Peter Lee v. Richard Stanziale (2013)

MEMORANDUM OF DECISION

TRIAL

This case involves a written lease agreement for a residential rental property.   On May 19, 2011, the Plaintiff–Tenant, Peter Lee, commenced this action, pro se, in Small Claims Court against the Defendant–Landlord, Richard Stanziale, seeking the return of his security deposit, as well as double the amount of the security deposit.   On June 9, 2011, defendant's Motion to Transfer to the Regular Civil Docket was granted, and the case was transferred to the Regular Civil Docket for Housing Session matters.

On July 14, 2011, the defendant, through counsel, filed a Counterclaim/Setoff, and Answer and Special Defenses.   Thereafter, the plaintiff retained counsel and filed his Answer to the Counterclaim/Setoff.   On November 14, 2012, Plaintiff's Request for Leave to Amend the Complaint was granted.   On December 4, 2012, the defendant filed his Answer to the Amended Complaint, along with Special Defenses.   Trial was held over five days ¹ in the Hartford and New Britain Housing Courts, with the Court hearing testimony and the parties submitting over ninety exhibits.   Counsel subsequently filed post-trial briefs on May 17, 2013, concerning the relevant issues.

I. SUMMARY OF THE LEGAL ARGUMENTS

In his Amended Complaint, the plaintiff alleges that the defendant:  failed to hold plaintiff's security deposit in an escrow account in a financial institution, as required by Connecticut General Statutes Section 47a–21(d), (h);  failed or refused to remedy defects and problems which existed at the premises during plaintiff's occupancy;  failed or refused to provide a proper accounting of the plaintiff's security deposit plus interest;  and failed to return the security deposit after repeated demands by the plaintiff.   Additionally, the plaintiff contends that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), C.G.S. Section 42–110a et seq., in that the defendant's actions were immoral, oppressive and unscrupulous, causing substantial injury to the plaintiff.   The plaintiff seeks monetary damages in excess of $15,000, in the form of double the amount of his security deposit pursuant to C.G.S. Section 47a–21(d)(2), plus interest, attorneys fees pursuant to C.G.S. Section 42–110g et seq., and Section 52–251a, and court costs.

In his Answer, the defendant denies:  that he failed to deposit the plaintiff's security deposit into an escrow account, pursuant to Section 47a–21(h);  that he failed to provide an accurate accounting to the plaintiff after the plaintiff moved out;  and, that he violated CUTPA.   By way of Special Defenses, the defendant claims:  that he provided timely, written accounting of the security deposit to the plaintiff after plaintiff moved out;  that, as a result of the plaintiff's anticipatory breach of the lease, the defendant incurred legal fees and realtor fees in order to mitigate his damages in finding a new tenant;  and, that the defendant was unable to find a “suitable” tenant without hiring a relator.

Defendant's Counterclaim/Setoff asserts:  that plaintiff's actions in vacating the premises prior to the expiration of the lease constituted an anticipatory breach, causing the defendant to expend funds for legal fees and realtor fees;  that the plaintiff caused damages to the premises that were accounted for in the security deposit accounting provided to the plaintiff;  and, that defendant is entitled to attorneys fees and costs pursuant to the lease agreement.   After a setoff, the defendant claims he is owed $2,405, plus attorneys fees.   Plaintiff denies the allegations of the Counterclaim/Setoff.

II. DISCUSSION

A. Burden of Proof

“While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it.”  Lukas v. New Haven, 184 Conn. 205, 211 (1981).   The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence.  Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923 (1982).   Failure to do so results in judgment for the defendant.  Id. “ ․ [W]hat is necessarily implied [in an allegation] need not be expressly alleged.”  Pamela B. v. Ment, 244 Conn. 296, 308 (1998).

B. The Proceedings

“The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties.”  (Internal quotation marks omitted.)  Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005).  “It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ it is the quintessential function of the factfinder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].”  Smith v. Smith, 183 Conn. 121, 123 (1981).

“[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony.”  (Citation omitted;  internal quotation marks omitted.)   Toffolon v. Avon, 173 Conn. 525, 530 (1977).  “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.”   Smith v. Smith, supra, 183 Conn. at 123.  “The trial court's function as the finder is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.”  In re Christine F., 6 Conn.App. 360, 366, cert. denied, 199 Conn. 808 (1986).

C. Standard of Proof

The standard of proof in civil actions, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394 (1981).

D. Findings of Fact

The court has weighed all the evidence and assessed the testimony and credibility of the witnesses, and reaches the conclusions set forth herein by a fair preponderance of the evidence.

The Defendant-landlord, Richard Stanziale, is the owner of the subject property located at 56 Brace Road in West Hartford, Connecticut (hereinafter “the premises”).   The Plaintiff-tenant, Peter Lee, moved into the premises with his family, after signing a one-year lease agreement with the landlord.   The term of lease was for one year, from May 1, 2010 through April 30, 2011, at a rate of $2,500 per month.

On or about April 7, 2010, the plaintiff paid a $5,000 security deposit to the defendant.

The defendant utilized a real estate agent to obtain the plaintiff as a tenant, and paid a realtor fee of $2,500.   The realtor fee is equal to one-twelfth of the total rent to be paid by the prospective tenant.

During his tenancy, the plaintiff informed the defendant of various problems he had with the premises, including insects inside the house, a faulty doorbell, inadequate heat on the third floor, electrical wiring issues, and an asbestos-wrapped furnace.

On or about September 4, 2010, the plaintiff informed the defendant that he and his family intended to vacate the premises before the lease expired.   In addition to the various problems with the premises, the plaintiff made it known that he had become dissatisfied with his long commute to and from work.

During October 2010, the parties discussed modifying the lease, however no such modification was agreed to.   Sometime in November 2010, the plaintiff purchased a home in Avon, Connecticut.   Thereafter, the plaintiff and defendant exchanged communications regarding termination of the lease.

On or about November 12, 2010, the defendant listed the property for rent with a realtor.   The listing sought a tenant for one year with a monthly rent of $2,500.   The defendant received at least two offers from prospective tenants.

On or about December 2, 2010, the plaintiff notified the defendant that he and his family would be vacating the premises on December 19, 2010.   The plaintiff paid rent to the defendant through December 31, 2010.

On or about December 15, 2010, the defendant entered into a lease agreement with a new tenant.   The new lease was for a two-year term, commencing January 1, 2011 through December 31, 2012, at a monthly rent of $2,500.   As a result, the defendant incurred a realtor fee of $5,000.

Prior to moving out of the premises, the plaintiff completed a walk-through of the premises with defendant's realtor, after which the premises was found to be in clean condition.   The plaintiff also topped off the oil tank on December 18, 2010, per the defendant's request, and returned the keys to the defendant on December 21, 2010.   In an email to the defendant, the realtor advised the defendant that the premises would not need to be cleaned for the new tenants moving in on January 1, 2011.

On December 19, 2010, the plaintiff vacated the premises.   On or about December 20, 2010, the plaintiff provided the defendant with his new mailing address, and requested the return of his $5,000 security deposit, plus interest.

On January 3, 2011, the defendant sent a “Preliminary Deposit Accounting” of the plaintiff's security deposit, stating the plaintiff owed the defendant $1,518.50.   On January 12, 2011, the defendant sent a second “Preliminary Deposit Accounting,” claiming the plaintiff owed the defendant $2,405.57.   The plaintiff alleges that he never received the second accounting.

Both preliminary accountings specify deductions from the plaintiff's $5,000 security deposit, plus interest, for various expenses incurred by the defendant.   The deductions include utility costs, the cost to top off the oil tank, amounts paid for repairs for damage to the property allegedly caused by the plaintiff, the $5,000 realtor fee defendant incurred in renting the premises to the new tenants, and attorneys fees.

E. Plaintiff's Claim for Double the Security Deposit, Plus Interest

1. C.G.S. § 47a–21(d)

In his Amended Complaint, the plaintiff seeks the return of his $5,000 security deposit, plus interest, and double the amount of said security deposit, plus interest, alleging that the defendant failed to provide a timely accounting, as required by Connecticut General Statutes, Section 47a–21(d)(2).

Section 47a–21(a)(10) defines a “security deposit” as “any advance rental payment other than an advance payment for the first month's rent and a deposit for a key or any special equipment.”  Section 47a–21(g), “Action to reclaim security deposit,” provides that, “Any person may bring an action in replevin or for money damages in any court of competent jurisdiction to reclaim any part of his security deposit which may be due.   This section does not preclude the landlord or tenant from recovering other damages to which he may be entitled.”

Section 47a–21(d)(1), “Payment of security deposit and interest at termination of tenancy,” states in relevant part:

(1) Within the time specified in subdivisions (2) and (4) of this subsection, the person who is the landlord at the time a tenancy is terminated ․ shall pay to the tenant or former tenant:  (A) The amount of any security deposit that was deposited by the tenant with the person who was landlord at the time such security deposit was deposited less the value of any damages which any person who was a landlord of such premises at any time during the tenancy of such tenant has suffered as a result of such tenant's failure to comply with such tenant's obligations;  and (B) any accrued interest due on such security deposit as required by subsection (i) of this section.

Section 47a–21(d)(2), states that:

Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant's forwarding address.   Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant's failure to comply with such tenant's obligations, together with a written statement itemizing the nature and amount of such damages.   Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant, except that, if the violation is the failure to deliver the accrued interest, such landlord shall only be liable for twice the amount of such accrued interest.   (Emphasis added).

A tenant may seek double the amount of his security deposit, plus interest, only if the landlord fails to comply with the statutory requirements of 47a–21, subsection (d), specifically, the thirty-day time period to provide a written accounting.   In the instant case, the defendant-landlord complied with the thirty-day time period.   The plaintiff-tenant moved out on December 19, 2010, and provided his forwarding address to the defendant-landlord on or about December 20, 2010.   The plaintiff received the first security deposit accounting from the defendant on or about January 3, 2011.   This was well within the thirty days required by 47a–21(d)(2).   Moreover, the second accounting, dated January 12, 2011, was also within the requisite time period.

The plaintiff also claims that the accounting sent by the defendant is speculative and preliminary in nature, thus justifying an award of double the amount of the security deposit.   However, the plaintiff fails to cite any statute or case law for the proposition that such a remedy can be awarded based on the landlord's failure to provide a finalized accounting.  Section 47a–21(d) simply requires that a landlord provide the tenant with a “written statement itemizing the nature and amount of ․ damages” allegedly caused by the tenant, and deducted from the security deposit, within thirty days of termination of the tenancy.   The defendant did that here.

Based on the foregoing reasons, the plaintiff is not entitled to double the amount of his security deposit, plus interest, pursuant to 47a–21(d)(2).   However, the Court finds that the plaintiff is entitled to a return of a portion of his security deposit, plus interest, less certain damages alleged by the defendant.

2. C.G.S. § 47a–21(h)

The plaintiff also claims that the defendant violated Section 47a–21(h), in that the defendant failed to deposit the security deposit into an escrow account with a financial institution.

Section 47a–21(h)(1), “Escrow deposit,” states that, “Each landlord shall immediately deposit the entire amount of all security deposits received by him on or after October 1, 1979, from his tenants into one or more escrow accounts for such tenants in a financial institution.   Such landlord shall be escrow agent of such account.   Within seven days after a written request by the commissioner for the name of each financial institution in which any such escrow accounts are maintained and the account number of each such escrow account, a landlord shall deliver such requested information to the commissioner.”  Section 47a–21(k)(2), “Penalties,” states that, “Any person who knowingly and wilfully violates the provisions of subsection (h) ․ shall be subject to a fine of not more than five hundred dollars or imprisonment of not more than thirty days or both for each offense.”

During trial, the plaintiff failed to provide any evidence to support the allegation that the defendant knowingly or willfully failed to deposit the security deposit into an escrow account.   Further, the Court does not have the jurisdiction to fine or imprison the defendant, even if the plaintiff established that the defendant violated 47a–21(h).  Therefore, the Court does not make any finding regarding this allegation.

F. Alleged Defects and Problems with the Premises During Plaintiff's Tenancy

The plaintiff alleges that the defendant failed to address a variety of problems with the premises during plaintiff's tenancy.  C.G.S. Section 47a–7(a) describes a landlord's responsibilities, which includes keeping the premises in a safe and habitable condition.   The plaintiff did not provide any evidence at trial, such as testimony from a housing inspector or a housing inspection report, to establish that the premises were unfit or uninhabitable during his tenancy.   Therefore, the Court finds that the plaintiff did not meet his burden of proof as to any alleged violations of Section 47a–7.

G. Plaintiff's CUTPA Claim

In the second count of his Amended Complaint, the plaintiff alleges that defendant's actions violate the Connecticut Unfair Trade Practices Act (CUTPA), C.G.S. § 42–110g et seq., in that said actions were immoral, oppressive and unscrupulous, and thereby caused substantial injury to the plaintiff.   Specifically, the plaintiff claims that the defendant, a Caucasian male, allowed prior tenants, all of which were Caucasian, to terminate their lease prior to its expiration without any legal action, while the plaintiff, an Asian doctor, was not allowed to break his lease early without legal repercussions.

To state a claim under CUTPA, a plaintiff must allege that the actions of the defendant were performed in the conduct of “trade or commerce.”  C.G.S. § 42–110b;  Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 669, 613 A.2d 838 (1992).  Connecticut General Statutes § 42–110a(4) defines “trade” or “commerce” to include “the sale, or rent or lease ․ of any ․ property ․ real, personal or mixed.”   Our Supreme Court has held that a private cause of action exists under CUTPA for a violation of the statutes governing landlords and tenants.  Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983) (renting of uninhabitable apartments to fifty-five tenants in four apartment buildings without certificates of occupancy offended public policy and was within purview of CUTPA).

In determining whether a practice violates CUTPA, courts use the criteria of whether it offends public policy or comes within some established concept of unfairness, whether it is immoral, unethical, oppressive or unscrupulous, or whether it causes substantial injury to consumers, competitors or other businessmen.  Muniz v. Kraus, 59 Conn.App. 704, 713, 757 A.2d 1207 (2000).   All of the criteria need not be satisfied to support a finding of unfairness, and the practice may be unfair because of the degree to which it meets some of the criteria, or because to a lesser degree it meets all three.  Atlantic Ridgefield Co. v. Canaan Oil Co., 202 Conn. 234, 242 (1987).   A single real estate transaction may be the basis for a CUTPA claim.  Oat v. White, 5 Conn. L. Rptr. 229 (1991).

CUTPA embraces a broader standard of conduct more flexible than traditional common-law claims and does not require proof of intent to deceive, to mislead or to defraud.  Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. at 158, 645 A.2d 505.   A violation may be established by showing either an actual deceptive practice or a practice that violates public policy.  Id., at 156, 645 A.2d 505.

In the instant case, the defendant engaged in commerce, as defined by CUTPA, by renting the premises to the plaintiff.   However, the actions of the defendant do not rise to the level of immoral, oppressive or unscrupulous.   The plaintiff informed the defendant that he intended to breach the lease, and move out, before it terminated.   Thereafter, the defendant refused to return plaintiff's security deposit, claiming damages resulting from plaintiff's breach, and retained legal counsel.   The defendant did nothing more than exercise his rights under the law.   The issue of the credibility of any alleged damages resulting from plaintiff's breach is addressed in another section of the Court's decision.

To come within the terms of CUTPA, there must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy.  Muniz, 59 Conn.App. 704, 715.   In this case, the Court does not find such a nexus, as the defendant did not engage in a deceptive practice or violate public policy.   In addition, the Court finds no evidence that defendant's actions were based on the plaintiff's race or profession.   Therefore, plaintiff has not met his burden as to his claim for damages under CUTPA.

H. Counterclaim/Setoff

“A right of setoff may ․ be asserted in response to a complaint just as a counterclaim may be so pleaded.  Practice Book § 10–54.”  Gattoni v. Zaccaro, 52 Conn.App. 280, fn.4. “As to setoff, ․ [i]t is available only when the plaintiff sues for recovery of a debt.”   Stephenson, Connecticut Civil Procedure, Volume 1, p. 258 (3rd Ed.1997).  “The law of setoff is governed by General Statutes 52–139.   The relevant portion of that statute provides:  (a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other.”   (Internal quotation marks omitted.)  Petti v. Balance Rock Associates, 12 Conn.App. 353, 362, 530 A.2d 1083 (1987).

1. Anticipatory Breach of Lease

In his Counterclaim/Setoff, the defendant argues that as a result of the plaintiff's anticipatory breach of the lease, defendant incurred legal fees and realtor fees in order to mitigate his damages, and was unable to find a “suitable” tenant without hiring a real estate agent.

Repudiation, or an anticipatory breach, occurs when one side is not in default of its obligations and the other announces, in words or otherwise, that it will not perform.  Gilman v. Pederson, 182 Conn. 582, 584 (1981).   In order for the repudiation to be actionable, the non-breaching party must be in “substantial conformity with the requirements of the contract.”  Gilman, supra.   An anticipatory breach excuses the non-breaching side from future performance of contractual obligations.  Martin v. Kavenewsky, 157 Conn. 514, 518–19 (1969).

Here, the plaintiff informed the defendant that he intended to vacate the premises before the lease expired, both with words and actions.   On or about September 5, 2010, the plaintiff sent an email to the defendant stating his intent to vacate.   Furthermore, in November 2010, the plaintiff purchased a house in Avon, Connecticut.   Based on these facts alone, there was no doubt that the plaintiff intended to breach the lease before its expiration.   In fact, the plaintiff did breach the lease, vacating the premises on December 19, 2010.

2. Mitigation of Damages

The defendant also argues that he mitigated his damages by hiring a realtor to rent the premises to new tenants under a two-year lease, with the same monthly rent of $2,500 as the plaintiff.   As a result, the defendant paid a $5,000 realtor fee.   In his Counterclaim/Setoff, the defendant claims he is entitled to reimbursement from the plaintiff for the entire realtor fee.

Connecticut General Statutes § 47a–11c, “Breach of rental agreement by tenant.   Measure of damages,” provides in relevant part, “[t]he landlord shall be obligated to mitigate damages [in the event of a breach by the tenant].”   In breach of contract actions, “[t]he plaintiff clearly ha[s] a duty to exercise reasonable conduct to minimize the damages occasioned by the defendant's breach ․ and the court will measure damages as though [the plaintiff] had acted reasonably ․ The logical corollary of this rule is that the plaintiff was entitled to recover the cost of its reasonable efforts to mitigate the damages occasioned by the breach ․ The injured party is not precluded from recovery ․ to the extent that he has made reasonable but unsuccessful efforts to avoid loss.”  (Citations omitted;  internal quotation marks omitted.)   West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986).

“In a breach of contract action, the defendant bears the burden of proving that the plaintiff failed to exercise reasonable care to mitigate damages.”   (Citations omitted.)  Lynch v. Granby Holdings, Inc., 37 Conn.App. 846, 850, 658 A.2d 592 (1995).  “It is well established that in an action for damages for breach of a lease, the injured party is under a duty to mitigate his or her damages ․ The duty to mitigate requires a landlord to ‘make reasonable efforts' to minimize damages, which includes taking steps to relet the premises.   What constitutes reasonable efforts is a question of fact for the trier ․” (Citations omitted).  Rokalor v. Connecticut Eating Enterprises, 18 Conn.App. 384, 388–90, 558 A.2d 265 (1989).

“In determining that the plaintiff failed to mitigate some of its claimed damages, the trial court found the following facts or omissions determinative.   First, the trial court found that the plaintiff did not hire a real estate broker until almost four months after the defendant's default and provided no explanation for this delay.   The trial court found that this unexplained delay was unreasonable.   In addition, the plaintiff did not introduce any evidence by the broker to establish what efforts were made by him to lease the premises.”   Id. at 390–91.

In Thorne v. Broccoli, 39 Conn.Sup. 289, 292–93, 478 A.2d 271 (1984), the court considered the following factors in evaluating mitigation efforts in a residential setting:  the money spent on advertising the rental, the number of newspaper advertisements, the posting of signs, the involvement of a real estate firm, the number of showings of the premises to prospective tenants, the offering of the premises at a reduced rate, and the length of time before a new tenant was found.   These factors would likewise be helpful in determining the reasonableness of mitigation efforts in a commercial setting.   1850 Silas Deane Assoc. v. DiMascio, CVH–7457, Hartford Housing Session, April 10, 2007 (Bentivegna, J.).

In the case at bar, the defendant (counterclaim plaintiff) was obligated to mitigate the damages caused by plaintiff's breach (counterclaim defendant).   Under the circumstances, defendant's efforts to mitigate his damages were reasonable.   Within two months of being informed of plaintiff's anticipatory breach, the defendant had hired a realtor and listed the property for rent in November 2010.   By December 15, 2010, the defendant had signed a new lease with a new tenant (hereinafter “tenant 1”), which included a longer lease term than the plaintiff (two years commencing on January 1, 2011), at the same monthly rent as the plaintiff ($2,500).   The defendant testified that he had not used a realtor to rent the premises in the past, but that he had used a realtor to retain the plaintiff as a tenant.

Although defendant's efforts to mitigate were reasonable, holding the plaintiff accountable for the full cost of the $5,000 realtor fee is unreasonable.   Defendant makes two arguments to support his claim that the plaintiff should pay the full realtor fee.   First, he argues that his damages would have been greater than the $5,000 realtor fee, had he rented the premises to the other prospective tenant (hereinafter “tenant 2”) under a one-year lease commencing February 1, 2011, at a monthly rent of $2,500.   In that scenario, the defendant would be responsible for the utility costs during the month the premises was vacant (January 2011), he would not receive the $2,500 rental payment for that month, and he would have paid a realtor fee of $2,500.   Alternatively, the defendant argues that the $5,000 realtor fee was reasonable, simply because the realtor testified to as much.   The Court is unmoved by these arguments, since the record indicates that a new tenant signed a lease with the defendant on December 15, 2010 (four days before the plaintiff moved out), and began occupancy on January 1, 2011, with the added benefit to the defendant of an additional year of occupancy.

Based on a fair preponderance of the evidence, the Court finds that, after reasonable efforts to mitigate his damages, the defendant is entitled to one-third of the realtor fee for a one-year lease, or, in other words, a realtor fee accounting for the four months that the plaintiff was in breach of the lease (January 2011–April 2011).   The realtor fee for a one-year lease is $2,500 ($208.33 per month).   Therefore, the plaintiff-tenant owes the defendant-landlord $833.32 ($208.33 multiplied by four months) for the realtor fee.

I. Attorneys Fees and Costs

1. Plaintiff's Claim for Attorneys Fees Pursuant to C.G.S. § 52–251a

The plaintiff seeks attorneys fees of $18,000, and costs, pursuant to C.G.S. Section. 52–251a, entitled “Costs, attorneys fees on small claims matter transferred to regular docket,” which states, “[w]henever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorneys fees to be taxed by the court.”   The record indicates that the instant action was commenced in small claims court, and transferred to the regular docket on the defendant's own motion.   The plaintiff retained counsel after the case was transferred.

Based on the foregoing reasons, the Court finds that the plaintiff is the prevailing party in this action for return of his security deposit.   Therefore, the plaintiff is entitled to reasonable attorneys fees and costs, pursuant to Section 52–251a.   In order for the Court to determine the amount of reasonable attorneys fees and costs, plaintiff may file an affidavit of attorneys fees and costs on or before September 9, 2013.   The defendant may file his response thereto on or before September 23, 2013.

2. Defendant's Claim for Attorneys Fees Pursuant to the Lease

In his Counterclaim/Setoff, the defendant seeks attorneys fees and all costs of collection, pursuant to paragraph 16 of the lease (Exhibit 1).   Paragraph 16, entitled “DEFAULT,” states in relevant part, “You (tenant) will be in default under this lease if:  ․ (b) You violate or do not do any of the things you agree to do under this lease ․ If you are in default under this lease and if we (landlord) refer the matter to an attorney to evict you, you will pay us a reasonable attorneys fee ․ You will also pay us all of our other collection costs and expenses.”  (Emphasis added.)

“A lease is nothing more than a contract.”  Rokalor, supra.  “It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.”  Levine v. Massey, 654 A.2d 737, 232 Conn. 272 (Conn.1995).   When the intention conveyed by the terms of an agreement is “clear and unambiguous, there is no room for construction.”  Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984).  “[A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms.”  Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985);  see also Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 159, 595 A.2d 872 (1991), 232 Conn. 279 (“[i]t is not within the power of courts to create new and different agreements”).

In the present case, the lease explicitly states that the plaintiff-tenant is responsible for attorneys fees, only if he is in default and the defendant-landlord employs an attorney to evict the plaintiff.   The plaintiff defaulted on the lease by vacating prior to its termination.   However, at no time did the defendant-landlord hire an attorney to proceed with a summary process eviction action against the plaintiff.   Accordingly, the Court finds that the defendant-landlord is not entitled to attorneys fees and costs, pursuant to the lease.

III. DAMAGES

The plaintiff-tenant has established, by a fair preponderance of the evidence, that he is entitled to a portion of his security deposit, plus interest.   The defendant-landlord has established that he is entitled to a portion of the security deposit, plus interest, for damages stemming from plaintiff's breach of the lease and damages to the premises that were proven to be caused by the plaintiff.

Any property damages awarded to the defendant are based on the security deposit accounting (Exhibit 69).   Based on the evidence adduced at trial, the Court finds that said damages are actual damages, beyond normal wear and tear to the premises, representing a good faith claim ² against the plaintiff.

For the above-stated reasons, the Court awards the following damages:

Plaintiff–Tenant's Case

Security Deposit $5,000.00

Accrued interest $ 141.05

Rent paid after vacating

(12/20/10–12/31/10) $ 967.74

Attorneys fees and costs ³

Subtotal $6,108.79

Defendant–Landlord's Case

Realtor Fee $ 833.32

Snow Removal (Exhibit D) $ 100.00

Heating Oil Bill (Exhibit H) $ 352.08

Electric Bill (Exhibit F) $ 26.17

Gas Bill (Exhibit G) $ 9.21

Subtotal $1,320.78

IV. JUDGMENT

Based on the foregoing, the Court enters judgment for the plaintiff-tenant in the amount of $4,788.01.   The judgment may include an award of reasonable attorneys fees and costs, pending the submission of plaintiff's affidavit.

BY THE COURT,

Hon. Glenn A. Woods

FOOTNOTES

FN1. October 10, 2012, November 14, 2012;  December 14, 2012;  March 28, 2013, and, May 2, 2013..  FN1. October 10, 2012, November 14, 2012;  December 14, 2012;  March 28, 2013, and, May 2, 2013.

FN2. Section 47a–21(j)(1), in describing when the Banking Commissioner does not have jurisdiction to prosecute a landlord who violates 47a–21(d), provides that, “the commissioner shall not have jurisdiction over the refusal or other failure of any landlord to return all or part of a security deposit if such failure results from the landlord's good faith claim that the landlord has suffered damages as a result of a tenant's failure to comply with such tenant's obligations whether or not the existence or amount of alleged damages is disputed by the tenant.   For purposes of this section a good faith claim is deemed to be a claim for actual damages suffered by the landlord for which written notification of such damages has been given to the tenant in accordance with the provisions of subdivisions (1), (2) and (4) of subsection (d) of this section For the purposes of such investigation, any person who is or was a landlord shall be subject to the provisions of section 36a–17.”  (Emphasis added.).  FN2. Section 47a–21(j)(1), in describing when the Banking Commissioner does not have jurisdiction to prosecute a landlord who violates 47a–21(d), provides that, “the commissioner shall not have jurisdiction over the refusal or other failure of any landlord to return all or part of a security deposit if such failure results from the landlord's good faith claim that the landlord has suffered damages as a result of a tenant's failure to comply with such tenant's obligations whether or not the existence or amount of alleged damages is disputed by the tenant.   For purposes of this section a good faith claim is deemed to be a claim for actual damages suffered by the landlord for which written notification of such damages has been given to the tenant in accordance with the provisions of subdivisions (1), (2) and (4) of subsection (d) of this section For the purposes of such investigation, any person who is or was a landlord shall be subject to the provisions of section 36a–17.”  (Emphasis added.)

FN3. Pending submission of Affidavit of Attorneys Fees and Costs by the Plaintiff..  FN3. Pending submission of Affidavit of Attorneys Fees and Costs by the Plaintiff.

Woods, Glenn A., J.