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FRAUENGLASS AND ASSOCIATES, LLC
v. HELEN ENAGBARE
(AC 38122)
DiPentima, C. J., and Lavine and Kahn, Js.*
Syllabus
The plaintiff law firm brought this action against the defendant for, inter
alia, breach of contract, seeking to recover unpaid legal fees for the
plaintiff’s representation of the defendant in a prior dissolution proceed-
ing. The trial court rendered judgment for the plaintiff, and the defendant
appealed to this court, which affirmed the judgment. Subsequently, the
plaintiff filed motions seeking postjudgment interest and attorney’s fees
from the date of the underlying judgment through the date of payment
in full. The trial court granted the plaintiff’s motions, and the defendant
appealed to this court. She claimed, inter alia, that the trial court improp-
erly failed to consider newly discovered evidence that the underlying
judgment had been obtained by fraud, and that the plaintiff and its
attorney, W, committed fraud by fabricating invoices and tampering
with evidence. Held that the defendant’s claims regarding the attorney’s
fees charged by the plaintiff in the underlying matter constituted an
impermissible collateral attack on the underlying judgment: although
the plaintiff’s motions for attorney’s fees and postjudgment interest were
the subject of the proceedings before the trial court, the defendant failed
to challenge the propriety of the court’s award of attorney’s fees and
statutory interest to the plaintiff, which was the subject of this appeal,
and, instead, focused on the plaintiff’s conduct in the underlying matter,
namely, the attorney’s fees charged by the plaintiff for its services pro-
vided to the defendant in the underlying dissolution case, and because
that matter had been decided in favor of the plaintiff at both the trial
and appellate levels, the defendant’s arguments could not be addressed
or ruled on by the trial court, nor could they be considered by this
court, which would have constituted an improper collateral attack on
the judgment; moreover, this court declined to consider the defendant’s
allegations of newly discovered evidence of fraudulent conduct by the
plaintiff and W, as those allegations pertained primarily to the legal fees
in the underlying action, the defendant did not file a motion to open
the judgment in that action on the basis of fraud so as to place the issue
of newly discovered evidence of fraud before the trial court, and, to the
extent that the defendant claimed, for the first time on appeal, that W’s
legal fees were fraudulent, this court declined to consider that claim
as well.
Argued September 13—officially released November 7, 2017
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
defendant filed a counterclaim; thereafter, the matter
was referred to Edward G. McAnaney, attorney fact
finder, who filed a report recommending judgment for
the plaintiff on the complaint and on the counterclaim;
subsequently, the court, Hon. Richard M. Rittenband,
judge trial referee, rendered judgment in accordance
with the fact finder’s report, from which the defendant
appealed to this court, which affirmed the trial court’s
judgment; thereafter, the court, Elgo, J., granted the
plaintiff’s motions for attorney’s fees and postjudgment
interest, and the defendant appealed to this court.
Affirmed.
Helen Enagbare, self-represented, the appellant
(defendant).
Lloyd Frauenglass, for the appellee (plaintiff).
Opinion
PER CURIAM. In Frauenglass & Associates, LLC v.
Enagbare, 149 Conn. App. 103, 88 A.3d 1246, cert.
denied, 314 Conn. 927, 101 A.3d 273 (2014), this court
affirmed the judgment of the trial court awarding the
plaintiff, Frauenglass & Associates, LLC, $33,189.97 for
unpaid legal fees and interest (underlying action) for
its representation of the defendant, Helen Enagbare.
Following the defendant’s unsuccessful appeal, the
plaintiff sought postjudgment interest and attorney’s
fees. On May 5, 2015, the court awarded the plaintiff
$17,270 in attorney’s fees for the underlying action,
$11,797.50 in appellate attorney’s fees and statutory
interest of 10 percent from the date of judgment, August
24, 2012, through the date of payment in full.
The self-represented defendant appeals from the
award of attorney’s fees and interest. Specifically, she
claims that the court improperly failed to consider (1)
newly discovered evidence that the judgment had been
obtained by fraud, (2) evidence that the plaintiff’s attor-
ney, Robert H. Weinstein, committed a fraud by fabricat-
ing invoices and tampering with evidence, (3) her claim
of a violation of General Statutes § 53a-155 (a)1 and (4)
that the plaintiff’s conduct violated the Connecticut
Unfair Trade Practices Act (CUTPA), § 42-110a et seq.
We conclude that the defendant’s arguments in the pre-
sent action constitute an improper collateral attack on
the judgment in the underlying action and that she failed
to challenge the propriety of the May 5, 2015 award of
attorney’s fees and statutory interest. Last, her allega-
tions of evidence of newly discovered fraud were not
raised properly before the trial court and cannot be
considered for the first time on appeal. Accordingly,
we affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. The defendant
had retained the plaintiff to represent her in a marital
dissolution and child custody case. Frauenglass &
Associates, LLC v. Enagbare, supra, 149 Conn. App.
106. In October, 2008, the defendant signed a retainer
agreement and paid $7780 to the plaintiff. Id. Approxi-
mately four months later, the defendant terminated the
services of the plaintiff, and, at that time, owed the
plaintiff $21,551.93 for legal fees and costs.2 Id., 107. The
plaintiff initiated the action that underlies this appeal. In
that action, the trial court, Hon. Richard M. Rittenband,
judge trial referee, rendered judgment in favor of the
plaintiff in the amount of $21,551.93 plus $11,638.04 in
interest, for a total of $33,189.97. Id., 108–109.
On August 28, 2012, the plaintiff filed motions for its
own counsel fees in prosecuting the underlying action
and for postjudgment interest, which are the subject
of this appeal. In the meantime, on August 27, 2012, the
defendant filed an appeal from the underlying action,
raising four issues. Id., 104. On April 1, 2014, we affirmed
the judgment of the court in the underlying action. Id.,
103. On April 22, 2014, the plaintiff filed a motion pursu-
ant to General Statutes § 37-3a for interest from August
24, 2012, the date of the underlying judgment, through
the date of payment in full. On that same day, the plain-
tiff also filed a motion seeking appellate attorney’s fees.
The court, Elgo, J., held a hearing on the pending
motions for attorney’s fees and postjudgment interest
on February 17, 2015. At that hearing, Weinstein intro-
duced into evidence the retainer agreement and noted
that it provided for interest and collection costs, includ-
ing reasonable attorney’s fees. Weinstein subsequently
testified that he was seeking $17,270 for his trial work
and $11,797.50 for his appellate work on behalf of the
plaintiff in the underlying matter, as well as postjudg-
ment statutory interest.3
During the defendant’s testimony, she stated that the
bill she had received from the plaintiff was fraudulent,
and therefore she was not liable to pay it. Specifically,
she referred to the defendant’s exhibit A, which was
the invoice, dated October 31, 2008, from the plaintiff
to the defendant for legal services provided in the under-
lying action. The defendant later stated that the plaintiff
and Weinstein had prepared a fraudulent invoice for
the legal services provided by the plaintiff in the under-
lying action.
At a second hearing held on May 4, 2015, the defen-
dant iterated her belief that she did not owe the plaintiff
any money and that the plaintiff’s invoices were fraudu-
lent. These contentions, however, were directed at the
plaintiff’s conduct with respect to the underlying action,
and not at the motions for attorney’s fees for the work
performed by Weinstein and for postjudgment interest.
After hearing argument from the parties, the court
inquired: ‘‘So, are you still referring to the underlying
fees, ma’am?’’ The defendant responded in the affirma-
tive. After further questioning, the defendant indicated
that her claims stemmed from the invoices from the
plaintiff, which, as Weinstein correctly noted, applied
to the underlying case and were not the subject of the
motions presently before the court.4
On May 4, 2015, the court issued the following order:
‘‘[T]his court finds that the requested attorney’s fees
for the underlying matter and for defending the appeal
of this matter are fair, reasonable and appropriate. The
record in this case and the degree to which this litigation
has been before the courts, and, ultimately, found in
favor of the plaintiff, strongly justifies postjudgment
interest and the attorney’s fees itemized and entered
into evidence. Moreover, to this day, and as a review
of the defendant’s court filings reveals, the defendant’s
challenge to these fees improperly focuses on her argu-
ments in the plaintiff’s underlying claim for attorney’s
fees in the dissolution, which has already been adjudi-
cated in the plaintiff’s favor and upheld on appeal.
Unfortunately, the defendant’s persistently misguided
perspective has perpetuated the litigation, to the detri-
ment of the plaintiff’s ability not only to secure finality
with respect to securing duly earned fees but [also] to
controlling the costs of litigation.’’ (Emphasis added.)
It awarded attorney’s fees in the amount of $29,067.50
and postjudgment statutory interest.5 The court denied
the defendant’s subsequent motion to ‘‘set aside [the]
judgment and [for] reconsideration,’’ and this appeal
followed.
Following the resolution of the underlying case, the
plaintiff sought attorney’s fees and postjudgment inter-
est. These were the subject of the proceedings before
Judge Elgo. Rather than responding to these issues, the
defendant instead focused on the plaintiff’s conduct
during the underlying matter, namely, the attorney’s
fees charged by the plaintiff for its services provided
to the defendant in the dissolution case.6 As properly
noted by the trial court, the underlying matter had been
decided in favor of the plaintiff at both the trial and
appellate levels. Simply put, the defendant’s arguments
regarding the attorney’s fees from the underlying case
could not be addressed or ruled on by Judge Elgo.
Similarly, we cannot consider the defendant’s claims
regarding the fees charged by the plaintiff in the under-
lying matter. To do so would constitute a collateral
attack on that judgment, which is not permitted under
our law. See Cimino v. Cimino, 174 Conn. App. 1, 7,
164 A.3d 787, cert. denied, 327 Conn. 929, A.3d
(2017).
We briefly address the defendant’s claim of newly
discovered evidence of fraud. On March 4, 2015, the
defendant filed a request for argument on the plaintiff’s
motions, which the court granted. In this request, the
defendant claimed that ‘‘the plaintiff fabricated
invoices, recorded work not done for the defendant and
overbilled those that were done for her. The plaintiff
violated several Connecticut codes of conducts and
violated [CUTPA], among other violations in this case.’’
In her amended objection to the plaintiff’s motions, the
defendant argued, inter alia, that the amount of damages
that had been awarded to the plaintiff was excessive
because those fees were unreasonable, that the plaintiff
fraudulently had filed unnecessary motions, that the
plaintiff had created fraudulent invoices after learning
that the defendant had hired another lawyer, and that
the plaintiff had breached the contract and the covenant
of good faith and fair dealing, and had violated CUTPA.
Again, the defendant’s allegations of fraud by the
plaintiff and Weinstein pertain primarily to the legal
fees in the underlying action and to Weinstein’s fees.
Further, the defendant has not filed a motion to open
the judgment in the underlying action on the basis of
fraud. See Brody v. Brody, 153 Conn. App. 625, 631,
103 A.3d 981 (well established general rule that motion
to open judgment based on fraud not subject to four
month limitation), cert. denied, 315 Conn. 910, 105 A.3d
901 (2014); Terry v. Terry, 102 Conn. App. 215, 222,
925 A.2d 375 (same), cert. denied, 284 Conn. 911, 931
A.2d 934 (2007). In other words, the defendant failed
to place the issue of newly discovered evidence of fraud
before the court, Elgo, J. ‘‘It is well established that an
appellate court is under no obligation to consider a
claim that is not distinctly raised at the trial level. . . .
[B]ecause our review is limited to matters in the record,
we [also] will not address issues not decided by the
trial court. . . . The reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not
been raised at trial—after it is too late for the trial court
. . . to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party.’’ (Citation omitted; internal quota-
tion marks omitted.) Dejana v. Dejana, 176 Conn. App.
104, 111, A.3d (2017). Accordingly, we decline
to consider the defendant’s claim regarding the alleged
fraudulent conduct of the plaintiff and Weinstein with
respect to the underlying action. To the extent that the
defendant also claims, for the first time on appeal, that
Weinstein’s fees were fraudulent, we likewise decline
to consider that claim.
The judgment is affirmed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53a-155 (a) provides: ‘‘A person is guilty of tampering
with or fabricating physical evidence if, believing that a criminal investigation
conducted by a law enforcement agency or an official proceeding is pending,
or about to be instituted, such person: (1) Alters, destroys, conceals or
removes any record, document or thing with purpose to impair its verity
or availability in such criminal investigation or official proceeding; or (2)
makes, presents or uses any record, document or thing knowing it to be
false and with purpose to mislead a public servant who is or may be engaged
in such criminal investigation or official proceeding.’’
2
‘‘The [attorney] fact finder found that the case was complicated by issues
of Nigerian law, child custody, and the fact that the defendant’s husband
controlled all of the couple’s assets.’’ Frauenglass & Associates, LLC v.
Enagbare, supra, 149 Conn. App. 107.
3
On June 19, 2014, Weinstein filed affidavits of attorney’s fees, along with
itemized statements detailing his work during the trial and appellate pro-
ceedings.
4
In the defendant’s February 13, 2015 written objection to the plaintiff’s
motions for attorney’s fees and interest, she challenged the fees charged to
her by the plaintiff as being unreasonable and also claimed that the plaintiff
fraudulently filed several motions that she ‘‘did not want’’ and that ‘‘were
not necessary . . . .’’ Significantly, the defendant’s motion did not address
the motions for attorney’s fees for Weinstein’s trial and appellate work on
behalf of the plaintiff or postjudgment statutory interest.
5
The court’s order stated: ‘‘The court grants the plaintiff’s motion for
interest at the statutory rate of 10 percent for the period of August 24, 2012,
the date of judgment in this matter, through to the date of payment in full
of all sums found due, pursuant to General Statutes § 37-3a and under Rostad
v. Hirsch, 148 Conn. App. 441, 451, 85 A.3d 1212 (2014), appeals dismissed,
317 Conn. 290, 116 A.3d 307 (2015) (certification improvidently granted).’’
6
At the February 17, 2015 hearing, the defendant challenged the validity
of the bill that she had received from the plaintiff for its services provided
to her in the underlying action. She also argued that that bill was excessive.
At the May 4, 2015 hearing, the plaintiff claimed that the plaintiff had violated
‘‘many of the professional code of conducts,’’ and committed fraud by exces-
sive billing for work that had not been performed and by overbilling.