Opinion
No. CV 04 4100844S
August 1, 2006
MEMORANDUM OF DECISION RE ATTORNEYS FEES FOR PREVAILING PARTY
On December 1, 2005, the parties appeared for trial to resolve issues concerning a fifteen-year commercial lease executed between Shamrock Ridge, LLC, the lessor (plaintiff), and the lessees (defendants), Heidi Blaisdell/Blaisdell Photography. The defendant entered into the lease agreement to rent space from the plaintiff for a photography studio at 100 Main Street in Norwich, Connecticut. This court found that the fifteen-year lease was valid and existed upon good and sufficient authority. Thereafter, this court received post-trial briefs and on April 3, 2006, heard oral argument from the parties concerning whether the defendant is entitled to, inter alia, attorneys fees pursuant to paragraph 18 of the leasing agreement at issue.
"The general rule of law known as the `American rule' is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . This rule is generally followed throughout the country . . . Connecticut adheres to the American rule . . . There are few exceptions. For example, where a specific contractual term provides for the recovery of attorneys fees and costs . . . or where a statute controls." (Citations omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 311, 685 A.2d 305 (1996).
In the present case, the lease provides in relevant part: "Attorney's Fees. In case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorneys fee." The plaintiff argues that the instant action does not "involve recovery of the premises, was not for any sum due thereunder, nor was it because of any act which may arise out of the possession of the premises." The plaintiff submits that the lease provisions list acts which arise out of the possession of the premises. These include: (1) care and maintenance; (2) alterations; 3) ordinances and statutes; (4) assignment and subletting; (5) utilities; and (6) entry and inspection; and other similar provisions. The plaintiff further asserts that the lease provision concerning attorneys fees does not permit a fee award where a party seeks a declaratory judgment as to the validity of the lease.
The defendant counters that attorneys fees are allowed in declaratory judgment actions. Morever, the defendant argues that in the present action the plaintiff has brought claims that fall within the purview of the attorneys fee provision of the lease. The defendant notes that, pursuant to paragraph 18 of the lease, attorneys fees may be awarded in three types of actions: (1) a suit brought for recovery of premises; (2) a suit brought for any sum due hereunder; and (3) a suit brought because of any act which arises out of the possession of the premises. The defendants contend that the present action was brought to recover the premises, and that if the plaintiff's prayers for relief had been granted — such as, determining that the lease was void and unenforceable, or that the parties had a month to month tenancy, or reformation of the lease to provide for a two-year term — the plaintiff "could [have] filed a notice to quit to terminate the . . . lease," and "to put out the defendants for lapse of time," regardless of any payment of rent. Furthermore, the defendant contends that the plaintiff's prayer for relief requesting "reasonable market rental value of the subject premises retroactive to the time such reformation is effective," was in essence a claim to obtain "any sum due hereunder." The plaintiff was seeking an additional monthly rental amount from the defendant. The defendant argues, therefore, that the present action is brought by the plaintiff because the defendant took possession, continued in possession and in the future would possess the premises.
The plaintiff's underlying action predominately sought a declaratory judgment as to the validity and enforceability of the lease. The plaintiff argues that because a declaratory judgment was sought, no attorneys fees may be awarded. See, e.g., West Haven Bank Trust Co. v. McCoy, 117 Conn. 489, 169 A. 49 (1933) (in a declaratory judgment action to determine the validity of a will, the court disallowed attorneys fees). In the present case, however, a contractual right has been implicated in the context of a declaratory judgment action. Attorneys fees may be awarded in such circumstances. See Allerand, LLC v. 233 East 18th Street Co., LLC, 19 A.D.3d 275, 798 N.Y.S.2d 399 (2005) (where the New York Appellate Court held, inter alia, that an action for declaratory relief does not render a lease provision concerning attorneys fees inapplicable.) "A contract may provide for the payment of attorneys fees by a defaulting party, but those fees are recoverable solely as a contract right not as damages." Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978). "When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language." (Internal quotation marks omitted.) Water Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 667, 646 A.2d 143 (1994). "If the language is ambiguous, the construction which favors the lessee should be adopted." Perruccio v. Allen, 156 Conn. 282, 285, 240 A.2d 912 (1968).
No Connecticut case contains similar facts as the present case, however, a sister state Supreme Court has addressed a lease provision regarding attorneys fees with virtually identical language as the lease provision in the present case. In Markum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001), the Arkansas Supreme Court, in a case involving a landlord/tenant dispute concerning the enforcement of lease provisions, addressed whether a provision in the lease allowed the prevailing party an award of attorneys fees. The court stated "that where the parties entered into a written contract that specifically provides for the payment of attorneys fees incurred in the enforcement of the contract, the agreement is enforceable according to its terms . . ." Id., 164. The language of the lease provision at issue stated: "Attorneys Fees: In the case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorneys fee." Id., 165. Reviewing this language, the court found that, "[c]learly, this language is very broad, and provides that the prevailing party would recover reasonable attorneys fees and costs. Furthermore, this lease term does not limit the recovery of attorneys fees to a contract matter alone, but provides instead for recovery for any action arising from the lease or from the occupation or control of the premises." (Emphasis added.) Id.
In the underlying decision in the present case; Shamrock Ridge, LLC v. Blaisdell, Superior Court, judicial district of New London, Docket No. CV 04 4100844 (December 7, 2005, Jones, J.) ( 40 Conn. L. Rptr. 451); wherein it was held that the lease agreement was enforceable and binding upon both the plaintiff and the defendant, this court found that the plaintiff "was aware of the subject lease, and that having such knowledge it thereafter entered into a contract to sell the property at 100 Main Street, Norwich to an entity known as 100 Main Street Associates, LLC. Related to the sales contract is an agreement between [the plaintiff], the seller, and 100 Main Street Associates, LLC, the buyer, that [the plaintiff] [would] assist 100 Main Street Associates in its efforts to displace the first floor tenant. The agreement reflects that the seller and buyer question the legitimacy of the defendant's lease." (Emphasis added.) Id., 452.
In considering these findings of fact, the underlying cause of action brought by the plaintiff was designed to displace the defendant from occupation and control of the premises.
The defendant points out that in its prayer for relief of the Amended Complaint the plaintiff seeks in addition to declaratory relief, the "[r]eformation of the lease to provide for money damages in accordance with the reasonable market value of the subject premises retroactive to the time such reformation is effective;" and "money damages." The defendant thus argues that this litigation fits the definition of the lease provision that directs attorneys fees to the prevailing party in an lawsuit brought for "any sum due hereunder."
The defendant also predicates her claim for attorneys fees on a violation of the Connecticut Unfair Trade Practices Act (CUTPA), Section 42-110a. The court does not find that the defendant has proved a violation of CUTPA.
Conclusion
This court finds that since this case arises from a dispute over the right and terms of "possession," this litigation "arises out of the possession of the premises," and also that it was brought to obtain "any sum due" under the lease, as these phases are used in paragraph 18 of the lease. Accordingly, the court finds that this litigation fits the definitions in paragraph 18 which entitle the defendant, as the prevailing party, to an award of attorneys fees. The defendant has submitted an attorneys fee affidavit for the present case, and also separate attorneys fee affidavit for two other cases. The court finds that the defendant has proved an entitlement to attorneys fees only for this case.
The defendant's attorneys fee affidavit, dated March 1, 2006, for this case attests to fees in the amount of $11,472.50. To this amount the court finds an additional 20 hours as a reasonable amount of time for the preparation of the defendant's brief, dated March 31, 2006, and for the appearance of her counsel for the argument on the attorneys fee issue on April 3, 2006. The court also finds the defendant's counsel's rate of $215.00 per hour to be reasonable.
Accordingly, the court awards to defendant Heidi Blaisdell $15,772.50 as attorneys fees for this litigation.