Mortimer J. Malcolm, Jr. v. Janet Diaz et al. (2011)

MEMORANDUM OF DECISION DEFENDANT'S MOTION FOR ATTORNEYS FEES

The defendant, Janet Diaz, brings this motion for attorneys fees pursuant to Connecticut General Statutes § 42-150bb and Connecticut Practice Book § 11-21 following the granting of the defendant's motion to dismiss.   On August 24, 2010, the court (Prescott, J.) granted the motion to dismiss for the plaintiff's failure to comply with certain applicable federal regulations.   On August 27, 2010, the defendant filed this motion, together with a supporting affidavit.   On September 2, 2010, the plaintiff filed, pursuant to Practice Book § 11-11, a motion to reargue the court's decision on the motion to dismiss.   The motion to reargue was denied by the court (Prescott, J.) after ex parte review On November 3, 2010, this court took evidence on the defendant's motion for attorneys fees and the plaintiff's objection.

On February 10, 2010, the plaintiff filed a supplement to his objection to the motion for attorneys fees, directing the court's attention to a decision filed after the November 3, 2010 hearing, Plainville Housing Authority v. Robert Galka, Superior Court, Judicial District of New Britain, Housing Session, Docket No. HDSP-053968 (December 17, 2010, Gilligan, J.).

Findings of Fact

The plaintiff filed a summary process complaint seeking possession of certain premises occupied by the defendant.   As to Ms. Diaz, the complaint alleged violation of certain provisions of the rental agreement.   The defendant, represented by Attorney David Pels, of Greater Hartford Legal Aid, filed a motion to dismiss the action based on the plaintiff's failure to comply with applicable federal regulations.   The motion to dismiss was granted after hearing.

Paragraph 15 of the rental agreement between the parties specifically allows for the plaintiff to recover “reasonable attorneys fee[s]” as necessary related to the prosecution of a summary process action to recover possession of the subject premises.

Attorney Pels testified to his training and experience related to the defense of summary process actions.   He also testified to the number of hours dedicated by his office to the defense, ultimately successful, of this action.

The Defendant's Argument

The defendant asserts that she is entitled to attorneys fees pursuant to Connecticut General Statutes § 42-150bb, which provides for the award of attorneys fees as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon a contract or lease that provides for attorneys fees.  Conn. Gen.Stat. § 42-150bb.

The defendant further asserts that the instant motion, brought pursuant to Connecticut Practice Book § 11-21, is the proper mechanism by which a successful “consumer,” in this instance a residential tenant, brings a post-judgment claim for attorneys fees pursuant to Conn. Gen. Stat § 42-150bb.

The defendant essentially relies, as to the applicability of this statutory scheme for the post-judgment recovery of attorneys fees in the landlord-tenant context, on Figueroa v. FAH Redstone Ltd. Partnership.

In Figueroa, the plaintiffs/tenants brought a separate civil action for attorneys fees pursuant to C.G.S. § 42-150bb after the defendant/landlord withdrew a summary process action initiated against them.   Figueroa v. FAH Redstone Ltd. Partnership, Superior Court, Judicial District of New Britain, Housing Session, Docket No. CVN-0702-2096 (November 29, 2007, Peck, J.) [44 Conn. Law Rptr. 639].   In ruling on the cross-motions for summary judgment, the court made several findings, some of which are unique to the summary process context, the most important of which specifically finds that C.G.S. § 42-150bb applies to tenants who successfully defend summary process actions involving a written lease agreement with an attorneys fees provision.   Id. at 3. The Figueroa court's application of the aforementioned statute is based on the presence of the term “lease” in the statute.  Conn. Gen.Stat. § 42-150bb.

The Plaintiff's Argument

The plaintiff argues that Connecticut General Statutes § 42-150bb does not create a statutory cause of action allowing for an award of attorneys fees to a tenant who successfully defends a summary process action involving a lease with an attorneys fees provision.   In the landlord-tenant context, the plaintiff ultimately relies on Plainville Housing Authority v. Galka, referenced in his supplemental objection to the defendant's motion.

In Galka, the defendant brought a post-judgment motion, pursuant to Practice Book § 11-21, seeking an award of attorneys fees after the court dismissed the plaintiff's complaint.   The complaint was dismissed on the defendant's motion challenging the court's subject matter jurisdiction based on the validity of the notice to quit.   Plainville Housing Authority v. Robert Galka, Superior Court, Judicial District of New Britain, Housing Session, Docket No. HDSP-053968 (December 17, 2010, Gilligan, J.).

The court in Galka focused on the varying definitions and contextual applications of the word “lease” as it appears in C.G.S. § 42-150bb.   The court concluded that Connecticut General Statutes § 42-150bb does not allow for an award of attorneys fees in the landlord-tenant context as the tenant “contract or lease” as used in that statute is not meant to include rental agreements (leases) in summary process actions.

Discussion

“A lease is simply a type of contract and ordinary rules of contract interpretation and general rules of contract law apply to leases.”  Warner Associates v. Logan, 50 Conn.App. 90, 94-95 (1998) (action to recover damages for the alleged breach of a commercial lease).

This court sees no ambiguity in the words of Connecticut General Statutes § 42-150bb as it related to summary process actions.   This court finds, based on the plain language of the statute, that it does indeed apply to appropriate summary process actions involving written leases with attorneys fees provisions.

Practically speaking, the reciprocal application of these provisions through C.G.S. § 42-150bb should encourage thoughtful, well prepared pleading on the part of landlords, which would be less susceptible to successful legal challenges.   Further, such an application would likely encourage pre-trial settlements by putting landlords on notice that failure to adequately assess the relative strengths and weaknesses of their case might have additional financial consequence.   Withdrawals of actions would not be discouraged as the context within which the withdrawal is made would determine whether or not the action was “successfully” defended or whether, for example, a defendant/tenant vacated the premises and turned over the keys, limiting the court's ability to grant practical relief.   An oral or written statement or stipulation as to the reason for the withdrawal would likely address the majority of landlord concerns regarding being “punished” for certain withdrawals.   Additionally, the basis for the withdrawal would be relevant as to what sum of attorneys fees are a “reasonable” award, under the totality of the circumstances.

ORDER

This court finds that the defendant has established all of the prerequisites for recovery of attorneys fees pursuant to Conn. Gen.Stat. § 42-150bb.   In this matter, the dismissal of this action constitutes a successful defense of the summary process action.   Further, the written lease agreement provides for the plaintiff's recovery of attorneys fees.

Additionally, based on the evidence adduced at the hearing, the court finds 56 hours of Attorney Pels' time at a rate of $300.00 per hour to be reasonable under all of the circumstances of the case.

Accordingly, the court awards the defendant reasonable attorneys fees of $1,680.00 for the successful defense of this summary process action.

BY THE COURT

Hon. Vernon D. Oliver

Oliver, Vernon D., J.