Baretta v. T & T Structural, Inc.

681 A.2d 359, 42 Conn. App. 522, 1996 Conn. App. LEXIS 427
CourtConnecticut Appellate Court
DecidedAugust 13, 1996
Docket14549
StatusPublished
Cited by19 cases

This text of 681 A.2d 359 (Baretta v. T & T Structural, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baretta v. T & T Structural, Inc., 681 A.2d 359, 42 Conn. App. 522, 1996 Conn. App. LEXIS 427 (Colo. Ct. App. 1996).

Opinion

SPEAR, J.

The defendant lessee, T & T Structural, Inc. (T & T), appeals from the trial court’s judgment in favor of the plaintiff lessor in an action for the recovery of rent. On appeal, the defendant claims that the trial court improperly rendered judgment for the plaintiff in the amount of $1800 because the plaintiff failed to introduce evidence of such damage. The defendant also claims on its counterclaim for constructive eviction that the trial court improperly found that the defendant failed to meet its burden of proof. We reverse the trial court’s judgment on the plaintiffs complaint and affirm the judgment on the defendant’s counterclaim.

The memorandum of decision and exhibits reveal the following facts. On July 12, 1989, the defendant entered into a written lease1 with the plaintiff regarding premises located at 172 Commerce Street in East Berlin.2 The lease, which provided for monthly rent of $900, was for a term of five years and expired on July 13,1994.

[524]*524On February 12, 1993, Carlo Tavarozzi, the defendant’s president, notified the plaintiff by letter that the defendant would be relocating. The letter provided in part: “Per our conversations of February 10th and February 11th, we are presently negotiating to relocate. If negotiations for. the other building are completed successfully, we will be vacating these premises by April 12, 1993, therefore our final rent payment will be made on or about March 13, 1993. We are aware that the lease agreement expires July 12,1994, but we expect that you will impose no penalties on us for moving sooner.” Other than the reference to previous conversations with the plaintiff, the letter did not specifically state the grounds for vacating the premises.

On February 18, 1993, the plaintiffs attorney informed the defendant that it was expected to comply with the terms of the lease. On March 8,1993, Tavarozzi again notified the plaintiff by letter that T & T would be vacating the premises. In that letter, Tavarozzi specifically stated that the cause of the defendant’s move was the odors emanating from the plaintiffs meat packaging facility, the inordinate number of dead flies in the windows and light fixtures, the inadequate air conditioning, and the potholes in the parking lot. On April 13, 1993, the defendant vacated the premises and leased office space in a Rocky Hill office building owned by Tavarozzi.

On July 7, 1993, the plaintiff commenced an action for the recovery of rent. In his complaint, the plaintiff alleged that the defendant was responsible for rent in the amount of $900 per month for each of the remaining fifteen months of the lease. By way of special defense, the defendant pleaded, inter alia, the plaintiffs failure to mitigate damages and constructive eviction.3

[525]*525The trial court found for the plaintiff on the complaint and the counterclaim and awarded the plaintiff $1800 in damages. The court found that the defendant proved that the plaintiff failed to mitigate damages but failed to meet its burden of proof on constructive eviction and lack of consideration. This appeal followed.

I

“On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law. . . . Determining whether a trial court’s decision is clearly erroneous involves a two part function: where the legal conclusions of the court are challenged we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Haynes Construction Co. v. Cascella & Son Construction, Inc., 36 Conn. App. 29, 32, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994).

The defendant first claims that the trial court improperly rendered judgment for the plaintiff in the amount of $1800 because the plaintiff introduced no evidence on the issue of damages. We agree.

Generally, a finding of fact will not be overturned unless it is clearly erroneous in light of the evidence in the entire record. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994). “Afinding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Citation omitted.) [526]*526Id. In this case, there is no evidence in the record to support the trial court’s award of $1800. As such, the award is clearly erroneous. The transcript and the record are devoid of any evidence to support the trial court’s factual finding that the final rental payment to the plaintiff was made in March, 1993.4 There is no evidence as to the months for which the plaintiff received or did not receive rental payments from the defendant, the amount of the last payment, or the period covered by the last payment. Consequently, we conclude that the trial court’s finding that the plaintiff was entitled to damages of $1800 is clearly erroneous.

II

The defendant next claims that the trial court improperly found that the defendant failed to meet its burden of proof on its counterclaim of constructive eviction. We are unpersuaded.

“[A] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant’s promise to pay rent.” (Internal quotation marks omitted.) Conference Center Ltd. v. TRC, 189 Conn. 212, 220, 455 A.2d 857 (1983). In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem. Thomas v. Roper, 162 Conn. 343, 349, 294 A.2d 321 (1972).

[527]*527The factual findings of the trial court are subject to our well established clearly erroneous standard. See Haynes Construction Co. v. Cascella & Son Construction, Inc., supra, 36 Conn. App. 32. Upon reviewing the evidence, we conclude that the trial court’s finding that the defendant failed to meet its burden of proving constructive eviction is not clearly erroneous.

First, the trial court found that the defendant failed to prove that the premises were untenantable. The trial court found that the testimony of the defendant’s witnesses, including that of the health director, did not support this element of constructive eviction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Autry v. Hosey
200 Conn. App. 795 (Connecticut Appellate Court, 2020)
Commerce Park Associates, LLC v. Robbins
Connecticut Appellate Court, 2019
Colon-Collazo v. Cox
193 Conn. App. 251 (Connecticut Appellate Court, 2019)
Mansfield v. A & M Automotive
978 A.2d 1158 (Connecticut Appellate Court, 2009)
Perez v. Vazquez, No. Fa90-0608240 (Apr. 26, 2002)
2002 Conn. Super. Ct. 5046 (Connecticut Superior Court, 2002)
Hjarne v. Martin, No. Fa00-0631333 (Apr. 21, 2002)
2002 Conn. Super. Ct. 5521-aa (Connecticut Superior Court, 2002)
Hornat v. Mercure, No. Bs 2075 F/96 (Jan. 20, 2002)
2002 Conn. Super. Ct. 1297-aa (Connecticut Superior Court, 2002)
Fox Run Mall v. Lawler, No. Cvh-5842 (Jan. 15, 2001)
2001 Conn. Super. Ct. 1830-bq (Connecticut Superior Court, 2001)
Fox Run Mall Assc. Ltd. P. v. Lawler, No. Cvh-5842 (Jan. 15, 2001)
2001 Conn. Super. Ct. 2 (Connecticut Superior Court, 2001)
Heritage Square, LLC v. Eoanou
764 A.2d 199 (Connecticut Appellate Court, 2001)
Maris v. McGrath
753 A.2d 390 (Connecticut Appellate Court, 2000)
Chorches v. Dimeo, No. Cvh 5985 (May 3, 1999)
1999 Conn. Super. Ct. 6561 (Connecticut Superior Court, 1999)
Jones v. New Britain Housing Authority, No. Cv98-0488546s (Apr. 30, 1999)
1999 Conn. Super. Ct. 4079 (Connecticut Superior Court, 1999)
Chorches v. Dimeo, No. Cvh 5985 (Apr. 30, 1999)
1999 Conn. Super. Ct. 5389 (Connecticut Superior Court, 1999)
Twachtman v. Hastings
727 A.2d 791 (Connecticut Appellate Court, 1999)
State v. Sandra O.
724 A.2d 1127 (Connecticut Appellate Court, 1999)
Shearn v. Shearn
717 A.2d 793 (Connecticut Appellate Court, 1998)
Lanese v. Mecca, No. Cv 93 116816 (Aug. 4, 1998)
1998 Conn. Super. Ct. 10014 (Connecticut Superior Court, 1998)
Lovick v. Nigro, No. Lpl-Cv-94-0542473s (Feb. 24, 1997)
1997 Conn. Super. Ct. 1722 (Connecticut Superior Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
681 A.2d 359, 42 Conn. App. 522, 1996 Conn. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baretta-v-t-t-structural-inc-connappct-1996.