author: LAVINE, J.

text:
    PIC ASSOCIATES, LLC v. GREENWICH PLACE GL ACQUISITION, LLC
    (AC 31606)
    Harper, Lavine and McDonald, Js.

      Argued November 16, 2010 —
    officially released April 19, 2011

      James A. Fulton, for the appellant (plaintiff).

      Michael D. O’Connell, with whom, on the brief, was Erin Arcesi Mutty, for the appellee (defendant).
   Opinion

LAVINE, J.

In this summary process action involving commercial real property, the plaintiff, PIC Associates, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Greenwich Place GL Acquisition, LLC. On appeal, the plaintiff claims that the court mistakenly concluded that the defendant had proven its special defense of equitable nonforfeiture as to both counts of the plaintiffs complaint. We affirm the judgment of the trial court.

There is no dispute as to the following facts. The parties are the successors in interest to a fifty year ground lease for real property that abuts West Putnam Avenue in Greenwich (town). Forty-eight units of a larger apartment complex known as Putnam Green are situated on the premises. The original lessor was John. & John, Inc., the plaintiffs predecessor in interest, and FAWN Associates was the original lessee. Antares Putnam Green IV, SPE, LLC (Antares), succeeded to the interests of FAWN Associates.

In 2007, Antares allowed numerous mechanic’s hens to be placed on the premises and recorded in the town land records. On December 27,2007, the plaintiff delivered notice to Antares that it was in default of the lease by reason of those mechanic’s hens. On January 11, 2008, the defendant received an assignment of the lease from Antares and acquired ownership of the apartment complex on the premises. At the time of the assignment, Radco Management, LLC (Radco), assumed responsibility for the management of the premises and apartment complex on behalf of the defendant. With respect to the mechanic’s hens, the defendant sent the plaintiff a surety bond in the amount of $2,108,733 on January 24, 2008.

Neither Antares nor the defendant paid the plaintiff the fixed monthly rent for January, 2008, within thirty days of its due date as required by the lease. On February 1, 2008, the plaintiff served the defendant with a notice to quit, which gave the following reasons: (1) “nonpayment of rent when due,” and (2) “an expressed stipulation in your written lease gives the lessor the right to terminate your lease and re-enter the demised premises upon the lessee’s failure to cure any default in the performance of any obligations or terms of the lease within thirty (30) days after notice thereof.” Immediately upon receipt of the notice to quit, the defendant paid the plaintiff rent for both January and February, 2008.

The plaintiff commenced this summary process action on November 4, 2008. Count one alleged that the plaintiff was entitled to possession of the premises due to the defendant’s failure to pay the January, 2008 rent when it was due, and count two alleged that the plaintiff was entitled to possession of the premises for the defendant’s failure to discharge the mechanic’s hens as required by the lease. In response, the defendant alleged several special defenses, but only the doctrine of equitable nonforfeiture is relevant to this appeal.

The matter was tried to the court on May 21 and September 1, 2009. The court issued its findings and judgment orally on October 8, 2009. The court found that the defendant was negligent in failing to pay the January, 2008 rent pursuant to the lease but that the failure was not wilful or gross negligence. The court also found that the defendant negligently failed to post the proper bonds for the mechanic’s liens but concluded that the plaintiff contributed to the mechanic’s lien issue by not responding to the January 24,2008 letter in which the defendant’s counsel, Nellie P. Camerik, requested that the plaintiffs counsel communicate “any questions regarding this matter . . . .” The court concluded that the defendant had prevailed on its special defense of equitable nonforfeiture and rendered judgment in its favor. The plaintiff filed a motion for reargument and reconsideration. The court granted the motion for reargument, but following the reargument on October 20, 2009, denied the motion for reconsideration. The plaintiff appealed. Additional facts will be set forth as necessary.

“Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords 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. . . . Summary 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.) HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 642-43, 792 A.2d 165 (2002).

“[E]quitable defenses . . . implicating the right to possession are available in a summary process proceeding.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 777, 627 A.2d 386 (1993). “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. . . . The ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Elliott v. South Isle Food Corp., 6 Conn. App. 373, 377, 506 A.2d 147 (1986). “Our practice in this [sjtate has been to give a liberal interpretation to equitable rules in working out, as far as possible, a just result.” Petterson v. Weinstock, 106 Conn. 436, 446, 138 A. 433 (1927). “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.” (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 629-30, 987 A.2d 1009 (2010).

I

The plaintiffs first claim is that the court erred in concluding that the defendant had proven its special defense of equitable nonforfeiture for nonpayment of rent by finding that the defendant merely was negligent in failing to pay the January, 2008 rent on time. We disagree.

In response to the November, 2008 summary process action in which the plaintiff alleged that it was entitled to possession of the premises due to nonpayment of the January, 2008 rent, the defendant denied that it had failed to pay the January, 2008 rent and alleged the doctrine of equitable nonforfeiture as a special defense, pleading, in part, that eviction would not be an appropriate remedy in view of the improvements the defendant and its predecessors in interest had made to the premises. The plaintiff denied the defendant’s special defense.

“[E]quitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding. If, then, the tenant’s equitable claim was properly raised, it was properly before the trial court.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 777. “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 disproportionate to the injury to the landlord; and (3) the landlord’s injury is reparable.” Id., 778.

The court found that the defendant’s failure to pay timely the January, 2008 rent constituted negligence, rather than gross negligence. The plaintiff argues, on appeal, that the court’s conclusion was incorrect because it was predicated on the court’s finding that the defendant paid the plaintiff within a few days of receiving the notice to quit. Although the court’s oral decision is a bit ambiguous, our review of the decision reveals that the court made a specific finding that the defendant was negligent because it did not ask Antares whether the January, 2008 rent had been paid.

The court found in part: “The plaintiff, in its complaint, has alleged that it served the notice to quit because the [defendant] had not paid the rent, and that’s true and there’s no argument about it. The January rent was not paid timely. However, when the notice to quit was issued in early . . . February, not only was the January rent paid, but the February rent was paid. So, as I indicated earlier, and I think it’s not coming by surprise, I think the [defendant was] negligent. I think that [it] should have, being a responsible large organization . . . with billions of dollars or millions of dollars, should have made a key question, did you pay the January rent? ... I don’t care how many papers you have on the table, that’s so fundamental that it clearly was negligent. But on the other hand, I don’t think it was wilful.”

Our Supreme Court has defined gross negligence as “very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or slight diligence . . . .” (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 338, 885 A.2d 734 (2005). It has defined wilful misconduct “as intentional conduct designed to injure for which there is no just cause or excuse. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. . . . Not only the action producing the injury but the resulting injury also must be intentional.” (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 630 n.10.

On the basis of our review of the record and considering the standard apphcable to equitable nonforfeiture for nonpayment of rent; see Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 778; we conclude that the record supports the court’s finding that the defendant was neghgent, not grossly neghgent, in failing to pay the January, 2008 rent in a timely fashion due to its failure to ask Antares whether the January rent had been paid. We also conclude that the court properly found that the defendant had prevailed on its special defense of equitable nonforfeiture. The defendant paid the January and February, 2008 rent within days of receiving the February 1, 2008 notice to quit. “[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. ” (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 630. “[T]he conduct of the [lessee] after he was informed of the nonpayment . . . is conclusive of the good faith of the [lessee] . . . and his continuous desire to avoid a forfeiture . . . .” Thompson v. Coe, 96 Conn. 644, 657, 115 A. 219 (1921). “[M]any courts have also taken into consideration the tenant’s actions after receiving notice by the landlord of the termination of the lease, looking favorably on any actions by the tenant to cure the default or evidencing an intent to prevent the forfeiture . . . .” (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., supra, 634. We agree with the court that the defendant should have asked Antares specifically whether the January rent had been paid, but we cannot conclude that its failure to do so was more than negligence.

In his dissent in Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 314, Justice Norcott stated that “[t]his court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically [wilful] in its nature. ” (Internal quotation marks omitted.) Id., 352. The record simply does not support a finding that the defendant’s failure to pay timely the January, 2008 rent was gross negligence.

Moreover, the harm, if any, to the plaintiff was. repaired and, as the court found, to evict the defendant after it had paid hundreds of thousands of dollars to acquire the apartment complex and large sums to improve the premises, would have been radically disproportionate to the loss suffered by the plaintiff due to the delay of a few days in the payment of one month’s rent. For the foregoing reasons, we agree with the court’s finding that the defendant proved its special defense of equitable nonforfeiture for nonpayment of rent.

II

The plaintiffs second claim is that the court improperly concluded that the defendant had proven the special defense of equitable nonforfeiture with regard to the mechanic’s hens on the premises. Specifically, the plaintiff claims that the court erroneously concluded that (1) the defendant was negligent, not grossly negligent, by positing a surety bond and (2) any delay in bonding off the liens or providing the proper bond as security for the hens was due, in part, to the plaintiffs failure to respond to a letter from counsel for the defendant. We do not agree.

In count two of the complaint, the plaintiff alleged that it was entitled to possession of the premises because the defendant was in default of the lease for failing to discharge certain mechanic’s hens. In response, the defendant denied that it had failed to discharge the subject hens. It also pleaded the special defense of equitable nonforfeiture, alleging that it had “secured a $2,108,733.00 surety bond on the [premises, which covers all of the mechanic’s hens that were filed against the [premises, thereby assuring the [p]laintiff that it would not suffer any actual loss as a result of the hens. In addition, if the [defendant is evicted from the [p]remises, it will suffer a loss that is wholly disproportionate to the injury that the [p]laintiff would suffer because the [defendant and its predecessors in interest have substantially improved the [premises by virtue of the construction of three buildings [comprising] approximately [forty-eight] apartment units with avalué in excess of one million dollars, which improvements would be forfeited if the eviction is permitted.” The defendant also alleged that the plaintiffs injury was reparable in that it was remedied by virtue of the surety bond.

Following trial, the court found that, on January 24, 2008, Camerik, an attorney with the Florida office of Weil, Gotshal & Manges LLP, sent a letter enclosing a surety bond to counsel for the plaintiff, James A. Fulton of Whitman Breed Abbott & Morgan LLC. In her letter, Camerik set forth the defendant’s understanding of § 16 of the lease and stated that the defendant considered delivery of the surety bond satisfaction of its obligations with respect to the mechanic’s hens. Camerik concluded her letter, stating, “If you have any questions regarding this matter, please do not hesitate to call me.” The plaintiffs counsel did not respond to Camerik to inform her that the plaintiff did not consider the surety bond adequate protection against the mechanic’s hens.

In adjudicating count two, the court stated, “I was almost persuaded by [the arguments of the plaintiffs counsel] that the failure to resolve the hens and to provide a bond to the [plaintiff] that they felt gave them the reasonable assurance was really close to gross neghgence. The only reason I don’t find it to be gross neghgence is because, as [the defendant’s counsel] has pointed out, there’s a letter from . . . Camerik of January 24. That’s clearly within the thirty day period, in which she says on page two, ‘[t]he [s]urety [b]ond has been sized to cover the aggregate amount of all [f]iled [l]iens plus an additional 25 [percent] above that amount. If the [f]iled [l]iens have not been discharged as encumbrances on the [property prior to determination of the [s]urety [b]ond, we understand that further reasonable assurance will be required to be delivered in order to entitle [l]essee the privilege of contesting or continuing to contest any undischarged [f]iled [l]iens.”

The court found that there were sixty-seven mechanic’s liens on the premises at the time of the closing and that within a matter of months, the defendant had secured the release of the vast majority of them, “leaving only three . . . .” The court found that the defendant was negligent with respect to the type of bond it provided the plaintiff but that the defendant was not responsible for the delay in bonding off the liens. The court reached its conclusion that the defendant was merely negligent on the basis of Camerik’s letter of January 24, 2008, which the plaintiffs counsel acknowledged receiving on January 24, 2008. The court found that, through Radco, the defendant “made immediate efforts to satisfy the bond requirement within the thirty day period and specifically said, any questions regarding this, do not hesitate to contact me.” The court concluded that the plaintiff did not have the “right to sit back and not respond to that letter and to not say, hey, this surety bond is inadequate or we want something more.” The court found that in the notice to quit, the plaintiff pointed to express stipulations in the lease regarding defaults but failed to identify the default that had not been cured. The court stated that summary process law is “very exact, very strict.” The court found that, under the circumstances, it was incumbent on the plaintiff to tell the defendant specifically what type of assurance it wanted.

The court also stated that, even though the surety bond did not provide the plaintiff with the assurance it was seeking, it credited the defendant “with making reasonable efforts and assurances to the landlord by reason of the fact that [the defendant] got rid of the vast majority” of liens. See footnote 10 of this opinion. The defendant was attempting to satisfy the requirements under § 16 of the lease, which states in part that the lessee “shall be privileged to contest such lien, by litigation or otherwise, to a judgment which shall be final beyond possibility of appeal . . . .” Moreover, the court found that the plaintiff “had the right to expect reasonable assurance, but what was it that, in [its] efforts, that Radco didn’t do? So, I do not find that the delay, and there was a delay, was caused simply by the actions of Radco, I think that that the landlord contributed to that delay, and I’m not going to find that [the defendant] did not satisfy the second prong.”

Last, the court found that, if the defendant were evicted, the plaintiff stood to profit disproportionately compared with the defendant’s loss. The court found that, if the defendant was in good standing, the defendant would collect rent from forty-eight units, twelve times a year, for sixteen or seventeen years. Also, the defendant had paid hundreds of thousands of dollars to take over the outstanding lease, including the purchase price, the cost of improvements and the sixty-seven hens that were discharged. On the plaintiffs side, it incurred more than $9000 to defend a foreclosure action. Comparing losses, the court found that the loss to the defendant, if the plaintiff were to prevail, was monumental in comparison with that of the plaintiff.

At the October 20, 2009 reargument, the plaintiffs counsel argued that the lease did not require it to tell the defendant that it considered the surety bond inadequate to protect its interest in the premises. In support of its argument, the plaintiff relied on Constantino v. Lodjiodice, 93 Conn. 203, 208, 105 A. 465 (1919) (“duty of notice, if it exists, must be found in the contract”). The court distinguished Constantino, a contract action, from the one at hand, which involves an equitable special defense. Moreover, our review of Constantino reveals the following complete statement of the rule. “The duty of notice, if it exists, must be found in the contract, or must arise as a matter of common fairness and equity from the circumstances of the case.” (Emphasis added.) Id.

During the hearing, the court stated to the plaintiffs counsel: “[T]hey prepared a bond and it’s not like they . . . did nothing to show good faith that they were procuring a bond, which they hoped was satisfactory to you. When the letter said if you have any questions, contact us, don’t you think that you still had some duty to make some initial review of the bond and say, by the way counsel, this bond is totally N-G or it doesn’t protect us. We suggest that you ought to read it more carefully or go back to your insurance company and get a bond that satisfies us.” The plaintiffs counsel denied that the plaintiff or its counsel was required to do so. Nonetheless, the court concluded that the defendant made good faith efforts to satisfy the requirements of the lease.

As we stated previously, “[t]he balancing of equities is a matter which falls within the discretion of the trial court. . . . For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. . . . Discretion means a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Citations omitted; internal quotation marks omitted.) Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007).

In adjudicating the second count of the complaint, which alleged that the plaintiff was entitled to possession of the premises due to the defendant’s default on the mechanic’s hens, the parties cited and the court relied on the tripartite standard quoted in Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001). “The tripartite standard . . . requires that the tenant establish (1) that the delay was a result of mere neglect and not gross or wilful negligence, (2) that the delay was slight, and (3) that the lessor suffered only minimal harm while the harm to the lessee was substantial. All three elements of this standard must be met before equitable relief will be granted.” (Internal quotation marks omitted.) Id., 715.

In resolving this appeal, we traced the origins of the tripartite standard. Our research discloses that it was adopted by our Supreme Court when it was resolving a summary process appeal in which the landlord alleged that the tenant had failed to give timely notice of intent to renew an existing lease. See F. B. Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47 (1922). For the reasons explained herein, we conclude that the tripartite standard is inapplicable to the facts of this case. In doing so, we note the plaintiffs concession in its brief that Connecticut courts recognize that different standards apply to the doctrine of equitable nonforfeiture depending on the factual basis alleged in the summary process action. See, e.g., part I of this opinion discussing the doctrine of equitable nonforfeiture for nonpayment of rent.

A

The plaintiff again claims that the court improperly determined that the defendant was negligent, rather than grossly negligent. We do not agree.

In count two of its complaint, the plaintiff alleged, in part, that “[o]n December 27, 2007, [the] [p]laintiff caused a written notice to be duly served on [the] [lessee specifying its failure to discharge certain mechanic’s liens recorded against the [premises, as required under the terms of the [l]ease. . . . [The] [defendant has failed to comply with its obligations under the [l]ease by failing to discharge said mechanic’s liens recorded against the [premises.” In its answer, the defendant denied allegations or implications “that the [defendant failed to discharge certain mechanic’s liens recorded against the [premises . ...” In its special defense, the defendant alleged, in part, that “the [defendant secured a $2,108,733.00 surety bond on the [premises, which covers all of the mechanic’s liens that were filed against the [premises, thereby assuring the [p]laintiff that it would not suffer any actual loss as a result of the liens. . . . Finally, the [p]laintiff s injury is reparable in that the defaults can, and have been, remedied by virtue of . . . the securing of the $2,108,733.00 surety bond.”

The court found that the defendant was negligent in failing to bond off each of the mechanic’s liens but that it had demonstrated a willingness, within thirty days of the notice'of default, to remedy the mechanic’s liens on the premises by providing the plaintiff with a surety bond. In its brief, the plaintiff cites Elliott v. South Isle Food Corp., supra, 6 Conn. App. 373, a summary process action concerning mechanic’s liens, in which the tenants permitted mechanic’s liens to be placed on two pieces of property. The landlord sent notices of default and instituted summary process actions to evict the tenant. At the time of trial, the tenants had done nothing to remove the mechanic’s liens from the subject property. Id., 378. The trial court found that the tenant’s failure to remedy the mechanic’s liens after it received a default notice indicated “either an inability or an unwillingness to do so.” Id. On appeal, this court concluded that such a finding was “an example of at least borderline wilful or gross negligence in failing to fulfill [conditions] precedent of a lease, [where] equity will never intervene.” (Internal quotation marks omitted.) Id., 378-79. Elliott is distinguishable from the facts here, under which the court found that the defendant had demonstrated a willingness, within thirty days of the notice of default, to remedy the mechanic’s liens on the premises by providing the plaintiff with a surety bond. Unlike the tenant in Elliott, who did nothing to remedy the mechanic’s liens, the defendant here resolved all but three of sixty-seven mechanic’s liens in a matter of months. As we previously noted, gross neghgence is “very great or excessive neghgence, or as the want of, or failure to exercise, even shght or scant care or shght diligence . . . .” (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 338. We cannot conclude that the defendant demonstrated merely scant care or shght diligence.

B

The plaintiff also claims that the court improperly found that the delay in bonding off the mechanic’s hens was not slight. A review of the court’s oral decision reveals, however, that the court found no delay because the defendant posted the surety bond within thirty days of the plaintiffs notice of default. Nonetheless, it also found that there was a delay but that it was due, in part, to the plaintiffs failure to respond to Camerik’s January 24, 2008 letter. See footnote 15 of this opinion. The court’s finding and the plaintiffs claim, therefore, are incongruous because they concern different issues and different periods of time. Under the facts of this case, we cannot conclude that the slight delay language of the second prong of the tripartite standard controls. See Modzelewski v. William Raveis Real Estate, Inc., supra, 65 Conn. App. 715.

In Modzelewski, the defaulting tenant alleged equitable nonforfeiture in response to a summary process action for the tenant’s failure to give timely notice to renew a lease. The tripartite standard was first stated in this jurisdiction in the case of F. B. Fountain Co. v. Stein, supra, 97 Conn. 619, in which the plaintiff tenant sought to secure the renewal of a written lease and an injunction against being ousted. The tenant, a successor in interest to a lease, failed to give thirty days written notice of its desire to extend the leasehold. Id., 620. Our Supreme Court held that the “thirty-day clause was a condition precedent to the taking effect of the renewal term. No rights to a renewal could vest until [the] plaintiff had complied with the terms of this condition.” Id., 623. “Since the thirty-day notice was not given at least thirty days before the expiration of the terms of the lease . . . the plaintiff has no right to relief unless it can establish . . . such facts as will bring it within the power of equity to relieve.” Id. After reviewing the state of equity on the issue; id., 624-26; the court concluded “the better rule to be that in cases of wilful or gross negligence in failing to fulfill a condition precedent of a lease, equity will never reheve. But in cases of mere neglect in fulfilling a condition precedent of a lease, which does not fall within accident or mistake, equity will reheve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” (Emphasis added.) Id., 626-27.

Over the decades, the tripartite standard has been applied in other cases involving a tenant’s failure to give timely notice of its desire to renew a lease. See Galvin v. Simons, 128 Conn. 616, 25 A.2d 64 (1942) (mandatory injunction ordering defendant to renew lease and against prosecution of summary process); Xanthakey v. Hayes, 107 Conn. 459, 140 A. 808 (1928) (injunction ordering landlord to execute renewal and extension of lease); Tartaglia v. R.A.C. Corp., 15 Conn. App. 492, 545 A.2d 573 (summary process action where tenant failed to give timely notice of intent to renew), cert. denied, 209 Conn. 810, 548 A.2d 443 (1988); Seven Fifty Main Street Associates Ltd. Partnership v. Spector, 5 Conn. App. 170, 497 A.2d 96 (same), cert. dismissed, 197 Conn. 815, 499 A.2d 804 (1985); R & R of Connecticut, Inc. v. Stiegler, 4 Conn. App. 240, 493 A.2d 293 (1985) (whether tenant’s late notice of intention to renew lease of commercial property should be excused on equitable principles).

The analysis of the amount of delay in cases concerning notice of intent to renew a lease is of little help in this case, as it arises in a substantially different context. In the notice of intent to renew cases, there was a specific time in which notice had to be given, e.g., thirty days prior notice or six months prior notice. A delay of five days where thirty days notice is required is qualitatively different from a five day delay where six months notice is required. The import of delay in such cases goes to the landlord’s use of its property. That is not the situation in the case at hand. Here, the issue with respect to delay concerns a landlord’s right to avoid foreclosure.

In this case, the court found that, within a matter of months, the defendant had remedied the majority of the mechanic’s liens at a cost of hundreds of thousands of dollars. In its effort to demonstrate harm, the plaintiff has argued extensively that the defendant’s failure to bond off the mechanic’s liens immediately placed it at risk. The plaintiff introduced evidence that foreclosure actions were commenced on three of the mechanic’s liens and that it incurred $9000 in attorney’s fees. The defendant settled all three actions and no foreclosure resulted. The defendant proved that its default was reparable.

The plaintiff’s claim as to what the lease required of the defendant goes to the defendant’s understanding of its obligations under the lease and whether it was at fault for failing to retain Connecticut legal counsel to inform it of its obligations. The plaintiff implies that if the defendant had retained Connecticut counsel, the defendant would have resolved the default in a different manner. That implication is speculation. The evidence reveals that, in response to the plaintiff’s notice of default, the defendant retained counsel to resolve the default. Camerik corresponded with the plaintiff’s counsel, explained her understanding of the lease and opined that the surety bond met the requirements of the lease. “[A]n honest mistake, incorrect interpretation or mere difference in the parties’ interpretations of a contract does not amount to bad faith conduct without an associated dishonest purpose.” (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 637. “ ‘[A] court of equity may grant relief from a forfeiture when the defendant’s omission was caused by an error of law’ . . . .’’Id., 634, quoting Fellows v. Martin, 217 Conn. 57, 68, 584 A.2d 458 (1991).

We have found precedent for a court’s finding that the landlord contributed to a tenant’s default on the lease, albeit in the context of nonpayment of rent. We conclude, however, that equity should consider such a finding in cases of other types of default as well. In IP Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 611, our Supreme Court concluded that the trial court had improperly rendered a judgment of possession to the landlord where, among other things, the loss to the tenant would be wholly disproportionate to the loss to the landlord; id., 634-36; the tenant made a good faith effort to comply with the lease; id., 636-38; the tenant was ready, willing and able to pay the rent due; id., 638; and the landlord’s injury was reparable. Id. In Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 771, our Supreme Court agreed with the trial court that the lessee’s conduct was not wilful or grossly negligent and that it paid the rent and taxes due within thirty days of receiving the lessor’s recalculations of those amounts, and thus the delay was slight. Id., 778-79. The court also concluded that the impact of a forfeiture on the lessee would be wholly disproportionate to the injury suffered by the lessor; id., 779; and that the loss was reparable. Id., 781-82. We therefore conclude that because the court found that the plaintiff was responsible, in part, for the delay in the defendant’s failure to bond off the mechanic’s liens, it did not err in concluding that the defendant had proven its special defense of equitable nonforfeiture.

The judgment is affirmed.

In this opinion the other judges concurred.

       The remainder of the apartment complex is owned by the defendant in fee title.

       Section 16 of the lease is entitled “Liens,” and states in relevant part: “[The lessee] shall not create or permit to be created against the Demised Premises, the road or the [lessee] PARCEL any lien based on work or material ordered by or on behalf of [lessee]. If, and as often as, any such lien shall be filed, [lessee] shall take steps, by bonding or otherwise, to have such lien discharged of record, provided, however, [lessee] shall be privileged to contest such lien, by litigation or otherwise, to a judgment which shall be final beyond possibility of appeal, provided, further that [lessee] shall give [lessor] such reasonable assurance or security as may be appropriate to assure that [lessor’s] interest in the leased premises, the road or the [lessee] parcel, shall not be jeopardized thereby.”

       The assignment was to have taken place on December 27, 2007, but was continued to January 11, 2008, for reasons not relevant to this appeal.

       In Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991), a summary process action predicated on nonpayment of rent, our Supreme Court held “that equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding.” Id., 62. “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.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 106 n.15, 900 A.2d 1242 (2006).

       The following provisions of the lease are applicable to the plaintiffs claim. Section 6 of the lease is entitled “Fixed Rent.” Section 6.01 states in relevant part: “The fixed rent for the basic term shall be . . . payable in monthly installments ... on the first day of each month, in advance . . . .” Section 23 of the lease concerns default provisions. Section 23.01 states in relevant part: “Upon the failure of [lessee] (i) to pay the fixed rent within thirty (30) days of the due date ... A. [Lessor] shall have the right, at its own option, to terminate this lease and may at any time thereafter re-enter the Demised Premises . . . and without any such re-entry may recover possession thereof in the manner required by the statute relating to summary process . . . .”

       More specifically, the defendant’s first special defense alleged in relevant part that “[t]he [pjlaintiffs claims are denied, in whole or in part, by the doctrine of equitable nonforfeiture in that all defaults or alleged defaults under the [ljease were resolved in a timely fashion such that eviction would be an inappropriate remedy. First, the [djefendant’s alleged failure to pay the January 2008 rent in a timely fashion was not willful or intentional in any manner, but rather was the result of a miscommunication between the [djefendant and the prior [ljessee at the time of the assignment of the [ljease to the [djefendant. In fact, within days of learning that the January 2008 rent had not been paid, the [djefendant remitted full payment to the [pjlaintiff on February 4, 2008, thereby minimizing any prejudice or damage. Furthermore, since January 2008 the [djefendant has paid, and the [pjlaintiff has accepted, all monthly rental payments due under the [ljease in a timely fashion. ... In addition, if the [djefendant is evicted from the [pjremises, it will suffer a loss that is wholly disproportionate to the injury that the [pjlaintiff would suffer because the [djefendant and its predecessors in interest have substantially improved the [pjremises by virtue of the construction of three buildings [comprising] approximately 48 apartment units with a value in excess of one million dollars, which improvements would be forfeited if the eviction is permitted. Finally, the [pjlaintiffs injury is reparable in that the defaults can, and have been, remedied by virtue of the payment of the January 2008 rent . . . .”

       The plaintiff does not claim that the defendant’s failure to pay rent was irreparable or that the defendant would not suffer a disproportionate loss if evicted.

       The plaintiff cited the following portion of the court’s oral decision to support its claim. “But once having received the notice to quit and almost immediately paying the January and February rent, I find that that short period of time beyond the thirty day period was not wilful, was not gross negligence. And I think the first prong as to the rent has been satisfied by the defendant under their equitable defenses.” This finding of the court is more relevant to the defendant’s “good faith intent to comply with the lease.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 778.

       The plaintiff contends that there was insufficient evidence to support the court’s finding that the defendant was negligent, not grossly negligent. We do not agree.
      The transcript reveals the following examination of Norman J. Radow, who was employed by Radco, an asset management and distressed real estate company, by the defendant’s counsel, Michael D. O’Connell.
      “Q. And why did you not realize that the January rent had not been paid?
      “A. It was a combination of errors. In December, the transaction with Antares was supposed to close at the end of December. Obviously, January’s rent wasn’t due yet. And in the representations and warranties of the seller of Antares, they said that other than the liens, there was no fact that would lead to a default of the PIC lease.
      “Then the closing was adjourned for different reasons to January 11, and those reps and warranties were not changed. So, when we took over, when Radco took over, we assumed that the January rent was paid because the representation of the seller was that all rent and other obligations to PIC [were] met other than the open liens, which we addressed immediately.”
      The plaintiff argues that the defendant should have put the documents in evidence so that the court could decide what representations Antares had made. The representations Antares made were not relevant to the issue of negligence. As the court stated in its decision, regardless of the content of the documents, at the closing in January, 2008, the defendant should have asked Antares directly whether the January, 2008 rent had been paid.

       The court also read the remainder of Camerik’s January 24, 2008 letter, which stated: “We believe that the delivery of the Surety Bond to Lessor satisfies all obligations of the Lessee under the Ground Lease under Section 16 thereof and the requirement to provide reasonable assurance or security to the Lessor as a precondition to Lessee’s right to contest the Piled Liens and consequently effects a cure of all defaults described in the Default Notice.
      “Per your instructions to me on the phone, we are delivering the enclosed Surety Bond to you as agent for the Lessor. Kindly acknowledge your receipt of the original Surety Bond on behalf of the Lessor by signing below where indicated and returning a copy of this letter to me via fax or email.

        “If you have any questions regarding this matter, please do not hesitate to call me." (Emphasis added.)

       There is no claim on appeal that the defendant has not paid the debt underlying any of the mechanic’s hens.

       The plaintiffs notice to quit gave the following reasons wherefore:
      “1. nonpayment of rent when due;
      “2. expressed stipulation in your written lease; an expressed stipulation in your lease gives the lessor the right to terminate your lease and re-enter the demised premises upon the lessee’s failure to pay the fixed rent within thirty (30) days of the due date;
      “3. expressed stipulation in your written lease; an expressed stipulation in your lease gives the lessor the right to terminate your lease and re-enter the demised premises upon the lessee’s failure to cure any default in the performance of any obligations or terms of the lease within thirty (30) days after notice thereof.”

       See HUD/Willow Street Apartments v. Gonzalez, supra, 68 Conn. App. 643-44.

       The court stated with respect to the law of summary process: “If the landlord or the tenant do not comply with the requirements of the summary process statutes, one of them is going to be out. And the landlord has an obligation to specifically spell out to the tenant. When you look at the letter that was sent by their counsel to [the plaintiffs attorney], if there’s anything further you require, let us know. And then one week later, notice to quit is started without any further explanation. . . . [TJhat’s playing very close to the vest. That, to me, is almost . . . ambush. That, to me, is an attempt to hold up this tenant. Further down the line, if these events had occurred, I could perhaps understand a quick notice to quit. But within the first month?”

       We note that in its oral decision, the court also stated, “I don’t think the tenant here delayed. I think [it] erroneously didn’t provide the correct bond . . . .” The plaintiff failed to seek an articulation to resolve any ambiguity in the court’s decision. See Practice Book § 66-5.

       The plaintiff claims that the defendant was grossly negligent with regard to the mechanic’s liens by not retaining Connecticut counsel to advise it of (1) the requirements of the lease, (2) the rules of practice for substituting a bond for a mechanic’s lien in the Superior Court, (3) redemption deadlines and other procedures following a judgment of foreclosure in this state and (4) the effect of an undischarged mechanic’s lien on the marketability of title in Connecticut.

       The plaintiff cites Elliott to support its claim that the delay in remedying the mechanic’s liens was not slight. The trial court in Elliott found that the delay was not slight; Elliott v. South Isle Food Corp., supra, 6 Conn. App. 378; but this court did not reach that issue after determining that the tenant was grossly negligent.

       In its oral decision, the court did not use the language “slight delay” or undertake any analysis to determine whether the delay was slight or not.

       The relevant provision of the lease states that “if the lessee desires to extend this lease for any period after the first five years, then it shall give written notice of such desire to the lessor at least thirty days before the beginning of any such period.” (Internal quotation marks omitted.) F. B. Fountain Co. v. Stein, supra, 97 Conn. 620.

       At oral argument in this court, the plaintiff represented that there is still one mechanic’s lien on the Greenwich land records, but it did not represent that the underlying debt had not been paid. The defendant contends that the hen is no longer valid pursuant to General Statutes § 49-39.

       In IP Perry Street, LLC v. Unionville Water Co., supra, 294 Conn. 611, our Supreme Court also concluded that the landlord contributed significantly to the delay in payment of rent; id., 630-32; and that there was a good faith dispute over the meaning of the lease. Id., 636-38.

       In Cumberland Farms, Inc., both the trial court and our Supreme Court concluded that the payment of rent was delayed significantly due to the conduct of the landlord-lessor. Cumberland Farms, Inc. v. Dairy Man, Inc., supra, 225 Conn. 779.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    COMMUNITY RENEWAL TEAM, INC. v. UNITED STATES LIABILITY INSURANCE COMPANY ET AL.
    (AC 31317)
    Bishop, Beach and Borden, Js.
    Argued February 14 —
    officially released April 19, 2011

      Thomas R. Gerarde, with whom, on the brief, was Jeffrey E. Potter, for the appellant (substitute plaintiff).

      Kathleen Morrison Grover, with whom was P. Jo Anne Burgh, for the appellee (named defendant).
   Opinion

BORDEN, J.

This appeal involves a dispute between two insurance companies — the substitute plaintiff, Arrowood Indemnity Company (Arrowood), and the named defendant, United States Liability Insurance Company — over the duty to defend under a liability insurance policy. The sole issue of the appeal is whether the trial court properly rendered summary judgment in favor of the defendant in relation to a liability insurance policy that it had issued to the named plaintiff, Community Renewal Team, Inc. (Community). The trial court ruled that the defendant had no duty to defend against a certain claim made against Community that Arrowood had paid. We affirm the judgment of the trial court.

The procedural background is as follows. Michelle Roman, an employee of Community, brought an action against the city of Bristol in connection with certain injuries she sustained on July 2, 2003, during an event sponsored by Community at a certain Pine Lake Challenge Course operated by the city. The defendant had issued a liability policy to Community for certain coverage of the event. Community notified the defendant of Roman’s claim, and the defendant declined to defend or to indemnify Community. Ultimately, Arrowood, the city’s liability carrier; see footnote 2 of this opinion; settled Roman’s claim for $700,000.

Thereafter, Community brought this action against the defendant for breach of the defendant’s obligations under its policy. Arrowood entered the action as a substitute plaintiff; see footnote 2 of this opinion; and filed an amended complaint against the defendant on a theory of equitable subrogation because it had paid the claim to Roman that, it alleged, the defendant should have paid. Arrowood filed a motion for summary judgment, claiming that the defendant had breached its duty to defend the Roman lawsuit. The defendant filed a cross motion for summary judgment, claiming that it had no duty to defend that lawsuit. The court granted the defendant’s motion and denied Arrowood’s motion, and rendered judgment in favor of the defendant. This appeal followed.

The dispute between the parties revolves solely around an exclusion in the defendant’s policy for participation in athletic activity. Specifically, the exclusion, titled “Exclusion — Athletic Activity or Sports Participants,” provides: “This insurance does not apply to ‘bodily injury’ to any person practicing, instructing or participating in any physical training, sport, athletic activity or contest whether on a formal or informal basis.” (Emphasis added.)

Arrowood claims that the trial court improperly concluded that the defendant had no duty to defend against Roman’s lawsuit because the language of the exclusion is ambiguous and there was, therefore, a possibility of coverage. We disagree.

The parties agree, as do we, that our scope of review on the trial court’s ruling on their cross motions for summary judgment is plenary. See Clinch v. Generali-U.S. Branch, 110 Conn. App. 29, 34, 954 A.2d 223 (2008), aff'd, 293 Conn. 774, 980 A.2d 313 (2009).

Furthermore, the law on an insurer’s duty to defend is well settled. “[A]n insurer’s duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint. . . . The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability. ... It necessarily follows that the insurer’s duty to defend is measured by the allegations of the complaint. . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. . . . Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. ... On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend. . . . Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398-99, 757 A.2d 1074 (2000). Our Supreme Court has concluded consistently that the duty to defend means that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury covered by the policy; it is the claim which determines the insurer’s duty to defend .... Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005).

“In ascertaining the meaning of the terms of the insured’s policy, we also are guided by well established principles. The [interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy. . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. ... A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous. . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be constmed in a vacuum. . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy. . . . Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399-400.” (Internal quotation marks omitted.) Clinch v. Generali-U.S. Branch, supra, 110 Conn. App. 34-35.

We therefore turn to an examination of the allegations of Roman’s underlying complaint in her lawsuit against the city of Bristol and compare those allegations to the exclusionary language of the defendant’s policy. That examination and comparison lead us to conclude that the exclusion unambiguously applies to Roman’s allegations and that, therefore, the defendant had no duty to defend against those allegations.

Roman’s pertinent allegations were as follows. The city, through Bristol Youth Services, operated and controlled what was known as the Pine Lake Challenge Course (challenge course). Roman was an invitee of the city “and as such was lawfully on the premises of sard [challenge course] and a participant in its activities. On or about July 2, 2003, at approximately 2:00 p.m., [Roman] was participating in the last element of the day in which she was to ascend to an elevated platform and perform a free fall with a rope. At said date, time and place, [Roman] commenced the free fall when suddenly and without warning, an unknown . . . employee [of the city], who was to catch the rope and brake the free fall, failed to do so and [Roman] fell to the ground, thus causing severe and substantial injuries hereinafter complained of.”

The language of the exclusion, as previously indicated, specifically excludes from coverage “ ‘bodily injury’ to any person . . . participating in any . . . athletic activity . . . whether on a formal or informal basis.” Roman’s allegations clearly and unambiguously present a picture of a participant in a “challenge course” who, as a participant in the last element of the course, in early afternoon, ascends onto an elevated platform to perform a free fall with a rope, a free fall that someone else was supposed to “brake” by catching the rope. She commences that free fall, and she is injured.

We agree with the trial court that, from any reasonable perspective, what Roman was doing was participating in an athletic activity. Put another way, as the trial court did, “there is no reasonable way to read the claims in . . . Roman’s complaint other than that she was a participant in an athletic activity.” Put yet another way, there is no possibility that Roman’s conduct could not be within the meaning of “athletic activity” as that phrase is used in the policy exclusion. Simply put, common sense demands such a conclusion, and “[i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001).

Arrowood contends for ambiguity by pointing to and cobbling together various dictionary definitions of the words “athlete” and “athletic” that could, in other contexts, suggest some plausible meaning that might not include what Roman was doing, and by suggesting hypothetical scenarios — unlike that in which Roman was participating — that, similarly, might suggest other plausible meanings of the words involved. Suffice it to say that these efforts are unavailing.

As Justice Thurgood Marshall so aptly put it: “Condemned to the use of words, we can never expect mathematical certainty from our language.” Grayned v. Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Thus, any word in the English language— except for words of specialized contexts, such as mathematics or science — will ordinarily have multiple meanings, depending on the context in which it has been used. See State v. Courchesne, 262 Conn. 537, 564 n.23, 816 A.2d 562 (2003). That is why we have dictionaries: not to determine the meaning of a given word, or even the preferred meaning of a given word, but simply to give us a lexicon of the various meanings that the word has carried depending on the various contexts of its use. See Northrop v. Allstate Ins. Co., 247 Conn. 242, 250, 720 A.2d 879 (1998) (“Although we have on occasion looked to dictionaries in order to give meaning to words used in a legal context . . . that does not mean . . . that a dictionary gives the definition of any word. A dictionary is nothing more than a compendium of the various meanings and senses in which words have been and are used in our language. A dictionary does not define the words listed in it in the sense of stating what the words mean universally. Rather, it sets out the range of meanings that may apply to those words as they are used in the English language, depending on the varying contexts of those uses.” [Emphasis in original.])

Indeed, reference to Webster’s Third New International Dictionary for “athletic” gives us at least four different definitions, ranging from the somewhat unhelpful “of or relating to athletes or athletics,” as in “the college athletic association,” to “strong, muscular, robust, vigorous, agile, active,” as in “an athletic build” or “a powerful and athletic mind.” But that does not mean, as the defendant’s arguments suggest, that simply because a given word or phrase used in an insurance policy has carried different meanings in different contexts in the English language, it is ambiguous and must be construed against the insurance carrier. If that were so, then for all practical purposes all such words and phrases would be ambiguous, because we would always be able to point to some other meaning that the word has carried in some other context.

Instead, the meaning of a given word or phrase — in this case, “athletic activity” — can only be determined by reference to the factual context in which it is used or to which it is to be applied. The factual context of this case is, as previously described, Roman participating in an element of a “challenge course” by ascending to an elevated platform to perform a free fall with a rope, which is to be interrupted by a person who is to catch the rope, and then commencing that free fall. Whatever else “athletic activity” may mean in the English language in other contexts, in this context it plainly and unambiguously includes that conduct.

The judgment is affirmed.

In this opinion the other judges concurred.

       R.C. Knox & Company, Inc., was named as an additional defendant in this action. It is not involved in this appeal. We therefore refer in this opinion to United States liability Insurance Company as the defendant.

       Earlier, there were two additional plaintiffs, namely, the city of Bristol and Tibor Flothman, a city employee. Subsequently, Arrowood was substituted as a plaintiff for the city and Flothman. Arrowood is the ultimate successor in interest to Connecticut Fire and Casualty Insurance Company, which had issued a policy of commercial general liability insurance to the city. Arrowood is the only plaintiff involved in this appeal.


author: PER CURIAM.

text:
    SYLVESTER TRAYLOR ET AL. v. STATE OF CONNECTICUT SUPERIOR COURT
    (AC 31988)
    Gruendel, Robinson and Peters, Js.
    Argued February 7 —
    officially released April 19, 2011

      Sylvester Traylor, pro se, the appellant (plaintiff).

      Michael K. Skold, assistant attorney general, for the appellee (named defendant).

      John B. Farley, for the appellees (defendant Bassam Awwa et al.)
   Opinion

PER CURIAM.

The pro se plaintiff, Sylvester Traylor, appeals from the judgment of the trial court in favor of the defendants, the state of Connecticut Superior Court (state), Bassam Awwa and Connecticut Behavioral Health Associates, P.C., dismissing his mandamus action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In 2006, the plaintiff, individually and as administrator of the estate of his late wife, commenced an action against Awwa and Connecticut Behavioral Health Associates, P.C. (malpractice defendants), alleging claims of medical malpractice and loss of consortium. In that action, the plaintiff served the malpractice defendants with various discovery requests. The malpractice defendants objected to some of the requests and, because the parties were unable to resolve all of their differences regarding the objections, they appeared before the court, Hon. D. Michael Hurley, judge trial referee, on August 20, 2007. On that date, the court heard argument from both sides and issued several discovery orders requiring compliance by the malpractice defendants. Thereafter, on April 24, 2008, the plaintiff filed a motion to default the malpractice defendants, alleging that they faded to comply with the discovery orders. The court, Abrams, J., granted the motion. On June 17, 2008, the malpractice defendants filed a motion to open the judgment of default and on July 1, 2008, the court granted the motion explaining that it “entered the default order without reviewing [the] defendants’ objection, which was not in the file.” Subsequently, the plaintiff filed several motions contending that the malpractice defendants had not complied with the discovery orders. The judges that heard the motions denied them, concluding that the malpractice defendants had not violated the discovery orders. Judgment was rendered for the malpractice defendants in the malpractice action on February 15, 2011, and the plaintiff appealed from that judgment to this court on February 24, 2011.

On August 12, 2009, the plaintiff filed an amended application for a writ of mandamus ordering Judge Barbara Quinn, the chief court administrator of the state of Connecticut, to “compel the New London [Superior] Court to enforce the [discovery orders], and [to] reinstate a default judgment.” The state and the malpractice defendants both filed motions to dismiss the mandamus action, claiming that a writ of mandamus could not lie where the plaintiff had a right of appeal regarding the trial court’s decisions in the separate action. On February 3, 2010, the court, Hon. Thomas F. Parker, judge trial referee, granted the motions to dismiss because the plaintiff did not claim that any of the discovery orders could not be subject to an appeal once the malpractice action had concluded. The plaintiff appeals from this decision.

On appeal, the plaintiff claims that the court abused its discretion in denying his application for a writ of mandamus. We disagree.

“The requirements for the issuance of a writ of mandamus are well settled. Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy. . . . Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the requested writ of mandamus. ... In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity. . . . We review the trial court’s decision, therefore, to determine whether it abused its discretion in denying the writ.” (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004).

On the basis of our review of the record, and the briefs and arguments of the parties, we conclude that the court properly denied the plaintiffs application for a writ of mandamus because the plaintiff has failed to demonstrate that there is no other specific adequate remedy available to review the court’s actions. Moreover, because the actions of the court that are complained of here may be made an issue in the plaintiffs appeal from the final judgment of the medical malpractice action, mandamus is not warranted. See Huggins v. Mulvey, 160 Conn. 559, 561, 280 A.2d 364 (1971) (mandamus not warranted in situations in which right of appeal from action complained of exists). Accordingly, we conclude that the court did not abuse its discretion in denying the plaintiffs application for a writ of mandamus.

The judgment is affirmed.

       Although the mandamus action was filed on behalf of Sylvester Traylor individually and as administrator of the estate of Roberta Mae Traylor, only Sylvester Traylor in his individual capacity has appealed. We therefore refer to Sylvester Traylor in his individual capacity as the plaintiff in this opinion.

       The plaintiff also makes several claims based on the premise that the court, in denying his application for a -writ of mandamus, deprived him of various constitutional rights. We decline to review these claims because they are inadequately briefed. “Although we axe solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . [W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Thompson v. Rhodes, 125 Conn. App. 649, 651, 10 A.3d 537 (2010).


author: DiPENTIMA, C. J.

text:
    IN RE ANVAHNAY S.

    (AC 32450)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued March 8 —
    officially released April 19, 2011

      Trudy Condio, for the appellant (respondent father).

      Colleen B. Valentine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

DiPENTIMA, C. J.

The respondent father, Anthony S., appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Anvahnay S. On appeal, the respondent claims that the court’s findings were clearly erroneous that (1) the department of children and families (department) made reasonable efforts to reunify him with Anvahnay and that he was unwilling or unable to benefit from such efforts, and (2) he had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B). We affirm the judgment of the trial court.

On September 17, 2007, the department received a referral regarding Anvahnay from the family relations division of the Superior Court due to an incident of domestic violence. After an investigation, the department substantiated physical neglect of Anvahnay by the child’s mother. On August 6, 2008, the petitioner, the commissioner of children and families (commissioner), invoked a ninety-six hour administrative hold; see General Statutes § 17a-101g; and removed Anvahnay from the care and custody of the mother. On August 8, 2008, the commissioner filed a motion for an order of temporary custody and a neglect petition with the Superior Court. The court granted the order of temporary custody that same day. On February 24, 2009, the court adjudicated Anvahnay neglected and committed her to the care and custody of the commissioner. Thereafter, on January 13, 2010, the commissioner filed a petition to terminate the rights of both parents.

Following a trial, the court granted the commissioner’s petition, making the following findings of fact by clear and convincing evidence. Anvahnay was bom on June 16, 2007. The respondent has had minimal involvement in her life. During the department’s investigation of the mother following the September 17,2007 referral, the respondent’s whereabouts were unknown to the department. From the time the commissioner was granted temporary custody of Anvahnay on August 8, 2008, until April 28, 2009, the respondent was a fugitive on “escape status” from the department of correction.

Despite having appeared in court in May, 2008, to consent to the termination of his parental rights of a son through another relationship, the respondent never communicated with the department regarding Anvahnay during the period of his escape status. The respondent has been incarcerated for most of the time that the department has been involved with Anvahnay, and he has not been able to take advantage of services offered by the department of correction. Even after he was transferred to a halfway house in April, 2010, the respondent failed to notify the department to arrange for services. Consequently, the respondent has not complied with most of his court-ordered specific steps to facilitate reunification with Anvahnay. The court then concluded that the department had made reasonable efforts to reunify the respondent with Anvahnay and that the respondent was unable or unwilling to benefit from such efforts. The court thereafter determined that the respondent had failed to achieve a sufficient degree of personal rehabilitation to the point where he could assume a responsible position in Anvahnay’s life within a reasonable time and that it was in Anvahnay’s best interest to terminate his parental rights. This appeal followed.

We first set forth our relevant standard of review and the legal principles that inform our analysis. “Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Rafael S., 125 Conn. App. 605, 610-11,9 A.3d 417 (2010). With these principles in mind, we turn to the respondent’s claims.

I

The respondent first claims that the court’s findings that the department had made reasonable efforts to reunify him with Anvahnay and that he was unable or unwilling to benefit from such efforts were clearly erroneous. We disagree.

As a preliminary matter, we note that the department was required to show clear and convincing evidence of only one of the statutory conditions the respondent now challenges. Section 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition [to terminate parental rights] if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” (Emphasis added.) Thus, “the department must prove [by clear and convincing evidence] either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112 (j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Emphasis in original.) In re Jorden R., 293 Conn. 539, 552-53, 979 A.2d 469 (2009). Accordingly, because we conclude that the court properly found, on the basis of clear and convincing evidence, that the department had made reasonable efforts to reunify the respondent and Anvahnay, we do not reach his claim that the court improperly concluded that he was unable or unwilling to benefit from reunification efforts.

The respondent argues that the court’s finding that the department had made reasonable efforts to reunify him with Anvahnay was not supported by clear and convincing evidence because the department communicated with him only once, failed to apprise him sufficiently of the specific steps required of him to facilitate reunification and provided him with only two visits with Anvahnay. In reply, the commissioner contends that although it is conceivable that more could have been done in this case, the department’s efforts were reasonable in light of the circumstances created by the respondent. We agree with the commissioner.

“The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Chevol G., 125 Conn. App. 618, 621,9 A.3d 413 (2010). Lisa Miller, Anvahnay’s case worker at the department, testified that until May, 2009, when the child’s paternal grandparents informed her that the respondent had been reincarcerated, the respondent’s whereabouts had been unknown to the department prior to and during his escape status from the department of correction. During this time, Miller maintained monthly contact with the paternal grandparents, who would receive periodic telephone calls from the respondent, and she asked the paternal grandparents to relay her contact information and important court dates to him. The paternal grandparents told Miller that they had provided her telephone number to the respondent, but Miller testified that he never called her while he was on escape status. We conclude that during the time the respondent’s whereabouts were unknown, the department’s efforts to reunify the respondent with Anvahnay were reasonable.

Miller testified that after the respondent’s whereabouts became known to the department in May, 2009, she twice spoke with him. She first met him in the court hallway after a hearing on Anvahnay’s permanency plan in November, 2009. During this meeting, Miller provided the respondent with her contact information and discussed the specific steps that were required of him to facilitate reunification, which the court had read to him during the permanency plan hearing earlier. Because the respondent’s incarceration prevented the department from providing services itself, Miller encouraged the respondent to seek out any services provided by the department of correction and then asked him to notify her immediately if he was transferred to a halfway house so that she could arrange community based services. Miller then spoke with the respondent by telephone in February, 2010, “[t]o facilitate treatment planning” and to hear about the services he was receiving. The department made two additional attempts to reach the respondent in April, 2010, but was unsuccessful. Although we recognize that the department did not contact the respondent directly until November, 2009, despite having learned of his reincarceration in May, 2009, we cannot conclude that the court’s finding that the department’s efforts were reasonable under the circumstances was clearly erroneous.

First, through its monthly contact with the paternal grandparents, the department became aware that the respondent was making weekly telephone calls to the paternal grandparents after his reincarceration and was speaking with Anvahnay during these calls. The paternal grandparents also had offered to bring Anvahnay to visit with the respondent, and the department was relying on them to provide this service. Because the paternal grandparents had served previously as a messenger between the department and the respondent while he was a fugitive, the court properly could have concluded that the department’s reliance on the paternal grandparents to facilitate visits was a reasonable effort at reunification. See, e.g., In re Jermaine S., 86 Conn. App. 819, 838, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). Moreover, immediately upon learning that the grandparents were not bringing Anvahnay to visit with the respondent, a fact it learned from the grandparents and not the respondent, the department began providing the visits itself. Second, the respondent has not identified how this period without direct contact was unreasonable where the “inevitable restraint”; see In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); imposed by his incarceration restricted the department’s ability to do little more than provide visits with Anvahnay.

When the respondent was transferred to a halfway house and the department was able to provide him with services, he failed to notify the department of his availability for such services, as had been requested of him by Miller during the November, 2009 meeting. This court has stated previously that “[w]e cannot fault the department for not being able to deliver services to the respondent when he failed to inform the department of his whereabouts . . . .” In re Natalia G., 54 Conn. App. 800, 807, 737 A.2d 506 (1999). In sum, there is clear and convincing evidence in the record that the department maintained both direct and indirect contact with the incarcerated respondent, provided him with contact information, discussed the specific steps he was required to complete and arranged to have Anvahnay visit him, initially through the paternal grandparents and thereafter through its direct involvement. The respondent’s incarceration prevented the department from providing him with services, but he was encouraged to use the services available to him through the department of correction and then told to notify the department when he was transferred to a halfway house so it could arrange community based services. At no point did the respondent attempt to alert the department to his situation, including when he went without visits from Anvahnay, and when he was transferred to a halfway house and was able to participate in community based services. Under these circumstances, we conclude that the court’s finding that the department had made reasonable efforts to reunify the respondent with Anvahnay was not clearly erroneous.

II

The respondent next claims that the court erroneously found that he had failed to achieve a sufficient degree of personal rehabilitation, pursuant to § 17a-112 (j) (3) (B), as would encourage the belief that within a reasonable time he could assume a responsible position in Anvahnay’s life. We disagree.

“[P]ersonal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in her child’s life. Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child’s life.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 149, 962 A.2d 81 (2009).

Calling our attention to the lack of a “meaningful opportunity to engage in services to correct his personal and parenting deficiencies,” both during his incarceration and after his transfer to a halfway house, the respondent argues that it was clearly erroneous for the court to find that he had failed to achieve a sufficient degree of personal rehabilitation when he had not first been provided with services to address his issues, which, he asserts, were not “so serious” to begin with. In making this claim, the respondent implicitly concedes that he underwent no “rehabilitation” after Anvahnay had been adjudicated neglected; he claims, however, that given the innocuous nature of his problems, the record lacks clear and convincing evidence that he could not assume a responsible position in Anvahnay’s life within a reasonable period of time. We are not persuaded.

In its memorandum of decision, the court found that “[the respondent] has not been able to take full advantage of services, as he has been incarcerated for most of the current [department] involvement and has just recently been released from jail.” “Specific steps ordered by the court on February 24, 2009, to facilitate the return of Anvahnay to [the respondent] have not been complied with.” Thus, the respondent had failed to make “the changes necessary in [his lifestyle] that would indicate that [he] would be [a] safe, responsible and nurturing [parent] for [his] child.” The court further found that “[the respondent] will not be able to assume a responsible position in the life of his child within a reasonable time period. He has had minimal involvement in the life of his daughter. He was not available to her during the time he was on escape status from the department of correction, and he has been recently incarcerated. He has not contacted [the department] with regard to [Anvahnay] since she came into [the department’s] care.” “[The respondent] has maintained little contact with the child and the [department]. In order to improve his parenting bond with his child, he is in need of adequate parenting classes and significant visitation with his child. However, since he has been incarcerated for much of the time and was only recently released from incarceration, time will not permit the necessary compliance.” As a result, the court found that the respondent had failed to achieve a degree of personal rehabilitation that would encourage a belief that he could assume a responsible position in Anvahnay’s life within a reasonable amount of time.

We conclude that the court’s finding was supported by clear and convincing evidence. The record shows that at the time of trial the respondent either had been incarcerated or his whereabouts were unknown for all but three months of Anvahnay’s life. During the time that Anvahnay has been in the custody of the commissioner, the respondent has not once initiated contact with the department. Although we recognize that his ability to obtain services while in prison was limited, during his incarceration he failed to notify the department of the lack of visits with Anvahnay, and upon being transferred to a halfway house in April, 2010, he did not seek reunification with Anvahnay, nor did he participate in available community based services. “An inquiry regarding personal rehabilitation requires us to obtain a historical perspective of the respondent’s child-caring and parenting abilities. . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.” (Citation omitted.) In re Stanley D., 61 Conn. App. 224, 231, 763 A.2d 83 (2000). The record shows that the respondent has lacked the ability or willingness to be a parent to Anvahnay. Moreover, there was no evidence at trial to suggest that these circumstances would change in the foreseeable future. Accordingly, we conclude that the court’s finding that the respondent had failed to achieve a sufficient degree of personal rehabilitation was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of Anvahnay’s mother; however, the mother has not appealed from this judgment. We, therefore, refer in this opinion to the respondent father as the respondent.

       The respondent does not challenge any of the court’s findings made during the dispositional phase of the trial.