Noroton Heights Shopping Center, Inc. v. Phil's Grill, LLC ( 2021 )

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NOROTON HEIGHTS SHOPPING CENTER, INC. v.
PHIL’S GRILL, LLC
(AC 44042)
Prescott, Moll and Lavery, Js.
Syllabus
The plaintiff landlord brought a summary process action seeking to gain
possession of certain property in a shopping center occupied by the
defendant tenant pursuant to the parties’ commercial lease. The lease
contained a relocation clause, which provided the plaintiff with the
ability to require the defendant to vacate the property upon the offer
of reasonably similar substitute premises, and to terminate the lease if
the defendant refused the substitute location, should the plaintiff elect
to redevelop the property. The relocation clause further provided that
the plaintiff would be responsible for furnishing the substitute premises
and that the defendant would be responsible for performing work in
the substitute premises to prepare it for prompt occupancy. After the
planning and zoning commission approved the plaintiff’s plan for rede-
velopment of the shopping center, the plaintiff sent a substitution notice
to the defendant, including plans showing the proposed substitute prem-
ises, which had not yet been built. The defendant did not receive this
notice and did not become aware of it until more than one year later,
at which point the plaintiff informed the defendant that it had waived
its relocation rights by not responding to the substitution notice. There-
after, the plaintiff served the defendant with a notice to quit and filed
the summary process action. The trial court found that the defendant
had refused to negotiate with the plaintiff and violated the express
language of the lease by refusing to act in good faith with the plaintiff’s
relocation plan, and it rendered a judgment of immediate possession for
the plaintiff. On appeal, the defendant claimed that the court improperly
interpreted the lease’s relocation clause. Held that the trial court’s find-
ing that the defendant breached the lease by violating the terms of the
relocation clause was clearly erroneous: the language of the relocation
clause was clear and unambiguous and provided that the plaintiff was
permitted to terminate the lease pursuant to the relocation clause only
if the defendant refused to relocate to the substitute premises after
receiving valid notice from the plaintiff, and no language in the relocation
clause required the defendant to negotiate the terms of relocation or
to accept or to reject, in writing, proposed substitute premises before
it was built; moreover, the relocation clause implicitly provided that
the substitute premises was required to be in existence as a condition
precedent to the plaintiff’s ability to give the defendant a valid notice
of substitution, as an interpretation to the contrary would yield absurd
results because the defendant could be required to quit possession of
the property and close its business for an indefinite period of time while
the substitute premises was constructed and waive its ability to seek
damages from the plaintiff for lost profits during that period, which
contradicted the clear terms of an amendment to the lease providing
that the plaintiff would reasonably cooperate with the defendant and,
in good faith, minimize any material or adverse impact of its redevelop-
ment on the conduct of the defendant’s business; furthermore, the notice
of substitution that the plaintiff provided to the defendant was not
valid, as it was undisputed that the substitute premises had not been
constructed at the time that the notice of substitution was issued, thus,
a condition precedent to issuing a valid notice of substitution was not
fulfilled, and the defendant’s duty to perform under the relocation clause
was never triggered.
Argued May 10—officially released September 7, 2021
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
Housing Session at Norwalk, and tried to the court,
Spader, J.; judgment for the plaintiff, from which the
defendant appealed to this court. Reversed; judgment
directed.
Scott C. DeLaura, for the appellant (defendant).
Abram Heisler, for the appellee (plaintiff).
Opinion
LAVERY, J. In this summary process action, the
defendant tenant, Phil’s Grill, LLC, appeals from the
trial court’s judgment of possession rendered in favor
of the plaintiff landlord, Noroton Heights Shopping Cen-
ter, Inc. On appeal, the defendant claims that the trial
court was incorrect in finding that the defendant vio-
lated the relocation clause of a commercial lease exe-
cuted by the parties. We agree with the defendant and,
accordingly, reverse the court’s judgment of immediate
possession in favor of the plaintiff.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff is the owner of Noroton
Heights Shopping Center (shopping center) in Darien.
On November 12, 2010, the plaintiff entered into a com-
mercial lease with the defendant for retail space
(demised premises) located within the shopping center.
The lease was for an initial term of five years, commenc-
ing on October 1, 2010, and continuing through Septem-
ber 30, 2015, and contained three renewal options. At
the time the lease was entered into, the plaintiff was
contemplating the redevelopment of the shopping cen-
ter. As a result, the lease contained a relocation clause.
Subsection A of the relocation clause provides in rele-
vant part that ‘‘[t]he Landlord may, at its option, before
or after the Commencement Date, and during any
option renewal period pursuant to Section 40 hereof,
elect by notice to the Tenant to require the Tenant to
vacate and surrender the Demised Premises, and to
substitute for the Demised Premises other reasonably
similar space elsewhere in the Shopping Center (the
‘Substitute Premises’) designated by the Landlord (pro-
vided that the Substitute Premises contains at least the
same square foot area as the Demised Premises) and
to move the Tenant to the Substitute Space. Landlord’s
notice shall be accompanied by a plan of the Substitute
Premises, which such notice shall set forth the square
foot area of the Substitute Premises. The Tenant shall
vacate and surrender the Demised Premises and shall
occupy the Substitute Premises promptly (and in any
event not later than fifteen [15] days after the Landlord
has substantially completed any work to be performed
in the Substitute Premises pursuant to [subsection] B
hereof). . . . Should the Tenant refuse to relocate to
the Substitute Space, the Landlord may, at its option,
by notice to the Tenant, elect to terminate this Lease,
which such termination shall be effective thirty (30)
days after the date of such termination notice.’’
Subsection B of the relocation clause further provides
in relevant part that ‘‘the Landlord shall, at the Land-
lord’s expense, do the following, (i) furnish and install
in the Substitute Premises fixtures, improvements and
appurtenances at least equal in kind and quality to those
contained in the Demised Premises at the time such
notice of substitution is given by the Landlord . . . .
The Tenant agrees to cooperate with the Landlord so
as to facilitate the completion by the Landlord of its
obligations under this Section and the prompt surrender
of the Demised Premises, and further agrees to
promptly perform in the Substitute Premises any work
to be performed therein by the Tenant to prepare the
Substitute Premises for the Tenant’s occupancy.’’
Thereafter, the defendant opened a restaurant at the
demised premises. On February 29, 2016, the parties
renewed the lease and extended it through September
30, 2020. The first amendment to indenture of lease
further referenced the possible redevelopment of the
shopping center. Section 6 of the amendment, titled
‘‘Shopping Center Redevelopment,’’ provides in rele-
vant part that ‘‘Tenant acknowledges that Landlord
intends to redevelop the Noroton Heights Shopping
Center (the ‘Shopping Center’), in which the Rental
Premises (as defined in the Lease) are located. Without
limiting Landlord’s relocation right set forth in Section
39 of the Lease or Landlord’s rights or ability to perform
such redevelopment in general, Landlord agrees to rea-
sonably cooperate with Tenant in good faith to the
extent reasonably practical during any redevelopment
of the Shopping Center to minimize any material and
adverse impact of such redevelopment on the conduct
of Tenant’s business at the Rental Premises during the
hours when the restaurant operated by Tenant is cus-
tomarily open in the ordinary course of business . . . .
In the event Tenant’s business is materially and
adversely impacted by Landlord’s redevelopment activi-
ties at the Shopping Center, the parties agree to mutu-
ally explore alternative avenues of reducing such mate-
rial and adverse impact to the extent feasible, and, if
not feasible or commercially prudent under the then-
prevailing circumstances, Tenant shall have the right,
as its sole and exclusive remedy, to terminate the Lease
upon ten (10) business days’ prior written notice to
Landlord. Tenant shall not be entitled under such cir-
cumstances, and hereby waives, all claims against Land-
lord for any compensation or loss of use of the Rental
Premises occasioned by such redevelopment activi-
ties.’’ (Emphasis omitted.) Apart from Section 6, the
amendment to the lease did not further address the
relocation clause and provided that the lease, ‘‘as
amended by this Amendment, will continue in full force
and effect in accordance with its terms.’’
In 2017, the plaintiff obtained approval from the Plan-
ning and Zoning Commission of the Town of Darien
(zoning commission) for the phased redevelopment of
the shopping center. Pursuant to the phased plan, the
plaintiff would redevelop the shopping center by razing
a building, building a new building in its place, moving
an existing tenant into the new building, and then razing
the building that the tenant previously had occupied.
In December, 2017, after the phased plan was approved,
representatives for the plaintiff met with representa-
tives for the defendant to discuss potential substitute
premises. During the meeting, the defendant expressed
interest in one of the proposed substitute premises and
indicated to the plaintiff that it would be willing to
move into that spot.
On April 4, 2018, the plaintiff sent a letter to James
Calcagnini, the sole member of the defendant, regarding
the proposed substitute premises (notice of substitu-
tion). The letter served ‘‘as formal notice to you of
Landlord’s election to require you to vacate and surren-
der your current leased space and the substitution of
other reasonably similar space in the redeveloped Shop-
ping Center as your new leased premises.’’ Attached to
the notice of substitution were two plans showing the
location of the proposed substitute premises. The letter
further requested that Calcagnini confirm in writing no
later than April 19, 2018, that the proposed substitute
premises was acceptable and that the plaintiff would
assume that the defendant was unwilling to relocate to
this space if no response was received by that date. The
notice of substitution was sent to Calcagnini’s principal
place of residence via United Parcel Service (UPS) over-
night delivery. Calcagnini, however, never received the
notice of substitution.
On July 2, 2019, James Palmer, a principal of the
plaintiff, met with Calcagnini. During the meeting,
Palmer gave Calcagnini a bullet point list of topics to
discuss. One of the bullet points stated that Calcagnini
‘‘waived his relocation rights by not responding to April
4, 2018 letter sent by [Palmer] via UPS showing pro-
posed substitute space.’’ This meeting was the first time
that Calcagnini became aware of the notice of substitu-
tion. The July 2, 2019 meeting ended unsuccessfully,
and Calcagnini mentioned getting an attorney involved
after seeing the contents of the bullet points.
On July 31, 2019, the zoning commission approved
an amended plan for the redevelopment of the shopping
center. Under the new plan, the redevelopment would
be conducted in a single phase rather than in multiple
phases. That same day, Palmer hand delivered a termi-
nation of lease letter to the defendant at the demised
premises. The termination of lease referenced the
notice of substitution, stated that the defendant had
failed to accept the proposed substitute premises identi-
fied in that notice, and stated that, as a result, the
plaintiff was electing to terminate the lease pursuant
to the relocation clause.
On August 30, 2019, the plaintiff served the defendant
with a notice to quit. The plaintiff’s notice to quit stated
that it was electing to terminate the defendant’s lease
‘‘for failure to accept a substitute premises which was
offered to you on April 4, 2018.’’ On September 23,
2019, the plaintiff filed a three count summary process
complaint alleging (1) termination of lease by express
stipulation, (2) lapse of time, and (3) occupancy by one
who originally had a right or privilege but such right
or privilege has terminated. In response to the plaintiff’s
summary process complaint, the defendant asserted
three special defenses: failure to perform a condition
precedent, impossibility or impracticability, and
unclean hands.1 Trial was held over the course of two
days on January 23 and February 14, 2020.
The court rendered judgment in favor of the plaintiff.
In its memorandum of decision, the court found that,
although the defendant had the right to possess the
demised premises through September 30, 2020, the par-
ties knew at the time of the execution of the lease
and its amendment that the plaintiff was planning to
redevelop the entire shopping center and that they con-
tracted for this eventuality. The court also found that
the ‘‘plaintiff continually attempted to involve the defen-
dant in its relocation plans and at all times wished to
provide the defendant with a substitute premises under
the lease. In return for [its] good faith, the court believes
[it] received the runaround, slowing down its attempted
redevelopment. It is undisputed that the substituted
premises was never ‘completed’ or ready for move in,
in fact, to date, it has not yet been constructed. The
plaintiff, after unsuccessfully negotiating in excess of
a year with the defendant, gave up on its ‘phased in’
redevelopment plan and decided to redevelop the shop-
ping plaza all at once. Certainly, it is doing so at a seven
figure savings from the phased in plan, but the court
believes that had the [defendant] ever expressed a
desire to proceed with a move, the plaintiff would never
have reached this business decision.
‘‘By refusing to act in good faith as to the relocation
plan, the [defendant] violated the express language of
the lease and left the plaintiff with no option other than
to terminate the lease and proceed with this action.
. . . The defendant’s refusal to fairly negotiate was akin
to a refusal to relocate to the proposed substitute space,
and as such, the plaintiff properly terminated the lease
by the July 31, 2019 letter.’’ Finally, the court found
that the defendant had failed to meet its burden of
proving its special defenses because ‘‘the notices given
under the lease [were] proper and . . . the plaintiff
acted in good faith in its negotiations and performed
all conditions precedent to maintain this action.’’
Accordingly, the court found for the plaintiff on counts
one and three of its summary process complaint2 and
rendered a judgment of immediate possession for the
plaintiff. This appeal followed.
The defendant claims on appeal that the court
improperly interpreted the relocation clause of the
lease. Specifically, the defendant contends that the
court erred in finding that (1) the plaintiff could require
it to accept a proposed substitute premises before it
was constructed, (2) the defendant was required to
issue a written response to accept or reject a proposed
substitute premises before it was built, (3) failure to
respond in writing within fifteen days of the date of
the notice of substitution constituted a rejection of the
substitute premises to be built in the future and consti-
tuted a default supporting termination of the lease, (4)
the defendant was required to negotiate the relocation
of the demised premises and to accommodate the plain-
tiff’s redevelopment plan, and (5) the notice of substitu-
tion was valid and that all conditions precedent to the
plaintiff’s ability to exercise its rights under the reloca-
tion clause were satisfied. In response, the plaintiff
contends that the lease does not contain any language
that required it to have completed construction of the
substitute premises prior to giving notice of relocation
and that the lease contemplated that work on the substi-
tute premises would not be completed at the time that
notice was given. We agree with the defendant that the
court improperly interpreted the relocation clause.
To resolve the defendant’s claims on appeal, we first
must interpret the relocation clause of the lease. In
doing so, we are guided by the following relevant legal
principles. ‘‘The defendant’s claim presents a question
of contract interpretation because a lease is a contract,
and, therefore, it is subject to the same rules of con-
struction as other contracts. . . . The standard of
review for the interpretation of a contract is well estab-
lished. Although ordinarily the question of contract
interpretation, being a question of the parties’ intent,
is a question of fact . . . [when] there is definitive con-
tract language, the determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Internal quota-
tion marks omitted.) Sproviero v. J.M. Scott Associates,
Inc., 108 Conn. App. 454, 468–69, 948 A.2d 379, cert.
denied, 289 Conn. 906, 957 A.2d 873 (2008).
‘‘When a party asserts a claim that challenges the
trial court’s construction of a contract, we must first
ascertain whether the relevant language in the agree-
ment is ambiguous. . . . If a contract is unambiguous
within its four corners, intent of the parties is a question
of law requiring plenary review. . . . [If] the language
of a contract is ambiguous, the determination of the
parties’ intent is a question of fact, and the trial court’s
interpretation is subject to reversal on appeal only if it
is clearly erroneous. . . . A contract is ambiguous if
the intent of the parties is not clear and certain from
the language of the contract itself. . . . Accordingly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms. . . .
‘‘[W]e accord the language employed in the contract
a rational construction based on its common, natural
and ordinary meaning and usage as applied to the sub-
ject matter of the contract. . . . [If] the language is
unambiguous, we must give the contract effect
according to its terms. . . . [If] the language is ambigu-
ous, however, we must construe those ambiguities
against the drafter. . . . Moreover, in construing con-
tracts, we give effect to all the language included
therein, as the law of contract interpretation . . . mili-
tates against interpreting a contract in a way that ren-
ders a provision superfluous.’’ (Citations omitted; inter-
nal quotation marks omitted.) EH Investment Co., LLC
v. Chappo, LLC, 174 Conn. App. 344, 358, 166 A.3d
800 (2017). Thus, the ‘‘contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . . We will not construe a contract’s lan-
guage in such a way that it would lead to an absurd
result.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) Welch v. Stonybrook Gardens
Cooperative, Inc., 158 Conn. App. 185, 198, 118 A.3d
675, cert. denied, 318 Conn. 905, 122 A.3d 634 (2015).
‘‘In construing a written lease . . . three elementary
principles must be [considered]: (1) The intention of
the parties is controlling and must be gathered from the
language of the lease in the light of the circumstances
surrounding the parties at the execution of the instru-
ment; (2) the language must be given its ordinary mean-
ing unless a technical or special meaning is clearly
intended; [and] (3) the lease must be construed as a
whole and in such a manner as to give effect to every
provision, if reasonably possible.’’ (Internal quotation
marks omitted.) Elliott Enterprises, LLC v. Goodale,
166 Conn. App. 461, 469, 142 A.3d 335 (2016).
In the present case, we first conclude that the lan-
guage of the relocation clause is clear and unambiguous
and, therefore, the intent of the parties is a question of
law. The relocation clause contains definitive contract
language that clearly enumerates the obligations of the
parties. Subsection A of the relocation clause provides
that the plaintiff ‘‘may, at its option . . . elect by notice
to the Tenant to require the Tenant to vacate and surren-
der the Demised Premises, and to substitute for the
Demised Premises other reasonably similar space else-
where in the Shopping Center . . . designated by the
Landlord . . . and to move the Tenant to the Substitute
Space. . . . The Tenant shall vacate and surrender the
Demised Premises and shall occupy the Substitute
Premises promptly . . . . Should the Tenant refuse to
relocate to the Substitute Space, the Landlord may, at
its option, by notice to the Tenant, elect to terminate
the Lease . . . .’’ (Emphasis added.)
Pursuant to the plain and unambiguous language of
subsection A of the relocation clause, the plaintiff could
elect, after notifying the defendant, to have the defen-
dant vacate the demised premises and to move the
defendant into a substitute premises. If the plaintiff
made such an election, then the defendant was required
to move into the substitute premises. See Boreen v.
Boreen, 192 Conn. App. 303, 321, 217 A.3d 1040 (use of
word ‘‘ ‘shall’ ’’ connotes requirement), cert. denied, 333
Conn. 941, 218 A.3d 1046 (2019). No language in the
relocation clause expressly provides that the defendant
was required to negotiate the terms of relocation with
the plaintiff, including negotiating the location of the
substitute premises or accommodating the plaintiff’s
redevelopment plans. There also is no language that
obligates the defendant to accept or reject, in writing,
a proposed substitute premises before it was built.3
Instead, pursuant to the unambiguous language of the
relocation clause, the defendant was required to vacate
the demised premises and to move into the substitute
premises after the plaintiff provided it with valid notice
regarding the same. If the defendant refused to relocate
to the substitute premises after receiving notice from
the plaintiff, then, and only then, was the plaintiff per-
mitted to terminate the lease pursuant to the reloca-
tion clause.
Moreover, the relocation clause implicitly provides
that, as a condition precedent to the plaintiff’s ability
to give the defendant a valid notice of substitution, the
substitute premises was required to be in existence at
the time notice was given. ‘‘A condition precedent is a
fact or event which the parties intend must exist or
take place before there is a right to performance. . . .
A condition is distinguished from a promise in that it
creates no right or duty in and of itself but is merely a
limiting or modifying factor. . . . If the condition is
not fulfilled, the right to enforce the contract does not
come into existence. . . . Whether a provision in a con-
tract is a condition the nonfulfillment of which excuses
performance depends upon the intent of the parties, to
be ascertained from a fair and reasonable construction
of the language used in the light of all the surrounding
circumstances when they executed the contract.’’
(Internal quotation marks omitted.) EH Investment Co.,
LLC v. Chappo, LLC, supra, 174 Conn. App. 360.
In the present case, subsection A of the relocation
clause provides that, after the defendant received a
notice of substitution, the defendant ‘‘shall vacate and
surrender the Demised Premises and shall occupy the
Substitute Premises promptly (and in any event not
later than fifteen [15] days after the Landlord has sub-
stantially completed any work to be performed in the
Substitute Premises pursuant to [subsection] B here-
of).’’ (Emphasis added.) Subsection A thus implicitly pre-
supposes that the substitute premises already would
be in existence at the time notice of substitution is
issued. An interpretation to the contrary would render
the ‘‘shall occupy the Substitute Premises promptly’’
language superfluous, as it would be impossible for the
defendant to vacate the demised premises and then
occupy promptly a substitute premises that had not
yet been constructed. See EH Investment Co., LLC v.
Chappo, LLC, supra, 174 Conn. App. 358 (‘‘in construing
contracts, we give effect to all the language included
therein, as the law of contract interpretation . . . mili-
tates against interpreting a contract in a way that ren-
ders a provision superfluous’’ (internal quotation marks
omitted)); Elliott Enterprises, LLC v. Goodale, supra,
166 Conn. App. 469 (‘‘the lease must be construed as
a whole and in such a manner as to give effect to every
provision, if reasonably possible’’ (internal quotation
marks omitted)).
Although the relocation clause does not contain any
language expressly providing that the substitute prem-
ises had to be constructed prior to the plaintiff’s ability
to issue a valid notice of substitution, such an interpre-
tation is implicit because an interpretation to the con-
trary would yield absurd results. See Welch v.
Stonybrook Gardens Cooperative, Inc., supra, 158
Conn. App. 198 (‘‘[w]e will not construe a contract’s
language in such a way that it would lead to an absurd
result’’). In the plaintiff’s view, the substitute premises
did not need to be in existence at the time that notice
of substitution was issued. If the relocation clause were
construed in this manner, however, then the defendant,
upon receiving a notice of substitution, would be
required to close its business for an indefinite amount
of time while the demised premises was razed and the
substitute premises was constructed. The amendment
to the lease also expressly provides that the defendant
waives ‘‘all claims against Landlord for any compensa-
tion or loss of use of the Rental Premises occasioned
by such redevelopment activities.’’ The defendant,
therefore, not only would be unable to make any money
from its business if the plaintiff could force it to vacate
the demised premises prior to the construction of the
substitute premises, but it also would be unable to seek
any damages from the plaintiff for its lost profits. This
scenario, which would be possible under the plaintiff’s
interpretation of the relocation clause, creates an
absurd and bizarre result, as we hardly can imagine that
the defendant would agree to such terms. See Grogan
v. Penza, 194 Conn. App. 72, 79, 220 A.3d 147 (2019)
(‘‘we presume that the parties did not intend to create
an absurd result’’ (internal quotation marks omitted));
Welch v. Stonybrook Gardens Cooperative, Inc., supra,
199 (‘‘contractual documents are to be read as a whole
and bizarre results are to be avoided’’).
Such a result also is bizarre because it contradicts
the clear terms of the amendment to the lease. The
amendment to the lease provides that the plaintiff
agreed to ‘‘reasonably cooperate with Tenant in good
faith to the extent reasonably practical during any rede-
velopment of the Shopping Center to minimize any
material and adverse impact of such redevelopment on
the conduct of Tenant’s business . . . .’’ If the plaintiff
could compel the defendant to vacate the demised
premises before the substitute premises was built, then
the defendant’s business undisputedly would be materi-
ally and adversely impacted, as it would be unable to
operate its restaurant while the substitute premises was
being constructed. In light of these considerations, and
the absurd results that the plaintiff’s interpretation of
the relocation clause would produce, the relocation
clause is more reasonably construed to require the exis-
tence of the substitute premises at the time a notice of
substitution is issued. Accordingly, we conclude that
the existence of the substitute premises was a condition
precedent to the plaintiff’s ability to issue a valid notice
of substitution under the relocation clause.
Having interpreted the relocation clause of the lease,
we next determine whether the court incorrectly found
that the defendant breached the lease by violating the
relocation clause. Whether a lease was breached pre-
sents a question of fact. See Lynwood Place, LLC v.
Sandy Hook Hydro, LLC, 150 Conn. App. 682, 687, 92
A.3d 996 (2014). ‘‘Factual findings are subject to a
clearly erroneous standard of review. . . . It is well
established that [a] finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed . . . . Our
authority, when reviewing the findings of a judge, is
circumscribed by the deference we must give to deci-
sions of the trier of fact, who is usually in a superior
position to appraise and weigh the evidence. . . . The
question for this court . . . is not whether it would
have made the findings the trial court did, but whether
in view of the evidence and pleadings in the whole
record it is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Id.On the basis of the record before us, and in light of
our interpretation of the relocation clause, we conclude
that the court’s finding that the defendant breached the
lease by violating the terms of the relocation clause
was clearly erroneous. In its memorandum of decision,
the court found that, ‘‘[b]y refusing to act in good faith
as to the relocation plan, the [defendant] violated the
express language of the lease and left the plaintiff with
no option other than to terminate the lease and proceed
with this action. . . . The defendant’s refusal to fairly
negotiate was akin to a refusal to relocate to the pro-
posed substitute space, and as such, the plaintiff prop-
erly terminated the lease by the July 31, 2019 letter.’’
The relocation clause, however, contains no language
that expressly requires the defendant to negotiate the
terms of relocation, to participate in the process of
identifying a substitute premises, or to give the plaintiff
written acceptance or rejection of a proposed substitute
premises that had not yet been constructed.4 Instead,
the relocation clause simply obligated the defendant to
surrender the demised premises and to move into the
substitute premises upon receiving a valid notice of sub-
stitution from the plaintiff.
The notice of substitution that the plaintiff issued to
the defendant, however, was not valid. As previously
observed, the existence of the substitute premises was
a condition precedent to the plaintiff’s right to issue a
notice of substitution to the defendant. It is undisputed
that the substitute premises had not yet been con-
structed at the time that the notice of substitution was
issued. A condition precedent to issuing a valid notice
of substitution thus was not fulfilled. As a result, the
defendant’s duty to perform under the relocation clause
was never triggered because the plaintiff’s right to
enforce it had not yet come into existence.5 See EH
Investment Co., LLC v. Chappo, LLC, supra, 174 Conn.
App. 360. Accordingly, we conclude that the court’s
finding that the defendant breached the lease by vio-
lating the terms of the relocation clause is unsupported
by the record and, therefore, is clearly erroneous.6 See
Lynwood Place, LLC v. Sandy Hook Hydro, LLC, supra,
150 Conn. App. 687.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
In this opinion the other judges concurred.
1
The defendant also filed a four count counterclaim, alleging claims for
breach of contract, breach of the implied covenant of good faith and fair
dealing, tortious interference, and violation of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq. The plaintiff moved to
dismiss the defendant’s counterclaim on the ground that the claims alleged
therein may not be asserted in a summary process action. The court granted
the motion to dismiss, concluding that ‘‘the defendant can pursue these
claims in a separate cause of action, but not as counterclaims in the limited
jurisdiction housing session of the Superior Court.’’ The court’s dismissal
of the counterclaim is not at issue in this appeal.
2
The court did not find for the plaintiff on count two of its complaint,
which alleged a claim for lapse of time.
3
Section 21 of the lease provides: ‘‘Oral Agreements Excluded. It is further
agreed between Landlord and the Tenant that this Lease embodies the entire
agreement between them, and that no amendments or modifications hereto
shall become effective except by appropriate written endorsement hereof
or separate written agreement supplemental hereto.’’ (Emphasis in original.)
We agree with the defendant that the trial court was incorrect in finding
that the defendant was obligated to negotiate in good faith with respect to
the relocation plans of the plaintiff and to accommodate the plaintiff’s
relocation plans. Such findings contradict the express terms of the relocation
clause of the lease.
4
We are mindful that subsection B of the relocation clause provides that
the ‘‘Tenant agrees to cooperate with the Landlord so as to facilitate the
completion by the Landlord of its obligations under this Section and the
prompt surrender of the Demised Premises, and further agrees to promptly
perform in the Substitute Premises any work to be performed therein by
the Tenant to prepare the Substitute Premises for the Tenant’s occupancy.’’
We do not interpret this clause, however, to require the defendant to negoti-
ate the terms of relocation with the plaintiff, to participate in the selection
of the proposed substitute premises, and to accept it prior to its construc-
tion. In context, this clause clearly is referring to the defendant’s obligations
to assist the plaintiff with furnishing and installing fixtures, improvements,
and appurtenances in the substitute premises and to assist the plaintiff with
its other responsibilities related to facilitating the defendant’s move into
the substitute premises. Nothing in this clause, or in the rest of the relocation
clause, indicates that the defendant was required to cooperate with the
plaintiff in identifying and accepting the substitute premises before it was
built. We will not import such an obligation into the lease in the absence
of any language indicating that the parties intended to impose this duty on
the defendant. See Prime Locations of CT, LLC v. Rocky Hill Development,
LLC, 199 Conn. App. 642, 657, 237 A.3d 3 (2020) (‘‘[I]t is well settled that
we will not import terms into [an] agreement . . . that are not reflected in
the contract. . . . A court simply cannot disregard the words used by the
parties or revise, add to, or create a new agreement. . . . A term not
expressly included will not be read into a contract unless it arises by neces-
sary implication from the provisions of the instrument.’’ (Citation omitted;
internal quotation marks omitted.)).
5
We are unpersuaded by the plaintiff’s argument that the notice of substitu-
tion was valid because the lease actually contemplated that work on the
substitute premises would not be fully completed at the time that notice
was given. Although the relocation clause does provide that work on the
substitute premises did not have to be completed at the time that notice of
substitution was given, it does not contemplate that the substitute premises
would not even have been constructed at such time. The relocation clause
limits the work to be completed at the time that notice of substitution
is given to the furnishing and installation of fixtures, improvements, and
appurtenances in the substitute premises. Accordingly, the plaintiff’s argu-
ment fails.
6
The defendant also argues that the plaintiff’s notice of substitution was
invalid because the plaintiff did not send the notice in a manner in which
proof of receipt was required as contemplated by the notice provisions of
the lease. In light of our conclusion that the notice of substitution was
invalid because a condition precedent to its issuance was not fulfilled, we
need not address this issue.