8 EAST NEWBERRY ROAD, LLC v. McDONNELL MARINE SERVICE, LLC.

2009 Ct. Sup. 533
No. CVH 7405Connecticut Superior Court Hartford Housing at Hartford
January 24, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
GILLIGAN, J.

This is an action by the plaintiff, 8 East Newberry Road, LLC, to recover unpaid rent and reimbursement of the cost of removing property allegedly left behind when the defendant, McDonnell Marine Service, LLC, vacated the subject commercial premises. The defendant has denied the allegations in the plaintiff’s complaint, asserted several special defenses to the action and filed a counterclaim for the alleging that the plaintiff damaged personal property owned by, or in the custody of, the defendant. The court conducted a trial on September 10, 2008 and the parties submitted proposed findings of fact and conclusions of law on September 26, 2008.

After consideration of the pleadings, the evidence submitted, and assessing the testimony and credibility of the witnesses, the court finds the following facts to have been proven and reaches the conclusions set forth herein.

Background
The defendant conducted commercial business operations on the premises known as 8 East Newberry Road, Bloomfield, CT (the “Premises”) for approximately fifteen years under the terms of an oral lease. The plaintiff purchased the Premises on or about July 23, 2004 and continued to accept the established rental payments of $500.00 per month from the defendant. . On December 8, 2004, the plaintiff forwarded a proposed written lease to the defendant requesting that it be signed and returned. On January 1, 2005, the plaintiff wrote and advised the defendant that if the proposed lease was not returned by January 15, 2005, the plaintiff would assume that the defendant had no intention of continuing to occupy the Premises. On January 9, 2005 the plaintiff advised the defendant that the Premises were to be marketed by its realtor and requested a current set of keys since the prior owner failed to provide same. The defendant continued to pay rent through and including the month of April, 2005. On or about April 11, 2005, the CT Page 534 plaintiff served the defendant with a notice to quit, however, no summary process action was commenced.

The first count of the plaintiffs’ complaint alleges breach of lease and second count alleges unjust enrichment.

The First Count.
In the first count of the complaint, the plaintiff seeks to recover unpaid “rent” of $1,000 claimed to be due for the months of May and June 2005.

As a special defense, the defendant has asserted that the plaintiff’s service of the notice to quit in April, 2005 terminated the lease and its obligation to pay rent. “[U]pon service of a notice to quit possession, a tenancy at sufferance is created. . . . Even though a tenant at sufferance is excused from a duty to pay the stipulated rent under the lease, the obligation to pay a fair rental value for the use and occupancy of the dwelling unit remains.” Housing Authority v. Hird, 13 Conn. App. 150, 157-58, 535 A.2d 377, cert denied, 209 Conn. 825, 552 A.2d 433 (1988). The court finds that the evidence established that the defendant had not removed all its personal property until June, 2005. Accordingly, the court awards the plaintiff $1,000 as use and occupancy for the months of May and June.

The plaintiff also claims in the first count that the defendant “failed to pay its share of the `triple net’ charges, consisting of Town taxes, property insurance, fire insurance and water usage” totaling $1,859.94 in accordance with “The Agreement and practice of the parties.” The plaintiff failed to provide any evidence that the defendant’s oral month to month rental agreement with the plaintiff or the prior owner obligated the defendant to pay any specific financial obligation other than the $500 rent.

Additionally, in the first count, the plaintiff also seeks to recover its costs to remove and dispose of personal property allegedly owned by the defendant and left on the Premises. At trial, the plaintiff claimed that it expended a total of $5,902.50 to remove and dispose of the personal property. The sum claimed by the plaintiff included charges for multiple man hours of labor at $65 per hour. On cross examination, the plaintiff acknowledged that the labor was supplied by workers having some employment connection with the plaintiff. The personal property consisted of a trailer, oil drums and many other items which the defendant testified were owned by prior owners of the Premises or former third party occupants of the remainder of the building and outdoor areas of the CT Page 535 Premises. As noted, there was no written lease between the parties. The plaintiff has the burden to prove the allegations in its complaint. “While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. (Citations omitted.) Gulycz v. Stop Shop Cos., 29 Conn. App. 519, 523, cert denied, 224 Conn. 923 (1992). In the absence of a written lease identifying the tenant’s personal property and requiring the defendant to remove all personal property from the Premises, the plaintiff has the burden to prove that the personal property removed was owned by the defendant and that the defendant is responsible for the reasonable cost of its removal. The court finds that the plaintiff has failed to sustain its burden to prove by a preponderance of the evidence that the property disposed of was owned by the defendant.

At trial, the plaintiff claimed that the defendant caused damage to the Premises by removing an electrical service panel. The defendant credibly testified that the electrical panel was installed and owned by the defendant and its removal did not affect the supply of electricity to the remainder of the building. Moreover, the plaintiff made no allegation of property damage in its complaint, including the removal of the panel. “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [the] complaint.” Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987). Accordingly, the plaintiff has failed to sustain its burden of proof with regard to the cost of the electrical panel.

In sum, the court enters judgment in favor of the plaintiff on the first count and awards damages to the plaintiff in the sum of $2,000 against the defendant.

The Second Count.
In the second count of the plaintiff’s complaint, the plaintiff alternatively claims sums due from the defendant on the basis of “unjust enrichment.”

An action which seeks damages for unjust enrichment and quantum meruit is allowable as an alternative basis for recovery in the event of a failure to prove a breach of contract claim. See Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986). However, “Unjust CT Page 536 enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract.” Burns v. Koellmer, 11 Conn. App. 375, 383
(1987).

“Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (internal quotation marks omitted.)Polverari v. Peatt, 29 Conn. App. 191, 200-201, 614 A.2d 484 (1992).

“Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. 5 Williston, Contracts (Rev. Ed.) § 1479. To prevail under the doctrine of unjust enrichment, there must be a finding that there was no written or oral contract and no contract implied by conduct. Meaney v. Connecticut Hospital Ass’n., 250 Conn. 500, 511, 735 A.2d 813 (1999). In its complaint, the plaintiff alleged the breach of a lease agreement. Moreover, the plaintiff has failed to show the existence of any implied contract or that the defendant would be unjustly enriched by expenditures for services and costs incurred by the plaintiff to remove property which the plaintiff has failed to prove was owned by the defendant.

Judgment is entered in favor of the defendant on the second count.

The Defendant’s Counterclaim.
The defendant has filed a “counterclaim/cross complaint” alleging that the “landlord, its agents, servants and/or employees did break into and enter the premises and did take and/or destroy significant equipment and property” of the defendant. The defendant also alleges that the plaintiff is responsible for the loss of a customer’s outboard motor which the defendant had to replace at a cost of $950.

At trial, the defendant sought to recover $10,000 for personal property which the defendant claimed was improperly disposed of by the plaintiff and $500 for one-half of the cost of an outdoor storage unit which was purchased by the parties in September, 2004. The court finds that the defendant failed to prove by a preponderance of the evidence it offered at trial that the defendant to support its claim that it suffered any ascertainable damages other than credible testimonial and documentary evidence in support of the claim for $950 which the defendant paid to reimburse a customer for a discarded outboard motor.

Judgment is entered in favor of the defendant on its counterclaim and CT Page 537 the court awards damages to the defendant against the plaintiff in the amount of $950.

Judgment is entered in accordance with the foregoing without any taxable costs.

So ordered. CT Page 775