Cokic v. Fiore Powersports, LLC ( 2022 )

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DEJAN ROBERT COKIC v. FIORE
POWERSPORTS, LLC, ET AL.
(AC 44368)
Alexander, Suarez and DiPentima, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, including V
Co., for, inter alia, conversion, relating to the repair of a jet ski. The
trial court rendered judgment for the defendants. Thereafter, V Co. filed
a postjudgment motion for attorney’s fees, alleging that the plaintiff
brought the claim against it in bad faith. The plaintiff objected to that
motion. The court ordered that the plaintiff’s counsel, L, provide any
evidence found in discovery to explain why the plaintiff believed he
had a colorable claim against V Co. The plaintiff filed a response to that
order. Subsequently, and without scheduling a hearing, the court granted
V Co.’s motion for attorney’s fees, stating that the plaintiff had provided
no evidence of a colorable claim. Thereafter, the court granted the
plaintiff’s motion for clarification of its order granting attorney’s fees
and specified that the order was against both the plaintiff and L, and
the plaintiff and L appealed to this court. Held:
1. This court dismissed the appeal in part to the extent it was brought by
L in connection with the award of attorney’s fees to V Co.; as L was
not a party to the underlying action, the court lacked subject matter
jurisdiction over his portion of the appeal.
2. The trial court erred in granting V Co.’s motion for attorney’s fees; the
plaintiff was denied the opportunity to be heard on the motion, as the
court never held a hearing on the issue of attorney’s fees.
Argued October 14, 2021—officially released January 11, 2022
Procedural History
Action to recover damages for, inter alia, a violation
of the Creditors’ Collection Practices Act, brought to
the Superior Court in the judicial district of Ansonia-
Milford, and tried to the court, Hon. Arthur A. Hiller,
judge trial referee; judgment for the defendants; there-
after, the court granted the postjudgment motion for
attorney’s fees filed by the defendant Village Marina,
LLC, and the plaintiff and Peter A. Lachmann appealed
to this court. Appeal dismissed in part; reversed in
part; further proceedings.
Peter A. Lachmann, for the appellant (plaintiff).
Peter A. Lachmann, self-represented, the appellant.
Steven P. Kular, for the appellee (defendant Village
Marina, LLC).
Opinion
SUAREZ, J. In this action, the plaintiff, Dejan Robert
Cokic, brought various claims against multiple defen-
dants seeking monetary damages in connection with
the repair of a jet ski. The plaintiff and his attorney,
Peter A. Lachmann, appeal from the judgment of the
trial court awarding $893.75 in attorney’s fees to the
defendant Village Marina, LLC.1 On appeal, the plaintiff
and Lachmann both claim that the trial court erred in
granting the motion for attorney’s fees and raise seven
issues for our consideration.2 Insofar as the appeal was
brought by Lachmann, the appeal is dismissed because
Lachmann was not a party to the underlying action and,
therefore, the court lacks jurisdiction over that portion
of the appeal. Insofar as the appeal was brought by the
plaintiff, however, the judgment of the trial court is
reversed with respect to the award of attorney’s fees,
and the case is remanded for further proceedings on
that issue.
The following facts, as found by the court, and proce-
dural history are relevant to this appeal. A friend of the
plaintiff brought a jet ski to Fiore Powersports, LLC
(Fiore Powersports), for repair. The form that author-
ized the repairs listed Pruven Performance, Inc. (Pruven
Performance), as the owner of the jet ski and the party
responsible for payment. After the repairs were com-
pleted, an invoice was provided to Pruven Performance.
One night, the jet ski was removed from Fiore Pow-
ersports, without payment or permission, and brought
to the plaintiff’s residence. Fiore Powersports com-
menced a small claims action against Pruven Perfor-
mance to recover the cost of the repair work, and, on
January 29, 2016, judgment was rendered in favor of
Fiore Powersports in the amount of $1908.80.
In December, 2016, the plaintiff commenced the
underlying action in this appeal against Fiore Pow-
ersports, its principal, Christopher Fiore, and the defen-
dant. The plaintiff brought several claims against Fiore
Powersports, Fiore, and the defendant related to the
repair of the jet ski, including claims for conversion,
fraud, and negligence, as well as claims under the Credi-
tors’ Collection Practices Act, General Statutes § 36a-
645 et seq., and the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110a et seq. On July 30, 2019,
after considering the plaintiff’s claims during a bench
trial, the court rendered judgment for Fiore Pow-
ersports, Fiore, and the defendant. In its memorandum
of decision, with respect to the claims against the defen-
dant, the trial court specifically found that ‘‘[n]o docu-
ment, and no credible evidence ties or implicates . . .
[the defendant] into or with the claims made by the
plaintiff, with any contract or agreement with the plain-
tiff, with any work on the jet ski, or with any representa-
tion, statement or misstatement about the jet ski.’’
On September 3, 2019, the defendant filed a postjudg-
ment motion for attorney’s fees. The motion requested
that the court ‘‘award attorney’s fees against the plaintiff
and or the plaintiff’s counsel for bringing this action
against . . . [the defendant] in bad faith.’’ The plaintiff
objected, arguing, inter alia, that the court did not give
the plaintiff an opportunity to be heard on the issue of
attorney’s fees. On January 13, 2020, the court ordered
that the plaintiff’s counsel provide, by February 6, 2020,
any evidence found in discovery to explain why the
plaintiff believed that he would have a colorable claim
against the defendant. The plaintiff filed a response to
the order.
On October 14, 2020, without scheduling a hearing,
the court granted the motion for attorney’s fees and
awarded $893.75 to the defendant. The plaintiff then
sought clarification of the court’s order granting attor-
ney’s fees to the defendant. In a memorandum of deci-
sion on the motion for clarification, the court stated
that, following its order of January 13, 2020, in which it
ordered the plaintiff to provide any evidence ‘‘indicating
that [the defendant] has responsibility or ownership in
this action,’’ the plaintiff provided no such evidence.
The court further stated that what the plaintiff did pro-
vide to the court in ‘‘claimed compliance [with the
order] . . . totally failed.’’
The court also addressed the plaintiff’s request to
clarify ‘‘whether the order is against [the] plaintiff or
[the] plaintiff’s counsel.’’ The court stated that the order
was issued ‘‘against both the plaintiff and [the] plaintiff’s
counsel’’ because ‘‘[n]o facts known to the plaintiff or
his counsel . . . would allow a reasonable person or
a reasonable attorney to conclude that a colorable claim
might be established against the defendant . . . .’’
On November 5, 2020, the plaintiff and Lachmann
filed this appeal from the decision of the court granting
the motion for attorney’s fees against both the plaintiff
and Lachmann. The appeal form lists Lachmann as both
a party to the appeal and appellate counsel.
On September 30, 2021, the appellate clerk notified
the plaintiff and Lachmann to be prepared to address
at oral argument whether the portion of the present
appeal brought by Lachmann should be dismissed
because he is not a party to the underlying action.
I
We first address whether the portion of the appeal
brought by Lachmann should be dismissed because he
was not a party to the underlying action. We conclude
that, because Lachmann was not a party to the underly-
ing action, this court lacks subject matter jurisdiction
over his portion of the appeal, and therefore, it is dis-
missed.
We begin by setting forth legal principles governing
the right to appeal. ‘‘Appeals from the Superior Court
to this court are governed by General Statutes § 52-263,
which expressly provides that appeals may be taken by
an aggrieved party.’’ Leydon v. Greenwich, 57 Conn.
App. 727, 730, 750 A.2d 492 (2000). Section 52-263 pro-
vides in relevant part: ‘‘[I]f either party is aggrieved by
the decision of the court or judge upon any question
or questions of law arising in the trial . . . he may
appeal to the court having jurisdiction from the final
judgment of the court . . . .’’ ‘‘[T]he statute explicitly
sets out three criteria that must be met in order to
establish subject matter jurisdiction for appellate
review: (1) the appellant must be a party; (2) the appel-
lant must be aggrieved by the trial court’s decision; and
(3) the appeal must be taken from a final judgment.’’
State v. Salmon, 250 Conn. 147, 153, 735 A.2d 333 (1999).
In the present case, we focus on the first of these
three criteria. ‘‘Ordinarily, the word party has a techni-
cal legal meaning, referring to those by or against whom
a legal suit is brought . . . the party plaintiff or defen-
dant, whether composed of one or more individuals
and whether natural or legal persons. . . . This defini-
tion of party, which we also have labeled party status
in court . . . includes only those who are parties to
the underlying action.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 154. ‘‘[S]omeone not a party
to the underlying action [has] no right of review pursu-
ant to § 52-263.’’ Id., 162. ‘‘[O]nly an actual party to
the underlying action may file an appeal.’’ Leydon v.
Greenwich, supra, 57 Conn. App. 730.
This court has held that an attorney cannot appeal
from an action in which he or she was not a party in
order to challenge a sanction order in that underlying
action. See id., 730–31. In Leydon, an attorney
attempted to appeal from the court’s imposition of sanc-
tions against him in the underlying matter, Leydon v.
Greenwich, 57 Conn. App. 712, 750 A.2d 1122 (2000),
rev’d in part, 257 Conn. 318, 777 A.2d 552 (2001), which
challenged an ordinance of the town of Greenwich that
restricted the use of its public parks and public beaches
to residents of the town. Leydon v. Greenwich, supra,
57 Conn. App. 728. The attorney, who did not represent
a party in the underlying case, filed an amicus brief
without requesting permission from the court. Id., 729.
The court later issued an order to the attorney to
‘‘appear and show cause why he should not be sanc-
tioned for filing an amicus curiae brief without follow-
ing the rules of practice.’’ Id. The court held that an
amicus curiae brief could not be filed without first
obtaining permission from the court and imposed on the
attorney sanctions, which included reading the entire
Connecticut Practice Book. Id., 729–30. The attorney
attempted to appeal from the court’s imposition of sanc-
tions, but he did not initiate a separate proceeding;
rather, he brought the appeal ‘‘within the framework
of the underlying . . . case.’’ Id., 730. The court dis-
missed the appeal because the attorney was not a party
to the underlying action, and, thus, the court lacked
subject matter jurisdiction over the appeal. Id., 730–31.
We find Leydon v. Greenwich, supra, 57 Conn. App.
727, to be instructive in the present case.
It is undisputed that Lachmann was the plaintiff’s
attorney in the underlying action and has appealed from
the court’s order that he pay attorney’s fees to the
defendant. Although Lachmann was involved in the
underlying action as an attorney, he was not a party
in that case because he was not an individual ‘‘by or
against whom [the] legal suit [was] brought . . . .’’
(Internal quotation marks omitted.) State v. Salmon,
supra, 250 Conn. 154. Because Lachmann was not a
party, he has no right of appellate review pursuant to
§ 52-263. Accordingly, the present appeal must be dis-
missed in part to the extent that it was brought by
Lachmann.
II
We next consider the plaintiff’s claim that the court
erred in granting the defendant’s motion for attorney’s
fees.3 The plaintiff argues, inter alia, that the court erred
in failing to provide the plaintiff a hearing on the defen-
dant’s motion for attorney’s fees. We agree.
We begin by setting forth the legal principles that
apply to the plaintiff’s claim. Our courts recognize both
the American rule and the bad faith exception to the
rule for attorney’s fees. See Maris v. McGrath, 269
Conn. 834, 844, 850 A.2d 133 (2004). Under the American
rule, ‘‘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. . . . This bad faith exception applies, not only
to the filing of an action, but also in the conduct of the
litigation. . . . It applies both to the party and his coun-
sel. . . . Moreover, the trial court must make a specific
finding as to whether counsel’s [or a party’s] conduct
. . . constituted or was tantamount to bad faith, a find-
ing that would have to precede any sanction under the
court’s inherent powers to impose attorney’s fees for
engaging in bad faith litigation practices.’’ (Citations
omitted; internal quotation marks omitted.) Id., 844–45.
‘‘[T]he task of determining whether sanctions should be
imposed is inherently fact bound, and requires carefully
circumscribed discretion to be exercised by the trial
court.’’ Fattibene v. Kealey, 18 Conn. App. 344, 362, 558
A.2d 677 (1989).
Despite the court’s discretion in this area, ‘‘[a]s a
procedural matter, before imposing any such sanctions,
the court must afford the sanctioned party or attorney
a proper hearing on the . . . motion for sanctions.
. . . There must be fair notice and an opportunity for
a hearing on the record.’’ (Citation omitted; internal
quotation marks omitted.) Maris v. McGrath, supra,
269 Conn. 844.
In the present case, the defendant’s motion for attor-
ney’s fees alleged that the plaintiff brought the claim
in bad faith. The plaintiff objected to the defendant’s
motion for attorney’s fees, arguing that he had not been
given an opportunity to be heard on this issue. The
court subsequently ordered the plaintiff to provide, in
writing, evidence to indicate why the plaintiff believed
that he would have a colorable claim against the defen-
dant. The plaintiff provided evidence to the court in
an attempt to comply with the order, but the court
dismissed the evidence as unresponsive to its inquiry
and later granted the defendant’s motion for attorney’s
fees. The court, however, never held a hearing on the
issue of attorney’s fees. Accordingly, we conclude that
the plaintiff was denied the opportunity to be heard on
the motion for attorney’s fees.
The appeal, insofar as it was brought by Lachmann,
is dismissed; with respect to the appeal brought by the
plaintiff, the judgment is reversed only as to the award
of attorney’s fees against the plaintiff and the case is
remanded for a hearing on the issue of attorney’s fees.
In this opinion the other judges concurred.
1
There were three defendants in the underlying action—Fiore Pow-
ersports, LLC, its principal, Christopher G. Fiore, and Village Marina, LLC.
After considering the plaintiff’s claims during a bench trial, the court ren-
dered judgment for the defendants. None of the defendants filed a brief in
this appeal. On December 21, 2020, Village Marina, LLC, filed a notice of
intent not to file a brief and simply requested that this court affirm the
decision of the trial court. On February 11, 2021, following the final deadline
for the defendants to file a brief, this court ordered that the appeal ‘‘will
be considered on the basis of the [plaintiff’s] brief and the record, as defined
by Practice Book [§] 60-4, only.’’ For convenience, we refer in this opinion
to Village Marina, LLC, as the defendant. We refer to the other defendants
by name.
2
The plaintiff and Lachmann claim that the trial court erred in granting
the motion for attorney’s fees for the following reasons: (1) the motion was
filed past the deadline imposed by Practice Book § 11-21; (2) the motion
was not accompanied by contemporaneous time records; (3) the court failed
to allow the plaintiff an opportunity to fully litigate the motion; (4) the
motion sought attorney’s fees only for filing the motion itself; (5) there
was no clear evidence presented that the challenged actions were entirely
without color; (6) the court ordered sanctions based on a single challenged
event; and (7) the court ordered sanctions when no motion for sanctions
had been filed.
3
We note that this court does have subject matter jurisdiction over the
appeal insofar as it was brought by the plaintiff, who is a party to the
underlying action and is aggrieved by the sanction on appeal. See Alpha
Beta Capital Partners, L.P. v. Pursuit Investment Management, LLC, 198
Conn. App. 671, 673, 234 A.3d 997 (2020). This court has recognized that a
party may appeal from the trial court’s order of sanctions in which the court
awarded another party attorney’s fees and litigation costs. See id., 673.