Axela New Britain Group, LLC v. LHBP Realty, LLC , 165 Conn. App. 694 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
AXELA NEW BRITAIN GROUP, LLC
v. LHPB REALTY, LLC
(AC 37723)
Lavine, Beach and Pellegrino, Js.
Argued February 3—officially released May 24, 2016
(Appeal from Superior Court, judicial district of New
Britain, Young, J.)
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellant (defendant).
Patrick W. Finn, with whom, on the brief, was Tara
L. Shaw, for the appellee (plaintiff).
Opinion
PELLEGRINO, J. The defendant, LHPB Realty, LLC,
appeals from the judgment of the trial court declaring
that a restrictive covenant in an agreement between
the predecessors in interest of the defendant and the
plaintiff, Axela New Britain Group, LLC, had expired.
On appeal, the defendant claims that the court improp-
erly interpreted the restrictive covenant in the
agreement. We affirm the judgment of the trial court.
The following undisputed facts are relevant to this
appeal. The defendant owns a parcel of land located
at 693 Farmington Avenue in New Britain (Sussman
parcel). This parcel previously was owned by Harold
M. Sussman, Paul G. Sussman, and Bernard S. Sussman
(Sussmans). The plaintiff owns an abutting parcel of
land located at 643 Farmington Avenue in New Britain
(Ronsam parcel). This parcel previously was owned by
Ronsam Properties, Inc. (Ronsam). On February 1,
1972, the Sussmans and Ronsam entered into a cross
easement and maintenance agreement (agreement),
which provided for easements and certain restrictions
on the two parcels. At the time, the Sussmans operated
a food supermarket on their property and Ronsam
leased its parcel to Caldor’s of New Britain, Inc. (Cald-
or’s), for the operation of a discount department store.1
A food supermarket has been in continuous operation
on the Sussman parcel since the execution of the
agreement. Caldor’s was operated continuously on the
Ronsam parcel until it went out of business in March,
1999. Subsequently, Wal-Mart Real Estate Trust (Wal-
Mart) leased the Ronsam parcel and operated a retail
store on the parcel until August 31, 2009. Wal-Mart also
went out of business, and the Ronsam parcel has been
unoccupied and vacant since August, 2009.
The agreement entered into by the Sussmans and
Ronsam contained a restrictive covenant that is at issue
in this appeal. Paragraph 5 of the agreement states:
‘‘Ronsam covenants and agrees that so long as the food
supermarket is being operated on the Sussman Parcel,
Ronsam will not enter into any lease or permit occu-
pancy for any portion of the building shown as ‘Depart-
ment Store’ on the plan entitled ‘Exhibit B’, annexed
hereto, (or any addition thereto or any substitution
thereof in the event the ‘Department Store’ building is
subsequently demolished), the purpose of which shall
be for the sale or display of delicatessen, meat, fish,
fruit, produce, groceries, canned goods, ice cream, or
bakery goods intended for consumption off the prem-
ises except that candies, cookies, pastries, nuts and
doughnuts may be sold for consumption off the prem-
ises. This restriction shall be strictly construed to apply
only to the building shown as ‘Department Store’ on
Exhibit B and no other building or property of Ronsam.
This restriction shall not apply to the sale of food for
consumption on the premises, and this restriction shall
continue for so long as the discount department store
contemplated for construction on the Ronsam Parcel
shall be occupied for such use, but in any event, shall
be for a minimum of twenty (20) years from the date
of this agreement. Ronsam acknowledges that this cove-
nant herein is of vital importance to Sussmans, and in
the event of any violation thereof, in addition to any
other remedies available to them, Sussmans may apply
for injunctive relief.’’ The only other provision in the
agreement that references a termination date is para-
graph 21 of the agreement, which states: ‘‘This
agreement, including but not limited to the easements
and rights granted hereunder, shall terminate and be
of no further force or effect fifty (50) years from the
date hereof except for the restrictive covenants in Para-
graph 5 aforesaid, which has a different termination
date.’’
On April 23, 2014, the plaintiff filed an amended com-
plaint seeking a declaratory judgment, pursuant to Prac-
tice Book § 17-54 et seq., that the restrictive covenant
is extinguished and/or void ab initio, has no legal effect,
and is unenforceable as to the plaintiff or any succes-
sors. The plaintiff filed a motion for summary judgment,
which the court granted on January 29, 2015. In its
memorandum of decision, the court held that the ‘‘plain
and unambiguous language of paragraph 5 provides that
the restriction therein shall continue for a minimum of
twenty years from the date of the agreement, but that
the restriction may expire after twenty years if the dis-
count department store building referenced in the para-
graph is no longer occupied for such use.’’ (Emphasis
omitted.) The court noted that the twenty year period
expired as of February 1, 1992, and that the discount
department store building was no longer occupied for
such use because it had been unoccupied and vacant
since 2009. Thus, the court held that there were no
genuine issues of material fact, the restriction in para-
graph 5 had expired, and the plaintiff was entitled to
summary judgment as a matter of law. This appeal
followed.
On appeal, the defendant claims that the court erred
in its construction of the restrictive covenant and
ignored the plain language of the covenant that provides
that it remain in effect so long as a food supermarket
is in operation on the Sussman parcel. According to
the defendant, paragraph 5 sets forth two separate pro-
visions, a main restriction to benefit the Sussman parcel
and a carve out from such restriction to benefit the
Ronsam parcel, with the main restriction remaining in
effect so long as there is a food supermarket in opera-
tion on the Sussman parcel. There is currently a food
supermarket in operation on the Sussman parcel and
therefore, according to the defendant, the restrictive
covenant remains in effect. We disagree with the defen-
dant and hold that the trial court properly determined
that the restrictive covenant expired as there is no dis-
pute that twenty years had passed and the building on
the Ronsam parcel was no longer operated as a discount
department store.
‘‘This court’s review of a grant of summary judgment
is plenary.’’ Darin v. Cais, 161 Conn. App. 475, 480,
129 A.3d 716 (2015). ‘‘The judgment sought shall be
rendered forthwith if the pleadings, affidavits and any
other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.’’ Practice
Book § 17-49. Further, ‘‘[t]he interpretation of a contract
presents a question of law subject to de novo review.
. . . [O]n appeal [this court is not] bound by the trial
court’s interpretation of the contract provision at issue;
rather, [this court has] an equal opportunity to consider
the words of the contract within the four corners of the
instrument itself.’’ (Internal quotation marks omitted.)
Sonson v. United Services Automobile Assn., 152 Conn.
App. 832, 838, 100 A.3d 1 (2014).
‘‘The meaning and effect of the [restrictive covenant]
are to be determined, not by the actual intent of the
parties, but by the intent expressed in the deed, consid-
ering all its relevant provisions and reading it in the
light of the surrounding circumstances. . . . The pri-
mary rule of interpretation of such [restrictive] cove-
nants is to gather the intention of the parties from their
words, by reading, not simply a single clause of the
agreement but the entire context, and, where the mean-
ing is doubtful, by considering such surrounding cir-
cumstances as they are presumed to have considered
when their minds met. . . . A restrictive covenant
must be narrowly construed and ought not to be
extended by implication. . . . Moreover, if the cove-
nant’s language is ambiguous, it should be construed
against rather than in favor of the covenant.’’ (Citation
omitted; internal quotation marks omitted.) Alligood v.
LaSaracina, 122 Conn. App. 479, 482, 999 A.2d 833
(2010).
We begin with the language itself. The covenant is
four sentences long. The first sentence and the third
sentence are of prime importance in this appeal.2 The
first sentence states that ‘‘Ronsam covenants and agrees
that so long as the food supermarket is being operated
on the Sussman Parcel, Ronsam will not enter into
any lease or permit occupancy for any portion of the
building shown as ‘Department Store’ . . . the purpose
of which shall be for the sale or display of [food]
intended for consumption off the premises . . . .’’ The
third sentence states that ‘‘[t]his restriction shall not
apply to the sale of food for consumption on the prem-
ises, and this restriction shall continue for so long as
the discount department store contemplated for con-
struction on the Ronsam Parcel shall be occupied for
such use, but in any event, shall be for a minimum of
twenty (20) years from the date of this agreement.’’
The defendant argues that the two provisions are
‘‘ostensibly inconsistent’’ but that they can be recon-
ciled when the covenant is recognized as providing for
two separate things—a main restriction and a carve out
from such restriction—each with a different termina-
tion. According to the defendant, the first sentence pro-
vides for the restriction to benefit the Sussman parcel
and lasts as long as a food supermarket is in operation
on that property. Further, according to the defendant,
the third sentence sets forth a carve out in the beginning
of the sentence, and the second reference to ‘‘this
restriction’’ in the third sentence refers to that carve
out. We are not convinced.
The first sentence of the covenant sets out the restric-
tion. ‘‘Ronsam covenants and agrees that so long as the
food supermarket is being operated on the Sussman
Parcel, Ronsam will not enter into any lease or permit
occupancy [of the Department Store building], the pur-
pose of which shall be for the sale or display of [food]
intended for consumption off the premises . . . .’’
Thus, the first sentence sets forth a restriction on Ron-
sam’s ability to sell food items intended for consump-
tion off the premises. The second sentence begins with
‘‘[t]his restriction,’’ referring to the restriction set forth
in the first sentence. The first clause of the third sen-
tence also begins with ‘‘[t]his restriction,’’ also referring
to the restriction set forth in the first sentence. The
second clause of the third sentence, which is separated
from the first clause with a comma, also begins with
‘‘this restriction.’’ There is nothing to indicate that the
use of the words ‘‘this restriction’’ in the second clause
of the third sentence refers to anything other than the
restriction set forth in the first sentence of the covenant.
The term ‘‘this restriction’’ is used in two other places
in the covenant to refer to the restriction in the first
sentence, and the use of the phrase in the second clause
of the third sentence is no different.
Thus, we must then look to the second clause of
the third sentence, while keeping in mind that ‘‘this
restriction’’ refers to Ronsam’s restriction on the sale
of food items intended for consumption off the prem-
ises. The second clause of the third sentence reads ‘‘this
restriction shall continue for so long as the discount
department store contemplated for construction on the
Ronsam Parcel shall be occupied for such use, but in
any event, shall be for a minimum of twenty (20) years
from the date of this agreement.’’ Therefore, the restric-
tion was to continue for a minimum of twenty years,
but may expire after twenty years, if the discount
department store building referenced in the paragraph
is no longer occupied as a discount department store.
It is undisputed that the parties entered into the
agreement on February 1, 1972, and the twenty year
period expired as of February 1, 1992. It is also undis-
puted that the building on the Ronsam parcel, which
previously was occupied by Caldor’s and Wal-Mart, has
been unoccupied and vacant since approximately
August 31, 2009. Thus, the restriction has expired.
The defendant argues that interpreting ‘‘this restric-
tion’’ in the second clause of the third sentence as
referring back to the restriction set forth in the first
sentence would give no effect to the language of the
first sentence. Specifically, the first sentence states that
Ronsam agrees to a restriction on the sale of food items
intended for consumption off the premises ‘‘so long as
the food supermarket is being operated on the Sussman
Parcel . . . .’’ The defendant interprets this to mean
that the restriction lasts so long as the food supermarket
is in operation. We do not agree. ‘‘The individual clauses
of a contract . . . cannot be construed by taking them
out of context and giving them an interpretation apart
from the contract of which they are a part.’’ Levine v.
Advest, Inc., 244 Conn. 732, 753, 714 A.2d 649 (1998).
This first sentence of the covenant sets forth the
restriction and notes that it is applicable only ‘‘so long
as the food supermarket’’ is in operation on the Sussman
parcel. The third sentence references the duration of
the restriction. If the Sussman parcel no longer contains
a food supermarket, then Ronsam, or the plaintiff as
the current owner, is no longer under an obligation
to abide by the restrictions set forth in the covenant.
However, if the Sussman parcel continues to operate
a food supermarket, then the expiration language in the
third sentence becomes necessary. This construction is
bolstered by the fact that paragraph 21 of the
agreement, which includes the termination date for the
agreement, specifically excludes paragraph 5 and states
that the restrictive covenant in paragraph 5 has a ‘‘differ-
ent termination date.’’ Such termination date is found
in the third sentence of the covenant.
On the basis of our review of the agreement and the
trial court’s memorandum of decision, we conclude that
the trial court properly determined that there was no
genuine issue of material fact that the restrictive cove-
nant had expired. Accordingly, the court properly
granted summary judgment for the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The department store building was not constructed until after the
agreement was signed.
2
The second sentence provides that the covenant applies only to a certain
building on the plaintiff’s property, and the fourth sentence provides that
the restriction was of vital importance and could be enforced by injunctive
relief and other remedies.