting, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant failed to pay the rent due under the lease by a certain date; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. Sec. § 47a-23(a)(1)(E). Specifically, the plaintiff has alleged that the defendant failed to pay rent for the months of April 2005 through January 2006.

To be entitled to judgment, the plaintiff must prove one or more months of nonpayment of rent. Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. See Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 618 A.2d 529 (1992).

Under the lease, the defendant was obligated to pay $800 per month for rent during the season. He was also obligated to make the same payment for the winter months once the business was operated year-round. In addition, the defendant was also required to make a final payment for the equipment by March 1, 2005. The defendant did not pay off the total equipment balance due, but instead paid the rent for April 2005 and May 2005. These payments were delivered to the plaintiff's business office at 350 Chapel Road.

On May 10, 2005, when the defendant failed to pay the overdue equipment balance of $1,500, the plaintiff sent a letter to the defendant demanding full payment. The next check the plaintiff received from the defendant was check number 264 in the amount of $1,500. It was received on or about June 3, 2005. The check did not have any notation as to how it was to be applied. As previously stated, it was reasonable for the plaintiff to apply the check to satisfy the overdue equipment balance. The plaintiff expected to receive another check for rent in June 2005. The preponderance of the evidence demonstrated that check number 264 was correctly applied to the overdue equipment balance rather than the rent.

On June 22, 2005, the plaintiff's attorney sent a letter to the defendant indicating that the June 2005 rent had not been received and the defendant was considered in default. The defendant was instructed to make payments to the plaintiff's attorney. On or about July 5, 2005, the defendant tendered a check number 298 for $1,500. When the defendant tendered this check, the amount did not cover the overdue June 2005 rent and the July 2005 rent. On or about July 6, 2005, the plaintiff's attorney notified the defendant of the discrepancy. The check was returned to the defendant because it did not cover the outstanding rent balance of $1,600. The defendant did not tender a check for the total unpaid rent balance, $1,600, before the notice to quit was served on July 20, 2005.

The defendant chose not to tender the full amount of the rent that was due. The evidence demonstrated that the defendant was upset that the plaintiff had a buyer for the property, and the defendant was still frustrated by the condition of the equipment. The plaintiff never agreed to reduce the price of the equipment. The defendant was not entitled to withhold full payment of the rent because of these issues. By taking matters into his own hands, the defendant put himself at risk of being found in violation of the lease for nonpayment of rent.

From August 2005 through October 2005, the defendant continued to send payments to the plaintiff's business address. On August 2, 2005, the defendant sent check number 325 for $800. On September 1, 2005, the defendant sent check number 344 for $800. On October 12, 2005, the defendant sent check number 360 for $800. Due to the contentious landlord-tenant relationship, the plaintiff no longer accepted the defendant's mail at his business address.

After the 2005 season ended, the defendant's activities on the premises were sufficient to constitute year-round use. The defendant's sign indicated that the business was open all year-round for indoor lessons and repairs. The parking area was plowed when it snowed, and cars were often parked in the lot. Customers came into the shop to buy gift certificates, although lessons were given elsewhere. He charged a minimal amount to use the driving range when the weather permitted. The defendant was also engaged in his range ball business and did some selling on EBay. Although the defendant's tax records indicated sales for the first winter were comparable to the second winter sales, the defendant was no longer just engaged in business improvements, preparing for the next season. He was engaged in year-round activity on the premises. The defendant had converted the premises to year-round use and was obligated to pay rent for the winter months.

Accordingly, the defendant was obligated to pay rent for November 2005, December 2005 and January 2006. The payments tendered by the defendant from July 2005 through January 2006 did not satisfy the full rent arrearage for the period, $6,400.

(2) Breach of Lease

In a summary process action based on breach of lease, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) on or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) the tenant agreed to pay an agreed upon rent by a certain date; (3) the tenant took possession of the premises pursuant to the lease; (4) the tenant breached the lease; (5) the landlord caused a proper notice to quit possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) although the time given in the notice to quit possession of the premises has passed, the tenant remains in possession of the premises. See § 47a-23(a)(1)(C). Specifically, the plaintiff has alleged that the defendant violated the lease in the following ways:

(1) failure to repair netting,

(2) removal of plaintiff's light poles and fixtures,

(3) improvements made without plaintiff's approval or town required permits,

(4) failure to maintain premises by leaving debris and inoperable equipment throughout the property,

(5) illegally parking storage trailer on premises,

(6) removal of siding on barn, and,

(7) installation of unapproved heating system.

To be entitled to judgment, the plaintiff must prove one or more of the lease violations. Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 523.

Based on the circumstances of this case, the court must consider whether the lease provisions in question were enforceable. "In order for an enforceable contract to exist, the court must find that the parties' minds had truly met . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Internal quotation marks omitted.) Gallogly v. Kurrus, 97 Conn.App. 662, 669, 905 A.2d 1245 (2006). In Gallogly, the Appellate Court found that a lease obligation of the defendant to maintain appropriate insurance that was handwritten on the lease was "so vague and indefinite as to be unenforceable." Id. In reaching this decision, the Appellate Court considered that the parties never agreed to the amount and type of the insurance coverage, the lease did not specify what constituted the appropriate insurance, and there was no "evidence that the parties had prior dealings that would have allowed the court to flesh out the intended meaning of indefinite contract language by recourse to trade custom, standard usage and past dealings." (Internal quotation marks omitted.) Id. In evaluating whether these lease provisions were enforceable, the court has considered the rule that language in a contract is interpreted against the party who chose it. "In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds." Restatement (Second), Contract, Interpretation Against The Draftsman § 206, p. 105 (1979). The evidenced showed that the defendant drafted the lease agreement. The lease provisions in question are not so vague and indefinite as to be unenforceable.

The preponderance of the evidence demonstrated that the defendant violated the lease provisions in a number of ways throughout this period. The defendant failed to make sufficient efforts to repair the netting. The netting was in a constant state of disrepair. The defendant failed to maintain the buffer areas; he let the grass and weeds become overgrown. He made improvements without the plaintiff's approval and required town permits. He did not get the plaintiff's permission to remove the light poles and fixtures. He continued to park the storage trailer on the property without approval. He installed a heating system without approval.

C Special Defenses (1) Rent was mailed to the plaintiff, but the plaintiff or his agents, servants and/or employees refused to accept the tendered rent.

Specifically, the defendant has alleged the following special defense: (1) the defendant mailed rent to the plaintiff at 350 Chapel Road, South Windsor, Connecticut by certified mail on July 15, 2005, August 2, 2005, September 1, 2005, and October 1, 2005; and (2) the plaintiff or his agents, servant and/or employees refused to accept the tendered rent.

In the June 22, 2005 letter, the plaintiff, through his attorney, instructed the defendant to make payments to the attorney. As previously stated, the change in the payment procedure was reasonable in light of the adverse landlord-tenant relationship. It was also consistent with the parties' course of performance that the plaintiff designated the payment procedure. The defendant chose to ignore the new payment procedure and instead made payments to A2Z Self-Storage or 350 Chapel Road. The payments would have been accepted if the defendant made payment to the plaintiff's attorney. The defendant chose not to follow the new payment procedure without reasonable justification.

(2) By unilaterally changing the rent collection procedure, the plaintiff has forced the defendant into a breach of the lease.

Specifically, the plaintiff has alleged the following special defense: (1) the plaintiff has forced the defendant into a breach of the lease; (2) by unilaterally changing the procedure of collecting rent from delivery at the plaintiff's place of business; and (3) by failing to afford the defendant the opportunity to pay rent in accordance with the parties' agreement and custom.

As mentioned above, the lease failed to provide for a payment procedure. The defendant had drafted the lease. In the beginning, the plaintiff designated a payment procedure which the defendant repeatedly followed. Given the parties' deteriorating relationship, the change in the payment procedure was reasonable. The new payment procedure was not unduly cumbersome for the defendant. There was no showing that the defendant was in any way prejudiced by the new payment procedure. He did not necessarily act in good faith due to his frustrations with the potential sale of the property and the condition of the equipment.

(3) Failure to provide the defendant with adequate notice of breach and time to cure breach.

Specifically, the defendant has alleged the following special defense: (1) the plaintiff has failed to provide the defendant with adequate notice of the claimed breaches of the lease agreement in violation of paragraph 11; and (2) any notice of claimed breaches or violations of the lease agreement, the plaintiff failed to allow the defendant forty-five days to cure any claimed breaches of the lease agreement.

As previously stated, over a period of several months, the plaintiff provided sufficient notice to the defendant of the nonpayment of rent and the violations of lease and sufficient time to cure.

IV CONCLUSION AND ORDER

For the above-stated reasons, the court holds the following.

The plaintiff has proved, by a fair preponderance of the evidence, nonpayment of rent for June 2005 through January 2006.

The plaintiff has proved, by a fair preponderance of the evidence, violations of the lease relating to repair of netting, upkeep and landscape the property, removal of light poles and fixtures, illegally parking a storage trailer on the premises without approval, failure to obtain plaintiff's approval or required town permits for improvements, and installation of an unapproved heating system.

The defendant has failed to prove, by a fair preponderance of the evidence, any defenses.

Therefore, the court enters judgment for plaintiff for immediate possession.

_____________________ _____________________ Owner 3-20-04 Tenant 3/20/04