GILLIGAN, J.
The plaintiff in this action, Fish First, LLC, ("Landlord") sues to collect sums claimed to be due from the defendant, Fancy Bagels Baking, LLC, ("Tenant") for the use and occupancy of a portion of the premises at 240 Atwater Street, Southington, CT (the "Premises") pursuant to a letter agreement dated December 21, 2006 (the "Agreement"). The plaintiff also sues the defendant, John Gissas, individually as guarantor of the Tenant's payment obligations under the Agreement. In their answer, the defendants admit signing the Agreement, but dispute the sums claimed by the plaintiff.
The matter was tried to the court on July 24, 2008. Having observed the testimony of the witnesses, reviewed and considered all full exhibits and other relevant evidence adduced during trial, the court makes the following findings.
After lengthy negotiations, the plaintiff and defendants entered into the Agreement which provided for a month to month tenancy by the Tenant at a base rent of $2,500 per month plus $1,750 per month for utilities "beginning January 15, 2007" and twenty percent of taxes, water and sewer use charges for 240 Atwater Street. (Plaintiff's Exhibit No. 1.) The Agreement provided that the foregoing sums would be payable "until a written lease is executed." The Agreement also required the Tenant to pay a security deposit of $5,000, payable in monthly installments of $1,000 from January 15, 2007 until May 15, 2007.
Although the plaintiff's complaint alleges the Tenant's breach of the Agreement and claims damages resulting therefrom, the parties offered considerable testimony concerning their relationship and dealings prior to the period of occupancy covered by the Agreement. "It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . What is in issue is determined by the pleadings and these must be in writing . . . Once the pleadings have CT Page 12659 been filed, the evidence proffered must be relevant to the issues raised therein . . . A judgment upon an issue not pleaded, would not merely be erroneous, but it would be void." (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007). In determining damages recoverable by the plaintiff, the court is limited to sums found to be due under the Agreement, not any damages that result from issues or disputes not raised by the pleadings.
Under the Agreement, the Tenant's occupancy was month to month. As noted, the monthly rent of $2,500 and $1,750 monthly utility charges were payable "beginning January 15, 2007." In the absence of any provision in the Agreement that the payments were due and payable in arrears, or any testimony to that effect, the court finds that the payments were intended to be due and payable in advance as is customary in commercial leases. Accordingly, the court finds that the sum of $4,250 was due on January 15, 2007 for the period of January 15, 2007 through February 15, 2007 and a like sum was due and payable for each month thereafter until the tenancy terminated.
"When the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender . . . Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages." (Citations omitted.) Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn.App. 384, 388, 558 A.2d 265 (1989). The plaintiff has alleged in paragraph 6 of its complaint that "On or about May 21, 2007 Landlord issued a notice to quit to Defendant." "When the landlord elects to terminate the tenancy . . . the action is one for breach of contract . . . and, when the tenancy is terminated, the landlord is obliged to mitigate his damages. When the tenancy ends, the tenant is released from his obligations under the lease and is, therefore, no longer obliged to pay rent." (Citations omitted). Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., supra, 388-89. "[T]he unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant's breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach . . . [I]n an action for breach of a lease, the amount of rent agreed to by the parties is a proper measure of damages." (Citations omitted; internal quotation marks omitted.) Id., 389-90.
Camille Simoneaux testified that she is a member of Fish First, LLC and that when she went to the demised premises "sometime" in May of 2007, the premises were occupied by the "new occupants." Simoneaux also CT Page 12660 testified on cross examination that the Landlord began collecting rent from the new party in possession in June of 2007 and also received a security deposit, although no amounts were specified.
The plaintiff was under a duty to mitigate any damages sustained by the Tenant's breach of the Agreement. The plaintiff offered no evidence that the rent paid by the new occupants was not sufficient to compensate for any losses caused by the Tenant's breach. "It is axiomatic that the burden of proving damages is on the party claiming them . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . . Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . ." (Citations omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308-09, 685 A.2d 305 (1996).
The Agreement required the Tenant to provide the Landlord with 60 days advance notice if the Tenant wished to terminate the Agreement. Gissas testified that he informed the Landlord sometime in April that he "was not able" to continue the occupancy and that the Landlord "didn't seem to have a problem with it." In view of the occupancy of the premises by the new tenants, the plaintiff has not shown that it was harmed by any breach of this provision by the defendants. As noted, the Agreement also required a security deposit in the amount of $5,000. Although the plaintiff has alleged the Tenant's failure to pay the security deposit, it has failed to show how it has been damaged by the Tenant's breach of this provision.
Camille Simoneaux testified that she is a member of Fish First, LLC and was involved in the negotiations that led up to the Agreement with the Tenant through the Landlord's counsel. She also testified as to the accuracy of the sums set forth on the summary ledger prepared by the Landlord's counsel (Plaintiff's Exhibit 2). The plaintiff and defendants agreed, on the record, that the Tenant, has paid the sums totaling $15,200 reflected on Exhibit 2.
The court finds that the Tenant was obligated under the Agreement to pay the Landlord for use and occupancy and utilities at the rate of $4,250 per month for the period January 15, 2007 though May 31, 2007 totaling $19,260. Exhibit 2 reflects an agreement that upon reconciliation of the CAM charges (20% of taxes, water and sewer charges), the Tenant was entitled to a credit in the amount of $426.36. Accordingly, the defendants' full obligation to the plaintiff is the sum of $18,833.64. It being stipulated that the Tenant has paid the sum of $15,200, the CT Page 12661 plaintiff is awarded judgment against Fancy Bagels Baking, LLC and John Gissas in the full amount of $3,633.64 together with taxable costs.
The plaintiff also seeks to recover attorneys fees from the defendants. "The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . Connecticut adheres to the American rule . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs . . . or a statute may confer such rights . . . [Our Supreme Court] has also recognized a `bad faith' exception to the American rule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney." (Citation omitted; internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). Absent contractual or statutory authority or a showing of bad faith, each party must pay its own attorneys fees.
SO ORDERED.
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