NECG Holdings Corp. v. West Broad Service Center, LLC

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GETTY PROPERTIES CORPORATION
v. ATKR, LLC
NECG HOLDINGS CORPORATION
v. PAMBY MOTORS, INC.
(SC 19298)
NECG HOLDINGS CORPORATION v. 331
WEST AVENUE GAS STATION, LLC
(SC 19299)
NECG HOLDINGS CORPORATION v. WEST
BROAD SERVICE CENTER, LLC
NECG HOLDINGS CORPORATION v. NAVJOT
ENTERPRISES, INC.
(SC 19300)
NECG HOLDINGS CORPORATION
v. HSTN, LLC
(SC 19301)
NECG HOLDINGS CORPORATION
v. BODAEVE, INC.
NECG HOLDINGS CORPORATION
v. MICA ENTERPRISES, INC.
(SC 19302)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 28, 2014—officially released January 27, 2015
John J. Morgan, with whom, on the brief, was Albert
J. Barr, for the appellants (defendant in each case).
Cort T. Malone, with whom was Heather Spaide, for
the appellees (plaintiff in each case).
Opinion
EVELEIGH, J. In this consolidated summary process
action,1 the defendants, the owners of certain retail
gasoline service stations,2 appeal from the judgments
of immediate possession rendered by the trial court
in favor of the plaintiffs, Getty Properties Corporation
(Getty Properties) and NECG Holdings Corporation
(NECG), with respect to the properties on which the
defendants operate their stations. The defendants claim
that the trial court improperly: (1) determined that the
plaintiffs’ notices to quit were valid; (2) admitted into
evidence the lease between Getty Properties and its
tenant, Getty Petroleum Marketing, Inc. (Getty Market-
ing), as well as the sublease between Getty Marketing
and its subtenant, Green Valley Oil, LLC (Green Valley);
(3) interpreted the various pleadings and orders in Getty
Marketing’s bankruptcy case as terminating the lease
between Getty Properties and Getty Marketing and the
sublease between Getty Marketing and Green Valley;
(4) found that the plaintiffs proved a prima facie case for
summary process; and (5) failed to dismiss the summary
process action as premature pursuant to the Petroleum
Marketing Practices Act, 15 U.S.C. § 2801 et seq. We
affirm the judgments of the trial court.
The record reveals the following facts and complex
procedural history.3 Getty Properties, a real estate
investment trust, owns4 the properties on which the
defendants operate retail gasoline service stations. On
November 2, 2000, Getty Properties leased the proper-
ties to Getty Marketing by way of a master lease (master
lease). The master lease provided, in relevant part, that
Getty Marketing could sublet the properties, but that
such subleases ‘‘shall be subject and subordinate to the
terms and conditions of this [master] [l]ease . . . and,
unless [Getty Properties] elects otherwise, shall auto-
matically terminate upon any termination of this [mas-
ter] [l]ease.’’
In 2009, Getty Marketing sublet the properties to
Green Valley, a gasoline distributor, by way of a sub-
lease (Green Valley sublease). The Green Valley sub-
lease expressly referenced the master lease and
provided that it was ‘‘subject and subordinate to’’ the
master lease. The Green Valley sublease further pro-
vided: ‘‘[Green Valley] acknowledges that [Getty Mar-
keting] derives its interests in the [properties] pursuant
to the terms of the [m]aster [l]ease . . . . If [the master
lease] terminates, the [Green Valley] [s]ublease shall
terminate with respect to any [properties] affected
. . . .’’ Finally, the Green Valley sublease provided:
‘‘[Green Valley] may sublet the [properties] . . . to any
person or entity for [approved uses] as long as [Green
Valley] is not in default of any provision of [the Green
Valley] [s]ublease and the [subsequent] sublease is sub-
ject to the terms of the [Green Valley] [s]ublease.’’
Thereafter, Green Valley entered into an individual
sub-sublease with each defendant (dealer sub-sub-
leases), under which the defendants paid monthly rent
to Green Valley in exchange for the right to possess the
properties and operate retail gasoline stations thereon.
The terms of the dealer sub-subleases were expressly
‘‘subject and subordinate to all ground and underlying
leases . . . which may now or hereafter affect this
[sub-sub]lease or the [defendants’ stations], and to all
renewals, modifications, consolidations, replacements
and extensions thereof.’’ The dealer sub-subleases also
provided that ‘‘[i]f [Green Valley] is not the owner of
the [property], then this lease shall be subject to all of
the terms, provisions and conditions of the lease or
other arrangement under which [Green Valley] holds
the [s]tation, and if such lease or other arrangement
shall be canceled or terminated, this lease shall be
automatically terminated or canceled, without any
liability on the part of [Green Valley] to [the defen-
dants].’’ (Emphasis added.)
Beginning in August, 2011, and continuing for each
of several months, Getty Marketing failed to pay rent,
Getty Properties sent a notice of termination, and Getty
Marketing subsequently cured the default. Pursuant to
the master lease, nonpayment of rent constituted an
event of ‘‘ ‘[m]aterial [m]onetary [d]efault’ ’’ for which
Getty Properties could properly terminate the lease.
In October, 2011, Getty Marketing brought an action
against Getty Properties in New York state court, claim-
ing that Getty Properties had breached the master lease
and seeking an injunction to prevent Getty Properties
from terminating the lease.5 The New York state court
granted a series of temporary injunctions, requiring
Getty Marketing to pay Getty Properties a percentage
of its monthly rent and to deposit the remaining portion
into escrow pending resolution of Getty Marketing’s
claims. Shortly thereafter, Getty Marketing violated
these terms by failing to deposit rent into escrow.
Accordingly, on November 29, 2011, Getty Properties
sent yet another notice of termination to Getty Market-
ing—citing Getty Marketing’s material monetary default
for nonpayment of rent—that terminated the master
lease effective December 12, 2011. On December 5,
2011, Getty Marketing filed for bankruptcy in the United
States Bankruptcy Court for the Southern District of
New York.
While in bankruptcy, Getty Marketing, now the
debtor-in-possession, immediately prosecuted and
defended various adversary proceedings with respect
to the Green Valley sublease6 and the master lease.7
After extensive negotiations between Getty Properties,
Getty Marketing, and Green Valley, Getty Properties
and Getty Marketing agreed to, and the bankruptcy
court entered, a comprehensive stipulation and order
dated April 2, 2012, that set forth the terms and condi-
tions under which the master lease would be rejected
in bankruptcy.8
The April 2, 2012 order of the bankruptcy court set
forth the amount of rent due and unpaid by Getty Mar-
keting, and created a payment schedule that would
allow Getty Marketing to have ‘‘temporary extensions
of time’’ to meet its rent obligations to Getty Properties.
The order provided that, if and when Getty Marketing
rejected the master lease pursuant to 11 U.S.C. § 365,
‘‘upon the effective date of any rejection of the [m]aster
[l]ease, the [m]aster [l]ease shall be deemed terminated
and [Getty Marketing] shall immediately . . . relin-
quish possession and deliver the [properties] to Getty
Properties . . . free and clear of all other tenancies
and occupancies (which shall be deemed terminated)
. . . .’’9 The order further provided that, ‘‘[f]or the avoid-
ance of doubt, it is the intention of the parties that any
rejection of the [m]aster [l]ease [in bankruptcy] . . .
shall result in and shall be deemed to be a termination
of the [m]aster [l]ease . . . .’’ Finally, the order noted
that, ‘‘[n]otwithstanding any other provisions herein,
this [s]tipulation and [o]rder is without prejudice to
any rights that third-party tenants or occupants of the
[properties] have (if any) as of the date of this [s]tipula-
tion and [o]rder under applicable [nonbankruptcy] law.
. . . [I]t is the position of Getty Properties and [Getty
Marketing] that such third-party tenants or occupants
have no such rights if the [m]aster [l]ease is rejected
. . . .’’
Because it appeared that Getty Marketing would
likely reject the master lease on April 30, 2012, Getty
Properties, Getty Marketing, and Green Valley began
to prepare for the master lease’s rejection. On April 19,
2012, Getty Properties leased some of the properties to
NECG, effective May 1, 2012. On April 18, 2012, Green
Valley wrote to the defendants that their sub-subleases
‘‘will terminate on April 30, 2012.’’ Green Valley
reminded the defendants that the dealer sub-subleases
were ‘‘subject to the terms of a [m]aster [l]ease’’ which
would terminate on April 30, 2012, and, thus, that Green
Valley would be ‘‘unable to secure continued possessory
rights in and to the [properties] . . . [which] are
grounds for termination under your [sub-sublease].’’
Green Valley’s letters included notices pursuant to the
Petroleum Marketing Practices Act. See 15 U.S.C. § 2804
(2012). Soon thereafter, on April 23, 2012, Getty Proper-
ties wrote to the defendants, offering revocable license
agreements that would allow the defendants to continue
operating their businesses on the properties from
month to month after termination of the master lease
and until a more permanent relationship could be nego-
tiated. The defendants did not accept the license
agreements.
On April 30, 2012, on a motion by the official commit-
tee of unsecured creditors (committee) pursuant to the
April 2, 2012 order, the bankruptcy court entered an
order ‘‘rejecting [the master lease] effective April 30,
2012 . . . .’’ The order provided that the rejection date
of April 30, 2012, ‘‘shall be deemed the ‘[t]ermination
[d]ate’ for all purposes under the [m]aster [l]ease . . .
[and that] [a]ny third party . . . may conclusively rely
on this [o]rder . . . as evidence of the termination of
the [m]aster [l]ease and all leasehold interests of [Getty
Marketing] therein and in the [properties] and the other
matters provided for herein.’’ The order provided that,
‘‘[n]otwithstanding any [b]ankruptcy [r]ule to the con-
trary, this [o]rder shall be immediately effective and
enforceable upon its entry’’ and that, ‘‘without further
action or proceeding or order of this [c]ourt, [Getty
Marketing] shall relinquish possession of and deliver
the [properties] to Getty Properties . . . free and clear
of all liens and encumbrances.’’
Despite the fact that the April 30, 2012 order unambig-
uously rejected and purported to terminate the master
lease, on the same day, the committee filed a motion
for a separate order confirming that all subleases had
indeed been rejected as of that date. It did so ‘‘[o]ut
of an abundance of caution’’ to ‘‘erase any question
regarding the rejection of the [s]ubleases . . . .’’10
Although an order had not yet entered on the commit-
tee’s motion dated April 30, 2012, on May 3, 2012, Getty
Properties wrote to the defendants, demanding that
they either enter into the revocable license agreements
or vacate the properties. In the letters, Getty Properties
indicated that the defendants, after rejecting the revoca-
ble license agreements, had sent ‘‘rent’’ checks to Getty
Properties. Getty Properties returned the unendorsed
‘‘rent’’ checks to the defendants in the May 3, 2012
letters and explicitly rejected the defendants’ ‘‘proposed
arrangement . . . .’’
On May 15, 2012, Getty Properties and NECG served
the defendants with notices to quit,11 which stated that
the defendants ‘‘originally had the right or privilege
to occupy [the properties] but such right or privilege
has terminated.’’
On May 18, 2012, the bankruptcy court issued an
order on the committee’s April 30, 2012 motion, con-
firming that any subleases of the master lease were
‘‘deemed rejected, nunc pro tunc, to April 30, 2012,
immediately following the rejection of the [m]aster
[l]ease.’’12
After the defendants refused to vacate the properties,
the plaintiffs commenced summary process actions
against the defendants. The cases were consolidated
and presented before the Complex Litigation Docket.
Prior to trial, the defendants moved to dismiss the
actions, claiming that the plaintiffs’ notices to quit were
invalid, thus depriving the trial court of subject matter
jurisdiction. The defendants also claimed that the trial
court should dismiss the actions because of the defen-
dants’ pending lawsuit against Green Valley in the
United States District Court for the District of Connecti-
cut for alleged violations of the Petroleum Marketing
Practices Act.13 The trial court denied the defendants’
motion.
After a bench trial and in a series of opinions begin-
ning on May 3, 2013, the trial court rendered judgment
of immediate possession for the plaintiff in each case.
The defendants appealed from the judgments of the
trial court, claiming that the trial court improperly: (1)
determined that the plaintiffs’ notices to quit were valid;
(2) admitted the master lease and the Green Valley
sublease into evidence; (3) interpreted the various
pleadings and orders in Getty Marketing’s bankruptcy
case as terminating the master lease and the Green
Valley sublease; (4) found that the plaintiffs proved a
prima facie case for summary process; and (5) failed
to dismiss the summary process action as premature
pursuant to the Petroleum Marketing Practices Act. We
transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. We
affirm the judgments of the trial court.
I
NOTICES TO QUIT
The defendants first claim that the trial court had no
subject matter jurisdiction over the summary process
actions because it improperly determined that the
notices to quit were valid. Specifically, the defendants
claim that: (1) the notices to quit did not comply with
the signature requirement of General Statutes § 47a-23;
(2) NECG’s notices were invalid because, at the time
NECG issued the notices, NECG was not authorized to
conduct business in Connecticut pursuant to General
Statutes § 33-921; and (3) the notices were void ab initio
because the properties were assets of Getty Marketing’s
bankruptcy estate at the time the plaintiffs issued the
notices.
We exercise plenary review over challenges to sub-
ject matter jurisdiction in a summary process action
on the basis of defects in notices to quit. See Bayer v.
Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229
(2009). We address each of the defendants’ claims in
turn, with additional facts set forth as needed.
A
The defendants first claim that the notices to quit did
not comply with the signature requirement of § 47a-23
because an associate of the plaintiffs’ attorney signed
the plaintiffs’ attorney’s name, followed by the associ-
ate’s initials, on the notices to quit. Citing Practice Book
§ 4-2 (a) for support,14 the defendants claim that § 47a-
23 does not authorize an attorney to delegate the author-
ity to sign his or her name on a notice to quit. The
plaintiffs respond that the notices to quit were valid
because the plaintiffs’ attorney had explicitly author-
ized the associate to sign his name on his behalf. They
further claim that the defendants have not shown any
prejudice, noting that the defendants raised this claim
on the eve of trial, eight months after service of the
notices. We agree with the plaintiffs.
Section 47a-23 (a) requires that a notice to quit be
given by an ‘‘owner or lessor, or such owner’s or lessor’s
legal representative, or such owner’s or lessor’s attor-
ney-at-law, or in-fact . . . .’’ ‘‘In order to demonstrate
[their] compliance with the notices required for a proper
termination, [the plaintiffs] must show that the notices
given to the tenant apprised her of the information
a tenant needs to protect herself against premature,
discriminatory or arbitrary eviction.’’ Jefferson Garden
Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173
(1987). The defendants neither dispute that the plain-
tiffs’ attorney and his associate legally represented the
plaintiffs, nor claim that the defendants failed to receive
sufficient information from the notices to quit. The
defendants take issue only with the fact that the associ-
ate signed the notice to quit in the plaintiffs’ attor-
ney’s name.
In Boyles v. Preston, 68 Conn. App. 596, 614, 792 A.2d
878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002),
the court rejected the claim that an offer of judgment
was defective because it had been signed on behalf of
the attorney of record by the attorney’s law partner,
who ‘‘had been authorized by [the attorney of record]
to sign [the attorney’s] name to the document,’’ and
because ‘‘the defendant was in no way disadvantaged
by the mere circumstantial defect in the filing of the
offer of judgment. The document filed with the court
afforded the defendant actual notice as to the existence
and terms of the offer, and any irregularity with the
signature could not possibly have misled or prejudiced
him.’’ See also Bayer v. Showmotion, Inc., supra, 292
Conn. 390–91 (concluding that trial court properly
retained jurisdiction despite scrivener’s error on notice
to quit with respect to quit date because error was
circumstantial, defendant had actual notice of correct
quit date, and defendant failed to raise defect for more
than one year, demonstrating lack of prejudice).
The defendants’ claim lacks merit. In the present
case, the associate who signed the notices to quit had
the plaintiffs’ attorney’s explicit authority to do so. See
Boyles v. Preston, supra, 68 Conn. App. 615. This fact,
when paired with the lack of prejudice and the defen-
dants’ delay in asserting this claim; see Bayer v. Show-
motion, Inc., supra, 292 Conn. 392; leads us to conclude
that the trial court was not deprived of subject matter
jurisdiction over the plaintiffs’ summary process
actions.
B
The defendants next claim that the notices to quit
issued by NECG were invalid because, at the time NECG
issued the notices, it was a foreign corporation
operating without a certificate of authority to transact
business within the state and, therefore, was prohibited
from maintaining an action pursuant to § 33-921 (a).
The plaintiffs respond that failure to obtain a certificate
of authority is a voidable defect, not an issue of subject
matter jurisdiction, pursuant to § 33-921 (c), which
allows a court to stay a proceeding commenced by a
foreign corporation until the foreign corporation
obtains a certificate of authority if it is determined that
one is required. The plaintiffs also claim that, although
NECG did not have a certificate of authority at the time
it issued its notices to quit, it subsequently obtained
the certificate of authority, thus voiding the defect, if
any, in the notices. We agree with the plaintiffs. NECG’s
subsequent receipt of the certificate of authority cured
any defect. See General Statutes § 33-921 (c); see also
United States Trust Co. of New York v. DiGhello, 179
Conn. 246, 249, 425 A.2d 1287 (1979) (‘‘[a corporate
plaintiff’s capacity to sue] is but a voidable defect,
waived if not raised by a defendant in a timely manner’’).
C
Finally, the defendants claim that, as of the dates the
plaintiffs issued the notices to quit, the plaintiffs had
no present rights to possess the properties and, thus,
their notices to quit were void ab initio. The defendants
reason that the plaintiffs issued the notices to quit on
May 15, 2012, before the bankruptcy court issued its
May 18, 2012 ‘‘Order Rejecting Certain Subleases’’ and,
thus, that the properties remained assets of the bank-
ruptcy estate until May 18, 2012, rendering the plaintiffs’
notices to quit invalid. The plaintiffs respond by point-
ing to the express language of the May 18, 2012 order,
which stated that the subleases were ‘‘deemed rejected,
nunc pro tunc, to April 30, 2012 . . . .’’ The plaintiffs
also point to the bankruptcy court’s April 30, 2012
‘‘Order Rejecting Master Lease with Getty Properties,’’
which explicitly rejected the master lease effective April
30, 2012. The defendants’ claim is wholly without merit.
The express terms of the April 30, 2012 order unambigu-
ously rejected the master lease as of that date, vested
the plaintiffs with the present rights to possess the
properties, and, thus, empowered the plaintiffs to issue
valid notices to quit.
II
ADMISSION OF THE MASTER LEASE AND GREEN
VALLEY SUBLEASE
The defendants next claim that the trial court improp-
erly admitted the master lease and the Green Valley
sublease into evidence. ‘‘It is well established that [t]he
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . When reviewing a decision to
determine whether the trial court has abused its discre-
tion, we make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion.’’ (Citation omitted;
internal quotation marks omitted.) Duncan v. Mill Man-
agement Co. of Greenwich, Inc., 308 Conn. 1, 13, 60
A.3d 222 (2013). We address the defendants’ claims as
to each document in turn.
The defendants claim that the master lease should
not have been admitted because it was facially incom-
plete—missing an attachment that specifically listed the
defendants’ properties—and that a facially incomplete
document raises, as a matter of law, ‘‘a genuine question
. . . as to . . . the accuracy of the copy’’ of a docu-
ment. Conn. Code Evid. § 10-2 (A). They also claim that
the trial court should have sustained the defendants’
additional objections on the bases of improper founda-
tion, hearsay, best evidence, and authentication. We
disagree.
In its memorandum of decision, the trial court
explained why it had overruled the defendants’ objec-
tions to admission of the master lease during the bench
trial. After crediting the testimony of the plaintiffs’ wit-
nesses, the trial court pointed to the fact that the defen-
dants, in their second amended complaint for their
pending action against Green Valley in the United States
District Court for the District of Connecticut, admitted
that they derived their possessory interests in the prop-
erties from the master lease, in essence admitting to
the authenticity of the document. See footnote 13 of
this opinion. The trial court also credited the plaintiffs’
other evidence, which included the certified copies of
deeds to the properties, as well as the Green Valley
sublease and the dealer sub-subleases, all of which con-
tained specific references to the properties. After a
detailed review of the record in the present case, and
after making every reasonable presumption in favor of
upholding the trial court’s ruling, we conclude that the
trial court did not abuse its discretion in admitting the
master lease into evidence.
The defendants next claim that the trial court improp-
erly admitted the Green Valley sublease into evidence
over the defendants’ objections on the bases of
improper foundation, competency, hearsay, best evi-
dence, and authentication. We disagree. The plaintiffs
entered the Green Valley sublease into evidence
through the testimony of Kevin Shea, the executive vice
president of Getty Realty Corporation, Getty Properties’
parent company. Shea testified to his familiarity with
the Green Valley sublease, explaining that Green Valley
had supplied it to him during negotiations and discus-
sions that took place during Getty Marketing’s bank-
ruptcy proceeding. The plaintiffs also presented the
testimony of David Driscoll, the president and chief
executive officer of Getty Realty Corporation, who testi-
fied that he personally participated in negotiations with
Getty Marketing and Green Valley during Getty Market-
ing’s bankruptcy proceedings. The trial court relied on
Shea’s and Driscoll’s credible testimony in addition to
the defendants’ admission, in the pending Green Valley
action, that the defendants derived their possessory
interests in the properties from the master lease and
Green Valley sublease. After a detailed review of the
record in the present case, and after making every rea-
sonable presumption in favor of upholding the trial
court’s ruling, we conclude that the trial court did not
abuse its discretion in admitting the Green Valley sub-
lease into evidence.
III
TERMINATION OF THE MASTER LEASE
The defendants next claim that the trial court improp-
erly interpreted the various pleadings and orders in
Getty Marketing’s bankruptcy case as terminating the
master lease and the Green Valley sublease. Specifi-
cally, the defendants claim that the trial court should
have interpreted the rejection of the master lease as a
voluntary surrender, thus preserving the rights of any
subtenants pursuant to Bargain Mart, Inc. v. Lipkis,
212 Conn. 120, 561 A.2d 1365 (1989). The plaintiffs
respond that, instead of preserving the rights of any
subtenants, Bargain Mart, Inc., instead supports the
trial court’s finding that the master lease and subleases
had terminated, which thereby terminated the rights of
any subtenants.15 We agree with the plaintiffs.
We begin with the standard of review. ‘‘Summary
process is a special statutory procedure designed to
provide an expeditious remedy. . . . It enable[s] land-
lords to obtain possession of leased premises without
suffering the delay, loss and expense to which, under
the common-law actions, they might be subjected by
tenants wrongfully holding over their terms. . . . Sum-
mary process statutes secure a prompt hearing and final
determination. . . . Therefore, the statutes relating to
summary process must be narrowly construed and
strictly followed.’’ (Internal quotation marks omitted.)
Waterbury Twin, LLC v. Renal Treatment Centers–
Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009).
In reviewing the trial court’s decision that the master
lease and the Green Valley sublease had terminated,
‘‘[o]n appeal, it is the function of this court to determine
whether the decision of the trial court is clearly errone-
ous. . . . This involves a two part function: where the
legal conclusions of the court are challenged, 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 deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.’’ (Internal quotation
marks omitted.) Bargain Mart, Inc. v. Lipkis, supra,
212 Conn. 129–30.
The defendants’ claim that they retain their rights as
sub-subtenants fails if any of the leases—the master
lease, the Green Valley sublease, or the dealer sub-
subleases—has terminated. The trial court found that
the dealer sub-subleases had terminated, in accordance
with their terms,16 upon rejection of the master lease
in bankruptcy, or upon termination of the master lease
and the Green Valley sublease due to the nonpayment
of rent by Getty Marketing and Green Valley.
‘‘Service of a valid notice to quit, which terminates
the lease and creates a tenancy at sufferance . . . is a
condition precedent to a summary process action
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Waterbury Twin, LLC v. Renal Treatment
Centers–Northeast, Inc., supra, 292 Conn. 466. ‘‘It is
well settled that breach of a covenant to pay rent does
not automatically result in the termination of a lease
. . . rather, it gives the lessor a right to terminate the
lease which he may or may not exercise. . . . In order
to effect a termination, the lessor must perform some
unequivocal act which clearly demonstrates his intent
to terminate the lease. . . . [T]here is almost no limit
to the possible words or deeds which might constitute
the unequivocal act necessary to terminate the lease
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 472 n.17. Whether there has been a termi-
nation or voluntary surrender of a lease ‘‘ ‘is to be deter-
mined by the intention of the parties, and thus, it is
usually a question of fact for the [trier].’ ’’ Bargain Mart,
Inc. v. Lipkis, supra, 212 Conn. 129, quoting 49 Am.
Jur. 2d 1052, Landlord and Tenant § 1095 (1970).
In Bargain Mart, Inc., this court discussed the rights
of subtenants under applicable landlord-tenant law: ‘‘ ‘A
voluntary surrender by a principal lessee to a principal
lessor, effected in a manner contrary to the provision
of termination in the lease, does not affect the rights
of a tenant acquired under a sublease which the lessor
had authority to make. . . . Every surrender by a prin-
cipal lessee is voluntary, unless the lessor enforces the
right of termination in accordance with the reservation
of his lease.’ ’’ (Citation omitted.) Bargain Mart, Inc. v.
Lipkis, supra, 212 Conn. 126–27, quoting Golde Clothes
Shop, Inc. v. Silver, 95 Conn. 678, 685–86, 112 A. 264
(1921). ‘‘[T]he determination of whether a rejection of
a lease in bankruptcy operates as a ‘termination’ or
‘voluntary surrender’ will be tied to the particular cir-
cumstances of each case.’’ Bargain Mart, Inc. v. Lipkis,
supra, 133.
Although we noted in Bargain Mart, Inc., that a
voluntary surrender of a lease would not affect the
rights of a subtenant, we also noted that ‘‘unless the
rights of the sublessee are [expressly] protected by the
terms of the sublease, ‘[t]he right of the sublessee to
the possession of the premises, as against the original
lessor, terminates with the lease or term of the original
lessee . . . . [Because] a subtenant holds the premises
subject to the performance of the terms and conditions
impressed upon the estate by the provisions of the
original lease, his rights are generally held to be termi-
nated when the original lessor declares a forfeiture
of the original lessee’s term based upon the latter’s
nonperformance of obligations imposed on him.’ ’’
(Emphasis added.) Id., 127, quoting 49 Am. Jur. 2d,
supra, § 511, pp. 490–91.
Bargain Mart, Inc. involved a series of leases and
subleases similar to the leases in the present case.17
In Bargain Mart, Inc., the primary lessor leased the
premises to the primary tenant, who then sublet the
premises to the subtenant. Bargain Mart, Inc. v. Lipkis,
supra, 212 Conn. 121. The subtenant sub-sublet the
premises to the sub-subtenant. Id., 121–22. Soon there-
after, the subtenant filed for bankruptcy and rejected
its sublease with the primary tenant. Id., 122. After
rejection of the sublease in bankruptcy, the primary
lessor issued various notices to quit to the primary
tenant, who contested the validity of the notices to quit
in the subsequent summary process action. Id. Before
the trial court could adjudicate the validity of the
notices to quit, the primary lessor and the primary ten-
ant settled the summary process action by stipulated
judgment. Id., 123. The primary lessor then attempted
to evict the sub-subtenant, claiming that it had no right
to possession of the premises because the primary lease
and the sublease had terminated. Id., 125. The sub-
subtenant claimed rights to the premises under its sub-
sublease, despite alleged terminations of the sublease
in the subtenant’s bankruptcy and the primary lease in
the summary process action. Id.
In Bargain Mart, Inc., with respect to termination
of the sublease, the record revealed no evidence, other
than the fact that the subtenant had rejected the sub-
lease in bankruptcy, that the subtenant had defaulted
or that the primary tenant had attempted to terminate
the sublease pursuant to the terms of the sublease. Id.,
131–33. After rejection of the sublease in the subtenant’s
bankruptcy, and for a period of five years, the sub-
subtenant paid rent to the primary tenant and, later,
paid rent directly to the primary lessor. Id., 124. The
trial court concluded that the subtenant had voluntarily
surrendered the sublease, which this court affirmed as
not clearly erroneous on the basis of two operative
facts: (1) there was no evidence that the subtenant had
defaulted on the obligations imposed by the sublease
and, therefore, the primary tenant could not have termi-
nated the sublease pursuant to the terms of that lease;
and (2) the postrejection conduct of the primary lessor
and the primary tenant—in particular, their acceptance
of the sub-subtenant’s rent—evinced an intent to treat
the rejection of the sublease as a voluntary surrender.
Id., 130–33. With respect to the primary lease and the
summary process action settled by stipulated judgment,
this court agreed that a valid notice to quit terminates a
lease because it is an unequivocal notice of a landlord’s
intent to terminate a lease. Id., 134–35. Nevertheless,
because the primary tenant had contested the validity
of the notices to quit in the summary process action,
and because the trial court had not adjudicated the
validity of those notices prior to the stipulated judg-
ment, this court held that the trial court’s finding that
the notices had not terminated the primary lease was
not clearly erroneous. Id., 135.
Turning to the facts in the present case, we first
look to whether rejection of the master lease in Getty
Marketing’s bankruptcy effected its termination. Unlike
in Bargain Mart, Inc., in which there was no evidence
of the subtenant’s default prior to the subtenant’s rejec-
tion of the sublease in bankruptcy, the record in the
present case is replete with evidence of Getty Market-
ing’s material monetary defaults under the terms of the
master lease prior to its rejection of the master lease
in bankruptcy. Accordingly, Getty Properties was well
within its rights to terminate the master lease pursuant
to the master lease’s express terms, which it attempted
to do multiple times with multiple notices to quit.
Though Getty Properties was unsuccessful in terminat-
ing the master lease, at first, because Getty Marketing
obtained injunctive relief from the New York state court
and, later, because Getty Marketing filed for bank-
ruptcy, the trial court’s finding that the bankruptcy
court’s order dated April 30, 2012 effected a termination
of the master lease pursuant to the master lease’s terms
and on the basis of Getty Marketing’s material monetary
defaults was not clearly erroneous.
Moreover, unlike in Bargain Mart, Inc., the plaintiffs’
and Getty Marketing’s postrejection conduct did not
evince an intent to treat rejection of the master lease
as a voluntary surrender. In Bargain Mart, Inc., the
primary tenant, and later the primary lessor, accepted
rent from the sub-subtenant for years after rejection of
the sublease in bankruptcy. Id., 124. In the present case,
postrejection, the plaintiffs immediately rejected the
defendants’ ‘‘rent’’ checks and explicitly eschewed the
defendants’ ‘‘proposed arrangement’’ to remain sub-
subtenants.
Given the parties’ prerejection defaults and postrejec-
tion conduct,18 and because ‘‘the determination of
whether a rejection of a lease in bankruptcy operates
as a ‘termination’ or ‘voluntary surrender’ will be tied
to the particular circumstances of each case’’; Bargain
Mart, Inc. v. Lipkis, supra, 212 Conn. 133; we conclude
that the trial court’s finding that the rejection of the
master lease in bankruptcy had been a termination was
not clearly erroneous. Accordingly, because termina-
tion of the master lease caused termination of the Green
Valley sublease and the dealer sub-subleases pursuant
to their terms, and because the Green Valley sublease
and the dealer sub-subleases did not provide any protec-
tion to sub-subtenants in the event of termination of
the master lease; see id., 127; the trial court properly
found that the defendants retained no rights as sub-
subtenants under this court’s decision in Bargain
Mart, Inc.
IV
PRIMA FACIE SUMMARY PROCESS
The defendants next claim that the plaintiffs did not
satisfy their burden of persuasion in proving a prima
facie case for summary process. Specifically, the defen-
dants claim that the plaintiffs failed to prove: (1) each
link in the properties’ chain of possession from the
plaintiffs to the defendants; and (2) termination of the
master lease. We disagree and address each of these
claims in turn, having already set forth the standard of
review in part III of this opinion. See id., 129–30.
The defendants first claim that the master lease and
the Green Valley sublease should not have been admit-
ted into evidence and that, even if the leases had been
properly admitted, the trial court should not have given
them any weight. The defendants claim that, without
these leases, the plaintiffs cannot prove each link in
the properties’ chain of possession from the plaintiffs
to the defendants. We disagree. In light of our conclu-
sion with respect to the defendants’ evidentiary claims,
as set forth in part II of this opinion, and after careful
review of the record, the trial court properly concluded
that the plaintiffs satisfied their burden of proof that
they are the owners and lessors of the properties.
The defendants next claim that the plaintiffs failed
to prove termination of the master lease—and thus that
the defendants were not entitled to possess the proper-
ties—because: (1) there was no proof of an underlying
default by Getty Marketing; (2) there was no proof that
Getty Properties issued a notice of default to Getty
Marketing; and (3) there was no proof that the plaintiffs
successfully litigated, to conclusion, the many lawsuits
that could have caused termination of the master lease.
We disagree. As discussed previously in part III of this
opinion, the record is replete with evidence of Getty
Marketing’s various defaults, as well as evidence suffi-
cient to support the trial court’s finding that the master
lease had terminated. See footnote 3 of this opinion.
Accordingly, we agree with the trial court’s conclusion
that the plaintiffs established a prima facie case for
summary process.
V
PETROLEUM MARKETING PRACTICES ACT
Finally, the defendants claim that the plaintiffs have
not established termination of the defendants’ fran-
chises, which they claim is a ‘‘condition precedent’’ to
these summary process actions. Specifically, they claim
that the Petroleum Marketing Practices Act, 15 U.S.C.
§ 2801 et seq., and the Connecticut Franchise Act, Gen-
eral Statutes § 42-133mm et seq., render this action ‘‘pre-
mature’’ because those acts may afford the defendants
rights of first refusal. They also claim that 15 U.S.C.
§ 2806 (a) of the Petroleum Marketing Practices Act
preempts these summary process actions. Finally, the
defendants invoke the prior pending action doctrine,
claiming that their rights in the properties are being
litigated in the United States District Court for the Dis-
trict of Connecticut. See footnote 13 of this opinion.
Although the defendants cite to some relevant authority
in support of their claims for preemption and the prior
pending action doctrine in a conclusory fashion, they
undertake no analysis or application of the law to the
facts of this case. The defendants make only one citation
from the record, despite the prolixity of the materials
they submitted to this court, in support of their claims.
We consider these claims to be inadequately briefed
and therefore decline to address them. See Electrical
Contractors, Inc. v. Dept. of Education, 303 Conn. 402,
444 n.40, 35 A.3d 188 (2012) (‘‘Claims are inadequately
briefed when they are merely mentioned and not briefed
beyond a bare assertion. . . . Claims are also inade-
quately briefed when they . . . consist of ‘conclusory
assertions . . . with no mention of relevant authority
and minimal or no citations from the record . . . .’ ’’
[Citations omitted.]).
The judgments are affirmed.
In this opinion the other justices concurred.
1
There were originally twenty individual case captions included within
the five different Supreme Court docket numbers in these appeals. Under
SC 19298, the cases were: Getty Properties Corporation v. ATKR, LLC; NECG
Holdings Corporation v. UNHK, LLC; NECG Holdings Corporation v. Saud
Alkulaib; NECG Holdings Corporation v. Expert Automotive Repairs; NECG
Holdings Corporation v. Indtur, LLC; NECG Holdings Corporation v. Mujtaba
Khalied; NECG Holdings Corporation v. Pamby Motors, Inc.; and NECG
Holdings Corporation v. RHS, LLC. Under SC 19299, the case was: NECG
Holdings Corporation v. 331 West Avenue Gas Station, LLC. Under SC 19300,
the cases were: NECG Holdings Corporation v. West Broad Service Center,
LLC; two separate cases of NECG Holdings Corporation v. Adnan Akach;
NECG Holdings Corporation v. JZ Mart, LLC; and NECG Holdings Corpora-
tion v. Navjot Enterprises, Inc. Under SC 19301, the cases were: Getty
Properties Corporation v. Adnan Rahim; NECG Holdings Corporation v.
Shahid Siddiq; and NECG Holdings Corporation v. HSTN, LLC. Under SC
19302, the cases were NECG Holdings Corporation v. Bodaeve, Inc.; NECG
Holdings Corporation v. Mica Enterprises, Inc.; and NECG Holdings Corpora-
tion v. Wilton Service Center, Inc. Many of the cases were subsequently
withdrawn. The case caption in the present appeals lists the eight remaining
cases under the pertinent Supreme Court docket numbers.
2
The defendants are: ATKR, LLC; Pamby Motors, Inc.; 331 West Avenue
Gas Station, LLC; West Broad Service Center, LLC; Navjot Enterprises, Inc.;
HSTN, LLC; Bodaeve, Inc.; and Mica Enterprises, Inc.
3
To the extent that further details about the panoply of related lawsuits
involving these parties are necessary, this court takes judicial notice of the
files in these other cases. See Jewett v. Jewett, 265 Conn. 669, 678–79 n.7,
830 A.2d 193 (2003); Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d
118 (1995).
4
We note that Getty Properties’ interest in one parcel is actually derived
from a lease with its wholly owned subsidiary. This does not alter our
analysis.
5
Specifically, Getty Marketing alleged that Getty Properties failed to reme-
diate environmental contamination on some of Getty Marketing’s properties
and, thus, sought to offset its rent by the amount Getty Properties should
have paid to remediate the contamination. It therefore sought to pay reduced
rent and to enjoin Getty Properties from terminating the master lease for
nonpayment of rent.
6
On December 16, 2011, Getty Marketing served notice of default on
Green Valley, prompting Green Valley to file an adversary proceeding against
Getty Marketing in which it sought an injunction prohibiting termination of
the Green Valley sublease and a declaration that Green Valley was not in
default of the sublease. After Green Valley’s voluntary withdrawal of the
adversary proceeding, Getty Marketing served Green Valley with another
notice of default on December 22, 2011 for Green Valley’s failure to pay
December’s rent. After Green Valley failed to cure the default, Getty Market-
ing issued a notice of termination on January 7, 2012, and subsequently filed
an adversary proceeding against Green Valley seeking payment of the unpaid
rent. On January 24, 2012, the bankruptcy court entered a stipulation and
order requiring Green Valley to pay various amounts in installment payments.
The order also required Green Valley to vacate the properties on or before
March 31, 2012. After Green Valley vacated the premises, Getty Marketing
filed a motion for summary judgment on its adversary proceeding against
Green Valley, seeking the unpaid rent owed by Green Valley through March
31, 2012. The bankruptcy court granted Getty Marketing’s motion for sum-
mary judgment and ordered judgment to enter against Green Valley for the
unpaid rent.
7
On December 21, 2011, Getty Marketing filed an adversary proceeding
against Getty Properties for its alleged breach of the master lease for failing
to remediate environmental contamination. See footnote 5 of this opinion.
On January 10, 2012, the bankruptcy court ordered Getty Marketing to
comply with its postpetition lease obligations by paying rent going forward,
plus interest on any amounts already due and unpaid. This adversary pro-
ceeding appears to have been abandoned.
8
The terms of the master lease notably provided that, ‘‘in the context of
[Getty Marketing’s] attempted rejection, assumption and/or assignment of
this [master] [l]ease in any bankruptcy or other insolvency proceeding affect-
ing [Getty Marketing] . . . the parties hereto intend for such rejection to
terminate this [master] [l]ease . . . .’’
9
The order also provided that, if any third-party subtenants or occupants
failed to vacate the premises as of the date of rejection of the master lease
and if Getty Properties incurred expenses in eviction proceedings, Getty
Properties would have the right to assert claims against Getty Marketing
‘‘on account of such [e]viction [e]xpenses solely to the extent allowable
under the [m]aster [l]ease (as if the [m]aster [l]ease had been terminated
according to its terms by reason of the default of [Getty Marketing]) . . . .’’
10
The committee also requested the order to ‘‘[clarify] such date for proof
of claim bar date purposes . . . [and to] ensure, out of an abundance of
caution, that the [d]ebtors and their estates do not unwittingly incur any
additional obligations under such [s]ubleases . . . [and] make clear that
the [s]ubtenants may assert claims for rejection damages . . . . Such clarity
and certainty is in the best interests of the [d]ebtors, the estate, and the sub-
tenants.’’
11
Although some cases in this consolidated action have factual differences,
such as whether Getty Properties or NECG issued the notice to quit to a
particular defendant, these differences do not alter our analysis. The parties
have stipulated that all of the relevant documents in each case contain the
same relevant terms. Unless relevant to our discussion, we will not further
discuss the exact differences in each case.
12
The Latin phrase ‘‘nunc pro tunc’’ literally means ‘‘now for then’’ and
is defined as ‘‘[h]aving retroactive legal effect through a court’s inherent
power . . . .’’ Black’s Law Dictionary (9th Ed. 2009).
13
The defendants referred to a complaint they filed on March 28, 2012,
under the trade name of the United Dealers of CT, in the United States
District Court for the District of Connecticut. The defendants filed an action
against Green Valley and its members, which do not include Getty Properties
or NECG, for breach of the dealer sub-subleases, violations of the Petroleum
Marketing Practices Act, and violations of the Connecticut Franchise Act;
see General Statutes § 42-133mm et seq.; among other claims.
A second federal action is pending in the United States District Court for
the District of Connecticut. Specifically, the plaintiffs filed an action against
the defendants on June 11, 2012, alleging conversion of property, trademark
infringement, and violations of the Connecticut Unfair Trade Practices Act;
see General Statutes § 42-110a et seq.; among other claims. Both federal
actions have been placed on the inactive list pending this court’s resolution
of the present summary process appeals.
14
Practice Book § 4-2 (a) provides in relevant part: ‘‘Every pleading and
other paper of a party represented by an attorney shall be signed by at least
one attorney of record in the attorney’s individual name. . . .’’
15
The defendants also claim that the order of the bankruptcy court dated
April 2, 2012, expressly protected the defendants from termination of the
master lease. That order specifically provided that its provisions were ‘‘with-
out prejudice to any rights that third-party tenants or occupants of the
[properties] have (if any) as of the date of this [s]tipulation and [o]rder
under applicable [nonbankruptcy] law.’’ This court’s analysis of the defen-
dants’ claim under Bargain Mart, Inc., addresses the defendants’ claim
under the April 2, 2012 order. See Bargain Mart, Inc. v. Lipkis, supra, 212
Conn. 128 (‘‘[in a bankruptcy] [w]here a debtor/sublessor has rejected the
primary lease, state law establishes the subtenants’ rights under the
sublease’’).
16
As stated previously in this opinion, the dealer sub-subleases provided:
‘‘If [Green Valley] is not the owner of the [properties], then this lease shall
be subject to all of the terms, provisions and conditions of the lease or
other arrangement under which [Green Valley] holds the [properties], and
if such lease or other arrangement shall be canceled or terminated, this
lease shall be automatically terminated or canceled, without any liability
on the part of [Green Valley] to [the defendants].’’
17
We note that the parties in Bargain Mart, Inc., transferred their interests
to various third parties. See Bargain Mart, Inc. v. Lipkis, supra, 212 Conn.
121–22. Because those transfers are not relevant to our resolution of the
present case, we omit them from our discussion.
18
To the extent that the plaintiffs and Getty Marketing memorialized
their intentions by agreement, the master lease is instructive. See Bayer v.
Showmotion, Inc., supra, 292 Conn. 409 (‘‘ ‘[w]here there is definitive con-
tract language, the determination of what the parties intended by the contrac-
tual commitments is a question of law’ ’’). The master lease provided that,
‘‘in the context of the [Getty Marketing’s] attempted rejection, assumption
and/or assignment of this [master] [l]ease in any bankruptcy or other insol-
vency proceeding affecting [Getty Marketing] . . . the parties hereto intend
for such rejection to terminate this [master] [l]ease . . . .’’ Given the abun-
dance of other evidence of termination in the record, however, we neither
rely on nor express any opinion about the validity of the parties’ prebank-
ruptcy agreement to treat rejection of the master lease in bankruptcy as a
termination thereof.
Although we acknowledge that, ‘‘[w]here a landlord has not terminated
the tenant’s lease, the landlord and tenant cannot unilaterally undertake to
eliminate the sublessee’s interests’’; Bargain Mart, Inc. v. Lipkis, supra,
212 Conn. 137; the April 2, 2012 order, signed by Getty Properties and Getty
Marketing, and approved and entered by the bankruptcy court, provided
that, ‘‘[f]or the avoidance of doubt, it is the intention of the parties that any
rejection of the [m]aster [l]ease [in bankruptcy] . . . shall result in and
shall be deemed to be a termination of the [m]aster [l]ease . . . .’’