Taylor v. Pollner ( 2022 )

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CHRISTOPHER J. TAYLOR v. LISA POLLNER
(AC 44517)
Alvord, Moll and Alexander, Js.
Syllabus
The plaintiff sought to acquire title to a certain parcel of the defendant’s
real property through adverse possession, and the defendant filed a
counterclaim seeking to quiet title. The trial court ordered the parties
to respond to discovery and appear for depositions by a certain date,
stating that the failure to comply with its order could result in sanctions,
including, inter alia, fines. Thereafter, the plaintiff moved for an exten-
sion of time for his deposition, which the court denied. The defendant,
represented by two law firms, filed two motions for order pursuant to
the rule of practice (§ 1-21A), requesting that the plaintiff pay her attor-
ney’s fees and claiming that the plaintiff failed to respond to discovery
in a timely manner, had failed to appear substantively at his deposition,
and had executed documents under oath after previously indicating his
inability to do so, and her counsel attached affidavits thereto. The plain-
tiff did not object or respond to the defendant’s motions for order. The
plaintiff thereafter withdrew his complaint. The matter was tried to the
court, which rendered judgment for the defendant as to her counter-
claim, quieting title to the property. The court granted the motions for
order and ordered monetary sanctions against the plaintiff comprised
of attorney’s fees in the amounts of $4859.55 and $5800, reasoning that
the plaintiff failed to comply with the court’s scheduling order and his
discovery obligations and failed to respond to several of the defendant’s
motions. The plaintiff appealed to this court, claiming, inter alia, that
the trial court abused its discretion in awarding monetary sanctions to
compensate the defendant for attorney’s fees. Held that this court
declined to review the plaintiff’s claims that the trial court’s award of
attorney’s fees to the defendant was improper and that those fees were
excessive, unreasonable, and clearly erroneous: in accordance with
Smith v. Snyder (267 Conn. 456), which indicates that the other party
must oppose or otherwise take action in response to a request for
attorney’s fees, the plaintiff’s failure to oppose or to present any chal-
lenge regarding the attorney’s fees to the trial court prior to its granting
of the motions for order, precluded this court’s review of his complaints
regarding those fees at this juncture.
Submitted on briefs December 6, 2021—officially released January 25, 2022
Procedural History
Action seeking a judgment determining the rights of
the parties to certain real property, and for other relief,
brought to the Superior Court in the judicial district
of Fairfield, where the defendant filed a counterclaim;
thereafter, the plaintiff withdrew his complaint; subse-
quently, the matter was tried to the court, Cordani, J.;
judgment for the defendant, from which the plaintiff
appealed to this court; thereafter, the court, Cordani,
J., granted the defendant’s motions for sanctions, and
the plaintiff amended his appeal. Affirmed.
Hale C. Sargent filed a brief for the appellant (plain-
tiff).
Stephen G. Walko and Andrea C. Sisca filed a brief
for the appellee (defendant).
Opinion
PER CURIAM. In this quiet title action, the plaintiff,
Christopher J. Taylor, appeals from the judgment of
the trial court to the extent that the court awarded
attorney’s fees to the defendant, Lisa Pollner, pursuant
to Practice Book § 1-21A. On appeal, the plaintiff claims
that the court abused its discretion in awarding mone-
tary sanctions to compensate the defendant for her
attorney’s fees and that those fees were excessive,
unreasonable, and clearly erroneous. We affirm the
judgment of the trial court awarding attorney’s fees to
the defendant.
The following facts and procedural history are rele-
vant for our resolution of this appeal. On June 12, 2020,
the plaintiff initiated the underlying action for adverse
possession of a three-quarter acre portion of the prop-
erty known as 365 Cross Highway in Fairfield. On
August 27, 2020, the defendant responded by filing an
answer, special defenses, and counterclaim. In her
pleading, the defendant alleged that the property was
under a contract for sale with a closing scheduled for
August 21, 2020. She further claimed that the plaintiff
had placed a lis pendens on the property with malice
and knowledge in order to disrupt the pending sale. In
the defendant’s counterclaim, she set forth counts of
trespass in tort, private nuisance, tortious interference
with a contract, statutory slander of title, common law
slander of title, an action to quiet title, and unjust enrich-
ment.
On September 29, 2020, the court, Stevens, J., issued
an expedited scheduling order. The court noted that
the failure to comply with the scheduling order could
result in sanctions, including fines, the exclusion of
evidence at trial, dismissal, default, or nonsuit. The
court set a deadline of November 6, 2020, for the parties
to object to or file responses to written discovery
requests. The court ordered all depositions to be com-
pleted by November 25, 2020.
On November 9, 2020, the court, Cordani, J., denied
the plaintiff’s October 16, 2020 motion for an extension
of time for his deposition. The court determined that
the plaintiff had failed to present any evidence of a
medical condition that inhibited his ability to sit for a
deposition, and that, given that the pending sale of the
property had been delayed by the plaintiff’s filings, his
‘‘unsupported motion and uncertain position is insuffi-
cient to allow a deviation from the pending scheduling
order.’’ The court, however, offered the plaintiff the
opportunity to present ‘‘compelling evidence of certain
unavailability’’ at the next status conference. Following
the November 16, 2020 status conference, the court
issued an order confirming that the scheduling order
remained unchanged and ‘‘in full force and effect.’’
On December 16, 2020, the defendant withdrew all
of the counts of her counterclaim except for the action
to quiet title. On that same day, one of the law firms
representing the defendant filed a motion for order
pursuant to Practice Book § 1-21A (motion for order),1
requesting the plaintiff pay the defendant’s attorney’s
fees totaling $4859.55 as a result of his ‘‘blatant disre-
gard for multiple orders of this court.’’ Specifically, the
defendant alleged that the plaintiff had failed to respond
to discovery in a timely fashion, had failed to appear
‘‘substantively’’ at his November 20, 2020 deposition,
and had executed documents under oath after pre-
viously indicating his inability to do so due to the inges-
tion of medications. On the same day, the second law
firm representing the defendant filed a similar motion,
captioned as a supplemental motion for order of attor-
ney’s fees, seeking the amount of $5800 (supplemental
motion for order). Each of the defendant’s counsel
attached an affidavit to the respective motion for order
and the supplemental motion for order in support of
the claimed attorney’s fees. The plaintiff did not file an
objection or response to either motion.
On January 7, 2021, the plaintiff withdrew his com-
plaint. The next day, the court conducted a brief trial
where only the defendant testified. The court found in
favor of the defendant on the sole remaining count, her
claim to quiet title.
The same day, the court issued an order granting the
December 16, 2020 motion for order and awarded the
defendant $4859.55 in attorney’s fees. The court found
that when the plaintiff appeared for his November 20,
2020 remote deposition, he ‘‘engaged in an unprovoked
profanity laden, insulting tirade against the defendant’s
counsel, and refused to proceed with the deposition.’’
It further noted that the plaintiff failed to respond to the
defendant’s motion for nonsuit or order of compliance,
motion in limine and motion for judgment, or to comply
with the court’s scheduling order and his discovery
obligations. The court concluded by finding that ‘‘the
plaintiff’s conduct during this litigation has been unrea-
sonable and egregious. The plaintiff’s conduct has
caused the defendant to incur attorney’s fees that she
should not have been forced to incur.’’ Finally, the court
noted that the request for attorney’s fees and the
amount of said fees, were reasonable. The court issued
a second order on January 8, 2021, granting the supple-
mental motion for order and awarded the defendant an
additional $5800 in attorney’s fees.
On January 11, 2021, the plaintiff filed a motion to
reargue pursuant to Practice Book § 11-11. The court
denied that motion eight days later. On January 21,
2021, the court rendered judgment in favor of the defen-
dant with respect to her quiet title claim, discharged
the lis pendens filed by the plaintiff on the property, and
noted that the judgment included an award of $10,659.55
against the plaintiff. This appeal followed.2
In his appeal, the plaintiff challenges the attorney’s
fees awarded to the defendant. Specifically, he claims
that the court abused its discretion in awarding attor-
ney’s fees to the defendant and that the amount awarded
was excessive, unreasonable, and clearly erroneous.
The defendant counters, inter alia, that we should not
review the plaintiff’s appellate claims because he failed
to raise them before the trial court. We agree with the
defendant.
This court has often stated that ‘‘[w]e will not decide
an appeal on an issue that was not raised before the
trial court. . . . To review claims articulated for the
first time on appeal and not raised before the trial court
would be nothing more than a trial by ambuscade of
the trial judge.’’ (Internal quotation marks omitted.)
Kirwan v. Kirwan, 187 Conn. App. 375, 391 n.13, 202
A.3d 458 (2019); see also Hirschfeld v. Machinist, 181
Conn. App. 309, 329 n.4, 186 A.3d 771 (‘‘[w]e will not
promote a Kafkaesque academic test by which [a trial
judge] may be determined on appeal to have failed
because of questions never asked of [him] or issues
never clearly presented to [him]’’ (internal quotation
marks omitted)), cert. denied, 329 Conn. 913, 186 A.3d
1170 (2018).
Our Supreme Court’s decision in Smith v. Snyder,
267 Conn. 456, 839 A.2d 589 (2004), controls the resolu-
tion of this appeal. The defendants in that case claimed
that the trial court had abused its discretion in awarding
$20,000 in attorney’s fees to the plaintiff. Id., 470. At
the outset of its analysis, our Supreme Court noted
that, even though the plaintiff statutorily was entitled
to attorney’s fees, ‘‘it was incumbent upon [the plaintiff]
to prove the amount of fees to which it was entitled
. . . .’’ Id., 471. Additionally, the court explained that
the reasonableness of an award of attorney’s fees must
be proved by an appropriate evidentiary showing and
not based solely on the trial court’s general knowledge
of attorney’s fees. Id., 471–72. Ultimately, it concluded
that ‘‘when a court is presented with a claim for attor-
ney’s fees, the proponent must present to the court
. . . a statement of the fees requested and a description
of [the] services rendered. . . . Such a rule leaves no
doubt about the burden on the party claiming attorney’s
fees and affords the opposing party an opportunity to
challenge the amount requested at the appropriate
time.’’ (Footnote omitted.) Id., 479.
Our Supreme Court further indicated that the other
party must oppose or otherwise take action in response
to a request for attorney’s fees. Id., 480–81. ‘‘Although
the proponent bears the burden of furnishing evidence
of attorney’s fees at the appropriate time, once the
plaintiffs in this case did make such a request, the defen-
dants should have objected or at least responded to
that request. Had the defendants demonstrated any
interest in objecting to the plaintiffs’ request for attor-
ney’s fees, the trial court would have been obligated to
grant the defendants an opportunity to be heard. . . .
Accordingly . . . we conclude that a reversal of the
award in the present case is not justified in light of the
defendants’ failure, prior to this appeal, to interpose
any objection whatsoever to the plaintiffs’ request for
attorney’s fees. In other words, the defendants, in failing
to object to the plaintiffs’ request for attorney’s fees,
effectively acquiesced in that request, and, conse-
quently, they now will not be heard to complain about
that request.’’ (Citations omitted; emphasis in original.)
Id.; see also William Raveis Real Estate, Inc. v. Zajacz-
kowski, 172 Conn. App. 405, 425–26, 160 A.3d 363, cert.
denied, 326 Conn. 906, 163 A.3d 1205 (2017).
In the present case, the court explained that it had
awarded the defendant attorney’s fees as a sanction to
compensate her losses, namely, ‘‘attorney’s fees [that]
she should not have been compelled to incur.’’ See
Practice Book § 1-21A. The plaintiff failed to file a
response to either of the December 16, 2020 motions
for order and did not present any challenge regarding
the attorney’s fees to the trial court prior to its granting
of the motions for order.3 In other words, the plaintiff
did not object to the requests for attorney’s fees before
the trial court, and, therefore, in accordance with our
precedent, we decline to hear his complaints about the
awarding of those fees at this juncture.4 See Smith v.
Snyder, supra, 267 Conn. 481.
The judgment of the trial court awarding attorney’s
fees to the defendant is affirmed.
1
Practice Book § 1-21A provides: ‘‘The violation of any court order quali-
fies for criminal contempt sanctions. Where, however, the dispute is between
private litigants and the purpose for judicial intervention is remedial, then
the contempt is civil, and any sanctions imposed by the judicial authority
shall be coercive and nonpunitive, including fines, to ensure compliance
and compensate the complainant for losses. Where the violation of a court
order renders the order unenforceable, the judicial authority should consider
referral for nonsummary criminal contempt proceedings.’’
2
On January 28, 2021, the plaintiff filed his appeal challenging the court’s
judgment in favor of the defendant on her quiet title claim. On February 8,
2021, the plaintiff amended his appeal to include attorney’s fees awarded
to the defendant and the denial of his motion for reargument. The plaintiff,
however, has not advanced any argument in his appellate brief regarding
the judgment rendered in favor of the defendant with respect to her quiet
title claim or the denial of the motion for reargument.
3
In his January 11, 2021 motion to reargue, the plaintiff offered the bald,
unsupported assertion that the defendant had failed to present evidence to
support her claim, and, therefore waived her claim for attorney’s fees. We
note that, in both motions for order, the attorneys submitted an affidavit
of fees.
4
The plaintiff briefly claims that his right to due process was violated
when the court awarded the defendant attorney’s fees without a hearing.
On appeal, the plaintiff neither requested Golding review nor addressed its
four prongs. ‘‘We consider unpreserved claims of constitutional magnitude
according to the requirements of [State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 780–81,
120 A.3d 1188 (2015)] . . . . [A party’s] failure to address the four prongs
of Golding amounts to an inadequate briefing of the issue and results in
the unpreserved claim being abandoned. . . . We will not engage in Golding
. . . review on the basis of . . . an inadequate brief.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.) Guiliano v. Jefferson
Radiology, P.C., 206 Conn. App. 603, 624, 261 A.3d 140 (2021).