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JEAN-MARC JACQUES v. MURIEL JACQUES
(AC 45239)
Bright, C. J., and Clark and Prescott, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
awarding attorney’s fees to the defendant, his former wife, in connection
with a breach of contract action. The plaintiff claimed that the defendant
had breached their separation agreement by failing to disclose that
she had liquidated two annuities prior to the commencement of the
dissolution proceedings. The trial court, Hon. Gerard I. Adelman, judge
trial referee, rendered judgment for the defendant, finding that the plain-
tiff’s action was barred by the applicable statute of limitations, that
there was insufficient evidence to prove that the defendant had breached
the agreement, and that neither party had failed to disclose assets. The
plaintiff appealed to this court, which dismissed the appeal as moot.
The defendant filed a motion for attorney’s fees, seeking to recover the
costs she had incurred in defending against the breach of contract action
and the subsequent appeal. The trial court, Hon. Constance L. Epstein,
judge trial referee, granted the motion, concluding that the defendant
was entitled to recover attorney’s fees under the bad faith exception to
the American rule, and awarded attorney’s fees to the defendant. On
the plaintiff’s appeal to this court, held that the trial court abused its
discretion in awarding the defendant attorney’s fees: the trial court’s
memorandum of decision made clear that, in determining that the plain-
tiff had acted in bad faith and did not have a colorable claim, the court
relied exclusively on certain findings in Judge Adelman’s memorandum
of decision in the underlying breach of contract action rather than
reviewing the record and making its own factual findings with the requi-
site degree of specificity as to the relevant issues; moreover, Judge
Adelman’s decision did not include sufficiently specific factual findings
to support an award of attorney’s fees under the bad faith exception to
the American rule because it did not include any express findings that
the plaintiff’s contract claim lacked color or that the plaintiff knew that
there was no factual basis for his claim or otherwise acted in bad faith,
the court observed that the contract language was ambiguous, which
suggested that the plaintiff’s claim had some color, the court’s findings
that the defendant did not own the annuity contracts in question when
she filed her financial affidavit because she had liquidated them to fund
her new home and that the home was constructed with the knowledge
of the plaintiff who provided significant funds for the project, including
the two annuity contracts, did not equate to a finding that the plaintiff’s
claims were without color and that he knew there was no factual basis
for his claim or otherwise acted in bad faith, and the decision was silent
with respect to whether and when the plaintiff knew that the defendant
had properly disclosed the amount of the liquidated annuities by includ-
ing them in the value of the real estate that she disclosed on her financial
affidavit; furthermore, because the defendant’s motion for attorney’s
fees included references to specific evidence in the record and the trial
court failed to review that evidence, the defendant was deprived of a
full and fair opportunity to present and have the court consider evidence
of the plaintiff’s bad faith; accordingly, this court reversed the judgment
of the trial court and remanded the case for a new hearing on the
defendant’s motion for attorney’s fees.
Argued November 6, 2023—officially released January 30, 2024
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Hartford and tried to the court,
Hon. Gerard I. Adelman, judge trial referee; judgment
for the defendant, from which the plaintiff appealed to
this court, DiPentima, C. J., and Moll and Bishop, Js.,
which dismissed the appeal; thereafter, the court, Hon.
Constance L. Epstein, judge trial referee, granted the
defendant’s motion for attorney’s fees, from which the
plaintiff appealed to this court; subsequently, the court,
Hon. Constance L. Epstein, judge trial referee, awarded
attorney’s fees to the defendant, and the plaintiff filed
an amended appeal. Reversed; further proceedings.
Keith Yagaloff, for the appellant (plaintiff).
C. Michael Budlong, with whom, on the brief, was
Joseph R. Brennan-Reilly, for the appellee (defendant).
Opinion
CLARK, J. The plaintiff, Jean-Marc Jacques, appeals
from the judgment of the trial court awarding attorney’s
fees to his former wife, the defendant, Muriel Jacques.
On appeal, the plaintiff claims that the court erred in
awarding the defendant $51,641 in attorney’s fees under
the bad faith exception to the American rule1 by con-
cluding that the underlying breach of contract action
he brought against the defendant was entirely without
color and brought in bad faith.2 In particular, he claims
that the court’s award was not supported by the requi-
site factual findings that are required under the bad faith
exception. We agree with the plaintiff and, accordingly,
reverse the judgment of the trial court and remand the
case for a new hearing on the defendant’s motion for
attorney’s fees.
The record reveals the following facts and procedural
history. On March 26, 2009, the court, Dyer, J., dissolved
the parties’ marriage and incorporated their separation
agreement (agreement) into its judgment of dissolution.
Paragraph 10 (h) of the agreement provided in relevant
part: ‘‘[A]ny assets over ten thousand and 00/100
($10,000.00) dollars in fair market value that the [defen-
dant] owns or has an equitable interest in at the time
of the dissolution which are not shown by the [defen-
dant] on her financial affidavit, shall, upon discovery
by the other party, become [the plaintiff’s] property
without any defense interposed by the [defendant]
whatsoever as to such claims of the other party.’’
On May 16, 2016, the plaintiff brought the underlying
breach of contract action against the defendant, alleging
that she had breached the agreement by failing to dis-
close certain assets in accordance with paragraph 10
(h) of the agreement. Specifically, the plaintiff alleged
that the defendant liquidated two annuities prior to the
divorce and that those proceeds, totaling $1,153,444.78,
were undisclosed assets under paragraph 10 (h) of the
separation agreement. The defendant countered that
‘‘[b]ecause those liquidated annuities were used to pur-
chase land and build the defendant’s home, and that
real estate was properly disclosed by the defendant,
the [annuity] proceeds were not undisclosed and the
defendant did not breach the parties’ separation agree-
ment.’’ The defendant also asserted five special
defenses, including that (1) the plaintiff’s action ‘‘was
filed beyond the six year limitation period for actions
on written contracts set forth by General Statutes § 52-
576’’; (2) paragraph 10 (h) of the agreement ‘‘is contrary
to law and/or public policy’’; (3) paragraph 10 (h) of
the agreement ‘‘is predicated on a provision that is
unconscionable’’; (4) ‘‘[t]he plaintiff’s claims are barred
by the equitable doctrine of unclean hands, based on
the plaintiff’s own bad faith conduct and/or nondisclo-
sure of assets prior to and at the time of dissolution’’;
and (5) ‘‘[t]he plaintiff’s cause of action is predicated
on a provision that is unenforceable on the ground of
unilateral mistake.’’
On June 5, 2018, following a bench trial, the court,
Hon. Gerard I. Adelman, judge trial referee, rendered
judgment in favor of the defendant, finding that the
plaintiff’s action was barred by the six year statute of
limitations for contract actions set forth in § 52-576 (a),
there was insufficient evidence that the defendant had
breached the agreement, and there had been no failure
to disclose assets by either party. Judge Adelman’s
memorandum of decision stated in relevant part: ‘‘[T]he
court makes the following findings of fact . . .
***
‘‘F. The provisions of [the] agreement are, in parts,
contradictory and ambiguous . . .
‘‘H. The defendant did not own the two annuity con-
tracts in question as of the date of her financial affidavit
filed at the final hearing in that said contracts had been
previously liquidated by the defendant to fund, in part,
her new home . . .
‘‘I. The funding and construction of said home was
done with the knowledge of the plaintiff and he pro-
vided significant funds to the defendant for that project
including, but not limited to, the two annuity contracts
in question;
‘‘J. There was no failure to disclose any assets by
either party;
‘‘K. There is insufficient evidence to make a finding
as to the breach of the contract on the part of the
defendant . . . .’’
Additionally, the court found that, ‘‘[a]s to [the defen-
dant’s] special defenses two through five . . . the
defendant did not brief them in her posttrial brief.
Accordingly, the court considers them abandoned.’’
The plaintiff appealed, claiming, inter alia, that the
trial court erred in concluding that his action was barred
by the statute of limitations. Jacques v. Jacques, 195
Conn. App. 59, 60, 223 A.3d 90 (2019). On December
24, 2019, this court dismissed that appeal as moot, con-
cluding that the plaintiff had failed to challenge an inde-
pendent ground for the trial court’s judgment, namely,
the court’s determination that the plaintiff’s breach of
contract claim failed on the merits due to insufficient
evidence that the defendant had breached the agree-
ment. Id., 62.
On January 22, 2020, the defendant filed a motion for
attorney’s fees, seeking to recover fees incurred by her
in defending against the plaintiff’s breach of contract
action and subsequent appeal. The defendant’s request
for attorney’s fees was made pursuant to (1) General
Statutes § 46b-62,3 (2) the agreement, (3) Practice Book
§ 1-25, and (4) the court’s inherent authority. In her
motion, the defendant alleged that the plaintiff ‘‘was
aware of the circumstances surrounding the [defen-
dant’s] disclosures [on her financial affidavit in regard
to the liquidated annuities] and knew or should have
known that no impropriety existed.’’ She further alleged
that ‘‘[t]he [plaintiff’s] actions throughout this case have
been acted upon in bad faith and [are] entirely without
color . . . [which] warrants counsel fees to the [defen-
dant] . . . .’’ On March 17, 2020, the plaintiff filed an
objection to the motion for attorney’s fees.
On November 5, 2021, following a hearing, the court,
Hon. Constance L. Epstein, judge trial referee, granted
the defendant’s motion for attorney’s fees on the basis
that the defendant was entitled to recover attorney’s
fees under the bad faith exception to the American
rule. Specifically, the court found: ‘‘In the civil court’s
decision on the underlying matter, Judge Adelman made
specific findings. The trial court held that the two annu-
ity contracts at issue had been liquidated prior to the
divorce in order to fund the construction of [the defen-
dant’s] new home and the amounts of that liquidation
were reflected in the assets reported on her financial
affidavit. The trial court further found: ‘The funding and
construction of said home was done with the knowledge
of the plaintiff . . . and he provided significant funds
to the defendant for that project including, but not lim-
ited to, the two annuity contracts in question.’ . . .
‘‘As to [the defendant’s] reliance on this court’s ‘inher-
ent authority’ to award attorney’s fees, Connecticut
adheres to the so-called ‘American’ rule, which prohib-
its the award of such fees to the prevailing party unless
such award is premised on statutory directives or is
pursuant to contract. An exception to this doctrine may
be successfully invoked if the losing party has acted
in bad faith and/or vexatiously or wantonly acted for
oppressive reasons. Maris v. McGrath, 269 Conn. 834,
845–46 [850 A.2d 133] (2004).
‘‘[The defendant] argues that [the plaintiff] initiated
the civil action, rather than a postjudgment action on
the dissolution, because [the plaintiff] could thereby
avoid paying attorney’s fees to his counsel, premising
this argument on the belief that the civil action was
brought by [the plaintiff’s] counsel on a contingency
fee basis. [The defendant] asserts that this substantiates
her assertion that [the plaintiff] simply wanted to harass
her, with no financial loss to himself. However, this
court has not been presented with any evidence of the
fee agreement between [the plaintiff] and his counsel
in the civil matter and this contention has not been
considered by this court on the issue before it.
‘‘The ‘bad faith’ exception to an award of attorney’s
fees takes into account the necessity that courts must
avoid deterring the filing of lawsuits by persons who
honestly believe they have a colorable claim. CFM of
Connecticut, Inc. v. [Chowdhury, 239 Conn. 375, 394–
95, 685 A.2d 1108 (1996), overruled in part on other
grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333
(1999)]. Under this directive, however, the Connecticut
Supreme Court has held that the ‘bad faith’ exception
[to] the American rule can be applied if there is a finding
that the losing party’s actions were baseless. Id. The
frivolity of a litigant’s action is evident in situations in
which there is no good faith argument that can be made
on the merits of the underlying action. Schoonmaker
v. Lawrence Brunoli, Inc., 265 Conn. 210, 255 [828 A.2d
64] (2003).
‘‘[The plaintiff] had no colorable claim on which to
premise his civil lawsuit, and the trial court so found.
Indeed, the trial court pointedly decided that [the plain-
tiff] knew that there was no basis for his claim. Not
only did [the plaintiff] not challenge the court’s finding
that he had no claim and that he knew it, but also,
thereafter, [the plaintiff] nevertheless filed an appeal.
In that appeal [the plaintiff] did not seek review of
the trial court’s decision on the merits. Instead, [the
plaintiff] required [the defendant] to defend an action
in which [the plaintiff] sought a declaratory ruling from
the Appellate Court as to the interpretation of a stat-
ute—an interpretation that would not have changed
anything that affected him or [the defendant], and the
Appellate Court so ruled in dismissing the appeal.
‘‘The judiciary is entrusted with the responsibility of
assisting those who invoke its authority to resolve
actual disputes. The dignity and solemnity of the pro-
cess, essential elements thereof, should not be eroded
by the use of the process to harass others, as has
occurred in this case. The court grants the motion for
counsel fees.’’ (Citation omitted.)
On November 26, 2021, the plaintiff filed a motion to
reconsider, arguing, inter alia, that there was no evi-
dence in the record to support the trial court’s finding
that Judge Adelman concluded that the plaintiff knew
there was no basis for his claim or that he had no
colorable claim. The plaintiff also argued that the award
was unjustified because Judge Adelman dismissed the
defendant’s special defense of unclean hands and made
no finding of bad faith litigation. On December 28, 2021,
Judge Epstein denied the motion. This appeal followed.
On March 15, 2022, the plaintiff filed a motion for
articulation, requesting the court to articulate ‘‘the spe-
cific text from Judge Adelman’s decision where he
found that [the plaintiff] had no colorable claim on
which to premise his civil lawsuit, and where he point-
edly decided that [the plaintiff] knew there was no basis
for his claim.’’ The plaintiff also requested ‘‘the specific
text from Judge Adelman’s decision that [the] court
relied on in finding the plaintiff engaged in bad faith
litigation.’’ On March 25, 2022, the court denied the
motion for articulation, stating: ‘‘This court does not
find the [plaintiff’s] motion for articulation to be a
request for articulation at all, but instead an attempt at
an argument, or perhaps reargument. . . . [T]he deci-
sion rendered by this court quite clearly recites the
provisions of Judge Adelman’s decision on which this
court relied. . . . The motion is denied.’’
On September 22, 2022, following a hearing, Judge
Epstein issued a memorandum of decision awarding
the defendant $51,641 in attorney’s fees. Subsequently,
on October 5, 2022, the plaintiff amended his appeal
pursuant to Practice Book § 61-9 to include the court’s
September 22, 2022 decision.4
On appeal, the plaintiff claims that the court erred
in awarding the defendant attorney’s fees under the bad
faith exception to the American rule by concluding that
the underlying breach of contract action was entirely
without color and brought in bad faith. The plaintiff
argues that Judge Epstein failed to make factual find-
ings with the high degree of specificity required in order
to award attorney’s fees under the bad faith exception.
Specifically, he argues that the court relied solely on
the text of Judge Adelman’s memorandum of decision,
which ‘‘lacks any facts or finding[s] that could serve as
the basis for [the] award of attorney’s fees.’’ We agree
with the plaintiff.
We begin by setting forth the standard of review
and legal principles relevant to this claim. ‘‘It is well
established that we review the trial court’s decision to
award attorney’s fees for abuse of discretion. . . . This
standard applies to the amount of fees awarded . . .
and also to the trial court’s determination of the factual
predicate justifying the award. . . . 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 such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) Rinfret v. Porter, 173 Conn. App. 498,
507–508, 164 A.3d 812 (2017).
Connecticut ‘‘follows the general rule that, except as
provided by statute or in certain defined exceptional
circumstances, the prevailing litigant is ordinarily not
entitled to collect a reasonable [attorney’s] fee from
the loser. . . . That rule does not apply, however,
where the opposing party has acted in bad faith. . . .
It is generally accepted that the court has the inherent
authority to assess attorney’s fees when the losing party
has acted in bad faith, vexatiously, wantonly or for
oppressive reasons.’’ (Internal quotation marks omit-
ted.) Lederle v. Spivey, 332 Conn. 837, 843–44, 213 A.3d
481 (2019).
‘‘[A] litigant seeking an award of attorney’s fees for
the bad faith conduct of the opposing party faces a high
hurdle. . . . To ensure . . . that fear of an award of
[attorney’s] fees against them will not deter persons
with colorable claims from pursuing those claims, we
have declined to uphold awards under the [bad faith]
exception absent both clear evidence that the chal-
lenged actions are entirely without color and [are taken]
for reasons of harassment or delay or for other improper
purposes . . . and a high degree of specificity in the
factual findings of [the] lower courts.’’ (Emphasis in
original; internal quotation marks omitted.) Cokic v.
Fiore Powersports, LLC, 222 Conn. App. 216, 227, 304
A.3d 179 (2023). The burden is on the moving party to
prove a lack of color and bad faith. See id., 229.
‘‘Although this exception . . . is often referred to
in shorthand as the bad faith exception, the label is
somewhat of a misnomer as it encompasses both of
the required findings . . . that the litigant’s claims
were entirely without color and that the litigant acted
in bad faith.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 227. Thus, ‘‘in order to impose
sanctions under the bad faith exception, the trial court
must find both that the litigant’s claims were entirely
without color and that the litigant acted in bad faith.
. . . The court must make these findings with a high
degree of specificity . . . .’’ (Citation omitted; emphasis
altered; internal quotation marks omitted.) Lederle v.
Spivey, supra, 332 Conn. 844. Although the court need
not separately indicate which factual findings relate to
colorability or bad faith, the court must still make both
findings with a high degree of specificity. See id., 848 n.8.
‘‘Colorability is measured by an objective standard,
whereas bad faith is measured by a subjective one.
Colorability focuses on the merits of the claim. A color-
able claim is defined as one that is legitimate and that
may reasonably be asserted, given the facts presented
and the current law (or a reasonable and logical exten-
sion or modification of the current law). Black’s Law
Dictionary (9th Ed. 2009) p. 282. Put another way, a
claim is colorable if, given the facts presented and the
current law (or a reasonable extension thereof), the
claim arguably has merit. . . .
‘‘A determination of bad faith, by contrast, rather
than focusing on the objective, reasonable beliefs of
the person against whom sanctions are sought, focuses
on subjective intent. We have emphasized that, in
determining whether a party has engaged in bad faith,
[t]he appropriate focus for the court . . . is the con-
duct of the party in instigating or maintaining the litiga-
tion. . . . From that conduct, the court may infer the
subjective intent of the person against whom sanctions
are sought. Some examples of evidence that would sup-
port a finding of bad faith include a party’s use of
oppressive tactics or its wilful violations of court orders
. . . or a finding that the challenged actions [are taken]
for reasons of harassment or delay or for other improper
purposes . . . . When . . . the claim that an individ-
ual has brought or maintained an action in bad faith is
predicated on the individual’s personal knowledge that
there is no factual support for the claim or claims at
issue, in order to infer that the individual acted in bad
faith, the court must make a finding that the individual
knew of the absence of that factual basis.’’ (Citations
omitted; internal quotation marks omitted.) Lederle v.
Spivey, supra, 332 Conn. 845–46.
In the present case, a review of the trial court’s memo-
randum of decision awarding the defendant attorney’s
fees shows that the court relied exclusively on certain
findings that Judge Adelman made in his memorandum
of decision rendering judgment for the defendant in
the plaintiff’s underlying breach of contract action. The
court explained that, ‘‘[i]n the civil court’s decision on
the underlying matter, Judge Adelman made specific
findings. The trial court held that the two annuity con-
tracts at issue had been liquidated prior to the divorce
in order to fund the construction of [the defendant’s]
new home and the amounts of that liquidation were
reflected in the assets reported on her financial affida-
vit. The trial court further found: ‘The funding and con-
struction of said home was done with the knowledge
of the plaintiff . . . and he provided significant funds
to the defendant for that project including, but not lim-
ited to, the two annuity contracts in question.’ ’’ On the
basis of these findings, the court concluded that ‘‘[the
plaintiff] had no colorable claim on which to premise
his civil lawsuit and [Judge Adelman] so found.’’
We must therefore determine whether Judge Adel-
man’s findings in the underlying breach of contract
action were sufficient to justify the award of attorney’s
fees in this case.
Judge Adelman’s memorandum of decision stated in
relevant part: ‘‘[T]he court makes the following findings
of fact . . .
***
‘‘F. The provisions of [the] agreement are, in parts,
contradictory and ambiguous . . .
‘‘H. The defendant did not own the two annuity con-
tracts in question as of the date of her financial affidavit
filed at the final hearing in that said contracts had been
previously liquidated by the defendant to fund, in part,
her new home . . .
‘‘I. The funding and construction of said home was
done with the knowledge of the plaintiff and he pro-
vided significant funds to the defendant for that project
including, but not limited to, the two annuity contracts
in question;
‘‘J. There was no failure to disclose any assets by
either party;
‘‘K. There is insufficient evidence to make a finding
as to the breach of the contract on the part of the
defendant;
‘‘L. The defendant’s special defenses number[ed] two
through five were abandoned by the defendant and the
court makes no further findings as to those special
defenses . . . .’’
We conclude that Judge Adelman’s memorandum of
decision did not include sufficiently specific factual
findings to support an award of attorney’s fees under
the bad faith exception to the American rule. First,
Judge Adelman made no express findings that the plain-
tiff’s contract claim lacked color or that the plaintiff
knew that there was no factual basis for his claim or
otherwise acted in bad faith. Judge Adelman observed
that the relevant provisions of the agreement were ‘‘in
parts, contradictory and ambiguous,’’ stating that ‘‘[t]he
fact that there are two provisions that might lead to
two separate interpretations of the contract is sufficient
proof that there is an ambiguity in the contract.’’ In the
absence of any specific finding that the plaintiff’s claims
lacked color and that the plaintiff acted in bad faith,
Judge Adelman’s observation that the contract language
was ambiguous (and therefore had more than one possi-
ble interpretation) suggests that the plaintiff’s claim
had at least some color, rather than a complete lack of
color. See Lederle v. Spivey, supra, 332 Conn. 845 (‘‘a
claim is colorable if, given the facts presented and the
current law (or a reasonable extension thereof), the
claim arguably has merit’’).
Second, although Judge Adelman found that the
defendant did not own the two annuity contracts in
question when she filed her final financial affidavit
because she had liquidated them to fund, in part, her
new home and further found that ‘‘[t]he funding and
construction of said home was done with the knowledge
of the plaintiff and he provided significant funds to the
defendant for that project including, but not limited to,
the two annuity contracts in question,’’ those findings
alone do not equate to a finding that the plaintiff’s claims
were without color and that he knew there was no
factual basis for his claim or otherwise acted in bad
faith. In particular, the finding that the home was funded
and constructed with the plaintiff’s knowledge is ambig-
uous with respect to whether or when the plaintiff
became aware that the annuities had been liquidated
and used to fund the construction of the home. More-
over, Judge Adelman’s decision is silent with respect
to whether and when the plaintiff knew that the defen-
dant had properly disclosed the amounts of the liqui-
dated annuities by including those amounts in the value
of the real estate she disclosed in her financial affidavit.5
Because Judge Adelman’s memorandum of decision
in the underlying breach of contract action did not
include the requisite factual findings for an award of
attorney’s fees under the bad faith exception, Judge
Epstein was required at least to review the record from
those proceedings and make her own factual findings,
with the requisite degree of specificity, as to the relevant
issues.6 In doing so, the court also was required to point
to clear evidence in the record to support its findings
that the plaintiff lacked a colorable claim and acted
in bad faith, explaining the connection between the
evidence and its conclusions. See Cokic v. Fiore Pow-
ersports, LLC, supra, 222 Conn. App. 227 (‘‘we have
declined to uphold awards under the [bad faith] excep-
tion absent both clear evidence that the challenged
actions are entirely without color and [are taken] for
reasons of harassment or delay or for other improper
purposes’’ (emphasis omitted; internal quotation marks
omitted)). Conclusory statements that the plaintiff
lacked a colorable claim or acted in bad faith are not
sufficient to meet the high threshold required under
our law. Because the court instead relied exclusively
on Judge Adelman’s findings, which were insufficient
to support an award under the bad faith exception,
we conclude that the court abused its discretion in
awarding the defendant attorney’s fees.
Having determined that the court abused its discre-
tion, we must now decide whether the case should be
remanded for a new hearing or with direction that the
motion for attorney’s fees be denied. ‘‘Our resolution
of this question turns on whether the defendant, having
been given an opportunity to do so, presented sufficient
evidence of the plaintiff’s lack of a colorable claim and
. . . bad faith to support the required findings.’’ Id.,
231. On the basis of our review of the record, we con-
clude that the defendant’s motion for attorney’s fees
included references to specific evidence in the record,
including the plaintiff’s testimony, in support of her
claim that the plaintiff’s breach of contract claim lacked
color and was brought in bad faith. The court, however,
failed to review that evidence and instead relied exclu-
sively on Judge Adelman’s findings in the underlying
breach of contract action. As a result, and unlike the
defendant in Cokic, the defendant, through no fault of
her own, was deprived of a full and fair opportunity to
present and have the court consider evidence of the
plaintiff’s bad faith. We therefore remand this case for
a new hearing. Compare Puff v. Puff, 334 Conn. 341,
372–73, 222 A.3d 493 (2020) (new hearing on motion
for sanctions was required because defendant alleged
facts in support of findings of bad faith and lack of
colorability, but court failed to make specific findings),
with Cokic v. Fiore Powersports, LLC, supra, 222 Conn.
App. 231–32 (‘‘Having reviewed the record, we conclude
that the defendant failed to present any evidence that
the plaintiff lacked a colorable claim against it and that
his pursuit of his claims was undertaken in bad faith.
Therefore, a new hearing on the defendant’s motion for
attorney’s fees is not warranted in the present case.’’).
The judgment is reversed and the case is remanded
for a new hearing on the defendant’s motion for attor-
ney’s fees.
In this opinion the other judges concurred.
1
‘‘Pursuant to the American rule, except as provided by statute or in
certain defined exceptional circumstances, the prevailing litigant is ordi-
narily not entitled to collect a reasonable [attorney’s] fee from the loser.’’
(Internal quotation marks omitted.) Lederle v. Spivey, 332 Conn. 837, 839
n.2, 213 A.3d 481 (2019). Our Supreme Court, however, has ‘‘recognized a
‘bad faith’ exception to the American rule, which permits a court to award
attorney’s fees to the prevailing party on the basis of bad faith conduct of
the other party or the other party’s attorney.’’ Broadnax v. New Haven, 270
Conn. 133, 178, 851 A.2d 1113 (2004).
2
The plaintiff also claims that the court erred in determining the amount
of attorney’s fees to award in the absence of sufficient evidence to support
that amount. Because we determine that the court did not make the neces-
sary findings to satisfy the bad faith exception in order to make an award
of attorney’s fees in the first instance, we do not address this additional claim.
3
Although § 46b-62 has been amended since the filing of the motion for
attorney’s fees; see Public Acts 2021, No. 21-15, § 115; that amendment has
no bearing on the merits of this appeal. In the interest of simplicity, we
refer to the current revision of the statute.
4
The plaintiff filed his original appeal on January 18, 2022, challenging
the court’s November 5, 2021 decision granting the defendant’s postjudgment
motion for attorney’s fees. At the time the original appeal was filed, the
court had not yet determined the amount of attorney’s fees. On May 4, 2022,
this court issued an order requiring the parties to submit memoranda on
why the plaintiff’s appeal should not be dismissed for lack of a final judgment
because the trial court had yet to determine the amount of attorney’s fees.
On May 26, 2022, this court issued another order indicating ‘‘that resolution
of the jurisdictional issue raised in the court’s motion to dismiss [would
be] deferred to the panel considering the merits of the appeal and without
prejudice to this court considering any subsequent developments in the trial
court or the filing of an amended appeal.’’ Because the plaintiff amended
the appeal after the trial court rendered judgment on the amount of attorney’s
fees, the amended appeal is taken from a final judgment and is therefore
jurisdictionally proper. See Paranteau v. DeVita, 208 Conn. 515, 524 n.11,
544 A.2d 634 (1988); see also Practice Book § 61-9 (‘‘[i]f the original appeal
is dismissed for lack of jurisdiction, any amended appeal shall remain pend-
ing if it was filed from a judgment or order from which an original appeal
properly could have been filed’’).
5
It is not surprising, of course, that Judge Adelman’s decision lacks the
requisite findings because the issue of attorney’s fees was not before him
when he rendered judgment in favor of the defendant.
6
Of course, the burden is on the moving party to provide the court with
a sufficient record and to point to the areas in the record that would support
a finding of lack of color and bad faith. See Cokic v. Fiore Powersports,
LLC, supra, 222 Conn. App. 229. A court in such a situation also may conclude
that an evidentiary hearing is required. See id., 229–31.