LLC v. LLC (2013)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (# 151)

BACKGROUND

Before the court is a motion filed by the plaintiff Just Breakfast & Things!!!, LLC (Just Breakfast) seeking summary judgment only as to count one of its complaint.   Just Breakfast claims that the defendant, Vidiaki, LLC (Vidiaki), breached the parties' lease agreement when it failed to pay Just Breakfast's attorneys fees after Just Breakfast successfully defended against a prior summary process action between the parties.   Just Breakfast filed this suit on October 5, 2010, and filed its second amended, five-count complaint (complaint) on January 7, 2011.¹  In count one, the only count relevant to this motion, Just Breakfast alleges breach of contract based on the following facts.   On or about July 31, 2007, Just Breakfast, as tenant, and Vidiaki, as landlord, entered into a lease agreement (the lease) for premises at 13 River Road in Lisbon, Connecticut.   Under the lease, Just Breakfast operates a restaurant on the premises.   In count one, the plaintiff incorporated the lease as Exhibit A, and also quoted the text of Section 20 of the lease:  “In the event that litigation arises concerning matters provided for in this lease, the party obtaining judgment in such case shall be entitled to attorneys fees and allowable costs.”

The complaint further alleges that on or about April 7, 2009, and again on or about June 30, 2009, Vidiaki issued notices for Just Breakfast to quit the premises.   Also, on or about April 16, 2009, Vidiaki commenced a lawsuit seeking to evict Just Breakfast from the premises based on several grounds.   Just Breakfast, who was the defendant in that action, alleges that it defended against that lawsuit and a judgment was rendered entirely in its favor on or about July 28, 2010.   Count one further alleges that Vidiaki is responsible for $33,943 in attorneys fees and costs that it incurred in defense of the lawsuit, and, despite demand, Vidiaki has failed or refused to pay any of its incurred legal expenses.

On March 22, 2013, Just Breakfast filed the present motion for summary judgment on count one on the ground that there is no issue of material fact that Vidiaki has breached the lease by not paying Just Breakfast's attorneys fees and costs.   Just Breakfast filed a memorandum of law and thirty-six exhibits with its motion.   On April 9, 2013, Vidiaki filed a written objection to the motion, along with three exhibits.   The present motion was argued on April 15, 2013.

FACTS

The undisputed facts relevant to resolving the present motion are as follows.   Just Breakfast is currently the tenant and Vidiaki is currently the landlord of the subject premises at 13 River Road in Lisbon, Connecticut, where Just Breakfast operates a restaurant.   That lessee-lessor relationship has existed since approximately July 31, 2007, according to the lease.

In April 2009, Vidiaki, as plaintiff, commenced a summary process action in Superior Court seeking to evict Just Breakfast from the premises (the summary process action).   The present suit, while separate from the summary process action, relies heavily on the procedural history of that case to support Just Breakfast's claim in count one of this case.   Vidiaki alleged five counts in its summary process action.²  Just Breakfast requested that Vidiaki revise the summary process action complaint.   On July 8, 2009, Vidiaki filed an amended complaint, which withdrew count two and count five, and added a new count (count six).   On October 6, 2009, Just Breakfast filed a motion to dismiss count six of the summary process action for lack of subject matter jurisdiction.   The court, Young, J., granted that motion.   Count one of the summary process action was also later dismissed by Judge Young, sua sponte, for lack of subject matter jurisdiction.   A trial was held on June 28 and 29, 2010 on the two remaining counts—count three and count four.   After trial, the court, Goldberg, J.T.R., rendered judgment in favor of Just Breakfast on both counts.

Vidiaki appealed the decision in favor of Just Breakfast.   On January 17, 2012, the Appellate Court affirmed all of the trial court's rulings that were challenged by Vidiaki, except the dismissal of count one.   See Vidiaki, LLC v. Just Breakfast & Things!!!, LLC, 133 Conn.App. 1, 33 A.3d 848 (2012).   As to count one, the Appellate Court reversed Judge Young's dismissal and remanded the case for further proceedings on that count only.   After remand, however, Vidiaki unilaterally withdrew count one before any further proceedings took place.

Just Breakfast filed both the present suit and its second amended complaint in this suit against Vidiaki after the original judgment in Just Breakfast's favor in the summary process action but prior to the resolution of Vidiaki's appeal and Vidiaki's withdrawal of count one of the summary process action.

On August 31, 2012, in this case, Vidiaki moved for summary judgment on all counts of Just Breakfast's second amended complaint.   The court, Martin, J., denied that motion in a decision dated January 31, 2013.  (Vidiaki's request for reargument was also denied.)

The plaintiff's present motion for partial summary judgment as to count one followed.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy [its] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Accordingly, on a motion for summary judgment where material facts are not in dispute and the result depends solely on questions of law, it is proper for the court to resolve those issues and decide whether to grant the motion.   See Mingachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368 (1985).

In the present motion, Just Breakfast argues that there is no genuine issue of material fact as to Vidiaki's liability under the lease for Just Breakfast's attorneys fees and costs in successfully defending the summary process action, as claimed in count one, and that Just Breakfast is entitled to judgment as a matter of law.   Just Breakfast contends that the lease unambiguously states that a party obtaining judgment is entitled to attorneys fees from the opposing party, and that Just Breakfast was the party that obtained judgment in the summary process action.   Just Breakfast also argues that it is entitled to attorneys fees for defending Vidiaki's appeal of that judgment because it was a continuation of the summary process action.   Because of the inclusion of appellate fees, Just Breakfast now requests an award of $47,880.54, rather than the $33,943 requested in count one of its complaint.

In response, Vidiaki primarily argues that it is not liable for Just Breakfast's attorneys fees because there was no final judgment in the summary process action as a result of it withdrawing count one while the case was still subject to further proceedings that could affect the parties.³  Alternatively, Vidiaki argues that, for various reasons, it is not liable for all of the attorneys fees that Just Breakfast has requested and, to any extent it is liable, the amount of attorneys fees sought by Just Breakfast is unreasonable.

For the reasons set forth below, the court concludes that Just Breakfast's motion must be granted, but only as to liability, for attorneys fees and costs incurred in its defense of the summary process action, both at the trial court and appellate court.

In Connecticut, a contract term may provide for the recovery of attorneys fees and costs.  Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 326–27, 63 A.3d 896 (2013).   As a preliminary issue, the court must address whether it would be appropriate for it to construe the relevant terms of the parties' lease agreement as a matter of law.  “[T]he interpretation and construction of a written contract present only questions of law, within the province of the court ․ so long as the contract is unambiguous and the intent of the parties can be determined from the agreement's face ․” (Internal quotation marks omitted.)  Gould v. Mellick & Sexton, 263 Conn. 140, 150, 819 A.2d 216 (2003).   Section 20 is the only provision of the lease that is relevant to deciding this motion.   Section 20 states, “In the event that litigation arises concerning matters provided for in this lease, the party obtaining judgment in such case shall be entitled to attorneys fees and allowable costs.”   Neither party claims that this sentence is ambiguous, and the court agrees it is not.   Therefore, the court construes Section 20 as a matter of law, as needed to resolve the present motion.

Section 20 sets forth two conditions that a party must meet before it is entitled to recover attorneys fees and allowable costs from the opposing party.   First, the provision requires that “litigation arises concerning matters provided for in [the] lease,” and second, it requires that “the party obtain[s] judgment in such case.”

As to the first requirement, the court finds that all of the litigation between the parties in the summary process action, in both the Superior Court and Appellate Court, concerned matters provided for in the lease.   Vidiaki claims that certain matters in the parties' litigation did not concern matters provided for in the lease.   For example, Vidiaki claims a substantial part of the summary process action concerned whether General Statutes § 47a–11 applies to commercial (not just residential) leases, and that, to that extent, the summary process action involved interpretation of a statute, not the lease.   That argument is unpersuasive.   In the summary process action, all six counts of Vidiaki's complaint claimed that Just Breakfast should be evicted based on alleged violations of the lease.   Whatever litigation occurred that involved Vidiaki's attempt to evict Just Breakfast clearly concerned the lease, regardless of the strategies in, or the claimed basis for, the litigation.

The much more contentious issue on this motion is whether Just Breakfast has met the second requirement of Section 20 by “obtaining judgment” in the summary process case.   Based on a review of the case law, “obtaining judgment” appears rarely in attorneys fees provisions of contracts in this state.   The parties have cited no Connecticut cases interpreting that phrase and the court knows of none.   The majority of cases, including most of those in the parties' briefs on this motion, involve more common terms like “prevailing party.”   Based on the court's analysis of the law, the history of the summary process action, and the facts in this action which are undisputed, the court finds that Just Breakfast would be considered the “prevailing party” in the summary process action if “prevailing party” is substantially the same as “party obtaining judgment.”   See, e.g., Premier Capital, Inc. v. Grossman, 92 Conn.App. 652, 661, 887 A.2d 887 (2005) (“[t]o be a prevailing party ․ [depends] upon whether at the end of the suit or other proceeding, the party, who has made a claim against the other, has successfully maintained it”);  see also Russell v. Russell, 91 Conn.App. 619, 632, 882 A.2d 98 (“if the prevailing party obtains judgment on even a fraction of the claims advanced ․ the party may nevertheless be regarded as the ‘prevailing party’ ”), cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005).

However, the court interprets contracts by using the plain meaning of their words where, as here, that is possible.  Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000) ( “language used [in a contract] must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied” [internal quotation marks omitted] ).   The plaintiff did obtain judgment in the summary process action and the entire effect of that judgment was upheld on appeal.   Based on the undisputed facts of this case, and giving “obtaining judgment” the literal interpretation it demands, the court reaches the following conclusions as a matter of law.

In the summary process action, Just Breakfast prevailed at the trial court on counts one and six, through dismissal, and by judgment for the defense on counts three and four after trial.   By obtaining that judgment, the plaintiff became entitled under Section 20 of the lease to recover from Vidiaki attorneys fees and costs that Just Breakfast incurred defending the summary process action.

Although Vidiaki withdrew counts two and five before any judgment was rendered, defense of those counts was part of Just Breakfast's successful defense of the summary process action.   Just Breakfast is entitled under the lease to attorneys fees for the defense of those counts.   The parties' agreement, particularly Section 20 of the lease, does not limit the prevailing party to attorneys fees on the particular counts on which it obtained judgment.   To add such a limit would be improper.   See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 506, 746 A.2d 1277 (2000) (court cannot substitute a different contract in place of a valid and enforceable one).   Moreover, from a policy standpoint, such a construction of an attorneys fees contract would avoid the contractual consequences of, and therefore encourage, sloppy, superfluous and even vexatious claims that are withdrawn before judgment.

On appeal, the Appellate Court affirmed the trial court's judgment, except as to count one.   The reversal of the trial court's dismissal of count one of the summary process action did not change the fact that Just Breakfast obtained judgment in its favor in that action.   Section 20 provides that “the party obtaining judgment in such case shall be entitled to attorneys fees ․” Section 20 does not distinguish between degrees of success in litigation or otherwise limit recovery of attorneys fees when a party has obtained a judgment.   After the Appellate Court's remand of count one, Vidiaki withdrew count one because it was moot.   There is no basis for Vidiaki to claim any substantial result countervailing the Just Breakfast judgment in the summary process action.   As for breach, Vidiaki concedes that it has not paid anything to Just Breakfast on account of “attorneys fees and allowable costs” pursuant to the lease.

Vidiaki opposes Just Breakfast's motion for several other reasons which the court has considered and found unpersuasive.   First, Vidiaki claims it is not liable under Section 20 because it withdrew count one after remand and before trial, and therefore no final judgment entered in the summary process action.   This claim—that Vidiaki in this way prevented Just Breakfast from meeting the requirements of Section 20—is completely lacking in merit.   There was a final judgment in favor of Just Breakfast in the summary process action:  there had to be one for the judgment to be appealable.   The court does find “judgment” in Section 20 implicitly, as a matter of law, to mean an enforceable judgment:  if the Appellate Court had reversed the judgment for Just Breakfast on counts three and four and ordered that judgment enter for Vidiaki on those counts, Just Breakfast would not be entitled to attorneys fees and costs under Section 20 because the original trial court judgment would not have become enforceable.   To put this more simply, the plaintiff would not be entitled to attorneys fees and costs under the lease if the judgment in its favor had been reversed.   However, that is not what happened here.   Just Breakfast's judgment in the summary process action was not reversed in any substantial effect.⁴  Vidiaki did not avoid judgment in favor of Just Breakfast by withdrawing count one.⁵  Indeed, by doing so, Vidiaki made Just Breakfast's judgments on counts three, four and, by dismissal, six permanently enforceable.

Vidiaki claims that, for several reasons, it should not be responsible for all the attorneys fees sought by Just Breakfast in the present motion.   Vidiaki first challenges Just Breakfast's claim for attorneys fees for defending Vidiaki's appeal.   Vidiaki contends that Section 20 does not allow Just Breakfast to recover appellate attorneys fees and that, even if Section 20 did allow that, Just Breakfast cannot now claim appellate attorneys fees because its complaint did not plead the incurrence of such fees.   Section 20 does not specifically include attorneys fees for an appeal.   However, our Supreme Court recently held that courts “will construe an attorneys fees provision that is silent with respect to appellate attorneys fees as encompassing such fees in the absence of contractual language to the contrary.”  Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 308 Conn. at 337.   This court, therefore, construes Section 20 to encompass appellate attorneys fees.

Vidiaki's second point regarding appellate attorneys fees—that Just Breakfast has not pleaded them in the count which is the subject of this motion—requires a review of Just Breakfast's complaint.   See Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005) (interpretation of pleadings is always a question of law for the court).   In count one, Just Breakfast pleaded the following allegations relevant to this issue:  “On or about April 16, 2009, [Vidiaki] commenced a lawsuit ․ seeking to evict Just Breakfast ․ [Just Breakfast] defended the said lawsuit, and a judgment was entered in its favor, in entirety, on or about July 28, 2010 ․ [Just Breakfast] incurred attorneys fees and costs defending itself against the said lawsuit in the amount of ․ $33,943.”   In its prayer for relief, Just Breakfast again pleaded damages in the amount of $33,943, as well as “[a]ttorney's fees and costs in the discretion of the court.”   Count one includes no limit to the trial court proceedings in the summary process action, but applies generally to “the said lawsuit.”

The general rule is that “the plaintiff cannot recover for something that was not specifically set out in [its] complaint.”  Sampiere v. Zaretsky, 26 Conn.App. 490, 493, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).   Nevertheless, this rule must be considered in conjunction with the principle that “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Boone v. William W. Backus Hospital, supra, 272 Conn. 559–60.  “[T]he 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.”  (Citation omitted;  internal quotation marks omitted.)   Id., 560.

By liberally interpreting pleadings, our appellate courts have shown, and instruct, a reluctance to deny relief to a plaintiff who seeks something not specifically pleaded in its complaint, as long as the claim remains generally within what is pleaded, and the facts introduced or relief sought do not work a surprise or prejudice to the defendant.   Although the general rule set forth in Sampiere v. Zaretsky, supra, seems to support Vidiaki's claim, the Sampiere analysis actually compels the result sought by Just Breakfast.   In Sampiere, a medical malpractice case, the plaintiff obtained a jury verdict with an award that included damages for future medical expenses.   The court reversed the verdict due to the awarding of future expenses, because the complaint only referred to medical expenses in the past tense—such as, the plaintiff “was forced to incur further medical expense”—and thus the plaintiff was limited to obtaining only past expenses.  (Emphasis in original.)   Sampiere v. Zaretsky, supra, 26 Conn.App. 492–94.   The court determined, however, that the cut-off date for incurred medical expenses was not the date the complaint was filed, but rather the date of the trial.⁶  In the present case, count one of the complaint likewise includes past tense language—that Just Breakfast “incurred attorneys fees and costs defending itself against the said [summary process] lawsuit.”   In accordance with Sampiere, this court construes count one of the complaint to include attorneys fees and costs incurred through the resolution, by settlement if possible and by trial if necessary, of count one.   Those fees and costs will include Just Breakfast's attorneys fees and costs for defending Vidiaki's appeal, which will all have been incurred before damages under count one are proven or settled.⁷

This determination is supported by numerous cases.   In Markey v. Santangelo, 195 Conn. 76, 485 A.2d 1305 (1985), the court concluded that the plaintiff was entitled to recover punitive damages, even though his complaint did not explicitly request them.   The Supreme Court stated that “the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought”;  id., 77;  but held that it was enough that the facts alleged in the complaint supported a claim of punitive damages and the defendant was on notice at the trial that the plaintiff intended to request punitive damages.

In A.V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn.App. 163, 167, 623 A.2d 1048 (1993), the court noted that, under our liberal rules of pleading, to deny relief on the basis of a variance between the pleadings and the proof, “the variance must be material in a way that is essential to the cause of action claimed.”  “A variance is material if the defendant was prejudiced in maintaining a defense, surprised by the plaintiff's proof or misled by the allegations in the complaint.”  Id. A variance is not material where “it does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in a position to know the true state of the facts.”  Id., 168.   Furthermore, “[j]ustice is not served by accepting a claim of variance ․ from a party who at all times has been in a position of knowing the true state of facts ․ [S]light linquistic ambiguity does not serve to nullify a cause of action which is sufficiently raised to notify the defendant of its existence.”  (Citation omitted;  internal quotation marks omitted.)  Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 433–34, 534 A.2d 213 (1987).   In determining the relief to which a plaintiff is entitled under his complaint, “the allegations of the complaint, coupled with the plaintiff's characterization of the complaint in his memoranda to the trial court along with the accompanying materials, [can] put the defendant on notice” of what the plaintiff is claiming.  Boone v. William W. Backus Hospital, supra, 272 Conn. 561.   A defendant, then, cannot claim prejudice or surprise where the plaintiff's memoranda make clear how its complaint should be interpreted, when such interpretation is reasonable.   See id.

The primary purpose of a complaint is to put the court and the defendant on notice of the claims and relief the plaintiff intends to pursue.   Construed broadly, count one applies to all the attorneys fees and costs incurred defending the summary process action, including the appeal in that case after the filing of the present suit.   The appellate fees and costs claim is within the breach of contract alleged in count one.   Vidiaki knew its appeal would proceed when the present suit was begun.   Vidiaki knew that Just Breakfast would, and did, incur appellate attorneys fees and costs.   Vidiaki knew or should have known from the beginning of its appeal of the judgment in the summary process action that Just Breakfast would seek its attorneys fees and costs for defending the appeal.   Vidiaki knew at least from Just Breakfast's motion, memoranda and exhibits in the present case that Just Breakfast sought appellate attorneys fees and costs under count one.   Allowing recovery of such fees and costs would work no surprise or prejudice to Vidiaki.⁸  The court concludes that count one of the complaint is sufficient to include appellate attorneys fees and costs, despite the absence of specific mention of that claim and the omission of future attorneys fees from the amount claimed at the time the present suit was filed.

Vidiaki's next argument is that, in order to obtain attorneys fees incurred on appeal, Just Breakfast needed to make a timely motion under Practice Book § 11–21 to recover those fees.   The part of Practice Book § 11–21 on which this claim is based is as follows:  “If appellate attorneys fees are sought, motions for such fees shall be filed with the trial court within thirty days following the date on which the appellate court ․ rendered its decision ․” ⁹ Earlier in this case, in ruling on Vidiaki's motion for summary judgment, Judge Martin noted the absence of appellate authority on this issue and held that § 11–21 does not mandate that contractual claims for attorneys fees be recovered through a postjudgment motion.   Just Breakfast & Things!!!, LLC v. Vidiaki, LLC, Superior Court, judicial district of New London, Docket No. CV 10 5014092 (January 31, 2013, Martin, J.).   This court concurs with Judge Martin.   Specifically, the court finds that, while a motion pursuant to § 11–21 may be employed to recover attorneys fees pursuant to a contract, such a motion is not the only way to recover such fees:  § 11–21 does not preclude a separate action based on breach of the contract.   This determination is consistent with the first word of § 11–21, with the last sentence of the rule, and with the commentary published when § 11–21 was first adopted.¹⁰  The first word of § 11–21 is “Motions.”  Section 11–21 does not concern lawsuits for breach of contract.   The last sentence of § 11–21 excepts awards of attorneys fees assessed as a component of damages.   The plaintiff in this case seeks a judgment for breach of contract in which such fees will be a component of the damages.   The commentary to § 11–21 states:  “This new rule ․ is aimed principally at statutory attorneys fees but, where appropriate, may be applied in situations where attorneys fees are founded upon an enforceable provision in a contract.”  Practice Book, 1999, § 11–21, commentary.   “[W]here appropriate” suggests that, with the possible exception of a motion for contractual attorneys fees that is not filed within the time provided by § 11–21, the application of the rule to contractual attorneys fee claims is left to the sound discretion of the trial court.   It is eminently reasonable, given the six-year statute of limitations on written contract claims, for the Practice Book not to force avoidable litigation but to let parties to a contract work out claims for attorneys fees under the contract, if possible.   The court does not find it appropriate to apply § 11–21 to count one of Just Breakfast's complaint.¹¹

Next, Vidiaki claims that it would be “punitive” to require Vidiaki to pay any of Just Breakfast's attorneys fees in litigating the applicability of General Statutes § 47a–11 to the summary process action because that was an issue of first impression.   This claim is rejected.   In essence, Vidiaki is asking the court to relieve Vidiaki of its contractual obligations based on the unforeseen complexity—and outcome—of litigation initiated by Vidiaki.   That the court will not do.   See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 505–06 (courts do not unmake bargains unwisely made).   Section 20 of the lease has no exceptions and Vidiaki provides no law supporting its argument.   Every lawsuit presents—or can be claimed to present—factual and legal nuances that differentiate it from all other cases.   To accept Vidiaki's argument would be to fail to enforce the contract between the parties, to be unfair to Just Breakfast, and to create a precedent encouraging unnecessary and oppressive litigation both to create novel issues and to litigate applicability of an exception for such issues in attorneys fee agreements.

Vidiaki's other arguments, such as that Just Breakfast's claim includes legal fees for representation of Just Breakfast's owner, Mary Thompson, who was not a party to the lease, concern the amount of damages and costs and are left to the trial court.

For the foregoing reasons, the court finds as a matter of law that Vidiaki has breached Section 20 of the lease by not paying attorneys fees, or any costs, to Just Breakfast for the judgment it obtained in the summary process action.   Just Breakfast is entitled to attorneys fees and costs it incurred in defending the summary process action and Vidiaki's appeal.   However, there remains a material issue of fact as to the appropriate amount of attorneys fees and costs owed to Just Breakfast.   The court concludes that the plaintiff has met its burden of showing that there is no genuine issue of material fact as to Vidiaki's breach of Section 20 of the lease, and that Just Breakfast is entitled to judgment as a matter of law as to liability for attorneys fees and allowable costs of the summary process action under count one of the complaint in this case.¹²  The court interprets Section 20 to include a limit, implied by law, to “attorneys fees and allowable costs” which are reasonable under all the circumstances.   See Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245–46, 440 A.2d 306 (1982) (where an attorneys fee provision is silent as to reasonableness, a requirement of reasonableness is implied);  see also Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn.App. 468, 480, 531 A.2d 177 (1987) (same).

Summary judgment as to damages—the amount owed pursuant to Section 20 of the lease—cannot be ordered because the amount of reasonable attorneys fees and “allowable costs” under all the circumstances is disputed and cannot be found as a matter of law.   At trial, reasonable attorneys fees may be the $47,880.54 claimed by Just Breakfast at the time of oral argument, but they may be less or more than that amount.  “Allowable costs” are not limited to costs recoverable under Connecticut law as a matter of course because, if they were so limited, Vidiaki's agreement to pay such costs would be meaningless.

In accordance with the foregoing, Just Breakfast's partial motion for summary judgment is granted as to liability only.

Cole–Chu, J.

FOOTNOTES

FN1. Mary Thompson, owner of Just Breakfast, is also a plaintiff as to counts three and five of the complaint..  FN1. Mary Thompson, owner of Just Breakfast, is also a plaintiff as to counts three and five of the complaint.

FN2. The specific allegations of each count in the summary process action are not relevant to the present motion..  FN2. The specific allegations of each count in the summary process action are not relevant to the present motion.

FN3. In its objection to this motion, Vidiaki claims that it withdrew its complaint on remand in the summary process action because “trial as to the first count would be as to grounds for a pre-term termination of the lease, but by then the parties were past the lease term, [which ended] June 30, 2009 ․ Such claims were mooted by the passage of time ․” This is a curious rationale considering that Vidiaki is essentially stating that count one of its complaint was moot as of June 30, 2009, which would mean that, as to count one, Vidiaki was asking the Appellate Court to review a claim over which that court lacked subject matter jurisdiction.   Vidiaki's claim of mootness of count one indicates that Vidiaki anticipated that, but for its withdrawal, Just Breakfast would obtain judgment on that count..  FN3. In its objection to this motion, Vidiaki claims that it withdrew its complaint on remand in the summary process action because “trial as to the first count would be as to grounds for a pre-term termination of the lease, but by then the parties were past the lease term, [which ended] June 30, 2009 ․ Such claims were mooted by the passage of time ․” This is a curious rationale considering that Vidiaki is essentially stating that count one of its complaint was moot as of June 30, 2009, which would mean that, as to count one, Vidiaki was asking the Appellate Court to review a claim over which that court lacked subject matter jurisdiction.   Vidiaki's claim of mootness of count one indicates that Vidiaki anticipated that, but for its withdrawal, Just Breakfast would obtain judgment on that count.

FN4. Vidiaki admits that count one, which was revived and remanded, was moot.   See footnote 3..  FN4. Vidiaki admits that count one, which was revived and remanded, was moot.   See footnote 3.

FN5. In any event, Vidiaki's withdrawal had the procedural effect of a final judgment.  “Withdrawals are analogous to final judgments.   The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by [General Statutes] § 52–80, is absolute and unconditional ․ [T]he effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.”  (Internal quotation marks omitted.)  Sicaras v. Hartford, 44 Conn.App. 771, 775–76, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997);  see also Tyler E. Lyman, Inc. v. Lodrini, 78 Conn.App. 582, 586 n.3, 828 A.2d 676 (2003) (noting that Practice Book § 11–21 requires that a party obtain a “final judgment of the trial court” before being eligible for attorneys fees but a withdrawal is the equivalent of a final judgment)..  FN5. In any event, Vidiaki's withdrawal had the procedural effect of a final judgment.  “Withdrawals are analogous to final judgments.   The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by [General Statutes] § 52–80, is absolute and unconditional ․ [T]he effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.”  (Internal quotation marks omitted.)  Sicaras v. Hartford, 44 Conn.App. 771, 775–76, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997);  see also Tyler E. Lyman, Inc. v. Lodrini, 78 Conn.App. 582, 586 n.3, 828 A.2d 676 (2003) (noting that Practice Book § 11–21 requires that a party obtain a “final judgment of the trial court” before being eligible for attorneys fees but a withdrawal is the equivalent of a final judgment).

FN6. Sampiere v. Zaretsky, supra, 26 Conn.App. 490, does suggest some inconsistencies in defining the appropriate cut-off date for a claim of past expenses.   The court first stated that expenses alleged in the past tense “[encompass] medical expenses incurred only to the date of the complaint”;  id., 495;  then the court stated that by alleging expenses in the past tense “the plaintiff explicitly limited her right of recovery to those expenses incurred prior to trial”;  id., 496;  and then the court stated that “at most, the complaint alleges that the plaintiff has been forced to incur additional medical expenses to date”—with “to date” presumably meaning the date of the appellate decision;  id., 496.   In Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 547 n.14, 754 A.2d 810 (2000), the only case that has addressed this aspect of Sampiere, the Appellate Court clarified that Sampiere 's second statement—trial being the appropriate cut-off date for past expenses alleged in a complaint—is the law..  FN6. Sampiere v. Zaretsky, supra, 26 Conn.App. 490, does suggest some inconsistencies in defining the appropriate cut-off date for a claim of past expenses.   The court first stated that expenses alleged in the past tense “[encompass] medical expenses incurred only to the date of the complaint”;  id., 495;  then the court stated that by alleging expenses in the past tense “the plaintiff explicitly limited her right of recovery to those expenses incurred prior to trial”;  id., 496;  and then the court stated that “at most, the complaint alleges that the plaintiff has been forced to incur additional medical expenses to date”—with “to date” presumably meaning the date of the appellate decision;  id., 496.   In Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 547 n.14, 754 A.2d 810 (2000), the only case that has addressed this aspect of Sampiere, the Appellate Court clarified that Sampiere 's second statement—trial being the appropriate cut-off date for past expenses alleged in a complaint—is the law.

FN7. Like the summary process action, count one of the complaint in this case clearly concerns “matters provided for in this lease.”   See Section 20 of the lease.   Also, paragraph four of the prayer for relief in this case requests “[a]ttorney's fees incurred in bringing the present action to collect the aforesaid amount, pursuant to Section 20 of the [lease].”   Assuming Just Breakfast obtains judgment on count one, it appears clearly entitled to recover attorneys fees and costs of this lawsuit.   However, since neither count one in this case nor the plaintiff's motion for summary judgment explicitly seeks attorneys fees and costs for bringing and prosecuting count one in this case, this decision does not include liability for them..  FN7. Like the summary process action, count one of the complaint in this case clearly concerns “matters provided for in this lease.”   See Section 20 of the lease.   Also, paragraph four of the prayer for relief in this case requests “[a]ttorney's fees incurred in bringing the present action to collect the aforesaid amount, pursuant to Section 20 of the [lease].”   Assuming Just Breakfast obtains judgment on count one, it appears clearly entitled to recover attorneys fees and costs of this lawsuit.   However, since neither count one in this case nor the plaintiff's motion for summary judgment explicitly seeks attorneys fees and costs for bringing and prosecuting count one in this case, this decision does not include liability for them.

FN8. In support of its argument for denying the recovery of appellate attorneys fees that were not specifically pleaded, Vidiaki relies on Pike v. Bugbee, 115 Conn.App. 820, 827–28, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009).  Pike, however, is distinguishable from the present case.   In Pike, the plaintiff failed to plead the minority status of the defendants' son, which was a necessary prerequisite for recovery from the defendant parents, and such minority status of the son could not be inferred.   Here, on the other hand, Just Breakfast seeks generally the attorneys fees and costs expended “defending itself against the said [summary process] lawsuit,” which can be reasonably inferred to include the appellant expenses..  FN8. In support of its argument for denying the recovery of appellate attorneys fees that were not specifically pleaded, Vidiaki relies on Pike v. Bugbee, 115 Conn.App. 820, 827–28, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009).  Pike, however, is distinguishable from the present case.   In Pike, the plaintiff failed to plead the minority status of the defendants' son, which was a necessary prerequisite for recovery from the defendant parents, and such minority status of the son could not be inferred.   Here, on the other hand, Just Breakfast seeks generally the attorneys fees and costs expended “defending itself against the said [summary process] lawsuit,” which can be reasonably inferred to include the appellant expenses.

FN9. Practice Book § 11–21, in full, provides:  “Motions for attorneys fees shall be filed with the trial court within thirty days following the date on which the final judgment of the trial court was rendered.   If appellate attorneys fees are sought, motions for such fees shall be filed with the trial court within thirty days following the date on which the appellate court or supreme court rendered its decision disposing of the underlying appeal.   Nothing in this section shall be deemed to affect an award of attorneys fees assessed as a component of damages.”.  FN9. Practice Book § 11–21, in full, provides:  “Motions for attorneys fees shall be filed with the trial court within thirty days following the date on which the final judgment of the trial court was rendered.   If appellate attorneys fees are sought, motions for such fees shall be filed with the trial court within thirty days following the date on which the appellate court or supreme court rendered its decision disposing of the underlying appeal.   Nothing in this section shall be deemed to affect an award of attorneys fees assessed as a component of damages.”

FN10. See Practice Book, 1999, § 11–21, commentary.   Commentaries to Practice Book rules generally appear only in the edition in which a newly-adopted rule is first published or when a rule is amended, but, unless explicitly modified, they remain valid references.   As explained in the “Explanatory Notes” to the 1999 Practice Book in which the § 11–21 commentary appeared, commentaries are not adopted by the Rules Committee when it adopts a rule change.   They “were prepared by the drafters of proposed amendments to the rules and are included in this volume for informational purposes only.”   To the extent § 11–21 is ambiguous as to its application to claims for attorneys fees pursuant to a contract, it is appropriate to consider the commentary.   See Yale University v. Blumenthal, 225 Conn. 32, 43, 621 A.2d 1304 (1993) (Berdon, J., dissenting) (if the language of a rule is ambiguous, the court may resolve the ambiguity through reference to the commentary)..  FN10. See Practice Book, 1999, § 11–21, commentary.   Commentaries to Practice Book rules generally appear only in the edition in which a newly-adopted rule is first published or when a rule is amended, but, unless explicitly modified, they remain valid references.   As explained in the “Explanatory Notes” to the 1999 Practice Book in which the § 11–21 commentary appeared, commentaries are not adopted by the Rules Committee when it adopts a rule change.   They “were prepared by the drafters of proposed amendments to the rules and are included in this volume for informational purposes only.”   To the extent § 11–21 is ambiguous as to its application to claims for attorneys fees pursuant to a contract, it is appropriate to consider the commentary.   See Yale University v. Blumenthal, 225 Conn. 32, 43, 621 A.2d 1304 (1993) (Berdon, J., dissenting) (if the language of a rule is ambiguous, the court may resolve the ambiguity through reference to the commentary).

FN11. Even if Practice Book § 11–21 applied to the subject count one, and the plaintiff's claim had to be filed “within thirty days following the date on which the final judgment of the trial court was rendered,” count one would comply with § 11–21 because it was filed before the final judgment of the trial court—following Just Breakfast's success on appeal.   See Figueroa v. FAH Redstone Ltd. Partnership, Superior Court, judicial district of New Britain, Docket No. CVN07022096 (November 29, 2007, Peck, J.) (44 Conn. L. Rptr. 639) (court will not exalt form over substance;  treats lawsuit for attorneys fees filed within § 11–21 time limit as complying with § 11–21)..  FN11. Even if Practice Book § 11–21 applied to the subject count one, and the plaintiff's claim had to be filed “within thirty days following the date on which the final judgment of the trial court was rendered,” count one would comply with § 11–21 because it was filed before the final judgment of the trial court—following Just Breakfast's success on appeal.   See Figueroa v. FAH Redstone Ltd. Partnership, Superior Court, judicial district of New Britain, Docket No. CVN07022096 (November 29, 2007, Peck, J.) (44 Conn. L. Rptr. 639) (court will not exalt form over substance;  treats lawsuit for attorneys fees filed within § 11–21 time limit as complying with § 11–21).

FN12. “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages ․” Practice Book § 17–50..  FN12. “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages ․” Practice Book § 17–50.

Cole–Chu, Leeland J., J.