Platt v. Tilcon Connecticut, Inc. ( 2020 )

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BRENT PLATT, TRUSTEE OF THE VIRGINIA
D’ADDARIO SPRAY TRUSTS v. TILCON
CONNECTICUT, INC.
(AC 41735)
Prescott, Bright and Moll, Js.
Syllabus
The plaintiff, trustee of the V Trust, sought to recover damages from the
defendant asphalt production company for, inter alia, breach of contract
for the defendant’s failure to remit rental payments in accordance with
two lease agreements. In May, 1974, the defendant’s predecessor in
interest entered into separate, twenty year leases with D for two asphalt
production plants. The leases were set to expire on December 31, 1993,
but provided for an opportunity to extend the terms of the leases. As
trustee, the plaintiff owns a 12.5 percent interest in both plants. Trusts
for three other individuals each own 12.5 percent and the estate of D
owns 50 percent for a total of 87.5 percent interest in the plants. In
1993, the holders of the 87.5 percent interest agreed to amend the leases
with the defendant to reduce the amount of rent. The plaintiff did not
agree to the amendments. On April 1, 1993, the holders of the 87.5 percent
interest executed amendments to the two leases. The amendments made
clear that the plaintiff’s 12.5 percent interest was not a part of the
agreement. After execution of the amendments, the plaintiff considered
the defendant a holdover tenant. The defendant continued to remit rental
payments to the plaintiff, calculated pursuant to the lease amendments
rather than the original lease agreements. The plaintiff accepted and
deposited these payments. The defendant twice exercised its rights to
extend the amendments to the leases for an additional ten years but
did not do so with respect to the plaintiff’s 12.5 percent interest. The
plaintiff’s breach of contract claims were based on the defendant’s
failure to remit rental payments for the plants in accordance with the
terms of the original leases. The trial court found in favor of the defen-
dant, concluding that the original leases expired on December 31, 1993,
and, thus, the plaintiff could not prevail on his breach of contract claims.
On appeal, the plaintiff claimed, inter alia, that the trial court improperly
concluded that the original leases expired on December 31, 1993. Held
that the trial court properly concluded that the plaintiff could not prevail
on his breach of contract claims because the original leases expired on
December 31, 1993, and the plaintiff and the defendant did not form an
agreement to extend the terms of the original leases beyond the expira-
tion of the primary term; the defendant did not exercise the option to
extend the original lease terms with respect to the plaintiff’s 12.5 percent
interest, the defendant’s rent payments, after the expiration of the origi-
nal leases’ primary terms, were formulated commensurate with the
provisions of the lease amendments, supporting the conclusion that
the original leases were no longer enforceable contracts between the
plaintiff and the defendant and the defendant held over, creating a
month-to-month tenancy with the plaintiff’s 12.5 percent interest in
the plants.
Argued December 11, 2019—officially released March 24, 2020
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Britain and tried
to the court, Wiese, J.; judgment for the defendant, from
which the plaintiff appealed to this court. Affirmed.
F. Dean Armstrong, pro hac vice, with whom was
Edward C. Taiman, Jr., for the appellant (plaintiff).
Kevin J. McEleney, with whom were Matthew K.
Stiles, and, on the brief, Christopher A. Klepps, for the
appellee (defendant).
Opinion
MOLL, J. The plaintiff, Brent Platt, in his capacity as
Trustee of the Virginia D’Addario Spray Trusts (VST),1
appeals from the judgment of the trial court rendered
in favor of the defendant, Tilcon Connecticut, Inc., on,
inter alia, two counts of breach of contract.2 On appeal,
the plaintiff claims that the trial court erred by (1)
concluding that the original leases between the parties
expired on December 31, 1993, (2) determining that the
plaintiff’s breach of contract claims were barred by
the statute of limitations, and (3) concluding that the
plaintiff’s breach of contract claims also were barred
by the doctrine of res judicata. We conclude that the
trial court properly determined that the original leases
expired in 1993, and, as a result, the plaintiff could not
prevail on his breach of contract claims.3 Accordingly,
we affirm the judgment of the trial court.
The trial court’s comprehensive memorandum of
decision sets forth the following findings of fact that
are relevant to our resolution of this appeal.4 ‘‘The
plaintiff . . . is the successor trustee of the [VST]. Vir-
ginia D’Addario is the VST’s sole beneficiary. . . . In
May, 1974, Virginia D’Addario’s father, F. Francis D’Ad-
dario (Mr. D’Addario), owned two asphalt production
plants (plants). The plants are located in Danbury and
Newtown. On May 13, 1974, Mr. D’Addario, as landlord,
and Ashland Oil, Inc. (Ashland Oil), as tenant, entered
into separate leases for the two plants (original leases).
. . . [The defendant] is the successor in interest to Ash-
land Oil and is the tenant for the two plants located in
Danbury and Newtown. . . . [The defendant] is the
largest producer of asphalt in the United States. . . .
‘‘In 1976, Mr. D’Addario conveyed fractional interests
in the two plants aggregating 50 percent to the ‘Spray
Trusts’ that Mr. D’Addario established for the benefit
of his then living children, David, Larry, Marylou, Lisa,
and Virginia D’Addario. Mr. D’Addario retained 50 per-
cent interest to himself. In 1990, Lisa D’Addario died
and her fractional interest vested in the Spray Trusts
of her remaining four siblings. The Spray Trusts for
each of Mr. D’Addario’s four surviving children, David,
Larry, Marylou, and Virginia now each own 12.5 percent
of the Danbury and Newtown plants . . . . Mr. D’Adda-
rio died on March 5, 1986. From 1986 to the present, the
estate of Mr. D’Addario (estate) has owned 50 percent
interest in the plants. The estate remains open and
pending. . . .
‘‘The original leases . . . are dated May 13, 1974. The
term of the Danbury lease was for ‘twenty (20) years,
beginning on the first day of the calendar month imme-
diately following the month in which erection of the
asphalt plant on the premises is accomplished . . . .’
The term of the Newtown lease was specified as ‘for
twenty (20) years beginning on January 1, 1974 and
ending on December 31, 1993 . . . subject to earlier
termination or further extension . . . .’ Briefly stated,
and as is relevant to the present dispute, the rent for
the original leases was calculated as ‘the sum of [15]
percent of the gross sales price of each ton of bitumi-
nous concrete produced and sold by lessee from the
operation of the asphalt plant located on the prem-
ises.’ . . .
‘‘Pursuant to the terms of the original leases, Ashland
Oil and its successor, [the defendant], were granted the
option to extend the initial twenty year terms for an
additional three ten year periods. If the lessee elected
to exercise the options to extend the leases, it was
required to provide written notice to the lessor not less
than one year prior to the expiration of the preceding
term. The original leases provided that, ‘[i]n the event
any of said options are exercised, said extended term
or terms shall be upon all of the same terms and condi-
tions . . .’ of the original leases. This would include
the specified rent based upon 15 percent of the gross
sale price of each [ton of] bituminous concrete pro-
duced and sold. Pursuant to the terms of the original
leases, [the defendant] had the right and obligation to
purchase the plants if it chose not to exercise the option
to extend the leases. Unless purchased earlier, [the
defendant] had the obligation to purchase the plants at
the end of the final term in 2024. The purchase price
would be calculated as the fair market value pursuant
to the process set forth in the original leases. . . . The
original leases specified that there could not be any
‘amendment, modification, or waiver . . .’ from the
terms of the lease unless it was in writing and
signed. . . .
‘‘From prior to 1993, through 1999, Stanley Ferber,
as VST’s trustee, was 12.5 percent owner of the plants.
Since approximately 1999, [the plaintiff], as VST’s
trustee, is 12.5 percent owner of the plants. At all rele-
vant times to date, Nicholas Vitti has been the trustee for
the Spray Trusts in favor of David, Larry, and Marylou
D’Addario, and in his capacity as trustee he owns 37.5
percent interest in the plants. . . . From 1986 to date,
the estate has owned 50 percent of the plants. The
current executors of the estate are David and Larry
D’Addario. . . . The trusts of these individuals, along
with the estate, are the plants’ owners.
‘‘Through letter dated January 19, 1993, [the defen-
dant], through its attorney, notified the landlords that
it intended to purchase the plants. The letter identified
an appraiser retained for the purpose of determining fair
market value of the plants. . . . This occurred prior to
the expiration of the original leases. . . . Pursuant to
the original leases, it was [the defendant’s] absolute
right to purchase the plants. There was no requirement
under the original leases that [the defendant] obtain
the landlords’ consent prior to purchasing the plants.
‘‘In 1993, [the defendant] was prepared to exercise
its right to purchase the plants and had engaged an
appraiser. . . . On or about the time that [the defen-
dant] made the notification of purchase, David D’Adda-
rio met with Angelo Tomasso. . . . Angelo Tomasso
had participated along with Mr. D’Addario in the draft-
ing of the original leases’ terms. Mr. D’Addario and
Tomasso had a long-standing personal and business
relationship. David D’Addario indicated to Angelo
Tomasso that he represented all of the D’Addario family
landlords, with the exception of Virginia D’Addario, and
they did not want to sell the plants. . . . Instead, they
wanted the leases renewed. . . . Angelo Tomasso
wanted a reduction in the rent, because it was no longer
economically feasible to pay the rent specified in the
original leases. The price of liquid asphalt had substan-
tially increased, thus, reducing the profit margin in the
finished product produced. Angelo Tomasso was very
much aware of the fact that the VST’s 12.5 percent
interest did not agree with what was being requested
of [the defendant]. . . . David D’Addario informed
Angelo Tomasso that if there was a problem with the
VST, he would handle it. . . .
‘‘Angelo Tomasso contacted Virginia D’Addario in the
spring of 1993, by telephone. He asked her if she would
consent to an amended lease containing a reduced rent.
She told him that she would not consent. This discus-
sion took place prior to the lease amendments being
signed. In a letter dated January 14, 1993, Allan Cane,
the attorney for the VST, notified the trust landlords
and other interested individuals ‘that this is a formal
notice that the [VST] elects not to renew the lease under
the terms expressed by David D’Addario, at this time.’
. . . The reference in the letter to ‘under the terms
expressed’ was to a proposal to reduce the rent on
the plants.
‘‘In a letter dated January 29, 1993, Lawrence
Schwartz, the attorney for Vitti and the estate of Mr.
D’Addario, wrote to [the defendant]. He advised [the
defendant] that his clients owned 87.5 percent of the
plants and that to his clients’ ‘dismay and surprise,’ they
learned that the VST does not want to renew the leases.
. . . He indicated that the owners of the 87.5 percent
are willing to renew the leases ‘along the lines of the
discussions that David D’Addario has had with Tomasso
and request you disregard the communication from Vir-
ginia D’Addario’s attorney.’ . . . The attorney con-
cluded his remarks by stating, ‘it is only a [12.5 percent]
ownership that is in dispute and that the other owners
will clean this matter up on their own.’ . . . On Febru-
ary 15, 1993, the attorney for VST wrote a letter to [the
defendant’s] attorney inquiring as to [the defendant’s]
intentions regarding the plants. . . . He stated, ‘[a]t
this time, my client would like to know the present
status of your intentions as the [e]state has since
advised us on January 29, 1993, that it would be
attempting to buy my client out or seek partition . . .
and then extend the existing lease.’ . . . [The defen-
dant’s] attorney responded by letter dated February 18,
1993, and stated, ‘[t]his is to advise you that my client
is proceeding with entering into a lease extension with
the Trustee and the [e]state [87.5 percent].’ . . . In
response, VST’s attorney wrote in the March 1, 1993
letter, that [the defendant] ‘at least in regard to [VST]
. . . is waiving and relinquishing any right to purchase
[the plants]’ and would be considered a holdover ten-
ant. . . .
‘‘On April 1, 1993, David D’Addario, Lawrence D’Ad-
dario, and Albert Paolini (as coexecutors of the estate),
and Vitti, as trustee of the Spray Trusts of David, Larry,
and Marylou D’Addario, executed an amendment to
lease for the Danbury Asphalt Plant. . . . On July 1,
1993, David D’Addario, Lawrence D’Addario, and Albert
Paolini (as coexecutors of the estate), and Vitti as
trustee for the Spray Trusts of David, Larry, and Marylou
D’Addario, executed an amendment to lease for the
Newtown Asphalt Plant. . . . Ferber, then trustee for
the VST, did not execute the amendments to the Dan-
bury or Newtown plant leases.
‘‘The Danbury and Newtown ‘Amendment to Lease’
provides in relevant part: ‘The [e]state [of Mr. D’Adda-
rio] and Vitti are involved in an owners’ dispute with
the . . . [VST] concerning the lease and related issues.’
. . . ‘The parties hereto now desire to amend and
extend the lease as provided hereafter. NOW THERE-
FORE, the parties hereto agree that all of the terms
and conditions of the lease shall remain in full force
and effect subject only to the following specific amend-
ments which shall be incorporated into and become
part of the lease.’ . . . Among the provisions of the
original leases amended was the lease term. In the lease
amendments, it was specified that the ‘primary term’
commenced on April 1, 1975, and terminated on Decem-
ber 31, 2004. . . . The method for calculating rent was
also substantially altered. . . . The net result of the
amendments pertaining to rent was a reduction in the
amount paid to the landlords.
‘‘The amendment to the original leases included a
‘Quiet Enjoyment’ provision, which provided: ‘The par-
ties acknowledge that the estate and Vitti represent
only 87.5 percent of the landlord’s interest in the Prem-
ises and that [VST] is not a party to this amendment
to lease. [The estate of Mr. D’Addario] and Vitti hereby,
jointly and severally, indemnify and agree to defend
and hold Tenant harmless from and against any and
all loss, cost, liability and expense, including without
limitation reasonable attorneys’ fees, incurred by Ten-
ant and arising out of or in any way connected with
the Owners’ dispute or any challenge to the enforceabil-
ity of this amendment to lease. [The estate of Mr. D’Ad-
dario] and Vitti agree to pursue resolution of the Own-
er’s Dispute with all due diligence by purchasing of the
interest of the [VST], or by means of a judicial partition
action (and subsequent purchase at auction) or other-
wise. . . .’ (Emphasis added.)
‘‘The estate of Mr. D’Addario and Vitti have not taken
steps to resolve the ‘owner’s dispute’ with the VST by
purchasing its 12.5 percent interest, or by means of a
judicial partition action. There are sufficient funds in
the estate to purchase the 12.5 percent VST interest in
the plants. . . . Pursuant to the terms of the ‘Option
to Extend’ contained within the lease amendments, [the
defendant] exercised its option on two occasions for
each plant through December 31, 2024. . . .
‘‘In 1995, Ferber, then VST’s trustee, brought suit
against [the defendant] in an action captioned Ferber
v. Tilcon Connecticut, Inc., Superior Court, judicial dis-
trict of Fairfield, Docket No. CV-XX-XXXXXXX-S (Ferber
lawsuit). This lawsuit was filed by Ferber at the direc-
tion of Virginia D’Addario, in response to the lease
amendments. . . . The initial complaint in the Ferber
lawsuit is dated March 31, 1995. . . . The first count
pertains to the Danbury plant, and the second count
pertains to the Newtown plant. . . . In each count, the
plaintiff alleged that, ‘the defendant has neglected and
refused to undertake to perform its obligations and
covenants under the leasing agreement, but instead has
entered into an [a]mendment to that leasing agreement
with the [e]state of [Mr.] D’Addario, and [the] other
remaining Spray Trusts, but without the plaintiff . . . .’
The ‘leasing agreement’ referred to are the 1974 leases.
. . . The plaintiff sought specific performance forcing
the purchase of the plants and monetary damages in
excess of $15,000. . . .
‘‘In response to the initial complaint, [the defendant]
filed its answer and special defense on June 2, 1995.
. . . In the answer, [the defendant] denied that it
breached the original leases. . . . The special defenses
included the allegation that VST had accepted rental
payments under the lease amendments. In the trial brief,
the VST’s attorney argued that [the defendant] breached
the original leases by entering into the lease amend-
ments, and failing to purchase the plants. . . .
‘‘VST’s acceptance of rental payments was an issue
litigated at [the trial in] the Ferber lawsuit . . . . The
Superior Court, Grogins, J., in a memorandum of deci-
sion dated August 29, 1996, stated: ‘This case turns on
whether the language contained in paragraphs sixteen
and eighteen [in the original leases] obliges the defen-
dant to purchase a one-eighth interest in the plants.
Specifically, the court must determine whether ‘‘the
premises and the structures and improvements located
thereon’’ can be interpreted to mean one-eighth of the
premises, one-eighth of the structures and one-eighth
of the improvements, being a fractional share of the
total premises.’ . . . The court ruled that ‘because the
leases do not oblige the lessee to purchase a fractional
interest in the asphalt plants, the plaintiff’s request for
specific performance is denied.’
***
‘‘’[T]he court enter[ed] judgment for the defendant
on all counts.’ . . .
‘‘The Appellate Court affirmed the Superior Court’s
judgment on November 10, 1998. Ferber v. Tilcon Con-
necticut, Inc., 51 Conn. App. 20, 719 A.2d 921, cert.
denied, 247 Conn. 952, 723 A.2d 324 (1998). . . .
‘‘Since approximately July, 1993, [the defendant] has
paid rent to VST for both plants pursuant to the rent
formula in the lease amendments, as opposed to the
rent formula contained in the original leases. The VST’s
trustees have received and deposited the rent payments
under the lease amendments since July, 1993. A number
of these checks were endorsed ‘without recourse’ or
‘without prejudice.’ . . . Over the years, [the defen-
dant] has provided the VST and other landlords with
documentation that demonstrates how rent payments
have been calculated in accordance with the lease
amendments. . . . Initially, and for a period of time,
[the defendant] paid the rents on the plants directly to
the estate. The estate would then pay the VST and other
landlords. During this period of time, [the defendant]
would not have the opportunity to know how the VST
would endorse the checks, because they would be
returned to the estate. . . . At some point in time, the
VST requested that [the defendant] pay it directly. These
checks were paid to the order of ‘Brent A. Platt Trustee.’
. . . [The defendant] was of the belief that the dispute
over the rent with the VST ended with its conclusion
of the Ferber lawsuit.
***
‘‘From 1994, going forward, [the defendant] provided
the VST with accurate data on how many tons of asphalt
were sold at each plant at the fixed rate used to generate
an income stream. Virginia D’Addario hired a forensic
accountant to examine and verify the data. This exami-
nation confirmed the accuracy of the data provided to
VST. Virginia D’Addario calculated the monetary differ-
ence between the rents due under the original leases
and the lease amendments. She examined a six year
period of time from April 28, 2009 through April 28,
2015. In order to perform these calculations, she hired
a forensic accountant, Steve Pednault, who performed
a portion of the work. . . . The calculations are con-
tained in a document prepared for this litigation. . . .
The document shows a ‘net rental shortfall owed to
[VST]’ in the amount of $1,435,267.94. . . .
‘‘In 2004, Virginia D’Addario was aware of the fact
that [the defendant] had exercised its rights to extend
the amendments to the leases for the period of January
1, 2005 through December 31, 2014. . . . However,
despite that knowledge, she did not authorize [the plain-
tiff] as VST’s trustee to bring a suit for rent claimed
due on the plants. In August, 2013, [the plaintiff] and
Virginia D’Addario were aware that [the defendant]
exercised its rights to extend the amendments to the
leases for an additional ten years through December
31, 2024. . . . Since 1993, the VST has received millions
of dollars in rent from [the defendant].’’ (Citations
omitted.)
On September 1, 2015, the plaintiff commenced this
action against the defendant. The complaint alleged
two counts of breach of contract with respect to the
purported failure of the defendant to remit rental pay-
ments for the plants in accordance with the terms of
the original leases, and two counts of unjust enrichment
to recover fair market value of the rental payments in
the event of a finding that the original leases were no
longer in effect. On May 14, 2018, following a bench
trial, the trial court rendered judgment for the defendant
on all counts. Specifically, the trial court concluded as
follows: The defendant had not exercised its option to
extend the original leases with the plaintiff when it
entered into the lease amendments with the other hold-
ers of the 87.5 percent interest in the plants. The plain-
tiff’s acceptance of the defendant’s rental payments in
accordance with the terms of the lease amendments
did not imply a contract between them. The court found
that ‘‘there was no mutual understanding between the
plaintiff and the defendant as to the contracts’ terms
and the amount of rent owed for the plants, and, as a
result, the VST notified the defendant and stated that
the defendant would be considered ‘a holdover [tenant]’
upon expiration of the original leases.’’5 Accordingly,
the court held that ‘‘the applicable contracts between
the plaintiff and the defendant expired on December
31, 1993, and, therefore, there [were] no enforceable
contract[s] between the plaintiff and the defendant.’’
This appeal followed. Additional facts will be set forth
as necessary.
The dispositive issue on appeal is whether the trial
court properly concluded that the original leases
expired on December 31, 1993, such that the plaintiff
cannot recover contract damages for a purported short-
fall in rent for the period April 28, 2009 to April 28,
2015. The plaintiff maintains that the original leases
between the parties did not expire on December 31,
1993. Moreover, the plaintiff asserts that the original
leases remain in effect until 2024, subject only to the
defendant’s prior purchase of the plants. In essence, as
was made clear during oral argument before this court,
the plaintiff views the original leases not as leases,
but as contracts to purchase the plants whereby the
defendant could postpone the date of purchase only by
exercising its option to extend the lease terms of the
agreements.6 In response, the defendant argues that
the original leases were not automatically extended and
that, under their express terms, the original leases could
be extended only if it exercised the written option to
extend them. The defendant contends that because it
did not exercise this option with respect to the VST’s
12.5 percent interest, the original leases expired at the
end of their respective primary terms in December,
1993.7 We agree with the defendant.
We begin by setting forth the standard of review and
the law applicable to our resolution of this appeal. ‘‘[A]
lease is a contract, and, therefore, it is subject to the
same rules of construction as other contracts. . . . The
standard of review for the interpretation of a contract
is well established. Although ordinarily the question of
contract interpretation, being a question of the parties’
intent, is a question of fact . . . [when] there is defini-
tive contract language, the determination of what the
parties intended by their . . . commitments is a ques-
tion of law [over which our review is plenary]. . . .
‘‘In construing a written lease . . . three elementary
principles must be [considered]: (1) The intention of
the parties is controlling and must be gathered from the
language of the lease in the light of the circumstances
surrounding the parties at the execution of the instru-
ment; (2) the language must be given its ordinary mean-
ing unless a technical or special meaning is clearly
intended; [and] (3) the lease must be construed as a
whole and in such a manner as to give effect to every
provision, if reasonably possible. . . . Furthermore,
when the language of the [lease] is clear and unambigu-
ous, [it] is to be given effect according to its terms. A
court will not torture words to import ambiguity [when]
the ordinary meaning leaves no room for ambiguity
. . . . Similarly, any ambiguity in a [lease] must ema-
nate from the language used in the [lease] rather than
from one party’s subjective perception of [its] terms.’’
(Citations omitted; internal quotation marks omitted.)
Bristol v. Ocean State Job Lot Stores of Connecticut,
Inc., 284 Conn. 1, 7–8, 931 A.2d 837 (2007).
‘‘The elements of a breach of contract action are the
formation of an agreement, performance by one party,
breach of the agreement by the other party and dam-
ages. . . . In order to form a binding and enforceable
contract, there must exist an offer and an acceptance
based on a mutual understanding by the parties. . . .
The mutual understanding must manifest itself by a
mutual assent between the parties. . . . In other
words, to prove the formation of an enforceable agree-
ment, a plaintiff must establish the existence of a mutual
assent, or a meeting of the minds . . . .’’ (Citations
omitted; internal quotation marks omitted.) Computer
Reporting Service, LLC v. Lovejoy & Associates, LLC,
167 Conn. App. 36, 44–45, 145 A.3d 266 (2016).
Although the background of this case is factually
complex, our resolution of the plaintiff’s claim is rela-
tively straightforward. We first examine the relevant
language of the original leases, which are both dated
May 13, 1974. Each lease provides for a twenty year
primary term.8 The original leases contain parallel provi-
sions titled ‘‘Option to Extend,’’ which provide in rele-
vant part: ‘‘Lessor does further grant unto [l]essee the
right and option to extend this [l]ease for an additional
term of ten (10) years at the expiration of the twenty
(20) year [p]rimary [t]erm hereof.’’ The original leases
allow for two additional such extensions for a total
maximum extension of thirty years. This option may
only be exercised by the lessee by providing the lessor
with ‘‘written notice . . . not less than one (1) year
prior to the expiration of the preceding term.’’ In the
event the lessee chose not to extend the terms, the
leases provided an alternative obligation, namely, a
requirement to purchase the leased premises. To that
end, the original leases contain matching ‘‘[r]equired
[p]urchase’’ provisions, which provide in relevant part:
‘‘At the end of the [p]rimary [t]erm of this [l]ease if
[l]essee elects not to exercise its option to extend this
[l]ease . . . or at the termination of this [l]ease after
the . . . options to extend . . . have been exercised,
[l]essee shall be obligated to purchase the [p]remises
and the structures and improvements located thereon
. . . .’’9 Additionally, the original leases each contain a
‘‘termination’’ provision, which provides in relevant
part: ‘‘In the event during the term of this [l]ease any
laws, ordinances or regulations are enacted which have
the effect of prohibiting the operation of said asphalt
plant . . . [l]essee shall have the right, at its option, to
elect to terminate this [l]ease . . . . In addition, [l]es-
see shall have the right, at its option, to elect to termi-
nate this, [l]ease in the event [l]essor is in violation of
[the ingress and egress, and quiet enjoyment provisions
without said violation being cured].’’10
Our review of these original lease provisions reveals
that the defendant had two options as the end of the
primary terms drew near in December, 1993. First, it
could have extended the leases by providing notice to
the lessor in the manner required by the terms of the
option to extend. Second, if it declined to exercise that
option, it had the option to purchase the entirety of
the leased property. The defendant chose this second
option and did not extend the leases pursuant to their
terms. After further negotiations, however, all of the
interest holders, with the exception of the VST, agreed
to the extensions on modified terms. The VST expressly
rejected those terms and did not enter into any other
agreement with the defendant.
On the basis of our review of the record, we conclude
that the trial court properly held that the plaintiff and
the defendant did not form an agreement to extend the
terms of the original leases beyond the expiration of
the primary term. ‘‘In order for an enforceable contract
to exist, the court must find that the parties’ minds had
truly met. . . . If there has been a misunderstanding
between the parties, or a misapprehension by one or
both so that their minds have never met, no contract
has been entered into by them and the court will not
make for them a contract which they themselves did
not make.’’ (Internal quotation marks omitted.) MD
Drilling & Blasting, Inc. v. MLS Construction, LLC, 93
Conn. App. 451, 456, 889 A.2d 850 (2006). The evidence
adduced at trial demonstrated that, in 1993, the VST’s
attorney inquired into whether the defendant intended
to purchase the plants. When the defendant informed
the VST’s attorney that it was entering into lease amend-
ments with the holders of the other 87.5 percent owner-
ship interest of the plants, the VST’s attorney explained
that, in his view, the defendant waived its right to pur-
chase the plants and would be considered a holdover
tenant at the expiration of the original term. In short,
there was no meeting of the minds between the parties
with respect to extending the terms of the original
leases.
Consequently, the plaintiff’s contention that the origi-
nal leases expire in 2024 and, a fortiori, the defendant
has been obligated to pay the plaintiff rent in accor-
dance with the terms of the original leases, is without
merit. In support of this claim, the plaintiff emphasizes
the trial court’s factual finding that, ‘‘[u]nless purchased
earlier, [the defendant] had the obligation to purchase
the plants at the end of the final term in 2024.’’ That
finding does not support the plaintiff’s position. To be
sure, the trial court also found—and the plaintiff does
not dispute—that the defendant entered into the lease
amendments through 2024 with the holders of the
remaining 87.5 percent interest in the plants exclusive
of the VST’s 12.5 percent interest. Pursuant to the terms
of the quiet enjoyment provisions of the lease amend-
ments, the VST was expressly designated as a nonparty
to those amendments. Therefore, the lease amendments
for each plant through December 31, 2024, have no
bearing on the plaintiff’s interests in the plants. Rather,
the finding of fact relied on by the plaintiff is entirely
consistent with this court’s prior holding that the defen-
dant was not required to purchase a fractional interest
in the plants. See Ferber v. Tilcon Connecticut, Inc.,
supra, 51 Conn. App. 23.
The fact that the defendant held over with respect
to the VST’s 12.5 percent interest at the expiration of
the original leases’ primary term, yet paid rent pursuant
to the formulation set forth in the lease amendments,
supports the conclusion that the original leases no
longer formed enforceable contracts between the plain-
tiff and the defendant. ‘‘The mere act of holding over
does not create a new tenancy.’’ FJK Associates v. Kar-
koski, 52 Conn. App. 66, 68, 725 A.2d 991 (1999). Upon
examining the conduct between the parties at the time
of the original leases’ expiration, it is evident that the
plaintiff continued, through the time of trial, to accept
from the defendant newly calculated rental payments
in accordance with the terms of the lease amendments
after the defendant held over, creating a month-to-
month tenancy with the plaintiff’s 12.5 percent interest
in the plants.11 See id.; see also Bellini v. Patterson
Oil Co., 156 Conn. App. 158, 164, 111 A.3d 987 (2015).
Therefore, in the absence of contrary evidence, the
original leases between the parties were not renewed
by virtue of the month-to-month tenancy. See United
Social & Mental Health Services, Inc. v. Rodowicz, 96
Conn. App. 34, 39, 899 A.2d 85, cert. denied, 280 Conn.
920, 908 A.2d 546 (2006); see also Welk v. Bidwell, 136
Conn. 603, 608, 73 A.2d 295 (1950) (‘‘where the parties
are in definite dispute as to any of the essential terms
of a new tenancy, certainly no lease can be implied
from the fact that the tenant holds over’’).
Finally, the plaintiff maintains that because the defen-
dant did not exercise the ‘‘[t]ermination’’ provisions of
the original leases, those leases automatically extended
beyond December 31, 1993. We do not agree. The termi-
nation provisions allowed the defendant to terminate
the leases in the event that ‘‘any laws, ordinances or
regulations [were] enacted which [had] the effect of
prohibiting the operation of [the] asphalt plant[s]’’ or
if the lessor violated the ingress and egress and quiet
enjoyment provisions contained within the leases, and
the violation was not cured. Applying the well estab-
lished principles of contract interpretation to the origi-
nal leases, we discern that the parties’ use of the terms
‘‘termination’’ and ‘‘expiration’’ in distinct provisions of
the leases evinced an intent for those terms to connote
different meanings. Generally speaking, a contract is
terminated when ‘‘an action [is] taken to end the con-
tract before the end of its anticipated term.’’ (Internal
quotation marks omitted.) Avis Rent-A-Car System,
Inc. v. Dayton, 581 Fed. Appx. 479, 483 (6th Cir. 2014).
As indicated by the language of the ‘‘[t]ermination’’ pro-
visions, the leases would terminate only by the happen-
ing of the stated conditions, which, by their very nature,
could have occurred at any time during the lease term.
In contrast, a lease typically expires when it reaches
the end of its anticipated term. The original leases pro-
vided an option to extend the lease for an additional
term ‘‘at the expiration of the twenty . . . year [p]ri-
mary [t]erm hereof.’’ (Emphasis added.) Although the
option to extend could have been exercised at any time,
the extended term would begin only after the twenty
year primary term expired. Therefore, the plaintiff’s
argument improperly conflates the distinction between
the termination and the expiration of the original
leases.
In sum, during the operative period for which the
plaintiff seeks contract damages, the original leases
were no longer in effect. Evidenced by the plaintiff’s
acceptance of rental payments made subsequent to the
expiration of the original leases and commensurate with
the lease amendments, the parties entered into a month-
to-month tenancy. See Bridgeport v. Barbour-Daniel
Electronics, Inc., 16 Conn. App. 574, 579, 548 A.2d 744,
cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).
Because our law ‘‘does not impose the original lease
terms upon parties who have not agreed that such terms
apply to a holdover tenancy’’; Meeker v. Mahon, 167
Conn. App. 627, 638 n.5, 143 A.3d 1193 (2016); the trial
court properly concluded that the plaintiff could not
prevail on his breach of contract claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A ‘‘spray trust,’’ also termed a ‘‘sprinkle trust,’’ is ‘‘[a] trust in which the
trustee has discretion to decide how much will be given to each beneficiary.’’
Black’s Law Dictionary (11th Ed. 2019) p.1824.
2
The trial court also rendered judgment in favor of the defendant on the
remaining claims, specifically, two counts of unjust enrichment. The plaintiff
has not appealed from that portion of the judgment.
3
In light of this conclusion, we need not address the plaintiff’s second
and third claims.
4
The trial court separated its factual findings into sixty-five individually
numbered paragraphs. For the ease of the reader, we omit the court’s use
of paragraph numbers, as well as the court’s references to the record.
5
The trial court also concluded that the plaintiff’s breach of contract
claims were otherwise barred by the six year statute of limitations for
contract actions set forth in General Statutes § 52-576 (a) and that the unjust
enrichment counts were barred by the doctrine of laches. The court further
concluded that all of the plaintiff’s claims were barred by the doctrine of
res judicata. Because the plaintiff has not appealed from the judgment on
the unjust enrichment counts, and our conclusion set forth in this opinion
would render any discussion of the defendant’s special defenses dicta, we
do not address the plaintiff’s claims regarding the statute of limitations or
res judicata.
6
We note that the position of plaintiff’s counsel at oral argument that the
original leases are not, in fact, leases, is belied, not only by the plaintiff’s
own references to the ‘‘leases’’ in the complaint and his briefing to this
court, but also, more importantly, by the express language of the original
contracts, each titled ‘‘Indenture of Lease,’’ which are replete with references
to ‘‘this Lease’’ and to the parties as ‘‘Lessor’’ and ‘‘Lessee.’’
7
The record does not appear to indicate the precise date that the Danbury
lease took effect. The trial court discussed the Danbury and Newtown leases
as both expiring on December 31, 1993, as a result of the expiration of the
twenty year primary terms contained therein. The plaintiff also maintains
that the primary term of both leases ran through December 31, 1993. The
defendant contends that the Danbury lease expired in 1994, and the Newtown
lease expired on December 31, 1993. This discrepancy has no impact on
our analysis.
8
See footnote 7 of this opinion.
9
As this court concluded in the appeal in the Ferber action, ‘‘the only
reasonable interpretation of the lease[s] is that the defendant’s obligation
to purchase becomes mandatory only if 100 percent of the property is
sold. The defendant is not required to purchase a fractional share of the
properties.’’ Ferber v. Tilcon Connecticut, Inc., supra, 51 Conn. App. 23. In
this appeal, the plaintiff does not claim that the defendant is required to
purchase the VST’s fractional share of the leased properties.
10
The last sentence of the termination provision of the Danbury lease
provides: ‘‘In addition, [l]essee shall have the right to elect to terminate this
[l]ease in the event [l]essor is in violation of [the ingress and egress, and
quiet enjoyment provisions without said violation being cured].’’
11
A holdover tenant will be considered either a tenant at sufferance if it
merely holds over; see FJK Associates v. Karkoski, supra, 52 Conn. App.
68; or a month-to-month tenant if the lessor continues to accept the lessee’s
monthly rental payments following the lease’s expiration. See Bellini v.
Patterson Oil Co., 156 Conn. App. 158, 164, 111 A.3d 987 (2015).