Brewster Park, LLC v. Berger
Brewster Park, LLC v. Berger
Opinion of the Court
Opinion
The defendant, Fred Berger, appeals from the judgment of the trial court awarding the plaintiff, Brewster Park, LLC, damages for use and occupancy of its premises by the defendant and attorney’s fees. On appeal, he claims that (1) the plaintiff failed to plead a claim for use and occupancy in its complaint, (2) the court improperly awarded damages for use and occupancy pursuant to a lease agreement, and (3) attorney’s fees were awarded improperly to the plaintiff.
The following facts as found by the court and revealed in the record are relevant to our resolution of the defendant’s appeal. The plaintiff was the owner of premises
Paragraph 15 of the agreement, entitled “Default/ Holding Over,” separately was acknowledged and agreed to by both Hochman and the defendant, as their signatures appear at the bottom of this paragraph. The defendant’s signature appears nowhere else in the agreement. Paragraph 15 (a)
The record reveals that the defendant was employed in some capacity by Hochman and that he used unit 10B throughout the term of the agreement, beginning on August 16, 2006, and continued to use it for several months after the date he agreed to vacate. No rent was ever paid by Hochman, and on November 10, 2006, the plaintiff caused a notice to quit by November 17, 2006, to be served on the defendant. The defendant remained in possession of the premises, and he testified that although he was aware of the notice to quit, he had discussed the matter with Hochman, who stated that he would take care of it. Thereafter, the plaintiff instituted a summary process action to evict the defendant, which ended in a judgment in favor of the plaintiff by stipulated agreement for possession by July 15, 2007. No costs were awarded in that judgment.
The present action was initiated by the plaintiff to recover damages from the defendant for his alleged wrongful use and occupancy of the premises and to recover all costs associated with the eviction action. At the conclusion of the trial, the court found the fair market value for unit 10B to be $3400 per month and
I
The defendant first asserts that the plaintiff did not allege sufficiently a claim for use and occupancy. He argues that the plaintiffs complaint, instead, only sought damages for unjust enrichment and retention of the benefit of the unit. We do not agree.
Because the interpretation of pleadings is an issue of law, our review is plenary. Maloney v. PCRE, LLC, 68 Conn. App. 727, 746,793 A.2d 1118 (2002). The plaintiffs complaint expressly alleges that the defendant was given the right to use and to occupy the premises pursuant to the rental agreement between the plaintiff and Hochman, that he did so use and occupy the premises, that no rental payments were made and that he was aware of the fact that rental payments were not being made. It further alleges that the defendant was unjustly enriched by the benefit of his use and occupancy and that he owes the plaintiff the payment of reasonable use and occupancy for the premises from August 16, 2006, to July 15, 2007.
The defendant correctly asserts that there was no reference in the complaint to General Statutes § 47a-3c,
II
Next, the defendant claims that the court erroneously found that by signing below paragraph 15 of the rental agreement he had bound himself to a claim for use and occupancy. The defendant, however, has misconstrued the memorandum of decision and, thus, failed to understand the foundation for the court’s award of damages for use and occupancy.
The court’s award was not made, as argued by the defendant, because of any obligation he had undertaken pursuant to the lease. Nor did the court find that he had “bound himself to a claim for use and occupancy” by signing a portion of the agreement. To the contrary, the remedy of use and occupancy payments was ordered because an agreement between the parties was absent. See Sippin v. Ellam, 24 Conn. App. 385, 392, 588 A.2d 660 (1991). Consequently, we conclude that
“A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated. . . . After a notice to quit has been served . . . a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit.” (Citations omitted; internal quotation marks omitted.) Id., 391. The court found from the evidence presented that the fair market value for unit 10B was $3400 per month, and it awarded the plaintiff use and occupancy damages in accordance with this figure. Not only was this award statutorily permissible; see General Statutes § 47a-3c; but, in our view, the court’s use of fair market value to determine the plaintiffs damages, as opposed to the fixed rental price expressed in the agreement,
m
Finally, the defendant claims that the court’s award of attorney’s fees was improper. We agree.
Attorney’s fees are not allowed to the prevailing party absent a contractual or statutory exception. Trugreen Landcare, LLC v. Elm City Development & Construction Services, LLC, 101 Conn. App. 11, 14, 919 A.2d 1077 (2007). In the present case, the court, after reciting Welk v. Bidwell, supra, 136 Conn. 603, as authority for
The defendant claims that language of paragraph 15 (a) only contemplated holding Hochman liable for attorney’s fees. Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Neubig v. Luanci Construction, LLC, 124 Conn. App. 425, 432, 4 A.3d 1273 (2010). “[T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Creatura v. Creatura, 122 Conn. App. 47, 52, 998 A.2d 798 (2010). Our threshold determination, therefore, “is whether . . . the provision at issue is clear and unambiguous, which is a question of law over which our review is plenary.” Isham v. Isham, 292 Conn. 170, 181, 972 A.2d 228 (2009).
With these principles in mind, we turn to the relevant contractual language in the rental agreement between Hochman and the plaintiff. As set forth previously, paragraph 1 of the agreement defines the term “I” as used in the agreement as Hochman. See footnote 2 of this opinion. Paragraph 15 (a) provides: “Upon default, I must pay your damages, including reasonable legal fees, the costs of re-entering, re-letting, cleaning and
The court rejected the defendant’s argument that, on the basis of the express language in paragraph 1 and paragraph 15, only Hochman was liable for attorney’s fees. Although the court concluded that the defendant had no liability for damages under paragraph 15 (b), it concluded otherwise with respect to paragraph 15 (a). The court found that while paragraph 1 defined Hoch-man as “I” in the agreement, the reference to “I” in paragraph 15 did not refer to Hochman alone, as both he and the defendant signed the bottom of that paragraph. The court reasoned that the clear intent in having the defendant sign at the bottom of paragraph 15 was to inform him of his obligations under the terms of that paragraph. Accordingly, the court found that the defendant had personal liability pursuant to the rental agreement under paragraph 15 (a), which included liability for reasonable costs and attorney’s fees.
We conclude that a plain reading of paragraph 15 (a), in conjunction with paragraph 1, clearly and unambiguously obligated only Hochman to be personally hable for damages, including costs and legal fees, in the event of default. In our view, to assign liability to the defendant pursuant to paragraph 15 (a), despite the fact that the term “I” is defined precisely in the agreement as referring to Hochman alone, would require a tortured and unreasonable interpretation. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 499, 746 A.2d 1277 (2000). Our conclusion
The judgment is reversed only as to the award of attorney’s fees and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.
In this opinion DiPENTIMA, C. J., concurred.
In his statement of the issues, the defendant also claimed that the court improperly failed to consolidate this case with Brewster Park, LLC v.Hochman, Superior Court, judicial district of Fairfield, Housing Session at Bridgeport, Docket No. FBT-CV-07-4021167-S. The defendant, however, has not briefed this issue on appeal, and, accordingly, it is deemed abandoned. See Mundell v. Mundell, 110 Conn. App. 466, 478, 955 A.2d 99 (2008) (“[ajssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court” [internal quotation marks omitted]).
Paragraph 1 of the agreement, entitled “Tenant,” provides: “The words T, ‘me’ and ‘my’ in this [r]ental [agreement . . . refer to the [tjenant. The following person is the [tjenant: Aaron Hochman 115 Brewster Street, Unit 3D Bridgeport, CT.”
Paragraph 2 of the agreement, entitled “Landlord,” provides: “The words ‘you’ and ‘your’ refer to the [ljandlord who is: Brewster Park, LLC c/o Michael Weinshel 418 Meadow Street Suite 201 Fairfield CT 06824.”
Paragraph 15 (a) of the agreement provides: “Upon default, I must pay your damages, including reasonable legal fees, the costs of re-entering, re-letting, cleaning and repairing the property.”
Paragraph 15 (b) of the agreement provides: “In no event may I hold over. We, the undersigned, agree to vacate the [pjroperty (i) on or before February 15, 2007, or (ii) if applicable, on September 17, 2007, or (iii) not later than thirty (30) days after we receive notice of default and do not cure the same within thirty (30) days. Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs. We acknowledge that our representations that we will not hold
“Acknowledged and agreed to . . . Aaron Hochman [and] Fred Berger.”
General Statutes § 47a-3c provides: “In the absence of agreement, the tenant shall pay the fair rental value for the use and occupancy of the dwelling unit.”
In Welk, the defendant tenant leased from the plaintiff landlord a tobacco bam on a month-to-month basis for a monthly rental of $10. Welk v. Bidwell, supra, 136 Conn. 605. Prior to the expiration of one year’s term, the landlord sought to increase the rent to $125 per month. Id. The defendant refused to pay the increased rent, held over, and continued to pay $10 per month. Id. The landlord thereafter brought an action to collect the difference between $10 and $125 per month. Id., 606. Our Supreme Court concluded that the landlord could not impose the increased rent on the tenant, as the defendant’s refusal to agree to the new rent left the parties without an enforceable lease agreement. Id., 608. It concluded, however, that the defendant was liable to the plaintiff for the reasonable rental value of the property he occupied while holding over. Id., 609.
The court found that the agreed on monthly rental price was $3842. This figure was not used in the court’s use and occupancy damages calculation.
Concurring in Part
dissenting in part and concurring in part. Although I respectfully disagree with the analysis set forth in part II of the majority opinion, I nevertheless concur in the result reached, affirming the trial court’s damages award. I cannot join, however, in part III of the opinion, reversing the judgment as to the award of attorney’s fees. I conclude that pursuant to paragraph 15 (a) of the lease agreement, the defendant, Fred Berger, with respect to 2600 Park Avenue, unit 10B, Bridgeport, not only is liable after default for use and occupancy, but also is liable for the attorney’s fees awarded to the plaintiff, Brewster Park, LLC, by the trial court. Accordingly, I would affirm the judgment of the trial court.
Paragraph 15 (a) of the lease provides: “Upon default, I must pay your damages, including reasonable legal fees, the costs of re-entering, re-letting, cleaning and repairing the property.” As I will set forth, the “I” in paragraph 15 (a) refers to the defendant. In paragraph 15 (b), “I” also refers to the defendant. This is because Aaron Hochman, the primary tenant signatory to the
Paragraph 15 (b) of the lease provides: “In no event may I hold over. We, the undersigned, agree to vacate the [property (i) on or before February 15, 2007, or (ii) if applicable, on September 17, 2007, or (iii) not later than thirty (30) days after we receive notice of default and do not cure the same within thirty (30) days. Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs. We acknowledge that our representations that we will not hold over is being relied upon by you, as consideration for you granting both the tenancy and the option to purchase, and that it would be unjust and inequitable if you were forced to incur additional costs and damages as a result of our failure to vacate.
“Acknowledged and agreed to . . . Aaron Hochman [and] Fred Berger.”
I arrive at this conclusion although paragraph 1 of the lease provides in relevant part: “The words T, ‘me’ and ‘my’ in this [r]ental [agreement . . . refer to the [t]enant. The following person is the [t]enant: Aaron Hochman 115 Brewster Street, Unit 3D Bridgeport, CT.”
After closely examining the lease in its entirety, I conclude that the language in paragraph 1, defining “I,” “me” and “my,” as set forth at the beginning of the lease, does not apply to paragraph 15 of the lease, although that is not specifically set forth anywhere in the lease. The only clear and logical reading of paragraph 15 (a) is that in that paragraph, “I” refers to the defendant. In paragraph 15 (b), “I” also refers solely to the defendant, and “we” refers to Hochman and the defendant. The import of paragraph 15 (a) is that for unit 10B, the defendant is liable for subsequent charges
Further, the defendant, by his signature at the bottom of paragraph 15, did more than acknowledge the contents of the subsections. He “[acknowledged and agreed to” them.
The foregoing interpretation of paragraph 15 (a) comports with our law: “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 183, 2 A.3d 873 (2010).
The foregoing analysis also finds support in the trial court’s decision. The trial court also examined the defendant’s liability under paragraph 15 and found the following: “The defendant in this case was named as an occupant of the dwelling 2600 Park Avenue, unit 10B, along with Aaron Hochman. The defendant’s name and signature further appear on the lease at paragraph
The court also stated: “In addition, the court must also consider the defendant’s obligations under paragraph 15 of the lease between Hochman and the plaintiff.
“Paragraph 15 of the lease is divided into two separate paragraphs. The subsection (a) deals with actions upon default, and subsection (b) deals with actions upon a holdover. The subsection (b) says in part, ‘Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs.’ [Although] the language of the subsection contains the words, ‘[w]e, the undersigned,’ it clearly states also that Hochman shall be responsible for damages under subsection (b). The court finds that this limits the liability as to this defendant under this subsection.
“The court now turns its attention to the subsection (a) of the rental agreement. The tenancy between Hoch-man and the plaintiff began on August 16, 2006, and ended on February 15, 2007, subject to an extension provided in the addendum attached to the agreement. The plaintiff testified that no rent was ever paid by Hochman, and they began eviction proceedings in November, 2006. The defendant testified that he resided at 2600 Park Avenue, unit 10B, all the relevant time of the agreement. He further testified that he was aware of the notice to quit in November, 2006, and that he discussed the notice with Hochman. Although the defendant stated that Hochman told him he would take care of it, clearly the defendant had notice of the default as of November, 2006.
“The defendant argues that even though he may have had notice of the default, he was not obligated under
“Accordingly, the court finds that the defendant does have some liability under paragraph 15 of the rental agreement.” (Emphasis added.)
The court concluded that the defendant was contractually obligated to pay the plaintiffs reasonable attorney’s fees: “Lastly, the plaintiff is entitled to attorney’s fees. The court has previously indicated that paragraph 15 holds the defendant personally responsible upon his default. The paragraph specifically states the person(s) liable must pay damages, including reasonable attorney fees. Furthermore, the court may award attorney fees as an item of damages when allowed by statute or contract. Bushnell Plaza Development Corp. v. Faz-zano, 38 Conn. Sup. 683, 687, 460 A.2d 1311 (1983). The court finds that the plaintiff is awarded $7500 as reasonable attorney’s fees.”
The trial court found, and I agree, that the defendant is liable for attorney’s fees pursuant to paragraph 15 (a) of the agreement. Accordingly, I respectfully dissent from part III of the majority opinion that holds otherwise. I conclude that the judgment of the trial court should be affirmed.
For the foregoing reasons, I dissent in part and concur in part.
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