Opinion
HHBCV186041843
03-27-2019
West Farms Condominium Association No. 1, Inc. v. Roxanne L. Amaio et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Aurigemma, Julia L., J.
MEMORANDUM OF DECISION ON MOTION FOR ATTORNEYS FEES
Aurigemma, J.
The defendant, Roxanne L. Amaio ("Amaio"), has moved for attorneys fees after the plaintiff withdrew this action with permission of the court and without objection by the defendant Amaio. For the reasons set forth below the motion for attorneys fees is denied.
Factual and Procedural Background
The plaintiff, West Farms Condominium Association No. 1, Inc. (the "Association"), commenced this action to foreclose on a lien it had against a condominium unit owned by Amaio which she rented to third parties. The Association is a common interest ownership community created pursuant to the Common Interest Ownership Act, Connecticut General Statutes § § 47-200 et seq.
The action was filed on January 11, 2018. The defendant, Amaio, filed an answer, special defense and counterclaim on April 4, 2018. All the special defenses were stricken by the court, Shortall, J., and the summary judgment entered on the counterclaim in favor of the plaintiff.
The hearing in damages started on December 13, 2018. After about one and one half hours of testimony the court had to recess the hearing to hear another matter. The hearing was continued until January 8, 2019. Prior to recessing the court suggested that the plaintiff research the issue of whether remediation amounts occasioned by water damage to Amaio’s unit not caused by Amaio could be offset against condominium fees or charges.
After the hearing in damages recessed on December 13, 2018, the parties stayed in the courthouse and met with Judge Morgan in an attempt to settle the case. Thereafter counsel again met with Judge Morgan on January 3, 2019. The case did not settle at that time.
The plaintiff’s counsel has filed an affidavit in which he has averred that he advised the plaintiff to withdraw the case before a continuation of the hearing because the plaintiff still had a lien on Amaio’s unit and could recommence the action at a future date if the case did not settle. The plaintiff filed a motion for permission to withdraw the action on January 5, 2019. Prior to a ruling by the court the plaintiff’s attorney asked Amaio’s attorney whether he objected to the withdrawal. Attorney Purtill, who represents Ms. Amaio, e-mailed Attorney Ryan, who represents the Association, that he would not object as long as his client did not have to drive from Maine to Connecticut for the continued hearing. Attorney Ryan’s affidavit further states he did not know that the defendant Amaio was seeking attorneys fees when he filed his motion to withdraw the action and that such knowledge would have affected his decision to withdraw the action. Attorney Purtill has not filed any affidavit explaining how his defense of the action caused the withdrawal.
Discussion of the Law and Ruling
Amaio claims that she is the prevailing party under Connecticut General Statutes § 42-150bb based on the recent case of Connecticut Housing Finance Authority v. Alfaro, 328 Conn. 134, 176 A.3d 1146 (2018).
Connecticut General Statutes § 42-150bb provides in pertinent part:
Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorneys fee of the commercial party to be paid by the consumer, an attorneys fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease ... For the purposes of this section, "commercial party" means the seller, creditor, lessor or assignee of any of them, and "consumer" means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes .
Emphasis added.
The court in Alfaro considered a case where the plaintiff, a commercial lender, was foreclosing a mortgage on the defendant’s residential property. The defendant was a "consumer" within the meaning of § 42-150bb and the plaintiff was a "commercial party" within the meaning of that statute. The defendant raised defenses that the plaintiff lacked standing to prosecute the action. After the case had been pending for a year, the plaintiff withdrew the case as of right pursuant to Connecticut General Statutes § 52-80. The defendant then sought an award of attorneys fees as the prevailing party under § 42-150bb. The trial court denied the motion, finding that the plaintiff’s withdrawal of the action as of right did not mean that the defendant had "successfully defended" the action. The trial court reasoned further that, "[i]f the defendant’s claim were accepted, lenders would be unreasonably exposed to claims for attorneys fees every time a lender withdrew a foreclosure action." Alfaro, supra, 328 Conn. at 139. The defendant appealed, and the Appellate Court affirmed the trial court, concluding that "because the plaintiff’s withdrawal of the action could have been for any reason, and there was not evidence offered to prove that withdrawal resulted from the special defenses, the defendant had failed to meet his evidentiary burden of establishing an entitlement to attorneys fees." Id.
The court in Alfaro did not specifically address whether the defendant was a "consumer" and the plaintiff was a "commercial party" within the meaning of Connecticut General Statutes § 42-150bb.
The Supreme Court in Alfaro reviewed the legislative history of § 42-150bb, and concluded that the purpose of the statute was to ameliorate the inequitable situation where a commercial party drafts a contract which contains a provision which entitles the commercial party to recover legal fees, but does not permit the consumer to recover any legal fees.
The defendant inaccurately describes the holding of Alfaro as follows:
This recent case from the Supreme Court provides that in a foreclosure action that is defended and ultimately withdrawn, the defendant is considered to have successfully defended and is thus the "prevailing party" when the plaintiff withdraws the case.
Defendant’s Motion for Counsel Fees, dated February 1, 2019, but filed February 25, 2019, p. 3.
The court in Alfaro ’s actual holding was:
[O]nce a defendant moves for an award of attorneys fees pursuant to § 42-150bb after a termination of proceedings that in some way favors the defendant, there exists a rebuttable presumption that the defendant is entitled to such fees unless the plaintiff can show, by a preponderance of the evidence, that the withdrawal occurred because of some reason other than the actions taken by the defendant’s counsel. The plaintiff can show its reasons for withdrawing the action through affidavits, and it is for the trial court to determine whether an award of attorneys fees is proper in light of the totality of the circumstances. The trial court, after reviewing the affidavits, may wish to conduct a hearing to resolve any questions created; however, the trial court is not required to do so.Alfaro, supra, at 153.
The plaintiff argues that the defendant is not a "consumer" within the meaning of the statute in that she was using the condominium unit in question as a rental property at the time of the water loss for which the plaintiff seeks recovery. The court agrees.
The plaintiff also argues that the plaintiff Association is not a commercial entity within the meaning of § 42-150bb. The Association is made up of all of the unit owners, including the defendant Amaio. It is not a for-profit entity like the plaintiff in Alfaro . Moreover, unlike a consumer signing a commercial form contract, the defendant Amaio was not forced to agree to the rules of the Association. She did so voluntarily when she purchased her condominium unit(s).
The plaintiff and defendant do not come within the meaning of consumer and commercial entity under § 42-150bb. Even if they did, the defendant would not be entitled to attorneys fees. The court finds that the plaintiff did not withdraw the lawsuit due to the defenses of Amaio. Unlike the plaintiff in Alfaro, the plaintiff here did not unilaterally withdraw this action. After lengthy settlement discussions with the court and with advance notice to the defendant, the plaintiff filed a motion to withdraw to which the defendant did not object. The court further finds that based on the totality of circumstances the defendant Amaio is not entitled to recover attorneys fees.