Opinion
No. CVH 7670
June 23, 2009
MEMORANDUM OF DECISION
The plaintiffs, Fa Bing Ye and Li Zhi Zhao commenced this civil action by filing a three count complaint against the defendants, P.L. Windsor, LLC and Jeffrey E. Harbey, alleging (1) forcible entry and detainer; (2) breach of covenant of quiet possession; and (3) conversion. The plaintiffs later withdrew the forcible entry and detainer count. The defendant's motion to strike counts two and three of the plaintiffs' complaint was denied by the court on March 11, 2008. ( Wiese, J.). The defendants have denied counts two and three of the plaintiffs' complaint, asserted special defenses of estoppel and waiver and raised a counterclaim alleging breach of contract. A court trial was held in on February 18, 2009. Both parties were represented by counsel and later submitted proposed findings of fact and conclusions of law. The plaintiffs were assisted by a Mandarin language interpreter.
BACKGROUND
The plaintiffs were tenants in commercial real estate known as 5 National Drive, Windsor Locks, Connecticut (the "Premises") owned by the defendant P. L. Windsor, LLC.
The defendant Jeffrey E. Harbey is the managing member of P. L. Windsor, LLC. The plaintiffs operated a restaurant business on the premises under the trade name of China King Buffet.
THE PLAINTIFFS' CLAIMS
The plaintiffs allege that on or about March 3, 2007, they were in peaceful possession of the premises and their restaurant business was open for business. The plaintiffs claim that Harbey came to the restaurant and demanded to know why the plaintiffs were removing personal property from the premises. Fa Bing Ye told Harbey that the rent was too expensive and that unless the landlord agreed to reduce the rent, he was moving out. The parties then negotiated in the restaurant over a period of 2 to 2 1/2 hours in an attempt to establish a new rental agreement. Ye claims that after he rejected the new proposal, Harbey demanded that the plaintiffs immediately pay the March rent, ordered the customers in the restaurant to leave and had the locks changed. The plaintiffs allege that the defendants' actions breached the covenant of quiet possession. The plaintiffs also allege that they were deprived of their personal property which remained on the premises and seek damages from the defendants for conversion of their property.
THE DEFENDANTS' CLAIMS
The defendants claim that on or about March 3, 2007, Jeffrey Harbey received a telephone call from a neighboring business owner, Angelo Angelakopoulos, who reported that the plaintiffs were "moving out" of the premises. Harbey testified that he went to the premises and saw two vans and an automobile being loaded with food cookers, pots and pans and other items. The defendant's witness Joseph Whibey also testified that he saw the plaintiff, Fa Bing Ye and several of his employees loading the vans. Harbey testified that when he asked Fa Bing Ye "what was going on," Ye replied that he was "closing the restaurant and not paying any more rent." Harbey claims that after negotiating with Ye for two hours, Ye rejected the terms offered and repeated that he was closing the restaurant. Harbey acknowledged that he engaged a locksmith to change the locks on March 3, 2007, but claimed the locks were changed between 5:00 and 6:00 p.m. after Ye left. The defendants also claim that Ye was allowed to return to the premises on four separate occasions after March 3, 2007, to reclaim the plaintiffs' property.
In their counterclaim, the defendants allege that the plaintiffs breached their obligations under a lease dated December 7, 1993, entered into by predecessors of the parties (the "Lease"). Specifically, the defendant claims that the Lease requires the plaintiffs to restore the premises to its condition at the time of the commencement of the Lease. The defendants seek damages and attorneys' fees as a result of the plaintiffs' alleged failure to restore the premises to their prior condition.
BREACH OF THE COVENANT OF QUIET ENJOYMENT
"[U]nder landlord-tenant law, [it is] the right of a tenant to enforce a covenant of quiet enjoyment . . . The covenant assures that the lessee shall have legal quiet and peaceable possession and enjoyment of the leased premises, as far as regards the lessor, or anyone lawfully claiming through or under him, or anyone asserting a title to the leased premises superior and paramount to that of the lessor" (Citations omitted. Internal quotation marks omitted.) Sullivan v. Nameaug Walk-In Medical Center Inc., 35 Conn. App. 185, 190(1994).
It is not disputed that when Harbey entered the plaintiffs' restaurant on March 3, 2007, the restaurant was open for business. The court finds on the basis of the testimony and credibility of the witnesses that as of March 3, 2007, the plaintiffs were in lawful possession of the premises.
The defendant Harbey testified that he had the locks changed to "protect the premises" as he customarily does whenever a tenant leaves any of his properties. However, Harbey testified that he changed the locks only after Ye left and Ye had locked the door to the restaurant. At that time, the premises were secure and if the defendants had any basis to oust the plaintiffs, they were required to institute a summary process action to regain possession of the premises. "Locking premises in order to secure them is far different from, for example, changing locks and removing or destroying [or detaining] belongings. In the former situation, courts have concluded there has been no forcible entry and detainer . . . while in the latter a violation is clear.'" (Citations omitted.) Karantonis v. East Hartford, 71 Conn. App. 859, 864, 804 A.2d 861 (2002).
"General Statutes § 47a-43 provides, inter alia, that it is an actionable offense when one enters into a dwelling unit and causes removal of or detention of the personal property of the possessor of that dwelling unit, and where the person put out of possession would have to breach the peace in order to regain the leased premises." Although the plaintiffs inexplicably withdrew their forcible entry and detainer count, it is clear from the testimony of the parties that Harbey entered the premises and changed the locks while the plaintiffs were legally entitled to possession without resorting to legal process. The court finds that the self help actions taken by the defendant Harbey clearly breached the plaintiffs' right to quiet enjoyment of the premises.
With regard to the matter of damages for the defendant's breach, the burden of proving damages rests on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620 (1987). Mathematical exactitude is not required where precise proof is not feasible. Hassane v. CT Page 9099 Lawrence, 31 Conn. App. 723, 727 (1993). Although mathematical exactitude is not required, in the present case, the plaintiffs offered no proof of any damages caused by the defendants' breach of the covenant of quiet enjoyment. The testimony was clear that on March 3, 2007, the plaintiffs were at some stage of the process of vacating the premises.
Although the plaintiffs offered no proof of actual damages resulting from the defendants' breach, "Nominal damages are recoverable where there is a breach of duty or the invasion of a legal right and no actual damages result." Palmieri v. Cirino, 90 Conn. App. 841, 852, 880 A.2d 172 (2005).
In the absence of sufficient evidence of actual damages, the court awards the plaintiffs nominal damages against the defendants in the amount of $100.00.
CONVERSION
The plaintiffs allege in Count Three of their complaint that the defendants are liable for damages resulting from the defendants' wrongful conversion of the plaintiffs' chattels.
"Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). Conversion, thus, requires the plaintiffs to show harm.
The plaintiff Ye testified that the defendants withheld the plaintiffs' personal property which the plaintiffs had not yet removed at the time that Harbey changed the locks. Harbey testified that he permitted Ye to re-enter the premises on four occasions and that Ye removed all the personal property which could be removed without being disassembled.
The plaintiffs claim $100,000 in damages. This claim is based entirely on Mr. Ye's testimony. An owner may testify as to the value of his property. "A party's testimony as to the value of personal property is proper even if no qualification other than ownership of it is shown." (Internal quotation marks omitted.) Moore v. Sergi, 38 Conn. App. 829, 840, 664 A.2d 795 (1995). Although an owner may offer testimony as to the value of his property, the weight to be accorded the owner's opinion is for the trier of fact to determine. Griffin v. Nationwide Moving and Storage Co., 187 Conn. 405, 422 (1992).
Ye offered no photographs or list of property claimed to have been converted by the defendants. Ye admitted on cross examination that the personal property and equipment was "more than ten years old." Furthermore, the defendants' offered certified copies of declarations of personal property values filed by the plaintiffs with the Town of Windsor Locks for the years 2003, 2005 and 2006, signed by Ye under oath, which reported that the restaurant had no personal property of any value. (Defendants' Exhibits A, B and C).
The defendants also submitted Schedules C from the plaintiffs' 2005, 2006 and 2007 Federal Income Tax Returns which showed no entries for depreciation of personal property. (Defendants' Exhibit F). Harbey testified that when the plaintiffs failed to remove the remaining property, he advertised it for sale in a restaurant trade newspaper and that only two restaurant operators from out of state responded to the ad. Harbey testified that neither party made an offer for the equipment because it was obsolete, had no value and would cost more to move it than it was worth.
Again, the burden of proving damages rests on the party claiming them. "The cardinal rule is that a person injured shall receive fair compensation for his loss or injury and no more. Commonly the value of the property as representing the owner's loss is its market value, if it have one, since thereby is indicated the cost of replacing. The trier of fact may evaluate credibility, and weigh different testimony relating to value in arriving at an award of damages." Gargano v. Heyman, 203 Conn, at 620.
Based on the full record and the reasonable inferences drawn from the evidence and the testimony of the parties, the court finds that the plaintiffs have failed to in their burden to provide the court with a reasonable basis upon which the court can determine damages claimed as a result of the defendants' actions.
THE DEFENDANTS' COUNTERCLAIM
The defendants allege that the plaintiffs breached their obligation under Paragraph 8 of the Lease. (Plaintiffs' Exhibit 1). Paragraph 8 of the Lease provides in relevant part that the Lessee "will keep the premises in as good order and repair as the same are in at the commencement of the term or may be put in by the Lessor, reasonable use and wearing thereof, fire and other unavoidable insured casualty excepted."
As noted, the Lease dated December 7, 1993 was not executed by the plaintiffs or defendants. The original term of the Lease was for a period of five (5) years. No documentary evidence was presented to show the actual date when the plaintiffs first took occupancy. The plaintiffs signed a Lease Extension Agreement with the defendants' predecessor (the "Extension Agreement") dated April 26, 2000, which extended the term of the Lease "for one (1) additional five Year period commencing May 1, 2000 and terminating on the last day of April 2005." (Emphasis added.). (Plaintiffs' Exhibit 2).
It is not entirely clear why both parties argue in their post-trial briefs claim that that the Lease remains in "full force and effect." The express terms of the Extension Agreement provided that the Lease terminated on the last day of April, 2005. Harbey testified that P. L. Windsor, LLC, purchased the premises three months later in August, 2005. No evidence was presented of any agreement between the parties nor any provision which would extend the terms of the Lease beyond its termination on April 30, 2005.
When a tenant holds over after the termination of a written lease, a tenancy at will is created. Welk v. Bidwell, 136 Conn. 603, 608, (1950). In a case where the lease provides for monthly rental payments, the tenancy at will is a rental on a month-to-month basis. Bushnell Plaza Development Corp. v. Fazzano, 38 Conn. Sup. 683, 685 (1983). Notwithstanding the claims of the parties' counsel that the Lease remains in effect, the court is required to rule on the basis of the evidence and the law. Accordingly, the court finds that the legal relationship of the parties, at all relevant times, was that of a tenancy at will and the parties' respective claims based on the terms of the Lease are of no legal import.
Moreover, even if the court were to find that the Lease remained in effect, the defendant Harbey referred to the building and premises as being more than thirty years old and having been occupied over the years by several different operators of Chinese restaurants. The defendants offered no testimony or other proof of the original condition of the premises at the time that the 1993 lease commenced or at the time that the plaintiffs first took occupancy.
"Since tenant liability must be based on wilful or negligent conduct, the mere fact of damage does not necessarily make the tenant liable. Proof of property damage requires evidence. The landlord bears the burden of proof on all elements of a damage claim. This means that the landlord must prove that (a) the damage occurred, (b) it exceeded normal wear and tear, and (c) it was caused by the tenant. Damage may be shown either by direct evidence or circumstantially. A tenant is not liable for damages that already existed when the tenant moved into the leased premises." (Citations omitted). Baroudjian v Stribling, No. CVWA 9703-1419 (Nov. 19, 1997, Levin, J.).
The court finds that the defendants' have failed to prove their claim that the plaintiffs had a contractual obligation to restore the premises to its condition at the time of the commencement of the Lease.
However, the absence of a contractual obligation does not excuse a tenant altogether from any duty to return leased premises to its landlord in good condition and repair at the end of the leasehold term. General Statutes § 47a-11 (f) states in pertinent part that "[a] tenant shall . . . not wilfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit ""The mere fact of damage does not create liability. Proof of wilful or negligent damage requires evidence by the landlord who has the burden of proof on all elements of a damage claim. The plaintiff must not only prove the source of the damage but that it exceeded normal wear and tear." Gerardi v. Blass, Superior Court, judicial district of Litchfield at Bantam, Docket No. 185836 (June 18, 1999, Sheedy, J.).
In the case at bar, the defendants submitted twenty-one photographs of the premises taken after the plaintiffs were no longer in possession of the premises. (Defendants' Exhibit G). The defendants also submitted a claim in the amount of $14,057.87 (Defendants' Exhibit H and I) for damages to the premises as depicted in the photographs. Exhibit H consists of copies of five checks totaling $7,500 payable to "Dan Westbrook" with notations for "repairs, cleaning" and "painting."
The defendants did not offer satisfactory testimony as to the specific repairs claimed to have been made by Westbrook rather than general repairs, cleaning and painting. Westbrook did not testify and there was no testimony as to his hourly rate of compensation or any other details offered in support of the very substantial sum claimed other than the mere submission of copies of checks. As noted, Harbey testified that the building was thirty or more years old and had been occupied by a number of similar restaurant operations before the plaintiffs. "A tenant is not liable for damage existing when he moved in. . . . Nor is he liable for `normal' or reasonable wear and tear. . . . In general, wear and tear — as distinct from property damage — is deterioration of property over and above that to be expected from normal usage. It includes normal cleaning and polishing and repainting at the end of a tenancy." Gerardi v. Blass, Id. The court makes no award of damages to the defendants for general repairs, cleaning and painting.
The defendants also submitted an invoice for $4,500 for a "New Duct Furnace Above Ceiling." The invoice has a date of "12/20/2005" and includes a copy of the defendant's check for $4,500 payable to JC Mechanical Inc. dated "4/10/06." Harbey testified that he had some sort of deal with the plaintiffs to share the cost of new duct work. The law is clear that a tenant's duty to maintain and repair "does not mean to make something new but rather to refit or restore an existing thing", excluding such work as "involves structural repairs or alterations". Ingalls v. Robert Smith Hotels Corp., 143 Conn. 1, 7 (1955). Moreover, the defendants have failed to plead any agreement or prove that the $4,500 expense incurred by the defendants more than a year before the plaintiffs' departure was in any way connected to the defendants' claim for damages to the premises caused by the plaintiffs. Accordingly the court makes no award for the defendants' claim for new duct work.
With respect to the photographs of the premises offered by the defendants (Exhibit G), the court finds that the only convincing photographs are the photographs that show damage to the interior plumbing and roof. Accordingly the court finds that the defendants have sustained the burden of proof with respect to the claims for $250 for repairs to the roof by C.D. Roofing and $200 to Kevin Mercadante to remove and repair the makeshift plumbing installed by the plaintiffs. The court also finds the testimony of Harbey to be credible that the plaintiffs' failure to properly maintain the grease tanks resulted in compensable damages of $428.24 incurred by the defendants for services performed by Suburban Sanitation Service.
The court makes no award to the defendants for the claim for the $837.90 cost of replacing the leaking water heater, since the defendants have failed to prove that its replacement was made necessary by some willful or negligent act of the plaintiffs. Likewise, the court makes no award to the defendants on their claim for $60 that Ward's Locksmith was paid to change the locks on March 3, 2007.
ATTORNEYS' FEES
The defendants also seeks attorneys' fees in the amount of $22,158.19 (Defendants' Exhibit K). The defendants assert that pursuant to Paragraph 12 (d) of the Lease, the "Lessee shall be liable for the payment of all costs of collection of rent and all other expenses necessary to enforce Lessee's covenants hereunder including reasonable attorney's fees."
"Connecticut adheres to the `American rule,' which provides that attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 479, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, A.2d (2008). Having found that the 1993 Lease terminated, there is no contractual basis for the defendants' claim and it is not necessary for the court to rule on the reasonableness of the attorneys' fees claimed. The court notes, however, that a brief review of the affidavit submitted shows that a substantial portion of the entire time billed submitted was discernibly devoted to defending the defendant's wrongful actions.
CONCLUSION
Judgment shall enter in favor of the plaintiffs for nominal damages against the defendants in the amount of $100.00 together with taxable costs of $205.00. Judgment is entered in favor of the defendants on their counterclaim in the total amount of $878.24 ($250.00, $200.00 and $428.24), without costs.
Net judgment in favor of the defendants in the amount of $573.24 is to be paid to defendants' attorney as trustee no later than July 17, 2009.
SO ORDERED.