Robbins Eye Center, P.C. v. Commerce Park Associates, LLC ( 2022 )

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ROBBINS EYE CENTER, P.C. v. COMMERCE
PARK ASSOCIATES, LLC, ET AL.
(AC 44657)
Moll, Clark and DiPentima, Js.
Syllabus
The plaintiff sought to recover damages from the defendant property owner,
C Co., and its property manager, R Co., for, inter alia, damages incurred
as a result of the defendants’ alleged negligent failure to maintain certain
real property in a reasonably safe condition. R, the sole shareholder of
the plaintiff, and C Co. entered into a lease for a portion of one of C
Co.’s commercial buildings. Although not a party to the lease, the plaintiff
occupied the leased premises. The plaintiff initiated the present action,
and the trial court rendered judgment in its favor solely with respect to
its negligence claim against C Co., determining that C Co. had committed
gross negligence and awarding the plaintiff damages, from which C Co.
appealed to this court. Thereafter, the trial court granted the plaintiff’s
application for a prejudgment remedy to secure its judgment, authorizing
the plaintiff to attach C Co.’s real and personal property and to garnish
any and all debts due and obligations owed to C Co. After determining
that the real property subject to the prejudgment remedy order was
encumbered by a mortgage that exceeded the property’s fair market
value, the plaintiff filed a motion to modify, seeking authorization to
garnish an account receivable owed to C Co. by R Co. The trial court
sustained the defendants’ objection to the motion, determining that
permitting the plaintiff to garnish the account receivable would be con-
trary to the source of recovery limitation provision of the lease. There-
after, in response to the plaintiff’s motion to reargue and reconsider
the court’s order sustaining the defendants’ objection, the trial court
vacated its prior ruling and granted the plaintiff’s motion to modify. The
court ordered that the plaintiff was authorized to garnish the account
receivable, that payments made thereafter on the account receivable
would be held in escrow, and that the escrowed funds could be released
only following written authorization of the parties or a court order.
Subsequently, this court reversed a portion of the initial judgment ren-
dered in favor of the plaintiff, only with respect to the amount of damages
awarded and remanded the case to the trial court with direction to
render judgment in the plaintiff’s favor in a reduced amount. On remand,
the trial court rendered judgment in the plaintiff’s favor on its negligence
claim against C Co. in accordance with a stipulation executed by the
parties, which provided that judgment should enter in the plaintiff’s
favor in a reduced amount. Thereafter, the plaintiff filed a motion seeking
to compel C Co. to deliver to the plaintiff all funds held in escrow and
any future payments received on the account receivable. The trial court
granted the plaintiff’s motion to compel, and the defendants appealed
to this court. Held that the trial court did not err in granting the plaintiff’s
motion to compel because the source of recovery limitation provision
of the lease did not preclude the plaintiff from collecting the escrowed
funds and payments at issue: the lease’s source of recovery limitation
provision provided, in clear and unambiguous terms, that such provision
applied only to R as the tenant and, in contrast to certain other provisions
of the lease, did not include language extending its applicability to all
entities related to R; moreover, the plaintiff’s negligence claim against C
Co. was not subject to the lease’s source of recovery limitation provision
because, by its clear language, that provision applied only to a breach
or default by C Co. with respect to its obligations under the lease, and
the plaintiff was not a party to the lease and did not assert a claim
thereunder but, rather, asserted a tort claim sounding in negligence
based on C Co.’s breach of its common-law duty to maintain its property
in a reasonably safe condition; furthermore, the defendants’ reliance on
the lease’s negligence waiver and jury trial waiver provisions and the
trial court’s construction thereof to support its argument that the plaintiff
and its negligence claim were subject to the source of recovery limitation
was misplaced, as those provisions contained language extending their
applicability to the plaintiff and its claim, which language was absent
from the lease’s source of recovery limitation provision.
Argued February 14—officially released May 10, 2022
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of Fairfield
and tried to the court, Krumeich, J.; thereafter, the
court, Krumeich, J., granted the plaintiff’s application
for a prejudgment remedy; subsequently, the court,
Hon. George N. Thim, judge trial referee, granted the
plaintiff’s motion to modify the prejudgment remedy
order; thereafter, the court, Krumeich, J., rendered
judgment in part for the plaintiff, from which the defen-
dants appealed to this court, Lavine, Prescott and Eve-
leigh, Js., which reversed the trial court’s judgment only
with respect to the amount of damages awarded and
remanded the case to the trial court with direction to
render judgment in the plaintiff’s favor; subsequently,
on remand, the court, Krumeich, J., rendered judgment
in the plaintiff’s favor on its negligence claim against
the named defendant in accordance with a stipulation
executed by the parties; thereafter, the court, Stevens,
J., granted the plaintiff’s motion to compel, and the
defendants appealed to this court. Affirmed.
Joseph DaSilva, Jr., with whom, on the brief, was
Colin B. Connor, for the appellants (defendants).
Aaron A. Romney, with whom, on the brief, was
James M. Moriarty, for the appellee (plaintiff).
Opinion
MOLL, J. The defendants, Commerce Park Associ-
ates, LLC (Commerce Park), and RDR Management,
LLC (RDR), appeal from the judgment of the trial court
granting a postjudgment motion of the plaintiff, Robbins
Eye Center, P.C., seeking an order compelling Com-
merce Park to deliver to the plaintiff’s counsel certain
escrowed funds and future payments received by Com-
merce Park vis-à-vis an account receivable. The disposi-
tive issue raised by the defendants on appeal is whether
a provision in a commercial lease executed by Com-
merce Park and Kim Robbins, who owns the plaintiff
and is a nonparty to this matter, precludes the plaintiff
from collecting the escrowed funds and payments at
issue. We conclude that the lease provision does not
bar the plaintiff’s collection efforts, and, therefore, we
affirm the judgment of the trial court.
The following facts, as drawn from this court’s opin-
ion in Commerce Park Associates, LLC v. Robbins, 193
Conn. App. 697, 220 A.3d 86 (2019), cert. denied sub
nom. Robbins Eye Center, P.C. v. Commerce Park Asso-
ciates, LLC, 334 Conn. 912, 221 A.3d 447 (2020), and
cert. denied sub nom. Robbins Eye Center, P.C. v. Com-
merce Park Associates, LLC, 334 Conn. 912, 221 A.3d
448 (2020), and procedural history are relevant to our
resolution of this appeal. Robbins is an ophthalmologist
and the sole shareholder of the plaintiff, which operates
an ophthalmological and surgical practice. Id., 702, 704.
In 1995, Robbins began leasing space in the lower level
of a commercial building in Bridgeport owned by Com-
merce Park. Id., 704. Pursuant to a lease executed on
August 1, 2007 (lease), Robbins rented the entire lower
level of the building, consisting of 20,750 square feet
(leased premises). Id., 704–705. Robbins then spent
$1,186,267 to remodel the leased premises, turning them
into a ‘‘state-of-the-art eye care center, complete with
a surgical center with two operating rooms certified by
the state for optical surgery . . . a LASIK facility, and
an optical shop.’’ (Internal quotation marks omitted.)
Id., 706. Although Robbins was a party to the original
and all subsequent leases, the leased premises were
occupied by the plaintiff. Id., 704.
In 2016, the plaintiff commenced the underlying action
against the defendants.1 The plaintiff’s operative com-
plaint asserted claims sounding in negligence against
the defendants; common-law recklessness against Com-
merce Park only; and violations of the Connecticut
Unfair Trade Practices Act, General Statutes § 42-110a
et seq., against the defendants. The plaintiff’s claims
were predicated on events that transpired prior to June
30, 2015, when the plaintiff and Robbins vacated the
leased premises, including a major flooding incident in
2013 that caused substantial damage to the plaintiff’s
equipment, materials, and work spaces, and sewage
issues in 2015 that resulted in sewer water and waste
flooding the leased premises. See Commerce Park Asso-
ciates, LLC v. Robbins, supra, 193 Conn. App. 706–708.
On February 6, 2018, following a seven day trial in
July, 2017, the trial court, Krumeich, J., rendered judg-
ment in favor of the plaintiff on its negligence claim
against Commerce Park and against the plaintiff as to
its remaining claims. With respect to the plaintiff’s negli-
gence claim against Commerce Park, the court deter-
mined that, pursuant to a negligence waiver provision
set forth in the lease, the plaintiff had waived Commerce
Park’s liability for any ordinary negligence; however,
the provision excluded any waiver of liability for con-
duct constituting ‘‘ ‘gross negligence’ . . . .’’ The court
determined that Commerce Park had committed con-
duct that was grossly negligent and awarded the plain-
tiff $899,190 in damages, which the court later increased
to $958,041.92, plus postjudgment interest. Commerce
Park appealed from the portion of the judgment ren-
dered in the plaintiff’s favor.2 Commerce Park Associ-
ates, LLC v. Robbins, supra, 193 Conn. App. 703–704.
On February 14, 2018, the plaintiff filed an application
for a prejudgment remedy, seeking to secure the judg-
ment rendered in its favor against Commerce Park by
requesting authorization (1) to ‘‘attach sufficient prop-
erty of [Commerce Park] to secure [the judgment],
including, but not limited to, any and all of [Commerce
Park’s] real property and personal property wherever
located’’ and (2) to ‘‘garnish any and all debts due and
obligations owed to [Commerce Park] . . . wherever
held and in whatever form . . . .’’ On March 2, 2018,
Commerce Park filed an objection only as to the scope
of the relief requested by the plaintiff. Relying on para-
graph 28 (b) of the lease,3 Commerce Park argued that
the plaintiff was limited to seeking attachment of the
leased premises and/or rents or property related to the
leased premises only. On March 22, 2018, following a
hearing held on March 5, 2018, the court granted the
plaintiff’s application, determining that there was prob-
able cause to believe that the plaintiff would recover
a judgment against Commerce Park in the amount of
$1,111,328.63, which included postjudgment interest,
and authorizing the plaintiff to attach certain real prop-
erty in Bridgeport owned by Commerce Park beyond
the leased premises. In its decision, the court did not
expressly address Commerce Park’s argument predi-
cated on paragraph 28 (b) of the lease. No appeal was
taken from that decision.
On August 2, 2018, the plaintiff filed a motion to
modify the prejudgment remedy order to authorize it
to garnish an account receivable owed to Commerce
Park by RDR, which was Commerce Park’s property
manager, as the plaintiff had come to believe that the
real property subject to the prejudgment remedy order
was encumbered by a mortgage that exceeded the prop-
erty’s fair market value.4 On September 26, 2018, the
defendants filed an objection. On September 27, 2018,
following a hearing held on the same day, the court,
Hon. George N. Thim, judge trial referee, sustained the
defendants’ objection, determining that permitting the
plaintiff to garnish the account receivable ‘‘would be
contrary to the provisions of [paragraph] 28 (b) of the
[lease] . . . .’’
On October 18, 2018, the plaintiff filed a motion to
reargue and to reconsider the court’s September 27,
2018 order sustaining the defendants’ objection to the
plaintiff’s motion to modify the prejudgment remedy
order. The plaintiff argued that (1) it did not have a
fair opportunity to address the defendants’ argument
regarding paragraph 28 (b) of the lease because the
defendants had raised that argument for the first time
at the hearing on the motion to modify, and (2) as
reflected in the transcript of the March 5, 2018 hearing
held on the plaintiff’s application for a prejudgment
remedy, Judge Krumeich previously had rejected the
defendants’ reliance on paragraph 28 (b) in issuing the
prejudgment remedy order. In addition, the plaintiff
contended that enforcing paragraph 28 (b) would con-
travene public policy by exempting Commerce Park from
liability for its grossly negligent conduct. The defen-
dants did not file a written objection. On December 6,
2018, the court, Hon. George N. Thim, judge trial ref-
eree, issued an order stating that Judge Krumeich pre-
viously had determined that paragraph 28 (b) of the
lease (1) does not apply to the plaintiff, which is not a
party to the lease, (2) does not apply to a claim of gross
negligence, and (3) contravenes public policy. Agreeing
with Judge Krumeich’s interpretation of paragraph 28
(b), the court vacated its prior ruling and granted the
plaintiff’s motion to modify. On December 11, 2018, the
court ordered that (1) the plaintiff was authorized to
garnish and/or attach the account receivable, (2) pay-
ments made on the account receivable on or after Decem-
ber 6, 2018, would be held in escrow by Commerce
Park’s counsel, and (3) the funds held in escrow could
not be released without a written agreement of the
parties or a court order. That same day, Commerce
Park appealed from the court’s judgment granting the
plaintiff’s motion to modify. See Robbins Eye Center,
P.C. v. Commerce Park Associates, LLC, Connecticut
Appellate Court, Docket No. 42375 (appeal withdrawn
October 31, 2019).
On October 22, 2019, this court released its decision
reversing the portion of the February 6, 2018 judgment
rendered in favor of the plaintiff only with respect to
the amount of damages awarded and remanded the
case to the trial court with direction to render judgment
in the plaintiff’s favor in the amount of $741,847.34.
Commerce Park Associates, LLC v. Robbins, supra, 193
Conn. App. 745–46. On October 31, 2019, Commerce
Park withdrew its appeal from the judgment granting
the plaintiff’s motion to modify the prejudgment remedy
order. On February 7, 2020, the court, Krumeich, J.,
rendered judgment in the plaintiff’s favor on its negli-
gence claim against Commerce Park in accordance with
a stipulation executed by the parties, which provided
that judgment shall enter in the plaintiff’s favor in the
amount of $744,093.16, including taxable costs, and
which included a calculation of postjudgment interest.
On April 24, 2020, the plaintiff filed a motion seeking
an order compelling Commerce Park to deliver to the
plaintiff (1) all funds held in escrow pursuant to the
court’s December 11, 2018 order of garnishment and
(2) all future payments received by Commerce Park
vis-à-vis the account receivable (motion to compel).
The plaintiff stated that, per the December 11, 2018
order, either a written agreement by the parties or a
court order was necessary to release the escrowed
funds. The plaintiff further asserted that Commerce
Park did not agree to the release of the funds on the
basis of its position that paragraph 28 (b) of the lease
restricted the source of the plaintiff’s recovery to the
leased premises. The plaintiff maintained that Com-
merce Park’s argument predicated on paragraph 28 (b)
previously had been rejected by Judge Krumeich and
Judge Thim in deciding, respectively, its application for
a prejudgment remedy and its motion to modify the
prejudgment remedy order. On July 8, 2020, the defen-
dants filed an objection, arguing that paragraph 28 (b)
prohibited the plaintiff from recovering the funds and
that the court’s prior rulings rejecting their reliance on
that provision, issued in the context of a prejudgment
remedy, did not constitute the law of the case as to
the plaintiff’s collection efforts. Thereafter, the plaintiff
filed a reply brief claiming, inter alia, that the defen-
dants’ argument grounded in paragraph 28 (b) was pre-
cluded by collateral estoppel or was subject to the law
of the case doctrine.
On December 29, 2020, after hearing argument from
the parties on September 22, 2020, the court, Stevens,
J., issued an order rejecting the plaintiff’s contention
that collateral estoppel or the law of the case doctrine
barred the defendants from invoking paragraph 28 (b)
of the lease as a defense to the motion to compel. In
addition, the court ordered the parties to file supple-
mental briefs to delineate further their positions regard-
ing paragraph 28 (b). The parties subsequently filed
supplemental briefs in accordance with the court’s
order. The court heard additional argument on February
22 and March 29, 2021.
On April 8, 2021, the court granted the motion to
compel. First, the court concluded that no provision of
the lease made the terms of the entire lease applicable
to the plaintiff, which was not a party to the lease,
and that paragraph 28 (b) did not contain language
extending its application to the plaintiff. The court also
determined that paragraph 28 (b), as written, applied
only to ‘‘ ‘any breach or default by [Commerce Park]
with respect to [Commerce Park’s] obligations [under
the lease]’ . . . .’’ Alternatively, assuming arguendo
that paragraph 28 (b) applied to the plaintiff and its
negligence claim against Commerce Park in this matter,
the court determined that carrying out that provision
would violate public policy because ‘‘the evidence fails
to establish that the limitations of [paragraph] 28 (b)
allow any meaningful or reasonable recovery to com-
pensate the plaintiff for the damages caused by [Com-
merce Park’s] gross negligence.’’ This appeal followed.
Additional facts will be set forth as necessary.5
The dispositive claim raised by the defendants on
appeal is that the court improperly concluded that para-
graph 28 (b) of the lease does not apply either to (1) the
plaintiff or (2) the plaintiff’s negligence claim against
Commerce Park. We disagree.6
‘‘In construing a written lease, which constitutes a
written contract, three elementary principles must be
kept constantly in mind: (1) The intention of the parties
is controlling and must be gathered from the language
of the lease in the light of the circumstances sur-
rounding the parties at the execution of the instrument;
(2) the language must be given its ordinary meaning
unless a technical or special meaning is clearly
intended; (3) the lease must be construed as a whole
and in such a manner as to give effect to every provision,
if reasonably possible. . . . A determination of con-
tractual intent ordinarily presents a question of fact for
the ultimate fact finder, although where the language
is clear and unambiguous, it becomes a question of law
for the court. . . . Furthermore, when the language of
the [lease] is clear and unambiguous, [it] is to be given
effect according to its terms. A court will not torture
words to import ambiguity [when] the ordinary meaning
leaves no room for ambiguity . . . . Similarly, any
ambiguity in a [lease] must emanate from the language
used in the [lease] rather than from one party’s subjec-
tive perception of [its] terms.’’ (Citation omitted; inter-
nal quotation marks omitted.) Cohen v. Postal Holdings,
LLC, 199 Conn. App. 312, 323–24, 235 A.3d 674, cert.
denied, 335 Conn. 969, 240 A.3d 285 (2020).
Paragraph 28 (b) of the lease provides: ‘‘In the event
of any breach or default by Landlord with respect to
any of Landlord’s obligations hereunder, it is agreed
and understood that Tenant shall look solely to the estate
and property of Landlord in the Demised Premises7 for
the satisfaction of Landlord’s remedies,8 including the
collection or a judgment (or other judicial process)
requiring the payment of money by Landlord, and no
other property or assets of Landlord shall be subject
to levy, execution or other enforcement procedure for
the satisfaction thereof. The provisions of this [p]ara-
graph 28 (b) are not for the benefit of any insurance
company or any other third party.’’ (Footnotes added.)
The introductory clause of the lease defines Robbins
as the ‘‘Tenant,’’ and, moreover, Robbins signed the lease
as the ‘‘Tenant.’’9
We conclude that the lease, in clear and unambiguous
terms, provides that the source of recovery limitation
contained in paragraph 28 (b) applies only to the ‘‘Land-
lord,’’ that is, Commerce Park, and to the ‘‘Tenant,’’
who is expressly defined in the lease as Robbins. By
comparison, other provisions of the lease contain lan-
guage referring to entities related to Robbins, such as
the plaintiff. For instance, paragraph 16 (b), which we
discuss in more detail subsequently in this opinion,
addresses Commerce Park’s liability to the ‘‘Tenant, or
any person, firm or corporation claiming by, through,
or under Tenant . . . .’’ Another example is paragraph
25 (b) (ii), which, for purposes of a specific provision
of the lease unrelated to paragraph 28 (b), expands the
definition of ‘‘Tenant’’ to mean ‘‘any person, firm or
entity controlled by, under common control with, or
controlling . . . the Tenant under [the lease] . . . .’’
Put simply, in light of the lease as a whole, the plaintiff
is not subject to the terms of paragraph 28 (b).
In addition, the clear and unambiguous terms of the
lease provide that paragraph 28 (b) applies ‘‘[i]n the
event of any breach or default by Landlord with respect
to any of Landlord’s obligations hereunder’’; (emphasis
added); that is, under the lease. In the present matter,
the plaintiff, a nonparty to the lease, did not assert a
claim against Commerce Park predicated on a breach
of the lease; rather, it asserted a tort claim sounding
in negligence on the basis of Commerce Park’s breach
of its common-law duty to maintain its property in a
reasonably safe condition.10 Accordingly, we conclude
that the plaintiff’s negligence claim against Commerce
Park is not subject to the source of recovery limitation
set forth in paragraph 28 (b).
The defendants rely on paragraphs 16 (b) and 30.3
of the lease, as well as prior rulings by the trial court
interpreting those provisions, to support their con-
tention that the plaintiff and its negligence claim against
Commerce Park are subject to paragraph 28 (b). The
defendants’ reliance on these other lease provisions
and related court rulings is misplaced.
Paragraph 16 (b) of the lease provides in relevant part:
‘‘Tenant . . . covenants and agrees that unless caused
by the gross negligence or willfulness 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 . . . .’’ The
defendants highlight that Judge Krumeich, in rendering
judgment in the plaintiff’s favor on its negligence claim
against Commerce Park, determined that the plaintiff
had waived Commerce Park’s liability for ordinary neg-
ligence pursuant to paragraph 16 (b). By its express
terms, however, the negligence waiver set forth in para-
graph 16 (b) applies not only to Robbins as the ‘‘Tenant,’’
but also to ‘‘any person, firm or corporation claiming
by, through, or under Tenant . . . .’’ That language,
which is absent from paragraph 28 (b), plainly includes
the plaintiff, of which Robbins is the sole shareholder.
Thus, paragraph 16 (b) and Judge Krumeich’s construc-
tion of that provision do not support the defendants’
position.
Paragraph 30.3 of the lease provides: ‘‘To the extent
permitted by applicable law, Landlord and Tenant hereby
waive trial by jury in any action proceeding or counter-
claim brought by either against the other on any matter
whatsoever arising out of or in any way connected with
[the lease], the relationship of Landlord and Tenant, or
Tenant’s use or occupancy of the Demised Premises, or
any emergency or other statutory remedy with respect
thereto.’’ The defendants note that in 2017, the court,
Radcliffe, J., struck a claim for a jury trial filed by the
plaintiff on the ground that paragraph 30.3 applied to
bar the jury trial claim. Even assuming that paragraph
30.3 applies to both Robbins and the plaintiff, the lan-
guage of paragraph 30.3 providing that the provision
applies to ‘‘any matter whatsoever arising out of or in
any way connected with [the lease]’’ is significantly
broader than the language of paragraph 28 (b), which
applies ‘‘[i]n the event of any breach or default by Land-
lord with respect to any of Landlord’s obligations [under
the lease] . . . .’’ The plaintiff’s negligence claim, pred-
icated on Commerce Park’s common-law duty to main-
tain its premises in a reasonably safe condition, falls
outside of the parameters of paragraph 28 (b). Accord-
ingly, the defendants’ argument predicated on para-
graph 30.3 and Judge Radcliffe’s ruling fails.
In sum, we reject the defendants’ contention that
paragraph 28 (b) of the lease prohibits the plaintiff from
recovering the escrowed funds and payments sought
as relief in the motion to compel. Accordingly, we con-
clude that the court did not err in granting the motion
to compel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In 2014, Commerce Park commenced a separate action against Robbins
to recover back rent. See Commerce Park Associates, LLC v. Robbins,
Superior Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S
(rent action). The rent action was consolidated with the underlying action
for trial. In 2018, judgment was rendered in part in favor of Commerce Park
in the rent action. See Commerce Park Associates, LLC v. Robbins, supra,
193 Conn. App. 712–13. Subsequently, this court reversed the judgment
rendered in the rent action only as to the calculation of damages and
remanded the matter for a new hearing limited to a determination of the
amount of rent owed by Robbins to Commerce Park. Id., 745. On remand,
the trial court, Krumeich, J., rendered judgment in the rent action in accor-
dance with a stipulation executed by Commerce Park and Robbins. That
judgment is not at issue in this appeal.
2
Although Commerce Park and RDR jointly filed their appeal, the claims
were raised solely by Commerce Park. Commerce Park Associates, LLC v.
Robbins, supra, 193 Conn. App. 703 n.2.
3
Paragraph 28 (b) of the lease provides in relevant part: ‘‘In the event of any
breach or default by Landlord with respect to any of Landlord’s obligations
hereunder, it is agreed and understood that Tenant shall look solely to the
estate and property of Landlord in the Demised Premises for the satisfaction
of Landlord’s remedies . . . .’’
4
The plaintiff also sought to modify the prejudgment remedy order to
allow it to attach a certain account containing funds to secure a judgment
rendered in a separate action filed by Commerce Park against Robbins to
recover back rent. See footnote 1 of this opinion. The parties subsequently
executed a stipulation, which was approved by the court, Hon. George N.
Thim, judge trial referee, authorizing the plaintiff to attach and/or garnish
that account but prohibiting the release of the funds without a written
agreement of the parties or a court order.
5
On February 10, 2022, we issued an order, sua sponte, instructing the
parties to be prepared to address at oral argument the issue of ‘‘whether
this appeal is subject to the jurisdictional time period set forth in General
Statutes § 52-278l (b). See Ambroise v. William Raveis Real Estate, Inc.,
226 Conn. 757, 764–67, 628 A.2d 1303 (1993).’’ Section 52-278l (b) sets forth
a seven day limitation period with respect to an appeal from an order (1)
granting or denying a prejudgment remedy following a hearing under General
Statutes § 52-278d, (2) granting or denying a motion to dissolve or modify
a prejudgment remedy under General Statutes § 52-278e, or (3) granting or
denying a motion to preserve an existing prejudgment remedy under General
Statutes § 52-278g. At oral argument, the parties’ respective counsel both
argued that the jurisdictional time period of § 52-278l (b) did not apply to
this appeal taken from the court’s granting of the plaintiff’s postjudgment
motion to compel. Upon additional reflection, and particularly in light of
the December 11, 2018 order that the funds held in escrow could not be
released without a written agreement of the parties or a court order, we
agree and conclude that this appeal is not subject to the jurisdictional time
period of § 52-278l (b).
6
The defendants also claim on appeal that the court improperly (1) deter-
mined that Commerce Park’s real property subject to the prejudgment rem-
edy order, including the leased premises, had a de minimis value, (2) made
a determination as to the value of Commerce Park’s real property without
having any proper evidence before it or conducting an evidentiary hearing,
and (3) concluded that paragraph 28 (b) of the lease, if applicable, violated
public policy under the circumstances of this case. Our conclusion that
paragraph 28 (b) does not apply either to the plaintiff or to its negligence
claim against Commerce Park is dispositive of this appeal, and, accordingly,
we need not address the merits of the defendants’ remaining claims.
7
Pursuant to paragraph 1 of the lease, ‘‘ ‘Demised Premises’ ’’ refers to
the 20,750 square foot space leased by Robbins from Commerce Park, includ-
ing the right to use certain rights of way and parking areas in common with
Commerce Park’s other tenants.
8
In their principal appellate brief, the defendants represent that the use
of the phrase ‘‘ ‘Landlord’s remedies’ ’’ in this instance, rather than ‘‘ ‘Tenant’s
remedies,’ ’’ is a typographical error. The plaintiff, in its appellate brief, does
not address this apparent discrepancy.
9
The introductory clause of the lease defines Commerce Park as the
‘‘Landlord.’’ The parties do not appear to dispute that ‘‘Landlord’’ as used
in paragraph 28 (b) means Commerce Park.
10
Quoting Atelier Constantin Popescu, LLC v. JC Corp., 134 Conn. App.
731, 757, 49 A.3d 1003 (2012), in rendering judgment in the plaintiff’s favor
on its negligence claim against Commerce Park, Judge Krumeich stated that
‘‘[t]here is no question that a duty of care may arise out of a contract, but
when the claim is brought against a defendant who is not a party to the
contract, the duty must arise from something other than mere failure to
perform properly under the contract.’’ (Internal quotation marks omitted.)
Judge Krumeich determined that Commerce Park violated its obligations
to make certain repairs pursuant to the lease and its common-law duty.
Moreover, in a footnote, Judge Krumeich observed that the plaintiff, as a
nonparty to the lease, could not bring an action for breach of the lease or
breach of the covenant of good faith and fair dealing.