Fernwood Realty, LLC v. Aerocision, LLC. , 166 Conn. App. 345 ( 2016 )

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FERNWOOD REALTY, LLC v. AEROCISION, LLC
(AC 37627)
DiPentima, C. J., and Keller and Prescott, Js.
Argued February 1—officially released June 21, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Jeffrey J. White, with whom were Kathleen E. Dion
and, on the brief, Sorell E. Negro, for the appellant
(defendant).
Hugh D. Hughes, with whom was Stephen R. Shee-
han, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, AeroCision, LLC,
appeals from the judgment, rendered after a court trial,
in favor of the plaintiff, Fernwood Realty, LLC. On
appeal, the defendant claims that the court (1) errone-
ously concluded that it had committed statutory theft
of components from an electrical distribution system
because the defendant was the rightful owner of those
components, and that there was no evidence to support
the defendant’s good faith belief that it owned those
components, (2) erred in its interpretation of a commer-
cial lease, and (3) misapplied the legal standard with
respect to the defendant’s constructive eviction coun-
terclaim. We affirm the judgment of the trial court.
The following procedural history is relevant to this
appeal. The plaintiff’s operative amended complaint,
filed on January 11, 2010, alleged, inter alia, that the
defendant committed statutory theft in violation of Gen-
eral Statutes § 52-564 and breached its contract by
defaulting on a commercial lease.1 The defendant filed
an answer, special defenses, and a counterclaim. Rele-
vant to this appeal are counts one and two of the coun-
terclaim, which sought to recover damages for the
plaintiff’s alleged breach of the terms of a commercial
lease, and count six, which alleged that the plaintiff
constructively evicted the defendant.
A bench trial was conducted over six nonconsecutive
days, beginning on June 19, 2014, and ending on July
31, 2014. After the court, Aurigemma, J., reviewed the
parties’ proposed statements of fact, posttrial briefs,
and replies to the posttrial briefs, it issued its memoran-
dum of decision on December 18, 2014. The court ren-
dered judgment in favor of the plaintiff on its statutory
theft and breach of contract counts, and it rendered
judgment in favor of the plaintiff on all counts of the
defendant’s counterclaim.2
The following facts, as found by the court, are rele-
vant to this appeal. Donald F. Woods (Donald) acquired
167 Elm Street (property), a commercial manufacturing
building in Old Saybrook, in 1984.3 The bus ducts,4
branch feeders,5 and transformer (electrical compo-
nents) that formed the basis for the plaintiff’s statutory
theft claim were installed in 1990. On November 30,
2001, Donald, Jeffrey D. Woods (Jeffrey), his son, and
Barbara A. Woods (Barbara), his daughter, quitclaimed
their interest in the property6 to a three member limited
liability company, the plaintiff, of which they were each
a member. After the plaintiff acquired ownership of the
property, it leased the property to an entity that the
Woods family members owned, Pye & Hogan Machine
Company, Inc. (Pye & Hogan), for $17,000 per month.
Starting in 2004, Jeffrey and Donald began negotia-
tions to sell Pye & Hogan to Patrick G. Bromley, a Texas
businessman who had ‘‘engaged in extensive business
investments on behalf of a large employer and . . . on
his own behalf.’’ On May 5, 2005, the sale was finalized,
and Pye & Hogan sold many of its assets, including its
personal property, to Pye & Hogan, LLC, through an
asset purchase agreement (agreement). On the follow-
ing day, the plaintiff and Pye & Hogan, LLC, entered
into a lease agreement (lease) in which Pye & Hogan,
LLC, would rent the property for sixty months, ending
on May 6, 2010, for the amount of $17,000 per month.
Shortly after signing the lease, Pye & Hogan, LLC,
changed its name to AeroCision, LLC, the defendant in
this matter.
In December, 2009, the defendant notified the plain-
tiff that it was vacating the property. It alleged that
it had been constructively evicted because of ‘‘water
intrusion’’ and a nonfunctioning toilet. Additionally, the
defendant alleged that Donald threatened its employees
with violence, which left it ‘‘no choice but to vacate the
property to protect its employees.’’7 (Internal quotation
marks omitted.) The plaintiff responded in a letter stat-
ing that the defendant was not to remove various items
from the property, including the electrical components.
Afterward, the plaintiff filed its original complaint on
December 14, 2009. In conjunction with its original com-
plaint, the plaintiff sought an ex parte temporary injunc-
tion ordering the defendant not to remove items that
belonged to the plaintiff, namely, ‘‘fire alarm and fire
suppression systems, electric [bus] ducts and electrical
raceway, electrical panels, electrical conduit, mounted
and attached fixtures and light fixtures, electrical
boxes.’’ The plaintiff’s ex parte temporary injunction
was denied that same day.8
During the process of removing items from the prop-
erty, the defendant changed the locks to the property.
As a result, the plaintiff could not ‘‘[oversee] in any
manner the removal of items from the property.’’ Subse-
quently, the defendant relocated the bus ducts to its
new location.9 In January, 2010, the defendant provided
the plaintiff with keys to the new locks. The plaintiff
then hired John M. Lamb10 to inspect the electrical distri-
bution system. Lamb discovered that the electrical com-
ponents were missing. He opined that it would cost
$181,300 to replace the missing electrical components.11
Additionally, the property was left in disrepair, and the
plaintiff spent $34,614.30 to repair it.
The court found that the defendant had violated § 52-
56412 and awarded the plaintiff $543,900.13 As to the
plaintiff’s breach of contract claim, it awarded the plain-
tiff $219,251.46.14 This appeal followed. Additional facts
will be set forth as required.
I
The first issue raised by the defendant on appeal
consists of two interrelated claims. It first claims that
the court improperly concluded that it had committed
statutory theft because either the court ‘‘ignored centu-
ries of legal precedent making the distinction between
‘fixtures’ and ‘trade fixtures,’ ’’ or the court’s conclusion
was ‘‘contrary to Supreme Court precedent.’’ In the
alternative, the defendant claims that it could not have
committed statutory theft because it had a good faith
belief that it owned the electrical components. We
address each claim in turn.
A
The following additional facts are necessary to pro-
vide context to the defendant’s first claim. Section 2.1
(a) (ii) of the agreement stated, in relevant part, that
Pye & Hogan would ‘‘sell, assign, transfer, convey and
deliver . . . to [the defendant], and the [defendant
would] purchase and accept . . . all of the assets,
properties . . . including all right, title and interest of
[Pye & Hogan] in . . . the personal property described
in Schedule 2.1 (a) (ii), together with the fixtures, fur-
nishings, furniture, equipment . . . [and] property
owned or leased by [Pye & Hogan], wherever located,
or acquired by [Pye & Hogan] in connection with con-
duct of the [b]usiness . . . or used by [Pye & Hogan]
in connection with the conduct of the [b]usiness . . . .’’
(Emphasis in original.) Schedule 2.1 (a) (ii) listed the
individual machinery (e.g., CNC Toyota FH45 NM6424),
the furniture and fixtures (e.g., telephone system and
equipment), the data processing equipment (e.g., print-
ers and computers), and the vehicles. Section 2.2 of the
agreement set forth that certain assets were excluded
from the sale. Schedule 2.2 (d) of the agreement listed
the excluded assets. The electrical components were
not listed in either schedule.
In the agreement, Pye & Hogan made two important
representations. First, it represented that it did not own
the real property but, rather, leased it. The relevant
portion of that provision of the agreement stated that
to Pye & Hogan’s ‘‘knowledge, each item of [l]eased
[r]eal [p]roperty ha[d] adequate Utilities . . . of a
capacity and condition to serve adequately such [r]eal
[p]roperty . . . . [T]he term ‘Utilities’ means all of the
following: water distribution and service facilities; sani-
tary sewers and associated installations . . . electrical
distribution and service facilities . . . and all other
utility lines, conduit, pipes, ducts, shafts, equipment,
apparatus and facilities.’’ (Emphasis altered.) Second,
Pye & Hogan represented that the purchased assets
‘‘constitute[d] all of the assets used in connection with
the [b]usiness . . . .’’
Jeffrey was questioned at length during trial with
respect to the electrical components. He testified that,
after a fire in 1989 destroyed the building that Pye &
Hogan had used for its business, Donald—with his own
money—bought the necessary machinery and the elec-
trical components for Pye & Hogan to continue with
the business.15 The machinery and the electrical compo-
nents were installed in a temporary location. When the
construction of the new building was completed in 1990,
the machinery and the electrical components were
installed in the property.16 Jeffrey was directly asked
who, at the time of the purchase, owned the bus ducts.
He testified that Donald owned them until Donald trans-
ferred part of his ownership interest in the property to
Jeffrey and Barbara; see footnote 6 of this opinion;
who, along with Donald, then transferred ownership to
the plaintiff.
Jeffrey was also questioned extensively by the defen-
dant’s counsel on the language of the agreement. Jeffrey
asserted that the agreement did not include the sale of
the bus ducts. In an attempt to impeach this testimony,
the defendant’s counsel had Jeffrey read the relevant
portions of the agreement discussing the assets to be
sold and the assets to be excluded. The defendant’s
counsel then took the position that because schedule
2.1 (a) (ii) was not an exhaustive list and the bus ducts
were not listed as excluded assets, the bus ducts were
part of the transaction. Jeffrey did not agree, and, on
redirect examination, he testified that it was intended
that the bus ducts installed in the property were to
be permanent.
Donald was called to testify on the fourth day of trial.
During a brief direct examination, he testified that, inter
alia, it was his intention that the electrical distribution
system installed in the property was to be permanent.
The cross-examination, which consisted of five ques-
tions relating to the property and two relating to Pye &
Hogan, did not provide additional testimonial evidence
about the electrical distribution system.
We first set forth the appropriate standard of review.
The defendant asserts that its first challenge to the
court’s conclusion that it had committed statutory theft
calls for plenary review. According to the defendant,
this court ‘‘must decide whether the trial court applied
the appropriate legal standard . . . [and] because the
material facts are not disputed, the application of the
facts to the proper legal standard is also a question
of law.’’ (Citation omitted.) Specifically, the defendant
contends that it owned the electrical components, and
the court failed to recognize that those components
were trade fixtures. Thus, it argues, the court commit-
ted error as a matter of law.17 We disagree that the
defendant’s claim merits plenary review because the
central issues of its claim are based on the court’s
factual findings that the electrical components were
fixtures and that the defendant intended to deprive the
plaintiff of its property, which are questions of fact.
‘‘The question as to whether a particular piece of
property is personalty or a fixture is a question of fact.
Vallerie v. Stonington, 253 Conn. 371, 372–73, 751 A.2d
829 (2000); Waterbury Petroleum Products, Inc. v.
Canaan Oil & Fuel Co., [193 Conn. 208, 217, 477 A.2d
988 (1984)] . . . . As such, our review . . . of this
determination by the trial court is limited to deciding
whether the findings of the trial court were clearly
erroneous. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Citations omitted; internal quotation
marks omitted.) ATC Partnership v. Windham, 268
Conn. 463, 479, 845 A.2d 389 (2004).
‘‘[W]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision; where
the factual basis of the court’s decision is challenged
we must determine whether the facts set out in the
memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings
in the whole record, those facts are clearly erroneous.
. . . It is not our function to retry cases.’’ (Citation
omitted; internal quotation marks omitted.) Waterbury
Petroleum Products, Inc. v. Canaan Oil & Fuel Co.,
supra, 193 Conn. 217.
We are also guided by the following long-standing
principles of law relevant to the defendant’s claim. ‘‘To
constitute a fixture, we must look at the character of
how the personalty was attached to real estate, the
nature and adaptation of the [personalty] to the uses
and purposes to which they were appropriated at the
time the annexation was made, and whether the
annexer intended to make a permanent accession to
the realty. . . . The character of the personal property
attached to the real estate is determined at the time
that the property is attached to the real estate.’’ (Internal
quotation marks omitted.) ATC Partnership v. Wind-
ham, supra, 268 Conn. 479–80; see also Merritt-Chap-
man & Scott Corp. v. Mauro, 171 Conn. 177, 182, 368
A.2d 44 (1976); Capen v. Peckham, 35 Conn. 88,
93–94 (1868).
This ‘‘test focuses on the objectively manifested
intent of the annexer. . . . Ordinarily, if not invariably,
the character of personal property attached to realty
is to be determined as of the date when the property
is attached. . . . The intent sought is not the subjective
intent or undisclosed purpose of the annexer, but the
intent manifested by his actions.’’ (Citations omitted;
internal quotation marks omitted.) Waterbury Petro-
leum Products, Inc. v. Canaan Oil & Fuel Co., supra,
193 Conn. 216; Lesser v. Bridgeport-City Trust Co., 124
Conn. 59, 64, 198 A. 252 (1938) (‘‘owner of the equity
is presumed to make improvements for the permanent
benefit of the property, while a mere tenant is more
likely to make them for his personal convenience’’);
Webb v. New Haven Theatre Co., 87 Conn. 129, 133, 87
A. 274 (1913) (‘‘whether [articles become] fixtures or
[remain] personal property is to be determined largely
by the intention with which they were attached, as
indicated by all the facts in the case’’); Radican v.
Hughes, 86 Conn. 536, 542, 86 A. 220 (1913) (‘‘[i]n cases
of this kind every fact and circumstance should be
considered which tends to show what intention is prop-
erly imputable to him who located the article in posi-
tion’’). ‘‘We have previously indicated that the narrow
question of intent is a question of fact, the determination
of which is not reviewable unless the conclusion drawn
by the trier is one which cannot reasonably be reached.’’
(Internal quotation marks omitted.) Waterbury Petro-
leum Products, Inc. v. Canaan Oil & Fuel Co., supra,
216–17.
Moreover, trade fixtures are distinguished from fix-
tures. A fixture installed by a tenant may be deemed a
trade fixture if it is ‘‘used . . . in connection with its
business . . . [and] without intention that [the fix-
tures] become a part of the real estate and could . . .
[be] removed without serious injury to the real estate.’’
(Internal quotation marks omitted.) Slosberg v. Cal-
lahan Oil Co., 125 Conn. 651, 653, 7 A.2d 853 (1939);
see also Griffith v. Drew’s LLC, 290 Neb. 508, 518,
860 N.W.2d 749 (2015) (‘‘[t]rade fixtures are articles
annexed to the realty by a tenant for the purpose of
carrying on trade and are ordinarily removable by [the
tenant] during [the tenant’s] term’’); 36A C.J.S. 316, Fix-
tures § 37 (2014) (‘‘to qualify as [a] trade fixture . . .
[it] must be annexed by a tenant to enable the tenant
to carry on the trade or business to which the real
property is devoted, and must be removable without
material alteration or substantial damage to the real
property to which it has been affixed’’ [footnote omit-
ted]); 35A Am. Jur. 2d 706–707, Fixtures § 33 (2010) (‘‘a
trade fixture can generally be defined as those items
of personal property annexed to the land by a tenant
for purposes of carrying on a trade or business’’); id.,
p. 707 (‘‘The doctrine of trade fixtures is limited in its
application to situations in which a landlord and tenant
relationship exists, and is not applicable in [a] case in
which the owner of land attaches fixtures to realty. An
upgraded electrical system installed in a manufacturing
facility by the seller of a building at the time the seller
was the fee simple owner of the facility thus is not a
trade fixture.’’ [Footnote omitted.]).
Turning to law relevant to a statutory theft claim,
‘‘[w]e consistently have held that [s]tatutory theft under
§ 52-564 is synonymous with larceny under General
Statutes § 53a-119. . . . A person commits larceny
within the meaning of . . . § 53a-119 when, with intent
to deprive another of property or to appropriate the
same to himself or a third person, he wrongfully takes,
obtains or withholds such property from an owner.
An owner is defined, for purposes of § 53a-119, as any
person who has a right to possession superior to that
of a taker, obtainer or withholder. . . . [S]tatutory
theft requires an intent to deprive another of his prop-
erty . . . . Therefore, statutory theft requires a plain-
tiff to prove the additional element of intent . . . .’’
(Citations omitted; internal quotation marks omitted.)
Rana v. Terdjanian, 136 Conn. App. 99, 113–14, 46 A.3d
175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).
‘‘Intent may be inferred by the fact finder from the
conduct of the defendant.’’ State v. Kimber, 48 Conn.
App. 234, 240, 709 A.2d 570, cert. denied, 245 Conn.
902, 719 A.2d 1164 (1998). We iterate that ‘‘[i]t is well
established that the question of intent is purely a ques-
tion of fact. . . . Intent may be, and usually is, inferred
from the defendant’s verbal or physical conduct. . . .
Intent may also be inferred from the surrounding cir-
cumstances. . . . The use of inferences based on cir-
cumstantial evidence is necessary because direct
evidence of the [defendant’s] state of mind is rarely
available. . . . Intent may be gleaned from circumstan-
tial evidence such as . . . the events leading up to and
immediately following the incident.’’ (Internal quotation
marks omitted.) Valencis v. Nyberg, 160 Conn. App.
777, 793, 125 A.3d 1026 (2015). Finally, the appropriate
standard of proof for claims brought pursuant to § 52-
564 is the preponderance of the evidence standard. Stu-
art v. Stuart, 297 Conn. 26, 44, 996 A.2d 259 (2010).
On appeal, the defendant claims that the court errone-
ously concluded that it had committed statutory theft.
The foundation of this claim is the defendant’s assertion
that it is the proper owner of the electrical components.
From the defendant’s perspective, Pye & Hogan bought
the machinery and the electrical components as a ‘‘bun-
dle’’ to continue with the business. Thus, the defendant
contends that, because Pye & Hogan was the tenant in
the property when the machinery and the electrical
components were installed to continue the business,
the electrical components became trade fixtures.
Moreover, the defendant relies on the agreement to
support its ownership claim. Specifically, it points out
that the electrical components were not listed as
excluded assets. The defendant also directs our atten-
tion to § 2.1 (a) (ii) of the agreement to claim that
it ‘‘acquired property not identified in the schedule,
including the fixtures . . . equipment . . . tools, sup-
plies, spare parts . . . used by [Pye & Hogan] in con-
nection with the conduct of the business.’’ (Emphasis
in original.) To summarize the defendant’s argument,
Pye & Hogan was the original owner of the electrical
components, and the electrical components became
trade fixtures when Pye & Hogan installed them in the
property. Because they were not part of the excluded
list and the defendant bought the machines (which
came as a ‘‘bundle’’ with the electrical components) for
the purpose of operating this particular business, the
defendant is the rightful owner of the electrical compo-
nents. Therefore, the defendant claims, the court erro-
neously concluded that it had committed statutory theft
because the court ‘‘ignored centuries of legal precedent
making the distinction between ‘fixtures’ and ‘trade fix-
tures’—the latter of which were undisputedly owned
by the tenant.’’ We are not persuaded.
We conclude that the court’s memorandum of deci-
sion adequately supports its conclusion that the electri-
cal components were fixtures. The court explicitly
found that in 1990 the electrical distribution system,
which included the bus ducts and branch feeders,18 was
installed in the property at a time when Donald owned
the property. It also found that in 2001, the Woods
family conveyed its interest in the property to the plain-
tiff through a quitclaim deed. Since 2001, the plaintiff,
as the owner of the property, owned the electrical distri-
bution system. The logical finding is that Donald, whom
the court implicitly found to be the sole owner of the
property in 1990, owned the electrical components
when he installed them, and the evidence produced at
trial supports this implicit finding. See 24 Leggett Street
Ltd. Partnership v. Beacon Industries, Inc., 239 Conn.
284, 300–301, 685 A.2d 305 (1996) (concluding trial
court’s implicit factual finding not clearly erroneous);
Rene Dry Wall Co. v. Strawberry Hill Associates, 182
Conn. 568, 575, 438 A.2d 774 (1980) (although trial court
did not make explicit finding of reasonableness, such
conclusion was implicit in findings and supported by
testimony). Jeffrey testified at trial that Donald bought
the machinery and the electrical components in 1989.
Although the defendant vigorously denounces this testi-
mony as ‘‘self-serving [and] conclusory,’’ the issue of
whether the witness was credible is not for this court
to determine. See Jay v. A & A Ventures, LLC, 118
Conn. App. 506, 518, 984 A.2d 784 (2009) (‘‘[i]n a case
tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to
be given specific testimony’’ [internal quotation marks
omitted]). Establishing that the court implicitly found
that Donald was the sole owner the electrical compo-
nents in 1990 does not end the analysis.
The court also found that, prior to 2005, Pye & Hogan
rented the property to manufacture aircraft engine com-
ponents. Although not explicit, it is clear that the court
reasoned that when Donald installed the electrical dis-
tribution system, including the electrical components,
it was annexed to the property to manufacture aircraft
engine components. The evidence presented at trial also
supports this finding, and the defendant agrees as much:
‘‘[F]rom 1989 to 2001, there is no dispute that the [elec-
trical components]19 were used by [Pye & Hogan] to
operate the business . . . .’’ (Footnote added.) Thus,
the electrical components were specifically adapted to
the property for the purpose of manufacturing aircraft
engine components, and the court’s finding is supported
by testimonial evidence. Jeffrey testified that without
the electrical components, the property became ‘‘no
more than just a warehouse as opposed to being an
industrial manufacturing building.’’ Further, the court’s
finding relating to the character of the annexation,
which was that the bus ducts were attached by bolts
to the electrical conduits, when viewed in light of the
court’s concomitant finding that the electrical compo-
nents were necessary to manufacture aircraft engine
components, militates in favor of finding that the electri-
cal components were fixtures. We now turn our atten-
tion to the court’s finding regarding the intent of the
annexer.
The court explicitly found that ‘‘[the plaintiff]
intended the [electrical components] to be fixtures.’’
Although this finding is clearly erroneous because the
court found previously that the electrical components
were installed in 1990, and undisputed evidence estab-
lished that the plaintiff did not come into legal existence
until approximately ten years later,20 it is harmless error.
‘‘Where . . . some of the facts found [by the trial court]
are clearly erroneous and others are supported by the
evidence, we must examine the clearly erroneous find-
ings to see whether they were harmless, not only in
isolation, but also taken as a whole. . . . If, when taken
as a whole, they undermine appellate confidence in the
court’s fact finding process, a new hearing is required.’’
(Internal quotation marks omitted.) LeBlanc v. New
England Raceway, LLC, 116 Conn. App. 267, 281, 976
A.2d 750 (2009). We conclude that the court’s finding
as to the plaintiff’s intent was harmless and does not
undermine the court’s conclusion that the electrical
components were fixtures.
In light of all the circumstances of this case, the court
correctly determined that the electrical components
were fixtures. After the original manufacturing building
was destroyed by fire in 1989, a new manufacturing
facility was built to allow Pye & Hogan to continue with
its business. Because Donald, as implicitly found by the
court, was the owner of the electrical components when
he installed them in 1990, his installation created a
presumption that Donald was making ‘‘improvements
for the permanent benefit’’; Lesser v. Bridgeport-City
Trust Co., supra, 124 Conn. 64; of the newly constructed
manufacturing facility. Acts subsequent to the installa-
tion of the electrical components confirm Donald’s
intent that the electrical components were fixtures.
From 1990 onward, the property was used by Pye &
Hogan to manufacture aircraft engine components. As
Jeffrey explained, the machinery used to make these
items required a ‘‘higher demand for energy,’’ which
required arrangements with the electric company for
‘‘higher-end wiring to come in the building’’ for the bus
ducts. It is also noteworthy that, according to Jeffrey,
the building without the electrical components was no
longer suitable to manufacture ‘‘machine and fabricated
precision components for gas turbine engines used in
military, commercial and industrial applications,’’ but
was ‘‘now no more than just a warehouse . . . .’’ See
Webb v. New Haven Theatre Co., supra, 87 Conn. 133
(providing that whether articles were ‘‘so attached to
the building as to make them useful in connection with
[the building], and so that their removal would render
[the building] practically useless for the purpose for
which [the building] was constructed and used’’ was
‘‘[an] important, but not conclusive, [fact] as tending
to show the intention with which [the articles] were
attached’’). Taken together, the facts and circumstances
of this case, namely, that, in 1990, Donald installed the
electrical components in the newly constructed facility
to manufacture aircraft engine components, are suffi-
cient to confirm Donald’s intention that the electrical
components were to remain fixtures.
We also find support in ATC Partnership v. Wind-
ham, supra, 268 Conn. 463. In that case, our Supreme
Court was presented with the issue of whether certain
fixtures had been ‘‘severed from the underlying realty
and thereby revert[ed] back to the status of personalty.’’
Id., 480. Relevant to our analysis in the present case,
the court in ATC Partnership explained: ‘‘With regard
to the potential progression of property from fixture to
personalty, the general rule is that such severance may
be either actual, in the sense of physical separation from
the realty and removal from the land, or constructive, as
in a situation in which a party objectively manifests its
consideration of property as personalty . . . or in
which parties agree as between themselves to consider
a fixture as personalty.’’ (Citation omitted; emphasis
added.) Id.
Here, the court found that in 2005, Pye & Hogan,
which did not own the property, sold its personal prop-
erty to the defendant. The court also found that the
agreement established that Pye & Hogan leased certain
real property, which had adequate electrical distribu-
tion and service facilities, and the agreement delineated
the personal property that was to be sold, which did
not include the electrical distribution system or the
electrical components. Pursuant to the lease, the defen-
dant could remove only equipment it had purchased
or installed at its own cost. The court found that the
defendant had not installed the bus ducts. Therefore,
at a minimum, the court implicitly found that the parties
did not agree as between themselves to consider the
electrical components as personalty. After a thorough
examination of the record and the court’s other find-
ings, our confidence in the court’s fact-finding process
is not undermined by its erroneous finding that the
plaintiff intended the electrical components to be fix-
tures;21 accordingly, we conclude that the court’s erro-
neous finding was harmless and does not undermine
the court’s finding that the electrical components
were fixtures.22
Having established that it was not clear error for
the court to find that the electrical components were
fixtures, we address the court’s conclusion that the
defendant had committed statutory theft. The court
inferred that the defendant intended to deprive the
plaintiff of its property from the defendant’s ‘‘actions
in changing the locks on the property,’’ which prevented
the plaintiff from ‘‘[seeing the defendant] improperly
removing items of the electrical distribution system,
combined with its actual knowledge that [the plaintiff]
claimed ownership of those items . . . .’’ Also, the
court found that the defendant had removed and
installed the electrical components in its new manufac-
turing building, where it relocated after vacating the
premises, despite knowing that the plaintiff disputed
ownership of the components. On the basis of the cir-
cumstantial evidence before the court, we conclude
that the relevant facts set out in the memorandum of
decision pertinent to the court’s finding that the defen-
dant intended to deprive the plaintiff of its property
are supported by the evidence. Accordingly, the court’s
legal conclusion that the defendant committed statutory
theft is legally and logically correct.23
B
The defendant also claims that, in the alternative,
the court erroneously concluded that it had committed
statutory theft because the defendant had a good faith
belief that it owned the electrical components. We do
not agree.
We first set forth the law relevant to this claim and
our standard of review. Because statutory theft is syn-
onymous with larceny; Rana v. Terdjanian, supra, 136
Conn. App. 113; a good faith belief that one owns the
property at issue will negate the required intent. ‘‘One
who takes property in good faith, under fair color of
claim or title, honestly believing that . . . he has a right
to take it, is not guilty of larceny even though he is
mistaken in such belief, since in such case the felonious
intent is lacking. . . . The general rule applies . . . to
one who takes it with the honest belief that he has the
right to do so under a contract . . . .’’ (Internal quota-
tion marks omitted.) State v. Papandrea, 120 Conn.
App. 224, 231, 991 A.2d 617 (2010), aff’d, 302 Conn. 340,
26 A.3d 75 (2011). The burden was on the defendant to
establish that it had good faith belief that it owned the
electrical components. See State v. Varszegi, 33 Conn.
App. 368, 373, 635 A.2d 816 (1993) (‘‘A defendant who
acts under the subjective belief that he or she has a
lawful claim on property lacks the required felonious
intent to steal. Such a defendant need not show his
mistaken claim of right was reasonable, since an unrea-
sonable belief that he had a right to take another’s
property will suffice so long as he can establish his
claim was made in good faith.’’ [Emphasis added; inter-
nal quotation marks omitted.]), cert. denied, 228 Conn.
921, 636 A.2d 851 (1994).
Our Supreme Court has stated that ‘‘the term good
faith has a well defined and generally understood mean-
ing, being ordinarily used to describe that state of mind
denoting honesty of purpose, freedom from intention
to defraud, and, generally speaking, means being faith-
ful to one’s duty or obligation. . . . It has been well
defined as meaning [a]n honest intention to abstain
from taking an unconscientious advantage of another,
even through the forms or technicalities of law, together
with an absence of all information or belief of facts
which would render the transaction unconscientious.
. . . It is a subjective standard of honesty of fact in the
conduct or transaction concerned, taking into account
the person’s state of mind, actual knowledge and
motives. . . . Whether good faith exists is a question
of fact to be determined from all the circumstances.’’
(Citation omitted; internal quotation marks omitted.)
Bhatia v. Debek, 287 Conn. 397, 412–13, 948 A.2d 1009
(2008). Accordingly, we apply the clearly erroneous
standard to the court’s fact-finding.
‘‘The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . We
cannot retry the facts or pass on the credibility of the
witnesses. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed . . . .’’ (Internal quotation marks omitted.)
Putnam Park Associates v. Fahnestock & Co., 73 Conn.
App. 1, 11–12, 807 A.2d 991 (2002).
Moreover, because the lease was a contract; see Bris-
tol v. Ocean State Job Lot Stores of Connecticut, Inc.,
284 Conn. 1, 7, 931 A.2d 837 (2007); as was the asset
purchase agreement; see 24 Leggett Street Ltd. Partner-
ship v. Beacon Industries, Inc., supra, 239 Conn. 285–86
(treating purchase and sale agreement as contract);
both are subject to the same rules of construction as
other contracts. Therefore, ‘‘[o]ur resolution of the
[defendant’s] claim is guided by the general principles
governing the construction of contracts. A contract
must be construed to effectuate the intent of the parties,
which is determined from the language used interpreted
in the light of the situation of the parties and the circum-
stances connected with the transaction. . . . [T]he
intent of the parties is to be ascertained by a fair and
reasonable construction of the written words and . . .
the language used must be accorded its common, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the contract.
. . . Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms.’’ (Internal quotation marks omit-
ted.) Putnam Park Associates v. Fahnestock & Co.,
supra, 73 Conn. App. 8.
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . . In contrast, a contract is ambiguous if the
intent of the parties is not clear and certain from the
language of the contract itself. . . . [A]ny ambiguity in
a contract must emanate from the language used by
the parties. . . . The contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . and every provision must be given
effect if it is possible to do so. . . . If the language of
the contract is susceptible to more than one reasonable
interpretation, the contract is ambiguous.’’ (Citations
omitted; internal quotation marks omitted.) United Illu-
minating Co. v. Wisvest-Connecticut, LLC, 259 Conn.
665, 670–71, 791 A.2d 546 (2002).
Where the contract language is not definitive, the
determination of the parties’ intent is a question of fact,
and the court’s interpretation is subject to reversal on
appeal only if it is clearly erroneous. HLO Land Owner-
ship Associates Ltd. Partnership v. Hartford, 248 Conn.
350, 357, 727 A.2d 1260 (1999). Furthermore, because
the court did not rely solely on the agreement and the
lease but resorted to taking into account the sur-
rounding circumstances, we apply the clearly erroneous
standard. See Putnam Park Associates v. Fahnestock &
Co., supra, 73 Conn. App. 9.
The defendant advances three arguments to support
its claim that it had a good faith belief that it owned
the electrical components. First, the defendant asserts
that Pye & Hogan bought those electrical components
and the machinery as a ‘‘bundle.’’ Thus, pursuant to the
agreement, it purchased Pye & Hogan’s ‘‘assets neces-
sary for the business . . . .’’ The defendant also points
out that the electrical components were not listed as
excluded assets. Second, the defendant claims that the
lease supports it claim of ownership because it, as the
tenant, could remove trade fixtures that were installed
prior to the formation of the lease. Third, the defendant
contends that there was no direct evidence that it
intended to steal the electrical components. Therefore,
the defendant asserts that the agreement, the lease,
and the lack of direct evidence of an intent to commit
statutory theft demonstrate that it had a good faith
belief that it owned the electrical components. We are
not persuaded.
We first examine the agreement. From the outset,
the agreement stated that ‘‘[Pye & Hogan] is a leading
manufacturer of machine and fabricated precision com-
ponents for gas turbine engines used in military, com-
mercial and industrial applications, including aircraft,
helicopters and tanks (the ‘[b]usiness’).’’ Section 2.1 (a)
(ii) of the agreement stated, in relevant part, that Pye &
Hogan, as the seller, was selling its personal property
as ‘‘described in Schedule 2.1 (a) (ii), together with the
fixtures, furnishings, furniture, equipment . . . sup-
plies, spare parts . . . wherever located, or acquired
by [Pye & Hogan] in connection with the conduct of
the [b]usiness . . . .’’ (Emphasis in original.) Section
2.2 (d) provided that ‘‘all assets in possession of [Pye &
Hogan] but owned by third parties including, without
limitation, those assets listed on Schedule 2.2 (d)
. . . .’’ (Emphasis in original.) The agreement did not
itemize the electrical components as personal property
to be sold to the defendant, and the components were
not listed as excluded assets. Although the agreement
clearly stated that the property, which was only leased
by Pye & Hogan, had an adequate electrical distribution
system, it did not define what constituted the electrical
distribution system.
We now turn our attention to the lease. Paragraph
15 of the lease provided, in relevant part, ‘‘[a]ny and
all alterations, additions and improvements, which may
be made or installed by either [the plaintiff] or [the
defendant] upon the [property] and which in any man-
ner are attached to the floors, walls or ceilings . . .
such that their removal will damage the [property], shall
remain upon the [property] . . . . However, the usual
trade fixtures . . . which may be installed in the [prop-
erty] prior to or during the term hereof at the cost of
[the defendant] may be removed by [the defendant]
from the [property] upon the termination of this [l]ease.
Further, [the defendant] covenants and agrees, at its
own cost and expense, to repair any and all damage to
the [property] resulting from or caused by such
removal.’’ The electrical components were not explic-
itly listed as ‘‘alterations, additions and improvements,’’
or explicitly excluded from being considered trade
fixtures.
In reviewing relevant portions of the agreement and
the lease, the court did not explicitly indicate whether
the documents contained any ambiguity. In its finding,
however, that under both the agreement and the lease
‘‘the electrical distribution system was described as
belonging to the landlord, [the plaintiff],’’ the court
resorted to looking at evidence beyond those doc-
uments.
First, the court found that the agreement did not
include the electrical distribution system as an asset
to be sold to the defendant. From the outset of its
memorandum of decision, the court found that the elec-
trical distribution system consisted of the bus ducts
and the branch feeders.24 The court also relied on the
relevant language of the agreement in which Pye &
Hogan, as the lessee, represented to the defendant that
the property had an adequate electrical distribution sys-
tem to conclude that the agreement did not provide for
the electrical components to be sold to the defendant.
The court found that Donald, in 1990, installed the elec-
trical distribution system in the property. The court
also found that since 2001 when the Woods family quit-
claimed its interest in the property, the plaintiff was
the owner of the electrical distribution system. Thus,
according to the court’s reasoning, because Pye &
Hogan did not own the property, it could not have sold
any part of the electrical distribution system to the
defendant. To buttress further this determination, the
court noted that the electrical distribution system,
including the bus ducts and branch feeders, as well as
the transformer, were not listed as assets to be sold.
Evidence presented at trial supported these findings.
Jeffrey testified that the electrical components were
not part of the transaction and were intended to be
permanently affixed to the property. Furthermore, at
trial, two personal property declaration forms were
admitted as full exhibits showing that the electrical
components were not listed as personal property by
either Pye & Hogan or the defendant.25 A reasonable
inference from those exhibits is that the electrical com-
ponents were not personal property to be sold pursuant
to the agreement. Accordingly, there was both testimo-
nial and documentary evidence to sustain the court’s
finding that the agreement did not support the defen-
dant’s good faith belief claim.
Second, the court found that, although the lease
allowed the defendant to remove equipment that it had
purchased or installed, the defendant had not installed
the electrical bus ducts. The evidence at trial, namely,
that Donald purchased and installed the electrical distri-
bution system, supported this finding. See also part I
A of this opinion where we conclude that the court
implicitly found that Donald purchased the electrical
components. Thus, the lease does not corroborate the
defendant’s good faith belief claim. Accordingly, we
reject the defendant’s argument that the agreement and
the lease were evidence that reasonably supported a
finding that it had a good faith belief that it owned the
electrical components.
The court also found that the defendant’s knowledge
that the plaintiff disputed the defendant’s ownership
claim was a surrounding circumstance that undermined
the defendant’s good faith belief claim. Specifically, the
court found that ‘‘[k]nowing that [the plaintiff] claimed
ownership of the electrical distribution system, and
lacking any support for its claim of ownership in either
the lease or the [agreement], [the defendant] could have
left the bus duct, branch feeders and transformer in
place until a court could determine ownership.’’ Evi-
dence presented at trial supported the court’s finding
that ownership was disputed. The court found that the
plaintiff, when notified of the defendant’s impending
departure, had sent the defendant a letter ‘‘clearly stat[-
ing] that the defendant was to refrain from removing
various items from the property,’’ which included the
bus duct and ‘‘ ‘electrical conduit’ . . . .’’ Thus, the
defendant’s knowledge that the plaintiff claimed owner-
ship of the electrical components undercuts its good
faith belief that it owned the electrical components.26
The defendant’s conduct was another surrounding
circumstance found by the court that weakened the
defendant’s good faith belief argument. Specifically, the
court found it significant that the defendant, although
knowing that the plaintiff disputed ownership of the
electrical components, prevented the plaintiff from
accessing the property by changing the locks. his con-
duct did not demonstrate a ‘‘state of mind denoting
honesty of purpose . . . .’’ (Internal quotation marks
omitted.) Bhatia v. Debek, supra, 287 Conn. 412. Fur-
thermore, the court, ‘‘taking into account the person’s
state of mind, actual knowledge and motives’’; (empha-
sis added; internal quotation marks omitted) id., 413;
stated that evidence was presented suggesting that the
defendant took the electrical components to ‘‘[make]
it more expensive and, therefore, difficult for the Woods
[family] to compete.’’27 Viewed holistically, the evidence
presented at trial supports the court’s finding that the
defendant did not have an honest belief that it had the
right to remove the electrical components under either
the agreement or the lease.
Contrary to the defendant’s assertion, direct evidence
that it intended to steal the electrical components was
not required. We iterate that ‘‘[w]hether good faith
exists is a question of fact to be determined from all the
circumstances.’’ (Emphasis added; internal quotation
marks omitted.) Bhatia v. Debek, supra, 287 Conn. 413.
We are also mindful that ‘‘[w]e cannot retry the facts
or pass on the credibility of the witnesses.’’ (Internal
quotation marks omitted.) Putnam Park Associates v.
Fahnestock & Co., supra, 73 Conn. App. 11. We conclude
that the court, in evaluating all the circumstances under-
lying the defendant’s good faith belief claim, made find-
ings that were supported by the evidence, and the
defendant failed to establish its good faith belief that
it owned the electrical components. Accordingly, the
court was not clearly erroneous in its determination.
II
The defendant next claims that the court erred in its
interpretation of the lease. Specifically, it argues that
the court incorrectly concluded that the rent was based
on a flat rate and not on square footage. We disagree.
The record reveals the following additional relevant
facts. The lease provided that the defendant would pay
the plaintiff $17,000 per month to rent 32,930 square
feet of the property. This amount of space, according
to the lease, represented 87.25 percent of the ‘‘rentable
square feet of . . . the [b]uilding,’’ which was defined
as the ‘‘ ‘[t]enant’s [p]roportionate [s]hare’ . . . .’’ Pur-
suant to the lease, the defendant was to pay the plaintiff
a proportionate share of the expenses associated with
the property’s cost and maintenance charges.
Sometime in 2008, Bromley, who at that time was
negotiating with Donald and Jeffrey to purchase the
property, discovered that the actual square footage was
approximately 7000 square feet fewer than what was
stated in the lease. At trial, Jeffrey testified that he had
‘‘transposed numbers’’ from information that he had
obtained from a drawing of the building; consequently,
Jeffrey made a ‘‘mistake in calculating up the square
footage.’’
Attorney John J. Palmeri, an attorney for the plaintiff,
testified that the lease was originally drafted by the
defendant’s Texas based law firm. The lease underwent
nine drafts, with the tenth draft as the final version.
Importantly, Palmeri testified that from the first version
of the lease, the $17,000 per month rent was a flat rate,
and not once had the defendant’s attorney requested a
rate based on square footage. Palmeri further testified
that the square footage of the property was relevant
only in the negotiations to determine the cost and main-
tenance charges. Finally, Palmeri testified that in the
event that the defendant rented additional space within
the property, the lease provided a mechanism by which
the new rent would be calculated.
Bromley, however, testified that the lease was based
on a square foot rate. Specifically, he testified that the
square footage was ‘‘[a]bsolutely fundamental . . .
[b]ecause [he] was assessing the pricing of the square
footage . . . .’’ After testifying that he would in ‘‘no
way . . . sign the lease without the absolute certainty
that the . . . square footage on that lease was properly
represented,’’ the court questioned him on whether he
measured the facility once he took possession of it.
Bromley stated that he measured the property when he
was considering buying it.
The court found that the rent was a flat rate of $17,000
per month. It based this finding on various subordinate
findings. First, the defendant’s counsel provided the
original draft of the lease, which underwent nine addi-
tional drafts. Second, the court credited Palmeri’s testi-
mony that ‘‘the accuracy of the square footage . . .
only came up in the context of the cost and maintenance
. . . charges.’’ Third, the court did not find Bromley’s
testimony credible. Specifically, it did not find his claim
that the square footage was ‘‘[a]bsolutely fundamental’’
as persuasive because Bromley did not verify the square
footage upon occupying the property. The court found
that it was only when the ‘‘parties’ positions became
adversarial’’ that the issue of the square footage, as it
related to the rent, become an issue.
To resolve this claim, we are ‘‘guided by the general
principles governing the construction of contracts’’;
(internal quotation marks omitted) Putnam Park Asso-
ciates v. Fahnestock & Co., supra, 73 Conn. App. 8; as
set forth in part I B of this opinion.
‘‘When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct . . . .
Under the circumstances of this case, because the trial
court did not rely solely on the written agreement but
took into account the surrounding circumstances, we
apply the clearly erroneous standard to the court’s fact-
finding.’’ (Citations omitted; internal quotation marks
omitted.) Id., 9.
On appeal, the defendant contends that the court
committed error by not finding that the rent was based
on square footage. It argues that the plain and unambig-
uous language of the lease necessitates this finding.
Specifically, the defendant asserts that when interpre-
ting the lease as a whole, the language of the lease
proves that the rent was ‘‘based upon a dollar per square
foot [method].’’ The defendant focuses our attention to
particular provisions of the lease that define the rent,
that discuss the defendant’s obligation to pay a propor-
tionate share of operating expenses, and that establish
the defendant’s preferential right to lease additional
space. We are not persuaded.
We first examine the lease. Paragraph 2 provided, in
relevant part, that ‘‘[t]he annual rent payable during the
[i]nitial [t]erm hereof (‘Rent’) shall be payable in twelve
. . . equal monthly installments in the amount of
[$17,000] per month . . . .’’ (Emphasis in original.)
Paragraph 6 provided that the defendant would pay
‘‘additional rent’’ to the plaintiff to cover variable
expenses, which included a share of the real estate
taxes, insurance, and operating expenses of the prop-
erty subject to the lease. For example, paragraph 6 (d)
provided in relevant part that ‘‘[the defendant] shall pay
to [the plaintiff], during each month of the term of the
[l]ease, as additional rent, an amount equal to [t]enant’s
[p]roportionate [s]hare of [the plaintiff’s] actual, reason-
able operating expenses with respect to the operation,
repair and maintenance of the [property] and/or on the
land on which the [property] is located.’’ (Emphasis
added.) The term ‘‘additional rent’’ was repeated in vari-
ous paragraphs of the lease, and in one paragraph, it
was juxtaposed as follows: ‘‘The [defendant] covenants
with the [plaintiff] to hire said [d]emised [p]remises
and to pay Rent and additional rent . . . .’’ Finally,
paragraph 40 provided in relevant part that ‘‘[the defen-
dant] shall have the exclusive right . . . to lease any
other space in the [property] as it comes available upon
the same terms and conditions as those in this [l]ease,
including Rent at the same rate per square foot being
charged at that time hereunder for the additional rent-
able square footage added to the [d]emised [p]remises;
and an increase in the [t]enant’s [p]roportionate [s]hare
for the additional rentable square footage added to the
[d]emised [p]remises.’’
It is clear that the lease did not explicitly state that
the rent, i.e., $17,000 per month, was based on a flat
fee. The term ‘‘Rent’’ was defined, but the lease did not
define the term ‘‘additional rent.’’ The lease, however,
did treat the terms differently, which implies that the
parties intended to treat them as separate and unrelated
obligations. It is also clear from the preferential right to
lease provision, i.e., paragraph 40, that, if the defendant
chose, it could lease additional space, and the provision
provided a method to calculate the new monthly rent.
The term ‘‘including Rent at the same rate per square
foot’’ in paragraph 40, however, created ambiguity.
Because of the ambiguity in the lease, it is clear that
the court had to resort to examining the surrounding
circumstances to determine the intent of the parties
on whether the rent was based on a flat rate or on
square footage.
One of the surrounding circumstances that the court
found persuasive was that in drafting the lease, the
square footage became relevant only in determining
the cost and maintenance charges. This finding was
supported by Palmeri’s testimony. The court did not
credit Bromley’s testimony that he relied on the square
footage as stated in the lease to negotiate the rent.
Because the credibility of witnesses is not for us to
decide, we will not question the court’s credibility deter-
mination of Palmeri and Bromley’s testimony. See Jay
v. A & A Ventures, LLC, supra, 118 Conn. App. 518. On
the basis of the testimony and other evidence adduced
at trial, the court found that the square footage issue
only presented itself when the parties’ positions
became adversarial.
‘‘The standard of review with respect to a court’s
findings of fact is the clearly erroneous standard. The
trial court’s findings are binding upon this court unless
they are clearly erroneous in light of the evidence and
the pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witnesses.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed
. . . .’’ (Internal quotation marks omitted.) Putnam
Park Associates v. Fahnestock & Co., supra, 73 Conn.
App. 11–12. We conclude that the court’s factual find-
ings are not clearly erroneous in light of the evidence
and the record. There is evidence to support all of the
court’s findings and, after review, we are not left with
the definite and firm conviction that a mistake has
been made.
III
The defendant’s final claim is that the court misap-
plied a legal standard in deciding the defendant’s con-
structive eviction claim. Specifically, it argues that the
court’s determination that the defendant was not con-
structively evicted was based on a ‘‘misapplication and
overly expansive reading of the ‘substantial interfer-
ence’ test that applies to constructive eviction claims.’’
The defendant is mistaken.
The following additional facts, as set forth by the
court, are necessary to resolve this claim. Sometime in
2008, Bromley began to negotiate the purchase of a
property in Chester. In July, 2009, the defendant
received a draft of a lease for the Chester property, and
during the following month, the defendant hired an
electrician to do ‘‘electrical work connected’’ with the
defendant’s relocation to Chester.
Ultimately, the court determined that the defendant
could not prevail on its counterclaim. Specifically, the
court determined that the defendant’s argument that a
‘‘water/flooding problem forced’’ it to vacate was not
credible. The court noted that the defendant was ‘‘never
required to cease operations due to water intrusion or
a nonfunctioning toilet.’’ Also, it noted that the defen-
dant, up until December, 2009, ‘‘paid the monthly rent
and manufactured its product.’’ It also found that as of
July, 2009, the defendant was ‘‘actively negotiating to
move its operations to Chester . . . .’’ As to the defen-
dant’s claim that it was forced to vacate the property
because Donald threatened its employees, the court
also did not determine this to be credible. The court
found that the defendant did not vacate the property
because of water problems or Donald’s alleged threats;
rather, it found that the defendant left the property
‘‘because it had planned the move for at least six
months. The constructive eviction claims had been
asserted in an effort to avoid paying amounts due under
the balance of the lease term.’’
The defendant argues that this claim merits plenary
review. Specifically, it contends that the court should
have applied a so-called ‘‘substantial interference test’’
to its constructive eviction claim. For support, the
defendant relies on Conference Center Ltd. v. TRC, 189
Conn. 212, 455 A.2d 857 (1983). In that case, the issue
before our Supreme Court was ‘‘whether a tenant ha[d]
been constructively evicted when served with a demand
for immediate possession by a mortgagee initiating fore-
closure proceedings against the tenant’s landlord.’’ Id.,
213. To resolve this issue, our Supreme Court took into
‘‘account of three convergent areas of the law,’’ namely,
mortgage law, landlord-tenant law, and commercial
law. Id., 218. In doing so, the court in Conference Center
Ltd., after noting that it had done so in the past, ‘‘looked
to operative principles contained in the Uniform Com-
mercial Code for a source of law that informs real
property transactions as well as sale of goods transac-
tions.’’ Id., 225. It was in this context that our Supreme
Court ‘‘look[ed] to Uniform Commercial Code § 2-609
for assistance in determining whether there ha[d] been
that substantial interference with possession or enjoy-
ment which is the essence of constructive eviction.’’ Id.
Far from creating a new test for a constructive eviction
claim, our Supreme Court mentioned this term only
once in its seventeen page opinion. The vastly divergent
issues between Conference Center Ltd., and this case,
along with the context in which the term ‘‘substantial
interference’’ was used, demonstrates the flaw in the
defendant’s argument in seeking plenary review.
‘‘[A] constructive eviction arises where a landlord,
while not actually depriving the tenant of possession
of any part of the premises leased, has done or suffered
some act by which the premises are rendered untenant-
able, and has thereby caused a failure of consideration
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. . . . That fac-
tual determination will not be disturbed by [a reviewing]
court unless the conclusion is such that it could not
reasonably be reached by the trier. . . . It is necessary
therefore, to review the court’s findings along with the
factual record to determine whether the court properly
found that the defendant was constructively evicted.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Welsch v. Groat, 95 Conn. App. 658,
662–63, 897 A.2d 710 (2006).
On appeal, the defendant claims that the court failed
to apply the so-called ‘‘substantial interference test.’’
Indeed, it takes issue with the court for not referencing
‘‘any case law regarding constructive eviction.’’ The
defendant’s argument is unavailing.
Although the defendant is correct that the court did
not explicitly cite case law relevant to a constructive
eviction claim, as noted previously, however, ‘‘[a]bsent
a record that demonstrates that the trial court’s reason-
ing was in error, we presume that the trial court cor-
rectly analyzed the law and the facts in rendering its
judgment.’’ (Internal quotation marks omitted.) Rober-
son v. Aubin, 120 Conn. App. 72, 75–76, 990 A.2d 1239
(2010); see also footnote 21 of this opinion. The court
did find that the defendant failed to prove that it vacated
the property because of either water problems or Don-
ald’s alleged threats; see Welsch v. Groat, supra, 95
Conn. App. 662 (‘‘a party pleading constructive eviction
must prove that . . . [inter alia] the tenant vacated the
premises because of the problem’’ [emphasis added;
internal quotation marks omitted]).
The court found that the water problems were not
the reason that the defendant vacated the property. The
court had the opportunity to evaluate the testimony of
three witnesses who were employed formerly by the
defendant. Two of the former employees testified that
the alleged water problem and toilet issue were insignif-
icant. The third former employee testified that the water
intrusion was not that problematic.28 Moreover, the
court had a copy of the Chester facility lease, signed
on October 30, 2009, which was introduced as a full
exhibit, and testimony from the electrician who the
defendant hired well before it vacated the property
to support its finding that the defendant vacated the
premises ‘‘because it had planned the move for at least
six months.’’
The court also determined that the defendant’s claim
that Donald’s alleged threats forced it to vacate the
property was not credible. This determination was sup-
ported by the court’s evaluation of testimonial evidence.
An employee of the defendant testified that he heard
Donald, on separate occasions, threaten two other
employees, Scott Lawton and Andrew Gibson. Neither
of the employees who were allegedly threatened testi-
fied. The court was presented, however, with testimony
from a ‘‘neutral witness,’’ Richard Kuskoski. He testified
to being only present when Donald allegedly threatened
Gibson. Kuskoski testified that he did not see or hear
Donald threaten Gibson.
‘‘As noted previously, [appellate courts] . . . may
not retry a case. . . . The [fact-finding] function is
vested in the trial court with its unique opportunity to
view the evidence presented in a totality of circum-
stances, i.e., including its observations of the demeanor
and conduct of the witnesses and parties, which is not
fully reflected in the cold, printed record which is avail-
able to us. Appellate review of a factual finding, there-
fore, is limited both as a practical matter and as a matter
of the fundamental difference between the role of the
trial court and an appellate court.’’ (Internal quotation
marks omitted.) Welsch v. Groat, supra, 95 Conn.
App. 666.
We conclude that it was not unreasonable for the
court, in light of the full record, to draw the inference
that the defendant vacated the premises because it had
been planning to do so for six months. ‘‘As we have
often stated, [i]t is the right and the duty of the [trier
of fact] to draw reasonable and logical inferences from
the evidence. . . . In considering the evidence intro-
duced in a case, [triers of fact] are not required to leave
common sense at the courtroom door . . . nor are they
expected to lay aside matters of common knowledge
or their own observations and experience of the affairs
of life, but, on the contrary, to apply them to the facts
in hand, to the end that their action may be intelligent
and their conclusions correct.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 666–67. The court
drew a reasonable inference on the basis of the testi-
mony and other evidence offered at trial. Accordingly,
we determine that the court’s findings are supported
adequately by the record. We conclude, therefore, that
the court properly found that the defendant was not
constructively evicted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original complaint was filed on December 14, 2009, alleging in a
single count that the defendant had committed statutory theft.
2
The plaintiff’s amended complaint had also sought replevin and equitable
relief. As to the plaintiff’s replevin claim, the court considered it abandoned
because it was argued as an alternative to the statutory theft claim. As to
the equitable relief claim, the court found in favor of the defendant because
the plaintiff was being ‘‘adequately compensate[d] . . . for the breaches
and wrongs [done] by [the defendant], and there is no need to impose any
additional equitable remedy.’’
The four other counts of the defendant’s counterclaim sounded in fraudu-
lent misrepresentation, negligent misrepresentation, breach of the covenant
of good faith and fair dealing, and violation of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq.
3
That same year, Donald leased the property to Pye & Hogan Machine
Company, Inc., a company that manufactured ‘‘aircraft engine components
for the small- to medium-size gas turbine aerospace market.’’
4
In general terms, a bus duct is ‘‘an electric conduit prefabricated in
sections and containing heavy conductors for transmission of large currents
at relatively low voltage.’’ Webster’s Third New International Dictionary
(2002).
5
At trial, the plaintiff’s expert, referencing a photograph admitted into
evidence (exhibit 11), testified that individual branch feeders were con-
nected onto a ‘‘disconnect head,’’ which was itself attached to a bus duct,
and onto an individual machine.
6
Prior to the creation of the plaintiff, Donald transferred part of his
ownership interest in the property to his two children.
7
The defendant submitted as a full exhibit a letter detailing its reasons
for leaving the property before the end of the lease. The court, in its memoran-
dum of decision, quoted from this letter.
8
We note that the court’s memorandum of decision misstated that the
defendant sought the injunction. The record shows that, in denying the
plaintiff ex parte temporary injunctive relief, the court, Bear, J., on Decem-
ber, 14, 2009, also ordered the defendant summoned to show cause why
the temporary injunction should not be issued. The show cause hearing
never occurred.
9
The defendant acknowledged, in its main brief, that when it vacated the
property, it took with it the branch feeders and the transformer.
10
Lamb was an electrical contractor and licensed electrician with approxi-
mately forty-four years of experience.
11
According to Lamb, replacing the bus ducts would cost $110,000, the
branch feeders would cost $66,300, and the transformer would cost $5000.
12
General Statutes § 52-564 provides that ‘‘[a]ny person who steals any
property of another, or knowingly receives and conceals stolen property,
shall pay the owner treble his damages.’’
13
This award represented treble damages permitted under the statute,
i.e., $181,300, the cost to replace the items, multiplied by three.
14
The court calculated this award by adding $85,000 of rent owed for the
last five months of the lease, $85,649.58 in cost and maintenance charges
that the defendant never paid the plaintiff, $34,614.30 incurred by the plaintiff
to repair the property after the defendant vacated it, and $47,987.58 in
attorney’s fees awarded to the plaintiff, which was permitted under the
terms of the lease. The court then subtracted the $34,000 that the defendant
had paid as a security deposit.
15
The following relevant testimony was presented at trial:
‘‘[Jeffrey]: Back in September of 1989, September 15th to be exact, our
building burned down. . . . And on Saturday morning, September 16th, we
all convened and decided we were going to stay in business. At that time
we knew of a business in New Jersey that had closed. Our sales manager,
myself, my father and Steve Helmedach drove to New Jersey on Sunday,
met with the general manager and got all the particular information, and
then on Monday my father returned to New Jersey with his attorney and
negotiated a deal to purchase all the assets and equipment from [a bankrupt
company], or from bankruptcy, and made an offer with the Bankruptcy
Court, as I understand it.
‘‘[The Defendant’s Counsel]: And that’s how he came to own the, a new
set of machinery for the business, right?
‘‘[Jeffrey]: Yes.
***
‘‘[The Defendant’s Counsel]: Right. Okay. Fine. And as a result of that,
all of the machines, all of the assets of the failed business were transported
from New Jersey to Old Saybrook.
‘‘[Jeffrey]: All of the equipment and electrical distribution.’’
16
Jeffrey testified, in relevant part, on the first day of trial as follows:
‘‘[The Plaintiff’s Counsel]: And what is bus ducting or bus bar refer to?
‘‘[Jeffrey]: It is referred to a permanent—permanently installed electrical
system that would be utilized for the manufacturing—or for purposes of
manufacturing products.
‘‘[The Plaintiff’s Counsel]: The machines that were used by [Pye & Hogan],
did they have a—would they require a higher demand for energy than would
be in a normal setting?
‘‘[Jeffrey]: Yes.
‘‘[The Plaintiff’s Counsel]: And did—prior to [the plaintiff] owning [the
property], who was the prior owner of [the property]?
‘‘[Jeffrey]: The Woods family.
‘‘[The Plaintiff’s Counsel]: Okay. And while the Woods family—at what
time was the electrical distribution system or bus ducting installed in the
building?
‘‘[Jeffrey]: Approximately spring of 1990.
‘‘[The Plaintiff’s Counsel]: Okay. And when the Woods family installed
the bus ducting at the property, what was their intention with regard to the
installation? Was that intended to be temporary or permanent?
‘‘[Jeffrey]: That was intended to be permanent.
‘‘[The Plaintiff’s Counsel]: How was the bus ducting attached or incorpo-
rated to the building?
‘‘[Jeffrey]: It was securely bolted to the ceiling, much along the lines of
the air conditioning ducts and other components.
‘‘[The Plaintiff’s Counsel]: So, you stated similar other components of the
building have been attached in a similar manner?
‘‘[Jeffrey]: Yes.
‘‘[The Plaintiff’s Counsel]: The air conditioning ducts?
‘‘[Jeffrey]: Air conditioning ducts, air lines.
‘‘[The Plaintiff’s Counsel]: Water lines?
‘‘[Jeffrey]: Water lines.
‘‘[The Plaintiff’s Counsel]: To use this bus ducting system and for the high
demand of the machines, did you have to make any other arrangements
with the power supply from Connecticut Light & Power [Company]?
‘‘[Jeffrey]: Yes, we needed higher-end wiring to come in the building.’’
17
The defendant takes the court to task because, according to the defen-
dant, the ‘‘court did not address the concept of trade fixtures whatsoever,’’
and ‘‘failed to ask the critical question: whether [the electrical components]
were trade fixtures.’’ We note that the defendant did not file a motion for
articulation. See Practice Book § 66-5. Therefore, ‘‘[a]bsent a record that
demonstrates that the trial court’s reasoning was in error, we presume that
the trial court correctly analyzed the law and the facts in rendering its
judgment.’’ (Internal quotation marks omitted.) Roberson v. Aubin, 120 Conn.
App. 72, 75–76, 990 A.2d 1239 (2010).
18
The court did not explicitly find that the transformer was a component
of the property’s electrical distribution system. At trial, nonetheless, evi-
dence was presented that the transformer was required for a machine to
operate. Referencing exhibit 8, a photograph that depicted the transformer,
Lamb testified, in relevant part, as follows with respect to the transformer:
‘‘This big machine needs a transformer because it’s 480 on the prime, so
this transformer is a buck-boost, they call it a buck-boost, with 208 coming
in from [Connecticut Light & Power Company] to 480s, secondary, because
that’s what that machine needs, and that particular transformer, if it’s the
right [kilovolt-ampere], is averaging between [five]—well, you could be
talking [four], $5000, at least, just for the transformer that you need to bring
that up to 480 volts.’’
19
We note that the defendant, in its brief and at oral argument in this
court, claims that the transformer was ‘‘portable.’’ Nowhere in the record,
however, was the transformer referred to as a ‘‘portable transformer.’’ Nor
does the defendant provide such a citation to the record.
20
On the second day of trial, Jeffrey testified, in relevant part, as follows:
‘‘In approximately . . . 2000, my father started to transfer assets into my
sister’s and my name, which was first the business. And then, as well, created
[the plaintiff] for all of the real property.’’
21
We note that the defendant strenuously argues that the court committed
a ‘‘series of cascading errors that flowed from [the] critical legal error’’ of
failing to consider whether the electrical components were trade fixtures.
The defendant could have attempted to assuage its dissatisfaction with the
court’s memorandum of decision through a motion to reargue. See Practice
Book § 11-12; see also Opoku v. Grant, 63 Conn. App. 686, 692, 778 A.2d
981 (2001) (‘‘[t]he purpose of a reargument is . . . to demonstrate to the
court that there is . . . some principle of law which would have a controlling
effect, and which has been overlooked, or that there has been a misapprehen-
sion of facts’’ [internal quotation marks omitted]).
22
We note that a Superior Court, under the facts of the case before it,
found that bus ducts were fixtures. In Darcey v. Atlas Hobbing & Tool Co.,
Superior Court, judicial district of Tolland, Docket No. CV-01-75889-S, 2002
WL 31002123, *1 (August 1, 2002), the court, Sferrazza, J., found that a
‘‘[b]us duct [was] an electrical conduit which [was] affixed by screws to the
exposed surface of the walls or ceilings and which provides the specialized
electric power outlets commonly needed by industrial machinery.’’ The
court also found that ‘‘when the bus duct was installed by the defendant’s
predecessor . . . and later added to by the defendant, its purpose was to
provide electric power to industrial machinery on a permanent . . . basis.
. . . These items, installed with screws and wiring from the electrical panel
box, were not equivalent to an extension cord or plug-in lamp. These items
were hardwired and performed in situ for a period of years.’’ (Citation
omitted.) Id., *3. Because of these findings and the fact that the parties’
lease agreement stipulated that fixtures installed by the defendant became
the property of the plaintiff, the court ruled that the defendant in Darcey
unlawfully removed the bus duct from the premises. Id., *3–4.
Although the defendant here cited an Ohio case in which a court held
that a ‘‘bus-bar unit was not a fixture but was an item of equipment and
personal property’’; GTR Land Co. v. Wilson Cabinet Co., Docket No. 386,
1988 WL 142305, *7 (Ohio App. December 30, 1988); that case is factually
distinguishable. Unlike the present case, in GTR Land Co., the defendant
installed the ‘‘bus-bar unit.’’ Id., *6.
23
This conclusion negates the necessity to address fully the defendant’s
claim that the court’s conclusion ‘‘regarding ownership of the [electrical
components] [i]s contrary to Supreme Court precedent.’’ Specifically, the
defendant advances the proposition that ‘‘self-serving statements made long
after the fact are insufficient to establish the necessary intent to establish
that an item is a fixture.’’ It attributes this proposition to our Supreme Court,
citing Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra,
193 Conn. 216–17, and to the Michigan Supreme Court, citing Lord v. Detroit
Savings Bank, 132 Mich. 510, 511, 93 N.W. 1063 (1903). To be sure, the early
twentieth century case from Michigan supports the defendant’s claim. The
case that binds this court, however, does not. In the portion of Waterbury
Petroleum Products, Inc., that was cited by the defendant, our Supreme
Court made clear that the test to determine a fixture ‘‘focuses on the objec-
tively manifested intent of the annexer.’’ Waterbury Petroleum Products,
Inc. v. Canaan Oil & Fuel Co., supra, 216. Moreover, ‘‘[t]he intent sought
is not the subjective intent or undisclosed purpose of the annexer, but the
intent manifested by his actions.’’ (Internal quotation marks omitted.) Id.
We do not read the legal principles set forth by our Supreme Court as
broadly as the defendant does, which is not to suggest that self-serving
statements, standing alone, are sufficient to establish the intent of the
annexer. In this case, the court was presented with testimony, which it was
free to credit, and other evidence surrounding the circumstances of the
installations of the electrical components that confirmed Donald’s intention
to make the electrical components fixtures when he installed them in 1990.
24
With respect to the transformer, the court did not explicitly deem it a
component of the electrical distribution system. This omission, nonetheless,
is not significant in light of our conclusion that it was not clear error
for the court to find that the transformer was a fixture. See part I A of
this opinion.
25
At trial, Jeffrey testified that the town of Old Saybrook required Pye &
Hogan, for tax purposes, to declare its personal property. The 2004 personal
property declaration form was completed by Pye & Hogan, and the 2005
personal property declaration form was completed by the defendant. Neither
form declared the electrical components as personal property.
26
We are not persuaded by the defendant’s contention that it ‘‘could not
have left the [electrical components] at the [property] until the case was
resolved because if it had vacated without taking the [electrical components],
they may have become part of the [property] permanently.’’ For support,
the defendant quotes from Koslik v. Sponzo, Superior Court, judicial district
of Hartford, Housing Session, Docket No. CVH-7040, 2010 WL 2306752, *13
(June 4, 2010), for the proposition that ‘‘[f]ailure to remove trade fixtures
can result in a forfeiture which means the fixtures become part of the realty
and the owner of the fee is vested with title in the fixtures.’’ Koslik, however,
is factually distinguishable. Unlike the defendant in the present case, the
plaintiff-tenant in Koslik installed the trade fixtures.
27
The following colloquy occurred:
‘‘[The Plaintiff’s Counsel]: Your—do you concede that your company
expressed concerns that Donald . . . would compete against them at
that time?
‘‘[Bromley]: Well, we were concerned when he was violating—he had
violated his noncompeting agreement—
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘[Bromley]: —because he’d [already] tried to start a business in competi-
tion with us. . . .
‘‘[The Plaintiff’s Counsel]: In the later part of 2009, did your company
raise concerns that [Donald] would be competing against them?
‘‘[Bromley]: I wasn’t happy. But I don’t think I was concerned about him
being a competitor.
‘‘[The Plaintiff’s Counsel]: And didn’t your company even raise that same
concern when you sought a protective order when we asked to inspect the
Chester premises [where the defendant relocated in 2009] to inspect the
bus duct? Didn’t you raise the concern about Mr. Woods’ competition at
that time?
‘‘[Bromley]: It might have been part of that complaint.’’
28
William Wadsworth testified in relevant part:
‘‘[The Plaintiff’s Counsel]: How—how often would the—might this water
intrusion occur?
‘‘[Wadsworth]: Heavy rain. We’d get some. The windows might leak, which
they repaired, and maybe someone would mess with it and they would open
up again. But other than behind the machines and that one spot, I don’t
recall much water there other than what—when we were filling the machine,
we might spill.’’