author: BISHOP, J.

text:
    PAUL RADZIK ET AL. v. CONNECTICUT CHILDREN’S MEDICAL CENTER ET AL.
    (AC 34952)
    DiPentima, C. X, and Sheldon and Bishop, Js.

      Argued June 3
    officially released September 17, 2013

      Michael G. Rigg, with whom were Lorinda S. Coon, and, on the brief, Donna R. Zito and William J. Scully, for the appellants (defendants).

      Hugh D. Hughes, with whom, on the brief, were William F. Gallagher, Ruben Honik, Kevin Fay and Leslie Gold McPadden, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

The defendants, Connecticut Children’s Medical Center (CCMC), Francisco A. Sylvester and CCMC Faculty Practice Plan, Inc., appeal from the trial court’s order granting the motion of the plaintiff, Paul Radzik, individually and as the administrator of the estate of his son, Jonathan Radzik, to compel electronic discovery. The defendants claim (1) that the discovery order constitutes a final judgment and therefore this court has jurisdiction over the appeal, and (2) that the court abused its discretion in permitting the “imaging” of three personal computers used by Sylvester. We conclude that the discovery order does not constitute a final judgment and, accordingly, dismiss the appeal.

The plaintiff alleged the following facts in his amended complaint. Sylvester, aboard certified specialist in pediatrics who as a servant, agent or employee of CCMC and CCMC Faculty Practice Plan, Inc., treated Jonathan Radzik, a minor, for Crohn’s disease. In the course of such treatment, Sylvester prescribed the drug Remicade, which is administered by intravenous infusion. Jonathan Radzik underwent infusions of Remi-cade at CCMC and under the care and supervision of Sylvester from April, 2003 to October, 2005. In January 2007, Jonathan Radzik died as a result of Hepatosplenic T-Cell Lymphoma (HTCL).

The plaintiff brought the present action in 2009. In his amended complaint, the plaintiff alleged, inter alia, that when Sylvester prescribed Remicade for Jonathan Radzik, he was aware that: “[T]he manufacturer of Remicade had circulated warnings to the medical community that the use of Remicade had been known to cause fatal T-cell lymphomas in patients who were also receiving azathioprine . . . [and that] the type of lymphoma most commonly associated with Remicade treatment was an aggressive and typically fatal variant” and, further, that he had failed to obtain parental permission to prescribe Remicade for Jonathan Radzik. The amended complaint also alleged two counts of battery.

In 2009, the plaintiff served interrogatories and requests for production on the defendants, which requested, inter alia: The contents of any investigative files or “any other documentary material” which support the allegations in the action and any information regarding Remicade, which any of the defendants have in their possession. At his August 25, 2010 deposition, Sylvester testified that he understood the term “documents” as used in the plaintiffs 2009 interrogatories to include electronic documents, but that he had not searched his e-mail or e-mail archives for information pertaining to Jonathan Radzik, Remicade and/or HTCL.

On September 28, 2010, the plaintiff filed, a motion to compel discovery, in which he claimed that his requests for production “most certainly embod[y] all electronic documents in the defendants’ possession” and that the defendants have failed to comply with discovery in that they failed to conduct searches for electronic documents stored on the computers of Sylvester and his staff. On October 21, 2010, the plaintiff filed an amended motion to compel discovery. In that motion, the plaintiff stated that despite having requested, via letter dated September 20, 2010, all electronic documents in Sylvester’s possession that contain several specified search terms, Sylvester testified, at the resumption of his deposition on October 7, 2010, that he had only searched one of his two computers using a more narrowed search. In this motion, the plaintiff also highlighted Sylvester’s testimony at the October, 2010 deposition that he possessed a separate electronic library located at St. Francis Research Laboratory (St. Francis) and that a search of this electronic database had not been conducted. The plaintiff requested that the court order, inter alia, that the defendants conduct a search of Sylvester’s work computer, personal notebook and/or laptop, all memory storage devices and e-mail databases for all electronic documents relating to this action. The plaintiffs request specified sixteen terms to be utilized in the anticipated search. In response, the defendants objected to the plaintiffs motion to compel on the grounds that it included an extraordinary scope and breadth of demands and that any possible connection between Remicade and HTCL was not known to Sylvester or the community of pediatric gastroenterologists at the time Jonathan Radzik was infused with Remicade.

At the November 29, 2010 hearing on the plaintiffs motion to compel, the court posited: “[T]he critical issue which is behind all this attempted discovery . . . is what did Dr. Sylvester know and when did he find it out? And it may turn out to be inadmissible, but . . . it certainly would be discoverable.” The court stated that it would permit a limited discovery into Sylvester’s computers and asked both parties to “work out a set of search terms that, would lead to discovery of anything on [Sylvester’s] three computers which would tend to reflect what Dr. Sylvester knew and when he knew it.”

The parties were unable to agree. By motion dated January 10, 2011, the defendants filed a brief renewing their objection to the proposed search and requested that this discovery not be permitted. On January 13, 2011, the defendants filed a motion for reconsideration, requesting the court to reconsider its November 29, 2010 order regarding disclosure of information from Sylvester’s personal and work computers.

The court held another hearing on the discovery issues on January 24, 2011. The court noted that the privacy concerns of having a third party conduct the searches was “enormous” and suggested that staff at CCMC and St. Francis conduct the searches. The court concluded: “I’m not issuing any specific orders that anybody has to do anything today. My prior orders are vacated.”

In March, 2011, the defendants filed a supplemental memorandum of law regarding the production of electronic documents. In that motion, the defendants’ counsel reported that the parties had reached a partial agreement under which CCMC would conduct a search of Sylvester’s e-mail account using certain specified search terms, but objected to the plaintiff’s request that any documents found be produced “in their native format with load files containing metadata that describes the history of the electronic document.” The defendants’ counsel also argued that any attorney-client communications identified by the e-mail search should be automatically excluded and be included in the in camera review.

On March 9, 2012, the plaintiff argued in a motion entitled “Request for Adjudication of Plaintiff’s Motion to Compel and Plaintiff’s Amended Motion to Compel,” that the defendants’ unwillingness to produce the requested electronic discovery, among other factors, made it necessary to create copies of the requested computer hard drives at St. Francis and CCMC by imaging them. The plaintiff referenced an affidavit attached to a letter sent to the court by the defendants’ counsel dated February 14, 2012, in which the information technology manager at CCMC testified that he had searched Sylvester’s e-mail account using agreed upon search terms and found no results; he also testified that CCMC purged its computer systems and e-mail accounts in February, 2006, and again in November, 2006. The defendants filed a memorandum of law in opposition to the plaintiff’s request to image, or in other words, to conduct an independent forensic search, of the computer servers of St. Francis and CCMC, citing privacy concerns such as those included in the regulations promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

On March 19, 2012, the court held another hearing regarding the electronic discovery issues raised by the plaintiffs request. At this juncture, the court did not issue an order, but stated that it would explore the feasibility of appointing a special master responsible for carrying out duties deemed necessary such as protecting the privacy interests of nonparties.

With the matter still in abeyance, the plaintiff filed an additional memorandum of law on March 22, 2012, through which he renewed his request to image the hard drives of computers used by Sylvester. In their responsive memorandum of law, the defendants argued that there was no legal basis for ordering the volume of discovery that would require the services of a special master. The defendants argued that the plaintiffs proposal was “the equivalent of general civil search warrants” to search servers at CCMC for deleted e-mails and search servers at St. Francis for articles from medical literature that Sylvester had gathered. The defendants contended that “the harm of the intrusion sought by the plaintiff is wholly unwarranted” in light of prior searches conducted in response to the plaintiffs discovery requests.

On July 19, 2012, the court issued a ruling on the pending motions regarding electronic discovery, which ruling is the subject of the present appeal. In its written memorandum of decision, the court opined that the nature and extent of Sylvester’s knowledge of the alleged link between Remicade and HTCL at the time of the infusions was relevant to the plaintiffs informed consent claim and therefore, that the plaintiffs counsel was entitled to conduct discovery on this issue. The court noted, however, that it was “particularly concerned” with the plaintiffs request that the servers at CCMC and St. Francis be imaged and examined by the plaintiffs forensic consultants, and denied those requests without prejudice. The court ordered the following: “Plaintiff will be permitted to image the hard drives of three personal computers which . . . Sylvester has testified he used at CCMC, at St. Francis and at his home, after which their contents will be forensically examined. . . . The court recognizes the potential implications of the order, particularly for patients whose personal medical information is or may be contained on the computers and for members of Dr. Sylvester’s family who have used the computer. In order to minimize such concerns, the court will require that any one who is involved in imaging one or more of the desktop computers or involved in the investigation thereof sign a protective order—to be drafted by the parties—which will set forth the court’s expectations regarding confidentiality.” The court further ordered that the forensic investigation of the computers be conducted by an independent forensic consultant. The order provided that a “discovery master will be authorized to hire and supervise the forensic consultant who will perform the necessary searches, to maintain the confidentiality of the results, and to report those results to the court.” This appeal followed.

We first address whether the discovery order is an appealable final judgment. See, e.g., State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (“[because our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim”). We conclude that the discovery order does not constitute an appealable final judgment under Curdo.

“[C]ertain otherwise interlocutory orders may be final judgments for appeal purposes, and the courts may deem interlocutory orders or rulings to have the attributes of a final judgment if they fit within either of the two prongs of the test set forth in State v. Curcio, [supra, 191 Conn. 31]. . . . Under Curioo, interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding, or (2) so concludes the rights of the parties that further proceedings cannot affect them.” (Citations omitted; internal quotation marks omitted.) State v. Fielding, 296 Conn. 26, 37-38, 994 A.2d 96 (2010). “Unless an order can satisfy one of these two [Curdo] prongs, the lack of a final judgment is a jurisdictional defect that necessitates dismissal of the appeal.” (Internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 467-68, 940 A.2d 742 (2008).

“With regard to discovery orders, [our Supreme Court] has noted that these orders generally do not satisfy either prong of Curdo and that, in order for appellate jurisdiction to be appropriate, a party challenging the validity of a subpoena or discovery order ordinarily must have been found in contempt of the subpoena. . . . [Our Supreme Court has] noted, however, that appeals from discovery disputes are more fact specific than would appear at first blush . . . and, accordingly . . . [has] held on several occasions that one may bring an appeal challenging a discovery order without first being held in contempt for failing to comply with such an order.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 757-58, 48 A.3d 16 (2012).

“[There are] three points salient to determining whether a discovery order could be considered an appealable final judgment. First, the court’s focus in determining whether there is a final judgment is on the order immediately appealed, not [on] the underlying action that prompted the discovery dispute. . . . Second, determining whether an otherwise nonappealable discovery order may be appealed is a fact specific inquiry, and the court should treat each appeal accordingly. . . . Third, although the appellate final judgment rule is based partly on the policy against piecemeal appeals and the conservation of judicial resources . . . there [may be] a counterbalancing factor that militates against requiring a party to be held in contempt in order to bring an appeal from a discovery order.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 760-61.

While recognizing that discovery orders ordinarily are not subject to immediate appellate review as final judgments, the defendants, nevertheless, argue that the particular discovery order in this instance satisfies Cur-do. With respect to the first prong, the defendants argue that the discovery order is a separate and distinct proceeding and that the forensic imaging likely will capture privileged information of nonparty patients. The defendants argue that they seek to vindicate the rights of those nonparty patients in this appeal.

“The first prong of the Curdo test . . . requires that the order being appealed from be severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding. . . . If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the first prong of Curdo. . . . Obviously a ruling affecting the merits of the controversy would not pass the first part of the Curdo test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal issue at the trial . . . does not necessarily render that ruling appealable. It must appear that the interlocutory ruling will not impact directly on any aspect of the [action].” (Internal quotation marks omitted.) Abreu v. Leone, 291 Conn. 332, 339, 968 A.2d 385 (2009).

In support of their argument that the first prong of Curdo is satisfied, the defendants rely primarily on Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, supra, 305 Conn. 750. Woodbury Knoll, LLC concerned a discovery order directed at a nonparty attorney to produce documents relating to his representation of a client. In that case, the plaintiffs brought a legal malpractice action against the defendants alleging negligent representation. Id., 752. The plaintiffs hired the law firm of Finn Dixon & Herling, LLP (Finn Dixon) to represent them in connection with those proceedings. Id., 753. After the plaintiffs filed the legal malpractice action, the defendants served a notice of deposition and subpoena duces tecum on Finn Dixon’s custodian of records, directing the custodian to produce all documents relating to Finn Dixon’s representation of the plaintiffs between certain dates. Id. Finn Dixon filed a motion to quash the subpoena claiming that much of the requested material was covered by the attorney-client privilege and the attorney work product doctrine. Id. The court overruled Finn Dixon’s objection and ordered compliance. Id., 754. Finn Dixon filed a writ of error challenging the court’s discovery order. Id., 755. Our Supreme Court held, relying on Abreu, that the discovery order was an appealable final judgment under the first prong of Curdo because it terminated a separate and distinct proceeding against a nonparty. Id., 757. The court concluded that “there is no compelling reason to prevent a nonparty attorney from directly appealing from a discovery order on the basis of an asserted privilege, and there are significant considerations that militate against requiring a nonpaxty attorney to be held in contempt first.” Id., 769.

In Abreu, in an underlying action, Karissa Leone, a minor, through her parent and next friend, Marjory Leone, filed a notice of claim with the claims commissioner seeking permission to bring an action against the state and the Department of Children and Families for injuries sustained by Karissa Leone when she allegedly was intentionally pushed into a pole by Geovanny, a minor child who was a ward of the state and who resided with his foster parent, Joseph Abreu. Abreu v. Leone, supra, 291 Conn. 334 and n.1. In that action, a notice of deposition and subpoena duces tecum was issued to Abreu. Id., 334-35. Abreu filed an independent action in the Superior Court asking the court to quash the subpoena and for a protective order from the deposition on the ground that he was prohibited under General Statutes § 17a-28 from disclosing the information sought regarding his foster child. Id., 335. The Department of Children and Families intervened as party plaintiff in Abreu’s action. Id. The trial court issued a decision allowing the deposition with certain qualifications; the deposition was held and Abreu refused to answer certain questions thought to be in violation of § 17a-28. Id., 335-36. The parties filed cross motions, seeking either to compel or to avoid disclosures. Id., 337. The court ordered Abreu to answer the disputed questions. Id. The Department of Children and Families appealed. Id. Our Supreme Court concluded that the court’s decision regarding the discovery order constituted a final judgment under the first prong of Curcio. Id., 338. The court reasoned that the trial court’s discovery order constituted a separate and distinct proceeding because Abreu was not a party to the underlying action, he would not have the right to appeal from that proceeding, and further that the Department of Children and Families may not have a right of appeal from the underlying action before the claims commissioner. Id., 349.

In both Abreu and Woodbury Knoll, LLC, the discovery orders were directed at nonparties. The order in the present case was not directed at nonparties; nor did it include permission for the discovery master to publish or otherwise disseminate confidential information of nonparty patients. Rather, the purpose of the order was to uncover information pertaining to this action regarding Jonathan Radzik, Remicade and Sylvester subject to further order of the court based on its anticipated in camera inspection of information gleaned from the computer searches. Specifically, the order provided protections for any information regarding nonparties contained in the three computers at issue by having a discovery master oversee the forensic consultant’s imaging of the computers and then subjecting the results of the forensic investigation to an in camera review before any dissemination.

Additionally, the record reflects that the issues at hand involve a discovery dispute between parties in ongoing litigation afid do not constitute a separate and distinct proceeding. “A party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case.” Ruggiero v. Fuessenich, 237 Conn. 339, 345-46, 676 A.2d 1367 (1996). We, therefore, conclude that the first prong of Curdo is not satisfied.

With respect to the second prong of Curdo, the defendants argue that the court’s order concludes Sylvester’s right against unreasonable searches and seizures under the fourth amendment to the United States constitution and the privacy rights of nonparty patients so that further proceedings cannot affect them. We disagree and conclude that the second prong of Curdo is not satisfied.

“The second prong of the Curdo test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal. . . . Thus, a bald assertion that [the appellant] will be irreparably harmed if appellate review is delayed until final adjudication ... is insufficient to make an otherwise interlocutory order a final judgment. One must make at least a colorable claim that some recognized statutory or constitutional right is at risk. ... In other words, the [appellant] must do more than show that the trial court’s decision threatens him with irreparable harm. The [appellant] must show that that decision threatens to abrogate a right that he or she then holds. . . . Moreover, when a statute vests the trial court with discretion to determine if a particular [party] is to be accorded a certain status, the [party] may not invoke the rights that attend the status as a basis for claiming that the court’s decision not to confer that status deprives the [party] of protections to which [it] ... is entitled. For an interlocutory order to be an appealable final judgment it must threaten the preservation of a right that the [party] already holds. The right itself must exist independently of the order from which the appeal is taken. Whe[n] a [discretionary] decision has the effect of not granting a particular right, that decision, even if erroneous, does not threaten the [party’s] already existing rights.” (Citations omitted; emphasis omitted; internal quotation omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 226-27, 901 A.2d 1164 (2006).

The defendants have claimed, under the second prong of Curdo, that the trial court’s order threatened the preservation of a right secured to them which would be irretrievably lost short of immediate appellate review. We disagree. The court ordered that the forensic investigation “be conducted by an independent forensic examiner [who] . . . shall be employed and supervised by a court-appointed discovery master. . . . The discovery master will be authorized to hire and supervise the forensic consultant who will perform the necessary searches, to maintain the confidentiality of the results, and to report those results to the court.” As noted previously in this opinion, the court’s order does not provide for dissemination of the forensic imaging results. Rather, the disclosure under the order is limited to an in camera inspection. The order provides that a discovery master, an agent of the court, oversee the forensic imaging and that the forensic consultant perform the necessary searches. The order further provides for the results of the searches to be submitted to the court for an in camera review before any dissemination. Because the order does not provide for dissemination or publication of the forensic imaging, the rights of the defendants are not irretrievably lost and may never be compromised at all should the court, based on its own review, make such a determination. Because we conclude that the discovery order is not a final judgment, it is not subject to this court’s review.

The appeal is dismissed.

In this opinion the other judges concurred.

       We refer to Paul Radzik in both capacities as the plaintiff.

       In its order, the court permitted the imaging and forensic examination of three computers used by Sylvester as follows: one at his home, one at CCMC and one at St. Francis Research Laboratory.

       The record reflects that the court’s reference to Sylvester’s three computers included a computer located in his home, one computer used by Sylvester at St. Francis, and a third used by Sylvester at CCMC.

       The Health Insurance Portability and Accountability Act of 1996 was enacted by Congress in Public Law 104-191 on August 21,1996, and has since been amended and codified in scattered sections of the United States Code.

       We need not and do not decide, at this juncture, whether an order permitting the dissemination or publication of the forensic imaging or search results would result in a final judgment.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    CENTRIX MANAGEMENT COMPANY, LLC v. ESTEPHANIE VALENCIA ET AL.
    (AC 34697)
    DiPentima, C. J., and Alvord and Bishop, Js.

      Argued April 10
    officially released September 17, 2013

      Robert Shluger, for the appellant (plaintiff).

      Ralph S. Keen III, for the appellees (defendants).

      Michael H. Clinton filed a brief for the Connecticut Coalition of Property Owners as amicus curiae.

      Cecil J. Thomas and David A. Pels filed a brief for Greater Hartford Legal Aid, Inc., et al. as amicus curiae.
   Opinion

DiPENTIMA, C. J.

The threshold issue in this appeal arising out of a summary process action is whether the reciprocal attorney’s fees in the consumer contracts statute, General Statutes § 42-150bb, applies to landlord-tenant rental agreements. The plaintiff, Centrix Management Company, LLC, appeals from the trial court’s orders awarding attorney’s fees to the defendants, Estephanie Valencia and Jose Sanchez, and distributing the court-held use and occupancy payments. The plaintiff claims that (1) the court erred in awarding the defendants attorney’s fees pursuant to § 42-150bb, (2) the award of attorney’s fees was excessive, and (3) the court erred in releasing a portion of the use and occupancy payments to the defendants pursuant to General Statutes § 47a-35b. We agree with the plaintiffs third claim, but reject the plaintiffs first two claims. Accordingly, we affirm the award of attorney’s fees, but reverse the court’s distribution of the use and occupancy payments.

The record reveals the following facts and procedural history. In June, 2010, the plaintiff landlord commenced this summary process action against the defendant tenants, who lived together in an apartment in Newington. The plaintiff alleged in the complaint that the defendants had entered into a one year lease agreement with the plaintiff in October, 2009, but that they had failed to pay their rent pursuant to the lease agreement and remained in possession of the apartment despite the fact that the time given in the notice to quit had passed. The parties agree that the lease had been entered into and contained the following provision: “LEGAL FEES: Upon violation of any term of this Lease, You are responsible for reasonable attorney’s 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.”

In July, 2010, Valencia moved to dismiss the summary process action due to lack of subject matter jurisdiction, alleging that the plaintiff did not terminate the lease by unequivocal notice to quit as required by statute. On August, 19, 2010, folio-wing a hearing, the court, Gilligan, J., granted the motion to dismiss. The plaintiff appealed to this court from the trial court’s dismissal of its summary process action.

The parties filed motions during the pendency of the appeal. On August 25, 2010, the defendants filed a motion for attorney’s fees, reasoning that they had been successful in defending the summary process action and requesting $2430 in attorney’s fees pursuant to § 42-150bb. On December 23, 2010, the trial court, Gilligan, J., issued a memorandum of decision in which it denied the motion for attorney’s fees. Centrix Management Co., LLC v. Valencia, Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP-053902 (December 23, 2010). In May, 2011, the plaintiff filed a motion pursuant to General Statutes § 47-35a (c) requesting an order directing the defendants to deposit use and occupancy payments with the court during the pendency of the appeal. The trial court, Oliver, J., granted the motion, requiring the defendants to pay $840 per month commencing on May 12, 2011, during the pendency of the appeal.

On December 20, 2011, this court affirmed the judgment of the trial court dismissing the action, reasoning, inter alia, that it properly had determined that the actions of the plaintiffs property manager rendered the previously unequivocal notice equivocal. See Centrix Management Co., LLC v. Valencia, 132 Conn. App. 582, 586-91, 33 A.3d 802 (2011).

On December 28, 2011, the plaintiff filed a motion requesting that the use and occupancy moneys paid to the court by the defendants during the pendency of the appeal be released. On December 30, 2011, Valencia filed an objection to the plaintiffs motion arguing that “[a]ttomey’s fees .should be paid prior to release of payments to the court being paid over to the [plaintiff].” In January, 2012, Valencia filed a motion for attorney’s fees requesting that the court order the plaintiff to pay attorney’s fees, pursuant to § 42-150bb, in the amount of $9375 to the defendants because they had been the prevailing party in the motion to dismiss and on appeal.

On May 24, 2012, the court, Oliver, J., issued two orders. The first concerned Valencia’s motion for attorney’s fees. In that order, the court determined that “all the prerequisites for recovery of attorney’s fees pursuant to ... § 42-150bb” had been established and awarded the defendants attorney’s fees in the amount of $9375 for the successful defense of the summary process action. The second order concerned the plaintiffs motion for distribution of the use and occupancy payments. In that order, the court ordered that the $9240 in use and occupancy payments be equally distributed between the parties in the amount of $4620 to each side, reasoning that the defendants had incurred $9376 in attorney’s fees in the successful defense of the action and that the plaintiff had been awarded damages and costs in the amount of $9240 in a separate action for the defendants’ use and occupancy of the premises. This appeal followed. We granted the application of the Connecticut Coalition of Property Owners to file an amicus curiae brief in support of the plaintiff, and the application of Greater Hartford Legal Aid, Inc., New Haven Legal Assistance Association, Inc., Connecticut Legal Services, Inc., Legal Assistance Resource Center of Connecticut, Inc., and Connecticut Legal Rights Project, Inc., to file an amicus curiae brief in support of the defendants.

I

The plaintiff argues that as a matter of law the court erred in applying § 42-150bb to award attorney’s fees to the defendants because the statute does not apply to rental agreements. It posits that both the language and the legislative history of the statute support its position. We disagree.

We employ a plenary standard of review for this claim of statutory interpretation. See Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008) (issues of statutory construction raise questions of law subject to plenary review). “When construing 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. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider 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.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007).

Section 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 puiposes 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.”

It is not disputed that the defendants successfully defended this summary process action by obtaining a dismissal that was affirmed on appeal. Nor is it disputed that there was a written lease agreement between the parties that contained a provision for the plaintiffs recovery of attorney’s fees. Relying on the Superior Court decision Plainville Housing Authority v. Galka, Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP-053968 (December 17,2010), the plaintiff argues that the term “rental agreement” as used in General Statutes § 47a-l (i), does not appear in the language of § 42-150bb and that there is no mention of “landlord, tenant, rental agreement, dwelling unit or premises” in the legislative history of § 42-150bb. Thus, the plaintiff claims that the statute should not be read to apply to landlord-tenant rental agreements. We are not persuaded by this analysis.

Under a plain reading of the statute, residential landlord-tenant lease agreements are included in its provisions. The statute explicitly includes leases, lessees, and lessors in its protection. Further, its final sentence pronounces that it applies “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.” General Statutes § 42-150bb. We conclude that there is no ambiguity in the text of the statute as to its applicability to residential leases. Accordingly, there is no basis to turn to the legislative history for further consideration. See General Statutes §l-2z; see, e.g., In re Probate Appeal of Cadle Co., 129 Conn. App. 814, 830, 21 A.3d 572, cert. denied, 302 Conn. 914, 27 A.3d 373 (2011).

The plaintiff makes two additional arguments in support of its position that attorney’s fees should not be awarded under § 42-150bb. Neither merits significant discussion. The first suggests that the conduct of the plaintiff which led to the dismissal in this case was not the type of conduct the statute was designed to discourage. Neither the clear language of the statute nor the record in this case supports that argument. It also claims that providing attorney’s fees to tenants under § 42-150bb would be poor public policy because it would encourage claims of inadequate service of process and consequently lead to more dismissals, and would discourage withdrawals. This court is not convinced by either of these speculative and unsupported assertions.

Finally, we address an important point raised by the amicus curiae, Connecticut Coalition of Property Owners (coalition), which argues that, as a matter of law, § 42-150bb attorney’s fees should not be awarded in summary process actions because of the limited scope of such actions. The coalition refers to the long established law on the nature of this statutory procedure to assert that awarding attorney’s fees in a summary process action would defeat the purpose behind that statutory procedure. Because our Supreme Court has specified a postjudgment procedure for seeking the fees under § 42-150bb, we are not persuaded by this argument.

We recognize that our case law consistently states that the issues in summary process actions are limited, that the ultimate issue is possession, and that summary process is a straightforward action limited to a few simple questions of fact. See, e.g., Davidson v. Poli, 102 Conn. 692, 695, 129 A. 716 (1926). “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.” (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999). “The ultimate issue in a summary process action is the right to possession . . . and [t]he relief available in summary process actions is possession of the premises.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Aguinaldo v. Warner, 140 Conn. App. 264, 270, 58 A.3d 373 (2013). “While in certain cases complex issues may necessarily be a part of the action . . . the ordinary summary pace cannot be stalled by the defendant’s simply raising the spectre of a complexity which is not . . . rooted in the nature of the relationship between landlord and tenant and in the basis of the landlord’s claim to possession; or simply by the defendant’s threat to raise complex defenses which are not likely to be asserted in good faith . . . .” (Citation omitted; internal quotation marks omitted.) Ossen v. Wanat, 21 Conn. App. 40, 45-46, 571 A.2d 134 (1990), aff'd, 217 Conn. 313, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S. Ct. 69, 116 L. Ed. 2d 43 (1991).

Notwithstanding the assertion by the amicus curiae, seeking attorney’s fees under § 42-150bb in summary process actions pursuant to our Supreme Court’s holding in Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 432, 922 A.2d 1056 (2007), will not thwart the purpose behind the summary process statutes. In that case, our Supreme Court held that claims for attorney’s fees under § 42-150bb must be brought by a motion under Pract ice Book § 11-21. That provision provides that the motion must be filed within thirty days after the final judgment of the trial court was rendered or within thirty days after an appellate decision on the underlying matter. Practice Book § 11-21. We see no hindrance to preserving the expeditious nature of summary process cases in allowing such motions.

II

The plaintiff next claims that the award of $9375 in attorney’s fees was excessive. We disagree.

We review this claim for an abuse of discretion by the trial court. See Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 78, 689 A.2d 1097 (1997). Because the trial court is in a more advantageous position to evaluate the services of counsel than a reviewing court, “[t]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982).

Section 42-150bb provides in relevant part that “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.” That provision has been interpreted to relate to the terms of the contract or lease. Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 74.

Under the parties’ lease agreement here, the plaintiff, the commercial party, was to receive “reasonable attorney’s fees.” The court held a hearing and considered the affidavit of the defendants’ counsel, noting that there was no objection to the hourly rate. In light of our deference to the trial court’s discretion in determining a reasonable amount of attorney’s fees and in light of the procedural history of this case, both at the trial and appellate levels, we cannot conclude that the trial court abused its discretion in the amount of attorney’s fees awarded.

m

The plaintiff last claims that the court erred in ordering the release of a portion of the use and occupancy payments to the defendants pursuant to § 47a-35b. Specifically, the plaintiff argues that the distribution was improper because the defendants’ claim for attorney’s fees was not related to the use and occupancy of the premises. We agree.

“Our standard of review regarding a claim of improper distribution of use and occupancy payments is abuse of discretion.” Brennan Associates v. RadioShack Corp., 140 Conn. App. 57, 60, 68 A.3d 334 (2013).

In its ruling on the plaintiffs motion for release of use and occupancy payments pursuant to § 47a-35b, the court stated that the distribution “is based upon the respective claims of the parties arising during the appeal, after the court’s order for payments dated May 12, 2011.” The court determined that the defendants incurred expenses of reasonable attorney’s fees in the amount of $9375 in the successful defense of the summary process action and that in a related civil action between the same parties, the court had awarded damages and costs in the amount of $9475.80 for the defendants’ use and occupancy of the premises. The court ordered that the $9240 in use and occupancy payments be equally distributed between the parties in the amount of $4620 to each side. In an articulation, the court explained that the parties have competing interests in the deposited funds and that “the plaintiffs right to be remunerated for the defendants’ use and enjoyment of the premises, and the defendants’ statutory right to reasonable attorney’s fees for [their] successful defense of the summary process action and the appeal are in equipoise. Accordingly, the court ordered equal disbursement of the sums paid into court.”

Section 47a-35b provides: “Upon final disposition of the appeal, the trial court shall hold a hearing to determine the amount due each party from the accrued payments for use and occupancy and order distribution in accordance with such determination. Such determination shall be based upon the respective claims of the parties arising during the pendency of the proceedings after the date of the order for payments and shall be conclusive of those claims only to the extent of the total amount distributed.”

“The underlying purpose of a § 47a-35b proceeding is to place some obligation on a nonpaying tenant to provide a property owner with surety against further financial losses while the summary process judgment is being considered on appeal. ... A proceeding to order the distribution of funds held by the court in a summary process action under § 47a-35b is properly limited to those claims related to the use and occupancy of the premises during the pendency of the appeal.” (Citation omitted; internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 112 Conn. App. 1, 7, 961 A.2d 1012 (2009).

Section 47a-35b, is “nearly identical [to General Statutes § 47a-26f] in language and purpose . . . .” Id., 5. “Cases involving the distribution of funds under § 47a-26f have pertained to issues such as the lack of a certificate of occupancy; Groton Townhouse Apartments v. Marder, 37 Conn. Supp. 688, 691-92, 435 A.2d 47 (1981); credit to tenants for payment for minor repairs; Ciavaglia v. Bolles, 38 Conn. Supp. 603, 605-606, 457 A.2d 669 (App. Sess. 1982); and the irrelevancy of a prior pending foreclosure action to distribution of use and occupancy payments. Frank Smith Associates v. Tucker, 37 Conn. Supp. 897, 898-99, 442 A.2d 485 (App. Sess. 1982); see also Invest II v. Southern Connecticut Mental Health & Substance Abuse Treatment Center, Superior Court, judicial district of Fairfield, Housing Session, Docket No. 940727340 (February 10, 1995) (13 Conn. L. Rptr. 613) (claims in § 47a-26f hearing can only be those directly related to physical use and/or occupancy of premises).” Brennan Associates v. RadioShack Corp., supra, 140 Conn. App. 62.

The court erred in ordering a distribution of one half of the use and occupancy payments to the defendants for attorney’s fees. The trial court noted in its articulation that the attorney’s fees incurred by the defendants were directly related to the summary process action. The standard in distributing use and occupancy payments, however, is whether the claim for release of the use and occupancy payments is related to the use and occupancy of the premises. See Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., supra, 112 Conn. App. 7. The defendants’ claim for attorney’s fees relates to the expenses incurred during the action and does not relate to the physical use and occupancy of the premises. Accordingly, we conclude that the court improperly ordered the distribution of one half of the use and occupancy payments to the defendants for attorney’s fees.

The judgment is affirmed as to the granting of the defendants’ motion for attorney’s fees. The judgment is reversed as to the distribution of the use and occupancy payments to the defendants for attorney’s fees and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       In July, 2010, the plaintiff filed a separate action against the defendants seeking monetary damages in connection with the lease agreement. In July, 2011, the court, Oliver, J., awarded the plaintiff $9475.80 in unpaid use and occupancy, unpaid rent, fees, and costs. Centrix Management Co., LLC v. Valencia, Superior Court, judicial district of New Britain, Housing Session, Docket No. CVN-1008-2253 (July 29, 2011).

       General Statutes § 47a-l (i) defines “rental agreement” as “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.”

       We have been unable to find, nor have the parties directed us to any, appellate authority on point. But see Anderson v. Latimer Point Management Corp., 208 Conn. 256, 264-66, 545 A.2d 525 (1988) (discussing availability of attorney’s fees under § 42-150bb based upon a sublease). The majority of Superior Court decisions over the past twenty years have disagreed with the decision in Plainville Housing Authority and have determined that § 42-150bb does apply to residential landlord-tenant leases. See, e.g., Malcolm v. Diaz, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-156276 (March 3, 2011); Carabetta Management Co. v. Martin, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-154717 (August 5, 2010) (50 Conn. L. Rptr. 801); Figueroa v. FAH Redstone Ltd. Partnership, Superior Court, judicial district of New Britain, Housing Session, Docket No. CVN-0702-2096 (November 29,2007) (44 Conn. L. Rptr. 639); Fonsworth v. Windsor Housing Authority, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 6701 (August 23, 2002) (33 Conn. L. Rptr. 63); Fraser v. ETA Assn., Inc., 41 Conn. Supp. 417, 580 A.2d 94 (1990).

       As aptly noted by Judge Susan A. Peck in her decision in Figueroa v. FAH Redstone Ltd. Partnership, Superior Court, judicial district of New Britain, Housing Session, Docket No. CVN-0702-2096 (November 29, 2007) (44 Conn. L. Rptr. 639): “The plaintiffs argue that requiring claims for attorney’s fees pursuant to § 42-150bb to be brought by postjudgment motion in summary process actions would overwhelm housing court dockets and defeat the expeditious nature of summary process because at least half of the 16,000 or so summary process cases brought each year involve leases with attorney’s fees provisions. This argument is fallacious for several reasons. The reality is that tenants rarely prevail in summary process actions which involve written leases with attorney’s fees provisions. In fact, the vast majority of summary process actions which proceed to judgment result in possession being awarded to the plaintiff landlord. Postjudgment claims for attorney’s fees by prevailing landlords can only be brought pursuant to a specific lease provision in a separate postjudgment civil action because they are not statutorily derived.”

       Because we agree with this argument, we need not address the plaintiffs additional arguments regarding the impropriety of the court’s release of use and occupancy payments for attorney’s fees.


author: GRUENDEL, J.

text:
    HOWARD-ARNOLD, INC. v. T.N.T. REALTY, INC.
    (AC 34427)
    Graendel, Sheldon and Flynn, Js.

      Argued April 23
    officially released September 17, 2013

      Rowena A. Moffett, for the appellant (plaintiff).

      Michael C. Jankovsky, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Howard-Arnold, Inc., appeals from the judgment of the trial court denying specific performance of an option to purchase real property and awarding to the defendant, T.N.T. Realty, Inc., rental use and occupancy payments. Specifically, the plaintiff claims that the court erred in (1) declining to order specific performance of the option and the defendant’s obligation under the lease to perform roof repairs; (2) declining to award damages to the plaintiff in lieu of specific performance after finding that the defendant was in breach of the lease agreement; and (3) awarding to the defendant rental and use and occupancy payments. We affirm in part and reverse in part the judgment of the court.

The following facts are relevant to the resolution of the plaintiffs claims. In approximately 1989, Thomas Capobianco and Anthony D’Alto, then owners of a restaurant supply company, formed the defendant corporation, a holding company, with the purpose of purchasing the property located at 47 Railroad Avenue in West Haven (property). The defendant ultimately purchased the property for $1,000,000, subject to a $900,000 mortgage. Capobianco and D’Alto each held an interest in both the restaurant supply company and the defendant corporation until 2000, when the two terminated their business relationship.

As part of the arrangement to divide their interests, Capobianco received a 100 percent interest in the plaintiff corporation and the restaurant supply business, and D’Alto received a 100 percent interest in the defendant corporation and the property. The defendant then leased the property to the plaintiff for a ten year term to terminate in April, 2010, with the plaintiff paying $6000 in monthly rent, due by the 14th of each month. The lease agreement obligated the defendant to perform environmental remediation and to repair, among other deficiencies, the roof of the addition to the building located on the property. The lease agreement also provided to the plaintiff and Capobianco, as guarantor of the lease, an option to purchase the property.

In a letter dated June 7,2007, the plaintiff and Capobi-anco notified the defendant that they had “elected to exercise their option to purchase” the property. The letter, however, stated that “before [the plaintiff and Capobianco] can close, two issues must be resolved by [the defendant], namely [its] failure to satisfy [its] obligations” under article nine of the lease, which provides for the defendant’s obligations with respect to environmental remediation and roof repair. The defendant replied, by letter, that it had completely fulfilled its obligations under the lease. After concluding that “the parties [would] not reach an agreement” regarding the defendant’s fulfillment of its lease obligations and the plaintiffs exercise of the option, the plaintiff commenced the present action. In its amended complaint, it alleges, inter alia, three counts of breach of contract and requests damages, specific performance of the defendant’s repair and remediation responsibilities under the lease, as well as specific performance of the option. The defendant filed a counterclaim for, inter alia, rental use and occupancy payments for the four month period following the expiration of the lease, during which the plaintiff remained in possession of the property while making partial rent payments.

After a bench trial, the court found that the plaintiff had not properly exercised the option under the terms of the lease because it had not tendered payment, and, accordingly, the court declined to order specific performance. The court also found, under the doctrine of impossibility, that the defendant was excused from performing its obligations under the lease with respect to the roof repairs, and, again did not order specific performance of such obligations. The court did find, however, that the defendant had breached the lease agreement by failing to fulfill its obligations to perform environmental remediation. Nonetheless, it did not fashion an order of damages to compensate the plaintiff for the breach. On the defendant’s counterclaim, the court ordered rental use and occupancy payments for the four months during which the plaintiff had made only partial rent payments. From that judgment of the court, the plaintiff now appeals.

I

SPECIFIC PERFORMANCE OF THE OPTION TO PURCHASE AND ROOÍF REPAIRS

The plaintiff claims that the court erred in declining to order specific performance of an option to purchase the leased property and specific performance of roof repairs that the defendant was obligated to perform under the terms of the lease. We disagree.

The following additional facts are relevant to the plaintiffs claims regarding the court’s decision to deny the remedy of specific performance. Article thirty-six of the parties’ lease agreement provided the plaintiff and Capobianco, as the lease guarantor, with an option to purchase the property. The lease states in relevant part: “During the term of the [l]ease of the [p] remises, [the lessee] and/or [guarantor shall each have the right to purchase the [premises . . . upon payment of [$223,500] plus the then unpaid balance of the [mortgage which [the lessor] may then have on the [premises, provided that such balance shall not exceed [$350,000] .... Notwithstanding the foregoing, effective on April 14, 2010, [the lessee] and/or [guarantor shall each be permitted to purchase the [property upon the payment of the sum of [$223,500] to [the lessor].”

Pursuant to article nine of the lease agreement, the defendant was obligated to perform environmental remediation of the property. In December, 2000, the defendant provided to the plaintiff a “certificate of completion” from Environmental Consulting & Contracting, LLC (Environmental), indicating that the underground storage tank grave on the property had been backfilled with soil and that soil samples were within acceptable limits established by the Environmental Protection Agency. Following the receipt of this certificate, in 2001, the plaintiff and defendant engaged in extensive correspondence regarding the plaintiff’s potential purchase of the property, but «did not come to an agreement with respect to the purchase price or how to allocate the cost of repairs to the roof.

Later in 2001, the plaintiff applied to Citizens Bank for financing to purchase the property. As part of the application process, Citizens Bank conducted an environmental review of the property. It determined that Environmental had used inappropriate testing methods and that it had done no investigation into the extent of the leakage on the property. As a result of its findings, Citizens Bank concluded that in order to proceed with financing, the plaintiff would need to conduct further environmental investigation of the property, including conducting testing of soil samples. The plaintiff sought to have the defendant conduct further remediation, but the defendant refused, asserting that the remediation and testing by Environmental had satisfied its obligations under the lease. The plaintiff never secured financing for the purchase of the property.

Article nine of the lease agreement also obligated the defendant, by October 31, 2000, to “repair the entire roof on the rear section of the [premises (i.e. the addition made . . . during 1969), as necessary, such that the leak will be completely fixed during the term of the [l]ease . . . [and to] repair the leaning walls and correct the structural deficiencies (i.e. footings, steelbeams, wall, roof ... as determined by a licensed engineer selected by [the lessor]) in the rear addition . . . To fulfill this obligation, the defendant hired a contractor, Robert Meena, to conduct the roof repairs. Despite Meena’s efforts to repair the roof, it leaked for the duration of the lease term.

At trial, the plaintiff called Rafael Aschettino, a structural engineer, to offer expert testimony on the leaking roof. He testified that the roof leak “arose because the rear addition was not connected” to the original building. As explained by Aschettino, in the summer and winter months, the buildings would move apart, causing the roof membrane to tear. Aschettino testified that his recommended solution for the problem would be to install expansion joints at the juncture between the addition and the preexisting building.

After the trial, the court found that under the terms of the lease the plaintiff was required to tender the purchase price of the property in order to exercise the option. Because the plaintiff did not do so, the court declined to order specific performance of the option. The court also found unavailing the plaintiffs arguments that it was excused from tendering the purchase price because of the defendant’s failure to adequately perform environmental remediation to the property prevented it from tendering payment and because the defendant was in breach of the lease with respect to roof and structural repairs. As to the roof repairs, the court found that the doctrine of impossibility excused the defendant’s performance of those obligations and, accordingly, declined to order specific performance.

We next set forth the applicable standard of review of a court’s decision to deny specific performance. “[T]he specific performance remedy is a form of injunctive decree in which the court orders the defendant to perform the contract. . . . The specific performance decree originated in the old equity courts and continues today to be thought of as an equitable remedy, with the usual attributes of such remedies. . . . The availability of specific performance is not a matter of right, but depends rather upon an evaluation of equitable considerations. . . .

“The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. ... In balancing the equities, the court is not bound by a formula but is free to fashion relief molded to the needs of justice. . . .

“Thus, [o]ur standard of review is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Gager v. Gager & Peterson, LLP, 76 Conn. App. 552, 560-61, 820 A.2d 1063 (2003).

A

Option to Purchase

We address first the plaintiffs claim that the court improperly declined to order specific performance of the option to purchase the leased property. Specifically, it argues that the court erroneously found that it had not properly exercised the option in accordance with the lease agreement’s terms because it had not tendered payment. We do not agree.

Starting in 2001, the parties engaged in extensive correspondence regarding the plaintiffs purchase of the property. They exchanged several proposals regarding, inter alia, a modified purchase price. After several years of attempting to reach an agreement on the terms of sale, on June 7, 2007, counsel for the plaintiff sent the defendant’s attorney a letter stating that it “[had] elected to exercise [the] option to purchase the premises” and requested that the defendant provide to it “a written copy of [the] outstanding balance on [the] mortgage.” The letter further explained that “before [the plaintiff and Capobianco] can close, two issues must be resolved by [the defendant], namely [its] failure to satisfy [its] obligations under [article nine of the lease].” The letter concluded by making the following request: “Please speak with your client to determine when [it] will fulfill [its] obligations as called for by the lease so we can prepare to close the transaction.” In a letter dated June 15, 2007, the defendant maintained that it had fulfilled its obligations under the lease, but did not respond to the plaintiffs notice that it had “elected to exercise [the] option.” The plaintiff, again by letter, requested the outstanding balance on the mortgage and noted his assumption that the “parties [would] not reach an agreement.” Enclosed with a responsive letter dated July 18, 2007, the defendant provided to the plaintiff the amortization schedule for the mortgage on the property, which indicated the balance owed at the time of the request, as well as the schedule of payments for the remainder of the mortgage term. Notwithstanding its receipt of the amortization schedule, the plaintiff never secured financing to purchase the property, nor did it ever attempt to make a payment of the purchase price.

The court determined that the language of the option, particularly the language stating that the plaintiff “shall . . . have the right to purchase the [p]remises . . . upon payment of [$223,500] plus the then unpaid balance of the [m]ortgage,” required, in order to exercise the option, that the plaintiff make payment of the purchase price, either by tendering the money directly to the defendant or by placing the money into an escrow account. The court, therefore, found that the plaintiff, having failed to tender payment, did not exercise the option in accordance with its terms and, accordingly, declined to order specific performance. The court also found that the defendant’s refusal to perform further environmental remediation or repairs did not excuse the plaintiff from the payment requirement of the option, reasoning that because the plaintiffs attempt to exercise the option was conditional, it was not excused from tendering payment. Notwithstanding its findings with respect to tender, the court further found that the plaintiffs letters to the defendant providing notice of its exercise of the option were not unequivocal or unconditional, rather they were “proposals to alter the terms of the option to pinchase set forth in the lease.”

We turn now to the legal principles that govern the exercise of an option. “An option is a continuing offer to sell, irrevocable until the expiration of the time period fixed by agreement of the parties, which creates in the option holder the power to form a binding contract by accepting the offer. ... To be effective, an acceptance of an offer under an option contract must be unequivocal, unconditional, and in exact accord with the terms of the option. ... If an option contract provides for payment of all or a portion of the purchase price in order to exercise the option, the optionee . . . must not only accept the offer but pay or tender the agreed amount within the prescribed time.” (Citation omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 409, 973 A.2d 1229 (2009). “[T]ender is an offer to pay a debt or discharge a duty, and, in the case of a debt, the offer to pay involves, as a general rule, the actual production of the money and the placing of it in the power of the person entitled to receive it.” Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 155-56, 176 A.2d 574 (1961). “The determination of the terms and conditions of [the] option contract must be resolved, in the absence of supplementary evidence of the intent of the parties, by reference to the terms of the contract itself. . . .

“Thus, in order to determine whether the [plaintiff] formed a binding contract with [the defendant] by exercising its option to purchase the property, we must review the terms of the lease to determine whether the [plaintiffs exercise of the option] was unequivocal, unconditional, and in exact accord with the terms of the lease. Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . .

“The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the- terms. . . . When the disputed agreement is between sophisticated commercial parties with relatively equal bargaining power, this court is more likely to apply a plenary standard of review.” (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 409-10.

We first examine the language of the option as set forth in the lease agreement. The language stating that the plaintiff “shall . . . have the right to purchase the [premises . . . upon payment of [$223,500] plus the then unpaid balance of the [m]ortgage,” is clear and unambiguous. It rests the plaintiffs right to purchase the property on its payment of the purchase price, consisting of the fixed sum stated in the option plus the then unpaid mortgage balance. In other words, the plaintiffs right to purchase the property only arises upon its payment of the purchase price. Given the plain language of the option and the unchallenged factual finding that the plaintiff did not tender payment, the court did not err in finding that the plaintiff failed to exercise the option in accordance with its terms.

The plaintiff argues that the defendant’s failure to fulfill its obligations to remediate and repair the property excused the tender requirement under the option agreement. The cases it cites for this proposition, however, concern specific performance of contracts for the sale of land rather than specific performance of option contracts. Yet, “[a]n option contract and a contract of sale are in fact two separate and distinct contracts, namely, an option contract, and an agreement to sell. ... An option, originally, is neither a sale nor an agreement to sell. It is not a contract by which one agrees to sell and the other to buy, but it is only an offer by one to sell within a limited time and a right acquired by the other to accept or reject such offer within such time. . . . The distinction between a contract to purchase and sell real estate and an option to purchase is that the contract to purchase and sell creates a mutual obligation on the one party to sell and on the other to purchase, while an option merely gives the right to purchase within a limited time without imposing any obligation to purchase.” (Citation omitted; internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn. App. 800, 815-16, 3 A.3d 992 (2010). The plaintiff cites no authority, nor are we aware of any, that stands for the proposition that an optionee may be excused, absent repudiation by the optionor, from exercising an option in precise accordance with its terms.

The plaintiffs next contention is that the court improperly declined to order specific performance because it was “ready, willing and able” to purchase the property. Again, the plaintiff confuses the legal principles applicable to an option to purchase with those applicable to a contract for sale. Although “[i]t is well settled that a buyer seeking specific performance has the burden of proving that he or she is ready, willing and able to purchase the premises”; (internal quotation marks omitted) Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn. App. 678, 697, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011); this standard applies to requests for specific performance of contracts for the sale of land, not specific performance of options. Options, which impose obligations only on the optionor, require optionees to exercise them in strict compliance with their terms. SeeBayerv. Showmotion, Inc., supra, 292 Conn. 409 (“[t]o be effective, an acceptance of an offer under an option contract must be unequivocal, unconditional, and in exact accord with the terms of the option” [internal quotation marks omitted]). Given the unilateral nature of an option, which imposes a burden only on optionors, we decline to apply to options the standard for the granting of specific performance for bilateral contracts for the sale of land. In light of our determination that the court did not improperly find that the plaintiff did not effectively exercise the option, nor was the plaintiff excused from doing so, we cannot conclude that the court abused its discretion in declining to award specific performance of the option.

B

Roof Repairs

The plaintiff next claims that the court erred in declining to order specific performance of the defendant’s obligation under the lease to repair the roof of the property. In particular, the plaintiff contends that the court improperly applied the doctrine of impossibility to excuse the defendant’s performance of its obligations. We agree.

In its answer, the defendant pleaded four special defenses arising from statutes of limitations and the special defense of laches. It did not raise any defenses to the enforcement of the lease agreement, such as impossibility or impracticability. The defendant’s post-trial brief, rather than presenting argument on the excuse of impossibility, argued that the defendant had fulfilled its obligations under the lease with regard to the roof repair. The court, in its memorandum of decision, found that, although the defendant’s attempts to eliminate the leaking had been unsuccessful, it was excused from its performance of the obligation to “repair the entire roof . . . such that the leak will be completely fixed” because it was impossible to eliminate the leaking by repairing the roof, given that the leak was caused by shifting at the juncture between the old structure and the addition. The plaintiff argues on appeal that the court’s sua sponte application of the defense of impossibility to defeat its breach of contract claim was improper.

“The interpretation of the requirements of the rules of practice presents a question of law, over which our review is plenary.” Cue Associates, LLC v. Cast Iron Associates, LLC, 111 Conn. App. 107, 111, 958 A.2d 772 (2008). “Practice Book § 10-50 provides that “[f]acts which are consistent with [the claimant’s allegations] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.” (Internal quotation marks omitted.) Martino v. Scalzo, 113 Conn. App. 240, 245, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). The defense of impossibility does not aim to establish the absence of a breach of the contract; rather it assumes breach and instead seeks to show that a party is excused from performance because “at the time [the] contract [was] made, [his] performance under it is impracticable without his fault because of a fact of which he has no reason to know . . . .”2 Restatement (Second), Contracts, Existing Impracticability or Frustration § 266, p. 338 (1981). Accordingly, such defense must be specially pleaded.

“The fundamental purpose of a special defense, like other pleadings, is to apprise . . . opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.” (Internal quotation marks omitted.) Martino v. Scalzo, supra, 113 Conn. App. 245. It follows, therefore, that it is improper for a court, sua sponte, to apply an unpleaded special defense to defeat a plaintiffs cause of action. See Cue Associates, LLC v. Cast Iron Associates, LLC, supra, 111 Conn. App. 117 (trial court improperly applied special defense of statute of limitations to plaintiffs claim for trespass); see also Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 436-37, 651 A.2d 281 (1994) (“[i]t would be fundamentally unfair to allow any defendant to await the time of trial to introduce an unpleaded defense . . . [and] would result in ‘trial by ambuscade’ to the detriment of the opposing party”).

In light of the fact that the defendant did not plead, raise at trial, or argue posttrial the defense of impossibility, and that the plaintiff was afforded no opportunity to present evidence disputing such defense or to argue against its applicability, the court improperly applied the defense in order to defeat the plaintiffs claim of breach and to deny specific performance. We conclude that the court, by improperly relying on the unpleaded defense of impossibility to deny the remedy of specific performance, abused its discretion and, therefore, reverse the judgment of the court with respect to this count.

II

DAMAGES IN LIEU OF SPECIFIC PERFORMANCE

The plaintiff next argues that the court erroneously failed to award it damages for the defendant’s breach of the contract provision requiring environmental remediation of the property. Specifically, it argues that the court, after denying specific performance of the remediation, should have ordered money damages to compensate the plaintiff for the defendant’s breach. Because the plaintiff abandoned at trial its request for damages, we decline to review the merits of this claim.

Following trial, the parties submitted briefs to the court. The plaintiffs brief did not contain a request for money damages, but rather for an “order [that] the defendant specifically perform the [l]ease by conveying to the plaintiff the [p]remises for the purchase price of $42,051.33.” After receiving the parties’ posttrial briefs, the court heard oral argument on the content of the briefs. During that argument, the court and counsel for the plaintiff engaged in the following colloquy regarding the relief requested by the plaintiff:

“The Court: Now, so your specific demand is for specific performance, right?
“[The Plaintiffs Counsel]: Specific performance of the lease, nothing more, nothing less.
“The Court: Well, you also want adjustments on the purchase price?
“[The Plaintiffs Counsel]: That’s correct.
“The Court: So you’re not making a separate claim for damages?
“[The Plaintiffs Counsel]: No. . . .”

At the close of argument, the court invited the parties to submit supplemental briefs. The plaintiff submitted a supplemental brief in which it reiterated its request for specific performance, but made no request for damages.

In its memorandum of decision, the court noted that the plaintiff did not make a request for damages either in its two posttrial briefs or during posttrial argument. It, accordingly, did not address the issue of damages because “despite the broad damage claims in the complaint and amended complaint, the only claim for relief is an order of specific performance.”

“As we have repeatedly reiterated, issues not properly raised before the trial court will ordinarily not be considered on appeal. . . . We have referred to the policy reasons underlying the preservation requirement on several occasions. The policy serves, in general, to eliminate the possibility that: (1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee . . . would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the [appellant] would . . . claim that such a course of conduct involved rulings which were erroneous and prejudicial to him. ...” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48, 717 A.2d 77 (1998).

“[B]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court.” Id., 52. “[T]o permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court ... to address the claim— would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. ” (Internal quotation marks omitted.) Nweeia v. Nweeia, 142 Conn. App. 613, 618, 64 A.3d 1251 (2013).

Not only did the plaintiff fail to raise the issue of damages in lieu of specific performance before the trial court, it affirmatively abandoned the issue. As a result, the trial court and the defendant, relying on the plaintiffs abandonment, did not have the opportunity to address this claim. We, therefore, decline to review its merits.

Ill

RENTAL AND USE AND OCCUPANCY PAYMENTS

The plaintiffs final claim is that the court erred in awarding rental and use and occupancy payments for the months during which it paid partial rent to the defendant. We disagree.

After the termination of the lease in April, 2010, the plaintiff began making partial rent payments to the defendant, in a lesser amount than the last agreed upon rent of $6000 per month. The defendant, however, did not accept these payments and never cashed the plaintiffs checks. After the plaintiff initiated this action, the defendant filed a counterclaim for rental and use and occupancy payments in the amount of $24,000, which represents four months rent at the last agreed upon rate. The plaintiff generally denied the defendant’s counterclaim.

In its posttrial brief, the defendant argued that it was entitled to rental and use and occupancy payments, citing to both statutory and common-law authority. During posttrial argument, the plaintiff argued that the defendant was not entitled to rental and use and occupancy payments because the plaintiff paid to the defendant the amount the plaintiff would have been paying for a mortgage “under the terms of the option.” It also argued that because the plaintiff “became the equitable owner of the [property]” when it “tried to exercise [the] option,” the defendant was not entitled to rental and use and occupancy payments. The plaintiffs posttrial brief did not address the defendant’s counterclaims, nor did its supplemental brief.

The court, “[f]or the reasons stated in [the defendant’s] posttrial brief . . . [awarded] the rental and use and occupancy demands that [the defendant claimed].” It noted that “[n]o defenses [had] been explicitly raised to [that] demand.” The plaintiff claims that the court’s finding that the plaintiff raised no defenses to the defendant’s demand was clearly erroneous, and because its award was based on this clearly erroneous finding, the court abused its discretion.

On appellate review, the court’s award of rental use and occupancy payments is treated as an award of damages. LeBlanc v. Tri-Town Shelter Services, Inc., 110 Conn. App. 118, 121-22, 955 A.2d 55 (2008). “[T]he trial court has broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed on appeal absent a clear abuse of discretion.” (Internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 483, 871 A.2d 981 (2005). “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling .... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Selene Finance, L.P. v. Tomatore, 137 Conn. App. 130, 134, 46 A.3d 1070, cert. denied, 307 Conn. 908, 53 A.3d 223 (2012). “With regard to the trial court’s factual findings, [however] the clearly erroneous standard of review is appropriate. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003).

We agree with the plaintiffs contention that the court’s finding that the plaintiff offered no defense to the defendant’s counterclaim for rental and use and occupancy payments is contradicted by both the pleadings and the content of plaintiffs posttrial argument, and is, therefore clearly erroneous. We do not agree, however, that this constitutes a per se abuse of discretion by the court in fashioning its award to the defendant. The court explained that the basis for its award is the arguments set forth in the defendant’s posttiial brief. Because the plaintiff offers no argument as to how, based on the arguments presented in the defendant’s posttrial brief, the trial court could not reasonably have reached the decision to grant the defendant’s request, we cannot conclude that the court abused its discretion.

The judgment is reversed with respect to the plaintiffs claim of breach of contract for failure to repair the roof and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff and Capobianco, in 2001, began notifying the defendant of their desire to exercise the option to purchase the property, but included in their oral and written communications proposals for negotiations regarding the purchase price of the property.

       The provision of the lease agreement regarding environmental remediation states in relevant part: “On or before April 30, 2001, [the lessor] shall perform environmental remediation, as necessary, attributable to oil and gas leakage existing as of the [c]ommencement [d]ate of this [l]ease, including the removal of the existing underground oil storage tank, and including restoration of the [premises disturbed in connection with such environmental remediation as required by law and to substantially the same condition as existed prior to the commencement of the work.”

       The grave formerly contained an underground storage tank system used to hold number two fuel oil.

       The defendant’s alleged breaching of the lease by failing to fulfill its obligations to make the structural repairs outlined in article nine are not the subject of this appeal. We do, however, note that the court found that the defendant made the required structural repairs and “complied with its obligations under [article nine]” of the lease.

       The plaintiff contends that tender of payment is not required because the option does not prescribe a time by when payment must be made. This is a misreading of the option. The option is not silent to as to when payment is due; rather, under the language of the option, payment is how the option is exercised.

       A single case cited by the plaintiff, McCowen v. Pew, 18 Cal. App. 302, 123 P. 191 (1912), decided by an intermediate appellate court in California, involves specific performance of an option contract. Not only is this case not authoritative or instructive on Connecticut law, but it differs from the present case both with respect to its facts and the legal grounds on which the court based its order of specific performance.

       The plaintiff appears to argue that the defendant, by failing to fulfill its obligations under other provisions of the lease, repudiated the option contract, thereby excusing the obligation to tender payment. Notwithstanding the absence of a factual finding by the trial court that the defendant repudiated the option contract, this argument conflates breach of the lease agreement with repudiation of the option. Nevertheless, we cannot conclude based on the record before us that the defendant made a statement indicating that it would not perform under the option, such that the plaintiffs tendering of payment would be excused. See Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., supra, 149 Conn. 156 (“[t]he formal production of the amount to be tendered is excused ... by an unequivocal declaration that it will not be received”).

       The defendant argues in its brief to this court that because the plaintiff did not object to the “great amount of evidence [that] was submitted [at trial] that it was impossible to stop the leak by . . . repairing the roof,” the court “had discretion to consider the defense.” The defendant also asserts that the defense of impossibility was “argued and briefed posttrial.” Both of these contentions lack merit. Although evidence related to the cause of the leak was adduced at trial, evidence that could support an inference that the leak could not be eliminated by repairing the roof, neither party offered evidence or testimony to prove the elements of a defense of impossibility. Furthermore, we could discern no argument or citation to legal authority in the defendant’s posttrial brief on the defense of impossibility. As a result, we cannot say that the plaintiff was on notice of that defense.

       At trial, the court accepted into evidence the plaintiffs checks for partial rent payments to the defendant.

       The plaintiff argues that the trial court’s reliance on the “reasons stated in [the defendant’s] posttrial brief’ in reaching its decision to award the defendant rental and use and occupancy payments was improper. It cites as authority for this proposition Cameron v. Avonridge, Inc., 3 Conn. App. 230, 486 A.2d 661 (1985). This court in Cameron, however, determined that “although [this court does] not approve of [the] practice [of adopting the language of a party’s brief as its memorandum of decision] ... it [does not result] in less than a fair trial. Nor [is it a] manifest abuse of discretion or injustice.” Id., 235. We do not conclude otherwise in the present case.