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TOWN OF EAST WINDSOR v. EAST WINDSOR
HOUSING, LTD, LLC., ET AL.
(AC 35287)
DiPentima, C. J., and Gruendel and Norcott, Js.
Argued January 8—officially released May 20, 2014
(Appeal from Superior Court, judicial district of
Hartford, Wahla, J.)
John D. Watts, for the appellant (plaintiff).
Ronald D. Peikes, with whom, on the brief, was James
Ringold, for the appellee (named defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, the town of East
Windsor, appeals from the order of the trial court deny-
ing in large part its request for attorney’s fees in con-
junction with seven foreclosure actions. On appeal, the
plaintiff claims that the attorney’s fees awarded by the
court were unreasonable as a matter of law and fact.
We conclude that the amount of attorney’s fees awarded
by the court to the plaintiff did not constitute an abuse
of discretion. Accordingly, we affirm the judgment of
the trial court.1
The following facts and procedural history are neces-
sary for our resolution of this appeal. The defendant
East Windsor Housing, Ltd., LLC,2 owned nine proper-
ties located in the town of East Windsor. For several
years, the defendant had not paid the property taxes
due to the plaintiff on these properties. On July 2, 2012,
the plaintiff commenced nine separate foreclosure
actions against the defendant, alleging that property
taxes had not been paid for 2008, 2009, 2010, 2011 and
2012 with respect to the nine properties. These proper-
ties, known as 6 Acorn Drive, 8 Acorn Drive, 10 Acorn
Drive, 12 Acorn Drive, 14 Acorn Drive, 1 Field Circle,
5 Field Circle, 9 Field Circle, and 12 Field Circle, were
part of the same subdivision. In mid-July, after 6 Acorn
Drive and 14 Acorn Drive were sold, the defendant paid
$8838.12 for the outstanding taxes, fees and costs on
the sold properties, and the actions with respect to
those two properties terminated.3 At the end of July,
the defendant sent the tax collector for the plaintiff
$14,425.32 as payment for the taxes on the remaining
seven properties, and this payment was accepted. With
respect to the remaining seven foreclosure actions, the
defendant filed an answer and raised the special defense
of payment; specifically, it alleged that the taxes had
been paid in full and that it had paid more than reason-
able attorney’s fees, costs and assessments.4
On August 21, 2012, the defendant moved for sum-
mary judgment in each of the seven cases. In its memo-
randum of law in support of its motion, the defendant
had averred that, after being served with the original
nine complaints, it had communicated with the plain-
tiff’s attorney and requested a payoff amount for all of
the properties. The defendant had received the follow-
ing payoff amount from the plaintiff’s counsel: nine
outstanding tax bills of $2060.76, nine attorney’s fees
of $1891.75, nine marshal service fees of $188.50, and
nine title search fees of $225. Thus, the total tax due
for the nine properties was $18,546.84 and the fees
totaled $20,747.25.5 The plaintiff offered a $200 discount
per file to the defendant, but that offer was not
accepted. The defendant argued that it was entitled to
summary judgment because all taxes on the properties
had been paid through December 31, 2012, and that the
amounts previously paid for attorney’s fees, title search
fees and marshal’s fees constituted more than reason-
able fees.
On September 28, 2012, the plaintiff filed an objection
to the motion for summary judgment. It argued that a
genuine issue of material fact existed with respect to
the amount of the debt owed by the defendant. It also
claimed that pursuant to General Statutes § 12-166, all
of the fees, costs and expenses incurred by the plaintiff
in collecting the debt were now part of the taxes owed
by the defendant, and thus the defendant had not made
payment in full.
On October 5, 2012, the court denied the motion
without prejudice, and ordered a hearing for October
22, 2012, for the purpose of considering the motion for
summary judgment and the objection to said motion.
The court also consolidated the seven separate actions
for the purpose of that hearing. On December 12, 2012,
the court issued the following order: ‘‘After review of
the record and having heard the arguments of the par-
ties, the court finds that the attorney’s fee[s], previously
paid by the defendant, are adequate [and] reasonable
under the circumstances. Costs are awarded for the
title searches, marshal fees and court entry fees only
claimed in each case, minus any payment already made
by the defendant for such costs.’’ The practical effect
of this order was to conclude the proceedings before the
trial court, as no judgment of foreclosure was necessary
and the court conclusively determined the amount of
fees and costs to be paid by the defendant. This
appeal followed.
I
The plaintiff first claims that the court improperly
awarded it no attorney’s fees with respect to the
remaining seven properties for which it had com-
menced foreclosure actions. Specifically, the plaintiff
argues that an award of no attorney’s fees was improper
in light of General Statutes §§ 12-166, 12-193 and 52-
249. We conclude that the plaintiff has misinterpreted
the action of the trial court. Our review of the record
indicates that the court determined that the $3783.50
paid in attorney’s fees by the defendant represented a
reasonable amount for all of the legal work done with
respect to the nine properties.
‘‘As a general rule, [orders and] judgments are to be
construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the [order
or] judgment. . . . The interpretation of [an order or]
judgment may involve the circumstances surrounding
[its] making . . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The [order or] judgment should admit of a consis-
tent construction as a whole.’’ (Internal quotation marks
omitted.) Hogan v. Lagosz, 147 Conn. App. 418, 427–28,
84 A.3d 434 (2013); see also Chapman Lumber, Inc. v.
Tager, 288 Conn. 69, 91–92, 952 A.2d 1 (2008). Our
review is plenary. Young v. Young, 137 Conn. App. 635,
647, 49 A.3d 308 (2012).
In the present case, the court consolidated the
remaining seven foreclosure actions, and on December
12, 2012, issued an order stating that the attorney’s fees
that previously had been paid by the defendant were
adequate and reasonable as to all of the defendant’s
properties. This was a reference to the $3783.50 that
the defendant had paid in attorney’s fees when the two
properties were sold. Thus, it is clear that the court
awarded attorney’s fees to the plaintiff; it specifically
found $3783.50 to be adequate and reasonable for the
nine foreclosure actions. The plaintiff’s argument that
it received no attorney’s fees with respect to the seven
foreclosure actions, including its hyperbole that the
court’s award for those properties was ‘‘zero, nada,
zilch,’’ misinterprets the action of the trial court. This
claim, therefore, has no merit.
II
The plaintiff next claims that the court abused its
discretion as to the amount of the attorney’s fees that
it had awarded. Specifically, the plaintiff claims that
the award of $3783.50 in attorney’s fees was inadequate
and unreasonable for the legal work done with respect
to the nine properties. We conclude that the court did
not abuse its discretion in determining the amount of
attorney’s fees owed to the plaintiff.
‘‘Connecticut adheres to the American rule regarding
attorney’s fees under which successful parties are not
entitled to recover attorney’s fees in the absence of
statutory or contractual authority to the contrary. . . .
Thus, a specific contractual term may provide for the
recovery of attorney’s fees and costs . . . or a statute
may confer such rights.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Clem
Martone Construction, LLC v. DePino, 145 Conn. App.
316, 326–27, 77 A.3d 760, cert. denied, 310 Conn. 947,
80 A.3d 906 (2013); see also Aaron Manor, Inc. v. Irving,
307 Conn. 608, 616–17, 57 A.3d 342 (2013). Section 12-
166 provides that the term ‘‘tax’’ shall mean ‘‘each prop-
erty tax and each installment and part thereof due . . .
as such tax may have been increased by interest, penal-
ties, fees and charges, including collection fees of a
collection agency and attorneys’ fees, provided such
attorneys’ fees shall be limited to those ordered by the
court in any court action or proceeding brought to
recover such tax.’’ (Emphasis added.) Additionally, we
note that § 12-193 provides that attorney’s fees incurred
by a municipality as a result of a foreclosure action
brought pursuant to General Statutes §§ 12-181 or 12-
182 shall be taxed and collected against the person
having title to a property subject to the foreclosure
action. See also General Statutes § 52-249. Accordingly,
we agree with the plaintiff that a departure from the
American rule regarding attorney’s fees is authorized
by the General Statutes in this case.
The question remains as to whether the attorney’s
fees awarded by the court were reasonable. We begin
by setting forth our standard of review. ‘‘We review the
reasonableness of the court’s award of attorney’s fees
under the abuse of discretion standard. . . . Under the
abuse of discretion standard of review, [w]e will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Thus, our] review of [the amount of
attorney’s fees awarded] is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion it did.
. . . A court has few duties of a more delicate nature
than that of fixing counsel fees. The issue grows even
more delicate on appeal . . . for the trial court is in
the best position to evaluate the circumstances of each
case.’’ (Citations omitted; internal quotation marks
omitted.) Conservation Commission v. Red 11, LLC,
135 Conn. App. 765, 785, 43 A.3d 244 (2012); see also
Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210,
252, 828 A.2d 64 (2003).
‘‘The factors a court normally applies in determining
a reasonable attorney’s fee include (1) the time and
labor required; (2) the novelty and difficulty of the ques-
tions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of other employment by
the attorney due to acceptance of the case; (5) the
customary fee for similar work in the community; (6)
whether the fee is fixed or contingent; (7) time limita-
tions imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation and ability of the attorneys; (10)
the undesirability of the case; (11) the nature and length
of the professional relationship with the client; and (12)
awards in similar cases. . . . That list of factors is not,
however, exclusive. The court may assess the reason-
ableness of the fees requested using any number of
factors . . . .’’ (Citation omitted; internal quotation
marks omitted.) Krack v. Action Motors Corp., 87 Conn.
App. 687, 695, 867 A.2d 86, cert. denied, 273 Conn.
926, 871 A.2d 1031 (2005); see also Schoonmaker v.
Lawrence Brunoli, Inc., supra, 265 Conn. 259 (well
established that trial court calculating reasonable attor-
ney’s fee makes its determination while considering
factors set forth under rule 1.5 (a) of Rules of Profes-
sional Conduct, which include time and labor spent by
attorneys, novelty and complexity of legal issues, fees
customarily charged in same locality for similar ser-
vices, lawyer’s experience and ability, relevant time
limitations, magnitude of case and results obtained,
nature and length of lawyer-client relationship, and
whether fee is fixed or contingent).
In the present case, the court denied the defendant’s
motion for summary judgment without prejudice, con-
solidated the seven foreclosure actions and scheduled
a hearing. It requested that the parties submit affidavits
regarding attorney’s fees. On October 18, 2012, the
plaintiff’s attorney filed seven affidavits detailing his
request for attorney’s fees.6 In each of the seven cases,
the plaintiff sought $3261.80, for total fees of
$22,832.60.7 The court determined that the $3783.50 in
attorney’s fees that the plaintiff previously had been
paid from the sale of the two properties constituted
reasonable attorney’s fees for those two properties and
the remaining seven foreclosure actions.
On appeal, the plaintiff argues that total attorney’s
fees of $3783.508 result in fees of only $402.39 for each
of the nine properties subject to tax liens. It further
claims that its attorney spent approximately fourteen
hours on each of the seven foreclosure actions, which
results in an effective billing rate of $28.75 per hour.9
The plaintiff overlooks the discretion of the trial court
to review the hours claimed in the seven affidavits and
to disallow time charges. For example, the plaintiff’s
attorney purported to spend 2.85 hours preparing each
writ of summons, complaint and notice of lis pendens.
The court was free to conclude that a claim of 19.95
hours to draft seven nearly identical complaints and
accompanying documents was excessive and not rea-
sonable. The court also could have considered the sub-
stantial overlap in prosecuting these seven cases, and
lowered the attorney’s fees accordingly. See, e.g., Dan-
bury v. Dana Investment Corp., 249 Conn. 1, 26, 730
A.2d 1128 (1999) (‘‘we do not rule out the possibility
that there may be egregious cases of multiple tax lien
foreclosure in which . . . the trial court could exercise
its equitable discretion to withhold certain fees and
costs’’). After considering the nearly identical com-
plaints and billing statements, we cannot conclude that
the court’s award of attorney’s fees constituted an abuse
of discretion.10
The plaintiff also claims that such an interpretation
of the court’s order would improperly expand the scope
of the agreement reached between the parties regarding
6 Acorn Drive and 14 Acorn Drive. The plaintiff further
contends that the attorney’s fees paid at that time were
not intended to be applied to the remaining seven fore-
closure actions. We conclude that the trial court was
not bound by the agreement reached by the parties in
its determination of reasonable attorney’s fees. It is the
court, and not the parties, that decides the reasonable-
ness of attorney’s fees. See General Statutes § 12-166.
The court was within its broad discretion to conclude
that the $3783.50 paid to the plaintiff for attorney’s
fees at the time of the sale of the two properties also
constituted reasonable attorney’s fees for the work
done with respect to the remaining seven properties.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its brief and at oral argument, the defendant East Windsor Housing,
Ltd., LLC, requested this court to direct the trial court to remove costs of
seven title searches and seven filing fees from the fees awarded to the
plaintiff. East Windsor Housing, Ltd., LLC, did not file a cross appeal pursuant
to Practice Book § 61-8, and therefore we decline to consider this claim.
‘‘If an appellee wishes to change the judgment in any way, the party must
file a cross appeal.’’ (Internal quotation marks omitted.) Connole v. Babij,
140 Conn. App. 494, 496 n.5, 59 A.3d 334 (2013); see also Housing Authority
v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18,
19 n.1, 842 A.2d 601 (2004).
2
The other defendants named by the plaintiff in its actions, NewAlliance
Bank, also known as First Niagara Bank, N.A., and Enfield Lumber Company,
Inc., were defaulted for failing to appear before the trial court and are not
involved in this appeal. We therefore refer in this opinion to East Windsor
Housing, Ltd., LLC, as the defendant.
3
That payment was applied as follows for each of the sold properties:
$2076.76 for the taxes, $1891.75 for the attorney’s fee, $225 for the title
search fee, $53 for the lien fee, and $188.50 for the marshal’s fee.
4
The defendant also filed a disclosure of defense that indicated that it
had paid the taxes in full.
5
This payoff amount was made before the defendant paid the taxes, fees
and costs on 6 Acorn Drive and 14 Acorn Drive.
6
In Smith v. Snyder, 267 Conn. 456, 479–80, 839 A.2d 589 (2004), our
Supreme Court instructed that the party claiming attorney’s fees has the
burden of presenting to the court a statement of the fees requested and a
description of the services rendered. It also noted: ‘‘Our holding today does
not limit the trial court’s ability to assess the reasonableness of the fees
requested using any number of factors, including its general knowledge of
the case, sworn affidavits or other testimony, itemized bills, and the like.
As we [previously] recognized . . . [t]he value [of reasonable attorney’s
fees] is based upon many considerations. . . . Parties must supply the court
with a description of the nature and extent of the fees sought, to which the
court may apply its knowledge and experience in determining the reason-
ableness of the fees requested.’’ (Citation omitted; internal quotation marks
omitted.) Id., 480.
7
In six of his time sheets attached to the affidavits in support of attorney’s
fees, the plaintiff’s attorney claimed to have worked a total of 13.88 hours
at a rate of $235 per hour. Thus, the amount requested for attorney’s fees
in each of these six cases was $3261.80. In one action, however, the plaintiff’s
attorney claimed to have worked 13.58 hours at $235 for a total amount of
$3191.30. Despite this minor discrepancy, the plaintiff’s attorney requested
attorney’s fees of $3261.80 in each of the seven foreclosure actions.
8
In what appears to be a scrivener’s error, the plaintiff’s appellate brief
incorrectly states that the total attorney’s fees were $3873.50.
9
In its appellate brief, the plaintiff contends that ‘‘[i]f [$3783.50] was
treated as the entire attorney’s fee for all nine of the tax lien foreclosures,
that would result in a fee of only $402.39 per action.’’ Using the plaintiff’s
numbers, we calculate a fee of $420.39. It further claims that ‘‘[s]uch an
amount is presumptively unreasonable given the roughly fourteen hours of
work performed by the plaintiff’s counsel on each matter as outlined in his
affidavit. That would create an effective hourly billable rate of $28.75 . . . .’’
Using seven cases at fourteen hours per case, we calculate an hourly billable
rate of $38.61.
10
The plaintiff failed to request an articulation of the court’s order to
expound on its reasoning for its determination of reasonable attorney’s fees.
‘‘[T]he appellant bears the burden of providing an appellate court with an
adequate record for review. . . . It is, therefore, the responsibility of the
appellant to move for an articulation or rectification of the record where
the trial court has failed to state the basis of decision . . . [or] to clarify
the legal basis of a ruling.’’ (Internal quotation marks omitted.) CC Cromwell,
Ltd. Partnership v. Adames, 124 Conn. App. 191, 194, 3 A.3d 1041 (2010);
see also Practice Book § 61-10.
East Windsor v. East Windsor Housing, Ltd.
Combined Opinion