author: BEAR, J.

text:
    PETER C. KORES v. THOMAS L. CALO ET AL.
    (AC 31538)
    Robinson, Bear and Freedman, Js.

      Argued October 18, 2010
    officially released February 22, 2011

      Robert F. Cohen, with whom on the brief, was Sarah Ann Cohen, for the appellant (plaintiff).

      David R. Gronbach, for the appellees (defendants).
   Opinion

BEAR, J.

The plaintiff, Peter C. Kores, appeals from the judgment of the trial court awarding him only nominal damages in his successful action against the defendants, Thomas L. Calo and Gail M. Calo. On appeal, the plaintiff claims that the court improperly (1) concluded that Kemp Road in Winchester, also known as Calo’s Way, was a private road, (2) treated the defendants’ motion for articulation and to set aside the verdict as a motion to set aside the judgment, and (3) failed to award him attorney’s fees and awarded him only nominal damages. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claims on appeal. The plaintiff purchased 252 Kemp Road in 1999. The defendants purchased 254 Kemp Road in 2003. The parties’ properties were part of the Highland Lake Shores subdivision, which was approved by the town of Winchester in the 1920s, and Kemp Road, located within the subdivision, is a gravel road that is shown on the subdivision map filed with the town and provides the sole access to several abutting lots. The defendants’ predecessor in title had purchased Kemp Road at a tax foreclosure sale in 1988 and thereafter conveyed the road to the defendants. The deed to the road states that it is “subject to rights of way as of record . . . and by reason of the fact that such roads were laid out as streets on [the subdivision] map.” Prior to the defendants’ purchasing 254 Kemp Road, the plaintiff and the owners of the two other developed lots on Kemp Road, including the defendants’ predecessor in title, shared the expenses of the upkeep of the road, including winter plowing. The town did not plow or otherwise maintain Kemp Road, but the court found that the town most likely installed a catch basin therein in the 1960s or 1970s.

After the defendants purchased 254 Kemp Road, problems between them and the plaintiff began to develop. Thomas Calo discharged the snowplow operator the neighbors had been using and informed him that he would be trespassing if he again attempted to plow the road. He also objected to the plaintiffs attempt to create an additional driveway on the plaintiffs property on the alleged ground that it would involve disturbing the road, to which the defendants claimed ownership, and he prevented the plaintiffs contractor from cutting the additional driveway. The police were called numerous times by each of the parties. Thomas Calo asserted that the plaintiff drove recklessly and that he caused damage to the road. The plaintiff asserted that the road was deteriorating because the defendants failed to maintain it properly. The plaintiff testified that Thomas Calo, in the winter months, also blocked access to one end of the road by parking a vehicle in the middle of it and by piling snow there as well. There was photographic evidence admitted to support this allegation. The plaintiff also complained that Thomas Calo, who is a state police trooper, frightened a visitor to the plaintiffs home by shining a light into the visitor’s car and telling the visitor that she was not allowed to park on the road. The plaintiff also testified that two of his older daughters moved from the family home because of the stress of the situation between the plaintiff and the defendants and that Thomas Calo intimidated and yelled at the plaintiffs wife, whom the plaintiff described as a sixty-two year old woman who was five feet, two inches tall, weighing 115 pounds.

The defendants also did not want the plaintiff parking his vehicles on the road in front of his home at 252 Kemp Road, and they stated that they believed that the plaintiff was trespassing by so doing. In an attempt to stop the plaintiff from parking there, Thomas Calo parked a large camper in front of the plaintiffs home, blocking the view from the plaintiffs front windows, covered it with a blue tarp and left it there for approximately two years. The plaintiff testified that in an attempt to put an end to the situation, he asked the defendants, through a letter to the defendants’ attorney, to move the camper so that he could sell his home but that the defendants refused. The plaintiff also testified that because of the camper being parked directly in front of his home, he was not able to sell his home at the height of the real estate market. He testified that he had a long-standing background in real estate, having previously held a real estate license and a broker’s license, and that he had spoken with some real estate agents in mid-2006 and that his home was worth between $350,000 and $375,000 at that time, but that the agents opined that his property was not saleable because of the camper. He also testified that one year later, the housing market crashed and that his property then and at the time of trial was worth only between $250,000 and $275,000.

The plaintiff brought the present action, claiming in count one that he had an easement of necessity over the road and that the defendants repeatedly interfered with or obstructed his use of that easement and, in count two, that the actions of the defendants amounted to a nuisance. The plaintiff sought a determination of the rights of the parties to the road pursuant to General Statutes §§ 47-31 (f) and 52-29, an order enjoining the defendants from obstructing or otherwise interfering with the plaintiffs use of the easement, monetary damages, costs and any other relief that the court would consider just. After a trial to the court, in its August 20, 2008 memorandum of decision, the court found as to count one that (1) the defendants owned the road subject to the plaintiffs easement, (2) the plaintiff had a right to park his vehicle on the road in front of his home as long as it did not interfere with the passage of vehicles, (3) the plaintiff had a right to construct another driveway as long as he repaired any damage to the road caused by such construction and (4) the defendants’ interference with these actions had violated the plaintiffs easement rights. As to count two, the court found that the defendants’ parking of the camper in front of the plaintiffs home for nearly two years amounted to a private nuisance and that this prevented the plaintiff from selling his home. The court also found, however, that the nuisance was temporary. The court enjoined the defendants from interfering with the plaintiffs easement rights and awarded $27,000 in money damages to the plaintiff.

On August 28, 2008, the defendants filed a motion for a new trial, and, on November 14, 2008, a motion for articulation and to set aside the verdict. In their November 14, 2008 motion, the defendants asked the court to articulate the basis of its $27,000 monetary award and to vacate that award on the ground that the plaintiff had failed to prove with certainty any damages. The court conducted a hearing on the motion, and, in an August 27, 2009 memorandum of decision, stated that it was considering the defendants’ November 14, 2008 motion to be a motion to set aside the judgment pursuant to Practice Book § 17-4 and that the motion was timely filed pursuant to General Statutes § 52-212a. It then stated that it had “mistakenly awarded the entire amount of attorney’s fees incurred by the plaintiff as compensation for his losses.” The court stated that it could not differentiate between the attorney’s fees “incurred to have the nuisance removed and [those incurred] to have the defendants] enjoined from interfering with the plaintiffs easement rights . . . .” The court, therefore, vacated its damages award and awarded $100 in nominal damages in its place. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the plaintiff does not challenge the findings of the court but, instead, challenges the court’s legal conclusion that Kemp Road was a private road and not a public road. He argues that the court’s finding that the road was and is used seasonally by the general public as a major access to the beach is sufficient to satisfy the public acceptance element of the public road test. He also argues that the evidence demonstrated that the town exercised dominion and control over the road by installing a catch basin or storm drain and sanitary sewers on Kemp Road. Accordingly, he argues, the court’s conclusion that the road was private was flawed. The defendants argue that the plaintiff was “required to prove that the original owner of the road intended to ‘dedicate’ the road to public use and that the town ‘accepted’ the dedication.” They argue that the court correctly determined that, although there may have been an “attempted” dedication, there was no actual dedication nor was there an acceptance by the town. Because the plaintiff has not provided a record that is adequate for our review, we decline to review his claim.

The following additional facts are relevant to our analysis. The court specifically found that “[although the court is persuaded by the evidence that . . . Kemp Road has been used seasonally by the general public as a major access to the beach and that the municipality installed a storm drain in the road in the 1960s or early 1970s, the plaintiff failed to satisfy his burden of proving that the road is or was owned by the town.” The court also found that there was “no question that [a] subdivision map [had been] filed [by the original owners]. Thus, there appears to have been at least an attempted dedication [of the road]. . . . The evidence [however] is insufficient for the court to find that there was an acceptance of the road by the town. The installation of the storm drain . . . and the seasonal public use of the road does not prove an acceptance of the road where the other factors to be considered, i.e., the fact that the road remained a ‘paper road,’ unpaved and not maintained by the town, and the tax collector’s taking of the road as a result of nonpayment of taxes by the then owner supports the conclusion that there was no acceptance.” (Citation omitted; emphasis added.) Accordingly, the court found that the road had not been accepted by the town or by the actions of the public and, therefore, that it was a private road, owned by the defendants, but that the plaintiff had an easement over the road.

“From early times, under the common law, highways have been established in this state by dedication and acceptance by the public. . . . The essential elements to be proved are the owner’s unequivocal intention to dedicate the way to public use, and a general use by the public over a period long enough to indicate that it is acting on the basis of a claimed public right resulting from the owner’s dedication. . . . Since both of these issues are questions of fact . . . our function is limited to determining whether the decision of the trial court was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984).

“Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public. . . . Both the owner’s intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public. . . . Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. ... No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. . . . Whether there has been a dedication and whether there has been an acceptance present questions of fact.” (Citations omitted; internal quotation marks omitted.) Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980).

In this case, the plaintiff initially argues that “[t]here is a presumption of dedication [of Kemp Road] to public use from the filing of the [original subdivision] map [with the town] absent a manifest intent [of the owner] to keep [it] private.” The defendants argue that the court never found that the road actually had been dedicated to public use but, rather, found that the original owner had continued to own the road until the town took possession of it for nonpayment of taxes.

On the issue of dedication, the court specifically found that there was “no question that the subdivision map was filed. Thus, there appears to have been at least an attempted dedication.” (Emphasis added.) The court then proceeded to determine that the evidence was insufficient for a finding that there had been an acceptance of the road. It made no further findings or conclusions regarding the owner’s intent to dedicate the road for use by the public.

To prove that Kemp Road is a public road, the plaintiff was required to prove that the original owner manifested an unequivocal intent to dedicate the road to public use and that the town or the public accepted the dedication. Ventres v. Farmington, supra, 192 Conn. 666-67; Meshberg v. Bridgeport City Trust Co., supra, 180 Conn. 279. Both of these elements are factual determinations, which must be made by the trial court. Id. Here, on the issue of the owner’s unequivocal intent to dedicate the road, the court found only that there “appears” to have been an “attempted” dedication. The plaintiff does not challenge this finding, nor did he ask the court to clarify or to articulate whether, in fact, it did find that the owner of the road had demonstrated an unequivocal intent to dedicate the road to public use. The court’s statement that there “appears to have been at least an attempted dedication” does not amount to a finding that there, in fact, was a clear manifestation of unequivocal intent to dedicate Kemp Road to public use. Because it is unclear exactly what the court meant by this statement, we are unable to review the plaintiffs claim without resorting to speculation. In summary, the court’s finding is unclear, and, because there was no motion for articulation, the record provided by the plaintiff is inadequate for our review.

II

The plaintiff next claims that the court erred in treating the defendants’ November 14, 2008 motion as a motion to set aside the judgment. He also argues that the defendants’ failure to pay a filing fee with the submission of the motion is jurisdictional. He did not raise this issue at trial and does not explain whether his claim involves subject matter jurisdiction or personal jurisdiction, nor does he provide any analysis of his jurisdictional claim. Nevertheless, because a question of subject matter jurisdiction must be decided once raised; see Trumbull v. Palmer, 123 Conn. App. 244, 250, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010); we will review the jurisdictional claim only insofar as the court’s subject matter jurisdiction is concerned. See St. Paul’s Flax Hill Cooperative v. Johnson, 124 Conn. App. 728, 740, 6 A.3d 1168 (2010) (“[personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time” [internal quotation marks omitted]). After reviewing the record, we conclude that the court had subject matter jurisdiction despite the defendants’ failure to pay a filing fee and that it acted within its discretion in considering the defendants’ motion.

The following additional facts are relevant to our resolution of the plaintiffs claim. After the court issued its August 20, 2008 memorandum of decision awarding the plaintiff “money damages in the amount of $27,000,” the defendants, on November 14,2008, filed amotion for articulation and to set aside the verdict. The defendants asked the court to articulate the basis for the $27,000 monetary award and to vacate the award on the ground that the plaintiff had failed to prove any damages with reasonable certainty. Following a hearing on the motion, the court, on August 27, 2009, issued a memorandum of decision in which it stated that, because there was not a “verdict” in this court trial, it was treating the defendants’ motion as a motion to set aside the judgment pursuant to Practice Book § 17-4 and that the motion was timely filed pursuant to General Statutes § 52-212a. The plaintiff claims that the court did not have the authority to do this, especially when the defendants did not pay the required filing fee for a motion to set aside the judgment. See Practice Book § 17-4 (b) (“[u]pon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the judicial authority”); see also General Statutes (Rev. to 2007) § 52-259c (a). We are not persuaded.

Before turning to the merits of the plaintiffs claim, we note the settled principles that guide our review of the jurisdictional question. “[A] determination regarding a trial court’s subject matter jurisdiction is a question of law, [and, therefore] our review is plenary.” (Internal quotation marks omitted.) Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 314, 968 A.2d 396 (2009).

In Plasil v. Tableman, 223 Conn. 68, 79-80, 612 A.2d 763 (1992), pur Supreme Court determined that the trial court in that case had not been “deprived of subject matter jurisdiction by the [movant’s] failure to pay an entry fee with the re-served process . . . .” The court explained: “Assuming that the trial court clerk had a statutory duty to collect the entry fee pursuant to § 52-259 (a), we conclude, as did the trial court, that the plaintiff should not be penalized for the clerk’s inaction, and that the clerk’s inaction did not deprive the trial court of subject matter jurisdiction.” Id., 76. The court also explained: “The clerks of the court are merely recording officers; and if they make a mistake, the court may amend it. Their function is merely ministerial.” (Internal quotation marks omitted.) Id., 77. We also point out that Practice Book § 17-4 (b) and § 52-259c (a) of our General Statutes permit a court to waive the filing fee.

We are mindful that when a clerk returns a pleading for nonpayment of the filing fee, the movant must resubmit the pleading and pay the filing fee in a timely manner to avoid possible dismissal. In this case, however, the clerk did not return the motion, and the court did not order payment of the fee. Accordingly, we conclude that the defendants’ failure to pay a filing fee did not deprive the court of subject matter jurisdiction.

The plaintiff also claims that the court did not have the authority to treat the defendants’ motion as a motion to set aside the judgment. We do not agree.

“[A] civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of a judgment. ... A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . Practice Book § 17-4 states essentially the same rule.” (Citations omitted; internal quotation marks omitted.) Fitzsimons v. Fitz-simons, 116 Conn. App. 449, 454-55, 975 A.2d 729 (2009). “It is familiar law that a court has the inherent authority to open, correct or modify its judgments. . . . The provisions of § 52-212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of a case.” (Citations omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn. App. 735, 744, 867 A.2d 851 (2005).

In Fitzsimons v. Fitzsimons, supra, 116 Conn. App. 455 n.5, the court explained that the plaintiff in that case had not titled his motion as a motion to open or vacate the judgment. Nevertheless, the court stated that it was clear from the substance of the motion that “the defendant had notice of the plaintiffs requested relief.” Id. The court then concluded: “Under these circumstances and lacking any claim, much less analysis, of prejudice by the defendant, we will not exalt form over substance.” Id., citing Rome v. Album, 73 Conn. App. 103, 111-12, 807 A.2d 1017 (2002) (“We must look to the substance of the claim rather than the form. . . . We do not look to the precise relief requested, but to whether the request apprised the nonmovant of the purpose of the motion.” [Internal quotation marks omitted.]).

Given the plain language of the relief requested by the defendants in their postjudgment motion, there can be no question that the plaintiff had notice of what the defendants were seeking. Additionally, in light of the trial court’s continuing jurisdiction over its judgments and its authority to act substantively to set aside a judgment within four months of its rendition, we conclude that the court in this case had the authority to treat the defendants’ postjudgment motion as a motion to set aside the court’s judgment.

Ill

The plaintiff next claims that the court erred in not awarding attorney’s fees to him. He also claims that the court improperly awarded him only nominal damages on his nuisance claim. He argues that the findings of the court regarding the lack of specificity in the attorneys’ bills was clearly erroneous and that the court committed error when it reconsidered its original $27,000 award and changed it to an award of $100 in nominal damages. Although the arguments set forth by the plaintiff in his appellate brief and at oral argument before this court, in combination with our own review of the record, are superficially attractive, we are unable to review the plaintiffs claim adequately because he has not provided us with the transcripts of the hearing on the defendants’ motion to set aside the judgment, which led the court to vacate the original damages award.

The following additional facts are relevant to our conclusion that the claim is not reviewable. After the defendants filed their November 14, 2008 motion, the court held a hearing on the motion and the plaintiffs opposition thereto. On August 27, 2009, the court issued a memorandum of decision. The court explained that it had mistakenly awarded the plaintiff “the entire amount of attorney’s fees incurred ... as compensation for his losses.” It also explained that it had intended to award to the plaintiff, as the full measure of damages, only the fees he incurred in prosecuting his nuisance claim, but that it could not differentiate those fees from the fees incurred to define the rights of parties and to enjoin the defendants from interfering with his easement rights. Because it could not differentiate the fees, it decided that the plaintiff had not proven his damages sufficiently, and it vacated the damages award, replacing it with an award of $100 in nominal damages. The court did not mention any other damages or losses in connection with the plaintiffs claims.

On appeal, the plaintiff claims that the court improperly vacated the damages award and that it easily could have differentiated the fees incurred in the nuisance claim from the other fees. He also argues that it was “illogical and inconsistent” for the court to have found that the defendants had created a nuisance but then to have awarded no damages to him on that count except for $100. Although the plaintiffs arguments are superficially attractive, without a transcript detailing what occurred during the alleged three day hearing on the defendants’ November 14, 2008 motion, we are left to speculate about what was presented to the court both in support of and in opposition to the defendants’ motion. We, therefore, are unable to review the plaintiffs claim. By way of example, we cannot determine or assess what was argued by each party to the court, whether the plaintiff conceded that he sought only attorney’s fees as damages, whether he agreed that the fees could not be differentiated, and what additional evidence, if any, was presented to the court at the hearing. Additionally, there is nothing in the record that explains the court’s failure to mention any other possible damages in its August 27, 2009 decision, and, in the absence of the transcripts, we are unable to determine the court’s reasons for this omission.

In summary, although we recognize that the plaintiffs alleged circumstances might have entitled him to additional relief from the trial court, we cannot bridge the gaps in the record by resorting to speculation about the bases for the court’s rulings in this case. See, e.g., Crelan v. Crelan, 124 Conn. App. 567, 571-72, 5 A.3d 572 (2010); State v. Dawes, 122 Conn. App. 303, 320 n.2, 999 A.2d 794, cert. denied, 298 Conn. 912, 4 A.3d 834 (2010); Resurreccion v. Normandy Heights, LLC, 76 Conn. App. 642, 649, 820 A.2d 1116, cert. denied, 264 Conn. 917, 826 A.2d 1159 (2003). Accordingly, the plaintiffs claim that the court improperly failed to award him attorney’s fees and awarded him only nominal damages is not reviewable.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants apparently received town approval to change the name of Kemp Road to Calo’s Way sometime thereafter. For purposes of this opinion, however, we use the historical name of Kemp Road to identity the road in question.

       The plaintiffs purchase of 252 Kemp Road occurred approximately eleven years after the defendants’ predecessor in title had purchased Kemp Road at the tax foreclosure sale and had received a deed to the road that was filed on the land records. When he purchased 252 Kemp Road, the plaintiff thus had actual or constructive notice that the town considered Kemp Road to be private, i.e., not dedicated to the town and not accepted by the town or by the action of the public. Also, between 1999 and 2003, the plaintiff contributed to the cost of keeping the road clear in the winter months and other road maintenance.

       In its August 27, 2009 memorandum of decision, the court stated that it had denied the defendants’ motion for a new trial orally.

       The record does not provide the dates of the hearing, but the defendants state in their appellate brief that the hearing lasted three days, occurring on November 17, 2008, and January 8 and February 19, 2009.

       Although there was testimony that sanitary sewers and water lines had been installed along Kemp Road and that the town billed the residents for these services, the court made no findings related to these matters.

       Black’s Law Dictionary (8th Ed. 2004) defines paper street or road as “[a] thoroughfare that appears on plats, subdivision maps, and otherpublicly filed documents, but that has not been completed or opened for public use.” But see Simone v. Miller, 91 Conn. App. 98, 101 n.1, 881 A.2d 397 (2005), citing Burke v. Ruggerio, 24 Conn. App. 700, 707, 591 A.2d 453 (describing paper street as one never paved, not developed as public road, not used by abutting owners for access, no formal dedication for use as highway and no formal or informal acceptance by town), cert. denied, 220 Conn. 903, 593 A.2d 967 (1991), and Meder v. Milford, 190 Conn. 72, 73, 458 A.2d 1158 (1983).

       Although the plaintiff contends in his brief to this court that the road had been “off the tax roll for [fifty] years” before the town sought to collect taxes on it, he does not point to any evidence in support of this contention, and the court made no findings as to whether taxes had been levied or paid for the road prior to 1973.

       General Statutes (Rev. to 2007) § 52-259c (a) provides: “There shall be paid to the clerk of the Superior Court upon the filing of any motion to open, set aside, modify or extend any civil judgment rendered in Superior Court a fee of thirty-five dollars for any housing matter, a fee of twenty-five dollars for any small claims matter and a fee of seventy-five dollars for any other matter, except no fee shall be paid upon the filing of any motion to open, set aside, modify or extend judgments in juvenile matters or orders issued pursuant to section 46b-15 or upon the filing of any motion pursuant to subsection (b) of section 46b-63. Such fee may be waived by the court.”

       See footnote 4 of this opinion.

       The bills submitted to the court in support of the plaintiffs claim for attorney’s fees totaled $36,525, not $27,000. Attorney Robert F. Cohen’s bill totaled $30,000; attorney Michael J. Auger’s bill totaled $6525. Additionally, neither bill included the time spent at trial, which, obviously, still was continuing.

       Our review of the record reveals that there was some evidence of damages other than the attorney’s fees incurred. The plaintiff testified that he was unable to sell his home because Thomas Calo intentionally had parked his tarp-covered camper directly in front of it, which testimony the court specifically credited, stating: “The evidence supports [the plaintiffs] claim that [Thomas] Calo’s parking the camper in front of [the plaintiffs] home for two years amounts to a private nuisance. His doing so prevented [the plaintiff] from selling his home. . . . His conduct was intentional.”
      The plaintiff also testified that his property value had decreased from between $350,000 and $375,000 before Thomas Calo parked the camper in front of it, to being worth only between $250,000 and $275,000 after the camper was moved because the housing market had slowed down. The record also contains a December, 2003 bill from Torrington Diesel Corporation, in the amount of $1033, for time, labor and materials to begin construction on the plaintiffs new driveway, which construction Thomas Calo would not allow to continue at the time. The plaintiff also testified as to how this situation had affected his family, including his wife and his children and his relationship with them. We do not know, however, what weight the court gave this testimony.
      “Once a nuisance is established under substantive law, damages are similar to those in many trespass cases. . . . Where the nuisance ... is not permanent and has been or can be abated, damages are usually measured differently. The plaintiff usually recovers the depreciation in the rental or use value of his property during the period in which the nuisance exists, plus any special damages. Rental value and use value are not necessarily the same thing, and some courts allow a plaintiff who actually occupies the premises to recover the ‘use value,’ or special value to him, but limit the recovery of the owner who does not occupy the premises to the more objective measure of rental value. Discomfort or inconvenience in the use of the property is, of course, relevant both to establish special damage and as evidence bearing on the loss of rental or use value.” (Internal quotation marks omitted.) W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 89, pp. 637-39. Special damages have been interpreted as discomfort or inconvenience in the use of the property, the cost to repair or to restore the property, and for illness caused by the temporary nuisance. See id., p. 639; see also Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 41, 404 A.2d 889 (1978) (“in a nuisance case, the [trier of fact] may properly consider discomfort and annoyance”).
      As we stated in Kinsale, LLC v. Tombari, 95 Conn. App. 472, 476 n.4, 897 A.2d 646 (2006), however, “[in] traditional nuisance law . . . whether a nuisance is temporary or permanent is a question of fact and ... in making that determination, a fact finder may look at the permanent nature of the damages in assessing whether damages are of a permanent or temporary nature. Thus, the fact that the objects placed and erected by the defendants to annoy and to deter the plaintiffs could have been removed is not dispositive of the question of the temporary or permanent nature of the plaintiffs’ damages. Rather, if a nuisance, albeit one that could be removed, causes a reduction in the sales price of a property burdened by the nuisance, the damages realized by the seller may be viewed as permanent. See Herbert v. Smyth, 155 Conn. 78, 230 A.2d 235 (1967).”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GREGG A. MARCHAND v. MARYANNE SMITH ET AL.
    (AC 31915)
    Harper, Alvord and Hennessy, Js.

      Argued November 10, 2010
    officially released February 22, 2011

      Gregg A. Marchand, pro se, the appellant (plaintiff).

      Jeffrey F. Buebendorf, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The self-represented plaintiff, Gregg A. Marchand, appeals from the judgment of the trial court rendered in favor of the defendants Maryanne Smith and the William W. Backus Hospital (hospital) granting their motion for summary judgment. The plaintiff claims that the court improperly determined that his claims were (1) time barred by the applicable statute of limitations and (2) not saved by General Statutes § 52-591 or the accidental failure of suit statute, General Statutes § 52-592. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On June 12, 2004, the state police confronted the plaintiff while he was staggering beside Route 2 in Ledyard. At some point thereafter, the plaintiff was transported by ambulance to the defendant hospital.

Upon arriving at the hospital, members of the hospital staff concluded that the plaintiff was a danger to himself and to others. The staff then restrained the plaintiff, drew his blood and treated him with Haldol, an antipsy-chotic medication, and Ativan, a relaxant. Blood tests later revealed that the plaintiff had an elevated blood alcohol level at that time. The plaintiff was discharged from the hospital the following morning, June 13, 2004.

On or about August 2, 2006, the plaintiff brought an action against the hospital in the United States District Court for the District of Connecticut. See Marchand v. William W. Backus Hospital, 561 F. Sup. 2d 258 (D. Conn. 2008). The hospital filed a motion for summary judgment in that case, which the court granted on June 20, 2008. Id.

On July 2, 2009, the plaintiff instituted the present action by filing a four count complaint against the defendants, alleging unlawful restraint, assault and battery, negligent and reckless false imprisonment and intentional infliction of emotional distress. In his complaint, the plaintiff alleged that Smith, a physician, ordered members of the hospital staff to draw his blood and to administer the aforementioned medications.

The civil summons attached to the plaintiffs complaint specifically identifies Smith and the hospital as defendants. The summons also lists several additional defendants whom the plaintiff identifies only as “Jon” and “Jane Does.” On July 17, 2009, the defendants filed a motion to dismiss the plaintiffs complaint as it related to these unknown defendants on the ground that the court lacked personal jurisdiction over them, which the court granted on August 31, 2009.

On December 3, 2009, Smith and the hospital filed a motion for summary judgment alleging that there were no genuine issues of material fact and that the plaintiff could not prevail on his claims. Specifically, they alleged that the plaintiffs claims were time barred because, at best, they were subject to the three year statute of limitations applicable to torts, General Statutes § 52-577, and that the plaintiff filed his claims five years after the acts complained of occurred. The plaintiff opposed the motion for summary judgment on the ground that his claims were not time barred pursuant to §§ 52-591 or 52-592.

The court, in its January 13, 2010 memorandum of decision granting the motion for summary judgment, determined that the events that form the basis of the plaintiffs complaint occurred on June 12 and 13, 2004. The court then noted that § 52-577 bars intentional tort actions that are not brought within three years of the act complained of, and that General Statutes § 52-584 bars actions to recover damages caused by medical malpractice that are not brought within two years of the act, omission or discovery of the injury complained of. The court concluded, therefore, that because there is no genuine issue of fact with respect to the date upon which the events alleged in the complaint took place, the statute of limitations with respect to each of the plaintiffs claims had expired. After examining the record on appeal and considering the briefs and arguments of the parties in regard to the plaintiffs claims, we are persuaded that the judgment of the trial court should be affirmed.

The judgment is affirmed.

       The plaintiff also named “Jon” and “Jane Does” as defendants, none of whom is a party to this appeal.

       General Statutes § 52-591 provides: “When a judgment in favor of a plaintiff suing in a representative character, or for the benefit of third persons, has been reversed, on the ground of a mistake in the complaint or in the proper parties thereto, and, while the action was pending, the time for bringing a new action has expired, the parties for whose special benefit the action was brought may commence a new action in their individual names at any time within one year after the reversal of the judgment, if the original action could have been so brought.”

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence anew action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. ...
      “(d) The provisions of this section shall apply ... to any action brought to the United States . . . district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court . . . .”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       Contrary to the plaintiffs argument, §§ 52-591 and 52-592 are wholly inapplicable in the present case. See footnotes 2 and 3 of this opinion.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician . . . [or] hospital . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”


author: STOUGHTON, J. BEAR, J.,

text:
    BREWSTER PARK, LLC v. FRED BERGER
    (AC 30916)
    DiPentima, C. J., and Bear and Stoughton, Js.

      Argued October 29, 2010
    officially released February 22, 2011

      Matthew G. Berger, for the appellant (defendant).

      Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The defendant, Fred Berger, appeals from the judgment of the trial court awarding the plaintiff, Brewster Park, LLC, damages for use and occupancy of its premises by the defendant and attorney’s fees. On appeal, he claims that (1) the plaintiff failed to plead a claim for use and occupancy in its complaint, (2) the court improperly awarded damages for use and occupancy pursuant to a lease agreement, and (3) attorney’s fees were awarded improperly to the plaintiff. We reverse the judgment of the trial court as to the award of attorney’s fees and affirm the judgment in all other respects.

The following facts as found by the court and revealed in the record are relevant to our resolution of the defendant’s appeal. The plaintiff was the owner of premises in Bridgeport identified as 2600 Park Avenue, unit 10B, and 155 Brewster Street, unit 3D. The plaintiff leased these premises to Aaron Hochman pursuant to the terms of a residential rental agreement, with an appended option to purchase. The term commenced on August 16, 2006, and ended on February 15, 2007, for a total rent of $46,110, payable in monthly installments. The agreement provided that Hochman might use unit 10B as a private dwelling for the defendant and himself, and unit 3D as a private dwelling for himself only. Paragraph l of the agreement expressly stated that the words “I,” “me” and “my” as used in the agreement referred to the tenant, Hochman. Paragraph 2 expressly stated that the words “you” and “your” referred to the landlord, the plaintiff herein.

Paragraph 15 of the agreement, entitled “Default/ Holding Over,” separately was acknowledged and agreed to by both Hochman and the defendant, as their signatures appear at the bottom of this paragraph. The defendant’s signature appears nowhere else in the agreement. Paragraph 15 (a) provided for damages, including reasonable legal fees, to be paid to the plaintiff upon default. In paragraph 15 (b), Hochman agreed that he may not hold over and that he would indemnify and hold the plaintiff harmless, to include costs and attorney’s fees, if he and the defendant did not vacate the premises in a timely manner. Pursuant to the agreement, both Hochman and the defendant agreed to vacate by February 15, 2007, or no later than thirty days after their receipt of a notice of default and failure to cure the same, and both acknowledged that their representations that they would properly vacate the premises were relied on by the plaintiff.

The record reveals that the defendant was employed in some capacity by Hochman and that he used unit 10B throughout the term of the agreement, beginning on August 16, 2006, and continued to use it for several months after the date he agreed to vacate. No rent was ever paid by Hochman, and on November 10, 2006, the plaintiff caused a notice to quit by November 17, 2006, to be served on the defendant. The defendant remained in possession of the premises, and he testified that although he was aware of the notice to quit, he had discussed the matter with Hochman, who stated that he would take care of it. Thereafter, the plaintiff instituted a summary process action to evict the defendant, which ended in a judgment in favor of the plaintiff by stipulated agreement for possession by July 15, 2007. No costs were awarded in that judgment.

The present action was initiated by the plaintiff to recover damages from the defendant for his alleged wrongful use and occupancy of the premises and to recover all costs associated with the eviction action. At the conclusion of the trial, the court found the fair market value for unit 10B to be $3400 per month and awarded damages for the defendant’s use and occupancy from November, 2006, when he became aware of the default for nonpayment of rent, until July 15, 2007, when he vacated the premises. In addition, the court concluded that paragraph 15 (a) of the agreement held that the defendant was personally responsible upon default for reasonable attorney’s fees. The court then noted that attorney’s fees may be awarded when permissible by statute or contract and, without further explanation, awarded the plaintiff $7500 as reasonable attorney’s fee. The court proceeded to render judgment in favor of the plaintiff for $36,400. This appeal followed.

I

The defendant first asserts that the plaintiff did not allege sufficiently a claim for use and occupancy. He argues that the plaintiffs complaint, instead, only sought damages for unjust enrichment and retention of the benefit of the unit. We do not agree.

Because the interpretation of pleadings is an issue of law, our review is plenary. Maloney v. PCRE, LLC, 68 Conn. App. 727, 746,793 A.2d 1118 (2002). The plaintiffs complaint expressly alleges that the defendant was given the right to use and to occupy the premises pursuant to the rental agreement between the plaintiff and Hochman, that he did so use and occupy the premises, that no rental payments were made and that he was aware of the fact that rental payments were not being made. It further alleges that the defendant was unjustly enriched by the benefit of his use and occupancy and that he owes the plaintiff the payment of reasonable use and occupancy for the premises from August 16, 2006, to July 15, 2007.

The defendant correctly asserts that there was no reference in the complaint to General Statutes § 47a-3c, which provides for the remedy of use and occupancy payments. Although a plaintiff generally is required to identify specifically any statute on which a particular action is grounded; see Practice Book § 10-3 (a); “our courts repeatedly have recognized that [this rule] is directory and not mandatory.” (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn. App. 47, 65, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). The plaintiff is not barred from recovery thereby as long as the defendant sufficiently was apprised of the nature of the action. Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003); see also Caruso v. Bridgeport, 285 Conn. 618, 629, 941 A.2d 266 (2008) (“[t]he critical consideration under § 10-3 [a] . . . is whether the [defendant was] on notice of the statutory basis for the plaintiffs claims”). Our review of the record reveals that the plaintiffs claim for use and occupancy was raised distinctly at trial and clearly set forth in its complaint. Additionally, the defendant cannot claim that he did not have knowledge of the statutory ground for the use and occupancy claim, as the plaintiff specifically identified § 47a-3c in its pretrial memorandum of law. See LeBlanc v. Tri-Town Shelter Services, Inc., 110 Conn. App. 118, 121 n.2, 955 A.2d 55 (2008) (plaintiff adequately invoked claim for use and occupancy pursuant to § 47a-3c by explicitly raising issue in trial brief). Accordingly, the defendant’s claim fails.

II

Next, the defendant claims that the court erroneously found that by signing below paragraph 15 of the rental agreement he had bound himself to a claim for use and occupancy. The defendant, however, has misconstrued the memorandum of decision and, thus, failed to understand the foundation for the court’s award of damages for use and occupancy.

Our reading of the decision reveals that the court did not award use and occupancy damages pursuant to paragraph 15, as it expressly found that the defendant was not the signor of the lease and therefore was not liable for all the terms of the agreement. It concluded, however, that this did not relieve the defendant of any obligation to the plaintiff, as he had resided in unit 10B for nearly nine months after being put on notice to quit possession of the premises. Referring to its equitable powers and citing Welk v. Bidwell, 136 Conn. 603, 73 A.2d 295 (1950), the court determined that it was able to provide a remedy in a situation where a person occupies certain premises even though the occupation is without an oral or written rental agreement. Accordingly, the court awarded the plaintiff damages for the defendant’s use and occupancy of the premises from the time he was on notice of the default for nonpayment of rent in November, 2006, until he vacated in July, 2007.

The court’s award was not made, as argued by the defendant, because of any obligation he had undertaken pursuant to the lease. Nor did the court find that he had “bound himself to a claim for use and occupancy” by signing a portion of the agreement. To the contrary, the remedy of use and occupancy payments was ordered because an agreement between the parties was absent. See Sippin v. Ellam, 24 Conn. App. 385, 392, 588 A.2d 660 (1991). Consequently, we conclude that the defendant’s signature at the bottom of paragraph 15 did not foster the court’s award for use and occupancy damages.

“A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated. . . . After a notice to quit has been served . . . a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit.” (Citations omitted; internal quotation marks omitted.) Id., 391. The court found from the evidence presented that the fair market value for unit 10B was $3400 per month, and it awarded the plaintiff use and occupancy damages in accordance with this figure. Not only was this award statutorily permissible; see General Statutes § 47a-3c; but, in our view, the court’s use of fair market value to determine the plaintiffs damages, as opposed to the fixed rental price expressed in the agreement, buttresses our conclusion that the court’s use and occupancy award was not ordered on the basis of paragraph 15, or the defendant’s signature thereto. Accordingly, we agree with the plaintiff that the court’s award for use and occupancy was proper.

m

Finally, the defendant claims that the court’s award of attorney’s fees was improper. We agree.

Attorney’s fees are not allowed to the prevailing party absent a contractual or statutory exception. Trugreen Landcare, LLC v. Elm City Development & Construction Services, LLC, 101 Conn. App. 11, 14, 919 A.2d 1077 (2007). In the present case, the court, after reciting Welk v. Bidwell, supra, 136 Conn. 603, as authority for its awarding damages for use and occupancy, then considered, in addition, the defendant’s potential obligations under paragraph 15 (a) of the rental agreement. The court determined that the defendant had some personal liability pursuant to that paragraph, and it proceeded to award the plaintiff $7500 as reasonable attorney’s fees.

The defendant claims that language of paragraph 15 (a) only contemplated holding Hochman liable for attorney’s fees. Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Neubig v. Luanci Construction, LLC, 124 Conn. App. 425, 432, 4 A.3d 1273 (2010). “[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 . . . .” (Internal quotation marks omitted.) Creatura v. Creatura, 122 Conn. App. 47, 52, 998 A.2d 798 (2010). Our threshold determination, therefore, “is whether . . . the provision at issue is clear and unambiguous, which is a question of law over which our review is plenary.” Isham v. Isham, 292 Conn. 170, 181, 972 A.2d 228 (2009).

With these principles in mind, we turn to the relevant contractual language in the rental agreement between Hochman and the plaintiff. As set forth previously, paragraph 1 of the agreement defines the term “I” as used in the agreement as Hochman. See footnote 2 of this opinion. Paragraph 15 (a) provides: “Upon default, I must pay your damages, including reasonable legal fees, the costs of re-entering, re-letting, cleaning and repairing the property.” (Emphasis added.) Paragraph 15 (b) provides: “In no event may I hold over. We, the undersigned, agree to vacate the [property [on time]. . . . Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs.” (Emphasis added.) Both Hochman’s and the defendant’s signatures appear at the bottom of this paragraph.

The court rejected the defendant’s argument that, on the basis of the express language in paragraph 1 and paragraph 15, only Hochman was liable for attorney’s fees. Although the court concluded that the defendant had no liability for damages under paragraph 15 (b), it concluded otherwise with respect to paragraph 15 (a). The court found that while paragraph 1 defined Hoch-man as “I” in the agreement, the reference to “I” in paragraph 15 did not refer to Hochman alone, as both he and the defendant signed the bottom of that paragraph. The court reasoned that the clear intent in having the defendant sign at the bottom of paragraph 15 was to inform him of his obligations under the terms of that paragraph. Accordingly, the court found that the defendant had personal liability pursuant to the rental agreement under paragraph 15 (a), which included liability for reasonable costs and attorney’s fees.

We conclude that a plain reading of paragraph 15 (a), in conjunction with paragraph 1, clearly and unambiguously obligated only Hochman to be personally hable for damages, including costs and legal fees, in the event of default. In our view, to assign liability to the defendant pursuant to paragraph 15 (a), despite the fact that the term “I” is defined precisely in the agreement as referring to Hochman alone, would require a tortured and unreasonable interpretation. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 499, 746 A.2d 1277 (2000). Our conclusion is strengthened by the fact that paragraph 15 (b) provides that “[w]e, the undersigned, agree to vacate the [property [on time].” The use of the term “we” in this clause, and not in paragraph 15 (a), indicates that the parties intended that the defendant be responsible for timely vacating the premises and nothing more. Consequently, we conclude that the language of the agreement does not support the court’s award of attorney’s fees against the defendant.

The judgment is reversed only as to the award of attorney’s fees and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.

In this opinion DiPENTIMA, C. J., concurred.

BEAR, J.,

dissenting in part and concurring in part. Although I respectfully disagree with the analysis set forth in part II of the majority opinion, I nevertheless concur in the result reached, affirming the trial court’s damages award. I cannot join, however, in part III of the opinion, reversing the judgment as to the award of attorney’s fees. I conclude that pursuant to paragraph 15 (a) of the lease agreement, the defendant, Fred Berger, with respect to 2600 Park Avenue, unit 10B, Bridgeport, not only is liable after default for use and occupancy, but also is liable for the attorney’s fees awarded to the plaintiff, Brewster Park, LLC, by the trial court. Accordingly, I would affirm the judgment of the trial court.

Paragraph 15 (a) of the lease provides: “Upon default, I must pay your damages, including reasonable legal fees, the costs of re-entering, re-letting, cleaning and repairing the property.” As I will set forth, the “I” in paragraph 15 (a) refers to the defendant. In paragraph 15 (b), “I” also refers to the defendant. This is because Aaron Hochman, the primary tenant signatory to the lease, is referred to by name in paragraph 15 (b) of such lease.

Paragraph 15 (b) of the lease provides: “In no event may I hold over. We, the undersigned, agree to vacate the [property (i) on or before February 15, 2007, or (ii) if applicable, on September 17, 2007, or (iii) not later than thirty (30) days after we receive notice of default and do not cure the same within thirty (30) days. Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs. We acknowledge that our representations that we will not hold over is being relied upon by you, as consideration for you granting both the tenancy and the option to purchase, and that it would be unjust and inequitable if you were forced to incur additional costs and damages as a result of our failure to vacate.

“Acknowledged and agreed to . . . Aaron Hochman [and] Fred Berger.”

I arrive at this conclusion although paragraph 1 of the lease provides in relevant part: “The words T, ‘me’ and ‘my’ in this [r]ental [agreement . . . refer to the [t]enant. The following person is the [t]enant: Aaron Hochman 115 Brewster Street, Unit 3D Bridgeport, CT.”

After closely examining the lease in its entirety, I conclude that the language in paragraph 1, defining “I,” “me” and “my,” as set forth at the beginning of the lease, does not apply to paragraph 15 of the lease, although that is not specifically set forth anywhere in the lease. The only clear and logical reading of paragraph 15 (a) is that in that paragraph, “I” refers to the defendant. In paragraph 15 (b), “I” also refers solely to the defendant, and “we” refers to Hochman and the defendant. The import of paragraph 15 (a) is that for unit 10B, the defendant is liable for subsequent charges after default, including use and occupancy and attorney’s fees. If the defendant were not the “I” in paragraph 15 (a), there would have been no need to name Hoch-man and to set forth his liability for “any costs of eviction, attorney’s fees, sheriffs fees and court costs” in paragraph 15 (b).

Further, the defendant, by his signature at the bottom of paragraph 15, did more than acknowledge the contents of the subsections. He “[acknowledged and agreed to” them.

The foregoing interpretation of paragraph 15 (a) comports with our law: “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. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 183, 2 A.3d 873 (2010).

The foregoing analysis also finds support in the trial court’s decision. The trial court also examined the defendant’s liability under paragraph 15 and found the following: “The defendant in this case was named as an occupant of the dwelling 2600 Park Avenue, unit 10B, along with Aaron Hochman. The defendant’s name and signature further appear on the lease at paragraph 15 entitled ‘Default/Holding Over.’ The defendant’s signature does not appear anywhere else in the document.”

The court also stated: “In addition, the court must also consider the defendant’s obligations under paragraph 15 of the lease between Hochman and the plaintiff.

“Paragraph 15 of the lease is divided into two separate paragraphs. The subsection (a) deals with actions upon default, and subsection (b) deals with actions upon a holdover. The subsection (b) says in part, ‘Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs.’ [Although] the language of the subsection contains the words, ‘[w]e, the undersigned,’ it clearly states also that Hochman shall be responsible for damages under subsection (b). The court finds that this limits the liability as to this defendant under this subsection.

“The court now turns its attention to the subsection (a) of the rental agreement. The tenancy between Hoch-man and the plaintiff began on August 16, 2006, and ended on February 15, 2007, subject to an extension provided in the addendum attached to the agreement. The plaintiff testified that no rent was ever paid by Hochman, and they began eviction proceedings in November, 2006. The defendant testified that he resided at 2600 Park Avenue, unit 10B, all the relevant time of the agreement. He further testified that he was aware of the notice to quit in November, 2006, and that he discussed the notice with Hochman. Although the defendant stated that Hochman told him he would take care of it, clearly the defendant had notice of the default as of November, 2006.

“The defendant argues that even though he may have had notice of the default, he was not obligated under subsection (a) because the language of the paragraph states, ‘Upon default, I must pay . . . The defendant contends that T is Hochman, the signer of the lease. The court does not agree with this analysis as to paragraph 15 only. To accept the defendant’s argument would beg the question of the purpose of his signature appearing at that time and at that place on the document. The clear intent of having the defendant sign the bottom of the paragraph was to inform him of his obligations under the terms of the paragraph.

“Accordingly, the court finds that the defendant does have some liability under paragraph 15 of the rental agreement.” (Emphasis added.)

The court concluded that the defendant was contractually obligated to pay the plaintiffs reasonable attorney’s fees: “Lastly, the plaintiff is entitled to attorney’s fees. The court has previously indicated that paragraph 15 holds the defendant personally responsible upon his default. The paragraph specifically states the person(s) liable must pay damages, including reasonable attorney fees. Furthermore, the court may award attorney fees as an item of damages when allowed by statute or contract. Bushnell Plaza Development Corp. v. Faz-zano, 38 Conn. Sup. 683, 687, 460 A.2d 1311 (1983). The court finds that the plaintiff is awarded $7500 as reasonable attorney’s fees.”

The trial court found, and I agree, that the defendant is liable for attorney’s fees pursuant to paragraph 15 (a) of the agreement. Accordingly, I respectfully dissent from part III of the majority opinion that holds otherwise. I conclude that the judgment of the trial court should be affirmed.

For the foregoing reasons, I dissent in part and concur in part.

       In his statement of the issues, the defendant also claimed that the court improperly failed to consolidate this case with Brewster Park, LLC v.Hochman, Superior Court, judicial district of Fairfield, Housing Session at Bridgeport, Docket No. FBT-CV-07-4021167-S. The defendant, however, has not briefed this issue on appeal, and, accordingly, it is deemed abandoned. See Mundell v. Mundell, 110 Conn. App. 466, 478, 955 A.2d 99 (2008) (“[ajssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court” [internal quotation marks omitted]).

       Paragraph 1 of the agreement, entitled “Tenant,” provides: “The words T, ‘me’ and ‘my’ in this [r]ental [agreement . . . refer to the [tjenant. The following person is the [tjenant: Aaron Hochman 115 Brewster Street, Unit 3D Bridgeport, CT.”

       Paragraph 2 of the agreement, entitled “Landlord,” provides: “The words ‘you’ and ‘your’ refer to the [ljandlord who is: Brewster Park, LLC c/o Michael Weinshel 418 Meadow Street Suite 201 Fairfield CT 06824.”

       Paragraph 15 (a) of the agreement provides: “Upon default, I must pay your damages, including reasonable legal fees, the costs of re-entering, re-letting, cleaning and repairing the property.”

       Paragraph 15 (b) of the agreement provides: “In no event may I hold over. We, the undersigned, agree to vacate the [pjroperty (i) on or before February 15, 2007, or (ii) if applicable, on September 17, 2007, or (iii) not later than thirty (30) days after we receive notice of default and do not cure the same within thirty (30) days. Hochman shall indemnify you and hold you harmless in the event we do not vacate on time. This shall include, but not be limited to, any costs of eviction, attorney’s fees, sheriffs fees and court costs. We acknowledge that our representations that we will not hold over is being relied upon by you, as consideration for you granting both the tenancy and the option to purchase, and that it would be unjust and inequitable if you were forced to incur additional costs and damages as a result of our failure to vacate.
      “Acknowledged and agreed to . . . Aaron Hochman [and] Fred Berger.”

       General Statutes § 47a-3c provides: “In the absence of agreement, the tenant shall pay the fair rental value for the use and occupancy of the dwelling unit.”

       In Welk, the defendant tenant leased from the plaintiff landlord a tobacco bam on a month-to-month basis for a monthly rental of $10. Welk v. Bidwell, supra, 136 Conn. 605. Prior to the expiration of one year’s term, the landlord sought to increase the rent to $125 per month. Id. The defendant refused to pay the increased rent, held over, and continued to pay $10 per month. Id. The landlord thereafter brought an action to collect the difference between $10 and $125 per month. Id., 606. Our Supreme Court concluded that the landlord could not impose the increased rent on the tenant, as the defendant’s refusal to agree to the new rent left the parties without an enforceable lease agreement. Id., 608. It concluded, however, that the defendant was liable to the plaintiff for the reasonable rental value of the property he occupied while holding over. Id., 609.

       The court found that the agreed on monthly rental price was $3842. This figure was not used in the court’s use and occupancy damages calculation.