Commerce Park Associates, LLC v. Robbins ( 2019 )

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COMMERCE PARK ASSOCIATES, LLC
v. KIM ROBBINS
(AC 41398)
ROBBINS EYE CENTER, P.C. v. COMMERCE
PARK ASSOCIATES, LLC, ET AL.
(AC 41543)
Lavine, Prescott and Eveleigh, Js.
Syllabus
The plaintiff landlord, C Co., brought an action for breach of a commercial
lease seeking to recover rent that it allegedly was owed by the defendant
former tenant, R, and R’s ophthalmological and surgical practice, R Co.,
brought a tort action against C Co. and its property manager, M Co.,
seeking, inter alia, monetary damages for economic injuries that R Co.
suffered as a result of C Co.’s negligence and failure to make necessary
repairs to the leased premises. Prior to the commencement of those
actions, in August, 2007, R had executed a commercial lease to rent the
entire lower level of a building owned by C Co. for a fifteen year term,
with an option to extend the lease for two additional five year terms.
In December, 2009, the leased premises, which were occupied by R Co.,
were remodeled and transformed into an eye care center, complete
with, inter alia, a surgical center with operating rooms for optical surgery
and an optical shop. In September, 2013, as a result of the flooding to
parts of the lower level, R Co. was forced to suspend business completely
for six weeks. Afterward, by relocating its examination rooms and a
downsized version of its optical shop into portions of the premises
designated for administrative offices, R Co. was able partially to resume
operations, albeit utilizing only approximately one half of the premises.
By the end of October, 2014, R Co. had repaired the flood damage and
reoccupied the remainder of the premises. Beginning in the third full
week of April, 2015, and continuing into May and June, 2015, the build-
ing’s sewage system backed up, causing sewer water and waste to
flood into the premises. On the basis of the various problems with the
premises, beginning in September, 2013, and continuing until the time
R and R Co. vacated the premises in June, 2015, R, through R Co., paid
only approximately one half of her monthly rental obligation under the
lease. C Co.’s rent action and R Co.’s tort action were consolidated and
tried to the court, which rendered judgment in part for C Co. in the
rent action, from which R appealed and C Co. cross appealed to this
court, and rendered judgment in part for R Co. in the tort action. Specifi-
cally, regarding the rent action, the court determined, inter alia, that R
Co. had been constructively evicted from the premises and that C Co.
was not owed any rent under the lease from April 23, 2015, to the end
of the lease period, but that C Co. was owed additional rent for the
time period between November, 2014, and April 22, 2015, when there
were no grounds to abate the rent. The court concluded, regarding the
tort action, that although liability for any ordinary negligence by C Co.
was waived by R Co. under the terms of the lease’s waiver provision,
R Co. was entitled to damages on its negligence claim as a result of C
Co.’s gross negligence. Subsequently, the trial court granted R Co.’s
motion to reargue and for reconsideration and awarded R Co. additional
damages, and denied the motion to reargue and for reconsideration filed
by C Co., and C Co. appealed to this court from the judgment in the
tort action. Held:
1. R could not prevail on her claim that the trial court improperly awarded
C Co. additional rent for the period between November, 2014, through
the third full week of April, 2015, on the basis of its implicit factual
finding that the premises were fully tenantable during that period and,
therefore, that C Co. was entitled to receive the full amount of rent due
under the lease, rather than the partial payments tendered by R Co.;
although R claimed that the court overlooked evidence that, during the
time period at issue, R Co. was unable to use certain administrative
office space for its intended purpose as office space and, thus, that R
was entitled to continue partial abatement of rent during that period,
the trial court’s finding that there were no grounds to support abatement
under the lease after October, 2014, was supported by the factual record
and was not clearly erroneous, as R testified that repairs to all the water
damaged areas were completed in October, 2014, the administrative
office space at issue, which, prior to November, 2014, was used by R
and R Co. as patient examination space and as a temporary optical
shop, did not become untenantable after it was no longer needed for
those alternative purposes, and the mere fact that the administrative
office space would have needed additional modifications to return it to
its original use as office space did not render the space untenantable
for purposes of determining whether R was entitled to an abatement
of rent under the lease.
2. There was no evidence in the record supporting the trial court’s calculation
that R owed back rent totaling $89,484.37 between November, 2014, and
the end of April, 2015, which the court determined by multiplying the
number of months at issue by $15,562.50, the minimum monthly base
rent set forth in the lease: the trial court failed to credit partial rent
payments that R Co. had made to C Co. during that time period, the
court’s use of the minimum monthly base rent at the time the lease was
executed in 2007 failed to take into account that, pursuant to the express
provisions in the lease, the basic rent was to be adjusted annually using
the consumer price index and a proportional share of property taxes
was to be included as an additional component of the total monthly
rental obligation under the lease, and the court’s use of the $15,562.50
figure was inconsistent with and unsupported by other evidence before
the court, including the stipulated facts in the parties’ joint management
trial report and certain information in a tenant’s ledger, regarding the
actual amount of R’s unpaid rental obligation to C Co.; accordingly, a
new hearing in damages was appropriate.
3. C Co. could not prevail on its claim on cross appeal that the trial court
improperly found that R was constructively evicted from the premises
as a result of the serious and frequent sewer backups following the
third full week of April, 2015, and that this erroneous finding thwarted
C Co.’s efforts to recover the remainder of rent due under the lease,
which was based on C Co.’s claim that R had been intending to vacate
the premises even before the sewage backups occurred and, thus, did
not vacate the premises in June, 2015, because of the sewage problems:
that court was entitled to credit R’s testimony at trial as satisfying
the requirement that she vacated the premises because of the sewage
backups that began at the end of April, 2015, and the record supported
the trial court’s finding that R did not vacate the premises before C Co.
had notice and a reasonable opportunity to correct the problems with
the building’s sewer system, as C Co. and M Co. had actual notice of
the sewer system defects from at least June, 2014, when a former M
Co. employee informed M Co. of the sewer contractor’s findings that
there were sags in the sewer lines and that the floors would need to
be ripped up to make needed repairs, and although C Co. did engage
professionals to respond to the sewage backups at the time they occurred
to address the immediate situation, there was nothing in the record to
indicate that C Co. made any real effort to remedy the root cause of
those backups, the origins of which were known before the first serious
sewage backup ever occurred; accordingly, the trial court’s finding that
C Co. was afforded adequate time to remedy the defect that caused the
constructive eviction was not clearly erroneous.
4. C Co. could not prevail on its claim that the trial court improperly awarded
compensatory damages to R Co. on a theory of gross negligence because
Connecticut common law does not recognize degrees of negligence or
a cause of action sounding in gross negligence: even though Connecticut
courts have not recognized a cause of action sounding in gross negli-
gence, it does not necessarily follow that a court, in the course of
adjudicating a negligence cause of action, is barred from recognizing a
distinction between negligent and grossly negligent conduct, and
because, in the present case, it was necessary to make such a distinction
in order to determine the applicability of a contractual provision that
waived a landlord’s liability for ordinary negligence but not for gross
negligence, the court was permitted to award damages on the basis of
acts or omissions that it determined fell within a full range of negligent
behavior, including, but not limited to, acts of gross negligence; more-
over, C Co.’s claim that it was improper for the trial court to have
awarded damages on the basis of gross negligence because it was never
pleaded by R Co. was unavailing, as R Co. recovered under a negligence
theory that was pleaded, the court considered whether C Co. was grossly
negligent only in order to determine whether R Co. was precluded from
recovering under a negligence theory because of the indemnification
clause in the lease, and this court was not persuaded that the complaint
was silent with respect to allegations of gross negligence, as even though
R Co., in its negligence count against C Co., never used the words ‘‘gross
negligence,’’ it nevertheless incorporated detailed factual allegations
describing the conduct of C Co. and M Co. in response to the sewer
backups.
5. C Co. could not prevail on its claim that the trial court improperly deter-
mined the amount of damages awarded to R Co. by incorrectly determin-
ing that the proper measure of R Co.’s damages was its loss of the
beneficial use of the substantial improvements it had made to the prem-
ises prior to the constructive eviction and that the court should have,
instead, limited its award of damages to the loss of the fair market value
of the lease; R Co. was entitled to recover damages from C Co. based
on, inter alia, the fair market value of the lease on the date that R Co.
terminated the lease and the loss sustained by R Co. due to reasonable
expenditures made by it before C Co.’s default, as may be appropriate,
so long as no double recovery was involved, and, thus, the trial court,
which had discretion to choose the appropriate measure of damages in
crafting a compensatory damages award, properly considered R Co.’s
loss of use of improvements as a component of the damages awarded
to R Co.
6. The trial court miscalculated the amount of damages awarded to R Co.
for the loss of the beneficial use of the substantial improvements R
Co. had made to the premises; that court improperly included two
unexercised five year option periods in calculating the expected length
of the tenancy because doing so was legally inconsistent with the express
terms of the lease, as the right to exercise the options was expressly
conditioned on R’s compliance with each and every obligation of the
lease and not being in default of any provision of the lease, and the
court’s finding that R breached the lease by failing to pay the full rental
for five and three-quarter months would have precluded her from exer-
cising her option to extend the lease as a matter of law.
Argued March 12—officially released October 22, 2019
Procedural History
Action, in the first case, to recover damages for
breach of a commercial lease agreement, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, Housing Session at Bridgeport, and
action, in the second case, to recover damages for, inter
alia, the defendants’ alleged negligence, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the actions were consolidated
and tried to the court, Krumeich, J.; judgment in part
for the plaintiff in the first case and judgment in part
for the plaintiff in the second case, from which the
defendant in the first case appealed and the plaintiff in
the first case cross appealed to this court; thereafter,
the court, Krumeich, J., granted the motion to reargue
and for reconsideration filed by the plaintiff in the sec-
ond case and denied the motion to reargue and for
reconsideration filed by the defendants in the second
case, and the defendants in the second case appealed
to this court. In AC 41398, reversed in part; further
proceedings. In AC 41543, reversed in part; judg-
ment directed.
James M. Moriarty, with whom, on the brief, was
Aaron A. Romney, for the appellant-cross appellee in
AC 41398 (defendant in the first case).
Colin B. Connor, with whom were Joseph DaSilva,
Jr., and Robert D. Russo III, for the appellee-cross
appellant in AC 41398 (plaintiff in the first case).
Joseph DaSilva, Jr., with whom were Colin B. Con-
nor and, on the brief, Robert D. Russo III and Marc J.
Grenier, for the appellants in AC 41543 (defendants in
the second case).
James M. Moriarty, with whom, on the brief, was
Aaron A. Romney, for the appellee in AC 41543 (plaintiff
in the second case).
Opinion
PRESCOTT, J. The present appeals and cross appeal
arise from two actions involving a commercial lease
that share a nucleus of operative facts and were consoli-
dated for trial. They raise, among other issues, whether
the landlord’s failure to take actions to remedy recur-
rent sewage backups into the leased premises occupied
by an eye surgery center resulted in a constructive
eviction that excused the tenant from the obligation to
pay rent in accordance with the terms of the lease,
and whether, as a result of the alleged inaction of the
landlord and its property management company, the
eye surgery center was entitled to recover compensa-
tory damages for the loss of its use of improvements
it previously had made to the premises.
In the action underlying AC 41398 (rent action), Com-
merce Park Associates, LLC (Commerce Park),1 sought
to recover rent it alleges it was owed by a former tenant,
Kim Robbins—an ophthalmologist and the owner of
Robbins Eye Center, P.C. (REC). REC had occupied
the lower level of a commercial property owned by
Commerce Park in Bridgeport pursuant to a commercial
lease but vacated the premises prior to the lease’s expi-
ration following a series of sewage backups that flooded
the premises. Robbins now appeals, and Commerce
Park cross appeals, from the judgment of the trial court
rendered in part in favor of Commerce Park. Robbins
claims that the court improperly (1) awarded Com-
merce Park rent for a period of time from November,
2014, through the third full week of April, 2015, and (2)
miscalculated the amount of the rent that she owed for
that period. Commerce Park claims by way of cross
appeal that the court improperly determined that Rob-
bins was constructively evicted from the premises after
the third full week of April, 2015, by the sewage back-
ups, and, consequently, Commerce Park was not enti-
tled to recover any rent from Robbins after that date.
We affirm the judgment of the court with the exception
of its calculation of the amount of the rent awarded to
Commerce Park and, accordingly, remand for a new
hearing in damages in the rent action.
In the action underlying AC 41543 (tort action), REC
sued Commerce Park and its property manager, RDR
Management, LLC (RDR), seeking monetary damages
for economic injuries that REC suffered as a result of
their failure to make necessary repairs to the premises.
Commerce Park now appeals2 from the judgment of the
trial court rendered in part in favor of REC and awarding
REC damages of $958,041.92 against Commerce Park.3
Commerce Park claims that the trial court improperly
(1) awarded damages on the basis of gross negligence
because (a) Connecticut common law does not recog-
nize distinctions or degrees of negligence and (b) REC
never pleaded or otherwise asserted allegations of gross
negligence prior to trial; and (2) miscalculated the
amount of damages awarded because the court (a) uti-
lized an incorrect measure of damages in determining
REC’s losses and (b) misconstrued the length of Rob-
bins’ expected tenancy under the lease, which was an
integral component of the court’s calculation of dam-
ages. We agree that the court improperly included two
unexercised lease extension options in determining the
length of Robbins’ tenancy and, accordingly, reverse
the amount of damages awarded; we otherwise affirm
the judgment of the court in the tort action.
The following facts, which either were stipulated by
the parties4 or found by the trial court, and procedural
history are relevant to our discussion of the parties’
claims. Beginning in 1995, Robbins leased from Com-
merce Park increasing amounts of space in the lower
level of a commercial building it owned at 4695 Main
Street in Bridgeport (building). The building, which was
constructed in 1964, primarily houses medical offices
and is part of a complex of office buildings owned by
Commerce Park. By 2014, the building’s roof, founda-
tion, and sanitary sewer system were in poor condition
and in need of repair.
Although Robbins executed the original and all subse-
quent leases, the leased space was occupied by REC,
Robbins’ ophthalmological and surgical practice. REC
is a domestic professional corporation with Robbins as
its sole shareholder. REC paid all rents and other
charges due under the operative lease and carried all
required insurance policies, which, as described by the
court, made REC ‘‘the de facto tenant of the leased
space with whom the landlord dealt.’’
On August 1, 2007, Robbins executed the lease at
issue in the present appeals and cross appeal. Pursuant
to the lease, Robbins agreed to rent the entire lower
level of the building (premises), which consisted of
20,750 square feet of space. The lease was for a fifteen
year term, with the tenant, Robbins, having the option
of extending the lease for two additional five year terms.
The lease required Robbins to pay rent at an adjustable
rate, starting at $186,750 per year and payable in
monthly installments of $15,562.50.5 Robbins also was
responsible for paying a pro rata share of the building’s
property taxes as additional rent.
Paragraph 23 (c) of the lease provided in relevant
part: ‘‘In the event the Demised Premises shall be dam-
aged by fire or other casualty and shall be rendered
wholly or partially untenantable, then . . . Landlord
shall, at Landlord’s own cost and expense, proceed
with all reasonable dispatch to cause the damage to be
repaired and in the case of partial damage, the monthly
rental for any period of such repair which is not other-
wise covered by Tenant’s business interruption insur-
ance shall be abated in proportion to the portion of the
Demised Premises rendered untenantable . . . .’’
Paragraph 16 (b) of the lease provided in relevant
part: ‘‘[U]nless caused by the gross negligence or will-
fulness of Landlord, or of Landlord’s agents, Landlord
shall not be responsible or liable to Tenant, or any
person, firm or corporation claiming by, through, or
under Tenant for, or by reason of, any defect in the
Demised Premises . . . or from any injury or loss or
damage to person or property of Tenant, for loss of or
damage to property contained in or upon the Demised
Premises . . . caused by or arising or resulting from
pipes . . . or by or from any defect in or leakage, run-
ning or overflow of water or sewerage in any part of
the Demised Premises . . . .’’ (Emphasis added.)
After signing the new lease, Robbins hired a contrac-
tor to transform the premises into what the trial court
found was a ‘‘state-of-the-art eye care center, complete
with a surgical center with two operating rooms certi-
fied by the state for optical surgery . . . a LASIK facil-
ity, and an optical shop.’’ The remodeling was com-
pleted in December, 2009, at a cost of $1,186,267.6
In September, 2013, during a period of heavy rain, a
downspout detached from a roof drain, which allowed
water to flood into the building and inundate parts of
the lower level.7 The flooding from above was exacer-
bated by groundwater that seeped in through the build-
ing’s porous foundation. The water caused substantial
damage to REC’s equipment, materials, and work
spaces. As a result of the flooding, REC was forced to
suspend business completely for six weeks. Afterward,
by relocating its examination rooms and a downsized
version of its optical shop into portions of the premises
designated for administrative offices, REC was able
partially to resume operations, albeit utilizing only
approximately one half of the leased premises.
For months, mold would appear at various times and
locations within the premises. By the end of October,
2014, however, REC had repaired the flood damage,
remediated the mold infestations, and reoccupied the
remainder of the premises, including the surgical
center.8
At other times, both before and after the major flood-
ing incident in 2013, REC’s normal operations were
interrupted due to contaminated water that leaked into
the premises from blocked toilets in the offices or com-
mon areas of the upper floors of the building. Patients
and staff often smelled urine or other foul odors at
various locations throughout the lower floor. The court
found that these various smaller leaks, although cer-
tainly disruptive, never rendered the premises untenant-
able. Nevertheless, as the court noted, ‘‘Robbins and
REC became disenchanted with RDR’s and [Commerce
Park’s] attitude and efforts to maintain and repair the
building. The periodic plumbing problems, unpleasant
odors and mold blooms proved to be quite disruptive
[to] the practice and eroded any goodwill remaining
between Robbins and REC, on one side, and RDR and
[Commerce Park], on the other.’’ On the basis of the
various problems with the premises, beginning in Sep-
tember, 2013, and continuing until the time REC vacated
the premises on June 30, 2015, Robbins, through REC,
paid only approximately one half of her monthly rental
obligation under the lease.
Beginning in April, 2015, and continuing into May and
June, 2015, the building’s sewage system backed up,
causing sewer water and waste to flood the premises.
Specifically, sewage flooded the premises on April 23,
27, and 28, 2015. In addition, on April 29, 2015, a plumber
hired by RDR accidently cut a waste pipe, causing addi-
tional sewer water and fecal matter to contaminate
REC’s offices. Continued incidents of sewage backups
in the following months culminated in a major event
on June 29, 2015. At that time, REC complained to
municipal authorities, including Lawrence Palaia, the
sanitarian of the city of Bridgeport. Palaia, who
described the premises as having ‘‘sewer water all over
the place,’’ issued a notice of violation to Commerce
Park and RDR, and ordered REC to close operations
until the problem was remedied. As set forth in the
court’s memorandum of decision, ‘‘[t]he notice
demanded that [Commerce Park] engage a contractor
acceptable to the city [of Bridgeport], take out any
necessary permits, and commence repairs within three
business days. The [premises were] supposed to be
vacant until the city signed off on [their] condition after
repairs and cleanup.’’ REC and Robbins vacated the
premises on June 30, 2015.
The serious and persistent problems with the build-
ing’s sanitary sewer system were known by Commerce
Park and RDR and were well-documented. The court
made the following findings regarding the problems
that existed and the response by Commerce Park and
RDR: ‘‘[T]here were several serious backups of the
sewer system . . . into the [premises] as a result of
known defects in the sewer system that RDR and [Com-
merce Park] failed to address effectively. No one has
a map of the sewer system, which has a main sewer
line under the slab and branch lines connected to an
uncounted number of plumbing fixtures throughout the
[b]uilding. The main sewer line is a gravity fed system
that uses four inch cast-iron pipes to pass sewer water,
paper and effluent into a cistern, where it is collected
and, when it reaches a certain level, is ejected out of
the [b]uilding by two ejector pumps. One problem with
the system is that there is insufficient pitch in the main
line to efficiently pass water and material to the cistern.
. . . [T]here was insufficient space for the existing
main line to be building code compliant in pitch of the
pipes into the cistern. The other related problem is that
the system lacked uniformity of pitch. The cast-iron
pipe used in the system has multiple sags, some of
which were major and acted as pockets that trapped
water and material flushed down the toilets that,
together with insufficient pitch, ultimately led to clogs,
which backed up the system and sent sewer water,
effluent and raw sewage into the lower level occupied
by REC on a number of occasions.’’ (Internal quotation
marks omitted.)
As further explained by the court, on at least five
occasions between 1997 and 2015, sewer contractors
hired by RDR made videotapes of the sewer system in
conjunction with clearing out blockages in the system.
‘‘These videos demonstrated a deteriorating sewer pip-
ing system as penetration of the pipe and sags worsened
over time. The first video in 1997 showed a penetration
of a rock into the main line, and subsequent videos in
2014 and 2015 showed multiple sags worsening over
time. . . . [T]here were sags throughout the main line
and laterals, some of which were major and severe
enough to cause backups. . . . [T]here were clogs all
over the system, not just in one place . . . . [F]loods
to the lower floor would be caused by a clog in the
main line, not the laterals. . . . [T]he recurrence of
problems more frequently indicated [that] there was a
problem with the performance of the system, and
[RDR’s sewer contractor] had discussed the defects and
possible remedies with RDR, such as cutting up the
floor to replace the pipes, as well as controlling what
went into the system. A former employee of RDR . . .
was present when a video was taken on June 12, 2014,
and informed RDR of the sewer contractor’s concern
about sags that needed to be fixed, and also about the
need to rip up the floors to make repairs to the pipes.
He was also present when the video was taken on June
28, 2015, when multiple sags were seen, and he told
RDR . . . that the sewer contractor expressed concern
about sags, in particular, a major sag in the main line,
approximately twenty feet from the ejector pit, that
needed to be dug up and fixed. . . . [T]he major sags,
along with lack of pitch, had become worse over time
and interfered with the performance of the system and
caused the sewage backups into the [premises].’’ (Foot-
notes omitted; internal quotation marks omitted.)
Moreover, as expressly found by the court, both
RDR’s sewer contractor and RDR’s own personnel had
advised RDR about the presence of the sags in the
system, that those sags were the cause of the many
sewer backups in the building, and that the sags could
be remedied properly only by tearing up the floor and
replacing the affected sections of the pipe. RDR also
was informed by its contractor that, if it chose not to
repair the sags, ‘‘it would be necessary to carry on a
preventative maintenance program to periodically
snake the sewer system to break up potential clogs
before they were formed. RDR and [Commerce Park]
pursued neither course but merely decided to address
system backups as they occurred.’’9
Commerce Park commenced the action against Rob-
bins for back rent on June 24, 2014, which was after
the flooding event of September, 2013, but prior to the
major sewage backups in 2015. The one count com-
plaint alleged that Robbins had breached her obliga-
tions under the lease because, after August, 2013, she
had failed to make the full required monthly rental
payments.
Robbins filed an answer, special defenses, and coun-
terclaims on August 14, 2014. By way of special defense,
Robbins asserted that Commerce Park breached the
lease by failing to maintain the premises in a tenantable
condition, thus excusing her own nonperformance.
Robbins further claimed that she was entitled to a setoff
from any rent owed for the damages she sustained as
a consequence of Commerce Park’s ‘‘gross negligence
and wilfulness in maintaining the leased premises,’’ and
that she was entitled to an abatement of the rent under
the provisions of the lease due to damage from the
water and sewer infiltrations that rendered the premises
untenantable. Robbins also alleged counterclaims
sounding in breach of contract, tort, constructive evic-
tion, and a violation of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq.
Robbins later determined that the damages she
sought by way of relief in her counterclaims in the rent
action actually were incurred by REC. Consequently,
on September 9, 2016, REC commenced the underlying
tort action against Commerce Park and RDR. Count
one of the operative complaint in the tort action alleged
negligence against Commerce Park for breach of its
duty to properly maintain the premises. Count two
alleged negligence against RDR for breaching its prop-
erty management responsibilities by utilizing unli-
censed plumbers to conduct repairs, knowing that fail-
ure to repair and replace the sewage line properly could
cause substantial damage to REC. Count three alleged
common-law recklessness by Commerce Park. Counts
four and five alleged violations of CUTPA against Com-
merce Park and RDR, respectively.
On October 7, 2016, Robbins filed a motion seeking
to consolidate the two matters, which the court granted.
Robbins thereafter withdrew her counterclaims in the
rent action. The matters were consolidated and tried
to the court, Krumeich, J., over seven days in July, 2017.
The parties each submitted multiple posttrial briefs.
The court issued a memorandum of decision resolv-
ing the two actions on February 6, 2018. The court
first addressed Commerce Park’s allegations in the rent
action that Robbins had breached the lease and that it
was owed additional rent for the period of time that
REC occupied the premises but had failed to pay its
full monthly rental obligations, as well as for the time
period after REC vacated the premises through the ter-
mination date of the lease. The court agreed with Rob-
bins that REC had been constructively evicted from the
premises as a result of the numerous sewer backups
beginning in the last week of April, 2015, and continuing
until REC vacated the premises at the end of June, 2015.
Accordingly, the court determined that Commerce Park
was not owed any rent under the lease from April 23,
2015, through the end of the lease period.10
The court determined, however, that Commerce Park
was owed additional rent for a portion of the period
beginning in September, 2013, and continuing through
the first three weeks of April, 2015, during which time
REC had paid only one half of the total rent due under
the lease. According to the court, ‘‘[w]ith respect to the
period [of] September, 2013, to October, 2014, there
should be a partial rent abatement that, based roughly
on the area affected, justifies the reduced rent paid
by REC. There were five and three-quarter months,
however, [between November, 2014, and April 22, 2015],
when there [were] no grounds to abate the rent. Failure
to pay the full rental for those months was a breach of
the lease, and [Commerce Park] was damaged to the
extent [that] rents for those months were reduced uni-
laterally by the tenant in the amount of $89,484.37
($15,562.50 per month for [six] months minus $3,890.63
for the last week of April, 2015).’’11
The court next turned to REC’s claim for damages
in the tort action against Commerce Park and RDR
premised on allegations of negligence, recklessness,
and violation of CUTPA. The court explained that Com-
merce Park ‘‘relies on the negligence waiver in [para-
graph 16 (b) of] the lease as a defense, which it argues
also extends to its agent, RDR.’’
The court first determined that, although the indemni-
fication clause of the lease prevented Robbins and REC
from recovering on the basis of any ordinary acts of
negligence on the part of Commerce Park relating to
the sewage backups or seepage of water caused by the
porous foundation, such exculpation, by the plain terms
of the clause, did not extend to RDR as Commerce
Park’s agent. Nevertheless, the court found that RDR
could not have repaired the sewer problems without
authorization from Commerce Park because the prob-
lems went beyond simple maintenance issues and
would have required major capital expenditures by
Commerce Park. For that reason and others, the court
concluded that any failure by RDR to repair the sewer
system was, under the circumstances, neither negligent,
reckless or a violation of CUTPA.
With respect to Commerce Park, the court first deter-
mined that its liability for any ordinary negligence
clearly was waived by REC under the terms of the
lease’s waiver provision. The court noted, however, that
the waiver clause expressly excluded any waiver of
liability for conduct that amounted to ‘‘gross negli-
gence’’ or, by logical extension, recklessness. See Doe
v. Hartford Roman Catholic Diocesan Corp., 317 Conn.
357, 382, 119 A.3d 462 (2015) (recklessness involves
conduct that ‘‘is more than negligence, more than gross
negligence’’ [internal quotation marks omitted]). The
court relied on our Supreme Court’s definition of gross
negligence as ‘‘very great or excessive negligence, or
as the want of, or failure to exercise, even slight or
scant care or slight diligence . . . .’’ (Internal quotation
marks omitted.) 19 Perry Street, LLC v. Unionville
Water Co., 294 Conn. 611, 631 n.11, 987 A.2d 1009 (2010).
With respect to whether Commerce Park’s actions
or inaction in the present case amounted to gross negli-
gence, the court reasoned as follows: ‘‘The failure to
repair the sewer system or to carry out a preventative
maintenance program breached [Commerce Park’s]
duties under the lease and was more than ‘mere neglect’
but, [rather], a conscious choice to risk future floods
and expose REC to repeated disruption of its business.
. . . It was foreseeable that [Commerce Park’s] deci-
sion not to make the repairs to the sewer system recom-
mended by the sewer contractor in violation of its repair
obligations under the lease (paragraphs 16, 18, 23) and
common-law duty, or its failure to carry out a preventa-
tive maintenance program outlined by the contractor
as an alternative, would result in future sewage over-
flows in the basement space occupied by REC. It was
also foreseeable that periodic sewage floods into the
[premises] would seriously disrupt Robbins’ and REC’s
ability to conduct a medical practice in the offices and
to use the operating rooms, rendering the [premises]
untenantable. [Commerce Park’s] conduct was grossly
negligent.’’ (Citation omitted.)
Although the court concluded that REC was entitled
to damages as a result of Commerce Park’s gross negli-
gence, it ruled in favor of Commerce Park with respect
to the additional counts alleging recklessness and a
violation of CUTPA. The court, citing to our Supreme
Court’s definition of recklessness in Matthiessen v.
Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003),
found that, although Commerce Park’s decision not to
heed expert advice regarding the defects in the sewer
system was grossly negligent, its actions ‘‘did not sink
to the level of highly unreasonable conduct, involving
an extreme departure from ordinary care’’ and, thus,
‘‘did not constitute reckless conduct.’’12 (Internal quota-
tion marks omitted.) The court also rejected the CUTPA
count against Commerce Park, finding that the evidence
presented failed to demonstrate unfair or deceptive con-
duct that would violate the ‘‘cigarette rule.’’13 (Internal
quotation marks omitted.)
The court recognized that quantifying the amount of
damages to award REC for Commerce Park’s gross
negligence was a challenge. The court first acknowl-
edged that there was insufficient evidence presented
to award REC damages on the basis of lost profits
resulting from the interruption of its business. The
court, however, concluded that if a tenant has made
improvements to a leased premises and is subsequently
forced by the landlord’s misconduct to abandon the
premises, the tenant is entitled to recover damages on
the basis of its loss of the beneficial use of the improve-
ments the tenant would have enjoyed during the
remaining term of the lease. Such damages, according
to the court, are measured by determining the period of
time the tenant had use of the improvements compared
against the period of time the tenant would have had
the right to use them under the terms of the lease. The
court found that REC had used the improvements it
made to the premises for ‘‘five years and four months
out of a twenty-two year term (ten years after the com-
pletion of the improvements plus two five year options).
Therefore, REC’s damages are 75.8 percent of the
improvement cost, which totals $899,190 ($1,186,267 x
75.8 percent).’’
REC filed a motion for an award of postjudgment
interest, and both REC and Commerce Park filed
motions seeking reconsideration and reargument of the
damages awarded to REC. Commerce Park argued that
any damages attributable to lost use of improvements
should have been calculated from the lease’s com-
mencement date, not from the date that the improve-
ments were completed. It also argued that the court
failed to credit against the damages awarded $300,000
that Commerce Park allegedly contributed toward the
cost of the improvements. According to REC, it was
entitled to additional damages for expenses that it
incurred as a result of having to abandon the premises,
including moving expenses and costs related to fitting
out a new, temporary work space.
The court heard arguments on the postjudgment
motions on March 5, 2018. On March 22, 2018, the court
filed supplemental memoranda of decision, rejecting
Commerce Park’s arguments but awarding REC addi-
tional damages of $58,557.55, for a total award of
$958,041.92, along with postjudgment interest at a rate
of 8 percent per annum.14 These appeals and cross
appeal followed.
I
AC 41398
We begin our discussion with the claims arising out
of Commerce Park’s action to recover unpaid rent that
it asserted Robbins owed under the lease. Robbins
claims on appeal that (1) the court improperly awarded
Commerce Park additional rent for the period between
November, 2014, through the third full week of April,
2015, and (2) even if she owed additional rent, the court
miscalculated the amount of rent due. Commerce Park
claims by way of cross appeal that the court improperly
determined that Robbins owed no rent following the
third full week of April, 2015, because she was construc-
tively evicted by the repeated sewage backups.
A
Robbins first claims that the court improperly
awarded Commerce Park back rent for the time period
between November, 2014, and the final week of April,
2015. Specifically, Robbins challenges the court’s
implicit factual finding that the premises were fully
tenantable during that period and, therefore, that Com-
merce Park was entitled to receive the full amount
of rent due under the lease rather than the one-half
payments tendered by REC. Robbins argues that the
court overlooked evidence that would have supported
a contrary finding, namely, that during the time period
at issue, REC was unable to use certain administrative
office space for its intended purpose as office space
and, thus, Robbins was entitled to continue partial
abatement of rent during that period.
Commerce Park counters that, prior to November,
2014, Robbins and REC had been using the administra-
tive office space at issue as patient examination space
and as a temporary optical shop and that Robbins’ argu-
ment that this same space became untenantable after
it was no longer needed for these alternative purposes
advances an ‘‘unreasonable and myopic view of what
‘use for its intended purpose’ means in the context of
a commercial lease.’’ Commerce Park argues that the
mere fact that the administrative office space would
have needed additional modifications to return it to its
original use as office space did not render the space
untenantable for purposes of determining whether Rob-
bins was entitled to an abatement of rent under the
lease.
Although Robbins’ position cannot be described as
wholly lacking merit, we find Commerce Park’s argu-
ments more persuasive under the terms of the lease.
We conclude that Robbins has failed to demonstrate
that the court’s finding that there was no justification
for abatement of rent during the period at issue was
clearly erroneous and, therefore, that finding must
stand.
As previously set forth, paragraph 23 (c) of the opera-
tive lease provided in relevant part that if the premises
became ‘‘wholly or partially untenantable,’’ rental pay-
ments ‘‘shall be abated in proportion to the portion of
the [premises] rendered untenantable . . . .’’ The lease
does not define the term ‘‘untenantable’’; however, our
courts previously have indicated that the question of
whether premises are untenantable is one of fact for
the trier, to be decided on a case-by-case basis ‘‘after
a careful consideration of the situation of the parties
to the lease, the character of the premises, the use to
which the tenant intends to put them, and the nature
and extent by which the tenant’s use of the premises
is interfered with by the injury claimed.’’ (Internal quo-
tation marks omitted.) Welsch v. Groat, 95 Conn. App.
658, 662, 897 A.2d 710 (2006).
It is well settled that a factual finding is not clearly
erroneous unless ‘‘it is not supported by any evidence
in the record or when there is evidence to support it,
but the reviewing court is left with the definite and firm
conviction that a mistake has been made. . . . Simply
put, we give great deference to the findings of the trial
court because of its function to weigh and interpret the
evidence before it and to pass upon the credibility of
witnesses.’’ (Internal quotation marks omitted.) Bened-
etto v. Wanat, 79 Conn. App. 139, 147, 829 A.2d 901
(2003).
In its memorandum of decision, the court found that
‘‘[t]he entire [premises were] untenantable for [their]
intended purpose for six weeks as a result of the Sep-
tember, 2013 flood’’ and ‘‘the area that formerly housed
the clinic, optical shop and operating rooms was not
tenantable until October, 2014.’’ During that time, REC
paid only one half of the rent due under the lease, and
the court found, on the basis of the portion of the
premises affected, that this reduction of rent was jus-
tified.
The court, nevertheless, also found that REC eventu-
ally was able to utilize the previously untenantable areas
of the premises and, for the period after October, 2014,
until the sewage backups began in April, 2015, ‘‘there
were no grounds to abate the rent’’ and ‘‘[f]ailure to
pay the full rental for those months was a breach of
the lease . . . .’’ Implicit in this finding is a determina-
tion by the court that the entire premises were tenanta-
ble during that period, otherwise the court logically
would have found that some continued abatement of
rent was justified under the lease.
The court made no additional subordinate factual
findings and provided no analysis regarding the tenant-
ability of the premises after all areas were repaired of
the damage from the September, 2013 flooding.15 Its
finding that no ground existed to support Robbins’ and
REC’s continued abatement of rent is, nevertheless,
supported by some evidence in the record. Robbins
testified that repairs to all the water damaged areas
were completed in October, 2014. She also testified
that once the administrative office space was no longer
needed as examination space, it would have needed to
be remodeled to return it to its original use as office
space. Robbins never testified or presented any other
evidence, however, that would have mandated a finding
by the court that the former administrative space was
ever ‘‘untenantable,’’ meaning unusable for a purpose
related to REC’s operations.16 Robbins testified that, at
the time, she had been considering converting some of
the office space into additional operating rooms, which
demonstrates that the space had a variety of potential
uses for REC and Robbins aside from its use as adminis-
trative offices.
Even assuming that REC would have had to expend
additional resources to return the office space to its
original use, that fact alone does not directly conflict
with the court’s finding, which was not that the space
was available for use as administrative offices, but that
there was no basis for abating rental payments. Under
the express terms of the lease, rent abatement was
permitted for periods in which all or part of the premises
were rendered untenantable due to damage caused by
fire or other casualty, and then only during the period
of repair. Here, even if the converted administrative
office space could not be used for its originally intended
purpose, the record indicates that this portion of the
premises was not significantly damaged and rendered
untenantable as a result of the September, 2013 flood
or any other casualty during the period at issue and
was not undergoing repair. Accordingly, the court’s
finding that there were no grounds to support abate-
ment under the lease after October, 2014, is supported
by the factual record before the court.
Moreover, although Robbins suggests that the evi-
dence before the court could have supported a different
conclusion, it is not the function of this court to retry
the facts or pass on the credibility of fact witnesses.
See Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988
(1983) (affirming court’s finding that premises were
tenantable despite uncontroverted expert testimony to
contrary). Because there is evidence in the record to
support the court’s factual findings, and we are not left
with a firm and definite conviction that a mistake was
made, we do not agree that the court’s finding that rent
abatement was unjustified for the period in question
was clearly erroneous.
B
Robbins next claims that, even if she owed Com-
merce Park some additional rent for the five and three-
quarter months between November, 2014, and the end
of April, 2015, there is no evidence in the record support-
ing the court’s calculation that she owed back rent
totaling $89,484.37. In particular, Robbins argues that
the court failed to credit partial rent payments that
REC made to Commerce Park during that time period.
Commerce Park responds that the language used by
the court suggests that it took into account any partial
payments made, but principally argues that the court’s
damages award is unreviewable because the court did
not set forth the precise basis for its calculations in its
memorandum of decision and Robbins failed to seek
an articulation from the court. We agree with Robbins
that the court’s unpaid rent calculation is unsupported
by the record.
The following facts are relevant to this claim. The
court concluded that Robbins breached the lease by
not making full rental payments for the five and three-
quarter months at issue. The court determined that the
proper measure of damages to award Commerce Park
was the amount of any unpaid rent, which the court
determined was $89,484.37. In arriving at that number,
the court, in essence, multiplied the number of months
at issue, or 5.75,17 by $15,562.50, which was the mini-
mum monthly base rent set forth in the lease. For the
following reasons, however, we are left with a firm
and definite conviction that the court’s calculation is
mistaken and, thus, must be reversed.
First, the court fully recognized that REC had not
paid Commerce Park ‘‘the full rental’’ but had ‘‘reduced
unilaterally’’ the amount it paid each month. (Emphasis
added.) It is reasonable to infer from this language that
the court was aware that, although REC had not paid
its rental obligation in full each month, it did pay some
reduced amount of rent during the period at issue. That
inference is consistent with the court’s finding earlier
in the decision that REC had made reduced rent pay-
ments of approximately one half of the amount due
under the lease. The court, nevertheless, appears to
have based its calculation of the rent owed for the
period at issue by using a figure that represented the
full amount of the minimum monthly base rent due at
the time the lease was executed in 2007. The court
never stated that its calculation took into account any
credit for the rent that REC actually had paid. REC was
entitled to that credit.
Second, although $15,562.50 represented the amount
of the monthly basic rent due at the time the lease was
executed in 2007, the lease also expressly provided that
the basic rent was to be adjusted annually using the
consumer price index, as set forth in detail in exhibit
B of the lease. Given that the rental period in question
spanned from late 2014 into 2015, we have no confi-
dence that $15,562.50 accurately represents the actual
amount of the monthly rent owed by Robbins during
the period in question or the balance due, taking into
consideration partial payments. The court’s use of that
figure also appears to ignore that a proportional share
of property taxes was to be included as an additional
component of the total monthly rental obligation under
the lease.
Third, the court’s use of the $15,562.50 figure is incon-
sistent with and unsupported by other evidence before
the court regarding the actual amount of Robbins’
unpaid rental obligation to Commerce Park. In their
joint trial management report, the parties stipulated
regarding the amount of rent that Robbins paid, through
REC, to Commerce Park during the period of time at
issue. As stipulated, not including a payment to reim-
burse Commerce Park for snaking a clogged drain, Rob-
bins paid $73,424.10. As previously discussed, those
payments are not reflected in the mathematical formula
used by the court, and there appears to be no reasonable
basis in the record for the court to have disregarded the
stipulated facts. Robbins also submitted into evidence
a tenant’s ledger that, in addition to showing the same
payments as stipulated to by the parties, lists the actual
base rent for the months in question as $18,929.83 and
the estimated monthly taxes as an additional $5544.87.
The ledger shows that REC made monthly payments
that represented one half of the total of the base rent
plus taxes, or $12,237.35. Using the figures in the ledger,
which were never disputed by Commerce Park, the
court appears to have overstated the amount of rent
owed to Commerce Park by more than $20,000.18
Commerce Park argues that Robbins never asked the
court to articulate the factual basis for its calculation
of damages and suggests that this is fatal to her claim
on appeal. See Smith v. Snyder, 267 Conn. 456, 467,
839 A.2d 589 (2004) (concluding that appellants’ failure
to file motion for articulation to illuminate further basis
for compensatory damages award left reviewing court
to speculate regarding how and why court arrived at
sum awarded). The record before us, however, is ade-
quate for review. Although it is true that courts have
broad discretion in calculating the amount of damages;
see Beverly Hills Concepts, Inc. v. Schatz & Schatz,
Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998);
if, as is the case here, the record clearly reflects that
the figures utilized by the court were incorrect and
untethered from the evidence before it, a new hearing
in damages is appropriate.
C
Turning to Commerce Park’s cross appeal, it claims
that the court improperly found that Robbins was con-
structively evicted from the premises as a result of the
serious and frequent sewer backups following the third
full week of April, 2015, and that this erroneous finding
thwarted Commerce Park’s efforts to recover the
remainder of rent due under the lease. It maintains that,
in making this finding, the court misinterpreted and
misapplied governing case law because Robbins failed
to establish that (1) REC vacated the premises as a
result of the sewer backups or (2) she gave Commerce
Park a reasonable amount of time to correct the prob-
lem. We are not persuaded by either argument.
‘‘[A] constructive eviction arises [if] a landlord,
[although] not actually depriving the tenant of posses-
sion of any part of the premises leased, has done or
suffered some act by which the premises are rendered
untenantable, and has thereby caused a failure of con-
sideration for the tenant’s promise to pay rent. . . . In
addition to proving that the premises are untenantable,
a party pleading constructive eviction must prove that
(1) the problem was caused by the landlord, (2) the
tenant vacated the premises because of the problem,
and (3) the tenant did not vacate until after giving the
landlord reasonable time to correct the problem. . . .
Moreover, [w]hether the premises are untenantable is
a question of fact for the trier, to be decided in each
case after a careful consideration of the situation of
the parties to the lease, the character of the premises,
the use to which the tenant intends to put them, and
the nature and extent by which the tenant’s use of the
premises is interfered with by the injury claimed. . . .
That factual determination will not be disturbed by [a
reviewing] court unless the conclusion is such that it
could not reasonably be reached by the trier.’’ (Citations
omitted; internal quotation marks omitted.) Welsch v.
Groat, supra, 95 Conn. App. 662.
In challenging the court’s finding that Robbins and
REC were constructively evicted from the premises as
a result of the backup of the sewage into the premises
beginning at the end of April, 2015, Commerce Park
does not argue on appeal that the court applied an
incorrect legal standard or failed to make all requisite
findings. It does not contend that the sewage backup
did not render the premises untenantable, nor does it
argue that the backups were not ‘‘caused by the land-
lord.’’ Rather, Commerce Park first argues that Robbins
had been intending to vacate the premises even before
the sewage backups occurred and, thus, did not vacate
the premises ‘‘because of’’ the sewage problems. Sec-
ond, it argues that she vacated the premises without
giving Commerce Park a reasonable amount of time to
remedy the situation.
Whether Robbins and REC vacated the premises as
a result of the sewage backups and whether Commerce
Park had a reasonable amount of time to remedy the
sewage problems before the premises were vacated are
factual determinations for the trier of fact and, thus,
are subject to our clearly erroneous standard of review.
See Baretta v. T & T Structural, Inc., 42 Conn. App.
522, 527, 681 A.2d 359 (1996). It is apparent from the
court’s decision that it found both requirements were
satisfied in this case and those findings, whether
express or implied, are supported by evidence in the
record.
The court expressly found that it was ‘‘the sewage
backups and floods in the spring of 2015’’ that construc-
tively evicted Robbins from the premises, and that Com-
merce Park was responsible for those backups because
of its failure adequately to address and repair known
defects in the buildings sewage system. Further, there
can be little doubt on this record that Robbins vacated
the premises ‘‘because of’’ the sewage backups that
began at the end of April, 2015. Robbins testified at
trial to the following: she made her decision to move
her business to a new location after the first sewage
backup; at that time, she received an estimate of $10,000
to clean and sanitize the fouled operating rooms; she
quickly came to the realization that Commerce Park
was not going to fix the underlying problems with the
sewer pipes and that the sewage backups likely would
continue, which in fact occurred; and the continued
negative impact on her business and associated costs
of cleanup became intolerable. The court was entitled to
credit Robbins’ testimony as satisfying the requirement
that ‘‘the tenant vacated the premises because of the
problem [caused by the landlord] . . . .’’ (Internal quo-
tation marks omitted.) Welsch v. Groat, supra, 95 Conn.
App. 662.19
Similarly, the record supports the court’s finding that
Robbins did not vacate the premises before Commerce
Park had notice and a reasonable opportunity to correct
the problems with the building’s sewer system. In mak-
ing this finding, the court relied on the fact that Com-
merce Park and RDR had actual notice of the sewer
system defects from at least June, 2014. This finding is
supported by the testimony of a former RDR employee
that, in June, 2014, he informed RDR of the sewer con-
tractor’s findings that there were sags in the sewer lines
and that the floors would need to be ripped up to make
needed repairs. Moreover, as the court found, after the
first sewage backup in April, 2015, Robbins learned
from the sewer contractor that Commerce Park ‘‘had
been advised to repair known defects in the sewer sys-
tem and failed to do so . . . .’’ Although Commerce
Park did engage professionals to respond to the sewage
backups at the time they occurred to address the imme-
diate situation, there is nothing in the record to indicate
that Commerce Park made any real effort to remedy
the root cause of those backups, the origins of which
were known before the first serious sewage backup
ever occurred. We conclude on the basis of our review
of the record that the court’s finding that Commerce
Park was afforded adequate time to remedy the defect
that caused the constructive eviction is not clearly
erroneous.
In sum, our review of the record before the court
shows that there was evidence to support the court’s
ultimate finding that there was a constructive eviction,
and, thus, the finding was not clearly erroneous. Having
resolved all claims raised with respect to the rent action,
we turn to the appeal of Commerce Park and RDR from
the decision of the court awarding REC $958,041.92 in
damages in REC’s tort action.
II
AC 41543
In AC 41543, the tort action, Commerce Park claims
that (1) the court improperly awarded compensatory
damages against it in favor of REC on a theory of gross
negligence and (2) even if REC was entitled to damages,
the court improperly determined the amount of dam-
ages. We address each of these claims in turn.
A
Commerce Park first claims that the trial court
improperly awarded damages to REC on a theory of
gross negligence. According to Commerce Park, the
court’s decision was flawed for primarily two reasons.
First, it argues that Connecticut common law does not
recognize degrees of negligence or a cause of action
sounding in gross negligence. Second, it argues that
REC never pleaded allegations of gross negligence in
its complaint and, thus, could not properly recover on
that basis, even if it was a legally cognizable theory
on which to impose liability. We conclude that both
arguments founder on a fundamental misinterpretation
of the pleadings and the legal basis for the court’s deci-
sion. Accordingly, we reject this claim.
1
We first address the argument that it was improper
for the court to have awarded damages to REC on the
basis of gross negligence because Connecticut does
not recognize gross negligence as separate and distinct
from ordinary negligence. Although we certainly agree
that Connecticut courts have not recognized a cause
of action sounding in gross negligence, it does not nec-
essarily follow that a court, in the course of adjudicating
a negligence cause of action, is barred from recognizing
a distinction between negligent and grossly negligent
conduct. This is particularly so if, as in the present case,
it is necessary to make such a distinction in order to
determine the applicability of a contractual provision
that waives a landlord’s liability for ordinary negligence
but not for gross negligence.
As our Supreme Court has stated: ‘‘Connecticut does
not recognize degrees of negligence and, consequently,
does not recognize the tort of gross negligence as a
separate basis of liability.’’ (Emphasis added.) Hanks
v. Powder Ridge Restaurant Corp., 276 Conn. 314, 337,
885 A.2d 734 (2005). Our Supreme Court ‘‘ha[s] never
recognized degrees of negligence as slight, ordinary,
and gross in the law of torts.’’ (Internal quotation marks
omitted.) Matthiessen v. Vanech, supra, 266 Conn. 833
n.10. Accordingly, if REC had asserted a cause of action
sounding in gross negligence, and the court had permit-
ted REC to recover on such a count, Commerce Park
might have a viable appellate issue. That, however, is
not how the present case was pleaded or adjudicated.
In the underlying tort action, REC pleaded counts
sounding in negligence, common-law recklessness and
a CUTPA violation. Consistent with our Supreme
Court’s statement in Matthiessen, under count one, the
negligence count against Commerce Park, the court
was permitted to award damages on the basis of acts
or omissions that it determined fell within a full range
of negligent behavior, including, but not limited to, acts
of gross negligence. In other words, a cause of action
for negligence can encompass liability for any and all
degrees of negligence, including gross negligence.
Accordingly, it was not improper as a matter of law for
the court in the present case to have awarded damages
on the basis of a finding of gross negligence. Gross
negligence, after all, is negligence.
More importantly, the concept of gross negligence
was injected into the case by Commerce Park through
its assertion at trial and in posttrial briefs that it could
not be liable to REC because of the indemnification
provision in the lease.20 In the lease with Commerce
Park, Robbins had agreed, on her own behalf and on
behalf of REC, to indemnify Commerce Park for, inter
alia, damages caused by the overflow of water or sew-
age into any part of the premises unless such damages
were caused ‘‘by the gross negligence or willfulness’’
of Commerce Park or its agents. In order to rebut that
assertion, it was incumbent upon Robbins to convince
the court that Commerce Park’s failure to take action
to repair the known sewer problems rose beyond simple
negligence to gross negligence. See Atelier Constantin
Popescu, LLC v. JC Corp., 134 Conn. App. 731, 738–40,
49 A.3d 1003 (2012) (upholding finding of gross negli-
gence that was necessary for plaintiff to overcome negli-
gence waiver in lease). Moreover, Commerce Park’s
argument, if valid, would render meaningless and unen-
forceable the very distinction to which the parties had
agreed in the lease. See Tinaco Plaza, LLC v. Freebob’s,
Inc., 74 Conn. App. 760, 767, 814 A.2d 403 (lease is
contract and court must construe it in manner that gives
effect to every provision), cert. granted, 263 Conn. 904,
819 A.2d 840 (2003) (motion to dismiss granted Febru-
ary 4, 2004). We simply are unpersuaded by Commerce
Park’s argument that it was improper for the court to
have rendered judgment in favor of REC on its negli-
gence count against Commerce Park on the basis of
the court’s determination that Commerce Park was
grossly negligent.
2
Commerce Park also argues that it was improper for
the court to have awarded damages on the basis of
gross negligence because it was never pleaded by REC.
We are not persuaded.
It is indisputable that the pleadings establish the
framework of any legal action. ‘‘Generally, it is clear
that [t]he court is not permitted to decide issues outside
of those raised in the pleadings.’’ (Internal quotation
marks omitted.) Lynn v. Bosco, 182 Conn. App. 200,
213, 189 A.3d 601 (2018). ‘‘[I]t is imperative that the
court and opposing counsel be able to rely on the state-
ment of issues as set forth in the pleadings. . . . [A]ny
judgment should conform to the pleadings, the issues
and the prayers for relief. . . . [A] plaintiff may not
allege one cause of action and recover upon another.
. . . The requirement that claims be raised timely and
distinctly . . . recognizes that counsel should not have
the opportunity to surprise an opponent by interjecting
a claim when opposing counsel is no longer in a position
to present evidence against such a claim.’’ (Citations
omitted; internal quotation marks omitted.) Id., 214–15.
‘‘That does not necessarily mean, however, that the
absence of a particular claim from the pleadings auto-
matically precludes a trial court from addressing the
claim, because a court may, despite pleading deficienc-
ies, decide a case on the basis on which it was actually
litigated and may, in such an instance, permit the
amendment of a complaint, even after the trial, to con-
form to that actuality. . . . Indeed, [our Supreme Court
has] recognized that, even in the absence of such an
amendment, where the trial court had in fact addressed
a technically unpleaded claim that was actually litigated
by the parties, it was improper for the Appellate Court
to reverse the trial court’s judgment for lack of such
an amendment.’’ (Citation omitted.) Stafford Higgins
Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715
A.2d 46 (1998).
Any argument that the court acted outside the scope
of the pleadings implicates its authority to act, which
presents a question of law over which our review is
plenary. Lynn v. Bosco, supra, 182 Conn. App. 213.
Furthermore, ‘‘[t]he interpretation of pleadings is
always a question of law for the court . . . .’’ (Internal
quotation marks omitted.) McLeod v. A Better Way
Wholesale Autos, Inc., 177 Conn. App. 423, 444, 172
A.3d 802 (2017).
In support of the present argument, Commerce Park
directs our attention to the operative complaint, noting
that although REC alleged in count one that it was
damaged by Commerce Park’s negligence, REC failed
to set forth any specific references to gross negligence
in either count one or in its prayer for relief. According
to Commerce Park, ‘‘[e]ven if this court concluded that
the trial court had the power to find [that] the negligence
waiver was operative and barred [Commerce Park’s]
negligence but not its gross negligence, the trial court
erred in that [REC] never pleaded, raised or even argued
that [Commerce Park] was grossly negligent.’’
Commerce Park’s suggestion that the court went
beyond the pleadings in awarding damages on the basis
of gross negligence is simply unfounded on this record.
First, REC recovered under a negligence theory that
was pleaded. In considering whether Commerce Park
was grossly negligent, the court simply adjudicated an
issue, inserted into the case by Commerce Park, namely,
whether REC was precluded from recovering under a
negligence theory because of the indemnification clause
in the lease. The court rejected Commerce Park’s asser-
tion in that regard. Thus, Commerce Park’s argument
that REC prevailed on a theory it did not plead borders
on the frivolous. If any pleading irregularity occurred,
it arose out of Commerce Park’s failure to allege the
indemnification clause as a special defense to REC’s
negligence count. If Commerce Park had pleaded the
indemnification clause as a special defense, REC would
have had an opportunity to file a responsive pleading
indicating that the conduct it alleged in the complaint
rose to the level of gross negligence and, thus, the
exculpatory provision did not apply. Furthermore, by
raising the negligence waiver as a defense at trial, Com-
merce Park demonstrated that it fully understood that
the issue of whether the facts alleged in the complaint
rose to the level of gross negligence was an issue to
be litigated and decided by the court. It addressed that
issue fully in its posttrial brief, never raising any claim
of pleading irregularity to the trial court. See Tedesco
v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990)
(‘‘a pleading defect cannot be a basis for setting aside
a judgment unless it has materially prejudiced the defen-
dant’’); Landry v. Spitz, 102 Conn. App. 34, 43–44, 925
A.2d 334 (2007) (‘‘in the context of a postjudgment
appeal, if a review of the record demonstrates that an
unpleaded cause of action actually was litigated at trial
without objection such that the opposing party cannot
claim surprise or prejudice, the judgment will not be
disturbed on the basis of a pleading irregularity’’).
Second, we are not persuaded that the complaint is
silent with respect to allegations of gross negligence.
It is factually correct that REC never used the words
‘‘gross negligence’’ in the complaint. Nevertheless, in
its negligence count against Commerce Park, REC
incorporated detailed factual allegations describing the
conduct of Commerce Park and RDR in response to the
sewer backups. It is axiomatic that we must ‘‘construe
pleadings broadly and realistically, rather than narrowly
and technically. . . . Although essential allegations
may not be supplied by conjecture or remote implica-
tion . . . the complaint must be read in its entirety in
such a way as to give effect to the pleading with refer-
ence to the general theory upon which it proceeded,
and do substantial justice between the parties. . . . As
long as the pleadings provide sufficient notice of the
facts claimed and the issues to be tried and do not
surprise or prejudice the opposing party, we will not
conclude that the complaint is insufficient to allow
recovery.’’ (Internal quotation marks omitted.) McLeod
v. A Better Way Wholesale Autos, Inc., supra, 177 Conn.
App. 444–45. Given that REC sought to recover on a
theory of negligence, it was sufficient for REC to
describe the acts or omissions it believed would support
a determination of liability under that count. As we
explained in part II A 1 of this opinion, general allega-
tions of negligence are legally sufficient to encompass
liability for any and all degrees of negligence, including
gross negligence. In short, the record simply does not
support Commerce Park’s argument that there was a
defect in the pleadings sufficient to warrant a reversal
and, accordingly, we reject that argument.
B
Commerce Park’s final claim challenges the court’s
calculation of the damages awarded to REC. Commerce
Park’s claim is, again, twofold. First, it argues that the
court incorrectly determined that the proper measure
of REC’s damages was its loss of the beneficial use
of the substantial improvements it had made to the
premises prior to the constructive eviction. Second, it
argues that, even if this was a proper measure of dam-
ages, the court miscalculated the amount of those dam-
ages because, in calculating the remainder of Robbins’
tenancy under the lease, the court included unexercised
options to extend the lease for two additional five year
periods. We agree with the second argument only.
Our standard of review applicable to challenges to
damages awards is well settled. As we have already
stated, ‘‘[t]he trial court has broad discretion in
determining damages. . . . The determination of dam-
ages involves a question of fact that will not be over-
turned unless it is clearly erroneous. . . . [If], however,
a damages award is challenged on the basis of a question
of law, our review [of that question] is plenary.’’ (Cita-
tion omitted; internal quotation marks omitted.) Landry
v. Spitz, supra, 102 Conn. App. 49–50. ‘‘[T]he burden
of proving damages is on the party claiming them. . . .
Damages are recoverable only to the extent that the
evidence affords a sufficient basis for estimating their
amount in money with reasonable certainty. . . . [T]he
court must have evidence by which it can calculate the
damages, which is not merely subjective or speculative
. . . but which allows for some objective ascertain-
ment of the amount. . . . This certainly does not mean
that mathematical exactitude is a precondition to an
award of damages, but we do require that the evidence,
with such certainty as the nature of the particular case
may permit, lay a foundation [that] will enable the trier
to make a fair and reasonable estimate.’’ (Citations
omitted; internal quotation marks omitted.) Weiss v.
Smulders, 313 Conn. 227, 253–54, 96 A.3d 1175 (2014).
1
Commerce Park first argues that the court utilized
the wrong measure of damages. It contends that rather
than awarding damages on the basis of REC’s loss of
the use of improvements it had made to the premises,
the court should have limited its award of damages to
the loss of the fair market value of the lease. We con-
clude that the court utilized a proper measure of
damages.21
Citing our Supreme Court’s decision in Gans v.
Olchin & Co., 109 Conn. 164, 145 A. 751 (1929), Com-
merce Park urges us to hold that the proper measure
of damages for a tenant constructively evicted from
leased premises is limited to ‘‘the difference between
the rental value of the leased premises at the time of
the eviction and the reserved rent for the unexpired
period of the lease.’’ Id., 168. Nothing in that opinion,
however, states that this is the only appropriate mea-
sure of damages in every case of constructive eviction.
It is axiomatic that the purpose of compensatory
damages is ‘‘to restore an injured party to the position
he or she would have been in if the wrong had not
been committed.’’ (Internal quotation marks omitted.)
Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248,
905 A.2d 1165 (2006). In deciding whether the court
utilized a proper measure for determining compensa-
tory damages in the present case, we find the rule set
forth in the Restatement (Second) of Property both
instructive and persuasive. Section 10.2 of the
Restatement (Second) of Property sets forth the follow-
ing rule for determining damages: ‘‘If the tenant is enti-
tled to recover damages from the landlord for his failure
to fulfill his obligations under the lease, absent a valid
agreement as to the measure of damages, damages may
include one or more of the following items as may be
appropriate so long as no double recovery is involved:
‘‘(1) if the tenant is entitled to terminate the lease
and does so, the fair market value of the lease on the
date he terminates the lease;
‘‘(2) the loss sustained by the tenant due to reason-
able expenditures made by the tenant before the land-
lord’s default which the landlord at the time the lease
was made could reasonably have foreseen would be
made by the tenant;
‘‘(3) if the tenant is entitled to terminate the lease
and does so, reasonable relocation costs;
‘‘(4) if the lease is not terminated, reasonable addi-
tional costs of substituted premises incurred by the
tenant as a result of the landlord’s default while the
default continues;
‘‘(5) if the use of the leased property contemplated by
the parties is for business purposes, loss of anticipated
business profits proven to a reasonable degree of cer-
tainty, which resulted from the landlord’s default, and
which the landlord at the time the lease was made
could reasonably have foreseen would be caused by
the default;
‘‘(6) if the tenant eliminates the default, the reason-
able costs incurred by the tenant in eliminating the
default; and
‘‘(7) interest on the amount recovered at the legal rate
for the period appropriate under the circumstances.’’
(Emphasis added.) 1 Restatement (Second), Property,
Landlord and Tenant § 10.2, pp. 338–39 (1977).
Subsection (1) of § 10.2 of the Restatement (Second)
of Property is, in essence, equivalent to the measure of
damages discussed in Gans v. Olchin & Co., supra, 109
Conn. 168. The Restatement rule, however, leaves it to
the court’s discretion to choose from any one or more
of the enumerated items in crafting a compensatory
damages award, providing only that the court must
ensure that it does not permit double recovery.
In its posttrial brief, REC claimed entitlement to dam-
ages totaling more than four million dollars on the basis
of lost business profits and its loss of use of substantial
improvements it had made to the premises. Those com-
ponents correspond, respectively, with subsections (5)
and (2) of the rule set forth in § 10.2 of the Restatement
(Second) of Property. The court found that REC had
failed to prove its lost profits claim with reasonable
certainty but was able to make a fair estimate of the
value of REC’s loss of its improvements. Consistent
with § 10.2 of the Restatement (Second) of Property,
we conclude that the court properly considered REC’s
loss of use of improvements as a component of the
damages awarded to REC.22
2
Commerce Park further argues, however, that even
if the court properly included REC’s loss of the benefi-
cial use of its improvements as a component of the
overall damages award, the court, in calculating the
amount of damages for loss of use, improperly deter-
mined the length of Robbins’ expected tenancy under
the lease, which increased the amount of the damages
awarded for the loss of use. More specifically, according
to Commerce Park, the court improperly included in
its calculations the two unexercised options to extend
the lease for a term of five years each, and this error
resulted in excessive damages awarded to REC. We
agree that the court improperly included the two option
periods in calculating damages.
As previously set forth, the determination of damages
generally involves a question of fact that we will not
overturn absent a showing that the resulting award is
clearly erroneous, meaning it is unsupported by evi-
dence in the record or, if supported, we are left with
a definite and firm conviction that a mistake has been
made. See Benedetto v. Wanat, supra, 79 Conn. App.
147. In the present case, however, our review of the
damages awarded turns largely on our construction of
the option clause in the parties’ lease. ‘‘[A] lease is a
contract,’’ and, thus, our rules governing the construc-
tion of contracts apply. Bristol v. Ocean State Job Lot
Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d
837 (2007). ‘‘[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 subject matter of the contract. . . . [If] the lan-
guage is unambiguous, we must give the contract effect
according to its terms.’’ (Internal quotation marks omit-
ted.) Kaplan v. Scheer, 182 Conn. App. 488, 496, 190
A.3d 31, cert. denied, 330 Conn. 913, 193 A.3d 49 (2018).
Accordingly, ‘‘[if] a party’s intent is expressed clearly
and unambiguously in writing . . . the determination
of what the parties intended . . . is a question of law
[over which our review is plenary].’’ (Internal quotation
marks omitted.) 19 Perry Street, LLC v. Unionville
Water Co., supra, 294 Conn. 622–23.
The following facts are relevant to our discussion.
The lease commenced on August 1, 2007. In order to
transform the premises into ‘‘a state-of-the-art eye care
center,’’ Robbins made significant improvements to the
premises that were substantially completed by the end
of 2009. The lease had a definite, initial term of fifteen
years, meaning it was set to expire on July 31, 2022.
The lease, however, also contained a provision that
provided Robbins with the option of extending the lease
for two additional five year periods upon timely written
notice to Commerce Park. Specifically, paragraph 3 of
the lease, titled ‘‘Option Terms,’’ states in relevant part:
‘‘Provided that Tenant shall have complied with each
and every obligation hereunder, and shall not be in
default of any provision of this Lease, then Tenant
shall have two (2) successive options to extend this
Lease (individually, an ‘Option’), each for a term of
five (5) years (individually, an ‘Option Term’), upon the
same terms and conditions herein set forth . . . .
These Options shall be exercised by delivery of written
notice from Tenant to Landlord, which notice must be
received by Landlord not less than six (6) months prior
to the expiration of the Term or Option Term (as appli-
cable) then existing.’’ (Emphasis added.)
Accordingly, Commerce Park had no right to refuse
the options to extend the lease ‘‘[p]rovided that’’ Rob-
bins met the stated conditions, including that she com-
plied with all of her obligations under the lease. Robbins
testified at trial that, at the time she signed the lease
in 2007, she had no intention of moving her practice.
Robbins and REC vacated the premises at the end of
June, 2015, before the expiration of the lease’s initial
term and without having exercised any option to extend
the lease beyond 2022.
To calculate the dollar value to assign to REC’s loss
of the use of the improvements it made to the premises,
the trial court utilized the following formula: the per-
centage of time that REC had lost the use of its improve-
ments, calculated by comparing the length of time of
actual use against the time that REC would have
enjoyed under the lease had Robbins not been construc-
tively evicted, multiplied by the cost of the improve-
ments. In applying that formula, the court stated: ‘‘Here,
as of April, 2015, REC had used the improvements to
the [premises] for five years and four months out of a
twenty-two year term (ten years after the completion
of the improvements plus two five year options). There-
fore, REC’s damages are 75.8 percent of the improve-
ment cost, which totals $899,190 ($1,186,267 x 75.8 per-
cent).’’23 (Emphasis added.) Commerce Park does not
challenge the formula used by the court but argues only
that it was improper for the court to have included the
two unexercised option periods in its calculations.
The record supports a finding that Robbins would
have sought to exercise the options. Robbins testified
at trial that there were ‘‘many reasons that made [the
premises] very attractive’’ to Robbins and her practice.
She also indicated that ‘‘each time you move a practice
you lose a percentage of patients . . . .’’ Further, soon
after she decided to renew her lease with Commerce
Park in 2007, Robbins expended a considerable sum of
money to hire contractors to fit out the premises for
use as a state-of-the-art surgical facility. When asked if
she had any intention of moving her business at the
time she executed the 2007 lease, Robbins responded
that she ‘‘had no intention of moving the operating
rooms or the practice.’’ She also answered in the nega-
tive when asked if she ever intended to practice medi-
cine at any location other than the premises, stating,
‘‘I was planning on staying there for my entire career.’’
Thus, it was reasonable for the court to have inferred
from Robbins’ testimony that, absent the type of prob-
lems that later arose, she would have remained there
for the full extent of the lease and that, in deciding
to invest in significant improvements to the premises,
Robbins would have considered the cost in light of the
full potential time span that she and REC expected to
utilize the improvements, which would have included
the option periods. It was a pure factual determination
for the court whether Robbins reasonably would have
exercised one or both options if Commerce Park had
not constructively evicted her and REC.
A finding that Robbins likely would have sought to
exercise the options had she and REC remained in the
premises, however, does not completely answer the
question of whether those option periods were properly
considered by the court in assessing damages. The right
to exercise the option was expressly conditioned on
Robbins having ‘‘complied with each and every obliga-
tion’’ of the lease and not being ‘‘in default of any provi-
sion’’ of the lease. By using clear and unambiguous
language that the option could be exercised ‘‘[p]rovided
that’’ the stated conditions were met, the parties sig-
naled their intent to create a condition precedent. See
EH Investment Co., LLC v. Chappo, LLC, 174 Conn.
App. 344, 360–62, 166 A.3d 800 (2017) (discussing legal
parameters of contractual conditions). If a condition
precedent to an option clause in a lease is not met,
then the right to exercise the option is extinguished.
See Brauer v. Freccia, 159 Conn. 289, 293–94, 268 A.2d
645 (1970) (lessees’ failure to pay rent for eight months
defeated their right to exercise option in lease to pur-
chase leased premises conditioned on lessees duly and
punctually fulfilling all conditions of lease).
In adjudicating the rent action, the court expressly
found that Robbins’ ‘‘[f]ailure to pay the full rental for
[five and three-quarter months] was a breach of the
lease . . . .’’ Accordingly, under any reasonable metric,
Robbins had not complied with each and every obliga-
tion under the lease.24 If a condition precedent to an
option does not occur, the option does not exist. See
Brauer v. Freccia, supra, 159 Conn. 294. Said another
way, Robbins’ breach of the lease would have precluded
her from exercising her option to extend the lease as
a matter of law.
The court provided no explanation for including the
unexercised option periods in its calculation.25 We note,
however, that the Superior Court decision on which
the court relied as a template for both awarding dam-
ages for loss of use and determining the method for
calculating those damages also included an option
period in its calculation of the length of the expected
tenancy in that case. See 31 Tobey Road, Ltd. v. Wright,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX-S (August 16, 2016). In that case, how-
ever, unlike the present case, although the tenant had
stopped paying rent, the court did not find the tenant
in breach of the lease. Further, the court in 31 Tobey
Road, Ltd., did not set forth the terms of the option
agreement in that case, and, therefore, there is no way
of determining whether the option to extend was sub-
ject to a similar condition precedent.
REC argues on appeal that the court properly
included the option periods in calculating damages
despite Robbins’ nonpayment of rent. First, REC argues
that Robbins began to withhold a portion of the rent
only after the September, 2013 flood caused by the
downspout that detached from the roof drain, and that
the court found this withholding was justified due to
the impact on REC’s business. This argument ignores,
however, the court’s ruling in part in favor of Commerce
Park in the rent action. In so doing, the court expressly
found that the withholding of rent was not justifiable
once REC had repaired the damage caused by the flood-
ing and that Robbins breached the lease by continuing
to make reduced rent payments for the five and three-
quarter months prior to the constructive eviction.
Second, REC argues that, despite the withholding of
rent, Commerce Park never terminated the lease or
sought to evict Robbins and REC. That fact alone, how-
ever, does not change the legal significance of Robbins’
breach of the lease as it related to extinguishing her
right to exercise the lease option. There is no language
in the option provision or elsewhere in the lease that
required Commerce Park to seek to terminate the lease
in response to a breach by Robbins in order to avoid
waiving the agreed upon condition precedent of the
option provision.
On the basis of the record before us, we conclude
that the court improperly included the two unexercised
option periods in calculating the expected length of the
tenancy because doing so was legally inconsistent with
the express terms of the lease and its finding that Rob-
bins breached the lease. Because the record contains
all of the facts necessary to determine the proper
amount of damages, it is unnecessary to remand the
matter for a new hearing in damages to calculate the
amount of damages due to REC on the basis of its loss
of use of its improvements. On the basis of the trial
court’s findings, after the improvements were com-
pleted, REC had use of those improvements for five
years and four months out of the twelve years and seven
months remaining of the fifteen year original lease term.
Under the formula utilized by the court, REC, therefore,
is entitled to 57.6 percent of the cost of improvements,
or $683,289.79. Added to the additional damages
awarded, the total damages award in the tort action
is $741,847.34.
In AC 41398, the judgment is reversed only with
respect to the court’s calculation of damages, and the
matter is remanded for a new hearing limited to a deter-
mination of the amount of rent owed by Robbins to
Commerce Park; the judgment is affirmed in all other
respects. In AC 41543, the judgment is reversed only
with respect to the amount of damages awarded and
the case is remanded with direction to render judgment
in favor of REC in the amount of $741,847.34; the judg-
ment is otherwise affirmed.
In this opinion the other judges concurred.
1
To avoid confusion, we will refer to the parties throughout this opinion
by their names rather than their party designations, which differed in the
underlying actions.
2
Although Commerce Park and RDR jointly filed their appeal in the tort
action, the claims on appeal are raised solely by Commerce Park.
3
The court ruled in favor of RDR on all counts, and REC has not challenged
that aspect of the judgment in the tort action on appeal.
4
The parties filed a joint trial management report in which they set forth
a detailed list of facts that they stipulated were not in dispute.
5
The lease provided for yearly increases in the base rental rate tied to
the consumer price index. The monthly basic rental payments during the
time period for which Commerce Park sought unpaid rents ranged from
$18,613.23 to $18,929.83.
6
The parties stipulated in their joint trial management report that the
contractor hired by REC to remodel the premises was paid $1,035,479, which
the court found ‘‘probably does not include the full cost of fitting out the
operating rooms, which Robbins estimated cost in excess of $1,000,000.’’
In calculating damages for loss of use of the improvements, however, the
court opted to use the improvement cost listed on REC’s tax return of
$1,186,267, ‘‘rather than the unsubstantiated and unsupported $2,000,000
improvement cost estimated by Robbins or the lower contractor cost stipu-
lated by the parties.’’
7
The court found that, although the roof was in poor condition and likely
leaked, the September, 2013 incident was not the result of poor maintenance
or a failure to repair the roof or failing components.
8
In its recitation of the facts, the court states that, after October, 2014,
when REC reoccupied the previously untenantable portions of the premises,
the optical shop and LASIK center remained closed. That statement arguably
conflicts with the court’s determination that there was no basis for REC to
have continued with its reduction in rent for the period beginning in Novem-
ber, 2014, until the sewer incursions commenced at the end of April, 2015.
Robbins, however, does not raise this potential misstatement in support of
her claim that the court improperly awarded Commerce Park full rent for
that period. We limit our review to the arguments as raised and framed by
the parties, which are that the former administrative office space remained
unusable as office space during the more than five month period prior to
the first sewage backup, and that the inability to use the office space justified
Robbins’ continued withholding of rent.
9
The court additionally found that ‘‘[a]fter REC abandoned the [premises],
there is no evidence of any repairs or remediation efforts by RDR or [Com-
merce Park] other than to snake the line to remove the specific clog that
caused the backup. There was no evidence of any repairs to the sewer
system in response to the June 29, 2015 notice of violation, although there
is evidence the [premises were] cleaned and the specific clog was removed.
If there were repairs, they were not done by the outside sewer contractor.
What work was done was likely [performed] by RDR’s maintenance person-
nel. There is no evidence the [premises were] fit to be occupied after the
June 29, 2015 incident, and apparently, the entire lower floor was left vacant.
In October, November and December, 2016, while the lower space was
vacant and its fixtures unused, there were other major problems with the
sewer system, as sewage once again backed up into the [premises].’’ (Foot-
note omitted.)
10
The court noted that there was no evidence that Commerce Park ever
remedied the problems with the building’s sewer system even after REC
vacated the premises and that Commerce Park had engaged in only ‘‘a
sporadic and desultory effort to market the [premises].’’
11
The court indicated that although the leaks caused by toilets overflowing
on upper floors were disruptive, they did not provided a valid basis for the
abatement of rent because they were not severe enough to support a finding
that the premises were rendered untenantable, either in whole or in part.
12
The court reasoned: ‘‘[Commerce Park] probably anticipated there
would be a sewer backup from time to time that either its maintenance
crew or its sewer contractor could handle. [Commerce Park] probably did
not anticipate the devastating series of sewage floods in the spring and
summer of 2015 that culminated in the [premises] being shut down by the
health department in late June, [2015]. [Commerce Park’s] failure to remedy
the defects in the sewer pipes within a reasonable period after the April,
2015 video inspection revealed multiple sags in the main sewer line and its
failure to thoroughly clean the [premises] after the floods leading to mold
infestation would be reckless conduct, but by that time, REC had already
vacated the [premises] and, so, has no claim.’’
13
Whether Connecticut should abandon the ‘‘cigarette rule’’ as the appro-
priate standard for determining unfairness under CUTPA in light of the
federal courts’ abandonment of that rule in favor of the ‘‘substantial unjusti-
fied injury test’’ remains an open question. Artie’s Auto Body, Inc. v. Hartford
Fire Ins. Co., 317 Conn. 602, 622 n.13, 119 A.3d 1139 (2015). That issue,
however, is not before us in the present appeals and cross appeal.
14
Subsequent to judgment, REC also sought and was granted a prejudg-
ment remedy of attachment against Commerce Park. The prejudgment rem-
edy later was modified and is the subject matter of a separate appeal by
Commerce Park (AC 42375).
15
We note that Robbins and REC never filed a motion for articulation nor
did they challenge the court’s determination regarding back rent in REC’s
postjudgment motion for reargument and reconsideration.
16
The court found that the intended use of the premises was as ‘‘a medical
office and operating rooms.’’
17
November, 2014, through April, 2015, represents a period of six calendar
months. Although the court indicates in its memorandum that it multiplied
the monthly rent by five and then subtracted one-quarter month’s rent in
order to properly account for the last week of April, 2015, the numbers
used by the court demonstrate that it correctly used a period of six months,
less one week, in calculating the amount of unpaid rent at issue.
18
Nothing in our discussion of the evidence should be construed as binding
on the trial court that makes the final determination of the correct amount
of damages to award on remand. We discuss the evidence only to illustrate
why we firmly and definitely believe that the court made a mistake in its
calculation of damages.
19
Although Commerce Park points to other testimony that it believes
indicates that Robbins had decided to leave prior to the first sewage backup,
the trial court, as the trier of fact, was ‘‘free to weigh conflicting evidence
and to accept some, all or none of the testimony that [was] before it.’’ Stein
v. Tong, 117 Conn. App. 19, 30, 979 A.2d 494 (2009). Thus, the mere presence
of conflicting evidence will not suffice to render a court’s factual findings
clearly erroneous; rather, there must be an absence of supporting evidence.
20
Commerce Park never raised the indemnification provision as a special
defense to the negligence count. See part II A 2 of this opinion. Rather, the
issue was first asserted before the court during the direct examination of
Commerce Park’s principal, Robert Russo.
21
REC argues that Commerce Park waived its right to raise this claim
because it was not raised at trial or in the motion for reargument and
reconsideration filed by Commerce Park and RDR. We do not agree.
22
We note that appellate courts in other jurisdictions have relied on subsec-
tion (2) of § 10.2 of the Restatement (Second) of Property and its accompa-
nying commentary in affirming an award of damages to a commercial tenant
on the basis of loss of use of leasehold improvements following a construc-
tive eviction. See, e.g., Reisterstown Plaza Associates v. General Nutrition
Center, Inc., 89 Md. App. 232, 240, 597 A.2d 1049 (1991).
23
As previously indicated, the court found that the improvements were
completed by the end of December, 2009. Therefore, when Robbins was
constructively evicted at the end of April, 2015, REC had used the improve-
ments it made to the premises for a period of approximately five years and
four months, as indicated by the court. The court further indicated that this
period of use was ‘‘out of a twenty-two year term,’’ which, as set forth in
the parenthetical that follows, included the two five year option periods. In
order for the math to work, the court necessarily must have computed
that twelve years remained of the original fifteen year lease term after the
improvements were completed, not ten years as the court stated in the
parenthetical. Further, it is manifest from the percentage used by the court
in its mathematical calculation that it used a twelve year period rather than
a ten year period in determining the total potential period for which REC
would have had use of the improvements. Nevertheless, on the basis of the
dates found by the court, we calculate that twelve years and seven months
remained under the original fifteen year lease term after the improvements
were completed. Accordingly, we use twelve years and seven months in
our recalculation of the damages owed to REC for loss of use.
24
In Pack 2000, Inc. v. Cushman, 311 Conn. 662, 680, 89 A.3d 869 (2014),
the Supreme Court clarified that ‘‘when an option is conditioned on a lessee’s
compliance with a lease, in the absence of explicit contractual language to
the contrary, a substantial rather than strict compliance standard applies
so that, if the lessee is not in material breach of the lease when he seeks
to exercise the option and has not previously been defaulted under the
terms of the lease, the option is enforceable against the lessor.’’ Under the
circumstances of the present case, there can be no doubt that Robbins’
decision to pay only one half of the rent due under the lease for a period
of more than five months was a material breach of the lease.
25
We note that this issue was directly raised to the court by Commerce
Park in the motion for reconsideration and reargument filed by Commerce
Park and RDR. Commerce Park argued that ‘‘the [c]ourt’s finding that the
tenant owed full rent for a period of five and three-quarter months constitutes
a finding that the tenant was in default, which alone would preclude the
exercise of the option. In the absence of proof that the conditions precedent
for exercise of the options were met, the options can never be operative.’’
The court denied the motion without acknowledging or addressing Com-
merce Park’s argument.