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*********************************************** 
AGW SONO PARTNERS, LLC v. DOWNTOWN

SOHO, LLC, ET AL.

(SC 20625)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn, Ecker and Keller, Js.

Syllabus

The plaintiff sought to recover damages from the defendants, D Co., and its

managing member, E, in connection with D Co.’s breach of a commercial

lease agreement for certain premises, which D Co. used to operate a

restaurant and bar. D Co. had entered into a ten year lease agreement

with T Co., the plaintiff’s predecessor-in-interest. E subsequently executed a separate agreement with T Co., pursuant to which E personally

guaranteed all of D Co.’s obligations under the lease agreement. The

plaintiff later purchased the premises from T Co. and was assigned all

of T Co.’s rights and obligations under the lease and guarantee agreements. The lease agreement contained provisions requiring D Co. to use

the premises only for the operation of a restaurant and bar selling food

and beverages and to bear the burden of complying with all applicable

laws and regulations. It also required D Co. to pay the plaintiff monthly

rent and a certain percentage of its gross annual sales. D Co. failed to

make timely lease payments in January and February, 2020, but cured

each of those defaults. D Co. then defaulted a third time in March, 2020.

Around that time, the COVID-19 pandemic emerged, and the governor

proclaimed civil preparedness and public health emergencies on March

10, 2020. The governor then issued a series of executive orders that

closed restaurants and bars to in person business through May 20,

2020, restricted restaurants to outdoor dining and on premises alcohol

consumption through June 16, 2020, and then allowed restaurants to

resume indoor dining only at 50 percent capacity. D Co.’s restaurant

was closed entirely between March 11 and May 27, 2020, and then

opened for outdoor dining and subsequently for limited indoor dining.

Whereas D Co.’s restaurant previously had a capacity of more than 140

patrons, upon reopening, indoor capacity was limited to approximately

25 persons, including staff. The restaurant was operating at a loss, and

D Co. did not make any rental payments after February, 2020. D Co.

vacated the premises in September, 2020, in response to a notice to

quit, and the plaintiff immediately began searching for a new tenant. S

Co. signed a ten year lease for the premises on November 30, 2020, with

occupancy commencing in January, 2021. S Co.’s monthly rental payment

was less than what D Co. had been paying, and the plaintiff granted S

Co. a concession of six months’ free rent. The plaintiff alleged that D

Co. had breached the lease agreement and had been unjustly enriched

by virtue of its continued use of the premises for months after defaulting,

and that E had breached his obligations under his agreement to guarantee

D Co.’s obligations under the lease. In response, the defendants raised

various special defenses, including the doctrines of impossibility of

performance and frustration of purpose, owing to the adverse effects

of the executive orders on the restaurant and hospitality industry. After

a trial to the court, the trial court found for the plaintiff on all three counts

and rejected the defendants’ special defenses. The court concluded that

the defendants had not proven, by a fair preponderance of the evidence,

that the executive orders had rendered the operation of a restaurant

impossible or frustrated the purpose of the lease agreement. The court

reasoned that, although the pandemic was unforeseeable, the lease

agreement allocated to D Co. the burden of complying with the executive

orders, that the lease agreement did not require the operation of a

profitable restaurant, and that none of the executive orders specifically

made the operation of a restaurant impossible, especially in light of

takeout and curbside options. With respect to damages, the court

awarded the plaintiff, inter alia, damages for unpaid lease payments

from March through December, 2020, around the time when S Co. signed

its lease. Although the court credited evidence that the plaintiff had

made efforts to mitigate its damages by securing S Co. as a new tenant,
it found that the plaintiff had presented no evidence of its negotiations

with S Co. to determine whether further negotiations could have resulted

in a lease with terms similar to or the same as those in the defendants’

lease. From the judgment rendered thereon, the defendants appealed

and the plaintiff cross appealed. Held:

1. The defendants could not prevail on their claim that the trial court incorrectly had concluded that they failed to establish, by a preponderance

of the evidence, the special defenses of impossibility and frustration

of purpose:

a. The trial court correctly determined that the various executive orders

restricting the operation of D Co.’s restaurant did not render performance

of the lease agreement impossible as a matter of law: only in the most

exceptional circumstances will a contractual duty be discharged because

additional financial burdens make performance less practical than initially contemplated, a party who makes an unqualified promise to perform

necessarily assumes an obligation to perform, even if the occurrence of

a foreseeable event makes performance impracticable, and the impossibility doctrine does not apply when the contract explicitly assigns a

particular risk to one party; in the present case, the impossibility doctrine

did not excuse D Co. from its obligations to the plaintiff under the lease

agreement because, even under the most restrictive executive orders

closing restaurants entirely to indoor dining, use of the premises for the

purpose of operating a restaurant was not rendered impossible insofar

as restaurants were permitted to provide curbside or takeout service;

moreover, the lease agreement did not prohibit D Co. from offering such

curbside or takeout service, and, although the pandemic restrictions had

serious economic consequences for the viability of the restaurant, they

did not, by themselves, make performance under the lease agreement

impossible or commercially impracticable but, instead, simply raised the

cost of performance for D Co. in a manner that rendered performance

highly burdensome but not factually impossible; furthermore, the language of the lease agreement suggested that events of the magnitude of

the COVID-19 pandemic were not entirely unforeseeable, and the lease

agreement, to the extent that it contemplated a crisis situation beyond

the parties’ control, excused only the plaintiff’s obligations while squarely

tasking D Co. with the obligation of complying with all governmental

laws, orders and regulations.

b. The trial court correctly determined that the shutdown and restrictions

compelled by the pandemic related executive orders did not frustrate

the purpose of the lease agreement, which the defendants claimed was

the operation of a ‘‘first-class’’ restaurant with indoor, on premises dining

and bar service: establishing the frustration of purpose defense requires

convincing proof of a changed situation so severe that it is not fairly

regarded as being within the risks assumed under the contract, and, in

light of the narrow construction afforded to the doctrine so as to preserve

the certainty of contracts, this court could not conclude that the purpose

of the parties’ lease agreement was frustrated by the pandemic restrictions imposed by the executive orders, as even the most restrictive of

the executive orders barring indoor dining entirely did not render the

lease agreement valueless insofar as it did not preclude takeout or outdoor dining, which services D Co. ultimately provided.

2. The trial court improperly assigned the plaintiff, as the nonbreaching

party, the burden of proving that it had mitigated its damages, and,

accordingly, this court reversed the judgment with respect to the trial

court’s damages award and remanded the case for further proceedings

as to damages: consistent with well established principles of damages

law, as well as this court’s precedent in the contexts of tort and contract

law, this court concluded that, when a lessee has breached a lease

agreement, the lessee bears the burden of proving that the lessor failed

to undertake commercially reasonable efforts to mitigate its damages;

in the present case, the trial court, in determining the damages to which

the plaintiff was entitled, stopped the accrual of monthly rent damages

in December, 2020, even though S Co. was not set to occupy the premises

under its lease until January, 2021, and noted that the plaintiff had

presented no evidence of its negotiations with S Co. and that it could

only speculate if further negotiations with S Co. would have resulted

in a lease with the same or similar terms to those in the defendants’

lease; moreover, by engaging in the foregoing speculation in connection

with reducing the contract damages that it ultimately awarded to the

plaintiff, the trial court effectively relieved the defendants of their burden
of proving that the plaintiff’s efforts were, in fact, commercially unreasonable under the circumstances; accordingly, a new hearing in damages

was required.

Argued November 16, 2021—officially released May 10, 2022

Procedural History

Action to recover damages for, inter alia, breach of

a lease agreement, and for other relief, brought to the

Superior Court in the judicial district of Stamford-Norwalk, Housing Session at Norwalk, and tried to the

court, Spader, J.; judgment for the plaintiff, from which

the defendants appealed and the plaintiff cross appealed.

Reversed in part; further proceedings.

Philip Russell, with whom, on the brief, was Catherine R. Keenan, for the appellants-cross appellees (defendants).

Andrew B. Nevas, with whom, on the brief, was Travis

K. Waller, for the appellee-cross appellant (plaintiff).
Opinion

ROBINSON, C. J. In the earliest months of the COVID19 public health emergency, Governor Ned Lamont issued

numerous executive orders that closed or severely

restricted the operation of various businesses, including

bars and restaurants, in order to stem the spread of the

virus at that time. This appeal requires us to consider

how those executive orders affected the enforceability

of a commercial lease agreement for premises in South

Norwalk that the defendants, Downtown Soho, LLC

(Downtown Soho), and Edin Ahmetaj, leased from the

plaintiff, AGW Sono Partners, LLC, for their fine dining

restaurant. The defendants appeal, and the plaintiff cross

appeals,1

from the judgment of the trial court awarding

the plaintiff $200,308.76 in damages for the defendants’

breach of that lease agreement. In their appeal, the defendants claim, inter alia, that the trial court incorrectly

concluded that the common-law doctrines of impossibility and frustration of purpose did not relieve them of

their obligations under the lease agreement, given the

damaging economic effects of the various executive

orders on their restaurant’s business. In its cross appeal,

the plaintiff claims that, in calculating the damages award,

the trial court improperly allocated the burden of proof

in determining whether the plaintiff had mitigated its

damages when it leased the premises to a new tenant at

a lesser rent than the defendants had paid. We conclude

that the trial court correctly determined that the economic effects of the executive orders did not relieve the

defendants of their obligations under the lease agreement

but that a new damages hearing is required because the

trial court improperly allocated the burden of proof as

to mitigation in determining the damages award. Accordingly, we reverse in part the judgment of the trial court.

The record reveals the following facts, as found by the

trial court, and procedural history. In December, 2018,

TR Sono Partners, LLC (TR Sono), entered into a lease

agreement with Downtown Soho, under which Downtown Soho would use and occupy premises located

at 99 Washington Street in South Norwalk (premises) for

a ten year period beginning on January 1, 2019. Section

4 (a) of the lease agreement provides in relevant part

that the defendants ‘‘shall use the [p]remises for the operation of a restaurant and bar selling food, beverages, and

related accessories, together with uses incidental thereto,

and for no other purpose. . . .’’2 Under the terms of the

lease agreement, Downtown Soho was obligated to pay

both base monthly and percentage rent,3 along with additional rent to cover its apportioned amounts of the plaintiff’s insurance, common area expenses and real estate

taxes, commencing on July 1, 2019, and concluding on

December 31, 2028. On December 20, 2018, Ahmetaj, who

is the managing member of Downtown Soho, executed

a guarantee agreement pursuant to which he personally

guaranteed all of Downtown Soho’s obligations under the
lease agreement. In December, 2019, the plaintiff purchased six commercial properties, including the premises, from TR Sono, which assigned all of its rights and

obligations under the lease and guarantee agreements for

those properties to the plaintiff.

The defendants operated a fine dining restaurant known

as Blackstones Bistro (bistro) on the premises. Most

of the bistro’s business came during dinner service,

when an average seating would generate a bill of $100

to $200 per patron, given bar service and dishes priced

on average between $35 and $60 each. The upscale bar

supported the restaurant side of the business and occupied approximately 40 percent of the premises’ total

rental space. Prior to the COVID-19 pandemic, the bar

was busy and could accommodate sixty customers by

providing more than twenty-eight seats at the bar plus

standing room for crowds.

The defendants first defaulted on their payment obligations under the lease agreement in January, 2020, by

making only half the required monthly rent payment;

they cured that default in February, 2020, by making

payment within two weeks of receiving a default notice

from the plaintiff. The defendants then defaulted on

their February, 2020 obligations, which they cured one

week later. Subsequently, Ahmetaj met with Adam Greenbaum, the plaintiff’s manager, to discuss the defaults;

Ahmetaj informed Greenbaum that the defaults resulted

from slower winter business and would cease when

business improved during the warmer months, and that

he was surprised that the plaintiff, unlike TR Sono, did

not accept late payments given the seasonal nature of

the restaurant business in the Norwalk area.

The defendants defaulted on the lease agreement a

third time the next month, and the plaintiff sent them

a default notice on March 11, 2020; the defendants did

not cure that default. On March 10, 2020, Governor

Lamont acted, pursuant to General Statutes §§ 19a-131a

and 28-9, and issued a Declaration of Public Health and

Civil Preparedness Emergencies (declaration) because

of the COVID-19 outbreak4

in the United States and in

Connecticut, specifically.5 Pursuant to the declaration,

Governor Lamont then issued several executive orders

that affected the operation of bars and restaurants.

First, on March 16, 2020, Governor Lamont issued Executive Order No 7D,6 which, inter alia, closed bars and

restaurants to in person business from that day through

April 30, 2020; the subsequent Executive Order No. 7X7

extended that ban through May 20, 2020. Executive

Order No. 7PP,8

issued on May 18, 2020, allowed restaurants to offer outdoor dining and on premises alcohol

consumption beginning on May 20, 2020, and, on June

16, 2020, Executive Order No. 7ZZ9 allowed restaurants

to resume providing indoor dining at 50 percent capacity.10

The bistro was completely closed between March 11
and May 27, 2020. Downtown Soho had no income and

could not pay rent during that period of time. Although

the lease agreement did not prohibit takeout or delivery

dining or restrict the restaurant’s operation to dine in

business only, Ahmetaj testified that it was not profitable when the bistro attempted to do so. After obtaining

a permit from the city of Norwalk, Downtown Soho

reopened the bistro for outdoor dining on May 28, 2020.

Subsequently, during the summer of 2020, the bistro

was open for indoor dining. As the trial court found,

the nine foot social distancing requirements imposed

at that time by the city of Norwalk11 had a significant

effect on the usage of the restaurant space because,

‘‘[p]repandemic, [more than] 140 patrons could enjoy

the space, [whereas] after the pandemic, about a maximum of twenty-five individuals, including staff, could

be inside. At best, operating the business meant

operating at a loss.’’ This was compounded by the fact

that alcoholic beverage sales remained limited to those

customers who had purchased food. See Executive

Order No. 7PP; footnote 8 of this opinion.

The defendants did not make any rental payments

after March, 2020. During the pandemic, Ahmetaj again

spoke with Greenbaum and asked that the plaintiff forgive rent for the months of March, April, and May, 2020,

with full payments to begin in June, 2020. The plaintiff

declined that offer because the defendants had refused

its request to make some partial payment as a show of

good faith, particularly when they had been in default

under the lease agreement even prior to the pandemic

restrictions.12 Subsequently, the plaintiff served a notice

to quit, demanding that Downtown Soho vacate the

premises on or before June 12, 2020; the plaintiff commenced a separate summary process action shortly

thereafter. Downtown Soho vacated the premises by

September 11, 2020.

The plaintiff immediately began marketing the space

for new tenants. On November 30, 2020, the plaintiff

entered into a ten year lease agreement for the premises

with a new tenant, Sono Boil, Inc. (Sono Boil). Sono

Boil planned to renovate the premises and to operate

a full service restaurant there. The rent for Sono Boil’s

lease was $12,500 per month, including base rent and

the additional rent for reimbursement of property taxes

and common area expenses, which was less than the

defendants had been paying. To entice Sono Boil to

sign a lease, the plaintiff provided it with a concession

of free rent for the first six months of the lease. The

plaintiff did not offer a similar concession or lease terms

to the defendants in order to allow them to stay.

The plaintiff brought this action against the defendants seeking money damages. In the first two counts

of the three count complaint, the plaintiff alleged that

Downtown Soho had breached the lease agreement and

been unjustly enriched by occupying the premises with-
out paying for that benefit. In the third count, the plaintiff alleged that Ahmetaj had breached his guarantee

obligations. In response, the defendants raised various

special defenses, including the doctrines of impossibility of performance and frustration of contract, relying

on the purpose of the lease agreement, namely, ‘‘ ‘the

operation of a first class restaurant and bar,’ ’’ and the

adverse effects of the various executive orders on the

restaurant and hospitality industry. The defendants also

claimed that the executive orders rendered the lease

agreement illegal as a matter of law.

After a one day trial to the court, at which Ahmetaj

and Greenbaum testified, the trial court issued a memorandum of decision, finding that the plaintiff had established its claims of breach of the lease agreement, unjust

enrichment, and breach of guarantee. Turning to the

special defenses, the trial court concluded that the

defendants had not proven, by a fair preponderance of

the evidence, that the executive orders rendered the

operation of a restaurant impossible, impracticable or

illegal, and had not frustrated the purpose of the lease

agreement. Emphasizing that § 4 (d) of the lease agreement required the defendants to bear the risk of complying with applicable laws and regulations,13 the trial court

concluded that the ‘‘pandemic . . . was certainly an

unforeseen event, but compliance with the governmental orders in response thereto was an expense allocated

to the defendants in the lease [agreement]. The defendants claim that they were operating at a loss until the

business ultimately closed. It is clear that [the bistro]

would not immediately ‘look’ on the inside like it did

prior to the pandemic, with a crowd enjoying [its] sorely

missed cuisine, but the law, and the lease [agreement],

did not require the defendant[s] to operate a profitable

bar/restaurant, just a bar/restaurant. Certainly, fine dining as takeout is a difficult sell, but not illegal [or]

impossible. . . . None of the executive orders specifically made the operation of a restaurant ‘illegal’ or

‘impossible.’ ’’ (Emphasis in original.) The trial court

further observed that the ‘‘purpose of the lease [agreement] was not frustrated [but, rather], the [defendants’]

profitability for continuing that purpose was frustrated.

It is a key distinction that causes this defense to fail.’’

The trial court then considered damages, observing

that, ‘‘[i]n a commercial lease, the defendant is usually

responsible for the full amount of the lease less the

amounts the plaintiff was able to mitigate with the new

lease.’’ It then found that, ‘‘[a]lthough the defendant[s]

vacated [the premises on] September 11, 2020, [they]

did not provide any funds toward rent, use and occupancy or reimbursements since February, 2020. The

new lease was signed in December, 2020, with the new

tenant beginning occupancy in January, 2021. The lease

is at a slightly lower monthly rent to reflect the new

economic conditions.’’ In calculating the damages, the

trial court credited the plaintiff for mitigating its dam-
ages by ‘‘quick[ly] obtaining . . . a new tenant,’’ Sono

Boil, but it observed that ‘‘no evidence of the negotiations with [Sono Boil] was presented in detail by the

plaintiff. The court can only speculate if further negotiations with [Sono Boil] could have resulted in a lease with

the same terms the defendants’ lease had. Certainly,

the six month [rent] concession [given to Sono Boil]

was similar to that enjoyed by the defendants . . . at

the start of [their] lease [agreement] and is not unusual,

but the court is going to terminate the accrual of damages [with the] December, 2020 rent. [Sono Boil] took

possession on or about January 1, 2021. The court will

allow the leasing [broker’s] commission as an expense,

as it would not have been incurred had the defendants

fulfilled their obligations.’’14 Accordingly, the trial court

rendered judgment for the plaintiff and awarded it

$200,308.76 in damages.15 This appeal and cross appeal

followed.

On appeal, the defendants claim that the trial court

improperly interpreted and applied the special defenses

of impossibility and frustration of purpose.16 In its cross

appeal, the plaintiff claims that the trial court improperly declined to award it the full difference in value

between the defendants’ lease agreement and that of

the new tenant, Sono Boil.

I

SPECIAL DEFENSE CLAIMS

Before turning to the defendants’ specific claims with

respect to the contract defenses of impossibility and

frustration of purpose,17 we set forth the applicable legal

principles and standard of review. ‘‘The elements of

a breach of contract claim are the formation of an

agreement, performance by one party, breach of the

agreement by the other party, and damages. . . . The

interpretation of definitive contract language is a question of law over which our review is plenary. . . . By

contrast, the trial court’s factual findings as to whether

and by whom a contract has been breached are subject

to the clearly erroneous standard of review and, if supported by evidence in the record, are not to be disturbed

on appeal.’’ (Citations omitted; internal quotation marks

omitted.) CCT Communications, Inc. v. Zone Telecom,

Inc., 327 Conn. 114, 133, 172 A.3d 1228 (2017).

Moreover, a ‘‘party raising a special defense has the

burden of proving the facts alleged therein.’’ (Internal

quotation marks omitted.) U.S. Bank, National Assn.

v. Moncho, 203 Conn. App. 28, 46, 247 A.3d 161, cert.

denied, 336 Conn. 935, 248 A.3d 708 (2021). ‘‘Legally

sufficient special defenses alone do not meet the defendant’s burden. The purpose of a special defense is to

plead facts that are consistent with the allegations of

the complaint but demonstrate, nonetheless, that the

plaintiff has no cause of action.’’ (Internal quotation

marks omitted.) Id.; see, e.g., Wyatt Energy, Inc. v.
Motiva Enterprises, LLC, 308 Conn. 719, 736–37, 66

A.3d 848 (2013). On appeal, we engage in plenary review

of the trial court’s conclusions of law with respect to

special defenses and review factual determinations for

clear error. See id.

As one federal court has aptly noted with respect to

COVID-19, ‘‘[t]hese times have not been easy for most

people. And [although] some have had the good fortune

to be able to continue to work during this unprecedented health crisis, others have not been as fortunate.

. . . [B]usinesses that rely on the public such as theaters, restaurants, bars, hotels and the travel industry,

as well as their landlords, have been hit particularly

hard. And for the most part, the affected parties have

tried to negotiate a resolution that is painful but practical to [e]nsure that ‘on the other side’ there will be

something left. . . . But in the absence of [an] agreed

[on] resolution, we are left with the resolutions that

parties have bargained for in their contracts, or, [when]

appropriate, the equitable remedies that [the] common

law has fashioned.’’ (Footnote omitted.) In re Cinemex

USA Real Estate Holdings, Inc., 627 B.R. 693, 701

(Bankr. S.D. Fla. 2021). With this in mind, we consider

whether the impossibility or frustration of purpose doctrines afford the defendants relief from their contractual

obligations to the plaintiff.

A

Impossibility Doctrine

We begin with the defendants’ claim that the trial

court incorrectly concluded that they failed to demonstrate entitlement to relief from the lease agreement

under the impossibility doctrine. They argue that the

trial court improperly drew a distinction between the

operation of a restaurant and the operation of a profitable restaurant in rejecting this special defense, emphasizing that, under Dills v. Enfield, 210 Conn. 705, 557

A.2d 517 (1989), impossibility calls for proof only of

commercial impracticability as a result of unforeseen

events, in this case, the restaurant closures resulting

from the governmental response to the COVID-19 pandemic. In support of this argument, the defendants rely

on a New York case, Bush v. ProTravel International,

Inc., 192 Misc. 2d 743, 753–54, 746 N.Y.S.2d 790 (2002),

in which the court determined that there was a genuine

issue of material fact as to whether a customer was

excused from the performance of a travel contract in

the wake of a lockdown of New York City after the

September 11 terrorist attacks on the World Trade Center.18 The defendants posit that, under the circumstances

created by the executive orders, ‘‘[t]he unforeseeable

effect of the [COVID-19] pandemic on [their] business

and [the] subsequent lack of profitability [were] no fault

of [theirs], and the lease could not have been performed

by any other party. As a result, [they are] excused from

breach of the [lease agreement] as [it] became impossi-
ble and impracticable for [them] to perform.’’

In response, the plaintiff argues that the trial court

correctly determined that impossibility depends both

on whether the contract can be performed only ‘‘ ‘at an

excessive and unreasonable cost’ ’’ and whether on the

terms of the contract reflect consideration of the risk at

issue. Citing several recent decisions from New York’s

federal and state courts considering the effect of the

COVID-19 pandemic on the enforceability of commercial leases under the impossibility doctrine; see, e.g.,

Gap, Inc. v. Ponte Gadea New York, LLC, 524 F. Supp.

3d 224, 237–38 (S.D.N.Y. 2021); the plaintiff emphasizes

that § 4 (d) of the lease agreement requires the tenant

to bear the cost of legal and regulatory compliance with

respect to the use of the premises. We agree with the

plaintiff and conclude that the executive orders did not

render performance of the lease agreement impossible

as a matter of law.

‘‘The doctrine of ‘impossibility’ has come to include

‘physical impossibility,’ ‘frustration of purpose’ and

‘impracticability’ because of contingencies rendering

performance more costly.’’ Dills v. Enfield, supra, 210

Conn. 717 n.16. It ‘‘represents an exception to the accepted

maxim of pacta sunt servanda [agreements must be

kept], in recognition of the fact that certain conditions

cannot be met because of unforeseen occurrences. . . .

A party claiming that a supervening event or contingency has prevented, and thus excused, a promised

performance must demonstrate that: (1) the event made

the performance impracticable; (2) the nonoccurrence

of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and

(4) the party has not assumed a greater obligation than

the law imposes.’’ (Citation omitted.) Id., 717, citing 2

Restatement (Second), Contracts § 261, p. 313 (1981),

and E. Farnsworth, Contracts (1982) § 9.6, p. 678.

As we observed in Dills, ‘‘only in the most exceptional

circumstances have courts concluded that a duty is

discharged because additional financial burdens make

performance less practical than initially contemplated.

See, e.g., Neal-Cooper Grain Co. v. Texas Gulf Sulphur

Co., 508 F.2d 283, 294 (7th Cir. 1974) (party [is] not

allowed ‘to escape a bad bargain merely because it is

burdensome’); American Trading & Production [Corp.]

v. Shell International Marine, Ltd., 453 F.2d 939, 942

(2d Cir. 1972) (closing of Suez Canal requiring charterer

to sail nearly twice as many miles at . . . cost of nearly

one-third more than . . . contract price does not excuse

performance); United States v. Wegematic [Corp.], 360

F.2d 674, 676–77 (2d Cir. 1966) (duty of manufacturer

to produce revolutionary computer system [was] not

excused because of ‘engineering difficulties’ requiring

two years and $1.5 million to correct); Peerless Casualty

Co. v. Weymouth Gardens, 215 F.2d 362, 364 (1st Cir.
1954) (increased costs caused by . . . unexpected outbreak of war [do] not [end] obligation of contract); [In

re] Westinghouse Electric [Corp.], 517 F. [Supp.] 440,

452–53 (E.D. Va. 1981) (duty to remove spent fuel [was]

not excused merely because reprocessing of . . . fuel

became unprofitable) . . . .’’ Dills v. Enfield, supra,

210 Conn. 717–18.

‘‘Furthermore, the event [on] which the obligor relies

to excuse his performance cannot be an event that the

parties foresaw at the time of the contract.’’ Id., 718. ‘‘Thus,

the central inquiry is whether the nonoccurrence of the

alleged impracticable condition was a basic assumption

on which the contract was made.’’ (Internal quotation

marks omitted.) Id., 719, citing 2 Restatement (Second),

supra, §§ 261 and 271, pp. 313, 354. ‘‘If an event is foreseeable, a party who makes an unqualified promise to

perform necessarily assumes an obligation to perform,

even if the occurrence of the event makes performance

impracticable.’’ (Internal quotation marks omitted.) Dills

v. Enfield, supra, 210 Conn. 720.

Our description of Dills is apt for this case, as well,

with respect to impossibility or impracticability. ‘‘This

case, like virtually every case involving discharge from

an obligation to perform, concerns the issue of which

party bears the loss resulting from an event that renders

performance by one party uneconomical. . . . Determining whether the [nonoccurrence] of a particular event

was . . . a basic assumption involves a judgment as

to which party assumed the risk of its occurrence . . . .

In making such determinations, a court will look at all

circumstances, including the terms of the contract. . . .

[Because] impossibility and related doctrines are devices

for shifting risk in accordance with the parties’ presumed

intentions, which are to minimize the costs of contract

performance, one of which is the disutility created by

risk, they have no place when the contract explicitly

assigns a particular risk to one party or the other.’’19 (Citations omitted; internal quotation marks omitted.) Id.;

see O’Hara v. State, 218 Conn. 628, 636–38, 590 A.2d

948 (1991) (impossibility doctrine did not excuse duty

to convey real property, despite nonoccurrence of roadway relocation project that was condition to conveyance, because contract anticipated that situation by

requiring partial conveyance if condition did not occur);

Dills v.Enfield, supra, 210 Conn. 709–11, 719–20 (impossibility doctrine did not excuse real estate developer from

his obligation to submit acceptable construction plans

to town’s economic development agency for construction of industrial park, which would have allowed

him to recover $100,000 deposit that developer had

made to town pending financing, even though it would

cost $250,000 to produce plans and developer had been

unable to obtain project financing, because situation

reflected bargained for provision in contract and was

not unforeseeable given developer’s previous financial

difficulties); West Haven Sound Development Corp. v.
West Haven, 201 Conn. 305, 307–308, 313–15, 514 A.2d

734 (1986) (impossibility doctrine did not relieve city

of contractual obligations to real estate developer when

popular referendum to turn certain land into park,

which result had force of ordinance, resulted in cancellation of economic development project); Hess v.

Dumouchel Paper Co., 154 Conn. 343, 351–52, 225 A.2d

797 (1966) (planned condemnation of land for highway

construction did not excuse tenant’s performance of

lease for warehouse until ‘‘the time of the actual taking’’

because ‘‘the imminence of condemnation did not operate to cancel the written lease’’ under impossibility doctrine).

Applying these principles, we conclude that the doctrine of impossibility or impracticability did not excuse

the defendants from their obligations to the plaintiff

under the lease agreement. First, and most significant,

as the trial court found, even under the most restrictive

executive orders, use of the premises for restaurant

purposes was not rendered factually impossible insofar

as restaurants were permitted to provide curbside or

takeout service, and the lease agreement did not prohibit curbside or takeout service. See, e.g., Gap, Inc. v.

Ponte Gadea New York, LLC, supra, 524 F. Supp. 3d

237–38 (even though retailer’s ‘‘performance may be

burdensome, even to the extent of insolvency or bankruptcy,’’ governmental prohibitions on physical retail

business did not render performance of retail store

lease impossible as matter of law given availability of

curbside pickup of merchandise and force majeure

clause of ‘‘limited application’’); In re Cinemex USA

Real Estate Holdings, Inc., supra, 627 B.R. 700–701

(doctrine of impracticability did not excuse movie theater’s rental obligation after reopening was allowed at

50 percent capacity, despite reduced revenues resulting

from lack of new movie releases and reduced customer

demand, and increased costs resulting from providing

appropriate safety equipment and social distancing);

558 Seventh Ave. Corp. v. Times Square Photo, Inc.,

194 App. Div. 3d 561, 561–62, 149 N.Y.S.3d 55 (concluding that doctrines of impossibility and frustration of

purpose did not excuse obligation of electronics store

to pay rent because, although it ‘‘was shuttered for a

period as a result of [pandemic related] executive

orders,’’ which resulted in ‘‘reduced revenues,’’ it ‘‘eventually reopened for curbside service and . . . [the tenant was] able to gain access to the premises during the

period of nonpayment’’), appeal dismissed, 37 N.Y.3d

1040, 176 N.E.3d 301, 154 N.Y.S.3d 564 (2021). But cf.

Doherty v. Monroe Eckstein Brewing Co., 198 App.

Div. 708, 710–12, 191 N.Y.S. 59 (1921) (constitutional

prohibition of sale of liquor rendered void for illegality

lease that was for exclusive purpose of ‘‘saloon business,’’ namely, place for sale of intoxicating beverages);

1877 Webster Ave., Inc. v. Tremont Center, LLC, 72

Misc. 3d 284, 292, 148 N.Y.S.3d 332 (2021) (fact that
‘‘the exclusive purpose of the lease was to operate a

first-class nightclub’’ created ‘‘a legally cognizable theory’’ that government shutdown of nonessential businesses rendered it ‘‘objectively impossible’’ for tenant

‘‘to conduct business as originally contemplated by the

parties’ lease’’). Although the COVID-19 restrictions had

undoubtedly serious economic consequences for the

viability of the bistro—in particular, the initial closure

for indoor dining, followed by the loss of bar business

and a reopening for indoor dining only with a drastic

reduction in capacity—they did not, by themselves,

make performance under the lease agreement impossible or commercially impracticable as a matter of law.20

Instead, they simply raised the cost of performance for

the defendants in a manner that rendered it perhaps

highly burdensome, but not factually impossible—akin

to the outbreak of war, or the closure of the Suez Canal,

which had been held not to discharge contractual duties

under the doctrine of impossibility. See Dills v. Enfield,

supra, 210 Conn. 717–18 (citing cases).

Second, the language of the lease agreement suggests

that events of the magnitude of the COVID-19 pandemic

were not entirely unforeseeable. The lease agreement

lacks a force majeure clause that would govern the

parties’ mutual obligations in the event of a crisis situation beyond their control,21 and, to the extent that the

lease agreement provides for any forgiveness of obligation in a crisis situation (thus suggesting that they are

foreseeable), it excuses only the plaintiff’s obligations—under § 25 of the lease agreement governing

‘‘unavoidable delay’’ occasioned by a variety of circumstances, including fire or ‘‘governmental [preemption]

in connection with a national emergency . . . .’’22

Finally, § 4 (d) of the lease agreement squarely tasks

the defendants with the obligation of complying with

all governmental ‘‘laws, orders and regulations . . . .’’

See footnote 13 of this opinion. Accordingly, we conclude that the trial court correctly determined that the

defendants did not establish the special defense of

impossibility by a preponderance of the evidence.

B

Frustration of Purpose

We now turn to the defendants’ claim under the frustration of purpose doctrine. The defendants argue that

the COVID-19 pandemic and required shutdown pursuant to the executive orders, which was an unforeseen

event beyond the control of either party, frustrated the

purpose of the lease agreement, as stated by § 1 (o),

namely, ‘‘the operation of a first-class restaurant and

bar selling food, beverages and related accessories,

together with uses incidental thereto, and for no other

purpose.’’23 Relying on the prohibition era decision in

Doherty v. Monroe Eckstein Brewing Co., supra, 198

App. Div. 708, and a recent Massachusetts decision,

UMNV 205-207 Newbury, LLC v. Caffe ́ Nero Americas,
Inc., Docket No. 2084CV01493-BLS2, 2021 WL 956069

(Mass. Super. February 8, 2021), among other cases,

the defendants contend that the purpose of the lease

agreement was frustrated and ‘‘rendered valueless’’

given that the executive orders in effect until June 16,

2020, eliminated the indoor, ‘‘on premises dining with

bar service’’ that had constituted their ‘‘business trade,’’

despite the lack of limitations to that effect in the provisions of the lease agreement. In response, the plaintiff

argues that the case law cited by the defendants is

distinguishable and that the trial court correctly determined that the executive orders did not frustrate the

purpose of the lease agreement because a legal use

for the premises remained available to the defendants

under its terms, namely, the service of food and beverages for off premises consumption. We agree with the

plaintiff and conclude that the trial court correctly

determined that the executive orders did not frustrate

the purpose of the lease agreement.

‘‘The doctrine of frustration of purpose . . . excuses

a promisor in certain situations [in which] the objectives

of the contract have been utterly defeated by circumstances arising after the formation of the agreement.

. . . Excuse is allowed under this rule even though

there is no impediment to actual performance. . . . A

party claiming that a supervening event or contingency

has frustrated, and thus excused, a promised performance must demonstrate that: (1) the event substantially frustrated his principal purpose; (2) the nonoccurrence of the supervening event was a basic assumption

on which the contract was made; (3) the frustration

resulted without the fault of the party seeking to be

excused; and (4) the party has not assumed a greater

obligation than the law imposes.’’24 (Citation omitted;

internal quotation marks omitted.) Howard-Arnold,

Inc. v. T.N.T. Realty, Inc., 315 Conn. 596, 605, 109 A.3d

473 (2015); see Hess v. Dumouchel Paper Co., supra,

154 Conn. 350–51. ‘‘[T]he establishment of the defense

requires convincing proof of a changed situation so

severe that it is not fairly regarded as being within the

risks assumed under the contract. . . . The doctrine

of frustration of purpose is given a narrow construction

so as to preserve the certainty of contracts . . . .’’

(Citation omitted; internal quotation marks omitted.)

Godfrey v. Commissioner of Correction, 202 Conn.

App. 684, 693, 246 A.3d 1032, cert. denied, 336 Conn.

931, 248 A.3d 2 (2021), quoting 17A Am. Jur. 2d 618,

Contracts § 640 (2016), and 17A Am. Jur. 2d, supra,

§ 641, p. 619; see O’Hara v. State, supra, 218 Conn.

638 (circumstances giving rise to frustration of purpose

must be unforeseeable at time of contract); see also

Howard-Arnold, Inc. v. T.N.T. Realty, Inc., supra, 605–

606 (doctrine did not apply when purpose of lease was

to lease property, and tenant continued to occupy property, despite lack of environmental remediation in connection with option to purchase); O’Hara v. State,
supra, 638–39 (doctrine did not apply with respect to

purchase of land because ‘‘the agreement explicitly

acknowledged the possibility that the plans for relocation could be altered,’’ meaning that ‘‘the parties foresaw that the state might acquire a greater portion of

the eastern property than originally proposed’’); Hess

v. Dumouchel Paper Co., supra, 351 (The purpose of the

lease agreement was not frustrated by ‘‘the impending

condemnation’’ of the leased warehouse for the construction of a highway because the ‘‘purpose of the

agreement, from the defendant’s point of view, was to

provide storage space for its inventory,’’ which ‘‘survived the announcement of the highway construction

plans, as evidenced by the defendant’s purchase of its

own warehouse. At the time of the actual taking, of

course, the objective of the contract would have

become frustrated, and performance by the plaintiff

rendered impossible . . . .’’); DDS Wireless International, Inc., v. Nutmeg Leasing, Inc., 145 Conn. App.

520, 527, 75 A.3d 86 (2013) (doctrine did not excuse taxi

company from its obligations under service contract

for mobile dispatch system because termination clause

in contract indicated that ‘‘the parties plainly did contemplate a situation in which the [taxi company] would

not be satisfied with the dispatch system or the service provided’’).

Given the narrowness of the frustration of purpose

doctrine, we conclude that the purpose of the lease

agreement was not frustrated by the pandemic restrictions imposed by the executive orders, even those that

barred indoor dining entirely. The language of the lease

agreement was not limited to a certain type of dining

and—in contrast to the more restrictive language contained in the sister state cases on which the defendants

rely—did not preclude the takeout and subsequent outdoor dining that the defendants sought to provide. Put

differently, the lease terms did not by themselves render

the lease agreement valueless in light of the executive

orders. See Gap, Inc. v. Ponte Gadea New York, LLC,

supra, 524 F. Supp. 3d 235 (pandemic restrictions did

not frustrate purpose of retail store lease, despite

adverse economic consequences and dramatic reduction of foot traffic in area of store, given availability

of curbside pickup and reopening for shopping with

restrictions, because lease did not make ‘‘any guarantee

regarding foot traffic or the nature or demographic characteristics of the area of the . . . store premises’’); In

re Cinemex USA Real Estate Holdings, Inc., supra, 627

B.R. 699–700 (doctrine of frustration of purpose did not

excuse movie theater’s rental obligation after reopening

was allowed at 50 percent capacity, despite reduced

revenues and increased operation costs).

The lack of use restrictions in the lease agreement

at issue in this appeal, in juxtaposition with executive

orders that did not completely shut down the restaurant

industry, renders distinguishable the Massachusetts
decision, UMNV 205-207 Newbury, LLC v. Caffe ́ Nero

Americas, Inc., supra, 2021 WL 956069, on which the

defendants rely. In that case, a state trial court concluded that the purpose of a restaurant lease had been

frustrated for the period of time between closure in

March, 2020, and partial reopening in June, 2020, for

outdoor dining and takeout, and subsequently limited

indoor dining, given that the ‘‘main object or purpose

of [the] contract’’ was limited by its specific language

allowing the tenant to ‘‘use the leased premises . . .

to operate [only] a cafe ́ with a sit-down restaurant

menu ‘and for no other purpose.’ ’’25 (Emphasis added.)

Id., *5; see id. (‘‘[Because] the [l]ease limited the permissible use of the leased space to a single purpose, it

cannot be disputed that [the defendant’s] continued

ability to operate a cafe ́ [on] the leased premises, and

the absence of government orders barring all restaurants from serving customers inside, was a basic

assumption underlying the [l]ease. And there is no evidence that the risk of a global viral pandemic coming

to Massachusetts and leading to a government order

shutting down the entire restaurant industry was something the parties contemplated when they entered into

the [l]ease.’’); cf. Doherty v. Monroe Eckstein Brewing

Co., supra, 198 App. Div. 711 (distinguishing lease making ‘‘[a] saloon business . . . the only business for

which the tenant was authorized to use the premises’’

from other leases referring to ‘‘the character of the

saloon business if conducted’’). Accordingly, we conclude that the trial court correctly determined that the

defendants did not prove the special defense of frustration of purpose.26

II

DAMAGES

We now turn to the plaintiff’s cross appeal, in which

it claims that the trial court improperly failed to award

it the full difference in value between the defendants’

lease agreement and the new lease that the plaintiff

entered into with Sono Boil, the replacement tenant.

The plaintiff argues that the trial court’s award of damages, which held the defendants responsible only for

rent accrued until December, 2020, and was $246,778.50

less than it sought, was inconsistent with the general

standard for damages for breach of a lease contract,

under which the breaching tenant is responsible for the

payment of the full amount of the contract less the

amounts that the landlord was able to mitigate with the

new lease, thus placing the landlord in the position that

it would be had the lease been performed. See, e.g.,

Danpar Associates v. Somersville Mills Sales Room,

Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980); Rokalor,

Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn.

App. 384, 388–90, 558 A.2d 265 (1989). To this end, the

plaintiff argues, inter alia, that the trial court improperly

charged it with the burden of presenting evidence relat-
ing to its negotiations with Sono Boil to show an inability to mitigate its damages by obtaining the same lease

or better terms than it had with the defendants, because

the defendants, as the breaching party, bear the burden

of proof as to failure of mitigation under cases such as

Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 145, 907

A.2d 1220 (2006).

In response, the defendants contend that the trial

court did not abuse its discretion in determining the

damages awarded. Relying on Southhaven Associates,

LLC v. McMerlin, LLC, 159 Conn. App. 1, 122 A.3d

670 (2015), and Rokalor, Inc. v. Connecticut Eating

Enterprises, Inc., supra, 18 Conn. App. 384, among

other cases, the defendants argue that the trial court

retained the discretion not to award the full value of

the lease agreement as a basis for damages, given the

plaintiff’s failure to introduce evidence as to negotiations with prospective tenants, changes in economic

conditions or fair market value of the premises. Finally,

the defendants contend that the plaintiff failed to move

for an articulation that would have indicated that the

trial court applied an erroneous legal standard in awarding damages. We agree with the plaintiff and conclude

that a new damages hearing is required because the

trial court improperly assigned it the burden of proving

the mitigation of damages.27

Certain well established principles, discussed in this

court’s decision in Danpar Associates v. Somersville

Mills Sales Room, Inc., supra, 182 Conn. 446–47, govern

the plaintiff’s claims in its cross appeal. ‘‘[W]hen the

lessee breaches a lease for commercial property, the

lessor has two options: (1) to terminate the tenancy;

or (2) to refuse to accept the surrender. . . . [When]

the landlord elects to continue the tenancy, he may sue

to recover the rent due under the terms of the lease.

Under this course of action, the landlord is under no

duty to mitigate damages. . . . When the landlord

elects to terminate the tenancy, however, the action is

one for breach of contract . . . and, when the tenancy

is terminated, the landlord is obliged to mitigate his

damages. . . . The general rule for the measure of

damages in contract is that the award should place the

injured party in the same position as he would have

been in had the contract been performed.’’ (Internal

quotation marks omitted.) Southhaven Associates, LLC

v. McMerlin, LLC, supra, 159 Conn. App. 10–11; see,

e.g., Brennan Associates v. OBGYN Specialty Group,

P.C., 127 Conn. App. 746, 754–55, 15 A.3d 1094, cert.

denied, 301 Conn. 917, 21 A.3d 463 (2011). If a landlord

‘‘institute[s] an action for breach of lease . . . the

remaining rental payments due under the lease could

be used as part of the calculation of the damages that the

[landlord] sustained.’’ (Emphasis added.) Southhaven

Associates, LLC v. McMerlin, LLC, supra, 11; see, e.g.,

Brennan Associates v. OBGYN Specialty Group, P.C.,

supra, 755; Rokalor, Inc. v. Connecticut Eating Enter-
prises, Inc., supra, 18 Conn. App. 389–90. ‘‘The duty to

mitigate damages [does] not require the plaintiff [landlord] to sacrifice any substantial right of its own . . .

or to exalt the interests of the tenant above its own. . . .

It [is] required to make reasonable efforts to minimize

damages. What constitutes a reasonable effort under

the circumstances of a particular case is a question of

fact for the trier.’’ (Internal quotation marks omitted.)

Southhaven Associates, LLC v. McMerlin, LLC, supra,

5–6; see, e.g., Brennan Associates v. OBGYN Specialty

Group, P.C., supra, 754–55.

Ordinarily, we review the trial court’s assessment of

damages, including the reasonableness of any mitigation efforts, as a question of fact under the clearly erroneous standard of review. See, e.g., Pan Handle Realty,

LLC v. Olins, 140 Conn. App. 556, 569–70, 59 A.3d 842

(2013); Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., supra, 18 Conn. App. 390. A claim that the

trial court applied an improper legal standard or burden

of proof in its damages determination, however, presents a question of law over which we exercise plenary

review. See, e.g., In re Zakai F., 336 Conn. 272, 289–90,

255 A.3d 767 (2020); Smith v. Muellner, 283 Conn. 510,

536, 932 A.2d 382 (2007); Papallo v. Lefebvre, 172 Conn.

App. 746, 755, 161 A.3d 603 (2017).

We begin with the plaintiff’s claim that the trial court

improperly required it, as the nonbreaching party, to

bear the burden of proving that it had mitigated its

damages.28 There is no case directly on point from this

court in the landlord-tenant context,29 with the leading

decision, Danpar Associates, being silent with respect

to the allocation of the burden of proof as to mitigation.

Consistent, however, with the black letter principles of

damages law that led this court in Danpar Associates

to require landlords to mitigate their damages in the

wake of a breach of a lease,30 our Appellate Court held

in Pan Handle Realty, LLC v. Olins, supra, 140 Conn.

App. 569–70, that the tenant, as the party breaching a

residential lease, is required to prove that the landlord

failed to make efforts to mitigate its damages. For that

position, the Appellate Court cited to its decision in

Dunleavey v. Paris Ceramics USA, Inc., 97 Conn. App.

579, 582–83, 905 A.2d 703 (2006), which is a contract

case involving the sale of defective limestone for a

landscape project. See Pan Handle Realty, LLC v.

Olins, supra, 569–70; see also id., 570–71 (trial court’s

conclusion that landlord made reasonable efforts to

mitigate damages was not clearly erroneous because

landlord had to spend $80,000 to restage property with

furnishings and advertise property at higher rent than

tenant had been willing to pay to recoup losses, and,

‘‘although the [landlord] was unsuccessful in its efforts

to secure a replacement lessee, there is no evidence

to suggest that the [landlord] was not responsive to

prospective replacement lessees’’).
The allocation of the burden of proving the failure to

mitigate to the breaching tenant in Pan Handle Realty,

LLC, is consistent with a long line of case law, in both

contract and torts contexts, that holds that the failure

to mitigate damages is for the breaching party to prove.

See Preston v. Keith, 217 Conn. 12, 21–22, 584 A.2d

439 (1991) (defendant bears burden of production and

persuasion with respect to mitigation of damages in

negligence case); Newington v. General Sanitation Service Co., 196 Conn. 81, 86, 491 A.2d 363 (1985) (sanitation company bore burden of proving that ‘‘the

[defendant] town failed to use reasonable care to reduce

its damages’’ for company’s breach of refuse disposal

contract); Krawitz v. Ganzke, 114 Conn. 662, 665, 159

A. 897 (1932) (The court held that an employee who

was discharged in violation of an employment contract

‘‘was prima facie entitled to recover the amount of his

salary for the balance of the year, and was not bound

to offer evidence that he had sought other employment.

The burden was [on] the defendant to prove that the

plaintiff could by proper diligence have found other

employment, if such was claimed to be the fact.’’); see

also Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn.

209, 228–29, 676 A.2d 844 (1996) (relying on ‘‘established

rules’’ as to proof of damages in contract and tort cases,

and holding that, with respect to award for damages

for discriminatory employment practices pursuant to

General Statutes § 46a-86 (c) and (d), employer bears

burden of proving that employee ‘‘failed to make reasonable efforts to mitigate the amount of damages by seeking other employment’’).

As we have observed in the tort context, the ‘‘rationale for this rule is well established. A defendant claiming that the plaintiff has failed to mitigate damages

seeks to be benefited by a particular matter of fact, and

he should, therefore, prove the matter alleged by him.

The rule requires him to prove an affirmative fact,

whereas the opposite rule would call [on] the plaintiff

to prove a negative, and therefore the proof should

come from the defendant. He is the wrongdoer, and

presumptions between him and the person wronged

should be made in favor of the latter. For this reason,

therefore, the onus must in all such cases be [on] the

defendant.’’ (Internal quotation marks omitted.) Preston v. Keith, supra, 217 Conn. 22. We note that this

process need not be onerous because, in addition to

presenting witnesses or documentary evidence to establish the point, the defendant could well establish failure

of mitigation through cross-examination of the plaintiff

and its witnesses. See id., 22–23. Accordingly, we conclude that, when a tenant has breached a lease agreement, that tenant bears the burden of proving that the

landlord failed to undertake commercially reasonable

efforts to mitigate its damages.31
Thus, we conclude that the trial court improperly

cast the burden of proof onto the plaintiff when, in

stopping accrual of monthly rent damages in December,

2020, the trial court credited evidence that the plaintiff

had made efforts to mitigate its damages by securing

Sono Boil as its new tenant for the premises but stated

that ‘‘no evidence of the negotiations with [Sono Boil]

was presented in detail by the plaintiff. The court can

only speculate if further negotiations with [Sono Boil]

could have resulted in a lease with the same terms the

defendants’ lease had.’’ (Emphasis added.) By engaging

in this speculation in connection with reducing the contract damages that it ultimately awarded to the plaintiff,

the trial court effectively relieved the defendants of

their burden of proving that the plaintiff’s efforts were,

in fact, commercially unreasonable under the circumstances. Accordingly, a new damages hearing is required.

See, e.g., South Windsor v. Lanata, 341 Conn. 31, 46–47,

266 A.3d 875 (2021).

Consistent with other courts; see, e.g., In re Cinemex

USA Real Estate Holdings, Inc., supra, 627 B.R. 701;

we observe in conclusion that the COVID-19 public

health emergency has had devastating economic effects

in many industries, particularly those that rely on the

public, such as the restaurant and hospitality industry.

This case, which is a contract dispute between private

parties, demonstrates the difficulty of using existing legal

doctrines to shield parties from the economic damage

caused by the pandemic, insofar as the zero sum nature

of litigation renders it a process that is particularly illsuited to resolving these difficult questions of public

and economic policy in an equitable manner that will

leave something remaining on the ‘‘other side’’ as we

attempt to identify a ‘‘new normal’’ while entering the

third year of this pandemic. We therefore are left to

rely on the political branches of our federal and state

governments to identify and implement economic relief

in an equitable manner, so as to will enable all of our

state’s businesses and citizens to thrive in the wake of

COVID-19.

The judgment is reversed only with respect to the

award of damages and the case is remanded for further

proceedings as to damages; the judgment is affirmed

in all other respects.

In this opinion the other justices concurred.

1 The defendants appealed, and the plaintiff cross appealed, from the

judgment of the trial court to the Appellate Court, and we transferred the

appeal and cross appeal to this court pursuant to General Statutes § 51-199

(c) and Practice Book § 65-1.

2 Section 1 (o), in the definitions section of the lease agreement, provides

similarly to § 4 (a), but differs slightly insofar as it states that the premises

are ‘‘to be used as for the operation of a first-class restaurant and bar selling

food, beverages, and related accessories, together with uses incidental

thereto, and for no other purpose.’’ (Emphasis added.)

3 The lease agreement provides that the base monthly rent amounts would

increase over the duration of the ten year term, starting at a rate of $9,333.33

per month for the period between July 1 and December 31, 2019, and
increasing each year, and culminating at a rate of $12,177.88 per month for

the final year, ending on December 31, 2028. In addition to the base monthly

rent amounts, Downtown Soho also was obligated to pay the plaintiff, on

an annual basis, 5 percent of the amount of its gross annual sales that

exceeded $2.5 million.

4

‘‘COVID-19 is a respiratory disease that spreads easily from person to

person and may result in serious illness or death, and public health experts

have indicated that persons infected with COVID-19 may not show symptoms, and transmission or shedding of the coronavirus that causes COVID19 may be most virulent before a person shows any symptoms . . . .’’

(Internal quotation marks omitted.) Fay v. Merrill, 338 Conn. 1, 7, 256 A.3d

622 (2021).

5 The declaration was subsequently renewed on September 1, 2020, and

extended on February 9, 2021.

6 Executive Order No. 7D, issued on March 16, 2020, provides in relevant

part: ‘‘Limits on Restaurant, Bar and Private Club Operations. Effective at

8 p.m. on March 16, 2020 and through April 30, 2020, unless earlier modified,

extended, or terminated by [the governor], any restaurant or eating establishment and any location licensed for [on premises] consumption of alcoholic

liquor in the [s]tate . . . except for Class III and Class II Tribal Gaming

enterprises, shall only serve food or [nonalcoholic] beverages for [off premises] consumption. . . .’’

7 Executive Order No. 7X, issued on April 10, 2020, provides in relevant

part: ‘‘Extension of Closures, Distancing, and Safety Measures Through

May 20, 2020. The orders to prevent transmission of COVID-19 through

appropriate distancing and other safety measures listed below are extended

through May 20, 2020:

‘‘a. Executive Order No. 7D . . . imposing limits on restaurant, bar, and

private club operations. . . .’’

8 Executive Order No. 7PP, issued on May 18, 2020, provides in relevant

part: ‘‘1. Phase 1 Business Reopening. To provide for a comprehensive plan

for safe resumption of limited social, recreational, athletic, and economic

activity, pursuant to rules issued by the Department of Economic and Community Development for each of various business sectors (individually and

collectively, the ‘Sector Rules’), which Sector Rules shall constitute legally

binding guidance, the following [e]xecutive [o]rders are repealed or amended

effective at 12:01 a.m. on Wednesday, May 20, 2020, as provided herein:

‘‘a. Reopening of Outdoor Dining. Executive Order No. 7D . . . is

amended to provide that outdoor dining shall be permitted at any restaurant,

eating establishment, private club, or any location licensed for [on premises]

consumption of alcohol, in accordance with the provisions of Executive

Order No. 7MM and the Sector Rules for Restaurants, as amended from

time to time, and any [e]xecutive [o]rder governing the sale or service

of alcoholic beverages. Alcoholic beverages shall not be served except in

conjunction with the sale of food in accordance with the provisions of

Executive Order No. 7MM. The remaining provisions of Executive Order No.

7D . . . which prohibits indoor dining and, which, as amended, prohibits

the sale of alcohol by such permittees without the sale of food, are extended

through June 20, 2020. The provisions of Executive Order No. 7N . . .

establishing rules for restaurant takeout and delivery, shall remain in

effect. . . .’’

9 Executive Order No. 7ZZ, issued June 16, 2020, provides in relevant part:

‘‘Resumption of Indoor Dining Pursuant to Sector Rules for Restaurants.

Executive Order No. 7D . . . is amended to permit indoor dining pursuant

to the . . . Sector Rules for Restaurants, as amended from time to time,

which Sector Rules shall be legally binding and enforceable. The remaining

provisions of Executive Order No. 7D . . . which prohibit the sale of alcohol

by certain permittees without the sale of food, shall remain in effect and

are extended through July 20, 2020. The provisions of Executive Order No.

7N . . . establishing rules for restaurant takeout and delivery, shall remain

in effect.’’

10 We note that, in March and April of 2020, Governor Lamont issued

several other executive orders that also affected the restaurant industry.

Executive Order No. 7F closed large shopping malls and places of public

amusement but permitted restaurants and bars that are attached to shopping

malls with separate external entrances to remain open for takeout service.

Executive Order No. 7G modified Executive Order No. 7D by allowing

restaurants, bars or alcoholic beverage manufacturers with active liquor

permits to sell certain sealed containers of alcoholic beverages for off premises consumption. Executive Order No. 7N required restaurants and bars

open for the sale of food for takeout to minimize the entrance of customers

into their establishments and to use, to the extent possible, remote ordering

or touchless payment systems to minimize contact. Executive Order No. 7T

expanded options under Executive Order No. 7G for delivery of sealed
alcoholic beverages to customers by existing permit holders.

Subsequently, in May, 2020, Governor Lamont issued Executive Order

No. 7MM, which facilitated Executive Order No. 7PP; see footnote 8 of this

opinion; insofar as it suspended and modified state and municipal laws,

ordinances and regulations in order to allow for outdoor dining, alcoholic

beverage service, and retail activities, and to expedite the associated state

and local approval processes.

11 Under the nine foot social distancing requirements, the bistro could

provide only seven bar seats and eight indoor dining tables. The city of

Norwalk did not allow the defendants to use floor space in the bar area,

which constituted nearly 40 percent of the restaurant’s square footage, for

additional dining tables. The outdoor dining space of the restaurant could

accommodate only six tables, with up to six patrons at each table, generally

restricting capacity to twenty-two to twenty-five persons outside.

12 The relationship between the parties had grown acrimonious by this

time. Ahmetaj testified that, at the time of trial, he owned two other bars,

which were fully closed, and two other restaurants, which were able to

operate at a break-even level given rent reduction accommodations provided

by the landlords at those locations. Ahmetaj also testified that his conversations with Greenbaum led him to understand that the plaintiff wanted to

replace the defendants with a new tenant prior to the pandemic. During

those discussions, Ahmetaj informed Greenbaum that Downtown Soho

would leave if the plaintiff paid the defendants $250,000 to vacate the premises. The plaintiff refused that demand.

Greenbaum testified that the plaintiff had, however, negotiated concessions with other tenants that were experiencing pandemic related financial

difficulties by obtaining a partial payment up front, with portions of their

monthly rents deferred to a later time. Greenbaum testified that most of

the plaintiff’s other tenants were able to continue to pay their monthly rents

in full at that time.

13 Section 4 (d) of the lease agreement provides in relevant part that

the defendants, at their ‘‘expense, shall comply with all laws, orders and

regulations of [f]ederal, [s]tate and municipal authorities and with any direction of any public officer or officers, pursuant to [l]aw, which shall impose

any violation, order or duty upon [l]andlord or [t]enant with respect to

the use or occupancy thereof by [t]enant or [t]enant’s [r]epresentatives,

including, without limitation, the Americans with Disabilities Act . . . and

any [e]nvironmental [l]aws . . . .’’

14 The trial court rejected the defendants’ fourth special defense, namely,

that the plaintiff’s damages had been offset by ‘‘multiple forms of relief from

the federal government in the form of subsid[ies], tax relief and mortgage

relief,’’ which should be considered in calculating any damages owed to the

plaintiff. The defendants do not challenge this conclusion on appeal, and

we need not consider this special defense further.

15 We note that the trial court’s total damages award of $200,308.76

reflected the following components: (1) unpaid rent, use and occupancy for

ten months, from March, 2020, through December, 2020, in the amount of

$137,774.30; (2) utility bills of $2,013.88 and $3,005.20; (3) the leasing agent’s

commission on the new lease in the amount of $41,933; (4) reasonable

attorney’s fees in the amount of $14,775; and (5) costs in the amount of

$807.38.

16 We note that the defendants also claim that the trial court should have

reduced the damages award proportionately because the various space and

capacity restrictions that were in effect after the bistro reopened on May

28, 2020, meant that it did not have ‘‘exclusive occupancy’’ of the premises,

rendering the trial court’s finding of exclusive possession clearly erroneous.

Insofar as this claim appears to pertain only to the unjust enrichment count

of the complaint, we need not reach it given the independent basis for

liability under the breach of contract count. See, e.g., Russell v. Russell, 91

Conn. App. 619, 638, 882 A.2d 98 (‘‘unjust enrichment and breach of contract

are mutually exclusive theories of recovery’’), cert. denied, 276 Conn. 924,

888 A.2d 92, and cert. denied, 276 Conn. 925, 888 A.2d 92 (2005). To the

extent it is at all relevant to the trial court’s calculation of damages, we

leave that to the new damages hearing to be held on remand. See part II

of this opinion.

17 Although the relevant headings in the defendants’ brief state that the

trial court improperly applied the doctrine of illegality in addition to the

doctrines of impossibility and frustration of purpose, the defendants do not

provide any factual or legal argument with respect to the doctrine of illegality.

Accordingly, we agree with the plaintiff that any illegality claims are inadequately briefed and, therefore, abandoned for purposes of appeal. See, e.g.,

Burton v. Dept. of Environmental Protection, 337 Conn. 781, 805–806, 256
A.3d 655 (2021).

18 We note that the defendants also rely on a recent decision from a New

York trial court, 267 Development, LLC v. Brooklyn Babies & Toddlers,

LLC, New York Supreme Court, Kings County, Docket No. 510160/2020

(March 15, 2021), which they argue stands for the proposition that the

doctrine of impossibility barred an action against a retail clothing store that

was in default of its rental obligations during the pandemic lockdowns in

New York, insofar as the risk of the government shutdown was unforeseeable. See Hugo Boss Retail, Inc. v. A/R Retail, LLC, Docket No. 655166/

2020, 2021 WL 2006877, *12 n.9 (N.Y. Sup. May 19, 2021) (decision without

published opinion, 71 Misc. 3d 1222, 145 N.Y.S.3d 329) (describing and

distinguishing 267 Development, LLC). The defendants did not include a

copy of the unreported decision in 267 Development, LLC, in their appendix,

which renders it difficult for us to consider this out-of-state trial court case

that has been published or reported only on a limited basis. See Practice

Book § 67-8 (b) (2) (applicable to appeals filed before October 1, 2021)

(‘‘[w]here an opinion is cited that is not officially published, the text of the

opinion shall be included in part two of the appendix’’). As described by

the defendants and by the New York court in Hugo Boss Retail, Inc., 267

Development, LLC, appears distinguishable from the present case because

it contemplated a complete shutdown of the subject business, as compared

to the somewhat more limited restrictions at issue in the present case.

19 For a prominent historical example of the doctrine of impossibility, see

the California Supreme Court’s decision in Lloyd v. Murphy, 25 Cal. 2d 48,

56, 153 P.2d 47 (1944), which held that restrictions on the production of

new vehicles during World War II as a result of mobilizing industry to support

national defense did not trigger the doctrine of impossibility so as to relieve

the tenant, an automobile dealer, of its obligations, even though the automobile sales business was rendered ‘‘less profitable and more difficult to continue’’ during that time.

20 We disagree with the defendants’ reliance on Bush v. ProTravel International, Inc., supra, 192 Misc. 2d 743, because that case presented issues of

physical impossibility that make the case distinguishable from the present

case. In Bush, a New York trial court held that the impossibility doctrine

excused a customer’s compliance with a September 14, 2001 cancellation

deadline in a travel company’s contract for a safari vacation, given the state

of emergency in New York City in the days following the September 11

terrorist attacks. See id., 753–54. Observing that, ‘‘on the days at the focal

point of the argument . . . September 12, 13 and 14, 2001, New York City

was in [a] state of virtual lockdown with travel either forbidden altogether

or severely restricted’’; id., 750; and that telephone communications were

disabled into lower Manhattan where the travel company’s office was

located; id., 746; the court followed ‘‘wartime precedents [that] developed

the law of temporary impossibility’’; id., 752; in denying the travel company’s

motion for summary judgment on the ground that the traveler had established a genuine issue of material fact that compliance with the September

14 cancellation deadline for the return of her deposit was factually impossible. Id., 754. We disagree with the defendants’ reliance on Bush because

that case concerned physical impossibility created in the wake of the September 11 attacks in the neighborhood of the travel agent’s office, as opposed

to the commercial impracticability and lack of profitability at issue in the

present case.

21 ‘‘[T]he basic purpose of force majeure clauses . . . is in general to

relieve a party from its contractual duties when its performance has been

prevented by a force beyond its control or when the purpose of the contract

has been frustrated.’’ Phillips Puerto Rico Core, Inc. v. Tradax Petroleum

Ltd., 782 F.2d 314, 319 (2d Cir. 1985); see Harriscom Svenska, AB v. Harris

Corp., 3 F.3d 576, 580 (2d Cir. 1993) (‘‘[l]ike commercial impracticability, a

force majeure clause in a contract excuses nonperformance when circumstances beyond the control of the parties prevent performance’’). Although

force majeure events ‘‘[h]istorically . . . connoted events that rendered a

party’s performance impossible because of an unforeseeable event beyond

the parties’ control,’’ with ‘‘[s]uch events . . . often described as acts of

God’’ or resulting from ‘‘natural disasters such as earthquakes and floods,

[force majeure] has since come to encompass many man-made and [man

caused] events such as strikes, market shifts, terrorist attack[s], computer

hacking, and governmental acts, among many others. In other words, force

majeure provides a flexible concept that permits the parties to formulate

an agreement to address their unique course of dealings and industry idiosyncrasies, allowing contractual force majeure clauses to have a much wider
application than the doctrine would under its historical roots.’’ (Footnotes

omitted; internal quotation marks omitted.) J. Robinson et al., ‘‘Use the

Force? Understanding Force Majeure Clauses,’’ 44 Am. J. Trial Advoc. 1,

2–3 (2020).

22 Section 25 of the lease agreement provides: ‘‘[The plaintiff] shall not be

in default hereunder if it is unable to fulfill or is delayed in fulfilling any of

its obligations hereunder, including, without limitation, any obligations to

supply any service hereunder, or any obligation to make repairs or replacements hereunder, if it is prevented from fulfilling or is delayed in fulfilling

such obligations by reason of fire or other casualty, strikes or labor troubles,

governmental [preemption] in connection with a national emergency, shortage of supplies or materials, or by reason of any rule, order or regulation

of any governmental authority, or by reason of the condition of supply and

demand affected by war or other emergency, or any other cause beyond

its reasonable control (collectively, ‘Unavoidable Delay’). Such inability or

delay by [the plaintiff] in fulfilling any of its obligations hereunder shall

not affect, impair or excuse [the defendants] from the performance of any

of the terms, covenants, conditions, limitations, provisions or agreements

hereunder on its part to be performed, nor result in any abatement of

[r]ent payable hereunder.’’ (Emphasis added.)

23 As they emphasized at oral argument before this court, the defendants

also claim that the lease has the specific purpose of allowing the operation

of a ‘‘ ‘first-class restaurant,’ ’’ which they describe as a ‘‘high-end,’’ indoor,

fine dining business with a ‘‘premium rent to obtain [the] benefit of exposure

to large numbers of consumers in a highly trafficked retail and commercial

location.’’ They contend that the lease agreement’s language is ambiguous

with respect to whether the use of the premises was specifically and contractually limited to that kind of restaurant, which would support their

argument that the ‘‘purpose of the lease [was never] to operate anything

other than a first-class restaurant, which precludes a majority takeout dining

experience, and there was no prior established takeout business.’’ The defendants further argue that the executive orders frustrated this specific, limited

purpose. In response, the plaintiff contends that we should not review this

claim regarding the effect of the ‘‘first-class restaurant’’ language because

it was not raised before the trial court.

We agree with the plaintiff and conclude that this issue with respect to

the inconsistency in the lease agreement is not preserved. Although the

defendants’ posttrial brief discussed the nature of its fine dining business,

including entree prices and associated bar revenues, it did not claim that

the language of the lease agreement limited the use of the premises to a

particular kind of restaurant business. Indeed, counsel for the defendants

acknowledged at oral argument before this court that this issue was not

specifically litigated before the trial court, with no evidence introduced as

to the drafting of the lease agreement. Accordingly, we decline to consider

this claim further because it was not presented to the trial court and, therefore, is unpreserved for appellate review. See, e.g., Blumberg Associates

Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,

157–60, 84 A.3d 840 (2014); Graham v. Commissioner of Transportation,

206 Conn. App. 497, 505–506, 260 A.3d 1275 (2021).

24 Our Appellate Court has observed that the ‘‘doctrine of frustration of

purpose was first recognized in the [turn of the century] English case of

Krell v. Henry, 2 K.B. 740 (C.A. 1903). In that case, a spectator entered into

a contract to rent an apartment for the purpose of viewing the procession

for the coronation of King Edward VII. When the coronation was postponed

and the procession cancelled, the spectator refused to pay for the rental,

breaching the contract. . . . When the apartment owner sued, the court

excused the breach, holding that the ‘coronation procession was the foundation of this contract’ . . . and that ‘the object of the contract was frustrated

by the non-happening of the coronation and its procession on the days

proclaimed.’ . . . The court implicitly determined that, had the parties contemplated the possibility of the coronation being cancelled, they would have

included a provision allowing the spectator to terminate the contract under

those circumstances. Thus, the doctrine of frustration of purpose, as it

originated and has since been applied by Connecticut courts, acts to provide

an excuse for nonperformance by a party whose purposes were thwarted

by events the parties did not contemplate and could not foresee.’’ (Citations

omitted.) DDS Wireless International, Inc. v. Nutmeg Leasing, Inc., 145

Conn. App. 520, 525–26, 75 A.3d 86 (2013).

25 We note that the Massachusetts court further concluded that the lease’s

force majeure clause did not bar the application of the doctrine of frustration
of purpose because that clause excepted financial inability to pay from

causes deemed to be beyond a party’s control, and ‘‘addresse[d] the risk

that performance may become impossible, but [did] not address the distinct

risk that the performance could still be possible even while the main purpose

of the [l]ease is frustrated by events not in the parties’ control.’’ (Emphasis

in original.) UMNV 205-207 Newbury, LLC v. Caffe ́ Nero Americas, Inc.,

supra, 2021 WL 956069, *6; see id., *7 (observing that separate provisions

of lease address ‘‘a classic cause of frustration of purpose,’’ namely, destruction or damage of leased premises, by limiting rent abatement/termination

rights only to extent that landlord was made whole by insurance, and gave

landlord 120 days to repair premises).

26 Finally, we note that our conclusions in this appeal are consistent with

the decisions of numerous federal and state courts that have held that the

severe economic difficulties in the operation of restaurants, retail businesses, and other public accommodations that resulted from governmental

actions intended to stem the spread of the COVID-19 pandemic have not

excused them from the performance of their commercial lease agreements

on grounds of impossibility, impracticability, or frustration of purpose. See

Gap, Inc. v. Ponte Gadea New York, LLC, supra, 524 F. Supp. 3d 234–35,

237–38 (retail store); In re NTS W. USA Corp., Docket No. 20-CV-6692 (CS),

2021 WL 4120676, *1, *5–7 (S.D.N.Y. September 9, 2021) (retail store); In

re Cinemex USA Real Estate Holdings, Inc., supra, 627 B.R. 695, 700–701

(movie theater); STORE SPE LA Fitness v. Fitness International, LLC,

Docket No. SACV 20-953 JVS (ADSx), 2021 WL 3285036, *9–10 (C.D. Cal.

June 30, 2021) (fitness center); Gap, Inc. v. 170 Broadway Retail Owner,

LLC, 195 App. Div. 3d 575, 576–78, 151 N.Y.S.3d 37 (2021) (retail store); 558

Seventh Ave. Corp. v. Times Square Photo, Inc., supra, 194 App. Div. 3d

561–62 (retail electronics store); A/R Retail, LLC v. Hugo Boss Retail, Inc.,

72 Misc. 3d 627, 648–50, 149 N.Y.S.3d 808 (2021) (retail store); Greater New

York Automobile Dealers Assn., Inc. v. City Spec, LLC, Docket No. LT053560-20/QU, 2020 WL 8173082, *7–10 (N.Y. Civ. December 29, 2020) (decision without published opinion, 70 Misc. 3d 1209, 136 N.Y.S.3d 695) (commercial office space); see also CAI Rail, Inc. v. Badger Mining Corp., Docket

No. 20 Civ. 4644 (JPC), 2021 WL 705880, *7–10 (S.D.N.Y. February 22, 2021)

(decline in petroleum industry resulting from suppression of demand

because of COVID-19 restrictions did not relieve lessee of railroad cars from

obligation under lease, which lacked force majeure clause, pursuant to

doctrines of impossibility or frustration of purpose under New York law);

cf. 1600 Walnut Corp. v. Cole Haan Co. Store, 530 F. Supp. 3d 555, 558–59

(E.D. Pa. 2021) (governor’s shutdown orders were force majeure event that,

under terms of lease, did not excuse retail tenant from obligation to pay

rent, thus rendering doctrines of impossibility and frustration of purpose

unavailable to relieve tenant of requirement to adhere to terms of lease).

To the extent that our independent research has found authority that

excused—at least in part—tenants from their rental obligations during

COVID-19, that authority rests on distinguishable lease language, namely,

force majeure clauses that governed this particular situation. See In re

Cinemex USA Real Estate Holdings, Inc., supra, 627 B.R 699 (force majeure

clause excusing performance for duration of certain events, including governmental action, excused movie theater from rent obligation during period

of total shutdown due to COVID-19); In re Hitz Restaurant Group, 616 B.R.

374, 377–80 (Bankr. N.D. Ill. 2020) (concluding that force majeure clause

excusing both parties from lease obligations that are ‘‘ ‘prevented or delayed,

retarded or hindered by . . . laws, governmental action or . . . orders of

government’’ proportionately reduced, but did not eliminate, restaurant tenant’s rent obligations during COVID-19 shutdowns given that curbside and

takeout service remained available); 1877 Webster Ave., Inc. v. Tremont

Center, LLC, supra, 72 Misc. 3d 292 (fact that ‘‘the exclusive purpose of the

lease was to operate a first-class nightclub’’ presented ‘‘legally cognizable

theory’’ of impossibility that government shutdown of nonessential businesses rendered it ‘‘objectively impossible’’ for tenant ‘‘to conduct business

as originally contemplated by the parties’ lease’’).

27 As a corollary to its burden of proof claim, the plaintiff contends that

the trial court’s damages award is clearly erroneous insofar as the trial court

concluded that the plaintiff failed to prove its entitlement to damages via

the presentation of evidence relating to those negotiations with Sono Boil.

The plaintiff, however, asks us to remand the case to the trial court with

direction to award it $447,087.26, which reflects the full remaining value of

the payments due under the lease agreement. On the other side of that coin,

the defendants argue in their appeal that the trial court improperly failed

to consider relevant facts regarding the breakdown in negotiations between

the parties in determining whether the plaintiff had mitigated its damages.

Because a remand for a new hearing is required given that the trial court
applied the improper legal standard in calculating the damages, we need

not reach these claims with respect to the calculation of damages as a

factual matter.

28 The defendants correctly state that, when a trial court’s memorandum

of decision is ambiguous as to the burden of proof applied, it is the responsibility of the appellant—in this case, the plaintiff—to move pursuant to

Practice Book § 61-10 for an articulation on that point. See, e.g., Smith v.

Muellner, supra, 283 Conn. 537. In the present case, we conclude that the

trial court’s memorandum of decision is unambiguous insofar as it can be

read only to assign the burden of proving the reasonableness of mitigation

to the plaintiff, by expressly questioning its failure to introduce evidence

of its negotiations with Sono Boil in stopping the accrual of damages in

December, 2020. Accordingly, we disagree with the defendants’ argument

that the record is not adequate for review of this issue.

29 Our sister states are split with respect to which party bears the burden

of proving mitigation of the lessor’s damages in the wake of a breach of a

commercial lease in view of the ‘‘ ‘modern trend’ ’’ of treating real property

leases as contractual in nature, rather than as assignments of property rights.

Frenchtown Square Partnership v. Lemstone, Inc., 99 Ohio St. 3d 254, 257,

791 N.E.2d 417 (2003); see, e.g., Reid v. Mutual of Omaha Ins. Co., 776

P.2d 896, 905 (Utah 1989) (describing ‘‘the traditional rule’’ not requiring

mitigation as ‘‘anachronistic’’). Some follow traditional contract and tort

law principles in holding that it is the breaching party’s obligation to prove

a violation of the duty to mitigate damages, such as by affirmative defense.

See, e.g., Frenchtown Square Partnership v. Lemstone, Inc., supra, 259;

Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293,

299–300 (Tex. 1997). Others allocate to the landlord the burden of proving

that it satisfied its ‘‘affirmative obligation’’ of mitigating damages for breach

of a lease by making ‘‘commercially reasonable’’ efforts to obtain a new

tenant because that requirement ensures that ‘‘serious efforts are made to

redeploy the rental property in a productive fashion by those who are best

able to accomplish that end and who are also best able to prove that required

mitigation efforts have been carried out.’’ Reid v. Mutual of Omaha Ins.

Co., supra, 906–907; see also annot., C. Vaeth, Landlord’s Duty, on Tenant’s

Failure To Occupy, or Abandonment of, Premises, To Mitigate Damages by

Accepting or Procuring Another Tenant, 75 A.L.R.5th 1, 129–48, § 14 (2000

and Supp. 2020) (discussing split of authority).

30 In Danpar Associates, this court cited a commercial contract case,

Willametz v. Goldfeld, 171 Conn. 622, 627, 370 A.2d 1089 (1976), an eminent

domain condemnation damages case, Connecticut Light & Power Co. v.

Costello, 161 Conn. 430, 442, 288 A.2d 415 (1971), and a motor vehicle

negligence case, Brown v. Middle Atlantic Transportation Co., 131 Conn.

197, 199, 38 A.2d 677 (1944), for the proposition that a landlord who brings

an action for damages from the breach of a lease ‘‘is entitled to recover

those damages [that] would naturally flow from a total breach of the lease’’

but was obligated to make ‘‘reasonable efforts’’ to ‘‘minimize the damages

occasioned by the defaulting tenant’s breach of contract.’’ Danpar Associates v. Somersville Mills Sales Room, Inc., supra, 182 Conn. 446; see id.,

446–47 (trial court properly considered landlord’s refusal to accept assignment of lease to new tenant that ‘‘would have placed it in statu[s] quo

ante’’ in determining whether landlord made reasonable efforts to minimize

damages from breach of lease of premises in shopping center).

31 Although not squarely addressing the issue of the burden of proof, we

note that the Appellate Court’s decision in Rokalor, Inc. v. Connecticut

Eating Enterprises, Inc., supra, 18 Conn. App. 384, may be read to suggest

that it is the landlord who bears the burden of proving reasonable efforts,

insofar as it refers to failures of proof on the part of the landlord in that

case. See id., 390–91 (observing that landlord ‘‘did not hire a real estate

broker until almost four months after the defendant’s default . . . provided

no explanation for this delay’’ and ‘‘did not introduce any evidence by the

broker to establish what efforts were made by him to lease the premises’’

in concluding that trial court did not abuse discretion in ‘‘finding that the

[landlord] failed to make reasonable efforts to mitigate its damages’’). To

the extent that the Appellate Court’s decision in Rokalor, Inc., may be read

to require the nonbreaching landlord to bear the burden of proving that it

did not fail to mitigate its damages, we conclude that it is not an accurate

statement of the law.