Boccanfuso v. Daghoghi

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DOMINICK BOCCANFUSO ET AL. v.
NADER DAGHOGHI ET AL.
(SC 20397)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiff landlords sought to regain possession of certain real property
from the defendant tenants on the ground of nonpayment of rent. The
parties had executed a commercial lease for the property. The property
previously had been used as an automobile sales and repair facility, but
the defendants intended to operate a retail rug gallery and a restaurant
on the premises. The defendants started making monthly rent payments
but stopped approximately five months later. At that time, the defendants
had not completed their planned renovations to the premises and had not
obtained the certificates of occupancy required to open the businesses.
Meanwhile, without informing the defendants, the plaintiffs had been
remediating the property of certain environmental contamination in
accordance with a stipulated judgment with the Department of Energy
and Environmental Protection. After the defendants failed to pay rent
for three consecutive months, the plaintiffs served them with a notice
to quit, and, when the defendants failed to vacate the premises, the
plaintiffs commenced this summary process action. The defendants
asserted several special defenses, including equitable nonforfeiture. At
trial, two of the defendants testified that the defendants had stopped
paying rent because it was the only way they could stay in business
and to draw the plaintiffs’ attention to their difficulties. The trial court
rendered judgment of possession for the plaintiffs, concluding, inter
alia, that the equitable nonforfeiture defense did not apply because the
defendants had intentionally breached the lease. Specifically, the court
rejected the defendants’ claims that they had a good faith intent to
comply with, and a good faith dispute over the meaning of, the lease. The
court found that the defendants’ alleged concerns about environmental
contamination, which the defendants claimed justified their withholding
of rent, were pretextual, and that the defendants’ nonpayment actually
was motivated by the costs and difficulties arising from the delay in
renovating and occupying the premises. The Appellate Court affirmed
the trial court’s judgment, and the defendants, on the granting of certifi-
cation, appealed to this court. Held that the trial court did not abuse
its discretion in rejecting the defendant’s equitable nonforfeiture
defense, and, accordingly, the Appellate Court properly affirmed the
trial court’s judgment; because the defendants intentionally withheld
rent on pretextual grounds and in the absence of any good faith dispute
over the terms of the lease, it was within the trial court’s equitable
discretion to determine that the defendants acted wilfully in not paying
rent and to deny them equitable relief from forfeiture of the premises.
Submitted on briefs May 8—officially released September 30, 2020**
Procedural History
Summary process action, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
Housing Session at Norwalk, and tried to the court,
Rodriguez, J.; judgment for the plaintiffs, from which
the defendants appealed to the Appellate Court; there-
after, the court, Rodriguez, J., issued articulations of
its decision; subsequently, the Appellate Court, Keller,
Prescott and Pellegrino, Js., affirmed the trial court’s
judgment, and the defendants, on the granting of certifi-
cation, appealed to this court. Affirmed.
Ryan P. Driscoll filed a brief for the appellants
(defendants).
Matthew B. Woods filed a brief for the appellees
(plaintiffs).
Opinion
ECKER, J. The issue in this certified appeal is whether
the trial court properly rejected the defendants’ claim
that the doctrine of equitable nonforfeiture should have
operated to prevent their eviction in a summary process
action for nonpayment of rent under the terms of a
commercial lease. The defendants, Nader Daghoghi
(Nader), Sassoon Daghoghi (Sassoon), and 940 Post
Road East, LLC, doing business as Savoy Rug Gallery,
appeal from the judgment of the Appellate Court, which
affirmed the trial court’s judgment of possession ren-
dered in favor of the plaintiffs, Dominick Boccanfuso
(Dominick), Crescienzo Boccanfuso, and Boccanfuso
Bros., Inc. (plaintiff corporation). The defendants claim
that the Appellate Court improperly affirmed the judg-
ment of the trial court denying the defendants equitable
relief from forfeiture of their tenancy. We affirm the
judgment of the Appellate Court.
I
The following facts1 and procedural history are rele-
vant to this appeal. The plaintiff corporation owns com-
mercial property located at 936-940 Post Road East in
Westport. From 1970 until January 14, 2014, the prem-
ises were used as an automotive repair and sales shop.
Two underground storage tanks were located on the
property: a 2000 gallon tank used to store gasoline and
a 330 gallon tank used to store waste oil.
On May 4, 2010, an inspector from the Department
of Energy and Environmental Protection (DEEP)2 con-
ducted a compliance inspection of the 2000 gallon tank.
The inspector found that an automatic tank gauging
system and probes needed to be installed and that ‘‘no
annual cathodic protection test [is] being conducted
on the tank and associated product line piping.’’ The
inspector’s report identified nine ‘‘potential violations’’
of state law on the basis of these findings. On July 15,
2010, the DEEP inspector conducted a ‘‘[f]ollow-up’’
compliance audit during which the inspector informed
the plaintiffs that the cathodic protection of the tank
needed to be tested annually. The inspector’s report
indicated that one of the plaintiffs ‘‘stated [that] he will
call [a] contractor and inform me who[m] he selected
to [test the cathodic protection].’’ On March 3, 2011, a
second DEEP inspector found that the violations had
not been addressed. The inspector had a conversation
with Dominick, during which Dominick stated that he
would hire a contractor to test the tank and piping for
corrosion protection. The inspector informed Dominick
that the tank was in ‘‘temporary closure status’’ until
it was either brought into compliance or permanently
removed. (Internal quotation marks omitted.) The
inspector cited six ‘‘potential violations’’ on the basis
of his findings.
On April 27, 2011, the plaintiffs hired Absolute Tank
Testing, Inc. (Absolute Tank), to conduct a cathodic
protection test of the 2000 gallon tank. Absolute Tank
subsequently sent a letter to Dominick on May 1, 2011,
advising him that the tank had ‘‘passed’’ the test but
that the lines connected to the tank had ‘‘fail[ed]’’ the
test. Absolute Tank recommended that the plaintiffs
retain a cathodic protection engineer to confirm the
readings and make recommendations accordingly. On
October 31, 2011, Dominick received a second letter
from Absolute Tank advising him that soil samples
taken from the area surrounding the 2000 gallon tank
contained ‘‘detectable concentrations of [Extractable
Total Petroleum Hydrocarbons at] 540 parts per mil-
lion’’ and that DEEP had been notified.3
In March, 2013, Giuseppe Boccanfuso (Giuseppe),
Dominick’s nephew, removed the 2000 gallon tank.
Afterward, Connecticut Tank Removal, Inc. (Connecti-
cut Tank), conducted soil sampling of the area where
the tank had been located. The sample ‘‘indicate[d] ele-
vated levels of contaminants . . . .’’ Approximately
one year later, in March or April of 2014, Giuseppe
removed the 330 gallon tank, as well. Giuseppe was not
licensed to remove these tanks, and neither he nor the
plaintiffs notified DEEP of their removal.
Meanwhile, in 2012, the parties began discussing a
potential lease of the premises and the defendants’
intention to operate a retail rug gallery and a Subway
sandwich restaurant thereon. The parties agreed that
the defendants would make significant renovations to
the premises in preparation for operating these busi-
nesses. To undertake these renovations, the defendants
were required to obtain building permits and certifi-
cates of occupancy for each business. At some point
during the discussions over the proposed lease, Nader
asked Dominick whether any environmental contami-
nation was present on the property. Nader and his
brother Sassoon had experienced environmental issues
in the past with a different property that, like the prem-
ises at issue, also had been an automobile repair busi-
ness, and they wanted to ensure there would be no
similar problems with the leased premises. Dominick
did not inform Nader of the presence of the tanks, the
results of the DEEP inspections, the testing performed
by Absolute Tank, or any potential contamination on
the site.4
Richard H. Girouard, Sr., the property manager for the
plaintiffs, served as the leasing agent for the premises.
Girouard drafted and negotiated the terms of the lease
on behalf of the plaintiffs. In addition, distinct from his
role as the plaintiffs’ leasing agent, Girouard offered to
consult with the defendants regarding the renovation
and permitting of the premises. Prior to the execution
of the lease, the defendants and Girouard memorialized,
in a letter dated October 29, 2013, their agreement that
Girouard would provide ‘‘consulting [and] design ser-
vices’’ for the renovations and permitting process.5
These services included ‘‘[a]ssist[ing] [the] owners6 in
overseeing demolition [and] renovation of [the prem-
ises],’’ ‘‘[s]chedul[ing] and oversee[ing] necessary
inspections,’’ facilitating the ‘‘[p]ermitting process for
[e]ngineering, [b]uilding, [z]oning [and] [f]ire [d]epart-
ments,’’ and ‘‘[p]repar[ing] for permits, inspections,
etc.’’ (Footnote added.) The defendants agreed to pay
Girouard $22,500 for these services.
On November 22, 2013, the parties entered into a
lease for the premises. The term of the lease was for
five years, with an option to extend for five additional
five year terms. Under the lease, the defendants would
assume ‘‘the sole responsibility for all expenses and
costs associated with the [p]remises . . . .’’ The lease
provided, however, that the plaintiffs were ‘‘responsible
for any environmental issues which may arise with the
[premises].’’ The monthly rent was $16,388, payment of
which would commence on the earlier of (1) the date
on which the defendants opened for business, or (2)
the 180th day after a fully executed lease was delivered
to the defendants.
After the execution of the lease, the defendants began
preparations to renovate the premises. In December,
2013, Girouard provided renovation plans to the defen-
dants, which they approved. Girouard also solicited
bids from prospective contractors for the renovation
project. As work on the renovations progressed, Girou-
ard signed applications for the relevant permits and
had discussions with various officials, including repre-
sentatives of Westport’s planning and zoning, conserva-
tion, and engineering departments.
The 180th day following the delivery of the executed
lease to the defendants occurred on May 21, 2014. At
that point, no building permit for the retail rug gallery
or the Subway restaurant had yet been issued. Conse-
quently, no construction renovations had begun. On
May 28, 2014, Girouard sent a letter to Nader and Sas-
soon indicating that the first rent payment was due on
June 1, 2014. Thereafter, the plaintiffs agreed to grant
the defendants a five week rent concession. In a letter
dated June 27, 2014, Girouard informed the defendants
that the first rent payment was due by July 10, 2014.
Girouard also informed the defendants that the plain-
tiffs wanted Girouard to ‘‘exclusively handle all future
lease and building matters and do not want to be called
or visited at their residences or place of business.’’ In
a letter dated July 1, 2014, the plaintiffs informed the
defendants that ‘‘[n]o further concessions of any kind
will be granted and [the plaintiffs] are fully expecting
rental payments to begin July [1].’’ The defendants made
the July rent payment and continued paying rent
through November, 2014.
On June 11, 2014, the defendants obtained a building
permit for the retail rug gallery portion of the premises.
Renovations on that portion of the site began some
time in July, 2014. On July 1, 2014, however, DEEP
issued an enforcement order finding environmental
contamination on the property based on the results of
the tests performed by Absolute Tank and Connecticut
Tank. The order expressed DEEP’s conclusion that ‘‘an
unpermitted discharge has occurred at the [s]ite, consti-
tuting violations of [state regulations and state law],’’
and ordered the plaintiffs to retain a licensed environ-
mental professional to oversee the remediation of the
contamination. The plaintiffs did not notify the defen-
dants of DEEP’s order. The plaintiffs addressed the
contamination at their own expense, and the property
was remediated in accordance with a stipulated judg-
ment that had entered in a separate civil action com-
menced by DEEP against the plaintiff corporation.
A letter dated August 1, 2014, memorialized a second
agreement between Girouard and the defendants for
‘‘additional services to be rendered’’ on the Subway
portion of the premises. This letter established that
Girouard would procure various approvals and permits,
including planning and zoning approval, for modifica-
tions made to the previously approved building plans.
Girouard would also ‘‘[o]btain planning [and] zoning
approval for retail food use.’’ In exchange, the defen-
dants would pay Girouard an additional $9000.
On September 15, 2014, the defendants obtained a
building permit for the Subway portion of the premises.
The defendants continued to pay monthly rent through
November, 2014, but stopped paying rent in December.
At that point, the renovations of the premises remained
incomplete, and the defendants, through Girouard, still
had not yet obtained certificates of occupancy for either
the retail rug gallery or the Subway portions of the
premises. The defendants also failed to pay rent in Janu-
ary and February, 2015. On January 7, 2015, the plaintiffs
served a notice to quit on Sassoon, thereby terminating
the lease.
Despite the notice to quit, the defendants did not
vacate the premises. Renovations continued, and the
defendants obtained a certificate of occupancy for the
rug gallery portion of the premises in February, 2015.
They opened the rug gallery for business on March
1, 2015. Also in March, the defendants began making
monthly use and occupancy payments to the plaintiffs
in the amount of $16,338 per month. They obtained a
certificate of occupancy for the Subway portion of the
premises on June 5, 2015.
The plaintiffs initiated this summary process action
after the defendants did not vacate the premises by the
date specified in the notice to quit. The defendants
raised six special defenses in response to the plaintiffs’
complaint, including the special defense of equitable
nonforfeiture. The parties filed a joint stipulation of
facts on May 19, 2015, and a trial occurred over three
days. At trial, Nader and Sassoon testified that they
decided to stop paying rent for a number of reasons,
including that ‘‘this was the only way [they] could stay in
business,’’ that they ‘‘were trying to draw [the plaintiffs’]
attention to what [they were] facing,’’ and that they
‘‘were fearful [that], if [their franchisor] Subway for
any reason [got] involved with this contamination and
violations, where would [they] stand?’’
The trial court rendered judgement of possession for
the plaintiffs. The trial court’s written order explained:
‘‘The court finds [that] the defendant[s] [have] breached
the lease for nonpayment of rent. . . . The elements
necessary to sustain the defense of equitable nonforfei-
ture do not exist in this case because the defendant[s]
caused the breach intentionally. That finding alone
negates any finding of equitable nonforfeiture.’’ The
defendants appealed to the Appellate Court. The defen-
dants filed a motion for articulation, seeking, among
other things, clarification of the factual basis for the
trial court’s determination that they had failed to meet
their burden of proof on their special defense of equita-
ble nonforfeiture. The motion for articulation included
a request that the trial court articulate whether the
court considered evidence that the defendants’ failure
to pay rent was accompanied by a good faith intent to
comply with the terms of the lease or a good faith
dispute over the meaning of the lease. The trial court
denied the motion for articulation without comment.
The defendants filed a motion for review of the trial
court’s denial of their motion for articulation with the
Appellate Court. The Appellate Court granted the
motion for review in part, ordering the trial court to,
inter alia, ‘‘articulate . . . whether it considered the
defendants’ good faith intent to comply with the lease
and their good faith dispute over the meaning of the
lease in reaching its decision on the special defense of
equitable nonforfeiture and, if so, how its consideration
of these matters impacted its decision on the defen-
dants’ special defense of equitable nonforfeiture
. . . .’’ The trial court issued an articulation in which it
articulated a number of factual findings and explained:
‘‘The trial court considered and rejected [the] defen-
dants’ claimed good faith intent to comply with the
lease and also rejected the defendants’ alleged good
faith dispute over the meanings of the lease. The defen-
dants were well-advised of the property and were ill-
advised by their counsel to withhold rent and breach
their obligation to pay rent to the plaintiff[s].’’
Unsatisfied, the defendants filed a second motion for
review of the trial court’s articulation. The Appellate
Court thereafter issued a second order for articulation,
in terms substantially similar to the first order. The trial
court responded with a supplemental articulation. The
supplemental articulation stated: ‘‘The defendants’
alleged concerns about the contamination [were] pre-
textual, since neither the contamination nor the remedi-
ation had any effect on the critical path of the defen-
dants’ renovations to the property. The defendants’ real
issue centers on the delays in renovation and, therefore,
in openings of business operations, beyond the rental
grace period, thereby obligating them to pay rent under
the lease and to their existing landlords. The plaintiffs
were not responsible for the delays [under the terms
of the lease].
***
‘‘The defendants failed to prove that they were justi-
fied in withholding the rent because of the contamina-
tion issues affecting the subject premises. . . . [T]he
plaintiffs . . . did promptly take steps to address the
environmental issues affecting the exterior of the prop-
erty, as required by [the lease]. . . . The defendants
suffered no detriment as a result of the contamination
and remediation. They failed to offer any evidence that
they ever even complained about the contamination
and remediation until they filed their answer in this
case on March 24, 2015.’’ In support of its conclusion
that the contamination and remediation did not cause
any detriment to the defendants, the trial court
explained that ‘‘[n]either the contamination itself nor
the remediation thereof affected the renovation time
line of the retail [rug gallery] space or the Subway space;
nor did the contamination and remediation affect the
operation of either business.’’
The Appellate Court affirmed the judgment of the
trial court. See Boccanfuso v. Daghoghi, 193 Conn. App.
137, 140, 171, 219 A.3d 400 (2019). The defendants peti-
tioned for certification to appeal to this court, and we
granted certification, limited to the following issue: ‘‘Did
the Appellate Court properly uphold the trial court’s
judgment in favor of the plaintiffs and the denial of the
defendants’ special defense of equitable nonforfeiture?’’
Boccanfuso v. Daghoghi, 333 Conn. 943, 219 A.3d 373(2019).
II
On appeal, the defendants claim that the Appellate
Court improperly affirmed the trial court’s judgment
rejecting their special defense of equitable nonforfei-
ture and granting possession of the premises to the
plaintiffs. The defendants argue that their failure to pay
rent was not properly considered ‘‘wilful,’’ as that term
is understood under the doctrine of equitable nonforfei-
ture. The plaintiffs contend in response that the Appel-
late Court properly affirmed the trial court’s judgment
because the defendants’ failure to pay rent was wilful.
We agree with the plaintiffs that the trial court did not
abuse its discretion when it rejected the defendants’
defense of equitable nonforfeiture on the facts of this
case and, therefore, affirm the judgment of the Appel-
late Court.
Our standard of review is clear. ‘‘We employ the abuse
of discretion standard when reviewing a trial court’s
decision to exercise its equitable powers. . . .
Although we ordinarily are reluctant to interfere with
a trial court’s equitable discretion . . . we will reverse
where we find that a trial court acting as a court of
equity could not reasonably have concluded as it did
. . . or to prevent abuse or injustice. . . . In reviewing
claims of error in the trial court’s exercise of discretion
in matters of equity, we give great weight to the trial
court’s decision. . . . [E]very reasonable presumption
should be given in favor of its correctness.’’ (Citations
omitted; internal quotation marks omitted.) Presiden-
tial Village, LLC v. Phillips, 325 Conn. 394, 407, 158
A.3d 772 (2017). We remain mindful that ‘‘[o]ur practice
in this [s]tate has been to give a liberal interpretation
to equitable rules in working out, as far as possible, a
just result . . . .’’ (Internal quotation marks omitted.)
19 Perry Street, LLC v. Unionville Water Co., 294 Conn.
611, 630, 987 A.2d 1009 (2010).
‘‘The doctrine of equitable nonforfeiture is a defense
implicating the right of possession that may be raised
in a summary process proceeding, and is based on the
principle that [e]quity abhors . . . a forfeiture.’’ (Inter-
nal quotation marks omitted.) Connecticut Light &
Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90,
106 n.15, 900 A.2d 1242 (2006). ‘‘Equitable principles
barring forfeitures may apply to summary process
actions for nonpayment of rent if: (1) the tenant’s
breach was not [wilful] or grossly negligent; (2) upon
eviction the tenant will suffer a loss wholly dispropor-
tionate to the injury to the landlord; and (3) the land-
lord’s injury is reparable.’’ Cumberland Farms, Inc. v.
Dairy Mart, Inc., 225 Conn. 771, 778, 627 A.2d 386(1993). Regarding the first requirement, we have
explained that ‘‘[wilful] or gross negligence in failing
to fulfill a condition precedent of a lease bars the appli-
cation of the doctrine of equitable nonforfeiture. . . .
In circumstances involving the nonpayment of rent, we
have construed strictly this threshold requirement in
deciding whether to grant equitable relief.’’ (Citations
omitted.) Id.The leading modern case on equitable nonforfeiture
in summary process actions is Fellows v. Martin, 217
Conn. 57, 584 A.2d 458 (1991). In Fellows, we addressed
whether a residential tenant who deliberately withheld
$25.01 from her monthly rent of $500.01 because of a
dispute with her landlord over parking accommoda-
tions should be granted equitable relief from forfeiture.
Id., 58–60, 67. We began by noting the large disparity
between the landlord’s loss of $25.01 and the plaintiff’s
potential loss of a ninety-nine year lease and an advance
payment of $9900. Id., 67. Applying the maxim ‘‘de mini-
mis non curat lex,’’7 we concluded that, under the facts
presented in Fellows, ‘‘the underpayment of $25.01 is
insufficient, as a matter of law, to justify such a forfei-
ture.’’ (Internal quotation marks omitted.) Id., 68. We
explained that the de minimis nature of the tenant’s
breach meant that ‘‘eviction of the tenant would work
a forfeiture wholly disproportionate to the injury suf-
fered.’’ (Internal quotation marks omitted.) Id., 67.
Moreover, we noted that the record suggested that,
after service of a notice to quit, the tenant had resumed
monthly payments of her regular rental amount, plus
the $25.01 she had previously withheld. Id., 69.
We also addressed the issue of wilfulness. We noted
the general principle that ‘‘[a] court of equity will apply
the doctrine of clean hands to a tenant seeking . . .
equitable relief; thus, a tenant whose breach was [wilful]
or grossly negligent will not be entitled to relief.’’ (Inter-
nal quotation marks omitted.) Id., 67. The tenant’s with-
holding of $25.01 from her rent in Fellows was indisput-
ably intentional. We determined, however, that ‘‘[w]e
need not decide whether a tenant who deliberately
refuses to pay rent may yet claim relief under the equita-
ble doctrine against forfeitures [when] the forfeiture is
as grossly disproportionate as it is in this case.’’ Id., 68.
It was unnecessary to decide that issue because the
trial court had determined that the tenant’s nonpayment
was prompted by a good faith dispute over the meaning
of a lease term, which we said is a ground that may
excuse deliberate nonpayment if the trial court deter-
mines that the equities so require. See id., 69 (‘‘[t]he
doctrine against forfeitures applies to a failure to pay
rent in full when that failure is accompanied by a good
faith intent to comply with the lease or a good faith
dispute over the meaning of a lease’’). We explained
that ‘‘the trial court found that the tenant withheld the
rent in a dispute over her parking accommodations.
She apparently believed that she had the right to with-
hold rent if her landlord breached the lease. While her
belief was erroneous . . . her misconception amounts
to a mistake of law, rather than the type of wilfulness
disapproved by [our case law] and other authorities.’’
(Citation omitted; internal quotation marks omitted.)
Id., 68. Chief Justice Peters made this same point in a
concurring opinion, in which she concluded that,
‘‘[because] the tenant’s breach was not [wilful], but was
premised on a good faith dispute, forfeiture of her
interest would be wholly disproportionate to the gravity
of her default.’’ (Emphasis added.) Id., 72 (Peters, C.
J., concurring). To summarize, Fellows demonstrates
that a tenant’s intentional nonpayment of rent does not
require a finding that the nonpayment is wilful under
the equitable nonforfeiture doctrine if nonpayment ‘‘is
accompanied by a good faith intent to comply with the
lease or a good faith dispute over the meaning of a
lease.’’ Id., 69.
In the present case, the trial court found that the
defendants’ intentional nonpayment of rent was not
accompanied by a good faith intent to comply with the
lease or a good faith dispute over the meaning of the
lease. In its first articulation, the trial court explained
that it ‘‘considered and rejected [the] defendants’
claimed good faith intent to comply with the lease and
also rejected the defendants’ alleged good faith dispute
over the meanings of the lease.’’ The trial court elabo-
rated in its supplemental articulation, explaining: ‘‘The
defendants’ alleged concerns about the contamination
[were] pretextual, since neither the contamination nor
the remediation had any effect on the critical path of
the defendants’ renovations to the property. . . .
***
‘‘The defendants failed to prove that they were justi-
fied in withholding the rent because of the contamina-
tion issues affecting the subject premises. . . . [T]he
plaintiffs . . . did promptly take steps to address the
environmental issues affecting the exterior of the prop-
erty, as required by [the lease]. . . . The defendants
suffered no detriment as a result of the contamination
and remediation. They failed to offer any evidence that
they ever even complained about the contamination
and remediation until they filed their answer in this
case on March 24, 2015.’’ Instead, the court explained:
‘‘The defendants’ real issue centers on the delays in
renovation and, therefore, in openings of business oper-
ations, beyond the rental grace period, thereby obligat-
ing them to pay rent under the lease and to their existing
landlords. The plaintiffs were not responsible for the
delays [under the terms of the lease].’’ In so finding,
the court referenced paragraph 31 of the lease, which
provides that the ‘‘[l]essee, at his expense shall make
all necessary repairs and replacements to the [l]leased
[p]remises,’’ and paragraph 32, which provides that
‘‘[a]ll alterations and improvements to the [p]remises
are the [l]essee’s sole responsibility. All expenses and
costs associated with the required zoning change of use
are the [l]essee’s sole responsibility.’’
The trial court found, in other words, that the defen-
dants’ decision not to pay rent was motivated by the
difficulties arising from the delay in the renovation and
occupancy of the premises, and, in fact, had nothing
to do with a dispute over the terms of the lease, which
explicitly placed the responsibility for renovations and
alterations on the defendants. If the delay implicated
any good faith dispute over contractual terms, that dis-
pute involved the contract between the defendants and
Girouard for ‘‘consulting’’ and ‘‘design services’’ regard-
ing the renovations. The trial court found, however,
that the agreement between the defendants and Girou-
ard ‘‘was entered into separate from and independent
of the agreement between the plaintiffs . . . and the
defendants . . . .’’
Our review of the record leads us to conclude that
the trial court did not abuse its discretion in determining
that the defendants’ withholding of rent was unaccom-
panied by a good faith intent to comply with the lease
or a good faith dispute over the meaning of the lease.
We find Sassoon’s testimony at trial particularly illumi-
nating on this point. When asked why the defendants
stopped paying rent, Sassoon explained: ‘‘[I]t was [an]
act of desperation. Because we were trying to draw [the
plaintiffs’] attention to what we [were] facing, [how]
we [were] hurting. Because [Girouard] was not taking
our orders. He was not returning our phone calls. He
was not taking our orders. So this was [the] only way
we could stay in business and pay for our rent.8 Because
we were deep into the project, without being into the
building. And we just wanted the project to finish so
we could get into the building.’’ (Footnote added.) With-
holding rent in order to ‘‘stay in business’’ and to ‘‘draw
[the plaintiffs’] attention’’ to the defendants’ difficult
financial situation demonstrates neither a good faith
intent to comply with the lease nor a good faith dispute
over the meaning of the lease.9
Our analysis does not end there, however, because
this case requires us to address the issue left open
in Fellows, that is, whether a defendant’s intentional
nonpayment of rent must necessarily be deemed wilful,
for purposes of the equitable nonforfeiture doctrine, if
the tenant cannot show that the withholding was the
result of a good faith intent to comply with the lease
or a good faith dispute over the meaning of the lease.
See Fellows v. Martin, supra, 217 Conn. 68 (‘‘[w]e need
not decide whether a tenant who deliberately refuses
to pay rent may yet claim relief under the equitable
doctrine against forfeitures [when] the forfeiture is as
grossly disproportionate as it is in this case’’). Without
foreclosing the likelihood that this question may not be
susceptible to a categorical answer applicable to all
cases and all circumstances, we have no difficulty
answering it in the affirmative in the present case, on
this record, given the trial court’s finding that the defen-
dants’ purported reason for withholding rent—their
concerns about environmental contamination—was
‘‘pretextual.’’ ‘‘A court of equity will apply the doctrine
of clean hands to a tenant seeking . . . equitable relief;
thus, a tenant whose breach was [wilful] or grossly
negligent will not be entitled to relief.’’ (Internal quota-
tion marks omitted.) Id., 67; see also Fairchild Heights,
Inc. v. Dickal, 118 Conn. App. 163, 178–79, 983 A.2d 35(2009) (denying tenants equitable relief from forfeiture
because of unclean hands), aff’d, 305 Conn. 488, 45 A.3d
627 (2012). It is axiomatic that, ‘‘[when] a [party] seeks
equitable relief, he must show that his conduct has been
fair, equitable and honest as to the particular contro-
versy in issue.’’ (Internal quotation marks omitted.) Thomp-
son v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).
Withholding rent on pretextual grounds is outside the
bounds of the ‘‘fair, equitable and honest’’ conduct
expected of a party seeking equitable relief. (Internal
quotation marks omitted.) Id. Because the defendants
intentionally withheld rent on pretextual grounds in the
absence of any good faith dispute over the terms of the
lease, it was within the trial court’s equitable discretion
to determine that the defendants acted wilfully and
were ineligible for equitable relief from forfeiture. See
2 S. Symons, Pomeroy’s Equity Jurisprudence (5th Ed.
1941) § 452, pp. 287–88 (‘‘While a defaulting party may
thus acquire a right to the equitable relief from the
conduct of the other party, he may also lose the right,
which otherwise would have existed, as a consequence
of his own conduct. . . . He who asks help from a
court of equity must himself be free from inequitable
conduct with respect to the same [subject matter].’’).
We are not persuaded by the defendants’ argument
that conduct is wilful within the meaning of the doctrine
of equitable nonforfeiture only if it is ‘‘intentional con-
duct designed to injure . . . .’’ (Internal quotation
marks omitted.) In support of this argument, the defen-
dants cite a footnote in 19 Perry Street, LLC v.
Unionville Water Co., supra 294 Conn. 611, in which
we stated that ‘‘[w]ilful misconduct has been defined
as intentional conduct designed to injure for which
there is no just cause or excuse. . . . [Its] characteris-
tic element is the design to injure either actually enter-
tained or to be implied from the conduct and circum-
stances. . . . Not only the action producing the injury
but the resulting injury also must be intentional. . . .
[T]he term wilful has [also] been used to describe con-
duct deemed highly unreasonable or indicative of bad
faith.’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 630–31 n.10. Although 19 Perry Street, LLC,
concerned the doctrine of equitable nonforfeiture, we
did not confront the question of when a tenant’s nonpay-
ment of rent is wilful in the absence of a good faith
intent to comply with the lease or a good faith dispute
over the meaning of the lease. Instead, we determined
that the tenant’s nonpayment had not been wilful
because it had been accompanied by a good faith intent
to comply with the lease. See id., 634. We reject the
suggestion that the generic definition of wilful con-
tained in 19 Perry Street, LLC, which we borrowed,
perhaps without adequate consideration, from the tort
and employment law contexts,10 was intended to serve
as a definitive statement of the meaning of ‘‘wilful’’ for
the doctrine of equitable nonforfeiture. Indeed, we have
previously noted that ‘‘wilful is a word of many mean-
ings, and its construction [is] often . . . influenced by
its context’’; (internal quotation marks omitted) State
v. Newton, 330 Conn. 344, 362, 194 A.3d 272 (2018); and
that observation is fitting here. Upon reflection, it is
clear to us that the definition of wilfulness connoting
an injurious intent, although apt in other contexts,
serves no productive role in the equitable nonforfeiture
analysis. A tenant’s nonpayment can be wilful within
the meaning of the equitable nonforfeiture doctrine in
the absence of any ‘‘design’’ on the tenant’s part to cause
harm to the landlord; indeed, most summary process
actions based on nonpayment involve tenants who
intend no harm but simply find themselves without the
financial means to meet their obligations. We therefore
disavow the definition of wilfulness contained in the
footnote in 19 Perry Street, LLC, to the extent that it
would require a finding of injurious intent to trigger a
finding of wilfulness under the equitable nonforfeiture
doctrine.
The defendants intentionally withheld rent payments
unaccompanied by a good faith intent to comply with
the lease or a good faith dispute over the meaning of
the lease. As previously discussed, the trial court found
that the defendants’ purported environmental concerns
were ‘‘pretextual’’ and that their actual reasons for with-
holding rent were their dissatisfaction with the delays
in their renovations to the premises—delays not attrib-
utable to the plaintiffs’ conduct—and the difficulty in
paying rent to both their previous landlords and the
plaintiffs. Under these facts, it is clear that the trial
court did not abuse its discretion in refusing to grant
the defendants equitable relief from forfeiture.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** September 30, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The facts as recited are those stipulated to by the parties, those found
by the court in its original decision or subsequent articulations, or those
the court reasonably could have found.
2
At that time, the department was named the Department of Environmen-
tal Protection. Effective July 1, 2011, the legislature established DEEP as
the successor agency to the Department of Environmental Protection. See
Public Acts 2011, No. 11-80, § 1. For ease of reference, we refer to the
department as DEEP.
3
Despite these letters and the earlier DEEP inspections of the tank, Domi-
nick testified that he was not aware of any environmental contamination
on the premises at the time the parties signed the lease in November, 2013.
Dominick explained that, after he received the test results from Absolute
Tank, he spoke to an official at DEEP who informed him that the results
were not significant and ‘‘[didn’t] mean a thing in contamination.’’ Dominick
testified that he became aware of the contamination only after DEEP issued
an order to the plaintiffs in July, 2014, to remediate the contamination. The
trial court found that neither the plaintiffs nor the defendants were aware
that the premises contained contaminants ‘‘above action levels’’ prior to a
subsequent order issued by DEEP in July, 2014.
4
Dominick’s response to Nader’s inquiry was in dispute at trial. Nader
testified that Dominick told him that ‘‘[t]here was no contamination, there
was no trace of any violations whatsoever. . . . There [were] never any
violations.’’ Dominick testified that he told Nader, ‘‘if this property is contam-
inated, [the defendants will] take care of all the contamination . . . .’’
5
Girouard printed this letter on stationery with the letterhead ‘‘Klein New
England.’’ From the testimony adduced at trial, it appears that Klein New
England is a sole proprietorship owned by Girouard.
6
Girouard testified that the term ‘‘owners’’ referred to the defendants.
Sassoon testified that he understood the term to refer to the plaintiffs.
7
De minimis non curat lex means ‘‘[t]he law does not concern itself with
trifles.’’ Black’s Law Dictionary (11th Ed. 2019) p. 544.
8
The defendants were obligated to pay rent on a lease for another property,
where their businesses previously had been located and remained located
while renovations progressed.
9
The defendants point out that they deposited the withheld rent in an
escrow account and argue that this demonstrates their good faith intent to
comply with their obligation to pay monthly rent. The defendants cite our
decision in 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn.
611, in support of their argument. Although the payment of the withheld
rent into escrow may be a fact warranting consideration by the trial court,
it does not alone compel a finding of good faith. In 19 Perry Street, LLC,
the defendant water company learned that its landlord had sold the leased
premises but did not know to whom. Id., 618–19. The defendant undertook
efforts to determine the identity of the new owner and began stockpiling
funds for purposes of paying rent once the owner was identified. Id. The
defendant learned the identity of the new owner only when that owner
served a notice to quit on the defendant. Id., 619. At that point, the defendant
offered to pay all past due rent using its stockpiled funds. Id. We determined
that the defendant’s stockpiling of rent while it sought to determine the
identity of its new landlord demonstrated a good faith intent to comply with
the lease, explaining that ‘‘[s]etting aside . . . or stockpiling funds in the
event they became due contraindicates any intentional or purposeful failure
to pay rent . . . .’’ (Emphasis added.) Id., 634. This holding has little rele-
vance in the present case, in which the defendants plainly knew the identity
of their landlord but nonetheless decided to stockpile funds in lieu of paying
rent that had already become due under the undisputed terms of the lease.
10
The footnote in 19 Perry Street, LLC, cited the definitions of wilfulness
provided in Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988), a tort
action, and Saunders v. Firtel, 293 Conn. 515, 531, 978 A.2d 487 (2009), an
appeal construing a number of employment statutes and statutes governing
limited liability companies. See 19 Perry Street, LLC v. Unionville Water
Co., supra, 294 Conn. 631 n.10.