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*********************************************** 
COMMERCE PARK ASSOCIATES, LLC

v. KIM ROBBINS

(AC 41398)

ROBBINS EYE CENTER, P.C. v. COMMERCE

PARK ASSOCIATES, LLC, ET AL.

(AC 41543)

Lavine, Prescott and Eveleigh, Js.

Syllabus

The plaintiff landlord, C Co., brought an action for breach of a commercial

lease seeking to recover rent that it allegedly was owed by the defendant

former tenant, R, and R’s ophthalmological and surgical practice, R Co.,

brought a tort action against C Co. and its property manager, M Co.,

seeking, inter alia, monetary damages for economic injuries that R Co.

suffered as a result of C Co.’s negligence and failure to make necessary

repairs to the leased premises. Prior to the commencement of those

actions, in August, 2007, R had executed a commercial lease to rent the

entire lower level of a building owned by C Co. for a fifteen year term,

with an option to extend the lease for two additional five year terms.

In December, 2009, the leased premises, which were occupied by R Co.,

were remodeled and transformed into an eye care center, complete

with, inter alia, a surgical center with operating rooms for optical surgery

and an optical shop. In September, 2013, as a result of the flooding to

parts of the lower level, R Co. was forced to suspend business completely

for six weeks. Afterward, by relocating its examination rooms and a

downsized version of its optical shop into portions of the premises

designated for administrative offices, R Co. was able partially to resume

operations, albeit utilizing only approximately one half of the premises.

By the end of October, 2014, R Co. had repaired the flood damage and

reoccupied the remainder of the premises. Beginning in the third full

week of April, 2015, and continuing into May and June, 2015, the building’s sewage system backed up, causing sewer water and waste to

flood into the premises. On the basis of the various problems with the

premises, beginning in September, 2013, and continuing until the time

R and R Co. vacated the premises in June, 2015, R, through R Co., paid

only approximately one half of her monthly rental obligation under the

lease. C Co.’s rent action and R Co.’s tort action were consolidated and

tried to the court, which rendered judgment in part for C Co. in the

rent action, from which R appealed and C Co. cross appealed to this

court, and rendered judgment in part for R Co. in the tort action. Specifically, regarding the rent action, the court determined, inter alia, that R

Co. had been constructively evicted from the premises and that C Co.

was not owed any rent under the lease from April 23, 2015, to the end

of the lease period, but that C Co. was owed additional rent for the

time period between November, 2014, and April 22, 2015, when there

were no grounds to abate the rent. The court concluded, regarding the

tort action, that although liability for any ordinary negligence by C Co.

was waived by R Co. under the terms of the lease’s waiver provision,

R Co. was entitled to damages on its negligence claim as a result of C

Co.’s gross negligence. Subsequently, the trial court granted R Co.’s

motion to reargue and for reconsideration and awarded R Co. additional

damages, and denied the motion to reargue and for reconsideration filed

by C Co., and C Co. appealed to this court from the judgment in the

tort action. Held:

1. R could not prevail on her claim that the trial court improperly awarded

C Co. additional rent for the period between November, 2014, through

the third full week of April, 2015, on the basis of its implicit factual

finding that the premises were fully tenantable during that period and,

therefore, that C Co. was entitled to receive the full amount of rent due

under the lease, rather than the partial payments tendered by R Co.;

although R claimed that the court overlooked evidence that, during the

time period at issue, R Co. was unable to use certain administrative

office space for its intended purpose as office space and, thus, that R
was entitled to continue partial abatement of rent during that period,

the trial court’s finding that there were no grounds to support abatement

under the lease after October, 2014, was supported by the factual record

and was not clearly erroneous, as R testified that repairs to all the water

damaged areas were completed in October, 2014, the administrative

office space at issue, which, prior to November, 2014, was used by R

and R Co. as patient examination space and as a temporary optical

shop, did not become untenantable after it was no longer needed for

those alternative purposes, and the mere fact that the administrative

office space would have needed additional modifications to return it to

its original use as office space did not render the space untenantable

for purposes of determining whether R was entitled to an abatement

of rent under the lease.

2. There was no evidence in the record supporting the trial court’s calculation

that R owed back rent totaling $89,484.37 between November, 2014, and

the end of April, 2015, which the court determined by multiplying the

number of months at issue by $15,562.50, the minimum monthly base

rent set forth in the lease: the trial court failed to credit partial rent

payments that R Co. had made to C Co. during that time period, the

court’s use of the minimum monthly base rent at the time the lease was

executed in 2007 failed to take into account that, pursuant to the express

provisions in the lease, the basic rent was to be adjusted annually using

the consumer price index and a proportional share of property taxes

was to be included as an additional component of the total monthly

rental obligation under the lease, and the court’s use of the $15,562.50

figure was inconsistent with and unsupported by other evidence before

the court, including the stipulated facts in the parties’ joint management

trial report and certain information in a tenant’s ledger, regarding the

actual amount of R’s unpaid rental obligation to C Co.; accordingly, a

new hearing in damages was appropriate.

3. C Co. could not prevail on its claim on cross appeal that the trial court

improperly found that R was constructively evicted from the premises

as a result of the serious and frequent sewer backups following the

third full week of April, 2015, and that this erroneous finding thwarted

C Co.’s efforts to recover the remainder of rent due under the lease,

which was based on C Co.’s claim that R had been intending to vacate

the premises even before the sewage backups occurred and, thus, did

not vacate the premises in June, 2015, because of the sewage problems:

that court was entitled to credit R’s testimony at trial as satisfying

the requirement that she vacated the premises because of the sewage

backups that began at the end of April, 2015, and the record supported

the trial court’s finding that R did not vacate the premises before C Co.

had notice and a reasonable opportunity to correct the problems with

the building’s sewer system, as C Co. and M Co. had actual notice of

the sewer system defects from at least June, 2014, when a former M

Co. employee informed M Co. of the sewer contractor’s findings that

there were sags in the sewer lines and that the floors would need to

be ripped up to make needed repairs, and although C Co. did engage

professionals to respond to the sewage backups at the time they occurred

to address the immediate situation, there was nothing in the record to

indicate that C Co. made any real effort to remedy the root cause of

those backups, the origins of which were known before the first serious

sewage backup ever occurred; accordingly, the trial court’s finding that

C Co. was afforded adequate time to remedy the defect that caused the

constructive eviction was not clearly erroneous.

4. C Co. could not prevail on its claim that the trial court improperly awarded

compensatory damages to R Co. on a theory of gross negligence because

Connecticut common law does not recognize degrees of negligence or

a cause of action sounding in gross negligence: even though Connecticut

courts have not recognized a cause of action sounding in gross negligence, it does not necessarily follow that a court, in the course of

adjudicating a negligence cause of action, is barred from recognizing a

distinction between negligent and grossly negligent conduct, and

because, in the present case, it was necessary to make such a distinction

in order to determine the applicability of a contractual provision that

waived a landlord’s liability for ordinary negligence but not for gross

negligence, the court was permitted to award damages on the basis of

acts or omissions that it determined fell within a full range of negligent

behavior, including, but not limited to, acts of gross negligence; moreover, C Co.’s claim that it was improper for the trial court to have
awarded damages on the basis of gross negligence because it was never

pleaded by R Co. was unavailing, as R Co. recovered under a negligence

theory that was pleaded, the court considered whether C Co. was grossly

negligent only in order to determine whether R Co. was precluded from

recovering under a negligence theory because of the indemnification

clause in the lease, and this court was not persuaded that the complaint

was silent with respect to allegations of gross negligence, as even though

R Co., in its negligence count against C Co., never used the words ‘‘gross

negligence,’’ it nevertheless incorporated detailed factual allegations

describing the conduct of C Co. and M Co. in response to the sewer

backups.

5. C Co. could not prevail on its claim that the trial court improperly determined the amount of damages awarded to R Co. by incorrectly determining that the proper measure of R Co.’s damages was its loss of the

beneficial use of the substantial improvements it had made to the premises prior to the constructive eviction and that the court should have,

instead, limited its award of damages to the loss of the fair market value

of the lease; R Co. was entitled to recover damages from C Co. based

on, inter alia, the fair market value of the lease on the date that R Co.

terminated the lease and the loss sustained by R Co. due to reasonable

expenditures made by it before C Co.’s default, as may be appropriate,

so long as no double recovery was involved, and, thus, the trial court,

which had discretion to choose the appropriate measure of damages in

crafting a compensatory damages award, properly considered R Co.’s

loss of use of improvements as a component of the damages awarded

to R Co.

6. The trial court miscalculated the amount of damages awarded to R Co.

for the loss of the beneficial use of the substantial improvements R

Co. had made to the premises; that court improperly included two

unexercised five year option periods in calculating the expected length

of the tenancy because doing so was legally inconsistent with the express

terms of the lease, as the right to exercise the options was expressly

conditioned on R’s compliance with each and every obligation of the

lease and not being in default of any provision of the lease, and the

court’s finding that R breached the lease by failing to pay the full rental

for five and three-quarter months would have precluded her from exercising her option to extend the lease as a matter of law.

Argued March 12—officially released October 22, 2019

Procedural History

Action, in the first case, to recover damages for

breach of a commercial lease agreement, and for other

relief, brought to the Superior Court in the judicial district of Fairfield, Housing Session at Bridgeport, and

action, in the second case, to recover damages for, inter

alia, the defendants’ alleged negligence, and for other

relief, brought to the Superior Court in the judicial district of Fairfield, where the actions were consolidated

and tried to the court, Krumeich, J.; judgment in part

for the plaintiff in the first case and judgment in part

for the plaintiff in the second case, from which the

defendant in the first case appealed and the plaintiff in

the first case cross appealed to this court; thereafter,

the court, Krumeich, J., granted the motion to reargue

and for reconsideration filed by the plaintiff in the second case and denied the motion to reargue and for

reconsideration filed by the defendants in the second

case, and the defendants in the second case appealed

to this court. In AC 41398, reversed in part; further

proceedings. In AC 41543, reversed in part; judgment directed.

James M. Moriarty, with whom, on the brief, was

Aaron A. Romney, for the appellant-cross appellee in
AC 41398 (defendant in the first case).

Colin B. Connor, with whom were Joseph DaSilva,

Jr., and Robert D. Russo III, for the appellee-cross

appellant in AC 41398 (plaintiff in the first case).

Joseph DaSilva, Jr., with whom were Colin B. Connor and, on the brief, Robert D. Russo III and Marc J.

Grenier, for the appellants in AC 41543 (defendants in

the second case).

James M. Moriarty, with whom, on the brief, was

Aaron A. Romney, for the appellee in AC 41543 (plaintiff

in the second case).
Opinion

PRESCOTT, J. The present appeals and cross appeal

arise from two actions involving a commercial lease

that share a nucleus of operative facts and were consolidated for trial. They raise, among other issues, whether

the landlord’s failure to take actions to remedy recurrent sewage backups into the leased premises occupied

by an eye surgery center resulted in a constructive

eviction that excused the tenant from the obligation to

pay rent in accordance with the terms of the lease,

and whether, as a result of the alleged inaction of the

landlord and its property management company, the

eye surgery center was entitled to recover compensatory damages for the loss of its use of improvements

it previously had made to the premises.

In the action underlying AC 41398 (rent action), Commerce Park Associates, LLC (Commerce Park),1

sought

to recover rent it alleges it was owed by a former tenant,

Kim Robbins—an ophthalmologist and the owner of

Robbins Eye Center, P.C. (REC). REC had occupied

the lower level of a commercial property owned by

Commerce Park in Bridgeport pursuant to a commercial

lease but vacated the premises prior to the lease’s expiration following a series of sewage backups that flooded

the premises. Robbins now appeals, and Commerce

Park cross appeals, from the judgment of the trial court

rendered in part in favor of Commerce Park. Robbins

claims that the court improperly (1) awarded Commerce Park rent for a period of time from November,

2014, through the third full week of April, 2015, and (2)

miscalculated the amount of the rent that she owed for

that period. Commerce Park claims by way of cross

appeal that the court improperly determined that Robbins was constructively evicted from the premises after

the third full week of April, 2015, by the sewage backups, and, consequently, Commerce Park was not entitled to recover any rent from Robbins after that date.

We affirm the judgment of the court with the exception

of its calculation of the amount of the rent awarded to

Commerce Park and, accordingly, remand for a new

hearing in damages in the rent action.

In the action underlying AC 41543 (tort action), REC

sued Commerce Park and its property manager, RDR

Management, LLC (RDR), seeking monetary damages

for economic injuries that REC suffered as a result of

their failure to make necessary repairs to the premises.

Commerce Park now appeals2

from the judgment of the

trial court rendered in part in favor of REC and awarding

REC damages of $958,041.92 against Commerce Park.3

Commerce Park claims that the trial court improperly

(1) awarded damages on the basis of gross negligence

because (a) Connecticut common law does not recognize distinctions or degrees of negligence and (b) REC

never pleaded or otherwise asserted allegations of gross

negligence prior to trial; and (2) miscalculated the
amount of damages awarded because the court (a) utilized an incorrect measure of damages in determining

REC’s losses and (b) misconstrued the length of Robbins’ expected tenancy under the lease, which was an

integral component of the court’s calculation of damages. We agree that the court improperly included two

unexercised lease extension options in determining the

length of Robbins’ tenancy and, accordingly, reverse

the amount of damages awarded; we otherwise affirm

the judgment of the court in the tort action.

The following facts, which either were stipulated by

the parties4 or found by the trial court, and procedural

history are relevant to our discussion of the parties’

claims. Beginning in 1995, Robbins leased from Commerce Park increasing amounts of space in the lower

level of a commercial building it owned at 4695 Main

Street in Bridgeport (building). The building, which was

constructed in 1964, primarily houses medical offices

and is part of a complex of office buildings owned by

Commerce Park. By 2014, the building’s roof, foundation, and sanitary sewer system were in poor condition

and in need of repair.

Although Robbins executed the original and all subsequent leases, the leased space was occupied by REC,

Robbins’ ophthalmological and surgical practice. REC

is a domestic professional corporation with Robbins as

its sole shareholder. REC paid all rents and other

charges due under the operative lease and carried all

required insurance policies, which, as described by the

court, made REC ‘‘the de facto tenant of the leased

space with whom the landlord dealt.’’

On August 1, 2007, Robbins executed the lease at

issue in the present appeals and cross appeal. Pursuant

to the lease, Robbins agreed to rent the entire lower

level of the building (premises), which consisted of

20,750 square feet of space. The lease was for a fifteen

year term, with the tenant, Robbins, having the option

of extending the lease for two additional five year terms.

The lease required Robbins to pay rent at an adjustable

rate, starting at $186,750 per year and payable in

monthly installments of $15,562.50.5 Robbins also was

responsible for paying a pro rata share of the building’s

property taxes as additional rent.

Paragraph 23 (c) of the lease provided in relevant

part: ‘‘In the event the Demised Premises shall be damaged by fire or other casualty and shall be rendered

wholly or partially untenantable, then . . . Landlord

shall, at Landlord’s own cost and expense, proceed

with all reasonable dispatch to cause the damage to be

repaired and in the case of partial damage, the monthly

rental for any period of such repair which is not otherwise covered by Tenant’s business interruption insurance shall be abated in proportion to the portion of the

Demised Premises rendered untenantable . . . .’’
Paragraph 16 (b) of the lease provided in relevant

part: ‘‘[U]nless caused by the gross negligence or willfulness of Landlord, or of Landlord’s agents, Landlord

shall not be responsible or liable to Tenant, or any

person, firm or corporation claiming by, through, or

under Tenant for, or by reason of, any defect in the

Demised Premises . . . or from any injury or loss or

damage to person or property of Tenant, for loss of or

damage to property contained in or upon the Demised

Premises . . . caused by or arising or resulting from

pipes . . . or by or from any defect in or leakage, running or overflow of water or sewerage in any part of

the Demised Premises . . . .’’ (Emphasis added.)

After signing the new lease, Robbins hired a contractor to transform the premises into what the trial court

found was a ‘‘state-of-the-art eye care center, complete

with a surgical center with two operating rooms certified by the state for optical surgery . . . a LASIK facility, and an optical shop.’’ The remodeling was completed in December, 2009, at a cost of $1,186,267.6

In September, 2013, during a period of heavy rain, a

downspout detached from a roof drain, which allowed

water to flood into the building and inundate parts of

the lower level.7 The flooding from above was exacerbated by groundwater that seeped in through the building’s porous foundation. The water caused substantial

damage to REC’s equipment, materials, and work

spaces. As a result of the flooding, REC was forced to

suspend business completely for six weeks. Afterward,

by relocating its examination rooms and a downsized

version of its optical shop into portions of the premises

designated for administrative offices, REC was able

partially to resume operations, albeit utilizing only

approximately one half of the leased premises.

For months, mold would appear at various times and

locations within the premises. By the end of October,

2014, however, REC had repaired the flood damage,

remediated the mold infestations, and reoccupied the

remainder of the premises, including the surgical

center.8

At other times, both before and after the major flooding incident in 2013, REC’s normal operations were

interrupted due to contaminated water that leaked into

the premises from blocked toilets in the offices or common areas of the upper floors of the building. Patients

and staff often smelled urine or other foul odors at

various locations throughout the lower floor. The court

found that these various smaller leaks, although certainly disruptive, never rendered the premises untenantable. Nevertheless, as the court noted, ‘‘Robbins and

REC became disenchanted with RDR’s and [Commerce

Park’s] attitude and efforts to maintain and repair the

building. The periodic plumbing problems, unpleasant

odors and mold blooms proved to be quite disruptive
[to] the practice and eroded any goodwill remaining

between Robbins and REC, on one side, and RDR and

[Commerce Park], on the other.’’ On the basis of the

various problems with the premises, beginning in September, 2013, and continuing until the time REC vacated

the premises on June 30, 2015, Robbins, through REC,

paid only approximately one half of her monthly rental

obligation under the lease.

Beginning in April, 2015, and continuing into May and

June, 2015, the building’s sewage system backed up,

causing sewer water and waste to flood the premises.

Specifically, sewage flooded the premises on April 23,

27, and 28, 2015. In addition, on April 29, 2015, a plumber

hired by RDR accidently cut a waste pipe, causing additional sewer water and fecal matter to contaminate

REC’s offices. Continued incidents of sewage backups

in the following months culminated in a major event

on June 29, 2015. At that time, REC complained to

municipal authorities, including Lawrence Palaia, the

sanitarian of the city of Bridgeport. Palaia, who

described the premises as having ‘‘sewer water all over

the place,’’ issued a notice of violation to Commerce

Park and RDR, and ordered REC to close operations

until the problem was remedied. As set forth in the

court’s memorandum of decision, ‘‘[t]he notice

demanded that [Commerce Park] engage a contractor

acceptable to the city [of Bridgeport], take out any

necessary permits, and commence repairs within three

business days. The [premises were] supposed to be

vacant until the city signed off on [their] condition after

repairs and cleanup.’’ REC and Robbins vacated the

premises on June 30, 2015.

The serious and persistent problems with the building’s sanitary sewer system were known by Commerce

Park and RDR and were well-documented. The court

made the following findings regarding the problems

that existed and the response by Commerce Park and

RDR: ‘‘[T]here were several serious backups of the

sewer system . . . into the [premises] as a result of

known defects in the sewer system that RDR and [Commerce Park] failed to address effectively. No one has

a map of the sewer system, which has a main sewer

line under the slab and branch lines connected to an

uncounted number of plumbing fixtures throughout the

[b]uilding. The main sewer line is a gravity fed system

that uses four inch cast-iron pipes to pass sewer water,

paper and effluent into a cistern, where it is collected

and, when it reaches a certain level, is ejected out of

the [b]uilding by two ejector pumps. One problem with

the system is that there is insufficient pitch in the main

line to efficiently pass water and material to the cistern.

. . . [T]here was insufficient space for the existing

main line to be building code compliant in pitch of the

pipes into the cistern. The other related problem is that

the system lacked uniformity of pitch. The cast-iron

pipe used in the system has multiple sags, some of
which were major and acted as pockets that trapped

water and material flushed down the toilets that,

together with insufficient pitch, ultimately led to clogs,

which backed up the system and sent sewer water,

effluent and raw sewage into the lower level occupied

by REC on a number of occasions.’’ (Internal quotation

marks omitted.)

As further explained by the court, on at least five

occasions between 1997 and 2015, sewer contractors

hired by RDR made videotapes of the sewer system in

conjunction with clearing out blockages in the system.

‘‘These videos demonstrated a deteriorating sewer piping system as penetration of the pipe and sags worsened

over time. The first video in 1997 showed a penetration

of a rock into the main line, and subsequent videos in

2014 and 2015 showed multiple sags worsening over

time. . . . [T]here were sags throughout the main line

and laterals, some of which were major and severe

enough to cause backups. . . . [T]here were clogs all

over the system, not just in one place . . . . [F]loods

to the lower floor would be caused by a clog in the

main line, not the laterals. . . . [T]he recurrence of

problems more frequently indicated [that] there was a

problem with the performance of the system, and

[RDR’s sewer contractor] had discussed the defects and

possible remedies with RDR, such as cutting up the

floor to replace the pipes, as well as controlling what

went into the system. A former employee of RDR . . .

was present when a video was taken on June 12, 2014,

and informed RDR of the sewer contractor’s concern

about sags that needed to be fixed, and also about the

need to rip up the floors to make repairs to the pipes.

He was also present when the video was taken on June

28, 2015, when multiple sags were seen, and he told

RDR . . . that the sewer contractor expressed concern

about sags, in particular, a major sag in the main line,

approximately twenty feet from the ejector pit, that

needed to be dug up and fixed. . . . [T]he major sags,

along with lack of pitch, had become worse over time

and interfered with the performance of the system and

caused the sewage backups into the [premises].’’ (Footnotes omitted; internal quotation marks omitted.)

Moreover, as expressly found by the court, both

RDR’s sewer contractor and RDR’s own personnel had

advised RDR about the presence of the sags in the

system, that those sags were the cause of the many

sewer backups in the building, and that the sags could

be remedied properly only by tearing up the floor and

replacing the affected sections of the pipe. RDR also

was informed by its contractor that, if it chose not to

repair the sags, ‘‘it would be necessary to carry on a

preventative maintenance program to periodically

snake the sewer system to break up potential clogs

before they were formed. RDR and [Commerce Park]

pursued neither course but merely decided to address

system backups as they occurred.’’9
Commerce Park commenced the action against Robbins for back rent on June 24, 2014, which was after

the flooding event of September, 2013, but prior to the

major sewage backups in 2015. The one count complaint alleged that Robbins had breached her obligations under the lease because, after August, 2013, she

had failed to make the full required monthly rental

payments.

Robbins filed an answer, special defenses, and counterclaims on August 14, 2014. By way of special defense,

Robbins asserted that Commerce Park breached the

lease by failing to maintain the premises in a tenantable

condition, thus excusing her own nonperformance.

Robbins further claimed that she was entitled to a setoff

from any rent owed for the damages she sustained as

a consequence of Commerce Park’s ‘‘gross negligence

and wilfulness in maintaining the leased premises,’’ and

that she was entitled to an abatement of the rent under

the provisions of the lease due to damage from the

water and sewer infiltrations that rendered the premises

untenantable. Robbins also alleged counterclaims

sounding in breach of contract, tort, constructive eviction, and a violation of the Connecticut Unfair Trade

Practices Act (CUTPA), General Statutes § 42-110a et

seq.

Robbins later determined that the damages she

sought by way of relief in her counterclaims in the rent

action actually were incurred by REC. Consequently,

on September 9, 2016, REC commenced the underlying

tort action against Commerce Park and RDR. Count

one of the operative complaint in the tort action alleged

negligence against Commerce Park for breach of its

duty to properly maintain the premises. Count two

alleged negligence against RDR for breaching its property management responsibilities by utilizing unlicensed plumbers to conduct repairs, knowing that failure to repair and replace the sewage line properly could

cause substantial damage to REC. Count three alleged

common-law recklessness by Commerce Park. Counts

four and five alleged violations of CUTPA against Commerce Park and RDR, respectively.

On October 7, 2016, Robbins filed a motion seeking

to consolidate the two matters, which the court granted.

Robbins thereafter withdrew her counterclaims in the

rent action. The matters were consolidated and tried

to the court, Krumeich, J., over seven days in July, 2017.

The parties each submitted multiple posttrial briefs.

The court issued a memorandum of decision resolving the two actions on February 6, 2018. The court

first addressed Commerce Park’s allegations in the rent

action that Robbins had breached the lease and that it

was owed additional rent for the period of time that

REC occupied the premises but had failed to pay its

full monthly rental obligations, as well as for the time
period after REC vacated the premises through the termination date of the lease. The court agreed with Robbins that REC had been constructively evicted from the

premises as a result of the numerous sewer backups

beginning in the last week of April, 2015, and continuing

until REC vacated the premises at the end of June, 2015.

Accordingly, the court determined that Commerce Park

was not owed any rent under the lease from April 23,

2015, through the end of the lease period.10

The court determined, however, that Commerce Park

was owed additional rent for a portion of the period

beginning in September, 2013, and continuing through

the first three weeks of April, 2015, during which time

REC had paid only one half of the total rent due under

the lease. According to the court, ‘‘[w]ith respect to the

period [of] September, 2013, to October, 2014, there

should be a partial rent abatement that, based roughly

on the area affected, justifies the reduced rent paid

by REC. There were five and three-quarter months,

however, [between November, 2014, and April 22, 2015],

when there [were] no grounds to abate the rent. Failure

to pay the full rental for those months was a breach of

the lease, and [Commerce Park] was damaged to the

extent [that] rents for those months were reduced unilaterally by the tenant in the amount of $89,484.37

($15,562.50 per month for [six] months minus $3,890.63

for the last week of April, 2015).’’11

The court next turned to REC’s claim for damages

in the tort action against Commerce Park and RDR

premised on allegations of negligence, recklessness,

and violation of CUTPA. The court explained that Commerce Park ‘‘relies on the negligence waiver in [paragraph 16 (b) of] the lease as a defense, which it argues

also extends to its agent, RDR.’’

The court first determined that, although the indemnification clause of the lease prevented Robbins and REC

from recovering on the basis of any ordinary acts of

negligence on the part of Commerce Park relating to

the sewage backups or seepage of water caused by the

porous foundation, such exculpation, by the plain terms

of the clause, did not extend to RDR as Commerce

Park’s agent. Nevertheless, the court found that RDR

could not have repaired the sewer problems without

authorization from Commerce Park because the problems went beyond simple maintenance issues and

would have required major capital expenditures by

Commerce Park. For that reason and others, the court

concluded that any failure by RDR to repair the sewer

system was, under the circumstances, neither negligent,

reckless or a violation of CUTPA.

With respect to Commerce Park, the court first determined that its liability for any ordinary negligence

clearly was waived by REC under the terms of the

lease’s waiver provision. The court noted, however, that

the waiver clause expressly excluded any waiver of
liability for conduct that amounted to ‘‘gross negligence’’ or, by logical extension, recklessness. See Doe

v. Hartford Roman Catholic Diocesan Corp., 317 Conn.

357, 382, 119 A.3d 462 (2015) (recklessness involves

conduct that ‘‘is more than negligence, more than gross

negligence’’ [internal quotation marks omitted]). The

court relied on our Supreme Court’s definition of gross

negligence as ‘‘very great or excessive negligence, or

as the want of, or failure to exercise, even slight or

scant care or slight diligence . . . .’’ (Internal quotation

marks omitted.) 19 Perry Street, LLC v. Unionville

Water Co., 294 Conn. 611, 631 n.11, 987 A.2d 1009 (2010).

With respect to whether Commerce Park’s actions

or inaction in the present case amounted to gross negligence, the court reasoned as follows: ‘‘The failure to

repair the sewer system or to carry out a preventative

maintenance program breached [Commerce Park’s]

duties under the lease and was more than ‘mere neglect’

but, [rather], a conscious choice to risk future floods

and expose REC to repeated disruption of its business.

. . . It was foreseeable that [Commerce Park’s] decision not to make the repairs to the sewer system recommended by the sewer contractor in violation of its repair

obligations under the lease (paragraphs 16, 18, 23) and

common-law duty, or its failure to carry out a preventative maintenance program outlined by the contractor

as an alternative, would result in future sewage overflows in the basement space occupied by REC. It was

also foreseeable that periodic sewage floods into the

[premises] would seriously disrupt Robbins’ and REC’s

ability to conduct a medical practice in the offices and

to use the operating rooms, rendering the [premises]

untenantable. [Commerce Park’s] conduct was grossly

negligent.’’ (Citation omitted.)

Although the court concluded that REC was entitled

to damages as a result of Commerce Park’s gross negligence, it ruled in favor of Commerce Park with respect

to the additional counts alleging recklessness and a

violation of CUTPA. The court, citing to our Supreme

Court’s definition of recklessness in Matthiessen v.

Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003),

found that, although Commerce Park’s decision not to

heed expert advice regarding the defects in the sewer

system was grossly negligent, its actions ‘‘did not sink

to the level of highly unreasonable conduct, involving

an extreme departure from ordinary care’’ and, thus,

‘‘did not constitute reckless conduct.’’12 (Internal quotation marks omitted.) The court also rejected the CUTPA

count against Commerce Park, finding that the evidence

presented failed to demonstrate unfair or deceptive conduct that would violate the ‘‘cigarette rule.’’13 (Internal

quotation marks omitted.)

The court recognized that quantifying the amount of

damages to award REC for Commerce Park’s gross

negligence was a challenge. The court first acknowl-
edged that there was insufficient evidence presented

to award REC damages on the basis of lost profits

resulting from the interruption of its business. The

court, however, concluded that if a tenant has made

improvements to a leased premises and is subsequently

forced by the landlord’s misconduct to abandon the

premises, the tenant is entitled to recover damages on

the basis of its loss of the beneficial use of the improvements the tenant would have enjoyed during the

remaining term of the lease. Such damages, according

to the court, are measured by determining the period of

time the tenant had use of the improvements compared

against the period of time the tenant would have had

the right to use them under the terms of the lease. The

court found that REC had used the improvements it

made to the premises for ‘‘five years and four months

out of a twenty-two year term (ten years after the completion of the improvements plus two five year options).

Therefore, REC’s damages are 75.8 percent of the

improvement cost, which totals $899,190 ($1,186,267 x

75.8 percent).’’

REC filed a motion for an award of postjudgment

interest, and both REC and Commerce Park filed

motions seeking reconsideration and reargument of the

damages awarded to REC. Commerce Park argued that

any damages attributable to lost use of improvements

should have been calculated from the lease’s commencement date, not from the date that the improvements were completed. It also argued that the court

failed to credit against the damages awarded $300,000

that Commerce Park allegedly contributed toward the

cost of the improvements. According to REC, it was

entitled to additional damages for expenses that it

incurred as a result of having to abandon the premises,

including moving expenses and costs related to fitting

out a new, temporary work space.

The court heard arguments on the postjudgment

motions on March 5, 2018. On March 22, 2018, the court

filed supplemental memoranda of decision, rejecting

Commerce Park’s arguments but awarding REC additional damages of $58,557.55, for a total award of

$958,041.92, along with postjudgment interest at a rate

of 8 percent per annum.14 These appeals and cross

appeal followed.

I

AC 41398

We begin our discussion with the claims arising out

of Commerce Park’s action to recover unpaid rent that

it asserted Robbins owed under the lease. Robbins

claims on appeal that (1) the court improperly awarded

Commerce Park additional rent for the period between

November, 2014, through the third full week of April,

2015, and (2) even if she owed additional rent, the court

miscalculated the amount of rent due. Commerce Park

claims by way of cross appeal that the court improperly
determined that Robbins owed no rent following the

third full week of April, 2015, because she was constructively evicted by the repeated sewage backups.

A

Robbins first claims that the court improperly

awarded Commerce Park back rent for the time period

between November, 2014, and the final week of April,

2015. Specifically, Robbins challenges the court’s

implicit factual finding that the premises were fully

tenantable during that period and, therefore, that Commerce Park was entitled to receive the full amount

of rent due under the lease rather than the one-half

payments tendered by REC. Robbins argues that the

court overlooked evidence that would have supported

a contrary finding, namely, that during the time period

at issue, REC was unable to use certain administrative

office space for its intended purpose as office space

and, thus, Robbins was entitled to continue partial

abatement of rent during that period.

Commerce Park counters that, prior to November,

2014, Robbins and REC had been using the administrative office space at issue as patient examination space

and as a temporary optical shop and that Robbins’ argument that this same space became untenantable after

it was no longer needed for these alternative purposes

advances an ‘‘unreasonable and myopic view of what

‘use for its intended purpose’ means in the context of

a commercial lease.’’ Commerce Park argues that the

mere fact that the administrative office space would

have needed additional modifications to return it to its

original use as office space did not render the space

untenantable for purposes of determining whether Robbins was entitled to an abatement of rent under the

lease.

Although Robbins’ position cannot be described as

wholly lacking merit, we find Commerce Park’s arguments more persuasive under the terms of the lease.

We conclude that Robbins has failed to demonstrate

that the court’s finding that there was no justification

for abatement of rent during the period at issue was

clearly erroneous and, therefore, that finding must

stand.

As previously set forth, paragraph 23 (c) of the operative lease provided in relevant part that if the premises

became ‘‘wholly or partially untenantable,’’ rental payments ‘‘shall be abated in proportion to the portion of

the [premises] rendered untenantable . . . .’’ The lease

does not define the term ‘‘untenantable’’; however, our

courts previously have indicated that the question of

whether premises are untenantable is one of fact for

the trier, to be decided on a case-by-case basis ‘‘after

a careful consideration of the situation of the parties

to the lease, the character of the premises, the use to

which the tenant intends to put them, and the nature
and extent by which the tenant’s use of the premises

is interfered with by the injury claimed.’’ (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn. App.

658, 662, 897 A.2d 710 (2006).

It is well settled that a factual finding is not clearly

erroneous unless ‘‘it is not supported by any evidence

in the record or when there is evidence to support it,

but the reviewing court is left with the definite and firm

conviction that a mistake has been made. . . . Simply

put, we give great deference to the findings of the trial

court because of its function to weigh and interpret the

evidence before it and to pass upon the credibility of

witnesses.’’ (Internal quotation marks omitted.) Benedetto v. Wanat, 79 Conn. App. 139, 147, 829 A.2d 901

(2003).

In its memorandum of decision, the court found that

‘‘[t]he entire [premises were] untenantable for [their]

intended purpose for six weeks as a result of the September, 2013 flood’’ and ‘‘the area that formerly housed

the clinic, optical shop and operating rooms was not

tenantable until October, 2014.’’ During that time, REC

paid only one half of the rent due under the lease, and

the court found, on the basis of the portion of the

premises affected, that this reduction of rent was justified.

The court, nevertheless, also found that REC eventually was able to utilize the previously untenantable areas

of the premises and, for the period after October, 2014,

until the sewage backups began in April, 2015, ‘‘there

were no grounds to abate the rent’’ and ‘‘[f]ailure to

pay the full rental for those months was a breach of

the lease . . . .’’ Implicit in this finding is a determination by the court that the entire premises were tenantable during that period, otherwise the court logically

would have found that some continued abatement of

rent was justified under the lease.

The court made no additional subordinate factual

findings and provided no analysis regarding the tenantability of the premises after all areas were repaired of

the damage from the September, 2013 flooding.15 Its

finding that no ground existed to support Robbins’ and

REC’s continued abatement of rent is, nevertheless,

supported by some evidence in the record. Robbins

testified that repairs to all the water damaged areas

were completed in October, 2014. She also testified

that once the administrative office space was no longer

needed as examination space, it would have needed to

be remodeled to return it to its original use as office

space. Robbins never testified or presented any other

evidence, however, that would have mandated a finding

by the court that the former administrative space was

ever ‘‘untenantable,’’ meaning unusable for a purpose

related to REC’s operations.16 Robbins testified that, at

the time, she had been considering converting some of

the office space into additional operating rooms, which
demonstrates that the space had a variety of potential

uses for REC and Robbins aside from its use as administrative offices.

Even assuming that REC would have had to expend

additional resources to return the office space to its

original use, that fact alone does not directly conflict

with the court’s finding, which was not that the space

was available for use as administrative offices, but that

there was no basis for abating rental payments. Under

the express terms of the lease, rent abatement was

permitted for periods in which all or part of the premises

were rendered untenantable due to damage caused by

fire or other casualty, and then only during the period

of repair. Here, even if the converted administrative

office space could not be used for its originally intended

purpose, the record indicates that this portion of the

premises was not significantly damaged and rendered

untenantable as a result of the September, 2013 flood

or any other casualty during the period at issue and

was not undergoing repair. Accordingly, the court’s

finding that there were no grounds to support abatement under the lease after October, 2014, is supported

by the factual record before the court.

Moreover, although Robbins suggests that the evidence before the court could have supported a different

conclusion, it is not the function of this court to retry

the facts or pass on the credibility of fact witnesses.

See Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988

(1983) (affirming court’s finding that premises were

tenantable despite uncontroverted expert testimony to

contrary). Because there is evidence in the record to

support the court’s factual findings, and we are not left

with a firm and definite conviction that a mistake was

made, we do not agree that the court’s finding that rent

abatement was unjustified for the period in question

was clearly erroneous.

B

Robbins next claims that, even if she owed Commerce Park some additional rent for the five and threequarter months between November, 2014, and the end

of April, 2015, there is no evidence in the record supporting the court’s calculation that she owed back rent

totaling $89,484.37. In particular, Robbins argues that

the court failed to credit partial rent payments that

REC made to Commerce Park during that time period.

Commerce Park responds that the language used by

the court suggests that it took into account any partial

payments made, but principally argues that the court’s

damages award is unreviewable because the court did

not set forth the precise basis for its calculations in its

memorandum of decision and Robbins failed to seek

an articulation from the court. We agree with Robbins

that the court’s unpaid rent calculation is unsupported

by the record.
The following facts are relevant to this claim. The

court concluded that Robbins breached the lease by

not making full rental payments for the five and threequarter months at issue. The court determined that the

proper measure of damages to award Commerce Park

was the amount of any unpaid rent, which the court

determined was $89,484.37. In arriving at that number,

the court, in essence, multiplied the number of months

at issue, or 5.75,17 by $15,562.50, which was the minimum monthly base rent set forth in the lease. For the

following reasons, however, we are left with a firm

and definite conviction that the court’s calculation is

mistaken and, thus, must be reversed.

First, the court fully recognized that REC had not

paid Commerce Park ‘‘the full rental’’ but had ‘‘reduced

unilaterally’’ the amount it paid each month. (Emphasis

added.) It is reasonable to infer from this language that

the court was aware that, although REC had not paid

its rental obligation in full each month, it did pay some

reduced amount of rent during the period at issue. That

inference is consistent with the court’s finding earlier

in the decision that REC had made reduced rent payments of approximately one half of the amount due

under the lease. The court, nevertheless, appears to

have based its calculation of the rent owed for the

period at issue by using a figure that represented the

full amount of the minimum monthly base rent due at

the time the lease was executed in 2007. The court

never stated that its calculation took into account any

credit for the rent that REC actually had paid. REC was

entitled to that credit.

Second, although $15,562.50 represented the amount

of the monthly basic rent due at the time the lease was

executed in 2007, the lease also expressly provided that

the basic rent was to be adjusted annually using the

consumer price index, as set forth in detail in exhibit

B of the lease. Given that the rental period in question

spanned from late 2014 into 2015, we have no confidence that $15,562.50 accurately represents the actual

amount of the monthly rent owed by Robbins during

the period in question or the balance due, taking into

consideration partial payments. The court’s use of that

figure also appears to ignore that a proportional share

of property taxes was to be included as an additional

component of the total monthly rental obligation under

the lease.

Third, the court’s use of the $15,562.50 figure is inconsistent with and unsupported by other evidence before

the court regarding the actual amount of Robbins’

unpaid rental obligation to Commerce Park. In their

joint trial management report, the parties stipulated

regarding the amount of rent that Robbins paid, through

REC, to Commerce Park during the period of time at

issue. As stipulated, not including a payment to reimburse Commerce Park for snaking a clogged drain, Rob-
bins paid $73,424.10. As previously discussed, those

payments are not reflected in the mathematical formula

used by the court, and there appears to be no reasonable

basis in the record for the court to have disregarded the

stipulated facts. Robbins also submitted into evidence

a tenant’s ledger that, in addition to showing the same

payments as stipulated to by the parties, lists the actual

base rent for the months in question as $18,929.83 and

the estimated monthly taxes as an additional $5544.87.

The ledger shows that REC made monthly payments

that represented one half of the total of the base rent

plus taxes, or $12,237.35. Using the figures in the ledger,

which were never disputed by Commerce Park, the

court appears to have overstated the amount of rent

owed to Commerce Park by more than $20,000.18

Commerce Park argues that Robbins never asked the

court to articulate the factual basis for its calculation

of damages and suggests that this is fatal to her claim

on appeal. See Smith v. Snyder, 267 Conn. 456, 467,

839 A.2d 589 (2004) (concluding that appellants’ failure

to file motion for articulation to illuminate further basis

for compensatory damages award left reviewing court

to speculate regarding how and why court arrived at

sum awarded). The record before us, however, is adequate for review. Although it is true that courts have

broad discretion in calculating the amount of damages;

see Beverly Hills Concepts, Inc. v. Schatz & Schatz,

Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998);

if, as is the case here, the record clearly reflects that

the figures utilized by the court were incorrect and

untethered from the evidence before it, a new hearing

in damages is appropriate.

C

Turning to Commerce Park’s cross appeal, it claims

that the court improperly found that Robbins was constructively evicted from the premises as a result of the

serious and frequent sewer backups following the third

full week of April, 2015, and that this erroneous finding

thwarted Commerce Park’s efforts to recover the

remainder of rent due under the lease. It maintains that,

in making this finding, the court misinterpreted and

misapplied governing case law because Robbins failed

to establish that (1) REC vacated the premises as a

result of the sewer backups or (2) she gave Commerce

Park a reasonable amount of time to correct the problem. We are not persuaded by either argument.

‘‘[A] constructive eviction arises [if] a landlord,

[although] not actually depriving the tenant of possession of any part of the premises leased, has done or

suffered some act by which the premises are rendered

untenantable, and has thereby caused a failure of consideration for the tenant’s promise to pay rent. . . . In

addition to proving that the premises are untenantable,

a party pleading constructive eviction must prove that

(1) the problem was caused by the landlord, (2) the
tenant vacated the premises because of the problem,

and (3) the tenant did not vacate until after giving the

landlord reasonable time to correct the problem. . . .

Moreover, [w]hether the premises are untenantable is

a question of fact for the trier, to be decided in each

case after a careful consideration of the situation of

the parties to the lease, the character of the premises,

the use to which the tenant intends to put them, and

the nature and extent by which the tenant’s use of the

premises is interfered with by the injury claimed. . . .

That factual determination will not be disturbed by [a

reviewing] court unless the conclusion is such that it

could not reasonably be reached by the trier.’’ (Citations

omitted; internal quotation marks omitted.) Welsch v.

Groat, supra, 95 Conn. App. 662.

In challenging the court’s finding that Robbins and

REC were constructively evicted from the premises as

a result of the backup of the sewage into the premises

beginning at the end of April, 2015, Commerce Park

does not argue on appeal that the court applied an

incorrect legal standard or failed to make all requisite

findings. It does not contend that the sewage backup

did not render the premises untenantable, nor does it

argue that the backups were not ‘‘caused by the landlord.’’ Rather, Commerce Park first argues that Robbins

had been intending to vacate the premises even before

the sewage backups occurred and, thus, did not vacate

the premises ‘‘because of’’ the sewage problems. Second, it argues that she vacated the premises without

giving Commerce Park a reasonable amount of time to

remedy the situation.

Whether Robbins and REC vacated the premises as

a result of the sewage backups and whether Commerce

Park had a reasonable amount of time to remedy the

sewage problems before the premises were vacated are

factual determinations for the trier of fact and, thus,

are subject to our clearly erroneous standard of review.

See Baretta v. T & T Structural, Inc., 42 Conn. App.

522, 527, 681 A.2d 359 (1996). It is apparent from the

court’s decision that it found both requirements were

satisfied in this case and those findings, whether

express or implied, are supported by evidence in the

record.

The court expressly found that it was ‘‘the sewage

backups and floods in the spring of 2015’’ that constructively evicted Robbins from the premises, and that Commerce Park was responsible for those backups because

of its failure adequately to address and repair known

defects in the buildings sewage system. Further, there

can be little doubt on this record that Robbins vacated

the premises ‘‘because of’’ the sewage backups that

began at the end of April, 2015. Robbins testified at

trial to the following: she made her decision to move

her business to a new location after the first sewage

backup; at that time, she received an estimate of $10,000
to clean and sanitize the fouled operating rooms; she

quickly came to the realization that Commerce Park

was not going to fix the underlying problems with the

sewer pipes and that the sewage backups likely would

continue, which in fact occurred; and the continued

negative impact on her business and associated costs

of cleanup became intolerable. The court was entitled to

credit Robbins’ testimony as satisfying the requirement

that ‘‘the tenant vacated the premises because of the

problem [caused by the landlord] . . . .’’ (Internal quotation marks omitted.) Welsch v. Groat, supra, 95 Conn.

App. 662.19

Similarly, the record supports the court’s finding that

Robbins did not vacate the premises before Commerce

Park had notice and a reasonable opportunity to correct

the problems with the building’s sewer system. In making this finding, the court relied on the fact that Commerce Park and RDR had actual notice of the sewer

system defects from at least June, 2014. This finding is

supported by the testimony of a former RDR employee

that, in June, 2014, he informed RDR of the sewer contractor’s findings that there were sags in the sewer lines

and that the floors would need to be ripped up to make

needed repairs. Moreover, as the court found, after the

first sewage backup in April, 2015, Robbins learned

from the sewer contractor that Commerce Park ‘‘had

been advised to repair known defects in the sewer system and failed to do so . . . .’’ Although Commerce

Park did engage professionals to respond to the sewage

backups at the time they occurred to address the immediate situation, there is nothing in the record to indicate

that Commerce Park made any real effort to remedy

the root cause of those backups, the origins of which

were known before the first serious sewage backup

ever occurred. We conclude on the basis of our review

of the record that the court’s finding that Commerce

Park was afforded adequate time to remedy the defect

that caused the constructive eviction is not clearly

erroneous.

In sum, our review of the record before the court

shows that there was evidence to support the court’s

ultimate finding that there was a constructive eviction,

and, thus, the finding was not clearly erroneous. Having

resolved all claims raised with respect to the rent action,

we turn to the appeal of Commerce Park and RDR from

the decision of the court awarding REC $958,041.92 in

damages in REC’s tort action.

II

AC 41543

In AC 41543, the tort action, Commerce Park claims

that (1) the court improperly awarded compensatory

damages against it in favor of REC on a theory of gross

negligence and (2) even if REC was entitled to damages,

the court improperly determined the amount of damages. We address each of these claims in turn.
A

Commerce Park first claims that the trial court

improperly awarded damages to REC on a theory of

gross negligence. According to Commerce Park, the

court’s decision was flawed for primarily two reasons.

First, it argues that Connecticut common law does not

recognize degrees of negligence or a cause of action

sounding in gross negligence. Second, it argues that

REC never pleaded allegations of gross negligence in

its complaint and, thus, could not properly recover on

that basis, even if it was a legally cognizable theory

on which to impose liability. We conclude that both

arguments founder on a fundamental misinterpretation

of the pleadings and the legal basis for the court’s decision. Accordingly, we reject this claim.

1

We first address the argument that it was improper

for the court to have awarded damages to REC on the

basis of gross negligence because Connecticut does

not recognize gross negligence as separate and distinct

from ordinary negligence. Although we certainly agree

that Connecticut courts have not recognized a cause

of action sounding in gross negligence, it does not necessarily follow that a court, in the course of adjudicating

a negligence cause of action, is barred from recognizing

a distinction between negligent and grossly negligent

conduct. This is particularly so if, as in the present case,

it is necessary to make such a distinction in order to

determine the applicability of a contractual provision

that waives a landlord’s liability for ordinary negligence

but not for gross negligence.

As our Supreme Court has stated: ‘‘Connecticut does

not recognize degrees of negligence and, consequently,

does not recognize the tort of gross negligence as a

separate basis of liability.’’ (Emphasis added.) Hanks

v. Powder Ridge Restaurant Corp., 276 Conn. 314, 337,

885 A.2d 734 (2005). Our Supreme Court ‘‘ha[s] never

recognized degrees of negligence as slight, ordinary,

and gross in the law of torts.’’ (Internal quotation marks

omitted.) Matthiessen v. Vanech, supra, 266 Conn. 833

n.10. Accordingly, if REC had asserted a cause of action

sounding in gross negligence, and the court had permitted REC to recover on such a count, Commerce Park

might have a viable appellate issue. That, however, is

not how the present case was pleaded or adjudicated.

In the underlying tort action, REC pleaded counts

sounding in negligence, common-law recklessness and

a CUTPA violation. Consistent with our Supreme

Court’s statement in Matthiessen, under count one, the

negligence count against Commerce Park, the court

was permitted to award damages on the basis of acts

or omissions that it determined fell within a full range

of negligent behavior, including, but not limited to, acts

of gross negligence. In other words, a cause of action
for negligence can encompass liability for any and all

degrees of negligence, including gross negligence.

Accordingly, it was not improper as a matter of law for

the court in the present case to have awarded damages

on the basis of a finding of gross negligence. Gross

negligence, after all, is negligence.

More importantly, the concept of gross negligence

was injected into the case by Commerce Park through

its assertion at trial and in posttrial briefs that it could

not be liable to REC because of the indemnification

provision in the lease.20 In the lease with Commerce

Park, Robbins had agreed, on her own behalf and on

behalf of REC, to indemnify Commerce Park for, inter

alia, damages caused by the overflow of water or sewage into any part of the premises unless such damages

were caused ‘‘by the gross negligence or willfulness’’

of Commerce Park or its agents. In order to rebut that

assertion, it was incumbent upon Robbins to convince

the court that Commerce Park’s failure to take action

to repair the known sewer problems rose beyond simple

negligence to gross negligence. See Atelier Constantin

Popescu, LLC v. JC Corp., 134 Conn. App. 731, 738–40,

49 A.3d 1003 (2012) (upholding finding of gross negligence that was necessary for plaintiff to overcome negligence waiver in lease). Moreover, Commerce Park’s

argument, if valid, would render meaningless and unenforceable the very distinction to which the parties had

agreed in the lease. See Tinaco Plaza, LLC v. Freebob’s,

Inc., 74 Conn. App. 760, 767, 814 A.2d 403 (lease is

contract and court must construe it in manner that gives

effect to every provision), cert. granted, 263 Conn. 904,

819 A.2d 840 (2003) (motion to dismiss granted February 4, 2004). We simply are unpersuaded by Commerce

Park’s argument that it was improper for the court to

have rendered judgment in favor of REC on its negligence count against Commerce Park on the basis of

the court’s determination that Commerce Park was

grossly negligent.

2

Commerce Park also argues that it was improper for

the court to have awarded damages on the basis of

gross negligence because it was never pleaded by REC.

We are not persuaded.

It is indisputable that the pleadings establish the

framework of any legal action. ‘‘Generally, it is clear

that [t]he court is not permitted to decide issues outside

of those raised in the pleadings.’’ (Internal quotation

marks omitted.) Lynn v. Bosco, 182 Conn. App. 200,

213, 189 A.3d 601 (2018). ‘‘[I]t is imperative that the

court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings. . . . [A]ny

judgment should conform to the pleadings, the issues

and the prayers for relief. . . . [A] plaintiff may not

allege one cause of action and recover upon another.

. . . The requirement that claims be raised timely and
distinctly . . . recognizes that counsel should not have

the opportunity to surprise an opponent by interjecting

a claim when opposing counsel is no longer in a position

to present evidence against such a claim.’’ (Citations

omitted; internal quotation marks omitted.) Id., 214–15.

‘‘That does not necessarily mean, however, that the

absence of a particular claim from the pleadings automatically precludes a trial court from addressing the

claim, because a court may, despite pleading deficiencies, decide a case on the basis on which it was actually

litigated and may, in such an instance, permit the

amendment of a complaint, even after the trial, to conform to that actuality. . . . Indeed, [our Supreme Court

has] recognized that, even in the absence of such an

amendment, where the trial court had in fact addressed

a technically unpleaded claim that was actually litigated

by the parties, it was improper for the Appellate Court

to reverse the trial court’s judgment for lack of such

an amendment.’’ (Citation omitted.) Stafford Higgins

Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715

A.2d 46 (1998).

Any argument that the court acted outside the scope

of the pleadings implicates its authority to act, which

presents a question of law over which our review is

plenary. Lynn v. Bosco, supra, 182 Conn. App. 213.

Furthermore, ‘‘[t]he interpretation of pleadings is

always a question of law for the court . . . .’’ (Internal

quotation marks omitted.) McLeod v. A Better Way

Wholesale Autos, Inc., 177 Conn. App. 423, 444, 172

A.3d 802 (2017).

In support of the present argument, Commerce Park

directs our attention to the operative complaint, noting

that although REC alleged in count one that it was

damaged by Commerce Park’s negligence, REC failed

to set forth any specific references to gross negligence

in either count one or in its prayer for relief. According

to Commerce Park, ‘‘[e]ven if this court concluded that

the trial court had the power to find [that] the negligence

waiver was operative and barred [Commerce Park’s]

negligence but not its gross negligence, the trial court

erred in that [REC] never pleaded, raised or even argued

that [Commerce Park] was grossly negligent.’’

Commerce Park’s suggestion that the court went

beyond the pleadings in awarding damages on the basis

of gross negligence is simply unfounded on this record.

First, REC recovered under a negligence theory that

was pleaded. In considering whether Commerce Park

was grossly negligent, the court simply adjudicated an

issue, inserted into the case by Commerce Park, namely,

whether REC was precluded from recovering under a

negligence theory because of the indemnification clause

in the lease. The court rejected Commerce Park’s assertion in that regard. Thus, Commerce Park’s argument

that REC prevailed on a theory it did not plead borders

on the frivolous. If any pleading irregularity occurred,
it arose out of Commerce Park’s failure to allege the

indemnification clause as a special defense to REC’s

negligence count. If Commerce Park had pleaded the

indemnification clause as a special defense, REC would

have had an opportunity to file a responsive pleading

indicating that the conduct it alleged in the complaint

rose to the level of gross negligence and, thus, the

exculpatory provision did not apply. Furthermore, by

raising the negligence waiver as a defense at trial, Commerce Park demonstrated that it fully understood that

the issue of whether the facts alleged in the complaint

rose to the level of gross negligence was an issue to

be litigated and decided by the court. It addressed that

issue fully in its posttrial brief, never raising any claim

of pleading irregularity to the trial court. See Tedesco

v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990)

(‘‘a pleading defect cannot be a basis for setting aside

a judgment unless it has materially prejudiced the defendant’’); Landry v. Spitz, 102 Conn. App. 34, 43–44, 925

A.2d 334 (2007) (‘‘in the context of a postjudgment

appeal, if a review of the record demonstrates that an

unpleaded cause of action actually was litigated at trial

without objection such that the opposing party cannot

claim surprise or prejudice, the judgment will not be

disturbed on the basis of a pleading irregularity’’).

Second, we are not persuaded that the complaint is

silent with respect to allegations of gross negligence.

It is factually correct that REC never used the words

‘‘gross negligence’’ in the complaint. Nevertheless, in

its negligence count against Commerce Park, REC

incorporated detailed factual allegations describing the

conduct of Commerce Park and RDR in response to the

sewer backups. It is axiomatic that we must ‘‘construe

pleadings broadly and realistically, rather than narrowly

and technically. . . . Although essential allegations

may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in

such a way as to give effect to the pleading with reference to the general theory upon which it proceeded,

and do substantial justice between the parties. . . . As

long as the pleadings provide sufficient notice of the

facts claimed and the issues to be tried and do not

surprise or prejudice the opposing party, we will not

conclude that the complaint is insufficient to allow

recovery.’’ (Internal quotation marks omitted.) McLeod

v. A Better Way Wholesale Autos, Inc., supra, 177 Conn.

App. 444–45. Given that REC sought to recover on a

theory of negligence, it was sufficient for REC to

describe the acts or omissions it believed would support

a determination of liability under that count. As we

explained in part II A 1 of this opinion, general allegations of negligence are legally sufficient to encompass

liability for any and all degrees of negligence, including

gross negligence. In short, the record simply does not

support Commerce Park’s argument that there was a

defect in the pleadings sufficient to warrant a reversal
and, accordingly, we reject that argument.

B

Commerce Park’s final claim challenges the court’s

calculation of the damages awarded to REC. Commerce

Park’s claim is, again, twofold. First, it argues that the

court incorrectly determined that the proper measure

of REC’s damages was its loss of the beneficial use

of the substantial improvements it had made to the

premises prior to the constructive eviction. Second, it

argues that, even if this was a proper measure of damages, the court miscalculated the amount of those damages because, in calculating the remainder of Robbins’

tenancy under the lease, the court included unexercised

options to extend the lease for two additional five year

periods. We agree with the second argument only.

Our standard of review applicable to challenges to

damages awards is well settled. As we have already

stated, ‘‘[t]he trial court has broad discretion in

determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . [If], however,

a damages award is challenged on the basis of a question

of law, our review [of that question] is plenary.’’ (Citation omitted; internal quotation marks omitted.) Landry

v. Spitz, supra, 102 Conn. App. 49–50. ‘‘[T]he burden

of proving damages is on the party claiming them. . . .

Damages are recoverable only to the extent that the

evidence affords a sufficient basis for estimating their

amount in money with reasonable certainty. . . . [T]he

court must have evidence by which it can calculate the

damages, which is not merely subjective or speculative

. . . but which allows for some objective ascertainment of the amount. . . . This certainly does not mean

that mathematical exactitude is a precondition to an

award of damages, but we do require that the evidence,

with such certainty as the nature of the particular case

may permit, lay a foundation [that] will enable the trier

to make a fair and reasonable estimate.’’ (Citations

omitted; internal quotation marks omitted.) Weiss v.

Smulders, 313 Conn. 227, 253–54, 96 A.3d 1175 (2014).

1

Commerce Park first argues that the court utilized

the wrong measure of damages. It contends that rather

than awarding damages on the basis of REC’s loss of

the use of improvements it had made to the premises,

the court should have limited its award of damages to

the loss of the fair market value of the lease. We conclude that the court utilized a proper measure of

damages.21

Citing our Supreme Court’s decision in Gans v.

Olchin & Co., 109 Conn. 164, 145 A. 751 (1929), Commerce Park urges us to hold that the proper measure

of damages for a tenant constructively evicted from

leased premises is limited to ‘‘the difference between
the rental value of the leased premises at the time of

the eviction and the reserved rent for the unexpired

period of the lease.’’ Id., 168. Nothing in that opinion,

however, states that this is the only appropriate measure of damages in every case of constructive eviction.

It is axiomatic that the purpose of compensatory

damages is ‘‘to restore an injured party to the position

he or she would have been in if the wrong had not

been committed.’’ (Internal quotation marks omitted.)

Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248,

905 A.2d 1165 (2006). In deciding whether the court

utilized a proper measure for determining compensatory damages in the present case, we find the rule set

forth in the Restatement (Second) of Property both

instructive and persuasive. Section 10.2 of the

Restatement (Second) of Property sets forth the following rule for determining damages: ‘‘If the tenant is entitled to recover damages from the landlord for his failure

to fulfill his obligations under the lease, absent a valid

agreement as to the measure of damages, damages may

include one or more of the following items as may be

appropriate so long as no double recovery is involved:

‘‘(1) if the tenant is entitled to terminate the lease

and does so, the fair market value of the lease on the

date he terminates the lease;

‘‘(2) the loss sustained by the tenant due to reasonable expenditures made by the tenant before the landlord’s default which the landlord at the time the lease

was made could reasonably have foreseen would be

made by the tenant;

‘‘(3) if the tenant is entitled to terminate the lease

and does so, reasonable relocation costs;

‘‘(4) if the lease is not terminated, reasonable additional costs of substituted premises incurred by the

tenant as a result of the landlord’s default while the

default continues;

‘‘(5) if the use of the leased property contemplated by

the parties is for business purposes, loss of anticipated

business profits proven to a reasonable degree of certainty, which resulted from the landlord’s default, and

which the landlord at the time the lease was made

could reasonably have foreseen would be caused by

the default;

‘‘(6) if the tenant eliminates the default, the reasonable costs incurred by the tenant in eliminating the

default; and

‘‘(7) interest on the amount recovered at the legal rate

for the period appropriate under the circumstances.’’

(Emphasis added.) 1 Restatement (Second), Property,

Landlord and Tenant § 10.2, pp. 338–39 (1977).

Subsection (1) of § 10.2 of the Restatement (Second)

of Property is, in essence, equivalent to the measure of

damages discussed in Gans v. Olchin & Co., supra, 109
Conn. 168. The Restatement rule, however, leaves it to

the court’s discretion to choose from any one or more

of the enumerated items in crafting a compensatory

damages award, providing only that the court must

ensure that it does not permit double recovery.

In its posttrial brief, REC claimed entitlement to damages totaling more than four million dollars on the basis

of lost business profits and its loss of use of substantial

improvements it had made to the premises. Those components correspond, respectively, with subsections (5)

and (2) of the rule set forth in § 10.2 of the Restatement

(Second) of Property. The court found that REC had

failed to prove its lost profits claim with reasonable

certainty but was able to make a fair estimate of the

value of REC’s loss of its improvements. Consistent

with § 10.2 of the Restatement (Second) of Property,

we conclude that the court properly considered REC’s

loss of use of improvements as a component of the

damages awarded to REC.22

2

Commerce Park further argues, however, that even

if the court properly included REC’s loss of the beneficial use of its improvements as a component of the

overall damages award, the court, in calculating the

amount of damages for loss of use, improperly determined the length of Robbins’ expected tenancy under

the lease, which increased the amount of the damages

awarded for the loss of use. More specifically, according

to Commerce Park, the court improperly included in

its calculations the two unexercised options to extend

the lease for a term of five years each, and this error

resulted in excessive damages awarded to REC. We

agree that the court improperly included the two option

periods in calculating damages.

As previously set forth, the determination of damages

generally involves a question of fact that we will not

overturn absent a showing that the resulting award is

clearly erroneous, meaning it is unsupported by evidence in the record or, if supported, we are left with

a definite and firm conviction that a mistake has been

made. See Benedetto v. Wanat, supra, 79 Conn. App.

147. In the present case, however, our review of the

damages awarded turns largely on our construction of

the option clause in the parties’ lease. ‘‘[A] lease is a

contract,’’ and, thus, our rules governing the construction of contracts apply. Bristol v. Ocean State Job Lot

Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d

837 (2007). ‘‘[W]e accord the language employed in the

contract a rational construction based on its common,

natural and ordinary meaning and usage as applied to

the subject matter of the contract. . . . [If] the language is unambiguous, we must give the contract effect

according to its terms.’’ (Internal quotation marks omitted.) Kaplan v. Scheer, 182 Conn. App. 488, 496, 190

A.3d 31, cert. denied, 330 Conn. 913, 193 A.3d 49 (2018).
Accordingly, ‘‘[if] a party’s intent is expressed clearly

and unambiguously in writing . . . the determination

of what the parties intended . . . is a question of law

[over which our review is plenary].’’ (Internal quotation

marks omitted.) 19 Perry Street, LLC v. Unionville

Water Co., supra, 294 Conn. 622–23.

The following facts are relevant to our discussion.

The lease commenced on August 1, 2007. In order to

transform the premises into ‘‘a state-of-the-art eye care

center,’’ Robbins made significant improvements to the

premises that were substantially completed by the end

of 2009. The lease had a definite, initial term of fifteen

years, meaning it was set to expire on July 31, 2022.

The lease, however, also contained a provision that

provided Robbins with the option of extending the lease

for two additional five year periods upon timely written

notice to Commerce Park. Specifically, paragraph 3 of

the lease, titled ‘‘Option Terms,’’ states in relevant part:

‘‘Provided that Tenant shall have complied with each

and every obligation hereunder, and shall not be in

default of any provision of this Lease, then Tenant

shall have two (2) successive options to extend this

Lease (individually, an ‘Option’), each for a term of

five (5) years (individually, an ‘Option Term’), upon the

same terms and conditions herein set forth . . . .

These Options shall be exercised by delivery of written

notice from Tenant to Landlord, which notice must be

received by Landlord not less than six (6) months prior

to the expiration of the Term or Option Term (as applicable) then existing.’’ (Emphasis added.)

Accordingly, Commerce Park had no right to refuse

the options to extend the lease ‘‘[p]rovided that’’ Robbins met the stated conditions, including that she complied with all of her obligations under the lease. Robbins

testified at trial that, at the time she signed the lease

in 2007, she had no intention of moving her practice.

Robbins and REC vacated the premises at the end of

June, 2015, before the expiration of the lease’s initial

term and without having exercised any option to extend

the lease beyond 2022.

To calculate the dollar value to assign to REC’s loss

of the use of the improvements it made to the premises,

the trial court utilized the following formula: the percentage of time that REC had lost the use of its improvements, calculated by comparing the length of time of

actual use against the time that REC would have

enjoyed under the lease had Robbins not been constructively evicted, multiplied by the cost of the improvements. In applying that formula, the court stated: ‘‘Here,

as of April, 2015, REC had used the improvements to

the [premises] for five years and four months out of a

twenty-two year term (ten years after the completion

of the improvements plus two five year options). Therefore, REC’s damages are 75.8 percent of the improvement cost, which totals $899,190 ($1,186,267 x 75.8 per-
cent).’’23 (Emphasis added.) Commerce Park does not

challenge the formula used by the court but argues only

that it was improper for the court to have included the

two unexercised option periods in its calculations.

The record supports a finding that Robbins would

have sought to exercise the options. Robbins testified

at trial that there were ‘‘many reasons that made [the

premises] very attractive’’ to Robbins and her practice.

She also indicated that ‘‘each time you move a practice

you lose a percentage of patients . . . .’’ Further, soon

after she decided to renew her lease with Commerce

Park in 2007, Robbins expended a considerable sum of

money to hire contractors to fit out the premises for

use as a state-of-the-art surgical facility. When asked if

she had any intention of moving her business at the

time she executed the 2007 lease, Robbins responded

that she ‘‘had no intention of moving the operating

rooms or the practice.’’ She also answered in the negative when asked if she ever intended to practice medicine at any location other than the premises, stating,

‘‘I was planning on staying there for my entire career.’’

Thus, it was reasonable for the court to have inferred

from Robbins’ testimony that, absent the type of problems that later arose, she would have remained there

for the full extent of the lease and that, in deciding

to invest in significant improvements to the premises,

Robbins would have considered the cost in light of the

full potential time span that she and REC expected to

utilize the improvements, which would have included

the option periods. It was a pure factual determination

for the court whether Robbins reasonably would have

exercised one or both options if Commerce Park had

not constructively evicted her and REC.

A finding that Robbins likely would have sought to

exercise the options had she and REC remained in the

premises, however, does not completely answer the

question of whether those option periods were properly

considered by the court in assessing damages. The right

to exercise the option was expressly conditioned on

Robbins having ‘‘complied with each and every obligation’’ of the lease and not being ‘‘in default of any provision’’ of the lease. By using clear and unambiguous

language that the option could be exercised ‘‘[p]rovided

that’’ the stated conditions were met, the parties signaled their intent to create a condition precedent. See

EH Investment Co., LLC v. Chappo, LLC, 174 Conn.

App. 344, 360–62, 166 A.3d 800 (2017) (discussing legal

parameters of contractual conditions). If a condition

precedent to an option clause in a lease is not met,

then the right to exercise the option is extinguished.

See Brauer v. Freccia, 159 Conn. 289, 293–94, 268 A.2d

645 (1970) (lessees’ failure to pay rent for eight months

defeated their right to exercise option in lease to purchase leased premises conditioned on lessees duly and

punctually fulfilling all conditions of lease).
In adjudicating the rent action, the court expressly

found that Robbins’ ‘‘[f]ailure to pay the full rental for

[five and three-quarter months] was a breach of the

lease . . . .’’ Accordingly, under any reasonable metric,

Robbins had not complied with each and every obligation under the lease.24 If a condition precedent to an

option does not occur, the option does not exist. See

Brauer v. Freccia, supra, 159 Conn. 294. Said another

way, Robbins’ breach of the lease would have precluded

her from exercising her option to extend the lease as

a matter of law.

The court provided no explanation for including the

unexercised option periods in its calculation.25 We note,

however, that the Superior Court decision on which

the court relied as a template for both awarding damages for loss of use and determining the method for

calculating those damages also included an option

period in its calculation of the length of the expected

tenancy in that case. See 31 Tobey Road, Ltd. v. Wright,

Superior Court, judicial district of Hartford, Docket No.

CV-13-5001318-S (August 16, 2016). In that case, however, unlike the present case, although the tenant had

stopped paying rent, the court did not find the tenant

in breach of the lease. Further, the court in 31 Tobey

Road, Ltd., did not set forth the terms of the option

agreement in that case, and, therefore, there is no way

of determining whether the option to extend was subject to a similar condition precedent.

REC argues on appeal that the court properly

included the option periods in calculating damages

despite Robbins’ nonpayment of rent. First, REC argues

that Robbins began to withhold a portion of the rent

only after the September, 2013 flood caused by the

downspout that detached from the roof drain, and that

the court found this withholding was justified due to

the impact on REC’s business. This argument ignores,

however, the court’s ruling in part in favor of Commerce

Park in the rent action. In so doing, the court expressly

found that the withholding of rent was not justifiable

once REC had repaired the damage caused by the flooding and that Robbins breached the lease by continuing

to make reduced rent payments for the five and threequarter months prior to the constructive eviction.

Second, REC argues that, despite the withholding of

rent, Commerce Park never terminated the lease or

sought to evict Robbins and REC. That fact alone, however, does not change the legal significance of Robbins’

breach of the lease as it related to extinguishing her

right to exercise the lease option. There is no language

in the option provision or elsewhere in the lease that

required Commerce Park to seek to terminate the lease

in response to a breach by Robbins in order to avoid

waiving the agreed upon condition precedent of the

option provision.
On the basis of the record before us, we conclude

that the court improperly included the two unexercised

option periods in calculating the expected length of the

tenancy because doing so was legally inconsistent with

the express terms of the lease and its finding that Robbins breached the lease. Because the record contains

all of the facts necessary to determine the proper

amount of damages, it is unnecessary to remand the

matter for a new hearing in damages to calculate the

amount of damages due to REC on the basis of its loss

of use of its improvements. On the basis of the trial

court’s findings, after the improvements were completed, REC had use of those improvements for five

years and four months out of the twelve years and seven

months remaining of the fifteen year original lease term.

Under the formula utilized by the court, REC, therefore,

is entitled to 57.6 percent of the cost of improvements,

or $683,289.79. Added to the additional damages

awarded, the total damages award in the tort action

is $741,847.34.

In AC 41398, the judgment is reversed only with

respect to the court’s calculation of damages, and the

matter is remanded for a new hearing limited to a determination of the amount of rent owed by Robbins to

Commerce Park; the judgment is affirmed in all other

respects. In AC 41543, the judgment is reversed only

with respect to the amount of damages awarded and

the case is remanded with direction to render judgment

in favor of REC in the amount of $741,847.34; the judgment is otherwise affirmed.

In this opinion the other judges concurred.

1 To avoid confusion, we will refer to the parties throughout this opinion

by their names rather than their party designations, which differed in the

underlying actions.

2 Although Commerce Park and RDR jointly filed their appeal in the tort

action, the claims on appeal are raised solely by Commerce Park.

3 The court ruled in favor of RDR on all counts, and REC has not challenged

that aspect of the judgment in the tort action on appeal.

4 The parties filed a joint trial management report in which they set forth

a detailed list of facts that they stipulated were not in dispute.

5 The lease provided for yearly increases in the base rental rate tied to

the consumer price index. The monthly basic rental payments during the

time period for which Commerce Park sought unpaid rents ranged from

$18,613.23 to $18,929.83.

6 The parties stipulated in their joint trial management report that the

contractor hired by REC to remodel the premises was paid $1,035,479, which

the court found ‘‘probably does not include the full cost of fitting out the

operating rooms, which Robbins estimated cost in excess of $1,000,000.’’

In calculating damages for loss of use of the improvements, however, the

court opted to use the improvement cost listed on REC’s tax return of

$1,186,267, ‘‘rather than the unsubstantiated and unsupported $2,000,000

improvement cost estimated by Robbins or the lower contractor cost stipulated by the parties.’’

7 The court found that, although the roof was in poor condition and likely

leaked, the September, 2013 incident was not the result of poor maintenance

or a failure to repair the roof or failing components.

8

In its recitation of the facts, the court states that, after October, 2014,

when REC reoccupied the previously untenantable portions of the premises,

the optical shop and LASIK center remained closed. That statement arguably

conflicts with the court’s determination that there was no basis for REC to

have continued with its reduction in rent for the period beginning in Novem-
ber, 2014, until the sewer incursions commenced at the end of April, 2015.

Robbins, however, does not raise this potential misstatement in support of

her claim that the court improperly awarded Commerce Park full rent for

that period. We limit our review to the arguments as raised and framed by

the parties, which are that the former administrative office space remained

unusable as office space during the more than five month period prior to

the first sewage backup, and that the inability to use the office space justified

Robbins’ continued withholding of rent.

9 The court additionally found that ‘‘[a]fter REC abandoned the [premises],

there is no evidence of any repairs or remediation efforts by RDR or [Commerce Park] other than to snake the line to remove the specific clog that

caused the backup. There was no evidence of any repairs to the sewer

system in response to the June 29, 2015 notice of violation, although there

is evidence the [premises were] cleaned and the specific clog was removed.

If there were repairs, they were not done by the outside sewer contractor.

What work was done was likely [performed] by RDR’s maintenance personnel. There is no evidence the [premises were] fit to be occupied after the

June 29, 2015 incident, and apparently, the entire lower floor was left vacant.

In October, November and December, 2016, while the lower space was

vacant and its fixtures unused, there were other major problems with the

sewer system, as sewage once again backed up into the [premises].’’ (Footnote omitted.)

10 The court noted that there was no evidence that Commerce Park ever

remedied the problems with the building’s sewer system even after REC

vacated the premises and that Commerce Park had engaged in only ‘‘a

sporadic and desultory effort to market the [premises].’’

11 The court indicated that although the leaks caused by toilets overflowing

on upper floors were disruptive, they did not provided a valid basis for the

abatement of rent because they were not severe enough to support a finding

that the premises were rendered untenantable, either in whole or in part.

12 The court reasoned: ‘‘[Commerce Park] probably anticipated there

would be a sewer backup from time to time that either its maintenance

crew or its sewer contractor could handle. [Commerce Park] probably did

not anticipate the devastating series of sewage floods in the spring and

summer of 2015 that culminated in the [premises] being shut down by the

health department in late June, [2015]. [Commerce Park’s] failure to remedy

the defects in the sewer pipes within a reasonable period after the April,

2015 video inspection revealed multiple sags in the main sewer line and its

failure to thoroughly clean the [premises] after the floods leading to mold

infestation would be reckless conduct, but by that time, REC had already

vacated the [premises] and, so, has no claim.’’

13 Whether Connecticut should abandon the ‘‘cigarette rule’’ as the appropriate standard for determining unfairness under CUTPA in light of the

federal courts’ abandonment of that rule in favor of the ‘‘substantial unjustified injury test’’ remains an open question.Artie’s Auto Body, Inc. v. Hartford

Fire Ins. Co., 317 Conn. 602, 622 n.13, 119 A.3d 1139 (2015). That issue,

however, is not before us in the present appeals and cross appeal.

14 Subsequent to judgment, REC also sought and was granted a prejudgment remedy of attachment against Commerce Park. The prejudgment remedy later was modified and is the subject matter of a separate appeal by

Commerce Park (AC 42375).

15 We note that Robbins and REC never filed a motion for articulation nor

did they challenge the court’s determination regarding back rent in REC’s

postjudgment motion for reargument and reconsideration.

16 The court found that the intended use of the premises was as ‘‘a medical

office and operating rooms.’’

17 November, 2014, through April, 2015, represents a period of six calendar

months. Although the court indicates in its memorandum that it multiplied

the monthly rent by five and then subtracted one-quarter month’s rent in

order to properly account for the last week of April, 2015, the numbers

used by the court demonstrate that it correctly used a period of six months,

less one week, in calculating the amount of unpaid rent at issue.

18 Nothing in our discussion of the evidence should be construed as binding

on the trial court that makes the final determination of the correct amount

of damages to award on remand. We discuss the evidence only to illustrate

why we firmly and definitely believe that the court made a mistake in its

calculation of damages.

19 Although Commerce Park points to other testimony that it believes

indicates that Robbins had decided to leave prior to the first sewage backup,

the trial court, as the trier of fact, was ‘‘free to weigh conflicting evidence
and to accept some, all or none of the testimony that [was] before it.’’ Stein

v. Tong, 117 Conn. App. 19, 30, 979 A.2d 494 (2009). Thus, the mere presence

of conflicting evidence will not suffice to render a court’s factual findings

clearly erroneous; rather, there must be an absence of supporting evidence.

20 Commerce Park never raised the indemnification provision as a special

defense to the negligence count. See part II A 2 of this opinion. Rather, the

issue was first asserted before the court during the direct examination of

Commerce Park’s principal, Robert Russo.

21 REC argues that Commerce Park waived its right to raise this claim

because it was not raised at trial or in the motion for reargument and

reconsideration filed by Commerce Park and RDR. We do not agree.

22 We note that appellate courts in other jurisdictions have relied on subsection (2) of § 10.2 of the Restatement (Second) of Property and its accompanying commentary in affirming an award of damages to a commercial tenant

on the basis of loss of use of leasehold improvements following a constructive eviction. See, e.g., Reisterstown Plaza Associates v. General Nutrition

Center, Inc., 89 Md. App. 232, 240, 597 A.2d 1049 (1991).

23 As previously indicated, the court found that the improvements were

completed by the end of December, 2009. Therefore, when Robbins was

constructively evicted at the end of April, 2015, REC had used the improvements it made to the premises for a period of approximately five years and

four months, as indicated by the court. The court further indicated that this

period of use was ‘‘out of a twenty-two year term,’’ which, as set forth in

the parenthetical that follows, included the two five year option periods. In

order for the math to work, the court necessarily must have computed

that twelve years remained of the original fifteen year lease term after the

improvements were completed, not ten years as the court stated in the

parenthetical. Further, it is manifest from the percentage used by the court

in its mathematical calculation that it used a twelve year period rather than

a ten year period in determining the total potential period for which REC

would have had use of the improvements. Nevertheless, on the basis of the

dates found by the court, we calculate that twelve years and seven months

remained under the original fifteen year lease term after the improvements

were completed. Accordingly, we use twelve years and seven months in

our recalculation of the damages owed to REC for loss of use.

24 In Pack 2000, Inc. v. Cushman, 311 Conn. 662, 680, 89 A.3d 869 (2014),

the Supreme Court clarified that ‘‘when an option is conditioned on a lessee’s

compliance with a lease, in the absence of explicit contractual language to

the contrary, a substantial rather than strict compliance standard applies

so that, if the lessee is not in material breach of the lease when he seeks

to exercise the option and has not previously been defaulted under the

terms of the lease, the option is enforceable against the lessor.’’ Under the

circumstances of the present case, there can be no doubt that Robbins’

decision to pay only one half of the rent due under the lease for a period

of more than five months was a material breach of the lease.

25 We note that this issue was directly raised to the court by Commerce

Park in the motion for reconsideration and reargument filed by Commerce

Park and RDR. Commerce Park argued that ‘‘the [c]ourt’s finding that the

tenant owed full rent for a period of five and three-quarter months constitutes

a finding that the tenant was in default, which alone would preclude the

exercise of the option. In the absence of proof that the conditions precedent

for exercise of the options were met, the options can never be operative.’’

The court denied the motion without acknowledging or addressing Commerce Park’s argument.