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HEYMAN ASSOCIATES NO. 5, L.P., ET AL.

v. FELCOR TRS GUARANTOR, L.P.

(AC 35868)

Lavine, Keller and Mihalakos, Js.

Argued May 29—officially released October 7, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. Taggart D. Adams, judge

trial referee.)

Robert M. Shields, Jr., with whom were Kenneth J.

Bartschi and, on the brief, Wesley W. Horton, for the

appellant (defendant).

Marc J. Kurzman, with whom were Brian A. Daley

and, on the brief, Peter M. Nolin, for the appellees

(plaintiffs).
Opinion

LAVINE, J. This case concerns the validity and

enforceability of a restrictive covenant prohibiting certain premises from being operated as an ‘‘upscale

hotel.’’ The defendant, FelCor TRS Guarantor, L.P.,

claims that the restrictive covenant was extinguished

as a result of certain land transfers, and thus appeals

from the judgment of the trial court in favor of the

plaintiffs, Heyman Associates No. 5, L.P. (Heyman), HD

Hotel, LLC (HD Hotel), AIM Management Corporation

(AIM), and TRJ II (TRJ).1 On appeal, the defendant

claims that the trial court improperly (1) failed to determine that the restrictive covenant was merged out of

existence,2

(2) found that the plaintiffs and HD Hotel

had standing to enforce the restrictive covenant, and

(3) awarded the plaintiffs attorney’s fees. We affirm the

judgment of the trial court.

The following facts, as found by the trial court in a

comprehensive memorandum of decision, and procedural history are relevant to the resolution of this

appeal. In 1996, the plaintiffs owned two hotels in Stamford located two city blocks apart: one was a Marriott,

which catered to an upscale market; the other, a

Ramada Inn, focused on the midscale market. The

hotels were owned by two separate business entities

each comprised of the Heyman, Meyer, and Jabara families.3 The Stamford Marriott (Marriott) charged higher

room rates and provided superior service as compared

to the Ramada Inn, but because each hotel catered to

a different clientele, the hotels were complementary,

and did not impinge on one another’s business. Richard

Jabara, principal for TRJ, testified that if a large company needed hotel rooms in Stamford for a conference,

the plaintiffs could accommodate the salesmen in the

Ramada Inn and the executives in the Marriott.4

Shortly after the plaintiffs acquired the Ramada Inn

in 1996, Holiday Inns, Inc. (Holiday Inn), expressed an

interest in purchasing the Ramada Inn. As a condition

of selling the premises to Holiday Inn, the plaintiffs

required the imposition of a restrictive covenant prohibiting Holiday Inn from operating the premises as an

upscale hotel. The purpose of the restrictive covenant

was to protect the business of the Marriott, which the

plaintiffs owned. Following a brief period of negotiation, Timothy Lane, chief executive officer of Holiday

Inn, assured Jabara that the premises would be run as

a midscale hotel, such as a Holiday Inn.5

In a memorandum dated June 5, 1996, Lane outlined

the nature of the transaction to the executive committee

of Bass PLC:6‘‘[The premises] [were] purchased most

recently by the Meyer and Jabara Hotel Group . . .

who had previously purchased and renovated the . . .

Marriott. . . . [Holiday Inn] was offered the asset for

$8.3 [million] with a deed restriction barring upscale
branding, including Crowne Plaza, for a term of 15

years. . . . The [fifteen year] deed restriction against

branding of the hotel as an upscale brand could limit

sale options in the future, but is not considered a significant concern.’’

The plaintiffs and Holiday Inn reached an agreement7

on the sale of the premises on June 21, 1996, and the

closing occurred on July 12, 1996. On July 12, 1996, the

plaintiffs transferred their land interests in the premises, which included a sublease interest to a large parcel

of land and a fee interest to a small parcel, to Holiday

Inn.8 The sublease interest was transferred pursuant to

a sublease assignment agreement, and the fee interest

was transferred by way of a limited warranty deed.

Both the sublease assignment agreement and the limited warranty deed contained a restrictive covenant,

prohibiting Holiday Inn from using the premises to operate an ‘‘upscale hotel.’’

The transaction included a second phase as well. The

sublease, which the plaintiffs transferred to Holiday Inn

on July 12, 1996, was governed by a ground lease in

favor of a third party, TK Associates. On July 22, 1996,

the plaintiffs acquired the ground lease from TK Associates, and transferred the ground lease to Holiday Inn

on July 27, 1996, by way of a ground lease assignment

agreement. Under the terms of the ground lease assignment agreement, the parties agreed that the sublease

and ground lease interests would merge. No restrictive

covenant was included in the ground lease assignment

agreement. Following the sale ofthe premises,the plaintiffs dissolved the business entity that owned the premises, i.e., BRS Realty Associates, LLC (BRS).

In conformity with the restrictive covenant, Holiday

Inn converted the premises into a Holiday Inn Select.

In 1997, Holiday Inn merged with the Bristol Hotel Company, which in turn merged with FelCor Lodging Trust

in 1998. In 2005, the ground lease for the premises

was transferred to the defendant, a taxable real estate

investment trust. There is no dispute on appeal that the

defendant is Holiday Inn’s corporate successor, and

that the defendant assumed Holiday Inn’s contractual

obligations.9

At trial, Jabara testified that in 1999, he received a

telephone call from Thomas Corcoran, the chairman

or president of the defendant, who requested that the

restrictive covenant be lifted so that the premises could

be used as a Crowne Plaza—an upscale hotel. Jabara

testified that he rejected the request after consulting

with the other plaintiffs. According to Jabara, Corcoran

made a similar request in late 2005, but the plaintiffs

denied it.

In 2005, the defendant received an offer to purchase

the premises from Destination Hotel and Resorts for

$30 million. This offer, however, was withdrawn when
Destination Hotel and Resorts learned of the restrictive

covenant. In response, the defendant consulted with

Garret Delehanty, Jr., a real estate attorney. Delehanty

advised the defendant that there was a ‘‘good argument’’

to be made that the restrictive covenant in the sublease

was merged out of existence when the sublease interest

merged with the ground lease. Delehanty offered to

record a document on the Stamford land records that

stated that the restrictive covenant was ‘‘terminated.’’

On May 25, 2006, the defendant recorded a document

entitled ‘‘Termination’’ on the Stamford land records

without notice to the plaintiffs.

The plaintiffs learned of the termination filing after

they discovered marketing materials associated with

the premises, which informed prospective buyers that

‘‘ownership recently took steps . . . [and] eliminated

a use restriction (which historically impaired the ability

to re-brand with most upscale brands).’’ The plaintiffs

thereafter sent written objections to the defendant concerning the attempted termination of the restrictive covenant, and requested that the termination document

filed in the Stamford land records be withdrawn. The

defendant did not withdraw the termination document.

On July 12, 2006, the plaintiffs and HD Hotel commenced this action seeking a declaratory judgment that

the restrictive covenant was valid, binding, and enforceable. The operative complaint consisted of four counts.

In the first count, the plaintiffs sought a declaratory

judgment that(1) the termination document filed on the

land records was null and void, and (2) the restrictive

covenant was valid, effective, and enforceable. In the

second count, HD Hotel sought a declaratory judgment

that it was the intended beneficiary of the restrictive

covenant, and that it was entitled to enforce the restriction. In count four, both the plaintiffs and HD Hotel

alleged that they were entitled to an award of attorney’s

fees pursuant to provisions in the sublease assignment

agreement and the ground lease assignment

agreement.10

The defendant denied the material allegations of the

complaint and raised several special defenses including

that (1) the plaintiffs lacked standing to enforce the

restrictive covenant, and (2) the restrictive covenant

had been ‘‘merged out of existence.’’ In addition, by way

of a counterclaim, the defendant alleged (1) tortious

interference with contract or business expectations, (2)

slander of title, and (3) a violation of the Connecticut

Unfair Trade Practices Act. By agreement the trial was

bifurcated. Trial on the issues raised by the complaint

and the defendant’s special defenses commenced on

April 17, 2012. Following the presentation of evidence,

the parties submitted posttrial memoranda, and on

November 9, 2012, the court filed its memorandum of

decision.

In a thorough and persuasive memorandum of deci-
sion, the court found in favor of the plaintiffs on their

and HD Hotel’s declaratory judgment claims. The court

found the plaintiffs had standing to enforce the restrictive covenant. The court also found that HD Hotel, as

owner of the Marriott, had standing as the intended

beneficiary of the restrictive covenant.

The court found that the restrictive covenant was

valid and enforceable. The court rejected the defendant’s argument that the restrictive covenant was

‘‘merged out of existence,’’ concluding that ‘‘the language [that merged the sublease into the ground lease],

while clear as far as it goes, says nothing about the

[restrictive covenant], and is ambiguous as to its

intended effect, if any, on that restriction.’’ The court

determined that extrinsic evidence supported ‘‘the firm

conclusion that neither BRS nor [Holiday Inn] had any

intent to terminate the use restriction on the hotel parcel of land when they executed the ground lease

agreement.’’

After the court found in favor of the plaintiffs and

HD Hotel on their declaratory judgment claims, the

plaintiffs filed a motion for attorney’s fees. On June 27,

2013, the court filed a separate decision and awarded

attorney’s fees and legal costs to the plaintiffs in the

amount of $1,507,266.04. The plaintiffs moved for judgment to be rendered in their favor, but before the court

ruled on that motion, this appeal was filed.11

I

The defendant first claims that the trial court improperly determined that the plaintiffs had standing to

enforce the restrictive covenant. The defendant states

that none of the parties were ‘‘signatories or otherwise

named in any of the crucial documents’’ and that no

party was expressly named as a third party beneficiary.

Specifically, the defendant contends that upon the dissolution of BRS, the plaintiffs were divested of all rights

and title in the premises, and that HD Hotel was not

an intended third party beneficiary of the restrictive

covenant. We disagree with the defendant.

It is well established that ‘‘[s]tanding is the legal right

to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or

she] has, in an individual or representative capacity,

some real interest in the cause of action, or a legal or

equitable right, title or interest in the subject matter of

the controversy. . . . Nevertheless, [s]tanding is not

a technical rule intended to keep aggrieved parties out

of court; nor is it a test of substantive rights. Rather it

is a practical concept designed to ensure that courts

and parties are not vexed by suits brought to vindicate

nonjusticiable interests and that judicial decisions

which may affect the rights of others are forged in

hot controversy, with each view fairly and vigorously

represented. . . . If a party is found to lack standing,
the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial

court’s subject matter jurisdiction is a question of law.

When . . . the trial court draws conclusions of law,

our review is plenary and we must decide whether its

conclusions are legally and logically correct and find

support in the facts that appear in the record.’’ (Citation

omitted; internal quotation marks omitted.) Fairchild

HeightsResidentsAssn.,Inc. v. Fairchild Heights,Inc.,

310 Conn. 797, 820, 82 A.3d 602 (2014).

A

We begin by analyzing whether the plaintiffs have

standing to prosecute this action. The trial court determined that although BRS had been dissolved, ‘‘the right

to enforce the use restriction passed to [the plaintiffs]

by operation of [General Statutes] § 34-210.’’12

The defendant contends that the restrictive covenant

did not pass to the plaintiffs. This argument rests, in

part, on the testimony at trial of James Mazzeo, formerly

the chief financial officer of BRS. Mazzeo testified that

BRS never listed the restrictive covenant as an asset

of BRS nor assigned the restrictive covenant a cash

value. Seizing on this fact, coupled with the fact BRS

never granted its members the right to continue BRS’

business following its dissolution, the defendant maintains that ‘‘the former members of BRS acquired no

interest of their own in the restrictive covenant, and

therefore lacked standing to enforce it.’’

On the basis of our plenary review of the record, we

conclude that the trial court properly determined that

the plaintiffs have standing. In effect, the defendant’s

argument invites this court to conclude, essentially, that

the plaintiffs had abandoned theirinterest in the restrictive covenant following the dissolution of BRS, or that

it simply evaporated. We decline this invitation. The

mere fact that some assets of BRS were not formally

assigned or transferred does not mean that they have

disappeared or that they did not pass to its members.

This is particularly true given that the restrictive covenant at issue in this case was of considerable value to

the plaintiffs as owners of the Marriott. See generally

Torrington Creamery v. Davenport, 126 Conn. 515, 521,

12 A.2d 780 (1940) (recognizing restrictive covenant as

‘‘valuable asset’’ whose benefits may be assigned).

Upon the dissolution and winding-up of BRS, the

restrictive covenant passed to the plaintiffs. Pursuant

to § 34-210, following the satisfaction of its creditors,

the assets of a limited liability company are ultimately

transferred to its former members. In the context of

corporate law, the general rule is that ‘‘[w]hen a corporation is dissolved and its affairs wound up, such assets

as remain, after the satisfaction and discharge of all

liabilities and obligations, belong to the shareholders.’’

M. Ford, Connecticut Corporation Law & Practice (2d
Ed. 2000) § 4.01 (C), p. 4-12; see also Mukon v. Gollnick,

151 Conn. App. 126, 131–32, A.2d. (2014);13 Haddad v. Francis, 40 Conn. Supp. 567, 572–73, 537 A.2d

174, 177 (1986), aff’d, 13 Conn. App. 324, 536 A.2d

597 (1988).

Accordingly, even if the restrictive covenant was not

explicitly transferred out of BRS at the time of dissolution, it is apparent that the restrictive covenant passed

to the plaintiffs as its former members by operation of

law. Therefore, the plaintiffs have standing to enforce

the restrictive covenant.

B

We now turn to the defendant’s contention that HD

Hotel lacks standing as a third party beneficiary to bring

this action. The trial court found that HD Hotel owned

the Marriott and that the ‘‘[t]here was substantial and

uncontradicted testimony that the purpose of the use

restriction was to protect the business of the . . . Marriott.’’ The defendant contends that this finding is

unsupported by the evidence because there is no evidence ‘‘that Holiday Inn or its attorneys knew that HD

Hotel even existed as a specific entity,’’ and that the

finding is improperly based on the trial court’s focus on

the Heyman, Jabara, and Meyer families. We disagree.

Our Supreme Court has stated: ‘‘Under the third party

beneficiary doctrine, [t]he ultimate test to be applied

[in determining whether a person has a right of action

as a third party beneficiary] is whether the intent of

the parties to the contract was that the promisor should

assume a direct obligation to the third party [beneficiary] . . . . [T]hat intent is to be determined from

the terms of the contract read in the light of the circumstances attending its making, including the motives

and purposes of the parties. . . . [I]t is not in all

instances necessary that there be express language in

the contract creating a direct obligation to the claimed

third party beneficiary . . . .’’ (Emphasis added; internal quotation marks omitted.) Wykeham Rise, LLC v.

Federer, 305 Conn. 448, 474, 52 A.3d 702 (2012).

On the basis of our review of the record, we conclude

that the trial court properly determined that HD Hotel

had standing to bring this action. In this case, there

was uncontradicted evidence that the intended beneficiary of the restrictive covenant was the Marriott, and

that the restrictive covenant was meant to protect the

business interests of the plaintiffs as its owners. The

evidence indicated that the Marriott was owned by HD

Hotel, whose membership was comprised of the

plaintiffs.

The defendant contends that Holiday Inn was not

explicitly aware that HD Hotel owned the Marriott when

the restrictive covenant was executed. This argument

elevates form over substance. It is apparent that the

defendant clearly understood who owned the Marriott.
In 1999 and 2005, when the defendant wanted to have

the restrictive covenant removed, the defendant knew

exactly whom to contact and discussed the request with

Jabara. We agree with the trial court that ‘‘[t]here was

substantial and uncontradicted testimony that the purpose of the [restrictive covenant] was to protect the

business of the . . . Marriott.’’ This testimony included

that of David Sinyard, who as the trial court noted,

‘‘described himself as the ‘lead deal guy’ for [Holiday

Inn] in connection with its 1996 purchase of the [premises],’’ and who testified that ‘‘[Holiday Inn] agreed to

the restriction, knew it was for the benefit of the . . .

Marriott, and was ‘fine with it’. . . .’’

On the basis of the entire record, it is clear that the

Marriott was an intended beneficiary of the restrictive

covenant and that, HD Hotel, as the owner of Marriott,

has standing to enforce the restrictive covenant.

II

We now address the defendant’s claim that the trial

court improperly determined that the restrictive covenant was not merged out of existence when the sublease

interest was merged with the ground lease interest.

A review of the relevant facts is necessary for the

resolution of this claim. In the summer of 1996, the sale

of the premises from the plaintiffs to Holiday Inn was

governed by a purchase and sale agreement that was

executed on June 21, 1996. The agreement contemplated a two phase transaction. In the first phase, the

agreement provided that the plaintiffs were to transfer

their interests in the premises. These interests included

a sublease interest to the main parcel on which the

hotel structure rested, and a fee interest to a separate

smaller parcel that included the premises’ front landscape. The agreement granted the plaintiffs the right to

include in both the sublease assignment agreement and

the limited warranty deed to the fee parcel, a restrictive

covenant that precluded the premises from being used

for an upscale hotel. This first phase was completed

when the plaintiffs transferred the sublease interest

pursuant to a sublease assignment agreement and the

fee interest under a limited warranty deed on July 12,

1996, both of which included the restrictive covenant.14

The agreement recognized that the sublease was governed by a ground lease in favor of a third party, TK

Associates, and therefore contemplated a second phase:

if the plaintiffs acquired the ground lease from TK Associates within twelve months, the plaintiffs were obligated to assign that interest to Holiday Inn in exchange

for $1.6 million. On July 15, 1996, the plaintiffs acquired

the ground lease from TK Associates, and, pursuant to

the agreement, assigned the ground lease to Holiday

Inn on July 31, 1996. The assignment of the ground

lease was accomplished by a ground lease assignment

agreement, which not only transferred the ground lease
to Holiday Inn, but also operated to merge the sublease

interest with the ground lease interest.

Paragraph 6 of the ground lease assignment

agreement provided: ‘‘By and upon delivery of this

Assignment by Assignor to Assignee, all of the right,

title, interests and estate created by or under the Sublease are automatically fully merged and subsumed into

the estate and interests held by Assignee under the

Lease, Assignee hereby declaring its express intent to

accomplish such merger so that from and after the

date hereof neither the Sublease nor the estate created

thereunder shall have any further existence and Assignee’s interest in the Property shall be solely and exclusively the leasehold estate under the Lease acquired by

Assignee hereunder and created by the Lease, the same

being the interest and estate of Assignee as lessee under

the Lease. The Sublease and interests and estates thereunder are hereby fully and completely merged, and

declared to be merged, out of existence, without the

necessity of any further action by any party.’’ (Emphasis added.)

We turn now to the defendant’s claim on appeal. The

parties are in agreement that paragraph 6 of the ground

lease assignment agreement (paragraph 6) operated to

merge the sublease estate with the ground lease. The

parties disagree, however, as to the effect of paragraph

6 on the restrictive covenant. The defendant contends

that the language at issue unambiguously merged the

sublease estate—and all interests thereunder, including

the restrictive covenant—out of existence. The plaintiffs, on the other hand, argue that the language of

paragraph 6 is ambiguous as to its impact on the restrictive covenant. The plaintiffs contend that given this

ambiguity, the trial court properly considered extrinsic

evidence when it found that the parties never intended

to extinguish the restrictive covenant. We agree with

the plaintiffs.

It is well established that the determination of

whether language of a contract is plain and unambiguous ‘‘is a question of law subject to plenary review.’’

Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 101, 84

A.3d 828 (2014). If, however, the contractual language

is found to be ambiguous, ‘‘[s]uch ambiguity permits

the trial court’s consideration of extrinsic evidence as

to the conduct of the parties. . . . [T]he trial court’s

interpretation of a contract, being a determination of

the parties’ intent, is a question of fact that is subject

to reversal on appeal only if it is clearly erroneous.’’

(Citation omitted; internal quotation marks omitted.)

19 Perry Street, LLC v. Unionville Water Co., 294 Conn.

611, 623, 987 A.2d 1009 (2010). Accordingly, our review

is twofold. First, we must determine de novo whether

the contractual language is ambiguous. If we conclude

that it is, we must determine whether the trial court’s

factual finding are clearly erroneous.
‘‘In determining whether a contract is ambiguous, the

words of the contract must be given their natural and

ordinary meaning. . . . A contract is unambiguous

when its language is clear and conveys a definite and

precise intent. . . . The court will not torture words

to impart ambiguity where ordinary meaning leaves no

room for ambiguity. . . . Moreover, the mere fact that

the parties advance different interpretations of the language in question does not necessitate a conclusion

that the language is ambiguous. . . .

‘‘In contrast, a contract is ambiguous if the intent of

the parties is not clear and certain from the language

of the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . The contract must be viewed in its entirety, with

each provision read in light of the other provisions . . .

and every provision must be given effect if it is possible

to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the

contract is ambiguous.’’ (Citations omitted; internal

quotation marks omitted.) Cruz v. Visual Perceptions,

LLC, supra, 311 Conn. 102–103.

Our examination of paragraph 6 convinces us that it

is not clear and unambiguous. Whereas the very first

sentence of that paragraph states that ‘‘[upon this

assignment] all of the right, title, interests and estate

created by or underthe Sublease are automatically fully

merged and subsumed into the estate and interests

[under the ground lease],’’ the very last sentence of

paragraph 6 states that ‘‘[t]he Sublease and interests

and estates thereunder are hereby fully and completely

merged, and declared to be merged, out of existence

. . . .’’ (Emphasis added.)

The defendant’s interpretation unduly focuses on the

very last sentence of paragraph 6, which states that the

sublease and interests thereunder were merged out of

existence, and ignores the broader context of the transaction. The defendant contends that this sentence

clearly and unequivocally evidences the parties’ intent

to extinguish the restrictive covenant. This sentence,

however, is in conflict with the first sentence of paragraph 6, which states that the sublease and its interests

are ‘‘subsumed’’ by the ground lease. Therefore, it

appears that paragraph 6 is open to two reasonable

interpretations: one in which the restrictive covenant

is extinguished; the otherin which itis subsumed by the

ground lease. These contradictory sentences—coupled

with the fact that neither specifically references the

restrictive covenant—leads us to the conclusion that

paragraph 6 does not plainly and unambiguously support the defendant’s contention that the restrictive covenant was merged out of existence or the plaintiffs’

position that it was not.

We are unable to reconcile these two sentences.
Accordingly, on the basis of our plenary review, we

conclude that the language of paragraph 6 is ambiguous

because it is susceptible to more than one reasonable

interpretation. See United Illuminating Co. v. WisvestConnecticut, LLC, 259 Conn. 665, 671, 791 A.2d 546

(2002). Therefore, we must determine whether the trial

court’s finding that paragraph 6 did not merge the

restrictive covenant out of existence is clearly

erroneous.

‘‘[T]he trial court’s interpretation of a contract, being

a determination of the parties’ intent, is a question of

fact that is subject to reversal on appeal only if it is

clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to

support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’’ (Citation omitted; internal

quotation marks omitted.) 19 Perry Street, LLC v.

Unionville Water Co., supra, 294 Conn. 623–24.

In finding that paragraph 6 did not merge the restrictive covenant out of existence, the trial court considered the following evidence. The court first noted the

importance of the restrictive covenant to the entirety

of the sale. The court found that principals of both the

plaintiffs and Holiday Inn understood that the restrictive covenant was an essential component to the overall

transaction. The court credited Jabara’s testimony that

the restrictive covenant was an essential condition of

the sale of the premises to Holiday Inn and quoted

the Lane memorandum before finding that Holiday Inn

‘‘clearly understood’’ the importance of the restrictive

covenant.

The court also examined the purchase and sales

agreement. It noted that the purchase and sales

agreement governed the entire transaction, and that

‘‘[t]here was no mention that upon assignment of the

ground lease [to Holiday Inn] the carefully negotiated

[restrictive covenant] would disappear.’’ The court also

noted that the ground lease assignment agreement,

which the defendant claimed to have merged the restrictive covenant out of existence, did not reference the

limited warranty deed that contained an identical

restrictive covenant.

The court next concluded that the testimony and

depositions of representatives from both the plaintiffs

and Holiday Inn who were involved with the transaction

‘‘consistently supported’’ an intent that the ground lease

assignment agreement was not intended to extinguish

the restrictive covenant. This testimony included that

of Kathleen Rorick, the executive vice president of Heyman Properties, who testified that she had ‘‘no authority

from [the plaintiffs] to terminate the [restrictive covenant],’’ ‘‘did not intend to do so,’’ and ‘‘understood at

the time that the ground lease assignment [agreement]
did not do so.’’ Tamara Levine, an attorney who represented the plaintiffs in connection with the transaction,

testified that ‘‘the ground lease assignment [agreement]

was to have no effect on the [restrictive covenant], and

there was no intent to have the ground lease assignment

[agreement] affect the restriction.’’15

The court noted that a similar intent was evidenced

by Holiday Inn’s agents. The court recounted: ‘‘Sinyard,

who headed up the transaction for [Holiday Inn], testified at a deposition that [Holiday Inn] agreed to the

[restrictive covenant], understood it was to protect

another hotel in the area owned by the sellers, and

stated [that] [Holiday Inn] had no intention of making

the hotel it was acquiring into an ‘upscale’ hotel, but

was satisfied to call it a Holiday Inn. He testified [that]

he was unaware of any agreement by which that restriction was terminated. He further testified that he had

not authorized its termination, and since the restrictive

covenant was a significant aspect of the transaction,

the termination of it less than a month thereafter would

have been brought to his attention. Attorney Timothy

Packenham, a commercial real estate lawyer with the

law firm Alston & Bird that acted as [Holiday Inn’s]

outside counsel in connection with its purchase of the

hotel, drafted the ground lease assignment [agreement],

and he had no knowledge of any [Holiday Inn] intent

with respect to that document except to acquire the

ground leasehold interest, and [did] notrecall any intent

one way or another about terminating the [restrictive

covenant].’’ (Citations omitted.)

On the basis of these findings, the court came to ‘‘the

firm conclusion that neither [the plaintiffs] nor [Holiday

Inn] had any intent to terminate the [restrictive covenant] on the hotel parcel of land when they executed

the ground lease assignment [agreement]. There is no

evidence of such intent and such an intent seems to be

an implausible change of direction by the parties who

knew about the distinct possibility of the ground lease

assignment when the [purchase and sales agreement]

was signed on June 21, 1996, and when the deed and

sublease assignment documents, all containing the

restriction, were signed on July 12, 1996. There is no

evidence of any event or change of heart occurring

within the nineteen day period extending to July 31,

1996, to provide a basis for the court to determine that

the [restrictive covenant] was intended by the parties

to be undone, so that the language of the ground lease

assignment [agreement] should be construed to effect

a termination of the [restrictive covenant], and the court

declines to do so.’’

Having reviewed the record and evidence, we conclude that it overwhelmingly indicates that the parties

never intended to extinguish the restrictive covenant.

The defendant’s interpretation rests on its laser like

focus on a single sentence of the ground lease assign-
ment agreement, and its contention that this sentence

indicates that the parties’ intended to undo a fundamental aspect of the transaction. This position does not

make sense when one considers the transaction as a

whole, which was neatly governed by the purchase and

sales agreement. There is no evidence in the plain language of purchase and sales agreement indicating that

the parties intended to extinguish the restrictive covenant upon the transfer of the ground lease, even though

the purchase and sales agreement contemplated the

ground lease assignment agreement.

On the basis of our review of the record, we simply

cannot conclude that the trial court’s findings were

without support in the record, nor are we ‘‘left with the

definite and firm conviction that a mistake has been

committed.’’ (Internal quotation marks omitted.) 19

Perry Street, LLC v. Unionville Water Co., supra, 294

Conn. 624. Accordingly, we conclude that the trial

court’s determination that the restrictive covenant was

not merged out of existence is not clearly erroneous.

III

The defendant next claims that the court improperly

granted the plaintiffs an award of attorney’s fees. Specifically, the defendant contends that the court improperly

determined that (1) the plaintiffs were contractually

entitled to attorney’s fees, (2) the defendant’s breach of

the restrictive covenant triggered an award of attorney’s

fees, and (3) the plaintiffs had standing to pursue attorney’s fees because the plaintiffs did not pay for the cost

of the litigation. We disagree.

The following facts are relevant to this claim. In the

fourth count of their amended complaint, the plaintiffs

and HD Hotel alleged that they were entitled to reasonable attorney’s fees and expenses arising out of the

defendant’s breach of the restrictive covenant. After

the court found that the restrictive covenant was

enforceable, the plaintiffs filed a motion for attorney’s

fees and litigation expenses.

The plaintiffs claimed entitlement to attorney’s fees

on the basis of the sublease assignment agreement,16

which provided: ‘‘[Holiday Inn] agrees to and does

hereby indemnify and hold [BRS] harmless hereunder

from all claims, demands, losses, damage, expenses and

costs including, but not limited to,reasonable attorney’s

fees and expenses arising out of or in connection with

[Holiday Inn’s] failure, from and after delivery of this

instrument, to observe, perform and discharge on time

each and every one of the covenants, obligations and

liabilities assumed by [Holiday Inn] in this instrument

relating to, or accruing with respect to the period from

and after, not before the date hereof.’’

In their motion for attorney’s fees the plaintiffs

claimed, inter alia, that the defendant’s filing the termination notice on the Stamford land records was a repu-
diation of the restrictive covenant. The plaintiffs sought

$1,507,266.04 in attorney’s fees and expenses for an

expenditure of over 4000 hours of attorney time in the

prosecution of the declaratory judgment action.

The defendant opposed the plaintiffs’ motion for

attorney’s fees, and claimed that an award of attorney’s

fees was not supported because (1) there was no contractual or statutory basis for doing so, (2) the defendant had not breached any contractual agreement, (3)

the plaintiffs lacked standing to seek attorney’s fees

because HD Hotel ultimately paid the bills, and (4) the

amount of recovery sought was unreasonable and

unfair.

On June 27, 2013, the court filed its memorandum of

decision and awarded the plaintiffs attorney’s fees and

litigation costs in the amount of $1,507,266.04. The court

found that ‘‘the actual language of the contractual provisions in the [sublease assignment agreement] and

[ground lease assignment agreement] that comprise the

undertaking to pay attorney’s fees make no specific

reference that they are, as [the defendant] has urged,

limited only to such instances where a third party has

sued BRS. . . . Under these agreements, [Holiday Inn],

and subsequently [the defendant], obligated itself to pay

to BRS all expenses and costs BRS incurred, including

attorney’s fees arising from [the defendant’s] breach of

the restrictive covenant.’’ The court also found that

the defendant had breached the restrictive covenant

by filing the termination notice on the Stamford land

records and that the plaintiffs had standing to pursue

the claim for attorney’s fees.

A

We first analyze whether the court properly concluded that the contractual language at issue supported

an award of attorney’s fees. As this claim requires an

examination of the language of the sublease assignment

agreement, our review is plenary. See Cruz v. Visual

Perceptions, LLC, supra, 311 Conn. 101. The dispositive

issue is whether the sublease assignment agreement

provides for indemnification for third party claims only,

or whetherthe language ofthat agreement also supports

an award of attorney’s fees between the contracting

parties themselves.17

In Amoco Oil Co. v. Liberty Auto & Electric Co., 262

Conn. 142, 810 A.2d 259 (2002), our Supreme Court

noted the difference between an action for indemnification and a breach of contract claim. In that case,

Liberty Auto & Electric Company (Liberty) contracted

to install underground gasoline storage tanks forAmoco

Oil Company (Amoco). Id., 144. Eight years later, one

tank began to leak, andAmoco brought an ‘‘indemnification’’ claim against Liberty under the following contract

provision: ‘‘Liability and Indemnity . . . [Liberty] shall

reimburse [Amoco] for, and indemnify [Amoco] and
hold it harmless from and against any and all loss, costs

(including reimbursement of all attorney fees and other

costs of defense), damage, expense, claims (including

claims of strict liability and for fault imposed by statutes, rules or regulations), suits and liability on account

of any and all bodily injuries or death of any persons

(including the employees of [Amoco], [Liberty], or its

subcontractors) or damage to, or loss of destruction of

any property (including without limitation, the work

covered hereunder and the property of [Liberty], and

subcontractors and [Amoco]) arising directly or indirectly out of or in connection with the performance of

this Contract . . . .’’ (Footnotes omitted; internal quotation marks omitted.) Id., 144–45.

Liberty contended that the claim was not an action

forindemnification, butrather, was a breach of contract

action that was barred by the statute of limitations. Id.,

146–47. In characterizing the nature of the claim for

statute of limitations purposes, our Supreme Court

observed that ‘‘[t]he logic and rationale underlying our

indemnity case law are based on the premise that an

action for indemnification is one in which one party

seeks reimbursement from another party for losses

incurred in connection with the first party’s liability to

a third party. In the present action, however, Amoco

does not seek indemnification for losses arising from

liability to a third party.’’ (Emphasis added.) Id.,148–49.

The court noted that ‘‘the concept of indemnity usually

involves an indemnitor, A, and an indemnitee, B, who

enter into a contract whereby A agrees to indemnify B

for any money B becomes legally obligated to pay to a

third party.’’ (Emphasis omitted.) Id.,149.

Our Supreme Court determined that the claim raised

by Amoco was not an action for indemnification:

‘‘Amoco cannot convert, for purposes of determining

the applicable statute of limitations and accrual date,

what otherwise is a breach of contract claim into an

indemnification claim simply by labeling it as such in

the pleadings. Although Amoco seeks ‘indemnification’

from Liberty in the first count of its complaint, Amoco

effectively seeks enforcement of a specific contract

provision that provides reimbursement for loss. Thus,

the claim that Amoco asserts in count one of its complaint constitutes a breach of contract claim and,

accordingly, [General Statutes] § 52-576 (a) furnishes

the applicable statute of limitations.’’ Id., 152. Because

our Supreme Court determined that the action was

barred by the statute of limitations, it never analyzed

the merits of the breach of contract claim.

In Total Recycling Services of Connecticut, Inc. v.

Connecticut Oil Recycling Services, LLC, Superior

Court, judicial district of Middlesex, Docket No. CV-06-

50000447-S (November 30, 2009), the trial court considered the motion of Connecticut Oil Recycling Services,

LLC (Connecticut Oil) for attorney’s fees based on an
agreement effecting the sale of the oil recycling business of Total Recycling Services of Connecticut, Inc.

(Total Recycling) to Connecticut Oil. The operative provision stated: ‘‘[Total Recycling] agrees to indemnify

and hold [Connecticut Oil] harmless from any costs or

damages, including reasonable attorney’s fees,resulting

from any breach of any representation, warranty or

covenant in this agreement.’’ Id.

The court held that the provision had the ‘‘plain meaning’’ of obligating Total Recycling to compensate Connecticut Oil for any costs plus reasonable attorney’s

fees resulting from Total Recycling’s breaches of the

sales agreement. Id. The court denied the motion for

attorney’s fees, however, because it could not identify

which attorney’s fees were related to Connecticut Oil’s

prosecution of its breach of contract claims. Id. The

denial of the motion was appealed, and it was affirmed

by this court. See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC,

129 Conn. App. 296, 305, 20 A.3d 716 (2011), rev’d,

308 Conn. 312, 63 A.3d 896 (2013). Our Supreme Court

reversed this court’s judgment, however, and determined that when some contractual provisions call for

recovery of attorney’s fees and others do not, a party

is entitled to recover all reasonable fees ‘‘if apportionment is impracticable because the claims arise from a

common nucleus and are intertwined.’’ Total Recycling

Services of Connecticut, Inc. v. Connecticut Oil Recycling Services., LLC, 308 Conn. 312, 333, 63 A.3d 896

(2013). Our Supreme Court never analyzed the trial

court’s interpretation of the contract.

On the basis of our review of the existing case law,

our Supreme Court has decided that an action for

indemnification is ‘‘one in which one party seeks reimbursement from another party for losses incurred in

connection with the first party’s liability to a third

party.’’ Amoco Oil Co. v. Liberty Auto & Electric Co.,

supra, 262 Conn. 148. Less clear, however, is whether

contractual language like in the present case that utilizes the phrase ‘‘indemnify and hold . . . harmless,’’

is limited to an action for indemnification, or whether

that language may support a claim between the contracting parties.

Our review of the relevant case law does not suggest

that the language is talismanic and automatically dictates that the provision allows only an action for indemnification limited to the coverage of only third party

claims. Rather, ‘‘[i]n reviewing a claim that attorney’s

fees are authorized by contract, we apply the well established principle that [a] contract must be construed to

effectuate the intent of the parties, which is determined

from [its] language . . . interpreted in the light of the

situation of the parties and the circumstances connected with the transaction.’’ (Internal quotation marks

omitted.) Total Recycling Services of Connecticut, Inc.
v. Connecticut Oil Recycling Services, LLC, supra, 308

Conn. 327. ‘‘[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 [writing].’’(Internal quotation marks omitted.) Connecticut National Bank v. Rehab Associates,

300 Conn. 314, 319, 12 A.3d 995 (2011).

In this case, on the basis of our plenary review, we

conclude that the plain language of the sublease assignment agreement supports the plaintiffs’ contention that

the provision is not limited to third party claims.

According to Black’s Law Dictionary, ‘‘to indemnify’’ is

‘‘[t]o reimburse (another) for a loss suffered because

of a third party’s or one’s own act or default.’’(Emphasis

added.) Black’s Law Dictionary (9th Ed. 2009); see also

1 D. Dobbs, Law of Remedies (2d Ed.1993), § 3.10 (3),

p. 402 (indemnity and hold harmless agreements ‘‘often

provide that one of the parties will protect the other

from litigation costs or claims brought by third persons

as well as from claims between themselves’’).

Given the broad language of the sublease assignment

agreement, which by its own terms is not expressly

limited to third party claims, we conclude that the provision allows for the recovery of attorney’s fees arising

from the defendant’s breach of the restrictive covenant.

The language clearly provides in relevant part: ‘‘[Holiday Inn] agrees to and does hereby indemnify and hold

[BRS] harmless hereunder from all . . . losses . . .

expenses and costs including, but not limited to,reasonable attorney’s fees and expenses, arising out of . . .

[Holiday Inn’s] failure, from and after the delivery of

this instrument, to observe, perform, and discharge

. . . each and every one of the covenants . . .

assumed by [Holiday Inn] in this instrument . . . .’’

(Emphasis added.)

This interpretation is consistent with the circumstances of the parties, the nature of the restrictive covenant, and the foreseeable claims that might accrue

under the sublease assignment agreement. If we were

to adopt the defendant’s interpretation, we would be,

in effect, judicially grafting a limitation that is not supported by the plain language of the indemnification

provision nor our case law.18

Moreover, the defendant’s interpretation would render portions of the indemnification provision superfluous. We have long held that ‘‘[t]he law of contract

interpretation militates against interpreting a contract

in a way that renders a provision superfluous.’’ United

Illuminating Co. v. Wisvest-Connecticut, LLC, supra,

259 Conn. 674. The indemnification provision clearly

encompasses ‘‘expenses . . . arising out of . . . [Holiday Inn’s] failure . . . to observe . . . each and every

one of the covenants . . . assumed by [Holiday Inn]
in this instrument . . . .’’ Among the covenants and

obligations undertaken by Holiday Inn in the ‘‘instrument’’ was the restrictive covenant. In its memorandum

of decision, the trial court pragmatically observed that

‘‘it is hard to envision anybody but BRS being injured

by a breach of [the restrictive] covenant because it was

BRS’ interest in protecting the position of the neighboring Marriott hotel that was the reason for including

the covenant in the agreements.’’ We agree. Only the

plaintiffs could be injured by a breach of the restrictive

covenant. Therefore, limiting that provision to encompass only third party claims is illogical with respect to

the restrictive covenant because no third party could

ever reasonably claim to be injured by the defendant’s

breach of the restrictive covenant.

Given the broad language of the indemnification provision and the absence of any indication that it was

limited to third party claims, we conclude that the provision is not limited to third party claims, and that it

provides for an award of attorney’s fees between the

plaintiffs and the defendant for a breach of the restrictive covenant.

B

The defendant claims, as it did in the trial court, that

‘‘it did not breach any assumed obligation to warrant

an award of attorney’s fees and expenses.’’ Specifically,

the defendant argues that ‘‘the restrictive covenant was

not one of the assumed obligations arising out of the

sublease . . . [but rather] was a new, additional covenant that was inserted only into the [sublease assignment agreement], and never incorporated into the

sublease itself.’’

This claim is not persuasive. We agree with the trial

court that ‘‘[t]his is an unconvincing and tortuous interpretation of the subject contracts.’’ It is manifestly clear

that the language of the sublease assignment agreement

provided for the award of costs ‘‘arising out of’’ the

failure to ‘‘perform . . . the covenants . . . assumed

by [Holiday Inn] in this instrument . . . .’’ (Emphasis

added.) Because the restrictive covenant was included

in the sublease assignment agreement, the argument

that the restrictive covenant was somehow not an

assumed obligation thereunder is entirely without

merit.

C

Finally, the defendant claims that the plaintiffs lacked

standing to pursue a claim for attorney’s fees. The

defendant claims that the plaintiffs were not parties to

contracts that gave rise to the claim for attorney’s fees,

and that they did not actually pay any of the attorney’s

fees or litigation costs in this case.

Although the plaintiffs were not parties to the sublease assignment agreement that supported the court’s

award of attorney’s fees, we already have determined
that the right to enforce the restrictive covenant passed

to the plaintiffs as the former members of BRS upon

that entity’s dissolution. The defendant has failed to

demonstrate why the sublease assignment agreement

could not also be enforced by the plaintiffs after it

passed to the plaintiffs as an asset of BRS.

The defendant argues, finally, that the plaintiffs never

actually paid for the attorney’s fees and litigation costs

that were awarded by the trial court. This claim rests

on the fact that all of the plaintiffs’ litigation costs were

actually paid for by HD Hotel. This claim fails insofar

as HD Hotel’s members are comprised of the plaintiffs.

The plaintiffs’ respective share of ownership of HD

Hotel is very similar to that of BRS. Accordingly, it is

clear that the subject legal expenses were apportioned

among the plaintiffs, and that any expense paid by HD

Hotel was ultimately borne by the plaintiffs as its members. The defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The plaintiffs are four business entities owned by three families: HD

Hotel, whose members are Heyman, owned by the Heyman family; AIM,

owned by the Meyer family; and TRJ, owned by the Jabara family. In this

opinion, we refer to Heyman, AIM, and TRJ, collectively as the plaintiffs,

and by name where appropriate. HD Hotel, although a plaintiff, will be

referred to by name.

2 Specifically, the defendant contends that a restrictive covenant that was

included in a sublease assignment agreement was merged out of existence

when the sublease was merged with the ground lease.

3

In 1994, the plaintiffs purchased the Marriot and operated the hotel as

HD Hotel. In 1996, the plaintiffs purchased the Ramada Inn, and operated

that hotel as BRS Realty Associates, LLC (BRS). Heyman, AIM, and TRJ

were members of both BRS and HD Hotel.

4 According to Jabara, an upscale hotel features more amenities and a

higherlevel of service. Typically, upscale hotels feature a doorman, ballroom,

pool, restaurant, and twenty-four hour room service. A midscale hotel, on

the other hand, such as a Holiday Inn, would have fewer services and focus

on the budget conscious traveler.

5 The trial court found that Holiday Inn operates three levels of hotels:

Crowne Plaza (upscale), Holiday Inn (midscale), and Holiday Inn Select

(focus on value).

6

In 1996, Holiday Inn was a wholly owned subsidiary of Bass PLC, a

British public limited company.

7 The transactional documents relative to the sale of the premises included

four documents whose nomenclature is similar. For clarity, these documents

will be referred to as follows. The overall transaction was governed by a

Purchase and Sales Agreement(purchase and sales agreement). The transfer

of the sublease interest in the premises from BRS Realty Associates, LLC

(BRS) to Holiday Inn was accomplished by way of an Assignment and

Assumption of Sublease Agreement (sublease assignment agreement). The

conveyance of the fee interest from BRS to Holiday Inn was executed by

way of a Limited Warranty Deed (limited warranty deed). The transfer of

the ground lease from BRS to Holiday Inn was completed by an Assignment

and Assumption of Lease Agreement and of Sublease Agreement (ground

lease assignment agreement).

8 The hotel structure and improvements were on two parcels of land. The

structure itself rested on a large parcel. This parcel was subject to a ground

lease in favor of TK Associates under which the plaintiffs held a sublease

interest. The front landscape of the hotel was on a smaller parcel, which

the plaintiffs held in fee simple.

9 The trial court found that pursuant to Delaware law, which governed

both the Holiday Inn-Bristol Hotel Company merger and the Bristol Hotel

Company-FelCor Lodging Trust merger, ‘‘a surviving corporation shall be

subject to all ‘restrictions, disabilities and duties of each of such corporations
so merged . . . .’ ’’ On appeal, the trial court’s finding is not challenged.

10 In the third count, the plaintiffs and HD Hotel sought an injunction

ordering the defendant to record a document on the Stamford land records

cancelling the termination document that the defendant filed on the land

records in 2006. This count was withdrawn when the restrictive covenant

lapsed in 2011.

11 Although a formal judgment had not been rendered when this appeal

was filed, the defendant has nonetheless appealed from a final judgment

insofar as at the time the appeal was taken the court had adjudicated the

entirety of the plaintiffs’ complaint. See Practice Book § 61-2 (judgment

rendered on entire complaint is final judgment).

12 General Statutes § 34-210 provides: ‘‘Upon the winding up of a limited

liability company, the assets shall be distributed as follows: (1) Payment,

or adequate provision for payment, shall be made to creditors, including,

to the extent permitted by law, members who are creditors, in satisfaction

of liabilities of the limited liability company; (2) unless otherwise provided

in writing in an operating agreement, to members or former members in

satisfaction of liabilities for distributions under sections 34-158 and 34-159;

and (3) unless otherwise provided in writing in an operating agreement, to

members and former members, first, for the return of their contributions

and second, respecting their membership interests, in proportions in which

the members share in distributions under section 34-158.’’

13 In Mukon v. Gollnick, supra, 151 Conn. App. 132, a panel of this court

stated: ‘‘The dissolution of a limited liability company does not . . . result

in the automatic transfer of the limited liability company’s assets to one of

the individual members. Instead, the dissolution necessitates a prescribed

winding-up process, and a member receives the limited liability company’s

property if, and only if, the member or manager winding-up the limited

liability has completed the applicable steps established by [the windingup statute].’’

This language does not supplant the general rule that after dissolution

and completion of the winding-up process the assets of a limited liability

company devolve to its members. In Mukon, we held that an asset of a

limited liability company did not transfer automatically and immediately at

the moment a limited liability company was dissolved because the subject

company had not completed the winding-up process, which in that case

involved the payment of deferred taxes. The present case is distinguishable

from Mukon insofar as BRS had been properly wound up, e.g., its liabilities

were satisfied, and its remaining assets thereafter devolved to its members.

14 The restrictive covenant provided: ‘‘Assignee by acceptance of this

Assignment covenants and agrees that it will neither operate nor permit the

operation of an ‘upscale hotel’ on premises herein conveyed. ‘Upscale hotel’

as used herein shall mean a hotel which caters to an upscale market, including, without limitation, hotels currently catering to an upscale market such

as Marriot Hotels, Sheraton Hotels, Hilton Hotels, Omni Hotels, Crowne

Plaza, Wyndham Hotels, DoubleTree Hotels and Suites, and Embassy Suites.

This restriction shall not prevent Assignee from operating or permitting the

operation of a Holiday Inn Hotel, a Holiday Inn Select Hotel, a Holiday Inn

Express Hotel, a Radisson Hotel, or other hotels catering to the same market

currently served by these hotels. This restriction is intended to run with

the land and shall be binding upon Assignee, its successors and assigns. This

restriction shall expire fifteen (15) years from the date of this Assignment.’’

15 According to Levine, BRS had a right of first refusal under which it

could purchase the ground lease from TK Associates. She testified that

shortly before the plaintiffs and Holiday Inn executed the purchase and

sales agreement, TK Associates informed the plaintiffs that a third party

wanted to buy the ground lease. This forced the plaintiffs to decide whether

to exercise the right of first refusal. The purchase and sales agreement

was then amended to address the plaintiffs’ potential acquisition of the

ground lease.

Levine testified that the reason the ground lease was not acquired by the

plaintiffs prior to the July 12, 1996 closing was that they did not want to

purchase the ground lease before Holiday Inn had actually closed on the

transaction, and also that they wanted to use the funds from the July 12,

1996 closing to purchase the ground lease from TK Associates.

16 The plaintiffs claim a provision in the ground lease assignment

agreement also supports an award of attorney’s fees. That provision stated:

‘‘[Holiday Inn] hereby indemnifies and agrees to defend, and hold [BRS]

harmless from all claims, demands, liabilities, damages, loses or judgments,

including the defense thereto, including attorney’s fees and expenses, made
against or suffered by [BRS] which relate to any obligation of [Holiday Inn]

accruing, to be performed or arising out of events occurring on or after the

date hereof with respect to the Lease, the Sublease or the Property.’’

The defendant has not claimed that there is any meaningful difference

between the two provisions, and its arguments appear to apply equally to

both the language of the sublease assignment agreement and the ground

lease assignment agreement. Because we conclude that the sublease assignment agreement supports the trial court’s award of attorney’s fees, we need

not examine the language ofthe ground lease assignment agreementin detail.

17 We note significant disparity among our sister states as to whether

language of indemnification covers losses between the contracting parties

themselves, or only as between a contracting party and a third party. Compare Hooper Associates, Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 492,

548 N.E.2d 903, 549 N.Y.S.2d 365 (1989) (‘‘inasmuch as a promise by one

party to a contract to indemnify the other for attorney’s fees incurred in

litigation between them is contrary to the well-understood rule that parties

are responsible for their own attorney’s fees, the court should not infer a

party’s intention to waive the benefit of the rule unless the intention to do

so is unmistakably clear from the language of the promise’’) with Battelle

Memorial Institute v. Nowsco Pipeline Services., Inc., 56 F. Supp. 2d 944,

951 (S.D. Ohio 1999) (‘‘it is clear from both the Ohio and Sixth Circuit

definitions of indemnification that a party wishing to narrow an indemnification clause to third party damage is obligated to limit the scope of the clause

expressly; and absent such express limitation, indemnification clauses may

apply to damage suffered by the contracting parties themselves’’).

18 The defendant’s claim that the indemnification provision does not support an award of attorney’s fees between the parties rests on a misunderstanding of our Supreme Court’s holding in Amoco Oil Co. In that case, the

defendant contends, our Supreme Court stated ‘‘unequivocally that indemnification agreements apply to third party claims.’’ As we have observed

previously, Amoco Oil Co. was decided purely on a statute of limitations

issue. Our Supreme Court never analyzed whetherthe language of the indemnification provision in that case could support an award of attorney’s fees

between the contracting parties, because even if such a claim was supported,

the statute of limitations period for a breach of contract action had expired.