AGW Sono Partners, LLC v. Downtown Soho, LLC ( 2022 )

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AGW SONO PARTNERS, LLC v. DOWNTOWN
SOHO, LLC, ET AL.
(SC 20625)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, D Co., and its
managing member, E, in connection with D Co.’s breach of a commercial
lease agreement for certain premises, which D Co. used to operate a
restaurant and bar. D Co. had entered into a ten year lease agreement
with T Co., the plaintiff’s predecessor-in-interest. E subsequently exe-
cuted a separate agreement with T Co., pursuant to which E personally
guaranteed all of D Co.’s obligations under the lease agreement. The
plaintiff later purchased the premises from T Co. and was assigned all
of T Co.’s rights and obligations under the lease and guarantee agree-
ments. The lease agreement contained provisions requiring D Co. to use
the premises only for the operation of a restaurant and bar selling food
and beverages and to bear the burden of complying with all applicable
laws and regulations. It also required D Co. to pay the plaintiff monthly
rent and a certain percentage of its gross annual sales. D Co. failed to
make timely lease payments in January and February, 2020, but cured
each of those defaults. D Co. then defaulted a third time in March, 2020.
Around that time, the COVID-19 pandemic emerged, and the governor
proclaimed civil preparedness and public health emergencies on March
10, 2020. The governor then issued a series of executive orders that
closed restaurants and bars to in person business through May 20,
2020, restricted restaurants to outdoor dining and on premises alcohol
consumption through June 16, 2020, and then allowed restaurants to
resume indoor dining only at 50 percent capacity. D Co.’s restaurant
was closed entirely between March 11 and May 27, 2020, and then
opened for outdoor dining and subsequently for limited indoor dining.
Whereas D Co.’s restaurant previously had a capacity of more than 140
patrons, upon reopening, indoor capacity was limited to approximately
25 persons, including staff. The restaurant was operating at a loss, and
D Co. did not make any rental payments after February, 2020. D Co.
vacated the premises in September, 2020, in response to a notice to
quit, and the plaintiff immediately began searching for a new tenant. S
Co. signed a ten year lease for the premises on November 30, 2020, with
occupancy commencing in January, 2021. S Co.’s monthly rental payment
was less than what D Co. had been paying, and the plaintiff granted S
Co. a concession of six months’ free rent. The plaintiff alleged that D
Co. had breached the lease agreement and had been unjustly enriched
by virtue of its continued use of the premises for months after defaulting,
and that E had breached his obligations under his agreement to guarantee
D Co.’s obligations under the lease. In response, the defendants raised
various special defenses, including the doctrines of impossibility of
performance and frustration of purpose, owing to the adverse effects
of the executive orders on the restaurant and hospitality industry. After
a trial to the court, the trial court found for the plaintiff on all three counts
and rejected the defendants’ special defenses. The court concluded that
the defendants had not proven, by a fair preponderance of the evidence,
that the executive orders had rendered the operation of a restaurant
impossible or frustrated the purpose of the lease agreement. The court
reasoned that, although the pandemic was unforeseeable, the lease
agreement allocated to D Co. the burden of complying with the executive
orders, that the lease agreement did not require the operation of a
profitable restaurant, and that none of the executive orders specifically
made the operation of a restaurant impossible, especially in light of
takeout and curbside options. With respect to damages, the court
awarded the plaintiff, inter alia, damages for unpaid lease payments
from March through December, 2020, around the time when S Co. signed
its lease. Although the court credited evidence that the plaintiff had
made efforts to mitigate its damages by securing S Co. as a new tenant,
it found that the plaintiff had presented no evidence of its negotiations
with S Co. to determine whether further negotiations could have resulted
in a lease with terms similar to or the same as those in the defendants’
lease. From the judgment rendered thereon, the defendants appealed
and the plaintiff cross appealed. Held:
1. The defendants could not prevail on their claim that the trial court incor-
rectly had concluded that they failed to establish, by a preponderance
of the evidence, the special defenses of impossibility and frustration
of purpose:
a. The trial court correctly determined that the various executive orders
restricting the operation of D Co.’s restaurant did not render performance
of the lease agreement impossible as a matter of law: only in the most
exceptional circumstances will a contractual duty be discharged because
additional financial burdens make performance less practical than ini-
tially contemplated, a party who makes an unqualified promise to perform
necessarily assumes an obligation to perform, even if the occurrence of
a foreseeable event makes performance impracticable, and the impossi-
bility doctrine does not apply when the contract explicitly assigns a
particular risk to one party; in the present case, the impossibility doctrine
did not excuse D Co. from its obligations to the plaintiff under the lease
agreement because, even under the most restrictive executive orders
closing restaurants entirely to indoor dining, use of the premises for the
purpose of operating a restaurant was not rendered impossible insofar
as restaurants were permitted to provide curbside or takeout service;
moreover, the lease agreement did not prohibit D Co. from offering such
curbside or takeout service, and, although the pandemic restrictions had
serious economic consequences for the viability of the restaurant, they
did not, by themselves, make performance under the lease agreement
impossible or commercially impracticable but, instead, simply raised the
cost of performance for D Co. in a manner that rendered performance
highly burdensome but not factually impossible; furthermore, the lan-
guage of the lease agreement suggested that events of the magnitude of
the COVID-19 pandemic were not entirely unforeseeable, and the lease
agreement, to the extent that it contemplated a crisis situation beyond
the parties’ control, excused only the plaintiff’s obligations while squarely
tasking D Co. with the obligation of complying with all governmental
laws, orders and regulations.
b. The trial court correctly determined that the shutdown and restrictions
compelled by the pandemic related executive orders did not frustrate
the purpose of the lease agreement, which the defendants claimed was
the operation of a ‘‘first-class’’ restaurant with indoor, on premises dining
and bar service: establishing the frustration of purpose defense requires
convincing proof of a changed situation so severe that it is not fairly
regarded as being within the risks assumed under the contract, and, in
light of the narrow construction afforded to the doctrine so as to preserve
the certainty of contracts, this court could not conclude that the purpose
of the parties’ lease agreement was frustrated by the pandemic restric-
tions imposed by the executive orders, as even the most restrictive of
the executive orders barring indoor dining entirely did not render the
lease agreement valueless insofar as it did not preclude takeout or out-
door dining, which services D Co. ultimately provided.
2. The trial court improperly assigned the plaintiff, as the nonbreaching
party, the burden of proving that it had mitigated its damages, and,
accordingly, this court reversed the judgment with respect to the trial
court’s damages award and remanded the case for further proceedings
as to damages: consistent with well established principles of damages
law, as well as this court’s precedent in the contexts of tort and contract
law, this court concluded that, when a lessee has breached a lease
agreement, the lessee bears the burden of proving that the lessor failed
to undertake commercially reasonable efforts to mitigate its damages;
in the present case, the trial court, in determining the damages to which
the plaintiff was entitled, stopped the accrual of monthly rent damages
in December, 2020, even though S Co. was not set to occupy the premises
under its lease until January, 2021, and noted that the plaintiff had
presented no evidence of its negotiations with S Co. and that it could
only speculate if further negotiations with S Co. would have resulted
in a lease with the same or similar terms to those in the defendants’
lease; moreover, by engaging in the foregoing speculation in connection
with reducing the contract damages that it ultimately awarded to the
plaintiff, the trial court effectively relieved the defendants of their burden
of proving that the plaintiff’s efforts were, in fact, commercially unrea-
sonable under the circumstances; accordingly, a new hearing in damages
was required.
Argued November 16, 2021—officially released May 10, 2022
Procedural History
Action to recover damages for, inter alia, breach of
a lease agreement, and for other relief, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk, Housing Session at Norwalk, and tried to the
court, Spader, J.; judgment for the plaintiff, from which
the defendants appealed and the plaintiff cross appealed.
Reversed in part; further proceedings.
Philip Russell, with whom, on the brief, was Cather-
ine R. Keenan, for the appellants-cross appellees (defen-
dants).
Andrew B. Nevas, with whom, on the brief, was Travis
K. Waller, for the appellee-cross appellant (plaintiff).
Opinion
ROBINSON, C. J. In the earliest months of the COVID-
19 public health emergency, Governor Ned Lamont issued
numerous executive orders that closed or severely
restricted the operation of various businesses, including
bars and restaurants, in order to stem the spread of the
virus at that time. This appeal requires us to consider
how those executive orders affected the enforceability
of a commercial lease agreement for premises in South
Norwalk that the defendants, Downtown Soho, LLC
(Downtown Soho), and Edin Ahmetaj, leased from the
plaintiff, AGW Sono Partners, LLC, for their fine dining
restaurant. The defendants appeal, and the plaintiff cross
appeals,1 from the judgment of the trial court awarding
the plaintiff $200,308.76 in damages for the defendants’
breach of that lease agreement. In their appeal, the defen-
dants claim, inter alia, that the trial court incorrectly
concluded that the common-law doctrines of impossibil-
ity and frustration of purpose did not relieve them of
their obligations under the lease agreement, given the
damaging economic effects of the various executive
orders on their restaurant’s business. In its cross appeal,
the plaintiff claims that, in calculating the damages award,
the trial court improperly allocated the burden of proof
in determining whether the plaintiff had mitigated its
damages when it leased the premises to a new tenant at
a lesser rent than the defendants had paid. We conclude
that the trial court correctly determined that the eco-
nomic effects of the executive orders did not relieve the
defendants of their obligations under the lease agreement
but that a new damages hearing is required because the
trial court improperly allocated the burden of proof as
to mitigation in determining the damages award. Accord-
ingly, we reverse in part the judgment of the trial court.
The record reveals the following facts, as found by the
trial court, and procedural history. In December, 2018,
TR Sono Partners, LLC (TR Sono), entered into a lease
agreement with Downtown Soho, under which Down-
town Soho would use and occupy premises located
at 99 Washington Street in South Norwalk (premises) for
a ten year period beginning on January 1, 2019. Section
4 (a) of the lease agreement provides in relevant part
that the defendants ‘‘shall use the [p]remises for the oper-
ation of a restaurant and bar selling food, beverages, and
related accessories, together with uses incidental thereto,
and for no other purpose. . . .’’2 Under the terms of the
lease agreement, Downtown Soho was obligated to pay
both base monthly and percentage rent,3 along with addi-
tional rent to cover its apportioned amounts of the plain-
tiff’s insurance, common area expenses and real estate
taxes, commencing on July 1, 2019, and concluding on
December 31, 2028. On December 20, 2018, Ahmetaj, who
is the managing member of Downtown Soho, executed
a guarantee agreement pursuant to which he personally
guaranteed all of Downtown Soho’s obligations under the
lease agreement. In December, 2019, the plaintiff pur-
chased six commercial properties, including the prem-
ises, from TR Sono, which assigned all of its rights and
obligations under the lease and guarantee agreements for
those properties to the plaintiff.
The defendants operated a fine dining restaurant known
as Blackstones Bistro (bistro) on the premises. Most
of the bistro’s business came during dinner service,
when an average seating would generate a bill of $100
to $200 per patron, given bar service and dishes priced
on average between $35 and $60 each. The upscale bar
supported the restaurant side of the business and occu-
pied approximately 40 percent of the premises’ total
rental space. Prior to the COVID-19 pandemic, the bar
was busy and could accommodate sixty customers by
providing more than twenty-eight seats at the bar plus
standing room for crowds.
The defendants first defaulted on their payment obli-
gations under the lease agreement in January, 2020, by
making only half the required monthly rent payment;
they cured that default in February, 2020, by making
payment within two weeks of receiving a default notice
from the plaintiff. The defendants then defaulted on
their February, 2020 obligations, which they cured one
week later. Subsequently, Ahmetaj met with Adam Green-
baum, the plaintiff’s manager, to discuss the defaults;
Ahmetaj informed Greenbaum that the defaults resulted
from slower winter business and would cease when
business improved during the warmer months, and that
he was surprised that the plaintiff, unlike TR Sono, did
not accept late payments given the seasonal nature of
the restaurant business in the Norwalk area.
The defendants defaulted on the lease agreement a
third time the next month, and the plaintiff sent them
a default notice on March 11, 2020; the defendants did
not cure that default. On March 10, 2020, Governor
Lamont acted, pursuant to General Statutes §§ 19a-131a
and 28-9, and issued a Declaration of Public Health and
Civil Preparedness Emergencies (declaration) because
of the COVID-19 outbreak4 in the United States and in
Connecticut, specifically.5 Pursuant to the declaration,
Governor Lamont then issued several executive orders
that affected the operation of bars and restaurants.
First, on March 16, 2020, Governor Lamont issued Exec-
utive Order No 7D,6 which, inter alia, closed bars and
restaurants to in person business from that day through
April 30, 2020; the subsequent Executive Order No. 7X7
extended that ban through May 20, 2020. Executive
Order No. 7PP,8 issued on May 18, 2020, allowed restau-
rants to offer outdoor dining and on premises alcohol
consumption beginning on May 20, 2020, and, on June
16, 2020, Executive Order No. 7ZZ9 allowed restaurants
to resume providing indoor dining at 50 percent capac-
ity.10
The bistro was completely closed between March 11
and May 27, 2020. Downtown Soho had no income and
could not pay rent during that period of time. Although
the lease agreement did not prohibit takeout or delivery
dining or restrict the restaurant’s operation to dine in
business only, Ahmetaj testified that it was not profit-
able when the bistro attempted to do so. After obtaining
a permit from the city of Norwalk, Downtown Soho
reopened the bistro for outdoor dining on May 28, 2020.
Subsequently, during the summer of 2020, the bistro
was open for indoor dining. As the trial court found,
the nine foot social distancing requirements imposed
at that time by the city of Norwalk11 had a significant
effect on the usage of the restaurant space because,
‘‘[p]repandemic, [more than] 140 patrons could enjoy
the space, [whereas] after the pandemic, about a maxi-
mum of twenty-five individuals, including staff, could
be inside. At best, operating the business meant
operating at a loss.’’ This was compounded by the fact
that alcoholic beverage sales remained limited to those
customers who had purchased food. See Executive
Order No. 7PP; footnote 8 of this opinion.
The defendants did not make any rental payments
after March, 2020. During the pandemic, Ahmetaj again
spoke with Greenbaum and asked that the plaintiff for-
give rent for the months of March, April, and May, 2020,
with full payments to begin in June, 2020. The plaintiff
declined that offer because the defendants had refused
its request to make some partial payment as a show of
good faith, particularly when they had been in default
under the lease agreement even prior to the pandemic
restrictions.12 Subsequently, the plaintiff served a notice
to quit, demanding that Downtown Soho vacate the
premises on or before June 12, 2020; the plaintiff com-
menced a separate summary process action shortly
thereafter. Downtown Soho vacated the premises by
September 11, 2020.
The plaintiff immediately began marketing the space
for new tenants. On November 30, 2020, the plaintiff
entered into a ten year lease agreement for the premises
with a new tenant, Sono Boil, Inc. (Sono Boil). Sono
Boil planned to renovate the premises and to operate
a full service restaurant there. The rent for Sono Boil’s
lease was $12,500 per month, including base rent and
the additional rent for reimbursement of property taxes
and common area expenses, which was less than the
defendants had been paying. To entice Sono Boil to
sign a lease, the plaintiff provided it with a concession
of free rent for the first six months of the lease. The
plaintiff did not offer a similar concession or lease terms
to the defendants in order to allow them to stay.
The plaintiff brought this action against the defen-
dants seeking money damages. In the first two counts
of the three count complaint, the plaintiff alleged that
Downtown Soho had breached the lease agreement and
been unjustly enriched by occupying the premises with-
out paying for that benefit. In the third count, the plain-
tiff alleged that Ahmetaj had breached his guarantee
obligations. In response, the defendants raised various
special defenses, including the doctrines of impossibil-
ity of performance and frustration of contract, relying
on the purpose of the lease agreement, namely, ‘‘ ‘the
operation of a first class restaurant and bar,’ ’’ and the
adverse effects of the various executive orders on the
restaurant and hospitality industry. The defendants also
claimed that the executive orders rendered the lease
agreement illegal as a matter of law.
After a one day trial to the court, at which Ahmetaj
and Greenbaum testified, the trial court issued a memo-
randum of decision, finding that the plaintiff had estab-
lished its claims of breach of the lease agreement, unjust
enrichment, and breach of guarantee. Turning to the
special defenses, the trial court concluded that the
defendants had not proven, by a fair preponderance of
the evidence, that the executive orders rendered the
operation of a restaurant impossible, impracticable or
illegal, and had not frustrated the purpose of the lease
agreement. Emphasizing that § 4 (d) of the lease agree-
ment required the defendants to bear the risk of comply-
ing with applicable laws and regulations,13 the trial court
concluded that the ‘‘pandemic . . . was certainly an
unforeseen event, but compliance with the governmen-
tal orders in response thereto was an expense allocated
to the defendants in the lease [agreement]. The defen-
dants claim that they were operating at a loss until the
business ultimately closed. It is clear that [the bistro]
would not immediately ‘look’ on the inside like it did
prior to the pandemic, with a crowd enjoying [its] sorely
missed cuisine, but the law, and the lease [agreement],
did not require the defendant[s] to operate a profitable
bar/restaurant, just a bar/restaurant. Certainly, fine din-
ing as takeout is a difficult sell, but not illegal [or]
impossible. . . . None of the executive orders specifi-
cally made the operation of a restaurant ‘illegal’ or
‘impossible.’ ’’ (Emphasis in original.) The trial court
further observed that the ‘‘purpose of the lease [agree-
ment] was not frustrated [but, rather], the [defendants’]
profitability for continuing that purpose was frustrated.
It is a key distinction that causes this defense to fail.’’
The trial court then considered damages, observing
that, ‘‘[i]n a commercial lease, the defendant is usually
responsible for the full amount of the lease less the
amounts the plaintiff was able to mitigate with the new
lease.’’ It then found that, ‘‘[a]lthough the defendant[s]
vacated [the premises on] September 11, 2020, [they]
did not provide any funds toward rent, use and occu-
pancy or reimbursements since February, 2020. The
new lease was signed in December, 2020, with the new
tenant beginning occupancy in January, 2021. The lease
is at a slightly lower monthly rent to reflect the new
economic conditions.’’ In calculating the damages, the
trial court credited the plaintiff for mitigating its dam-
ages by ‘‘quick[ly] obtaining . . . a new tenant,’’ Sono
Boil, but it observed that ‘‘no evidence of the negotia-
tions with [Sono Boil] was presented in detail by the
plaintiff. The court can only speculate if further negotia-
tions with [Sono Boil] could have resulted in a lease with
the same terms the defendants’ lease had. Certainly,
the six month [rent] concession [given to Sono Boil]
was similar to that enjoyed by the defendants . . . at
the start of [their] lease [agreement] and is not unusual,
but the court is going to terminate the accrual of dam-
ages [with the] December, 2020 rent. [Sono Boil] took
possession on or about January 1, 2021. The court will
allow the leasing [broker’s] commission as an expense,
as it would not have been incurred had the defendants
fulfilled their obligations.’’14 Accordingly, the trial court
rendered judgment for the plaintiff and awarded it
$200,308.76 in damages.15 This appeal and cross appeal
followed.
On appeal, the defendants claim that the trial court
improperly interpreted and applied the special defenses
of impossibility and frustration of purpose.16 In its cross
appeal, the plaintiff claims that the trial court improp-
erly declined to award it the full difference in value
between the defendants’ lease agreement and that of
the new tenant, Sono Boil.
I
SPECIAL DEFENSE CLAIMS
Before turning to the defendants’ specific claims with
respect to the contract defenses of impossibility and
frustration of purpose,17 we set forth the applicable legal
principles and standard of review. ‘‘The elements of
a breach of contract claim are the formation of an
agreement, performance by one party, breach of the
agreement by the other party, and damages. . . . The
interpretation of definitive contract language is a ques-
tion of law over which our review is plenary. . . . By
contrast, the trial court’s factual findings as to whether
and by whom a contract has been breached are subject
to the clearly erroneous standard of review and, if sup-
ported by evidence in the record, are not to be disturbed
on appeal.’’ (Citations omitted; internal quotation marks
omitted.) CCT Communications, Inc. v. Zone Telecom,
Inc., 327 Conn. 114, 133, 172 A.3d 1228 (2017).
Moreover, a ‘‘party raising a special defense has the
burden of proving the facts alleged therein.’’ (Internal
quotation marks omitted.) U.S. Bank, National Assn.
v. Moncho, 203 Conn. App. 28, 46, 247 A.3d 161, cert.
denied, 336 Conn. 935, 248 A.3d 708 (2021). ‘‘Legally
sufficient special defenses alone do not meet the defen-
dant’s burden. The purpose of a special defense is to
plead facts that are consistent with the allegations of
the complaint but demonstrate, nonetheless, that the
plaintiff has no cause of action.’’ (Internal quotation
marks omitted.) Id.; see, e.g., Wyatt Energy, Inc. v.
Motiva Enterprises, LLC, 308 Conn. 719, 736–37, 66
A.3d 848 (2013). On appeal, we engage in plenary review
of the trial court’s conclusions of law with respect to
special defenses and review factual determinations for
clear error. See id.As one federal court has aptly noted with respect to
COVID-19, ‘‘[t]hese times have not been easy for most
people. And [although] some have had the good fortune
to be able to continue to work during this unprece-
dented health crisis, others have not been as fortunate.
. . . [B]usinesses that rely on the public such as the-
aters, restaurants, bars, hotels and the travel industry,
as well as their landlords, have been hit particularly
hard. And for the most part, the affected parties have
tried to negotiate a resolution that is painful but practi-
cal to [e]nsure that ‘on the other side’ there will be
something left. . . . But in the absence of [an] agreed
[on] resolution, we are left with the resolutions that
parties have bargained for in their contracts, or, [when]
appropriate, the equitable remedies that [the] common
law has fashioned.’’ (Footnote omitted.) In re Cinemex
USA Real Estate Holdings, Inc., 627 B.R. 693, 701
(Bankr. S.D. Fla. 2021). With this in mind, we consider
whether the impossibility or frustration of purpose doc-
trines afford the defendants relief from their contractual
obligations to the plaintiff.
A
Impossibility Doctrine
We begin with the defendants’ claim that the trial
court incorrectly concluded that they failed to demon-
strate entitlement to relief from the lease agreement
under the impossibility doctrine. They argue that the
trial court improperly drew a distinction between the
operation of a restaurant and the operation of a profit-
able restaurant in rejecting this special defense, empha-
sizing that, under Dills v. Enfield, 210 Conn. 705, 557
A.2d 517 (1989), impossibility calls for proof only of
commercial impracticability as a result of unforeseen
events, in this case, the restaurant closures resulting
from the governmental response to the COVID-19 pan-
demic. In support of this argument, the defendants rely
on a New York case, Bush v. ProTravel International,
Inc., 192 Misc. 2d 743, 753–54, 746 N.Y.S.2d 790 (2002),
in which the court determined that there was a genuine
issue of material fact as to whether a customer was
excused from the performance of a travel contract in
the wake of a lockdown of New York City after the
September 11 terrorist attacks on the World Trade Cen-
ter.18 The defendants posit that, under the circumstances
created by the executive orders, ‘‘[t]he unforeseeable
effect of the [COVID-19] pandemic on [their] business
and [the] subsequent lack of profitability [were] no fault
of [theirs], and the lease could not have been performed
by any other party. As a result, [they are] excused from
breach of the [lease agreement] as [it] became impossi-
ble and impracticable for [them] to perform.’’
In response, the plaintiff argues that the trial court
correctly determined that impossibility depends both
on whether the contract can be performed only ‘‘ ‘at an
excessive and unreasonable cost’ ’’ and whether on the
terms of the contract reflect consideration of the risk at
issue. Citing several recent decisions from New York’s
federal and state courts considering the effect of the
COVID-19 pandemic on the enforceability of commer-
cial leases under the impossibility doctrine; see, e.g.,
Gap, Inc. v. Ponte Gadea New York, LLC, 524 F. Supp.
3d 224, 237–38 (S.D.N.Y. 2021); the plaintiff emphasizes
that § 4 (d) of the lease agreement requires the tenant
to bear the cost of legal and regulatory compliance with
respect to the use of the premises. We agree with the
plaintiff and conclude that the executive orders did not
render performance of the lease agreement impossible
as a matter of law.
‘‘The doctrine of ‘impossibility’ has come to include
‘physical impossibility,’ ‘frustration of purpose’ and
‘impracticability’ because of contingencies rendering
performance more costly.’’ Dills v. Enfield, supra, 210
Conn. 717 n.16. It ‘‘represents an exception to the accepted
maxim of pacta sunt servanda [agreements must be
kept], in recognition of the fact that certain conditions
cannot be met because of unforeseen occurrences. . . .
A party claiming that a supervening event or contin-
gency has prevented, and thus excused, a promised
performance must demonstrate that: (1) the event made
the performance impracticable; (2) the nonoccurrence
of the event was a basic assumption on which the con-
tract was made; (3) the impracticability resulted with-
out the fault of the party seeking to be excused; and
(4) the party has not assumed a greater obligation than
the law imposes.’’ (Citation omitted.) Id., 717, citing 2
Restatement (Second), Contracts § 261, p. 313 (1981),
and E. Farnsworth, Contracts (1982) § 9.6, p. 678.
As we observed in Dills, ‘‘only in the most exceptional
circumstances have courts concluded that a duty is
discharged because additional financial burdens make
performance less practical than initially contemplated.
See, e.g., Neal-Cooper Grain Co. v. Texas Gulf Sulphur
Co., 508 F.2d 283, 294 (7th Cir. 1974) (party [is] not
allowed ‘to escape a bad bargain merely because it is
burdensome’); American Trading & Production [Corp.]
v. Shell International Marine, Ltd., 453 F.2d 939, 942
(2d Cir. 1972) (closing of Suez Canal requiring charterer
to sail nearly twice as many miles at . . . cost of nearly
one-third more than . . . contract price does not excuse
performance); United States v. Wegematic [Corp.], 360
F.2d 674, 676–77 (2d Cir. 1966) (duty of manufacturer
to produce revolutionary computer system [was] not
excused because of ‘engineering difficulties’ requiring
two years and $1.5 million to correct); Peerless Casualty
Co. v. Weymouth Gardens, 215 F.2d 362, 364 (1st Cir.
1954) (increased costs caused by . . . unexpected out-
break of war [do] not [end] obligation of contract); [In
re] Westinghouse Electric [Corp.], 517 F. [Supp.] 440,
452–53 (E.D. Va. 1981) (duty to remove spent fuel [was]
not excused merely because reprocessing of . . . fuel
became unprofitable) . . . .’’ Dills v. Enfield, supra,
210 Conn. 717–18.
‘‘Furthermore, the event [on] which the obligor relies
to excuse his performance cannot be an event that the
parties foresaw at the time of the contract.’’ Id., 718. ‘‘Thus,
the central inquiry is whether the nonoccurrence of the
alleged impracticable condition was a basic assumption
on which the contract was made.’’ (Internal quotation
marks omitted.) Id., 719, citing 2 Restatement (Second),
supra, §§ 261 and 271, pp. 313, 354. ‘‘If an event is fore-
seeable, a party who makes an unqualified promise to
perform necessarily assumes an obligation to perform,
even if the occurrence of the event makes performance
impracticable.’’ (Internal quotation marks omitted.) Dills
v. Enfield, supra, 210 Conn. 720.
Our description of Dills is apt for this case, as well,
with respect to impossibility or impracticability. ‘‘This
case, like virtually every case involving discharge from
an obligation to perform, concerns the issue of which
party bears the loss resulting from an event that renders
performance by one party uneconomical. . . . Determin-
ing whether the [nonoccurrence] of a particular event
was . . . a basic assumption involves a judgment as
to which party assumed the risk of its occurrence . . . .
In making such determinations, a court will look at all
circumstances, including the terms of the contract. . . .
[Because] impossibility and related doctrines are devices
for shifting risk in accordance with the parties’ presumed
intentions, which are to minimize the costs of contract
performance, one of which is the disutility created by
risk, they have no place when the contract explicitly
assigns a particular risk to one party or the other.’’19 (Cita-
tions omitted; internal quotation marks omitted.) Id.;
see O’Hara v. State, 218 Conn. 628, 636–38, 590 A.2d
948 (1991) (impossibility doctrine did not excuse duty
to convey real property, despite nonoccurrence of road-
way relocation project that was condition to convey-
ance, because contract anticipated that situation by
requiring partial conveyance if condition did not occur);
Dills v. Enfield, supra, 210 Conn. 709–11, 719–20 (impossi-
bility doctrine did not excuse real estate developer from
his obligation to submit acceptable construction plans
to town’s economic development agency for construc-
tion of industrial park, which would have allowed
him to recover $100,000 deposit that developer had
made to town pending financing, even though it would
cost $250,000 to produce plans and developer had been
unable to obtain project financing, because situation
reflected bargained for provision in contract and was
not unforeseeable given developer’s previous financial
difficulties); West Haven Sound Development Corp. v.
West Haven, 201 Conn. 305, 307–308, 313–15, 514 A.2d
734 (1986) (impossibility doctrine did not relieve city
of contractual obligations to real estate developer when
popular referendum to turn certain land into park,
which result had force of ordinance, resulted in cancel-
lation of economic development project); Hess v.
Dumouchel Paper Co., 154 Conn. 343, 351–52, 225 A.2d
797 (1966) (planned condemnation of land for highway
construction did not excuse tenant’s performance of
lease for warehouse until ‘‘the time of the actual taking’’
because ‘‘the imminence of condemnation did not oper-
ate to cancel the written lease’’ under impossibility doc-
trine).
Applying these principles, we conclude that the doc-
trine of impossibility or impracticability did not excuse
the defendants from their obligations to the plaintiff
under the lease agreement. First, and most significant,
as the trial court found, even under the most restrictive
executive orders, use of the premises for restaurant
purposes was not rendered factually impossible insofar
as restaurants were permitted to provide curbside or
takeout service, and the lease agreement did not pro-
hibit curbside or takeout service. See, e.g., Gap, Inc. v.
Ponte Gadea New York, LLC, supra, 524 F. Supp. 3d
237–38 (even though retailer’s ‘‘performance may be
burdensome, even to the extent of insolvency or bank-
ruptcy,’’ governmental prohibitions on physical retail
business did not render performance of retail store
lease impossible as matter of law given availability of
curbside pickup of merchandise and force majeure
clause of ‘‘limited application’’); In re Cinemex USA
Real Estate Holdings, Inc., supra, 627 B.R. 700–701
(doctrine of impracticability did not excuse movie the-
ater’s rental obligation after reopening was allowed at
50 percent capacity, despite reduced revenues resulting
from lack of new movie releases and reduced customer
demand, and increased costs resulting from providing
appropriate safety equipment and social distancing);
558 Seventh Ave. Corp. v. Times Square Photo, Inc.,
194 App. Div. 3d 561, 561–62, 149 N.Y.S.3d 55 (conclud-
ing that doctrines of impossibility and frustration of
purpose did not excuse obligation of electronics store
to pay rent because, although it ‘‘was shuttered for a
period as a result of [pandemic related] executive
orders,’’ which resulted in ‘‘reduced revenues,’’ it ‘‘even-
tually reopened for curbside service and . . . [the ten-
ant was] able to gain access to the premises during the
period of nonpayment’’), appeal dismissed, 37 N.Y.3d
1040, 176 N.E.3d 301, 154 N.Y.S.3d 564 (2021). But cf.
Doherty v. Monroe Eckstein Brewing Co., 198 App.
Div. 708, 710–12, 191 N.Y.S. 59 (1921) (constitutional
prohibition of sale of liquor rendered void for illegality
lease that was for exclusive purpose of ‘‘saloon busi-
ness,’’ namely, place for sale of intoxicating beverages);
1877 Webster Ave., Inc. v. Tremont Center, LLC, 72
Misc. 3d 284, 292, 148 N.Y.S.3d 332 (2021) (fact that
‘‘the exclusive purpose of the lease was to operate a
first-class nightclub’’ created ‘‘a legally cognizable the-
ory’’ that government shutdown of nonessential busi-
nesses rendered it ‘‘objectively impossible’’ for tenant
‘‘to conduct business as originally contemplated by the
parties’ lease’’). Although the COVID-19 restrictions had
undoubtedly serious economic consequences for the
viability of the bistro—in particular, the initial closure
for indoor dining, followed by the loss of bar business
and a reopening for indoor dining only with a drastic
reduction in capacity—they did not, by themselves,
make performance under the lease agreement impossi-
ble or commercially impracticable as a matter of law.20
Instead, they simply raised the cost of performance for
the defendants in a manner that rendered it perhaps
highly burdensome, but not factually impossible—akin
to the outbreak of war, or the closure of the Suez Canal,
which had been held not to discharge contractual duties
under the doctrine of impossibility. See Dills v. Enfield,
supra, 210 Conn. 717–18 (citing cases).
Second, the language of the lease agreement suggests
that events of the magnitude of the COVID-19 pandemic
were not entirely unforeseeable. The lease agreement
lacks a force majeure clause that would govern the
parties’ mutual obligations in the event of a crisis situa-
tion beyond their control,21 and, to the extent that the
lease agreement provides for any forgiveness of obliga-
tion in a crisis situation (thus suggesting that they are
foreseeable), it excuses only the plaintiff’s obliga-
tions—under § 25 of the lease agreement governing
‘‘unavoidable delay’’ occasioned by a variety of circum-
stances, including fire or ‘‘governmental [preemption]
in connection with a national emergency . . . .’’22
Finally, § 4 (d) of the lease agreement squarely tasks
the defendants with the obligation of complying with
all governmental ‘‘laws, orders and regulations . . . .’’
See footnote 13 of this opinion. Accordingly, we con-
clude that the trial court correctly determined that the
defendants did not establish the special defense of
impossibility by a preponderance of the evidence.
B
Frustration of Purpose
We now turn to the defendants’ claim under the frus-
tration of purpose doctrine. The defendants argue that
the COVID-19 pandemic and required shutdown pursu-
ant to the executive orders, which was an unforeseen
event beyond the control of either party, frustrated the
purpose of the lease agreement, as stated by § 1 (o),
namely, ‘‘the operation of a first-class restaurant and
bar selling food, beverages and related accessories,
together with uses incidental thereto, and for no other
purpose.’’23 Relying on the prohibition era decision in
Doherty v. Monroe Eckstein Brewing Co., supra, 198
App. Div. 708, and a recent Massachusetts decision,
UMNV 205-207 Newbury, LLC v. Caffé Nero Americas,
Inc., Docket No. 2084CV01493-BLS2, 2021 WL 956069(Mass. Super. February 8, 2021), among other cases,
the defendants contend that the purpose of the lease
agreement was frustrated and ‘‘rendered valueless’’
given that the executive orders in effect until June 16,
2020, eliminated the indoor, ‘‘on premises dining with
bar service’’ that had constituted their ‘‘business trade,’’
despite the lack of limitations to that effect in the provi-
sions of the lease agreement. In response, the plaintiff
argues that the case law cited by the defendants is
distinguishable and that the trial court correctly deter-
mined that the executive orders did not frustrate the
purpose of the lease agreement because a legal use
for the premises remained available to the defendants
under its terms, namely, the service of food and bever-
ages for off premises consumption. We agree with the
plaintiff and conclude that the trial court correctly
determined that the executive orders did not frustrate
the purpose of the lease agreement.
‘‘The doctrine of frustration of purpose . . . excuses
a promisor in certain situations [in which] the objectives
of the contract have been utterly defeated by circum-
stances arising after the formation of the agreement.
. . . Excuse is allowed under this rule even though
there is no impediment to actual performance. . . . A
party claiming that a supervening event or contingency
has frustrated, and thus excused, a promised perfor-
mance must demonstrate that: (1) the event substan-
tially frustrated his principal purpose; (2) the nonoccur-
rence of the supervening event was a basic assumption
on which the contract was made; (3) the frustration
resulted without the fault of the party seeking to be
excused; and (4) the party has not assumed a greater
obligation than the law imposes.’’24 (Citation omitted;
internal quotation marks omitted.) Howard-Arnold,
Inc. v. T.N.T. Realty, Inc., 315 Conn. 596, 605, 109 A.3d
473 (2015); see Hess v. Dumouchel Paper Co., supra,
154 Conn. 350–51. ‘‘[T]he establishment of the defense
requires convincing proof of a changed situation so
severe that it is not fairly regarded as being within the
risks assumed under the contract. . . . The doctrine
of frustration of purpose is given a narrow construction
so as to preserve the certainty of contracts . . . .’’
(Citation omitted; internal quotation marks omitted.)
Godfrey v. Commissioner of Correction, 202 Conn.
App. 684, 693, 246 A.3d 1032, cert. denied, 336 Conn.
931, 248 A.3d 2 (2021), quoting 17A Am. Jur. 2d 618,
Contracts § 640 (2016), and 17A Am. Jur. 2d, supra,
§ 641, p. 619; see O’Hara v. State, supra, 218 Conn.
638 (circumstances giving rise to frustration of purpose
must be unforeseeable at time of contract); see also
Howard-Arnold, Inc. v. T.N.T. Realty, Inc., supra, 605–
606 (doctrine did not apply when purpose of lease was
to lease property, and tenant continued to occupy prop-
erty, despite lack of environmental remediation in con-
nection with option to purchase); O’Hara v. State,
supra, 638–39 (doctrine did not apply with respect to
purchase of land because ‘‘the agreement explicitly
acknowledged the possibility that the plans for reloca-
tion could be altered,’’ meaning that ‘‘the parties fore-
saw that the state might acquire a greater portion of
the eastern property than originally proposed’’); Hess
v. Dumouchel Paper Co., supra, 351 (The purpose of the
lease agreement was not frustrated by ‘‘the impending
condemnation’’ of the leased warehouse for the con-
struction of a highway because the ‘‘purpose of the
agreement, from the defendant’s point of view, was to
provide storage space for its inventory,’’ which ‘‘sur-
vived the announcement of the highway construction
plans, as evidenced by the defendant’s purchase of its
own warehouse. At the time of the actual taking, of
course, the objective of the contract would have
become frustrated, and performance by the plaintiff
rendered impossible . . . .’’); DDS Wireless Interna-
tional, Inc., v. Nutmeg Leasing, Inc., 145 Conn. App.
520, 527, 75 A.3d 86 (2013) (doctrine did not excuse taxi
company from its obligations under service contract
for mobile dispatch system because termination clause
in contract indicated that ‘‘the parties plainly did con-
template a situation in which the [taxi company] would
not be satisfied with the dispatch system or the ser-
vice provided’’).
Given the narrowness of the frustration of purpose
doctrine, we conclude that the purpose of the lease
agreement was not frustrated by the pandemic restric-
tions imposed by the executive orders, even those that
barred indoor dining entirely. The language of the lease
agreement was not limited to a certain type of dining
and—in contrast to the more restrictive language con-
tained in the sister state cases on which the defendants
rely—did not preclude the takeout and subsequent out-
door dining that the defendants sought to provide. Put
differently, the lease terms did not by themselves render
the lease agreement valueless in light of the executive
orders. See Gap, Inc. v. Ponte Gadea New York, LLC,
supra, 524 F. Supp. 3d 235 (pandemic restrictions did
not frustrate purpose of retail store lease, despite
adverse economic consequences and dramatic reduc-
tion of foot traffic in area of store, given availability
of curbside pickup and reopening for shopping with
restrictions, because lease did not make ‘‘any guarantee
regarding foot traffic or the nature or demographic char-
acteristics of the area of the . . . store premises’’); In
re Cinemex USA Real Estate Holdings, Inc., supra, 627
B.R. 699–700 (doctrine of frustration of purpose did not
excuse movie theater’s rental obligation after reopening
was allowed at 50 percent capacity, despite reduced
revenues and increased operation costs).
The lack of use restrictions in the lease agreement
at issue in this appeal, in juxtaposition with executive
orders that did not completely shut down the restaurant
industry, renders distinguishable the Massachusetts
decision, UMNV 205-207 Newbury, LLC v. Caffé Nero
Americas, Inc., supra, 2021 WL 956069, on which the
defendants rely. In that case, a state trial court con-
cluded that the purpose of a restaurant lease had been
frustrated for the period of time between closure in
March, 2020, and partial reopening in June, 2020, for
outdoor dining and takeout, and subsequently limited
indoor dining, given that the ‘‘main object or purpose
of [the] contract’’ was limited by its specific language
allowing the tenant to ‘‘use the leased premises . . .
to operate [only] a café with a sit-down restaurant
menu ‘and for no other purpose.’ ’’25 (Emphasis added.)
Id., *5; see id. (‘‘[Because] the [l]ease limited the permis-
sible use of the leased space to a single purpose, it
cannot be disputed that [the defendant’s] continued
ability to operate a café [on] the leased premises, and
the absence of government orders barring all restau-
rants from serving customers inside, was a basic
assumption underlying the [l]ease. And there is no evi-
dence that the risk of a global viral pandemic coming
to Massachusetts and leading to a government order
shutting down the entire restaurant industry was some-
thing the parties contemplated when they entered into
the [l]ease.’’); cf. Doherty v. Monroe Eckstein Brewing
Co., supra, 198 App. Div. 711 (distinguishing lease mak-
ing ‘‘[a] saloon business . . . the only business for
which the tenant was authorized to use the premises’’
from other leases referring to ‘‘the character of the
saloon business if conducted’’). Accordingly, we con-
clude that the trial court correctly determined that the
defendants did not prove the special defense of frustra-
tion of purpose.26
II
DAMAGES
We now turn to the plaintiff’s cross appeal, in which
it claims that the trial court improperly failed to award
it the full difference in value between the defendants’
lease agreement and the new lease that the plaintiff
entered into with Sono Boil, the replacement tenant.
The plaintiff argues that the trial court’s award of dam-
ages, which held the defendants responsible only for
rent accrued until December, 2020, and was $246,778.50
less than it sought, was inconsistent with the general
standard for damages for breach of a lease contract,
under which the breaching tenant is responsible for the
payment of the full amount of the contract less the
amounts that the landlord was able to mitigate with the
new lease, thus placing the landlord in the position that
it would be had the lease been performed. See, e.g.,
Danpar Associates v. Somersville Mills Sales Room,
Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980); Rokalor,
Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn.
App. 384, 388–90, 558 A.2d 265 (1989). To this end, the
plaintiff argues, inter alia, that the trial court improperly
charged it with the burden of presenting evidence relat-
ing to its negotiations with Sono Boil to show an inabil-
ity to mitigate its damages by obtaining the same lease
or better terms than it had with the defendants, because
the defendants, as the breaching party, bear the burden
of proof as to failure of mitigation under cases such as
Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 145, 907
A.2d 1220 (2006).
In response, the defendants contend that the trial
court did not abuse its discretion in determining the
damages awarded. Relying on Southhaven Associates,
LLC v. McMerlin, LLC, 159 Conn. App. 1, 122 A.3d
670 (2015), and Rokalor, Inc. v. Connecticut Eating
Enterprises, Inc., supra, 18 Conn. App. 384, among
other cases, the defendants argue that the trial court
retained the discretion not to award the full value of
the lease agreement as a basis for damages, given the
plaintiff’s failure to introduce evidence as to negotia-
tions with prospective tenants, changes in economic
conditions or fair market value of the premises. Finally,
the defendants contend that the plaintiff failed to move
for an articulation that would have indicated that the
trial court applied an erroneous legal standard in award-
ing damages. We agree with the plaintiff and conclude
that a new damages hearing is required because the
trial court improperly assigned it the burden of proving
the mitigation of damages.27
Certain well established principles, discussed in this
court’s decision in Danpar Associates v. Somersville
Mills Sales Room, Inc., supra, 182 Conn. 446–47, govern
the plaintiff’s claims in its cross appeal. ‘‘[W]hen the
lessee breaches a lease for commercial property, the
lessor has two options: (1) to terminate the tenancy;
or (2) to refuse to accept the surrender. . . . [When]
the landlord elects to continue the tenancy, he may sue
to recover the rent due under the terms of the lease.
Under this course of action, the landlord is under no
duty to mitigate damages. . . . When the landlord
elects to terminate the tenancy, however, the action is
one for breach of contract . . . and, when the tenancy
is terminated, the landlord is obliged to mitigate his
damages. . . . The general rule for the measure of
damages in contract is that the award should place the
injured party in the same position as he would have
been in had the contract been performed.’’ (Internal
quotation marks omitted.) Southhaven Associates, LLC
v. McMerlin, LLC, supra, 159 Conn. App. 10–11; see,
e.g., Brennan Associates v. OBGYN Specialty Group,
P.C., 127 Conn. App. 746, 754–55, 15 A.3d 1094, cert.
denied, 301 Conn. 917, 21 A.3d 463 (2011). If a landlord
‘‘institute[s] an action for breach of lease . . . the
remaining rental payments due under the lease could
be used as part of the calculation of the damages that the
[landlord] sustained.’’ (Emphasis added.) Southhaven
Associates, LLC v. McMerlin, LLC, supra, 11; see, e.g.,
Brennan Associates v. OBGYN Specialty Group, P.C.,
supra, 755; Rokalor, Inc. v. Connecticut Eating Enter-
prises, Inc., supra, 18 Conn. App. 389–90. ‘‘The duty to
mitigate damages [does] not require the plaintiff [land-
lord] to sacrifice any substantial right of its own . . .
or to exalt the interests of the tenant above its own. . . .
It [is] required to make reasonable efforts to minimize
damages. What constitutes a reasonable effort under
the circumstances of a particular case is a question of
fact for the trier.’’ (Internal quotation marks omitted.)
Southhaven Associates, LLC v. McMerlin, LLC, supra,
5–6; see, e.g., Brennan Associates v. OBGYN Specialty
Group, P.C., supra, 754–55.
Ordinarily, we review the trial court’s assessment of
damages, including the reasonableness of any mitiga-
tion efforts, as a question of fact under the clearly erro-
neous standard of review. See, e.g., Pan Handle Realty,
LLC v. Olins, 140 Conn. App. 556, 569–70, 59 A.3d 842(2013); Rokalor, Inc. v. Connecticut Eating Enter-
prises, Inc., supra, 18 Conn. App. 390. A claim that the
trial court applied an improper legal standard or burden
of proof in its damages determination, however, pre-
sents a question of law over which we exercise plenary
review. See, e.g., In re Zakai F., 336 Conn. 272, 289–90,
255 A.3d 767 (2020); Smith v. Muellner, 283 Conn. 510,
536, 932 A.2d 382 (2007); Papallo v. Lefebvre, 172 Conn.
App. 746, 755, 161 A.3d 603 (2017).
We begin with the plaintiff’s claim that the trial court
improperly required it, as the nonbreaching party, to
bear the burden of proving that it had mitigated its
damages.28 There is no case directly on point from this
court in the landlord-tenant context,29 with the leading
decision, Danpar Associates, being silent with respect
to the allocation of the burden of proof as to mitigation.
Consistent, however, with the black letter principles of
damages law that led this court in Danpar Associates
to require landlords to mitigate their damages in the
wake of a breach of a lease,30 our Appellate Court held
in Pan Handle Realty, LLC v. Olins, supra, 140 Conn.
App. 569–70, that the tenant, as the party breaching a
residential lease, is required to prove that the landlord
failed to make efforts to mitigate its damages. For that
position, the Appellate Court cited to its decision in
Dunleavey v. Paris Ceramics USA, Inc., 97 Conn. App.
579, 582–83, 905 A.2d 703 (2006), which is a contract
case involving the sale of defective limestone for a
landscape project. See Pan Handle Realty, LLC v.
Olins, supra, 569–70; see also id., 570–71 (trial court’s
conclusion that landlord made reasonable efforts to
mitigate damages was not clearly erroneous because
landlord had to spend $80,000 to restage property with
furnishings and advertise property at higher rent than
tenant had been willing to pay to recoup losses, and,
‘‘although the [landlord] was unsuccessful in its efforts
to secure a replacement lessee, there is no evidence
to suggest that the [landlord] was not responsive to
prospective replacement lessees’’).
The allocation of the burden of proving the failure to
mitigate to the breaching tenant in Pan Handle Realty,
LLC, is consistent with a long line of case law, in both
contract and torts contexts, that holds that the failure
to mitigate damages is for the breaching party to prove.
See Preston v. Keith, 217 Conn. 12, 21–22, 584 A.2d
439 (1991) (defendant bears burden of production and
persuasion with respect to mitigation of damages in
negligence case); Newington v. General Sanitation Ser-
vice Co., 196 Conn. 81, 86, 491 A.2d 363 (1985) (sanita-
tion company bore burden of proving that ‘‘the
[defendant] town failed to use reasonable care to reduce
its damages’’ for company’s breach of refuse disposal
contract); Krawitz v. Ganzke, 114 Conn. 662, 665, 159
A. 897 (1932) (The court held that an employee who
was discharged in violation of an employment contract
‘‘was prima facie entitled to recover the amount of his
salary for the balance of the year, and was not bound
to offer evidence that he had sought other employment.
The burden was [on] the defendant to prove that the
plaintiff could by proper diligence have found other
employment, if such was claimed to be the fact.’’); see
also Ann Howard’s Apricots Restaurant, Inc. v. Com-
mission on Human Rights & Opportunities, 237 Conn.
209, 228–29, 676 A.2d 844 (1996) (relying on ‘‘established
rules’’ as to proof of damages in contract and tort cases,
and holding that, with respect to award for damages
for discriminatory employment practices pursuant to
General Statutes § 46a-86 (c) and (d), employer bears
burden of proving that employee ‘‘failed to make reason-
able efforts to mitigate the amount of damages by seek-
ing other employment’’).
As we have observed in the tort context, the ‘‘ratio-
nale for this rule is well established. A defendant claim-
ing that the plaintiff has failed to mitigate damages
seeks to be benefited by a particular matter of fact, and
he should, therefore, prove the matter alleged by him.
The rule requires him to prove an affirmative fact,
whereas the opposite rule would call [on] the plaintiff
to prove a negative, and therefore the proof should
come from the defendant. He is the wrongdoer, and
presumptions between him and the person wronged
should be made in favor of the latter. For this reason,
therefore, the onus must in all such cases be [on] the
defendant.’’ (Internal quotation marks omitted.) Pres-
ton v. Keith, supra, 217 Conn. 22. We note that this
process need not be onerous because, in addition to
presenting witnesses or documentary evidence to estab-
lish the point, the defendant could well establish failure
of mitigation through cross-examination of the plaintiff
and its witnesses. See id., 22–23. Accordingly, we con-
clude that, when a tenant has breached a lease agree-
ment, that tenant bears the burden of proving that the
landlord failed to undertake commercially reasonable
efforts to mitigate its damages.31
Thus, we conclude that the trial court improperly
cast the burden of proof onto the plaintiff when, in
stopping accrual of monthly rent damages in December,
2020, the trial court credited evidence that the plaintiff
had made efforts to mitigate its damages by securing
Sono Boil as its new tenant for the premises but stated
that ‘‘no evidence of the negotiations with [Sono Boil]
was presented in detail by the plaintiff. The court can
only speculate if further negotiations with [Sono Boil]
could have resulted in a lease with the same terms the
defendants’ lease had.’’ (Emphasis added.) By engaging
in this speculation in connection with reducing the con-
tract damages that it ultimately awarded to the plaintiff,
the trial court effectively relieved the defendants of
their burden of proving that the plaintiff’s efforts were,
in fact, commercially unreasonable under the circum-
stances. Accordingly, a new damages hearing is required.
See, e.g., South Windsor v. Lanata, 341 Conn. 31, 46–47,
266 A.3d 875 (2021).
Consistent with other courts; see, e.g., In re Cinemex
USA Real Estate Holdings, Inc., supra, 627 B.R. 701;
we observe in conclusion that the COVID-19 public
health emergency has had devastating economic effects
in many industries, particularly those that rely on the
public, such as the restaurant and hospitality industry.
This case, which is a contract dispute between private
parties, demonstrates the difficulty of using existing legal
doctrines to shield parties from the economic damage
caused by the pandemic, insofar as the zero sum nature
of litigation renders it a process that is particularly ill-
suited to resolving these difficult questions of public
and economic policy in an equitable manner that will
leave something remaining on the ‘‘other side’’ as we
attempt to identify a ‘‘new normal’’ while entering the
third year of this pandemic. We therefore are left to
rely on the political branches of our federal and state
governments to identify and implement economic relief
in an equitable manner, so as to will enable all of our
state’s businesses and citizens to thrive in the wake of
COVID-19.
The judgment is reversed only with respect to the
award of damages and the case is remanded for further
proceedings as to damages; the judgment is affirmed
in all other respects.
In this opinion the other justices concurred.
1
The defendants appealed, and the plaintiff cross appealed, from the
judgment of the trial court to the Appellate Court, and we transferred the
appeal and cross appeal to this court pursuant to General Statutes § 51-199
(c) and Practice Book § 65-1.
2
Section 1 (o), in the definitions section of the lease agreement, provides
similarly to § 4 (a), but differs slightly insofar as it states that the premises
are ‘‘to be used as for the operation of a first-class restaurant and bar selling
food, beverages, and related accessories, together with uses incidental
thereto, and for no other purpose.’’ (Emphasis added.)
3
The lease agreement provides that the base monthly rent amounts would
increase over the duration of the ten year term, starting at a rate of $9,333.33
per month for the period between July 1 and December 31, 2019, and
increasing each year, and culminating at a rate of $12,177.88 per month for
the final year, ending on December 31, 2028. In addition to the base monthly
rent amounts, Downtown Soho also was obligated to pay the plaintiff, on
an annual basis, 5 percent of the amount of its gross annual sales that
exceeded $2.5 million.
4
‘‘COVID-19 is a respiratory disease that spreads easily from person to
person and may result in serious illness or death, and public health experts
have indicated that persons infected with COVID-19 may not show symp-
toms, and transmission or shedding of the coronavirus that causes COVID-
19 may be most virulent before a person shows any symptoms . . . .’’
(Internal quotation marks omitted.) Fay v. Merrill, 338 Conn. 1, 7, 256 A.3d
622 (2021).
5
The declaration was subsequently renewed on September 1, 2020, and
extended on February 9, 2021.
6
Executive Order No. 7D, issued on March 16, 2020, provides in relevant
part: ‘‘Limits on Restaurant, Bar and Private Club Operations. Effective at
8 p.m. on March 16, 2020 and through April 30, 2020, unless earlier modified,
extended, or terminated by [the governor], any restaurant or eating establish-
ment and any location licensed for [on premises] consumption of alcoholic
liquor in the [s]tate . . . except for Class III and Class II Tribal Gaming
enterprises, shall only serve food or [nonalcoholic] beverages for [off prem-
ises] consumption. . . .’’
7
Executive Order No. 7X, issued on April 10, 2020, provides in relevant
part: ‘‘Extension of Closures, Distancing, and Safety Measures Through
May 20, 2020. The orders to prevent transmission of COVID-19 through
appropriate distancing and other safety measures listed below are extended
through May 20, 2020:
‘‘a. Executive Order No. 7D . . . imposing limits on restaurant, bar, and
private club operations. . . .’’
8
Executive Order No. 7PP, issued on May 18, 2020, provides in relevant
part: ‘‘1. Phase 1 Business Reopening. To provide for a comprehensive plan
for safe resumption of limited social, recreational, athletic, and economic
activity, pursuant to rules issued by the Department of Economic and Com-
munity Development for each of various business sectors (individually and
collectively, the ‘Sector Rules’), which Sector Rules shall constitute legally
binding guidance, the following [e]xecutive [o]rders are repealed or amended
effective at 12:01 a.m. on Wednesday, May 20, 2020, as provided herein:
‘‘a. Reopening of Outdoor Dining. Executive Order No. 7D . . . is
amended to provide that outdoor dining shall be permitted at any restaurant,
eating establishment, private club, or any location licensed for [on premises]
consumption of alcohol, in accordance with the provisions of Executive
Order No. 7MM and the Sector Rules for Restaurants, as amended from
time to time, and any [e]xecutive [o]rder governing the sale or service
of alcoholic beverages. Alcoholic beverages shall not be served except in
conjunction with the sale of food in accordance with the provisions of
Executive Order No. 7MM. The remaining provisions of Executive Order No.
7D . . . which prohibits indoor dining and, which, as amended, prohibits
the sale of alcohol by such permittees without the sale of food, are extended
through June 20, 2020. The provisions of Executive Order No. 7N . . .
establishing rules for restaurant takeout and delivery, shall remain in
effect. . . .’’
9
Executive Order No. 7ZZ, issued June 16, 2020, provides in relevant part:
‘‘Resumption of Indoor Dining Pursuant to Sector Rules for Restaurants.
Executive Order No. 7D . . . is amended to permit indoor dining pursuant
to the . . . Sector Rules for Restaurants, as amended from time to time,
which Sector Rules shall be legally binding and enforceable. The remaining
provisions of Executive Order No. 7D . . . which prohibit the sale of alcohol
by certain permittees without the sale of food, shall remain in effect and
are extended through July 20, 2020. The provisions of Executive Order No.
7N . . . establishing rules for restaurant takeout and delivery, shall remain
in effect.’’
10
We note that, in March and April of 2020, Governor Lamont issued
several other executive orders that also affected the restaurant industry.
Executive Order No. 7F closed large shopping malls and places of public
amusement but permitted restaurants and bars that are attached to shopping
malls with separate external entrances to remain open for takeout service.
Executive Order No. 7G modified Executive Order No. 7D by allowing
restaurants, bars or alcoholic beverage manufacturers with active liquor
permits to sell certain sealed containers of alcoholic beverages for off prem-
ises consumption. Executive Order No. 7N required restaurants and bars
open for the sale of food for takeout to minimize the entrance of customers
into their establishments and to use, to the extent possible, remote ordering
or touchless payment systems to minimize contact. Executive Order No. 7T
expanded options under Executive Order No. 7G for delivery of sealed
alcoholic beverages to customers by existing permit holders.
Subsequently, in May, 2020, Governor Lamont issued Executive Order
No. 7MM, which facilitated Executive Order No. 7PP; see footnote 8 of this
opinion; insofar as it suspended and modified state and municipal laws,
ordinances and regulations in order to allow for outdoor dining, alcoholic
beverage service, and retail activities, and to expedite the associated state
and local approval processes.
11
Under the nine foot social distancing requirements, the bistro could
provide only seven bar seats and eight indoor dining tables. The city of
Norwalk did not allow the defendants to use floor space in the bar area,
which constituted nearly 40 percent of the restaurant’s square footage, for
additional dining tables. The outdoor dining space of the restaurant could
accommodate only six tables, with up to six patrons at each table, generally
restricting capacity to twenty-two to twenty-five persons outside.
12
The relationship between the parties had grown acrimonious by this
time. Ahmetaj testified that, at the time of trial, he owned two other bars,
which were fully closed, and two other restaurants, which were able to
operate at a break-even level given rent reduction accommodations provided
by the landlords at those locations. Ahmetaj also testified that his conversa-
tions with Greenbaum led him to understand that the plaintiff wanted to
replace the defendants with a new tenant prior to the pandemic. During
those discussions, Ahmetaj informed Greenbaum that Downtown Soho
would leave if the plaintiff paid the defendants $250,000 to vacate the prem-
ises. The plaintiff refused that demand.
Greenbaum testified that the plaintiff had, however, negotiated conces-
sions with other tenants that were experiencing pandemic related financial
difficulties by obtaining a partial payment up front, with portions of their
monthly rents deferred to a later time. Greenbaum testified that most of
the plaintiff’s other tenants were able to continue to pay their monthly rents
in full at that time.
13
Section 4 (d) of the lease agreement provides in relevant part that
the defendants, at their ‘‘expense, shall comply with all laws, orders and
regulations of [f]ederal, [s]tate and municipal authorities and with any direc-
tion of any public officer or officers, pursuant to [l]aw, which shall impose
any violation, order or duty upon [l]andlord or [t]enant with respect to
the use or occupancy thereof by [t]enant or [t]enant’s [r]epresentatives,
including, without limitation, the Americans with Disabilities Act . . . and
any [e]nvironmental [l]aws . . . .’’
14
The trial court rejected the defendants’ fourth special defense, namely,
that the plaintiff’s damages had been offset by ‘‘multiple forms of relief from
the federal government in the form of subsid[ies], tax relief and mortgage
relief,’’ which should be considered in calculating any damages owed to the
plaintiff. The defendants do not challenge this conclusion on appeal, and
we need not consider this special defense further.
15
We note that the trial court’s total damages award of $200,308.76
reflected the following components: (1) unpaid rent, use and occupancy for
ten months, from March, 2020, through December, 2020, in the amount of
$137,774.30; (2) utility bills of $2,013.88 and $3,005.20; (3) the leasing agent’s
commission on the new lease in the amount of $41,933; (4) reasonable
attorney’s fees in the amount of $14,775; and (5) costs in the amount of
$807.38.
16
We note that the defendants also claim that the trial court should have
reduced the damages award proportionately because the various space and
capacity restrictions that were in effect after the bistro reopened on May
28, 2020, meant that it did not have ‘‘exclusive occupancy’’ of the premises,
rendering the trial court’s finding of exclusive possession clearly erroneous.
Insofar as this claim appears to pertain only to the unjust enrichment count
of the complaint, we need not reach it given the independent basis for
liability under the breach of contract count. See, e.g., Russell v. Russell, 91
Conn. App. 619, 638, 882 A.2d 98 (‘‘unjust enrichment and breach of contract
are mutually exclusive theories of recovery’’), cert. denied, 276 Conn. 924,
888 A.2d 92, and cert. denied, 276 Conn. 925, 888 A.2d 92 (2005). To the
extent it is at all relevant to the trial court’s calculation of damages, we
leave that to the new damages hearing to be held on remand. See part II
of this opinion.
17
Although the relevant headings in the defendants’ brief state that the
trial court improperly applied the doctrine of illegality in addition to the
doctrines of impossibility and frustration of purpose, the defendants do not
provide any factual or legal argument with respect to the doctrine of illegality.
Accordingly, we agree with the plaintiff that any illegality claims are inade-
quately briefed and, therefore, abandoned for purposes of appeal. See, e.g.,
Burton v. Dept. of Environmental Protection, 337 Conn. 781, 805–806, 256
A.3d 655 (2021).
18
We note that the defendants also rely on a recent decision from a New
York trial court, 267 Development, LLC v. Brooklyn Babies & Toddlers,
LLC, New York Supreme Court, Kings County, Docket No. 510160/2020
(March 15, 2021), which they argue stands for the proposition that the
doctrine of impossibility barred an action against a retail clothing store that
was in default of its rental obligations during the pandemic lockdowns in
New York, insofar as the risk of the government shutdown was unforesee-
able. See Hugo Boss Retail, Inc. v. A/R Retail, LLC, Docket No. 655166/
2020, 2021 WL 2006877, *12 n.9 (N.Y. Sup. May 19, 2021) (decision without
published opinion, 71 Misc. 3d 1222, 145 N.Y.S.3d 329) (describing and
distinguishing 267 Development, LLC). The defendants did not include a
copy of the unreported decision in 267 Development, LLC, in their appendix,
which renders it difficult for us to consider this out-of-state trial court case
that has been published or reported only on a limited basis. See Practice
Book § 67-8 (b) (2) (applicable to appeals filed before October 1, 2021)
(‘‘[w]here an opinion is cited that is not officially published, the text of the
opinion shall be included in part two of the appendix’’). As described by
the defendants and by the New York court in Hugo Boss Retail, Inc., 267
Development, LLC, appears distinguishable from the present case because
it contemplated a complete shutdown of the subject business, as compared
to the somewhat more limited restrictions at issue in the present case.
19
For a prominent historical example of the doctrine of impossibility, see
the California Supreme Court’s decision in Lloyd v. Murphy, 25 Cal. 2d 48,
56, 153 P.2d 47 (1944), which held that restrictions on the production of
new vehicles during World War II as a result of mobilizing industry to support
national defense did not trigger the doctrine of impossibility so as to relieve
the tenant, an automobile dealer, of its obligations, even though the automo-
bile sales business was rendered ‘‘less profitable and more difficult to con-
tinue’’ during that time.
20
We disagree with the defendants’ reliance on Bush v. ProTravel Interna-
tional, Inc., supra, 192 Misc. 2d 743, because that case presented issues of
physical impossibility that make the case distinguishable from the present
case. In Bush, a New York trial court held that the impossibility doctrine
excused a customer’s compliance with a September 14, 2001 cancellation
deadline in a travel company’s contract for a safari vacation, given the state
of emergency in New York City in the days following the September 11
terrorist attacks. See id., 753–54. Observing that, ‘‘on the days at the focal
point of the argument . . . September 12, 13 and 14, 2001, New York City
was in [a] state of virtual lockdown with travel either forbidden altogether
or severely restricted’’; id., 750; and that telephone communications were
disabled into lower Manhattan where the travel company’s office was
located; id., 746; the court followed ‘‘wartime precedents [that] developed
the law of temporary impossibility’’; id., 752; in denying the travel company’s
motion for summary judgment on the ground that the traveler had estab-
lished a genuine issue of material fact that compliance with the September
14 cancellation deadline for the return of her deposit was factually impossi-
ble. Id., 754. We disagree with the defendants’ reliance on Bush because
that case concerned physical impossibility created in the wake of the Septem-
ber 11 attacks in the neighborhood of the travel agent’s office, as opposed
to the commercial impracticability and lack of profitability at issue in the
present case.
21
‘‘[T]he basic purpose of force majeure clauses . . . is in general to
relieve a party from its contractual duties when its performance has been
prevented by a force beyond its control or when the purpose of the contract
has been frustrated.’’ Phillips Puerto Rico Core, Inc. v. Tradax Petroleum
Ltd., 782 F.2d 314, 319 (2d Cir. 1985); see Harriscom Svenska, AB v. Harris
Corp., 3 F.3d 576, 580 (2d Cir. 1993) (‘‘[l]ike commercial impracticability, a
force majeure clause in a contract excuses nonperformance when circum-
stances beyond the control of the parties prevent performance’’). Although
force majeure events ‘‘[h]istorically . . . connoted events that rendered a
party’s performance impossible because of an unforeseeable event beyond
the parties’ control,’’ with ‘‘[s]uch events . . . often described as acts of
God’’ or resulting from ‘‘natural disasters such as earthquakes and floods,
[force majeure] has since come to encompass many man-made and [man
caused] events such as strikes, market shifts, terrorist attack[s], computer
hacking, and governmental acts, among many others. In other words, force
majeure provides a flexible concept that permits the parties to formulate
an agreement to address their unique course of dealings and industry idiosyn-
crasies, allowing contractual force majeure clauses to have a much wider
application than the doctrine would under its historical roots.’’ (Footnotes
omitted; internal quotation marks omitted.) J. Robinson et al., ‘‘Use the
Force? Understanding Force Majeure Clauses,’’ 44 Am. J. Trial Advoc. 1,
2–3 (2020).
22
Section 25 of the lease agreement provides: ‘‘[The plaintiff] shall not be
in default hereunder if it is unable to fulfill or is delayed in fulfilling any of
its obligations hereunder, including, without limitation, any obligations to
supply any service hereunder, or any obligation to make repairs or replace-
ments hereunder, if it is prevented from fulfilling or is delayed in fulfilling
such obligations by reason of fire or other casualty, strikes or labor troubles,
governmental [preemption] in connection with a national emergency, short-
age of supplies or materials, or by reason of any rule, order or regulation
of any governmental authority, or by reason of the condition of supply and
demand affected by war or other emergency, or any other cause beyond
its reasonable control (collectively, ‘Unavoidable Delay’). Such inability or
delay by [the plaintiff] in fulfilling any of its obligations hereunder shall
not affect, impair or excuse [the defendants] from the performance of any
of the terms, covenants, conditions, limitations, provisions or agreements
hereunder on its part to be performed, nor result in any abatement of
[r]ent payable hereunder.’’ (Emphasis added.)
23
As they emphasized at oral argument before this court, the defendants
also claim that the lease has the specific purpose of allowing the operation
of a ‘‘ ‘first-class restaurant,’ ’’ which they describe as a ‘‘high-end,’’ indoor,
fine dining business with a ‘‘premium rent to obtain [the] benefit of exposure
to large numbers of consumers in a highly trafficked retail and commercial
location.’’ They contend that the lease agreement’s language is ambiguous
with respect to whether the use of the premises was specifically and con-
tractually limited to that kind of restaurant, which would support their
argument that the ‘‘purpose of the lease [was never] to operate anything
other than a first-class restaurant, which precludes a majority takeout dining
experience, and there was no prior established takeout business.’’ The defen-
dants further argue that the executive orders frustrated this specific, limited
purpose. In response, the plaintiff contends that we should not review this
claim regarding the effect of the ‘‘first-class restaurant’’ language because
it was not raised before the trial court.
We agree with the plaintiff and conclude that this issue with respect to
the inconsistency in the lease agreement is not preserved. Although the
defendants’ posttrial brief discussed the nature of its fine dining business,
including entree prices and associated bar revenues, it did not claim that
the language of the lease agreement limited the use of the premises to a
particular kind of restaurant business. Indeed, counsel for the defendants
acknowledged at oral argument before this court that this issue was not
specifically litigated before the trial court, with no evidence introduced as
to the drafting of the lease agreement. Accordingly, we decline to consider
this claim further because it was not presented to the trial court and, there-
fore, is unpreserved for appellate review. See, e.g., Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,
157–60, 84 A.3d 840 (2014); Graham v. Commissioner of Transportation,
206 Conn. App. 497, 505–506, 260 A.3d 1275 (2021).
24
Our Appellate Court has observed that the ‘‘doctrine of frustration of
purpose was first recognized in the [turn of the century] English case of
Krell v. Henry, 2 K.B. 740 (C.A. 1903). In that case, a spectator entered into
a contract to rent an apartment for the purpose of viewing the procession
for the coronation of King Edward VII. When the coronation was postponed
and the procession cancelled, the spectator refused to pay for the rental,
breaching the contract. . . . When the apartment owner sued, the court
excused the breach, holding that the ‘coronation procession was the founda-
tion of this contract’ . . . and that ‘the object of the contract was frustrated
by the non-happening of the coronation and its procession on the days
proclaimed.’ . . . The court implicitly determined that, had the parties con-
templated the possibility of the coronation being cancelled, they would have
included a provision allowing the spectator to terminate the contract under
those circumstances. Thus, the doctrine of frustration of purpose, as it
originated and has since been applied by Connecticut courts, acts to provide
an excuse for nonperformance by a party whose purposes were thwarted
by events the parties did not contemplate and could not foresee.’’ (Citations
omitted.) DDS Wireless International, Inc. v. Nutmeg Leasing, Inc., 145
Conn. App. 520, 525–26, 75 A.3d 86 (2013).
25
We note that the Massachusetts court further concluded that the lease’s
force majeure clause did not bar the application of the doctrine of frustration
of purpose because that clause excepted financial inability to pay from
causes deemed to be beyond a party’s control, and ‘‘addresse[d] the risk
that performance may become impossible, but [did] not address the distinct
risk that the performance could still be possible even while the main purpose
of the [l]ease is frustrated by events not in the parties’ control.’’ (Emphasis
in original.) UMNV 205-207 Newbury, LLC v. Caffé Nero Americas, Inc.,
supra, 2021 WL 956069, *6; see id., *7 (observing that separate provisions
of lease address ‘‘a classic cause of frustration of purpose,’’ namely, destruc-
tion or damage of leased premises, by limiting rent abatement/termination
rights only to extent that landlord was made whole by insurance, and gave
landlord 120 days to repair premises).
26
Finally, we note that our conclusions in this appeal are consistent with
the decisions of numerous federal and state courts that have held that the
severe economic difficulties in the operation of restaurants, retail busi-
nesses, and other public accommodations that resulted from governmental
actions intended to stem the spread of the COVID-19 pandemic have not
excused them from the performance of their commercial lease agreements
on grounds of impossibility, impracticability, or frustration of purpose. See
Gap, Inc. v. Ponte Gadea New York, LLC, supra, 524 F. Supp. 3d 234–35,
237–38 (retail store); In re NTS W. USA Corp., Docket No. 20-CV-6692 (CS),
2021 WL 4120676, *1, *5–7 (S.D.N.Y. September 9, 2021) (retail store); In
re Cinemex USA Real Estate Holdings, Inc., supra, 627 B.R. 695, 700–701
(movie theater); STORE SPE LA Fitness v. Fitness International, LLC,
Docket No. SACV 20-953 JVS (ADSx), 2021 WL 3285036, *9–10 (C.D. Cal.
June 30, 2021) (fitness center); Gap, Inc. v. 170 Broadway Retail Owner,
LLC, 195 App. Div. 3d 575, 576–78, 151 N.Y.S.3d 37 (2021) (retail store); 558
Seventh Ave. Corp. v. Times Square Photo, Inc., supra, 194 App. Div. 3d
561–62 (retail electronics store); A/R Retail, LLC v. Hugo Boss Retail, Inc.,
72 Misc. 3d 627, 648–50, 149 N.Y.S.3d 808 (2021) (retail store); Greater New
York Automobile Dealers Assn., Inc. v. City Spec, LLC, Docket No. LT-
053560-20/QU, 2020 WL 8173082, *7–10 (N.Y. Civ. December 29, 2020) (deci-
sion without published opinion, 70 Misc. 3d 1209, 136 N.Y.S.3d 695) (commer-
cial office space); see also CAI Rail, Inc. v. Badger Mining Corp., Docket
No. 20 Civ. 4644 (JPC), 2021 WL 705880, *7–10 (S.D.N.Y. February 22, 2021)
(decline in petroleum industry resulting from suppression of demand
because of COVID-19 restrictions did not relieve lessee of railroad cars from
obligation under lease, which lacked force majeure clause, pursuant to
doctrines of impossibility or frustration of purpose under New York law);
cf. 1600 Walnut Corp. v. Cole Haan Co. Store, 530 F. Supp. 3d 555, 558–59
(E.D. Pa. 2021) (governor’s shutdown orders were force majeure event that,
under terms of lease, did not excuse retail tenant from obligation to pay
rent, thus rendering doctrines of impossibility and frustration of purpose
unavailable to relieve tenant of requirement to adhere to terms of lease).
To the extent that our independent research has found authority that
excused—at least in part—tenants from their rental obligations during
COVID-19, that authority rests on distinguishable lease language, namely,
force majeure clauses that governed this particular situation. See In re
Cinemex USA Real Estate Holdings, Inc., supra, 627 B.R 699 (force majeure
clause excusing performance for duration of certain events, including gov-
ernmental action, excused movie theater from rent obligation during period
of total shutdown due to COVID-19); In re Hitz Restaurant Group, 616 B.R.
374, 377–80 (Bankr. N.D. Ill. 2020) (concluding that force majeure clause
excusing both parties from lease obligations that are ‘‘ ‘prevented or delayed,
retarded or hindered by . . . laws, governmental action or . . . orders of
government’’ proportionately reduced, but did not eliminate, restaurant ten-
ant’s rent obligations during COVID-19 shutdowns given that curbside and
takeout service remained available); 1877 Webster Ave., Inc. v. Tremont
Center, LLC, supra, 72 Misc. 3d 292 (fact that ‘‘the exclusive purpose of the
lease was to operate a first-class nightclub’’ presented ‘‘legally cognizable
theory’’ of impossibility that government shutdown of nonessential busi-
nesses rendered it ‘‘objectively impossible’’ for tenant ‘‘to conduct business
as originally contemplated by the parties’ lease’’).
27
As a corollary to its burden of proof claim, the plaintiff contends that
the trial court’s damages award is clearly erroneous insofar as the trial court
concluded that the plaintiff failed to prove its entitlement to damages via
the presentation of evidence relating to those negotiations with Sono Boil.
The plaintiff, however, asks us to remand the case to the trial court with
direction to award it $447,087.26, which reflects the full remaining value of
the payments due under the lease agreement. On the other side of that coin,
the defendants argue in their appeal that the trial court improperly failed
to consider relevant facts regarding the breakdown in negotiations between
the parties in determining whether the plaintiff had mitigated its damages.
Because a remand for a new hearing is required given that the trial court
applied the improper legal standard in calculating the damages, we need
not reach these claims with respect to the calculation of damages as a
factual matter.
28
The defendants correctly state that, when a trial court’s memorandum
of decision is ambiguous as to the burden of proof applied, it is the responsi-
bility of the appellant—in this case, the plaintiff—to move pursuant to
Practice Book § 61-10 for an articulation on that point. See, e.g., Smith v.
Muellner, supra, 283 Conn. 537. In the present case, we conclude that the
trial court’s memorandum of decision is unambiguous insofar as it can be
read only to assign the burden of proving the reasonableness of mitigation
to the plaintiff, by expressly questioning its failure to introduce evidence
of its negotiations with Sono Boil in stopping the accrual of damages in
December, 2020. Accordingly, we disagree with the defendants’ argument
that the record is not adequate for review of this issue.
29
Our sister states are split with respect to which party bears the burden
of proving mitigation of the lessor’s damages in the wake of a breach of a
commercial lease in view of the ‘‘ ‘modern trend’ ’’ of treating real property
leases as contractual in nature, rather than as assignments of property rights.
Frenchtown Square Partnership v. Lemstone, Inc., 99 Ohio St. 3d 254, 257,
791 N.E.2d 417 (2003); see, e.g., Reid v. Mutual of Omaha Ins. Co., 776
P.2d 896, 905 (Utah 1989) (describing ‘‘the traditional rule’’ not requiring
mitigation as ‘‘anachronistic’’). Some follow traditional contract and tort
law principles in holding that it is the breaching party’s obligation to prove
a violation of the duty to mitigate damages, such as by affirmative defense.
See, e.g., Frenchtown Square Partnership v. Lemstone, Inc., supra, 259;
Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293,
299–300 (Tex. 1997). Others allocate to the landlord the burden of proving
that it satisfied its ‘‘affirmative obligation’’ of mitigating damages for breach
of a lease by making ‘‘commercially reasonable’’ efforts to obtain a new
tenant because that requirement ensures that ‘‘serious efforts are made to
redeploy the rental property in a productive fashion by those who are best
able to accomplish that end and who are also best able to prove that required
mitigation efforts have been carried out.’’ Reid v. Mutual of Omaha Ins.
Co., supra, 906–907; see also annot., C. Vaeth, Landlord’s Duty, on Tenant’s
Failure To Occupy, or Abandonment of, Premises, To Mitigate Damages by
Accepting or Procuring Another Tenant, 75 A.L.R.5th 1, 129–48, § 14 (2000
and Supp. 2020) (discussing split of authority).
30
In Danpar Associates, this court cited a commercial contract case,
Willametz v. Goldfeld, 171 Conn. 622, 627, 370 A.2d 1089 (1976), an eminent
domain condemnation damages case, Connecticut Light & Power Co. v.
Costello, 161 Conn. 430, 442, 288 A.2d 415 (1971), and a motor vehicle
negligence case, Brown v. Middle Atlantic Transportation Co., 131 Conn.
197, 199, 38 A.2d 677 (1944), for the proposition that a landlord who brings
an action for damages from the breach of a lease ‘‘is entitled to recover
those damages [that] would naturally flow from a total breach of the lease’’
but was obligated to make ‘‘reasonable efforts’’ to ‘‘minimize the damages
occasioned by the defaulting tenant’s breach of contract.’’ Danpar Associ-
ates v. Somersville Mills Sales Room, Inc., supra, 182 Conn. 446; see id.,446–47 (trial court properly considered landlord’s refusal to accept assign-
ment of lease to new tenant that ‘‘would have placed it in statu[s] quo
ante’’ in determining whether landlord made reasonable efforts to minimize
damages from breach of lease of premises in shopping center).
31
Although not squarely addressing the issue of the burden of proof, we
note that the Appellate Court’s decision in Rokalor, Inc. v. Connecticut
Eating Enterprises, Inc., supra, 18 Conn. App. 384, may be read to suggest
that it is the landlord who bears the burden of proving reasonable efforts,
insofar as it refers to failures of proof on the part of the landlord in that
case. See id., 390–91 (observing that landlord ‘‘did not hire a real estate
broker until almost four months after the defendant’s default . . . provided
no explanation for this delay’’ and ‘‘did not introduce any evidence by the
broker to establish what efforts were made by him to lease the premises’’
in concluding that trial court did not abuse discretion in ‘‘finding that the
[landlord] failed to make reasonable efforts to mitigate its damages’’). To
the extent that the Appellate Court’s decision in Rokalor, Inc., may be read
to require the nonbreaching landlord to bear the burden of proving that it
did not fail to mitigate its damages, we conclude that it is not an accurate
statement of the law.