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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

(Appeal from Superior Court, judicial district of Fairfield, Housing Session at Bridgeport, Moore, J.) 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.1 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 12 of the agreement expressly stated that the words ``I,'' ``me'' and ``my'' as used in the agreement referred to the tenant, Hochman. Paragraph 23 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)4 provided for damages, including reasonable legal fees, to be paid to the plaintiff upon default. In paragraph 15 (b),5 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 plaintiff's 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 plaintiff's 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, 2007, to July 15, 2007. The defendant correctly asserts that there was no reference in the complaint to General Statutes

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