Opinion
No. NBSP-053968
December 17, 2010
MEMORANDUM OF DECISION
The defendant, Robert Galka, filed this motion for attorney's fees pursuant to Practice Book § 11-21, following dismissal of the summary process action brought by the plaintiff, Plainville Housing Authority.
BACKGROUND
The plaintiff commenced the underlying summary process action seeking to recover possession of the premises known as 20 Stillwell Drive, S01, Plainville, Connecticut from the defendant. The plaintiff alleged in its complaint that "the Defendant made threats to harm the Plaintiff's employees" and "threatened to come to the Plaintiff's office with a 357 pistol." The defendant moved to dismiss the action on the ground that the court lacked subject matter jurisdiction because the plaintiff's reason for termination of the lease in the notice to quit was "material noncompliance of lease agreement" and the plaintiff failed to comply with the pretermination "KAPA" notice requirements of General Statutes § 47a-15.
After consideration of the parties' legal memoranda and oral argument on the motion to dismiss, the court found that because the notice to quit alleged "material noncompliance of lease agreement" and the plaintiff neither complied with the pre-termination provisions of General Statutes § 47a-15 nor alleged that the lease was terminated for "serious nuisance," the notice to quit was invalid. Accordingly, the court concluded that it was constrained to find that it court lacked subject matter jurisdiction and granted the defendant's motion to dismiss the action.
Following dismissal of the action, the defendant brought this motion for attorney's fees pursuant to General Statutes § 42-150bb and Practice Book § 11-21. The defendant seeks attorney's fees in the amount of $2,680.00 at a rate of $300.00 per hour for the "successful defense" of the action.
ATTORNEYS' FEES
"Connecticut adheres to the `American rule,' which provides that attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 479, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, A.2d (2008). Since the defendant has not claimed any contractual exception, the defendant must establish a statutory exception.
The defendant relies on the provisions of General Statutes § 42-150bb in support of his claim for a statutory award of attorneys' fees.
General Statutes § 42-150bb provides: "Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney's fee of the commercial party to be paid by the consumer, an attorney's 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. Except as hereinafter provided, the size of the attorney's fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney's fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney's fee under this section and in which the commercial party is represented by its salaried employee, the attorney's fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. 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."
THE DEFENDANT'S AUTHORITY
The defendant cites Traystman, Coric Keramidas, P.C. v. Daigle, 282 Conn. 418, 922 A.2d 1056 (2007) as authority for his claim that the proper procedural vehicle for requesting an award of attorney's fees pursuant to § 42-150bb is by motion pursuant to Practice Book § 11-21. The court agrees that Traystman so holds. However, the court finds Traystman to be of little value in resolving the issue before the court as the facts in Traystman involved not a summary process action but a claim by an individual who successfully defended an action brought by a law firm to enforce a promissory note he had executed to guarantee payment of his legal expenses in a marital dissolution action.
The defendant posits that the "effect of the Traystman decision in the context of a summary process action was considered in Figueroa v FAH Redstone Limited Partnership, 44 Conn. L. Rptr. 639 (November 29, 2007, Peck, J.). In Figueroa, the tenant brought a separate action for attorney's fees rather than a motion pursuant to Practice Book § 11-21 after the landlord withdrew its summary process action. In Figueroa, the court found that since the tenant brought an action for attorney's fees within thirty days following withdrawal of the summary process action, the court chose not to "exalt form over substance" and denied the landlord's motion for summary judgment.
The defendant further cites Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 689 A.2d 1097 (1997) to support his contention that the court has no latitude to deny attorney's fees under § 42-150bb to a consumer who successfully defends an action brought against him by a commercial party. The court agrees that, where applicable, § 42-150bb provides no such latitude. However, as in the case of Traysman, the plaintiff in Rizzo was not a tenant in a summary process action but a consumer who successfully defended an action by a contractor to recover money damages for the installation of a swimming pool.
Finally, the defendant cites Carabetta Management Co. v. Sandra Martin, Superior Court, judicial district of Hartford, Docket No. HDSP-154717 (August 5, 2010, Peck, J.). In Carabetta, the court awarded the defendant tenant the sum of $3,840 following the withdrawal of a summary process action against her. However, the defendant overlooks that the court in Carabetta granted the tenant's motion for attorney's fees after noting that "The landlord did not file a written objection and at the hearing held on the motion opposed neither the defendant's entitlement to an award under the statute by virtue of the lease nor the hourly rate. Rather, the plaintiff focused its entire attention on the extent of the legal services provided and the total amount of the fees sought." (Emphasis added). p. 1.
The defendant has not cited but the court has considered Cioffoletti Construction v. Nering, 14 Conn. App 161, 540 A.2d 91 (1988) which addressed the provisions of General Statutes § 42-150bb. Cioffoletti is inapplicable to this matter as the facts of that case involved not a lease but an action by a contractor to collect sums due for the installation of a septic system.
The defendant has submitted no controlling appellate court authority to support an award of attorney's fees to a tenant under § 42-150bb following a tenant's successful defense of a summary process action. Therefore, the issue raised by the defendant's motion is whether the provisions of § 42-150bb apply to tenants who successfully prosecute or defend summary process actions.
THE PLAINTIFF'S OBJECTION TO THE MOTION
The plaintiff opposes the defendant's motion for attorney's fees on several grounds. The plaintiff's first objection is that the dismissal of the underlying action leaves the court without jurisdiction and the authority to act on the defendant's motion.
"Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. . . . The source of the jurisdiction of a court is the constitution and statutory provisions. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court's competency to exercise power. . . ." (Citations omitted; internal quotation marks omitted.) Romanowski v. Foley, 10 Conn. App. 80, 83, 521 A.2d 601, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987).
"The Superior Court is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all other matters cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter. . . . [T]he general rule of jurisdiction . . . is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so; and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly so alleged. . . . [N]o court is to be ousted of its jurisdiction by implication." (Internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 708-709, 4 A.3d 248 (2010) ( Rogers, C.J., concurring), quoting Carten v. Carten, 153 Conn. 603, 612-13, 219 A.2d 711 (1966).
A determination that the court lacks subject matter jurisdiction over a claim is a determination that the court is not competent to determine the merits of a claim. See Lindo v. Lindo, 48 Conn. App. 645, 651, 710 A.2d 1387 (1998) ("Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the [matter], any further discussion of the merits is pure dicta. . . . If subject matter jurisdiction is lacking, a trial court's rulings on the merits are merely advisory." [Citation omitted; internal quotation marks omitted.]). The issue of whether attorney's fees should be awarded, however, does not go to the merits of the underlying claim. Id., 652, citing White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451-52, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982); Oakley v. Commission on Human Rights Opportunities, 38 Conn. App. 506, 517, 662 A.2d 137 (1995), aff'd, 237 Conn. 28, 675 A.2d 851 (1996). Thus, a lack of jurisdiction over the underlying claim is not a lack of jurisdiction to determine whether attorney's fees should be awarded where they are statutorily authorized. Since the defendant's motion does go to the merits of the underlying action, the court rejects the plaintiff's contention.
The plaintiff also argues that the defendant has failed to show that the lease was entered into on or after October 1, 1979. The plaintiff's argument is misplaced. The plaintiff alleged in paragraph 1 of its complaint that "On or about March 31, 2009" the parties entered into the lease.
The plaintiff also contends that the defendant failed to prove that the plaintiff housing authority is a "commercial party" as defined in § 42-150bb. This contention is addressed later in this memorandum of decision.
GENERAL STATUTES § 42-150bb
The relevant statutory prerequisites set forth in General Statutes § 42-150bb for an award of attorney's fees to a consumer who successfully prosecutes or defends an action or counterclaim against a commercial party are: 1) a contract or lease; 2) entered on or after October 1, 1979; 3) to which a commercial party and a consumer are parties; and 4) which contract or lease provides for attorney's fees of a commercial party to be paid by the consumer. The statute includes the proviso that it "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."
As far as the requirement of § 42-150bb that the contract or lease contain a provision for attorney's fees of a commercial party to be paid by the consumer, there is no dispute that paragraph 35 of the Plainville Housing Authority Dwelling Unit Lease contains the following provision: "Legal Fees. The Tenant agrees to pay, as addition to rent, all legal fees and other expenses incurred by the Landlord in enforcing the obligations under this Lease."
The remaining issues to be determined are whether the words "contract or lease" in § 42-150bb encompass the parties' rental agreement and whether the plaintiff is a "commercial party" within the definition of the statute.
STATUTORY CONSTRUCTION
Our rules of statutory construction were recently reviewed and restated by our Supreme Court.
"General Statutes § 1-2z requires this court first to consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consideration, the meaning of the statutory text is plain and unambiguous and does not yield absurd or unworkable results, we cannot consider extratextual evidence of the meaning of the statute. Only if we determine that the text of the statute is not plain and unambiguous may we look to extratextual evidence of its meaning, such as "the legislative history and circumstances surrounding its enactment . . . the legislative policy it was designed to implement, and . . . its relationship to existing legislation and common law principles governing the same general subject matter. . . . . The proper test to determine whether the meaning of the text of a statute is ambiguous is "whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citations omitted; internal quotation marks omitted.)." Potvin v. Lincoln Service and Equipment Company, 298 Conn. 620, 631-32 (2010).
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
"When interpreting a statute, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply." (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 147, 989 A.2d 593 (2010).
Since the underlying matter was a summary process action, the court must consider the text of § 42-150bb within the context of its applicability to a post trial motion for attorney's fees in a summary process action pursuant to Practice Book § 11-21. In this instance, § 42-150bb must be read in the context of the underlying summary process action and the broader statutory scheme as it relates to such actions so as to ensure a coherent construction of the statute relied on by the defendant. In accordance with § 1-2z, the court must begin its analysis with the text of the statute.
General Statutes § 42-150bb provides in pertinent part as follows: "Whenever any contract or lease . . . to which a consumer is a party, provides for the attorney's fee of the commercial party to be paid by the consumer, an attorney's fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or counterclaim based upon the contract or lease."
As defined in General Statutes § 47a-1(i), "`Rental agreement' means all agreements, written or oral, and valid rules and regulations adopted under section 47a-9 or subsection (d) of section 21-70 embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises."
"A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation." In re Jan Carlos D., 297 Conn. 16, 21, 997 A.2d 471 (2010). Inasmuch as the legislature has statutorily defined agreements between owners and tenants in § 47a-1 as "rental agreements" without any reference to the word "lease" and has enacted § 42-150bb without any reference to the term "rental agreement," the language in the statutes potentially conflict and there exists an ambiguity as to whether the legislature intended § 42-150bb to apply to rental agreements in summary process actions. In the opinion of this court, the statutory language "contract or lease" in § 42-150bb is ambiguous in the context of summary process actions. Having determined that the statutory language of § 42-150bb is ambiguous in the context of a summary process action, the court may now consider extratextual sources in its construction.
THE LEGISLATIVE HISTORY
"When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement . . ." (Emphasis added; internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 182, 914 A.2d 533 (2007). The root source of § 42-150bb is Raised Committee Bill No. 1559, 1979 Sess., An Act Concerning Attorney's Fee Clauses in Consumer Contracts. The Judiciary Committee identified the measure's legislative purpose as follows. "STATEMENT OF PURPOSE: To protect the consumer party to a contract which includes provision for attorney's fees for the commercial party by awarding the consumer party attorney's fees on the same terms."
"[T]estimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation." (Citation omitted, internal quotation marks omitted.) Butts v. Bysiewicz, 298 Conn. 665, 687 (2010). "It is now well settled that testimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation. . . . This is because legislation is a purposive act . . . and, therefore, identifying the particular problem that the legislature sought to resolve helps to identify the purpose or purposes for which the legislature used the language in question." (Internal quotation marks omitted.) Matey v. Estate of Dember, 256 Conn. 456, 484-85, 774 A.2d 113 (2001).
The Judiciary Committee conducted a public hearing on the Raised Committee Bill on March 29, 1979 at which, Raphael Podolsky, who identified himself as a lawyer with the nonprofit Legal Services Legislative Office, delivered testimony. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3,1979 Sess., p. 800-2. Attorney Podolsky's testimony focused on the need to place limits on attorney's fees awarded in connection with consumer contracts. Attorney Podolsky described the "nature of the problem" the committee was confronting "is that attorney's fees awards under consumer contracts are often astronomical in size." In his testimony, Podolsky suggested that "in a consumer contract, no attorney's fees in excess of $100 may be awarded to a creditor." p. 801. Podolsky also suggested that since consumer contracts are often "contracts of adhesion" the proposed bill be amended "to put a percentage maximum on it. For example, 15% is the common maximum. That's what we have in the Landlord Tenant Act, that's what we have in the Retail Installment Sales Financing Act, that is what Alternative B of the Consumer Credit Code recommends and that is the policy they attempt to follow, although it's not mandated in Small Claims Court." p. 801.
The court finds it significant that the only testimony heard by the Judiciary Committee was focused on limiting attorney's fees in consumer contracts and while the transcript includes four references to "creditors" there is no mention of the words "landlord" or "tenant except the recommendation that the committee adopt the limitation of fees in the existing Landlord Tenant Act. It is also significant that attorney Podolosky discussed the need for the proposed bill to address issues outside the context of the Landlord Tenant Act.
In the initial Senate floor debate, Senator Santaniello moved for passage of Substitute Senate Bill 1559 and made the following remarks. "Mr. President. This bill makes attorney's fees clauses reciprocal. For example, a clause for the benefit of the creditor will automatically allow the attorney fees to the prevailing debtor who successfully prosecutes or defends an action or counter-claim based upon the contact or lease." (Emphasis added.) 22 Sen. Proc, Part 8, 1979 Sess., p. 2542-44.
In the debate in the House, Rep. Richard Tulisano remarked that the bill "give [s] some equity to the situation. At the present time, many form contracts include attorney's fees provisions for the commercial property, and even though the commercial party may be wrong and a consumer successfully defends an action against him, they would not be entitled to receive attorney's fees in defending that action. This will put some equity into the situation to the same extent that any commercial party will receive. And it's an attempt to balance the law." 22 H.R. Proc, Pt., 22, 1979 Sess., p. 7489.
In the final floor debate in the Senate on May 24, 1979, after the House of Representatives adopted an amendment which returned the bill to the Senate, Senator DePiano, explained the purpose of Substitute Senate Bill 1559 was to place a consumer and a commercial party on equal footing. "I think that most of the time these consumer contracts are drawn up by the creditor and under the circumstances many of the consumers are not aware of that provision in the bill, and therefore, I think they should be protected because I think that if a creditor brings a law suit and he fails and had he been successful, he would have collected attorney's fees. I think it's only fair that we legislate that the consumer can get the same protection and therefore be entitled attorney's fees." (Emphasis added.) 22 Sen. Proc, Part 13, 1979 Sess., p. 4274-77.
The court finds it highly significant that a review of the entire record of the legislative history of § 42-150bb, consisting of eighteen pages, reveals multiple references to the words creditor and debtor, but there is no mention of landlord, tenant, rental agreement, dwelling unit, or premises.
"Although it is recognized that headings or titles of legislation are not conclusive, they may, nonetheless, be valuable aids to construction and legislative intent." (Citations omitted). In Re Cameron, 103 Conn.App. 746, 753, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906, 942 A.2d 414 (2008). Furthermore, the codification of a statute may be significant. State v. Browne, 84 Conn. App. 351 (2004).
"It is a rule of statutory construction that the legislature is presumed to know all the existing statutes and that when it enacts a law it does so in view of existing relevant legislation, intending the statute enacted to be read with the pertinent existing legislation so as to make one consistent body of law." Jennings v. Connecticut Light Power Co., 140 Conn. 650, 665-66, 103 A.2d 535 (1954). The location of a statute in the body of our codified law "indicates a legislative intent. . . . Terms of the titles of legislation are indicative of legislative intent." Id., 666.
Raised Committee Bill No. 1559, Substitute Senate Bill No. 1559 and Public Act No. 79-453 are all titled "AN ACT CONCERNING ATTORNEY'S FEES CLAUSES IN CONSUMER CONTRACTS." Connecticut General Statutes § 42-150bb is codified in Chapter 741d which is part of Title 42 titled "Business, Selling, Trading and Collection Practices." Connecticut General Statutes § 42-150bb contains no references or cross references to any matter governed by Title 47a titled "Landlord and Tenant."
THE SCOPE OF § 42-150bb
The defendant's claim rests on the term "lease" in § 42-150bb. Although the word lease appears in § 42-150bb, the court cannot focus on a single word in isolation to ascertain legislative intent. The scope of matters included within a term whose precise reach is uncertain depends on the nature and purpose of the particular statute in question. Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. Dyna-Med, Inc. v. Fair Employment Housing Com., 43 Cal.3d 1379, 1386-1387,241 Cal.Rptr. 67, 743 P.2d 1323 (1987). "It is a basic tenet of statutory construction that the intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from a statutory scheme as a whole . . ." Figueroa v. C and S Ball Bearing, 237 Conn. 1, 6 (1996). In the context of a summary process action, the court cannot disregard the statutory scheme created by the legislature for such matters.
"[W]e are [also] guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law. . . . [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter. . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. ."(Citations omitted; internal quotation marks omitted.) Hartford/Windsor Healthcare Properties v. Hartford, 298 Conn. 191, 198, 3 A.3d 56 (2010).
The nettlesome words in § 42-150bb are "contract or lease." Clearly, the addition of "or lease" to the word contract is redundant since it is well established that a lease is a contract. 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 622, 987 A.2d 1009 (2010). The court cannot speculate whether the legislature chose to add the words "or lease" as surplusage in an attempt to make it known, in some general manner, that automobile or similar lease "transactions" were intended to be covered by the statute. Regardless of this opaque addition, the court is bound by the mandate of General Statutes § 1-2z to consider the entire text of the statute to determine its meaning and "[n]o word in a statute should be treated as superfluous . . . or insignificant." General Motors Corporation v. Mulquin, 134 Conn. 118, 126, 55 A.2d 732 (1947).
The legislature knows how to convey its intent expressly. See, e.g., Windels v. Environmental Protection Commission, 284 Conn. 268, 299, 933 A.2d 256 (2007). General Statutes § 42-150bb ( P.A. 79-453) was enacted by the legislature three years after General Statutes § 47a-1 ( P.A. 76-95). If § 42-150bb was intended to apply to summary process actions, the legislature could have clearly expressed such intention by simply added the words "rental agreement as defined in § 47a-1" to § 42-150bb or amended Title 47a to expressly provide for an award of attorney's fees. The legislature, however, chose not to do so.
"[W]hen a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed" (Citation omitted; internal quotation marks omitted). Saunders v. Firtel, 293 Conn. 515, 527, 978 A.2d 487 (2009). The legislature's use of a different term in § 42-150bb than it employed in § 47a-1 indicates a conscious choice not to do so.
General Statutes § 42-150bb includes a proviso that the statute "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." The court finds it significant that the legislature chose the word "transaction" to describe the exchange between the commercial party and the consumer.
The Oxford English Dictionary (6th Ed. 2007) defines the word "transaction" as "1. An instance of buying and selling. 2. The action of conducting business. 3. An exchange or interaction between people." Black's Law Dictionary (9th Ed. 2010) defines the word "transaction" as "1. The act or an instance of conducting business or other dealings; esp. the formation, performance or discharge of a contract. 2. Something performed or carried out; a business agreement or exchange. 3. Any activity involving two or more persons. The Oxford Online Dictionary (University Press, 2010) defines "transaction" as "an instance of buying or selling something; a business deal; the action of conducting business; an exchange or interaction between people." The word transaction appears to consistently and appropriately connote buying or selling a product or service in some commercial sense.
General Statutes § 42-150bb defines the term commercial party is defined as "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. It is significant that, although General Statutes § 42-150bb makes no reference to a "landlord," a "tenant" or a "rental agreement," it includes the terms "creditor" and "debtor." The use of the words creditor and debtor in § 42-150bb and its inclusion in Title 42 governing "Business, Selling, Trading and Collection Practices" strongly suggests that § 42-150bb was intended to address the concern expressed with regard to the collection of unreasonable attorney's fees by commercial parties and to provide balance to the debt collection process which often involves suits based on contracts of adhesion drawn by the creditors. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1979 Sess., p. 800-02, testimony of Raphael Podolsky.
General Statutes § 42-150bb defines a commercial party as "the seller, creditor, lessor or assignee of any of them." Under this broad definition, an individual, government body, nonprofit organization, including a religious organization or any other entity not commonly considered to be engaged in "commerce" would be included as a commercial party, if also a seller, creditor, lessor or assignee in a "transaction" referred to in the statute.
Although the definition of a commercial party in may be problematic in any context, it makes even less sense in a summary process context. If the legislature intended § 42-150bb to apply to rental agreements in summary process proceedings, an obvious consequence of such intention would be that the mythical "little old lady" who rented out the upstairs of her two-family home and, in the process, used a pre-printed lease with a routine attorney's fee provision, would find herself to be a "lessor" and "commercial party" under § 42-150bb and therefore mandated to pay the tenant's attorney's fees if she incorrectly prepared her pro se notice to quit. The application of § 42-150bb to summary process actions could easily ensnare an unsuspecting individual landlord to his or her serious economic disadvantage. In recognition of the possibility of unfair or untoward results, the legislature has found it appropriate, in other instances, to exempt certain landlord tenant relationships from the operation of summary process statutes. For example, General Statutes § 47a-23c which protects elderly and disabled tenants from lapse of time evictions exempts owners of buildings having four or fewer dwelling units. General Statutes § 47a-20a provides that a summary process action, which would otherwise be deemed a retaliatory eviction, is not retaliatory as to an owner who seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode."[I]t is fundamental . . . that departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would clearly be inconsistent with the purposes and policies of the act in question." 2 A Sutherland, Statutes and Statutory Construction (7th Ed.) § 45:12. Given the sweeping language of § 42-150bb, the potential for such absurd results, it is inconceivable that the legislature would have intended it to apply to summary process actions without some express provision or clearer indication. "Although we recognize that "[c]ourts must interpret statutes as they are written . . . we are also bound by our duty to avoid a consequence which fails to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain." (Citations omitted; internal quotation marks omitted.) Fairchild Heights Inc. v. Dickal, 118 Conn. App. 163, 177-78, 983 A.2d 35 (2009). An overly literal reading of § 42-150bb would yield just such an irrational result, as it could adversely affect the stated legislative goal of achieving prompt and expeditious resolution of the limited issues in summary process matters.
Moreover, the court must give consideration to our common law. As noted earlier, the American Rule governing the recovery of attorney's fees has been adopted as our common law in Connecticut. It is a fundamental rule of statutory construction that statutes in derogation of common law must be strictly construed. "Statutes which impose duties or burdens or establish rights or provide benefits not recognized by the common law have frequently been held to strict, or restrictive, interpretation. Where there is any doubt about their meaning or intent they are given the effect which makes the least, rather than the most, change in the common law." 3 Sutherland, Statutes and Statutory Construction (7th Ed.) § 61:1. Moreover, "In determining whether or not a statute abrogates or modifies a common law rule, the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." (Emphasis added). Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). "When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation." Hartford/Windsor Healthcare Properties v Hartford, 298 Conn. 191, 197-98 (2010).
Once again, the legislature knows how to convey its intent expressly. Windels, supra. "Because we must respect the legislative prerogative of choosing the special circumstances under which [attorney's fees] awards may be made . . . we require a clear expression of the legislature's intent to create a statutory exception [to the rule]. Thus, it is apparent that when the General Assembly want[s] to authorize the award of attorney's fees it knows how to do it." (Citation omitted, internal quotation marks omitted). Ames v. Comm'r of Motor Vehicles, 267 Conn. 524, 532-34 (2004).
The subject of attorney's fees in the context of housing matters has been considered and addressed by the legislature in Title 47a of the General Statutes. General Statutes § 47a-4(a)(7) provides in pertinent part "(a) A rental agreement shall not provide that the tenant: . . . agrees to pay the landlord's attorney's fees in excess of fifteen per cent of any judgment against the tenant in any action in which money damages are awarded." Any such prohibited provision is unenforceable. General Statutes § 47a-4(b).
As noted by Judge Peck in Figueroa, supra, "Postjudgment claims for attorneys fees by prevailing landlords can only be brought pursuant to a specific lease provision in a separate post judgment civil action because they are not statutorily derived." Although no statutorily prescribed, it is the policy of most housing court judges to limit attorney's fees to $350 to $500 in civil actions by a prevailing landlord seeking to recover damages from a tenant.
Intertwined with any analysis of the applicability of § 42-150bb to summary process actions is a fundamental policy consideration. The legislature, in the 1976 Session of the General Assembly, addressed landlord tenant matters on a comprehensive basis by the enactment of the Landlord and Tenant Act. ( P.A. 76-95, P.A. 76-435). Included at the core of the Act was the legislature's goal of establishing balance to the interests of landlords and tenants.
"The legislative history of the act demonstrates that the purpose of the act, as a whole, was intended to provide just and adequate protection to both tenants and landlords. Senator Lawrence J. DeNardis, for example, remarked that the legislation `embodies . . .a number of good trade-offs between landlords and tenants with respect to their mutual rights and obligations . . .' 19 S. Proc. Pt. 2, 1976 Sess., p. 818. Senator David H. Neiditz echoed Senator DeNardis' comments, stating that the act is `a well balanced piece of Legislation between landlord and tenants . . . [that] gives us the opportunity to have . . . fairer and better landlord tenant relations.' Id., p. 817." Fairchild Heights, Inc. v. Dickal, 118 Conn. App. 163, 175, 983 A.2d 35 (2009).
The prompt and expeditious resolution of disputes is particularly important in housing matters. From July 1, 2007 to June 30, 2008, a total of 24,102 summary process cases were filed in Connecticut's courts. Report to the General Assembly, The Citizens Advisory Council for Housing Matters, January 7, 2009. A significant number of cases involve self represented landlords a and tenants. In recognition of the unique nature of summary process and the vast number of housing matters filed, the legislature crafted Title 47a of the General Statutes in a number of respects to purposely and significantly distinguish it from other civil actions.
There are many examples of the legislature's policy to treat summary process actions different from other civil actions and proceedings, including an abbreviated return date and accelerated appearance, pleading and judgment procedures. General Statutes § 52-215 provides that there shall be no right to a jury trial in a summary process case. Additionally, a claim for damages is not properly raised in a summary process action because summary process actions are designed solely to decide issue of possession. Carnese v. Middleton, 27 Conn. App. 530, 535, 608 A.2d 700 (1992). Counterclaims for money damages are not permitted because prayers for monetary relief do not implicate the right to possession. Fellows v. Martin, 217 Conn. 57, 70, 584 A.2d 458 (1991).
"It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions." Webb v. Ambler, 125 Conn. 543, 550-51, 7 A.2d 228 (1939).
Further evidence of the legislature's recognition of the special nature of summary process actions and the importance of achieving settlements is found in the legislature's authorization of the appointment of housing mediators pursuant to General Statutes § 47a-69 "for the purpose of assisting the court in the prompt and efficient hearing of housing matters" including the recommendation of settlements.
The legislative intent or policy underlying the creation of summary process procedure has been often articulated by our courts. "Summary process is a special statutory procedure designed to provide an expeditious remedy . . . It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms . . . Summary process statutes secure a prompt hearing and final determination . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed." (Internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009).
"In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987).
Indeed, it would not make sense for the legislature to mandate the award of attorney's fees in summary process proceedings. A construction of § 42-150bb which would mandate an award of attorney's fees pursuant to Practice Book § 11-21 to every tenant whose landlord withdrew a summary process action would result in virtually no withdrawals being filed. Any disincentive to a landlord's readiness to withdraw a summary process action against a tenant rather than agree to a stipulated judgment would threaten to adversely affect the tenant's credit standing or eligibility for rental assistance and be detrimental to both parties. Common sense dictates that such a construction would be completely contrary to the public policy goal of bringing summary process disputes to prompt and fair resolution.
"Courts should not presume that the legislature, in the enactment of a statute, intended to overthrow long-established principles of law unless that intention is made clearly to appear either by express declaration or by necessary implication." 2A Sutherland, Statutes and Statutory Construction, (7th Ed.) § 45:12. In the present case, the court cannot assume that the legislature intended to make such a major change to the delicate balance it established in the Landlord Tenant Act and the stated objective to limit the issues in summary process actions. Given the unique nature and detailed attention the legislature has dedicated to summary process proceedings, it is difficult to imagine that a major issue such as mandated attorney's fees would be grafted onto the detailed statutory scheme without clearer expression of the legislature's intent to do so.
This reading of § 42-150bb finds support in the public policy favoring settlement of disputes. "[T]he law favors settlements, which conserve scarce judicial resources and minimize the parties' transaction costs . . ." Blake v. Levy, 191 Conn. 257, 264 (1983). It also serves to promote the benefits of bright line rules for the parties to reduce uncertainty in summary process actions as recently articulated by our Supreme Court in Waterbury Twin Renal Treatment Centers-Northeast, 292 Conn. 459, 465, 974 A.2d 626 (2009).
The legislature is presumed to be well aware of its having statutorily defined "rental agreements" for the use or occupancy of residential premises. Absent a clear expression that the legislature intended to extend the provisions of General Statutes § 42-150bb to summary process actions and alter the rights and responsibilities of landlords and tenants firmly established in Title 47a, this court elects not to reach beyond Title 47a to import language from an ambiguous statute codified in an extraneous Title of the General Statutes to alter the balance established by the legislature. It would be inappropriate for this court to interpret the term "lease" in § 42-150bb to include the statutorily defined term "rental agreement" without a clear expression of such intention. To effect such a material change is the proper function of the legislature, not this court.
This court is mindful of several trial court decisions which have awarded attorney's fees pursuant to § 42-150bb to tenants whose defense of summary process actions led to a withdrawals of the actions by the landlord. This court respectfully disagrees with that literal interpretation of § 42-150bb.
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. (Emphasis added.) St. Paul's Flax Hill Co-Operative v. Johnson, 124 Conn. App. 728, 736 (2010).
CONCLUSION
The court's examination of the legislative history of § 42-150bb, the circumstances surrounding its enactment, the legislative policy it was designed to implement, and its relationship to existing legislation and common law principles governing the same general subject matter provides no clear expression, nor any evidence or indication of any kind that the legislature intended that the words "contract or lease" as used in § 42-150bb to include rental agreements and apply to summary process proceedings.
On the basis of the foregoing, the court concludes that the legislature did not intend the words "contract or lease" as used in § 42-150bb to include rental agreements and apply to summary process proceedings.
Accordingly, the defendant's claim for attorney's fees does not fall within the ambit of § 42-150bb and its provisions do not inure to his benefit. The defendant's motion for attorney's fees is denied.
In light of the court's determination that the provisions of § 42-150bb do not inure to the benefit of the defendant, it is not necessary to address the plaintiff's contention that the defendant failed to prove that the plaintiff is a commercial party.
So ordered.