PURTILL, JUDGE TRIAL REFEREE.
This is an action to recover a real estate brokerage commission. After the action had been withdrawn, defendant Albert C. Lodrini moved for attorneys fees pursuant to Connecticut General Statutes § 42-150bb.
Default judgments were obtained against both Albert C. Lodrini and Virginia Lodrini. Since Virginia is not a party to the matter now before the court, for purposes of simplicity, Albert C. Lodrini will be referred to as defendant.
For reasons hereinafter stated, the motion for attorneys fees is denied.
The factors underlining the action are more fully set forth in Tyler E. Lyman v. Lodrini, 63 Conn. App. 739, cert. denied, 258 Conn. 902 (2001), and Tyler E. Lyman v. Lodrini, 78 Conn. 582 (2003). The facts relevant to these procedures are summarized as follows.
The plaintiff obtained a default judgment against defendant in the underlining action to recover a real estate brokerage commission. That judgment was successfully appealed and upon remand, after an evidentiary hearing, the default judgment was set aside and the matter returned to the civil docket. Subsequent to the setting aside of the default judgment and the restoration of the case to the docket, defendant filed a request to revise the complaint to which plaintiff objected. The objection was overruled. Defendant then filed a motion for nonsuit against plaintiff for failure to revise the complaint whereupon plaintiff withdrew the action against defendant. Defendant then filed a motion for an award of attorneys fees under the provisions of Connecticut General Statutes § 42-150bb.
The motion for attorneys fees was denied without an evidentiary hearing. This denial was appealed.
The appellate court concluded that a threshold factual issue existed as to whether the action involved a contract that is CT Page 2049 covered by the provisions of § 42-150bb.
Section 42-150bb provides in relevant part:
Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorneys fees of the commercial party to be paid by the consumer, and attorneys 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 . . . for the purposes 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.
Attorneys fees under this section are available by operation of law. The amount of the fees to be awarded rest within the sound discretion of the trial court. Rizzo Pool Co. v. Delgrosso, 240 Conn. 58, 66 (1997).
Section 42-150bb applies only to contracts in which "the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes." When faced with a motion for counsel fees under this section, the court must therefore determine whether the contract at issue is the type of contract for which attorneys fees may be recovered.
In his motion for attorneys fees, defendant represented that plaintiff had commenced the action on the basis of a contract, a real estate listing agreement, in which the money, property or services that was the subject of the transaction was primarily for personal, family or household purposes. Defendant represented that plaintiff was a commercial party and that an addendum to the contract provided that defendant should pay to plaintiff "reasonable legal fees for collection of any commissions that shall become due and payable under the terms and conditions of this agreement."
In its objection to the motion for attorneys fees, plaintiff CT Page 2050 argued that the contract at issue was not a consumer contract. Specifically, plaintiff argued that the contract at issue was a real estate listing agreement on undeveloped non-residential real property consisting of approximately 13.7 acres located on River Road in Stonington, Connecticut. Plaintiff argued that the property was not defendant's residence or otherwise used for his personal, family or household purposes.
The appellate court, having determined that the trial court was in error in failing to hold an evidence hearing on the applicability of § 42-150bb, this case was remanded for an evidentiary hearing on the question as to whether the contract was one in which "the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes." Tyler E. Lyman v. Lodrini, supra, 78 Conn. App. 582-90. In carrying out the mandate of the appellate court, the trial court is limited to the specific direction of the mandate as interpreted in light of the appellate court opinion. Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 794 (1983).
Pursuant to the mandate of the appellate court, an evidentiary hearing was held and the following facts are found.
The defendant and Virginia Lodrini acquired title to the real property which is the subject of the listing agreement in 1983. The property consisted of land at River Road in the Town of Stonington, Connecticut. The property was located on the Pawcatuck River at Stanton Weir Point. It was plaintiff's desire to develop the property as a marina with a personal residence located thereon. A site plan with a layout showing the proposed uses of the property was prepared by plaintiff. This plan was entitled, "Site Plan Showing Property of Albert C. and Virginia Lodrini dba Stonington Yacht Club Located on Stanton Weir Point, River Road, Stonington, Connecticut and as Stonington Marina, January 1984." The uses which the defendant proposed to locate on the property were listed on the plan as "boat slips, boat storage area, restaurant, chandlery, boat sales office, clubhouse, boat services, personal residence." The plan indicated that a single-family residence would be located on a portion of the property near the river.
The property was subject to the zoning regulations of the Town of Stonington. At some time before or after defendant acquired the property, the zone was changed from a zone which would have CT Page 2051 allowed a marina to a zone restricted to three-acre residential use. The zone change meant that defendant was prevented from using the property for commercial purposes but could use it for personal, family or household purposes.
Defendant elected to sell the property. He never resided on the property and no residence was ever built on it or, except in connection with the marina, was ever contemplated for the land. Defendant lacked funds to build a house on the property without the commercial development.
At the time, defendant had other properties which could be characterized as investment land.
In his effort to sell the property, defendant entered into the listing agreement and addendum with plaintiff. Plaintiff primarily handled commercial real estate and on the original listing agreement plaintiff is described as "Lyman Commercial Industrial and Land." In his dealings with plaintiff, defendant never indicated that he intended to build a private residence on the property and it was the impression of Ronald E. Lyman that defendant considered the land as investment property.
From the evidence, it is found that the only personal, family or household uses which defendant ever contemplated for the property was as shown on the 1984 site plan. Under that plan, only a very small portion of the property would be used for personal, family or household use. The primary use of the property would be as a marina with other commercial uses.
At the time the listing agreement and addendum was entered into with plaintiff, defendant had abandoned all plans to use the property for personal, family or household purposes and that therefore he is not entitled to attorneys fees under the provisions of § 42-150bb as claimed.
Accordingly, the motion for attorneys fees is denied.
Joseph J. Purtill Judge Trial Referee