Opinion
No. CV 04-0351486
December 16, 2005
MEMORANDUM OF DECISION
I
After trial of this matter, the court concludes that there was no evidence that defendant Dean Vlahos ("Vlahos") acted in an individual as opposed to a corporate capacity in the transactions in issue or is otherwise liable to the plaintiff. Therefore, the court enters judgment in his favor on the complaint.
Vlahos cites no authority in his brief for his request for attorneys fees and sanctions. At and after trial, Vlahos has represented himself.
The remaining defendant, Call Center Technologies, Inc. ("CCT" or "the defendant"), initially attacks the complaint because it names "Roy Young d/b/a Silvermine Investors, LLC" as the plaintiff; in contrast to the lease, which identifies the lessor as simply "Silvermine Investors LLC." CCT, however, admitted in its answer to paragraph three of the complaint that the plaintiff, which paragraph three again identifies as "Roy Young d/b/a Silvermine Investors, LLC," was the lessor. While the plaintiff's use of the phase "Roy Young d/b/a" seems to be a poor and superfluous choice of words, it did not confuse the defendant and does not rise to the level of a matter of standing. At most, this matter is a "circumstantial [defect]" that should not derail the plaintiff's entire lawsuit. See General Statutes § 52-123 ("Circumstantial defects not to abate pleadings.") Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414-15 (2005).
As discussed, infra, however, the court will not require the defendant to pay attorneys fees incurred by the plaintiff in drafting the complaint.
Substantively, the claims in the complaint are governed by Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn.App. 384, 388-90, 558 A.2d 265 (1989), which held that, even after obtaining possession of the premises in a summary judgment action, a landlord is entitled to posteviction damages for breach of the lease under basic contract principles. Contrary to the defendant's argument, there is no evidence in this case of any use and occupancy rate set by the court in the summary process case or of any payment by the defendant of use and occupancy fees. Therefore, any use and occupancy rate does not form a baseline for the defendant's liability or a setoff in this case.
As the court ruled at trial, the gravamen of the complaint alleges the defendant's liability for "additional rent." Section four of the lease, and especially its last paragraph, identifies water and sewer charges as "additional rent." Accordingly, the defendant is liable for the $10,459.81 in proven charges for water usage, sewer usage, and sewer assessments.
The lease does not identify natural gas charges as "additional rent," but rather, in paragraph nineteen, states only that the lessee shall pay for its own gas and other utilities. Although it is understandable that the plaintiff chose to insure that the rented space remain heated when the defendant failed to pay for the necessary gas heat, neither the lease nor the complaint makes it clear that the defendant is liable for the gas bills under these circumstances. Therefore, the court declines to award damages for the gas charges.
The final item in dispute is attorneys fees. Section thirty-one of the lease provides for reimbursement of the plaintiff's reasonable attorneys fees and disbursements in the case of defendant's default under the lease and paragraph twelve of the complaint clearly alleges liability for attorneys fees. The plaintiff has submitted attorneys fees bills for $29,575.00 related to the summary process action, $14,425.00 related to the present action, and $1,786.78 in costs.
The defendant challenges the first of these bills as based on excessive hourly rates of $350 per hour. There was no evidence presented at trial on the reasonableness of this rate and the court is not personally familiar with the summary process action. However, from a review of the Appellate Court's decision in Silvermine Investors v. Call Center Technologies, Inc., 81 Conn.App. 701, 841 A.2d 695 (2004), affirming the summary process decision, and from the court's own experience with the lease, which was drafted by the attorney who litigated the case, the court concludes that a lack of clarity in the lease contributed to some of the litigation here. See, e.g., id., 708 ("The amendment [to the lease] was silent as to a charge for the common fee.") Accordingly, the court will reduce the defendant's liability for the initial bill by 20% to a total of $23,660.
The second bill for $14,425 relates to the current litigation. The court will not charge the defendant for the attorneys fees of $525 incurred in the drafting of the complaint, which has been the source of innumerable problems in this case, or the fees totaling $1,567.50 incurred in the drafting and revision of the special defenses to the counterclaims, which only tardily focused on the critical special defense of collateral estoppel. Deducting these amounts leaves a total of $12,332.50. The court will not charge the defendant for the other costs incurred in the summary process case, since these are not alleged in the instant complaint. Accordingly, the defendant is liable for a total of $35,992.50 in attorneys fees. When added to the water and sewer charges, the plaintiff's proven damages amount to $46,452.31.
II
The remaining issues concern the counterclaims and special defenses filed by the defendants. The counterclaims seek relief only on behalf of "Defendant CCT," "Defendant Lessee, CCT" or "Defendant" in the singular. These allegations stand in contrast to other allegations in the answer on behalf of "Defendant Dean Vlahos" or to the phrase "Lessee's president Dean Vlahos" in count two of the counterclaims. (August 11, 2005 Answer of "Defendant Call Center Technologies, Inc. ("CCT')"; "Answer of Defendant Dean Vlahos"; Counterclaim, count one, ¶¶ 2, 4; count two, ¶¶ 6, 8, 14; count three, ¶ 22.) Similarly, in the defendants' brief, an initial distinction is made between the two defendants followed by arguments in support of "CCT's . . . Counterclaim Count I" and "CCT Counterclaim Count II." (Defendant's Brief at 1 n. 1, 13, 17.) Based on this choice of wording by the defendants, the court concludes that the counterclaims are filed solely by defendant CCT and not by defendant Vlahos. The court has already ruled, however, that defendant CCT cannot maintain a counterclaim because it is a nonresident corporation without a certificate of authority. See General Statutes § 33-921(a). Therefore, the court enters judgment for the plaintiff on the counterclaims.
Although the court barred litigation at trial of count three of the counterclaims on collateral estoppel grounds, the discussion in the text provides an additional basis for that result on count three. The court has nonetheless submitted the three transcripts from the original summary process trial as court exhibits to complete the record in this case.
III
Because the court has entered judgment for defendant Vlahos on the complaint, there is no need to address his special defenses. As for defendant CCT, it contends that, even if it is not authorized to bring counterclaims, it is nonetheless entitled to prove its special defenses as a form of offset of any liability. The first special defense, entitled "Set-Off," alleges that "[t]o the extent that the Plaintiff is awarded damages, said amount should be offset by monies paid by Defendant, and improperly held by Plaintiff." The second special defense, entitled "Unjust Enrichment," alleges that "Plaintiff has been unjustly enriched by monies held under [pretense] of deposit and common charges. Defendant has been damaged thereby."
The plaintiff claims that these special defenses are in reality prohibited counterclaims because they arise out of the same transaction as the complaint. See 225 Associates v. Connecticut Housing Finance Authority, 65 Conn.App. 112, 121, 782 A.2d 189 (2001). Although there is a certain semantic appeal to the plaintiff's argument, the reality, as stated by the Appellate Court in the summary process case, is that defendant CCT is entitled to "[defend] itself" as long as it does not "maintain a claim against the plaintiff." Silvermine Investors v. Call Center Technologies, Inc., supra, 81 Conn.App. 710 n. 4. Accordingly, defendant CCT can, in theory, offset its liability to the plaintiff as long as it does not seek an affirmative recovery.
The first aspect of this doctrine that the defendant presses is a demand for return of its security deposit. It is true that section 2(a) of the first amendment to the lease states that the plaintiff has received a total security deposit of $12,400 as of December 7, 2000. But other than the vague language in the special defenses concerning "monies paid by Defendant, and improperly held by Plaintiff" and "monies held under [pretense] of deposit," the special defenses do not refer to the security deposit. The rule regarding special defenses is that "[f]acts which are consistent with [the plaintiff's statement of facts] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50. The defendant has failed to specially allege any facts concerning the security deposit. Accordingly, the court will not consider the matter further.
Pursuant to General Statutes § 47a-21(d)(1), a landlord is obligated to return any security deposit with interest minus any deduction for damages. A tenant can enforce this obligation by an action under § 47a-21(g). Rather than invite a third law suit concerning this one lease, the plaintiff should deem it in its best interest to resolve the security deposit issue as part of the defendant's satisfaction of the judgment in this case.
The other matters that the defendant labels as "special defenses" were actually pleaded as counterclaims and therefore are not properly before the court. Moreover, the defendant did not successfully prove them at trial. For example, although there was testimony concerning the amount of common charges, there was no evidence that the defendant paid any part of these charges to the plaintiff or, if it did, how much it paid. Therefore, the court need not reach the defendant's argument that the plaintiff calculated these charges incorrectly.
Similarly, the defendant did not establish that it should receive some sort of offset because the plaintiff did not construct an office in accordance with paragraph three of the first amendment to the lease. Quite simply, the court credits the evidence produced by the plaintiff that the plaintiff complied or at least attempted to comply with its obligations under paragraph three and that Vlahos proved uncooperative throughout the period, thereby thwarting any further compliance. Therefore, defendant CCT is not entitled to any further offset of its obligations to the plaintiff.
IV
Accordingly, the court enters judgment on the complaint against defendant CCT in the amount of $46,452.31, judgment for defendant Vlahos on the complaint, and judgment for the plaintiff on the counterclaims.
It is so ordered.