Appeals court rules in favor of Darien restaurant in lease dispute

Jimmy's Southside Tavern in Darien, which closed Monday, March 16, 2020.

Jimmy's Southside Tavern in Darien, which closed Monday, March 16, 2020.

Contributed photo

DARIEN — An appeals court has overturned a decision that required a restaurant to leave a shopping center last year.

The original lawsuit stems from a relocation clause in a commercial lease between the owner of Noroton Heights Shopping Center and the owners of Jimmy’s Southside Tavern, which was previously known as Phil’s Grill.

“On the basis of the record before us, and in light of our interpretation of the relocation clause, we conclude that the court’s finding that the defendant breached the lease by violating the terms of the relocation clause was clearly erroneous,” the new ruling said.

The center had argued the restaurant owners had waived their right to relocate because they didn’t respond to a letter about the new location and so must leave the premises. The restaurant, however, argued they had always been interested in moving to the new spot and never received the letter requiring them to share their written intent for the proposed substitute space.

Jimmy’s Southside Tavern closed March 16, 2020. It is owned by Jimmy Calcagnini and his wife, DeAnne.

The courts originally agreed with the center in March 2020 that the restaurant would have to leave the building due to the owner’s plans to redevelop the Noroton Heights Shopping Center. This month, the courts released a new decision, siding instead with the restaurant’s owners.

The new decision said the trial court had misinterpreted the relocation clause in the lease and the substitute site should have been built when the offer was made. It also said Calcagnini never received that letter.

“We thought that our client was right all along so we were relieved but not surprised,” attorney Scott Delaura, who represented Calcagnini.

He said the appellate court found that the tenant, his client, hadn’t violated the lease but that the shopping center hadn’t done their duties under the relocation clause.

The attorney representing the shopping center could not be reached for comment.

The center’s renovation plans were approved by planning and zoning in May 2017. They included razing the existing buildings west of Palmer’s Market and building two three-story buildings with 59 residential units and first-floor retail, complete with a public plaza. The construction plans called for a phased-in approach, allowing for some businesses to relocate and remain open throughout the project.

The owners of the restaurant and center met in 2018, where Calcagnini said he was interested in moving to one of these spots.

Noroton Heights sent a letter with the plans, asking Calcagnini to sign off on the move by April 19, 2018, which didn’t happen. When the owners met again in July 2019, Calcaginini was told he waved his right for the relocation because he hadn’t responded to that letter. Calcaginini said he had never received it, according to court documents.

“That was the first time that the tenant heard about the letter,” DeLaura said.

The planning and zoning commission then approved a revised renovation plan for the center later in July 2019, changing it from a phased-construction project to doing it all at once, according to court documents. Court proceedings began soon after.

The original court ruling from March 2020 said the restaurant owners gave Noroton Heights the “runaround, slowing down its attempted redevelopment,” according to 11-page memorandum of the decision after the trial.

The memorandum states that, “Technically, under the lease’s term, the subject would have had a right to possess the subject premises through Sept. 30, 2020. However, the parties knew at the time of execution of the lease and the amendment thereto that the plaintiff was planning to redevelop the entire shopping center of which the defendant was just one tenant.”

It added Noroton Heights Shopping Center continually attempted to involve Jimmy’s owners in its relocation plans, and hoped to provide them with an alternate location, but gave up on its phased-in approach after a year of failed negotiations with the restaurant’s owners, and instead decided to renovate all at once.

“By refusing to act in good faith as to the relocation plan, the defendants violated the express language of the lease and left the plaintiff with no option other than to terminate the lease and proceed with this action. The court truly believes that even though the defendant’s witnesses spoke the words about their good faith at the trial, they lacked credibility when doing so,” the original memorandum said.

The new court decision instead challenges the shopping center’s actions around the relocation clause, saying Noroton Heights believed the substitute premises didn’t have to be built for the clause to go into effect, which the new decision said “would yield absurd results,” given how quickly they would have to leave their building. The decision said the shopping center’s interpretation would mean the restaurant couldn’t make money while the business was closed, nor could it get any damages for its lost profits.

“If the relocation clause were construed in this manner, however, then the defendant, upon receiving a notice of substitution, would be required to close its business for an indefinite amount of time while the demised premises was razed and the substitute premises was constructed,” the ruling said.

DeLaura said they are in the process of reviewing his client’s options and addressing the damages he received.

“Mr. Calcaginini enjoyed have a business in Darien and enjoys living in Darien,” DeLaura said.