Opinion
HHDCV144073963S
02-26-2018
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO JUDGE
The parties presented evidence at a bench trial in this commercial leasing matter on December 22, 2016 and October 17, 2017. Pursuant to a briefing schedule, in lieu of oral argument, the parties filed memoranda of law dated December 22, 2017. After consideration, the court issues this memorandum of decision.
I
Background
In the complaint, the plaintiffs/lessors, Carmine Saporoso and Eugenia Saporoso seek recovery for alleged breach of contract concerning a November 2011 commercial lease for premises located at 879 New Britain Avenue, Hartford, Connecticut (premises). See Plff. Exh. 1 (lease). In the lease, defendant Connective Wireless, Inc. (Connective) was the tenant and defendants Barry Zenstein and Edmund Boyle were guarantors. In their First Count, the plaintiffs allege that Connective breached the lease by vacating the premises sometime prior to November 2012 without providing required notice. They also allege that, as a result, the lease renewed for the term December 1, 2012 to November 30, 2013, and that the defendants are liable for unpaid rent, late fees, expenses incurred in re-letting the premises, and other damages. In Count Two, the plaintiffs allege that, as guarantors, Zenstein and Boyle, are liable for all payments Connective is required to make pursuant to the lease. The plaintiffs seek an award of damages, including attorneys fees.
For case of reference, the court refers below to plaintiff Carmine Saporoso as " Saporoso."
In response, the defendants deny the allegations and assert special defenses. In their post-trial memorandum, they argue that the doctrine of accord and satisfaction bars the plaintiffs’ complaint.
In its amended counterclaim (#128) (counterclaim), Connective alleges that the plaintiffs breached the lease by demanding that Connective vacate the property before the expiration of the lease; by harassing Connective, thereby depriving it of quiet enjoyment of the premises; and by evicting Connective on grounds which violate the lease. See counterclaim (Counts One and Two).
In Count Three, Connective alleges that, in violation of General Statutes § 47a-21b, the plaintiffs took a security deposit from Connective in excess of two months’ rent and failed to return it. In Count Four, Connective incorporates by reference its previous allegations and alleges that the plaintiffs violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. (CUTPA). Connective seeks damages, punitive damages and attorney’s fees. In particular, Connective seeks damages for having to relocate to a new location.
The plaintiffs deny Connective’s allegations and assert that the claims are barred by the doctrines of equitable estoppel and unclean hands.
II
Discussion
In a case tried to the court, " [t]he ... judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 90-91, 52 A.3d 655 (2012). " [I]t is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness’ testimony." (Internal quotation marks omitted.) Gonzalez v. State Elections Enforcement Commission, 145 Conn.App. 458, 475, 77 A.3d 790, cert. denied, 310 Conn. 954, 81 A.3d 1181 (2013).
" [A] lease is a contract, and, therefore, it is subject to the same rules of construction as other contracts ..." (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 622, 987 A.2d 1009 (2010).
After trial, the court finds the following facts and credits the following evidence, except as noted. Saporosso testified that he had three notices to quit served on the defendants, including in September 2012, due to failure to pay rent. See Plff. Exh. 12. Saporoso acknowledged that, although an eviction action was commenced after the September notice to quit, he did not pursue it.
The court credits Boyle’s testimony that, in early August 2012, after becoming concerned about Connective’s insurance for the premises, Saporoso told Connective to leave the premises or be locked out. Zenstein testified that, after a conversation with Saporoso, in which Saporoso became angry, he and Boyle made a business decision, that Connective should move to a new location.
Saporoso acknowledged that he received the defendants’ attorney David Glanzberg’s letter, dated September 19, 2012, which stated that Connective would be vacating the premises at the end of that month. See Deft. Exh. R. The court does not credit Saporoso’s statement that he first learned that Connective had vacated the premises on November 21, 2012 when he received the key from his then-attorney, Frederick Vollono, who has since passed away. In view of his regular presence at the subject property, this statement lacks credibility. In subsequent testimony, at the second day of trial, Saporoso acknowledged that he does not know when Connective left the premises.
The court credits Glanzberg’s testimony, in which he stated that, after he received a letter from Vollono dated October 19, 2012 (Deft. Exh. Q), the defendants reached agreement with the plaintiffs, acting through Attorney Vollono, for settlement concerning the premises. Defendants’ Exhibit N, a letter from Glanzberg to Vollono, dated November 29, 2012, memorialized their discussion and stated, in relevant part, " [p]ursuant to our conversation, you have received the key that was sent back to you for 817 New Britain Avenue, Hartford, CT 06106. You have agreed to keep the security deposit as full and final resolution of this matter."
The reference to 817 New Britain Avenue is clearly a typographical error. There is no question that the letter referred to the premises at issue.
Boyle testified that, in accordance with the lease, Connective had provided the sum of $3,750.00 to the plaintiffs as a security deposit, which was the equivalent to four months of rent. See lease, Plff. Exh. 1, ¶5, page 2 of 18.
" When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim ... An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty ... Upon acceptance of the offer of accord, the creditor’s receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract is supported by consideration ... Although the case law presents the more usual use of accord and satisfaction as a defense by the debtor against the creditor, it is evident that accord and satisfaction equally applies to both parties. Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement ... Indeed, a validly executed accord and satisfaction precludes a party from pursuing any action involving the original, underlying claim ... The defendant bears the burden of proving accord and satisfaction when it is pleaded as a special defense ...
‘A trial court’s determination with respect to whether a claim has been discharged by accord and satisfaction is a question of fact ... [W]hether a meeting of the minds has occurred is a factual determination[.]" (Citations omitted; internal quotation marks omitted.) Ass’n Resources, Inc. v. Wall, 298 Conn. 145, 187-88, 2 A.3d 873 (2010).
" To prove an accord and satisfaction, the defendant must show that at the time of the agreement there was a good faith dispute over the existence of a debt or over an amount owed, and that the debtor and the creditor negotiated a contract of accord to settle the claim ... The accord must be a new agreement based on new consideration ... The proponent must be able to show that there was a meeting of the minds, and that the offer by the debtor was clearly tendered as full satisfaction of the debt and that the payment was knowingly accepted." (Citations omitted.) Munroe v. Emhart Corp., 46 Conn.App. 37, 42-43, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997).
The court finds that the parties entered into an agreement to settle their differences, amounting to accord and satisfaction, which bars the plaintiffs’ claims. In their post-trial memorandum, pages 6-7, 9-10, Connective, Boyle and Zenstein argue that a settlement had been reached. The accord and satisfaction is equally applicable to and bars Connective’s claim against the plaintiffs for attempting to enforce the lease and to evict Connective, and its damages claim for $13,993.94 for relocating to a new location. See Ass’n Resources, Inc. v. Wall, supra, 298 Conn. 187-88 (accord and satisfaction equally applies to both parties). Those aspects of the counterclaims were encompassed by the parties’ settlement agreement.
Connective’s remaining claim is for attorneys fees and costs as a result of the plaintiffs’ filing of this lawsuit after the parties had an agreement. See defendant’s post-trial memorandum, p. 10 (" but for Saporos[o] filing this lawsuit after the parties had an agreement, Connective would not have incurred attorneys fees and costs in the amount of $33,185.74" ). Connective argues that its legal fees and costs are recoverable pursuant to its cause of action based on CUTPA. See defendants’ post-trial memorandum, page 5.
" [T]o be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation." (Internal quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008).
This court agrees with other recent decisions as to whether attorneys fees incurred in defense of an action may be recovered as an ascertainable loss under CUTPA. " Regarding the issue of whether attorneys fees could constitute an ascertainable loss under CUTPA, the Connecticut Supreme Court has stated, in dicta, that ‘it is doubtful that the defendants would have been able to establish that the attorneys fees they incurred in defending the plaintiff s action constituted damages recoverable under General Statutes § 42-110g(a) ...’ Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 685, 657 A.2d 1087 (1995). This result makes sense because CUTPA allows for the recovery of both damages; General Statutes § 42-110g(a); and attorneys fees. General Statutes § 42-110g(d). Under CUTPA, [t]he moving party must prevail on the CUTPA cause of action before such [attorney’s] fees and damages must be awarded ... As stated by one Superior Court judge when rejecting a claim that attorneys fees could qualify as an ascertainable loss under CUTPA: ‘The defendant contends that the cost of defending against this suit constitutes an ascertainable loss compensable under CUTPA ... CUTPA states, in § 42-110g(d) that " in addition to the relief provided in this section" the court may award costs and attorneys fees. If the defendant’s contention is correct, this language would be superfluous.’ Brookside Properties v. Pim-John, Inc., Superior Court, judicial district of Windham, Docket No. CV-93-0045795 (January 23, 1997, Sferrazza, J.). Given this authority, the court finds that simply alleging damages from attorneys fees incurred in defending a lawsuit is insufficient to allege an ascertainable loss or actual damages under CUTPA ... Therefore, the defendant’s counterclaim must fail." (Citations omitted; internal quotation marks omitted.) RJ Reuter, LLC v. Fifty-Eight Lgfayette St., LLC, Superior Court, judicial district of Waterbury, Docket No. CV 13 6019983 (April 29, 2016, Pellegrino, J.T.R.).
CONCLUSION
For the reasons stated above, judgment may enter: (1) for the defendants and against the plaintiffs on the complaint; and (2) for the plaintiffs and against defendant Connective Wireless, Inc. on the amended counterclaim. It is so ordered.