Opinion
NBHCV166001865
12-17-2019
Cathleen Dipierdomenico v. Centrix Management Co., LLC
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Aurigemma, Julia L., J.
MEMORANDUM OF DECISION
Aurigemma, J.
The plaintiff, Cathleen Dipierdomenico, seeks to recover damages from the defendant, Centrix Management Commission, LLC. The defendant has filed a counterclaim to recover damages from the plaintiff and/or offset damages it owes to the plaintiff. The trial to the court took place on August 6, 2019 and August 7, 2019.
Pleadings
The operative complaint is the Third Amended Complaint dated April 5, 2019. That complaint contains five counts: One) Failure to return security deposit and interest; Two) Failure to pay order of attorneys fees from a prior action; Three) Intentional Infliction of Mental Distress; Four) Conversion of the plaintiff’s vehicles; and Five) Violation of the Connecticut Unfair Trade Practices Act.
The original complaint is dated September 25, 2016. It was served on September 29, 2016 and returned to court on October 4, 2016. That complaint contains two counts: One)Failure to Account for Security Deposit and Interest; and Two) Violation of the Connecticut Unfair Trade Practices Act.
The Second Amended Complaint is dated January 31, 2018 and was filed on February 5, 2018. That complaint contains the following allegations which were not in the original complaint but were present and expanded upon in the operative complaint:
12. Defendant, acting by its agents, engaged in a pattern of deceptive, reckless, and wanton malicious behavior toward Plaintiff, including:
A. refusal to repair the air conditioning/heating system;
B. reporting the plaintiff to mental health authorities as unstable, dangerous, a "hoarder," heating with open oven in winter weather, and being suicidal;
C. having the plaintiff’s car towed for failure to have a parking sticker, even though the defendant refused to provide the current sticker to the resident plaintiff;
D. continual refusal to pay plaintiff for the duly awarded attorneys fees in the amount of $3960 awarded to plaintiff in the Summary Process action between the parties with Docket No. NBSP-059676 as referred to in defendant’s Fourth Count of its Second Amended Counterclaim.
The operative counterclaim is the Second Amended Counterclaim dated August 3, 2017, which alleges vexatious litigation in Count One, security deposit accounting damages in Count Two, attorneys fees in Count Three and offset in Count Four. Count Four alleges:
1. At all relevant times the defendant was the landlord/manager of the plaintiff’s former apartment at 1437 Willard Ave. #2, Newington, Connecticut (the "subject premises") and was the names landlord on the parties (sic) last written lease.
2. During the plaintiff’s occupancy at the subject premises, the defendant, as landlord, brought a summary process eviction in 2014 against the plaintiff with DN-NBSP-059676, resulting in a court award dated November 6, 2014 to the plaintiff herein of attorneys fees in the amount of $3,960.
3. The defendant seeks offset of any amounts awarded in this suit to that Court Order.
Facts
After trial the court finds the following facts. The plaintiff leased an apartment unit at 1437 Willard Ave, Unit Two, Newington, Connecticut (the "Premises"), under a written lease from December 2002 through November 2012. The last written lease between the plaintiff and the defendant, Centrix Management Commission, Inc. ("Centrix") was signed by Centrix manager, Donna Fleury, on October 5, 2011 and signed by the plaintiff on October 17, 2011 (the "Lease"). The term of the Lease was December 1, 2011 through November 30, 2012. The rent under the Lease was $975 per month.
The Lease provides in pertinent part:
9. NON RENEWING : This Lease shall not renew itself for any further period of time beyond its ending date as seen in Paragraph One. We are not obligated to renew Your lease. The mere act of You Remaining in the apartment beyond its ending date will not create a new tenancy or a new leasing agreement. If You remain beyond the ending date, You will become a "tenant at sufferance," and You shall still be bound by all terms of this Lease and By the Addendum entitled "AGREEMENT ON USE AND OCCUPANCY PAYMENTS."
11. LEGAL FEES : Upon violation of any term of this Lease, You are responsible for reasonable attorneys fees and costs incurred by Us. If We incur legal fees to defend a suit as to Our obligations under this Lease, including security deposit disputes, and if We are the prevailing party, You will be responsible for payment of legal fees and costs.
The plaintiff paid a security deposit of $1927.24 to the defendant. After the Lease expired the plaintiff continued to live at the Premises on a month-to-month basis. The Premises was part of Section 8 Housing and the obligations of the parties were subject to the requirements of the Section 8 Administrator, Imagineers, Inc. As of the date of the trial the interest on the security deposit was $265.49.
The plaintiff introduced into evidence documents from the Central Connecticut Health District which reflect complaints which the plaintiff made to it. The first complaint is dated October 31, 2012 and cites plumbing issues, doors not closing properly and heat not working. The Health District personnel found that the plumbing was generally working properly and there was heat. The landlord notified the Health District on November 30, 2012 that the plaintiff was a hoarder and that she was covering heating vents, causing a fire hazard. The inspector found that there were not heating vents covered and that the apartment was "cluttered but clean." Ex 10.
On October 8, 2013 the plaintiff through her attorney complained to the Health District about odors from her refrigerator, a ceiling water leak and stove elements that were not working. The Health District could not substantiate the odor and did not find any violations.
The defendant failed to fix the air conditioning system at the Premises starting in June of 2014 and the heating system in October/November of 2014. The Lease required the defendant to provide air conditioning to the Premises (¶14) and also required the defendant to make reasonable repairs to the Premises.
On October 20, 2014 the defendant sent the plaintiff a letter indicating that it was going to increase her rent from $983 per month to $1,025 per month. The letter further stated:
You are to inform us in writing that you agree or refuse to accept this increase no later than October 28, 2014. Your failure to respond will be deemed a refusal to agree to the increase.
Due to your unwillingness to relocate, we have no choice but to upgrade the heating/air conditioning system while you reside in the apartment. We will need to do upgrades immediately after signing the form ID#NCV-125; therefore we will need entry into the apartment for the month of December 2014 and January 2015.
The plaintiff did not sign the new lease because Section 8 had not approved the rent increase. The Section 8 program representative advised the defendant by letter dated December 1, 2014 that the rent for the Premises would remain at $983, with the tenant’s portion thereof being $159.
On November 17, 2014, the plaintiff complained to the Health District that there was no heat in her apartment. On November 25, 2014 the Office Director of Health of the Central Connecticut Health District advised the defendant that it had found a health violation at the Premises: "Lack of adequate heating system, forced hot air heating system not functioning and not operable." Ex 8.
Thereafter the defendant fixed the heating system. The Health District’s records indicate that an inspection on December 16, 2014 revealed that the heat at the Premises was working.
In 2014 and 2015 the defendant was renovating the Premises and attempted to relocate the plaintiff to another unit. However, she did not want to move to another unit. Thereafter the defendant and its agents took extraordinary actions to try to get the plaintiff to leave the Premises. The failure to fix the heating and air conditioning described above were example of such actions. In addition, Attorney Shluger, who represented the defendant, called the Intercommunity Health Organization in East Hartford, and complained that the plaintiff was living with no heat in her apartment, using the stove as a heating source. He further stated that the plaintiff had mental health issues, was a hoarder, and was a danger to herself and others. The health inspector found no substance to Attorney Shluger’s complaint and as stated above, ordered immediate repair of the heating system. The plaintiff found Attorney Shluger’s allegations, particularly those as to her mental health, to be offensive and embarrassing.
Prior to 2015 the defendant brought a summary process action against the plaintiff. This lawsuit ended in favor of the plaintiff. The court, Woods, J., awarded the plaintiff attorneys fees pursuant to Connecticut General Statutes § 42-150bb as a consumer who had successfully defended against the defendant’s claims. Judge Woods ordered that attorneys fees in that amount of $3,960 be paid to the defendant’s attorney "as trustee for the defendant on or before Wednesday, December 10, 2014. Interest on that amount calculated pursuant to Connecticut General Statutes § 37-3a at the maximum rate of 10% per annum is $1980. As of the date of trial neither the attorneys fees, nor interest thereon had been paid. According to the brief of the plaintiff, the $3,960 in attorneys fees was paid on August 22, 2019. However, no interest has been paid.
By letter dated October 20, 2014 the defendant advised the plaintiff that it wished to renew her lease to increase her rent from $983 per month to $1,025 per month. As stated above, the Section 8 program administrator had not approved the increase. Instead, it had approved a rental rate of $983 per month. By complaint dated January 16, 2015, the plaintiff filed a Fair Rent complaint against the defendant. It is unclear from the evidence whether the plaintiff was aware at the time she drafted that complaint that the lease being offered by the defendant had not been approved by the Section 8 program administrator. The defendant should have been aware of the fact that its proposed lease had been rejected by the Section 8 program administrator due to a letter dated December 1, 2014 which advised it that the rent commencing December 1, 2014 would be $983 per month with $159 to be paid by the plaintiff. The Fair Rent commission decided the complaint in favor of the defendant.
Based on the fact that the Lease which was the subject of the plaintiff’s Fair Rent complaint was not approved by the Section 8 Program administrator, the plaintiff had a valid basis to bring the complaint and doing so did not constitute vexatious conduct.
Although the plaintiff had lived at the Premises since 2002, in 2015 the defendant refused to give the plaintiff a parking sticker for the Premises. This resulted in the plaintiff’s car being towed twice. She had to spend $600 to obtain the return of the car from the towing company.
The defendant commenced a second summary process action against the plaintiff. This action resulted in a judgment of eviction. At the time of the judgment the defendant there was no written lease in effect, the Lease having expired on November 30, 2012. For a period from June 2014 through at least January of 2015, the defendant was in breach of the terms of the Lease in that it had failed to repair heating and air conditioning and had failed to provide the plaintiff with a parking permit, causing her car to be towed.
The plaintiff and her 17-year-old son remained at the Premises until August 24, 2015. The defendant contacted Eversource, which supplied electricity to the plaintiff’s unit, and had the power turned off effective August 19, 2015. This meant that the plaintiff had to move out without the benefit of electricity in her apartment. On August 24, 2015 the plaintiff dropped off her keys at the defendant’s office. On September 4, 2015 the plaintiff delivered a letter to the defendant advising the defendant of her new address.
Donna Fleury, who was an employee of the defendant, testified that she believed that the plaintiff had moved out on September 4th. However, Ms. Fleury also testified that she changed the Eversource bill in the plaintiff’s unit because she believed that the plaintiff had moved out on August 19, 2015. The court does not find Ms. Fleury’s testimony as to the date of the plaintiff’s vacating the unit to be credible. This court further finds that August 24, 2015 is the date that the plaintiff vacated her apartment.
On October 1, 2015 the plaintiff received an accounting of her security deposit. The accounting provided that the security deposit was $1,927.24 and interest was $145.31. It also listed unpaid rent in the amount of $1,952.00, cleaning charges of $510 and damages charges of $575. The accounting indicated that based on the foregoing charges and unpaid rent, the plaintiff owed the defendant $964.45. The defendant’s attorney admitted at trial that there was no additional rental amount due from the plaintiff because the unpaid rent was based on a lease with an increased rental amount that had never been approved by the Section 8 administrator. The court finds that the cleaning and damages charges were baseless. The defendant was in the process of gutting and refurbishing the units. Therefore, cleaning was not necessary. Moreover, the court finds that the plaintiff did leave the Premises in a clean condition. The damages claims seem to have been invented by the defendant.
In Count One of the Third Amended Complaint, the plaintiff seeks damages for the defendant’s failure to return her security deposit timely in violation of Connecticut General Statutes § 47a-21(d), which provides:
(d) Payment of security deposit and interest at termination of tenancy . (1) Not later than the time specified in subdivision (2) of this subsection, the person who is the landlord at the time a tenancy is terminated, other than a rent receiver, shall pay to the tenant or former tenant: (A) The amount of any security deposit that was deposited by the tenant with the person who was landlord at the time such security deposit was deposited less the value of any damages that any person who was a landlord of such premises at any time during the tenancy of such tenant has suffered as a result of such tenant’s failure to comply with such tenant’s obligations; and (B) any accrued interest. If the landlord at the time of termination of a tenancy is a rent receiver, such rent receiver shall return security deposits in accordance with the provisions of subdivision (3) of this subsection.
(2) Upon termination of a tenancy, any tenant may notify the landlord in writing of such tenant’s forwarding address. Not later than thirty days after termination of a tenancy or fifteen days after receiving written notification of such tenant’s forwarding address, whichever is later, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest, or (B) the balance of such security deposit and accrued interest after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any landlord who violates any provision of this subsection shall be liable for twice the amount of any security deposit paid by such tenant, except that, if the only violation is the failure to deliver the accrued interest, such landlord shall be liable for ten dollars or twice the amount of the accrued interest, whichever is greater.
The plaintiff did not receive the accounting from the defendant until October 1, 2015, 36 days after she had vacated the apartment and more than 15 days after the defendant received notice of her new address. Therefore, under § 47a-21(d)(2) judgment enter in favor of the plaintiff for double the amount of the security deposit, or $3854.48 and double the amount of accrued interest, $530.98, for a total of $4385.46.
The plaintiff is also awarded attorneys fees under the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § § 42-110a et seq. (CUTPA) as the court finds that the defendant made a practice of including doubtful or invalid expenses in the security deposit accounting to attempt to make the amount it had to repay to tenants as low as possible. In addition, in this case the defendant knew or should have known that the amount of rent it claimed from the plaintiff on the accounting was invalid. The attorneys fees will be awarded after a hearing when the plaintiff’s attorney may be questioned on his affidavit of attorneys fees.
In Count Two the plaintiff seeks payment of the attorneys fees of $3,960 which Judge ordered to be paid on or before December 10, 2014. That amount has been paid after the trial of this action. However, the plaintiff seeks interest on that amount. The plaintiff has calculated the interest to be $1,980. The calculation used the rate of 10% per annum, the maximum amount allowed under Connecticut General Statutes § 37-3a. Judgment enters in favor of the plaintiff on Count Two in the amount of $3,960 and the amount of $1,980 for interest on the attorneys fees awarded. The $3,960 has already been paid, but the amount of $1,980 remains due and owing by the defendant.
In Count Three the plaintiff seeks damages for intentional infliction of mental distress relating to the actions Attorney Shluger in contacting the Health Agency about the plaintiff’s mental health and other conduct set forth above. Count Three alleges that Attorney Shluger’s conduct occurred on November 24, 2014. In Count Four the plaintiff seeks to recover for conversion associated with the towing of her car due to the defendant’s failure to provide her with a parking permit. The acts complained of in Count Four are alleged to have occurred in November 2013.
The defendant argues that Counts Three and Four are barred by the statute of limitations, Connecticut General Statutes § 52-577, which provides that "no action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The plaintiff admits in her brief that the Second Amended Complaint was filed within three years and two months of the conduct complained of. She argues that the operative complaint, the Third Amended Complaint, merely elaborates on and relates back to the Second Amended Complaint. The court agrees.
However, as the plaintiff admits, the Second Amended Complaint was filed more than three years after the conduct for which recovery is sought in Counts Three and Four. The plaintiff has not alleged any exception to the statute of limitations. Rather, she argues that the Second Amended Complaint (and the Third) relate back to the date of the original complaint. She bases this argument on Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 157 A.3d 70 (2017), and cases cited therein. The court in Briere stated:
"Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims ... Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995)." (Internal quotation marks omitted.) Alswanger v. Smego, supra, 257 Conn. at 65, 776 A.2d 444. "[I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations ." Grenier v. Commissioner of Transportation, 306 Conn. 523, 560, 51 A.3d 367 (2012).
More specifically, where the proposed allegations promote a change in or an addition to a ground of negligence arising out of a single group of facts we have allowed use of the relation back doctrine. Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991) ("new allegations did not inject two different sets of circumstances and depend on different facts ... but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability" [citation omitted; internal quotation marks omitted] ); ... On the other hand, where new allegations directly contradict those in the operative complaint we have held that they do not relate back to those in the operative complaint. Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 806-08, 945 A.2d 955 (2008) (allegation that defendant surgeons used incorrect spinal fusion material during surgery contradicted, and therefore did not relate back to, allegation that surgeons should not have performed surgery at all on plaintiff); ...
"When comparing [the original and proposed amended] pleadings, we are mindful that, ‘[i]n Connecticut, we have long eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ... [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties ... Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.’ ... Deming v. Nationwide Mutual Ins. Co., [ 279 Conn. 745, 778, 905 A.2d 623 (2006)]." Dimmock v. Lawrence & Memorial Hospital, Inc., supra, 286 Conn. at 802, 945 A.2d 955. We acknowledge that in our prior cases applying the relation back doctrine we perhaps have not provided as much clarity as necessary for the trial court to apply the doctrine consistently. After a careful review of our case law, it is apparent that in order to provide fair notice to the opposing party, the proposed new or changed allegation of negligence must fall within the scope of the original cause of action, which is the transaction or occurrence underpinning the plaintiff’s legal claim against the defendant . Determination of what the original cause of action is requires a case-by-case inquiry by the trial court. In making such a determination, the trial court must not view the allegations so narrowly that any amendment changing or enhancing the original allegations would be deemed to constitute a different cause of action. But the trial court also must not generalize so far from the specific allegations that the cause of action ceases to pertain to a specific transaction or occurrence between the parties that was identified in the original complaint. While these guidelines are still broad, a bright line rule would not serve the purpose of promoting substantial justice for the parties.
If new allegations state a set of facts that contradict the original cause of action, which is the transaction or occurrence underpinning the plaintiff’s legal claim against the defendant, then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court’s inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely . Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts .Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. at 207-11. Emphasis added.
In Briere, the original complaint alleged that the defendant physician was negligent in performing surgery on the plaintiff because he negligently failed to use a skull clamp properly. Several years later the plaintiff amended his complaint to allege that the defendant physician was negligent in that he improperly used a retractor during surgery. The court held that the amended complaint related back to the date of the original complaint because the original complaint alleged generally that the defendant negligently used medical instruments solely within his control during spinal surgery, which adequately put the physician on notice that the original complaint might include the claim of negligent use of a retractor. The amended complaint contained allegations about the same actors, alleged events that occurred during the same period of time, occurred at the same location, and resulted in the same injury.
In this case the original complaint related only to the defendant’s failure to timely return the plaintiff’s security deposit and timely provide the plaintiff with an accounting of the security deposit and offsets thereto. The Second Amended Complaint pertains to the actions of Attorney Shluger and the defendant’s agents who dealt with parking permits. The alleged conduct occurred at a different time, and resulted in different injuries.
Insofar as Count Five pertains to the failure to return the security deposit and accounting, it is timely. Insofar as it relates to the allegations of Counts Three and Four, it is barred by the Statute of Limitations for the reasons set forth above.
Count One of the counterclaim alleges vexatious litigation by the plaintiff in bringing an action before the Fair Rent Commission. In Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, 281 Conn. 84, 912 A.2d 1019 (2007), the Supreme Court reviewed the elements of a claim for vexatious limitation:
"A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor. Calvo v. Bartolotta, 112 Conn. 396, 397, 152 A. 311 [1930]; Schaefer v. O.K. Tool Co., 110 Conn. 528, 148 A. 330 [1930]. Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action. Paranto v. Ball, 132 Conn. 568, 571, 46 A.2d 6 [1946]; McGann v. Allen, 105 Conn. 177, 186, 134 A. 810 [1926]. Malice may be inferred from lack of probable cause. Zenik v. O’Brien, 137 Conn. 592, 596-97, 79 A.2d 769 [1951]; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 496, 16 A. 554 [1888]. The want of probable cause, however, cannot be inferred from the fact that malice was proven. McGann v. Allen, supra, at 187, 134 A. 810." Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). A statutory action for vexatious litigation under General Statutes § 52-568; see footnote 1 of this opinion; differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages. In either type of action, however, "[t]he existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." Brodrib v. Doberstein, 107 Conn. 294, 296, 140 A. 483 (1928). Accordingly, our review is plenary. State v. Gibson, 270 Conn. 55, 66, 850 A.2d 1040 (2004).
The test for deciding whether a litigant acted with probable cause also is well settled. "For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of ... Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991); accord Wall v. Toomey, 52 Conn. 35, 36 (1884). Accordingly, the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one.Falls Church Group, Ltd v. Tyler, Cooper & Alcorn, supra, at pp.94-95. Emphasis added.
The Fair Rent complaint brought by the plaintiff was not vexatious because the Lease which was the subject of the complaint was not approved by the Section 8 Program administrator. The defendant apparently never informed the Fair Rent Commission about this lack of approval. Had it done so, the complaint probably would not have been decided in the defendant’s favor. The plaintiff had a valid basis to bring the complaint and doing so did not constitute vexatious conduct. Judgment enters in favor of the plaintiff on Count One of the counterclaim.
Count Two of the counterclaim seeks the damages set forth in the Security Deposit accounting. As explained above, the defendant’s attorney has admitted that the unpaid rent listed in the accounting was not valid. The court has found that the other amounts listed in the accounting were invalid. Judgment enters in favor of the plaintiff on Count Two of the counterclaim.
Count Three of the counterclaim seeks attorneys fees for prosecuting the second eviction against the plaintiff and for its defense of the Fair Rent Commission case in 2015. The defendant relies on the Lease provision for attorneys fees in this count. The Lease, which ended on November 30, 2012, provided:
11. LEGAL FEES : Upon violation of any term of this Lease, You are responsible for reasonable attorneys fees and costs incurred by Us. If We incur legal fees to defend a suit as to Our obligations under this Lease, including security deposit disputes, and if We are the prevailing party, You will be responsible for payment of legal fees and costs.
The plaintiff argues that because she never signed another lease after November 30, 2012, the above-cited provision does not apply. However, paragraph 9 of the Lease set forth above provides that if the plaintiff remains at the Premises after the written lease expires, she will still "be bound by all terms of this Lease."
The defendant’s conduct in trying to make the plaintiff’s tenancy so uncomfortable that she would leave, in failing to fix her air conditioning or heating until forced to do so by the public health authorities and in embarrassing the plaintiff by telling the Community Health Agency that she had mental health issues, could not afford the plaintiff damages because they were not timely plead. However, such conduct clearly constituted a violation of the Lease terms by the defendant.
"As a contract, a lease is subject to the same rules of construction as other contracts." Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 35, 900 A.2d 513 (2006). The defendant cannot recover attorneys fees which might otherwise be due under the Lease because it has violated its obligations under the lease and has engaged in bad faith conduct toward the plaintiff. See David M Somers and Associates, P.C. v. Busch, 283 Conn. 396, 406, 927 A.2d 832 (2007). Judgment enters in favor of the plaintiff on Count Three of the counterclaim.
Count Four seeks an offset of any damages awarded in the counterclaim against the attorneys fees which Judge Woods ordered the defendant to pay to the plaintiff in 2014. As there have been no damages awarded on the counterclaim, there is no offset. Judgment enters in favor of the plaintiff on Count Four of the counterclaim.