William Raveis Real Estate, Inc. v. Zajaczkowski , 172 Conn. App. 405 ( 2017 )

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WILLIAM RAVEIS REAL ESTATE, INC. v. PETER
ZAJACZKOWSKI ET AL.
(AC 37843)
Lavine, Sheldon and Flynn, Js.
Argued November 17, 2016—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Kamp, J.)
Enrico Vaccaro, with whom, on the brief, was Emily
A. Gianquinto, for the appellants (defendants).
Tracey Lane Russo, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendants, Peter Zajaczkowski and
Iwona Zajaczkowski, appeal from the judgment of the
trial court, rendered after a trial to the court, in favor
the plaintiff, William Raveis Real Estate, Inc. On appeal,
the defendants claim that the court (1) erred in conclud-
ing that they had breached the exclusive agreement
they had with the plaintiff, (2) abused its discretion by
awarding the plaintiff attorney’s fees and costs in the
absence of an evidentiary hearing, and (3) violated Gen-
eral Statutes § 42-150aa with respect to the award of
attorney’s fees. We affirm the judgment of the trial
court.
In its memorandum of decision issued on February
26, 2015, the trial court made the following findings of
fact. The plaintiff, a Connecticut corporation with its
principal office located in Shelton, is a real estate bro-
kerage firm that represents buyers and sellers. The
plaintiff commenced the present litigation to obtain
payment of a real estate commission it alleged it was
owed in connection with the defendants’ purchase of
a home at 6 Blackhouse Road (Blackhouse property)
in Trumbull.1 The plaintiff alleged that it was due a
commission pursuant to an agreement between the par-
ties known as an ‘‘Exclusive Right to Represent Buyer
Authorization’’ (agreement). The defendants denied
that an enforceable agreement existed between them
and the plaintiff and that they owed the plaintiff a com-
mission. The defendants alleged three special defenses
as to the plaintiff’s cause of action2 and a two count
counterclaim.3
The defendants are husband and wife, who have two
school aged children. Iwona Zajaczkowski, a native of
Poland, had resided in Connecticut for approximately
seventeen years by the time of trial. She had been
employed by Connor Corporation, a marketing com-
pany. Peter Zajaczkowski was employed as an execu-
tive director of process engineering at Morgan Stanley
Fund Services. He previously was employed by General
Electric Corporation and Deloitte & Touche. He had
earned a bachelor of science degree in business man-
agement and a master’s degree in business administra-
tion and finance from the University of Connecticut.
Early in 2010, the defendants were living in an apart-
ment and wanted to purchase a three or four bedroom
house with a yard. Although they wanted to find a home
in Trumbull to take advantage of its public schools,
they were willing to look at homes in other Fairfield
county towns. They had no time constraints, but ideally
wished to purchase a home before the month of Septem-
ber so that their son could enter school at the beginning
of the school year.
The court found that a friend of the defendants had
referred them to Freda Takacs, a licensed real estate
agent who had been affiliated with the plaintiff for
approximately fifteen years. Peter Zajaczkowski made
the initial contact with Takacs and described to her the
type of home the defendants wished to purchase and its
preferred location. Thereafter, Takacs identified houses
to show the defendants. In addition, she gave the defen-
dants access to the plaintiff’s listing book, a nonpropri-
etary service that the plaintiff’s agents offer to
customers so that customers can perform their own
Internet searches of homes available for purchase.
Peter Zajaczkowski actively searched for homes that
met the defendants’ specifications by using the listing
book and regularly contacting Takacs about properties
that the defendants wished to view.
Prior to showing the defendants a particular house
on March 29, 2010, Takacs presented them with the
agreement. The agreement is a preprinted, three page
form with the plaintiff’s name appearing prominently
at the top of each page. Before Takacs presented the
agreement to the defendants, she entered certain infor-
mation onto it, including the term of the agreement
and the compensation to be paid to the plaintiff. The
agreement was for a term of one year, from March 29,
2010 to March 29, 2011. The agreement provided, in
part, that Takacs, as the buyer’s agent, was to use dili-
gent efforts to locate property that met the defendants’
specifications and that she was to negotiate the terms
and conditions of the purchase of any property the
defendants wished to buy. The agreement also provided
that if the defendants purchased a home during the term
of the agreement, the plaintiff was to earn a commission
equal to 3 percent of the sale or exchange price of the
purchased property. In addition, the plaintiff was to
earn an administrative fee of $195. The defendants
signed and initialed each page of the agreement on
March 29, 2010. They did not request that any of the
terms of the agreement be changed. Takacs, as the
plaintiff’s authorized agent, signed the agreement on
behalf of the plaintiff.
After the agreement was signed, Takacs showed the
defendants a number of homes in Monroe, Trumbull,
and Fairfield, including 77 Russ Road (Russ Road prop-
erty) in Trumbull. The defendants submitted an offer
to purchase the Russ Road property, but the transaction
was not consummated because a bank appraisal failed
to support the purchase price and mortgage financing
contingencies. Although there was some evidence that
the defendants’ offer was higher than the fair market
value of the property, Peter Zajaczkowski testified that
he was not pressured by Takacs to submit an offer. The
defendants, however, criticized Takacs’ efforts to work
with the bank’s appraiser to ensure that the appraisal
satisfied the mortgage lending requirements. Despite
this criticism, the court found that Takacs acted with
appropriate diligence during the negotiations regarding
the defendants’ attempt to purchase the Russ Road
property.
The court found that following their failed attempt
to purchase the Russ Road property, the defendants’
relationship with Takacs deteriorated. Peter Zajacz-
kowski felt that he could no longer work with her and by
October 15, 2010, he wished to terminate the agreement.
Takacs did not agree to rescind the agreement and
reminded Peter Zajaczkowski of the defendants’ obliga-
tions under the agreement. On November 5, 2010,
Takacs sent an e-mail message to Peter Zajaczkowski
stating: ‘‘[t]o be told that you no longer want to work
with me after I worked so hard stung and made me feel
unappreciated and I told you so. This is not cancellation
of a contract and it is still in force. My frustration at
being rejected does not in any way negate your responsi-
bility to work with my company if you choose to buy
without me or my company, we will be pursuing you
for commission.’’ The court found that Linda Myers,
the plaintiff’s sales manager, was the only individual
within the company with authority to terminate an
agreement. Myers never agreed to terminate the par-
ties’ agreement.
The court also found that despite Peter Zajacz-
kowski’s claim that he terminated the agreement, he
continued to use the listing book provided by the plain-
tiff to research available properties subsequent to Octo-
ber, 2010. On December 21, 2010, he contacted Takacs
to ask her opinion about a piece of property in Trumbull.
Although Peter Zajaczkowski testified that he contacted
Takacs to ask her input ‘‘as a friend,’’ Takacs testified
that she reminded him of their mutual obligations under
the agreement. Takacs wrote in an e-mail to Peter Zajac-
zkowski on December 21, 2010: ‘‘[p]lease also do know
that you need to go through William Raveis for any
house you want to purchase. This is the same as when
you have your house on the market. The agency gets
paid if you sell during a listing contract and gets paid
if you buy during it as well.’’
On January 5, 2011, the defendants submitted a writ-
ten offer to purchase the Blackhouse property through
Chris Carey, a real estate agent not affiliated with the
plaintiff. The defendants had a fully executed purchase
and sale contract with the sellers of the Blackhouse
property by January 21, 2011, and obtained title to the
Blackhouse property on April 12, 2011. The defendants
have not paid the plaintiff a commission with respect
to their purchase of the Blackhouse property.
In resolving the plaintiff’s breach of contract claim
alleged in count one, the court found that the agreement
is entitled, ‘‘Exclusive Right to Represent Buyer Autho-
rization.’’ The term of the agreement was from March
29, 2010 to March 29, 2011. The agreement identifies
the buyers as the defendants and provides in relevant
part: ‘‘You, Buyer(s) [the defendants] appoint Us [the
plaintiff] as Your exclusive real estate Broker to repre-
sent You and assist You in locating and purchasing
or exchang[ing] real property acceptable to You and
generally described as residential real estate located
within the State of Connecticut . . . . During the term
of this Authorization You will work exclusively through
Us in locating and purchasing or exchanging the Prop-
erty.’’ The agreement also states with respect to the
defendant: ‘‘(A) You will tell Us about all past and cur-
rent contacts with any real property or any other real
estate agents and refer all leads or information about
the Property to Us. (B) You will cooperate with Us and
be reasonably available to examine real property.’’
The court found that the agreement also imposed
certain duties on the plaintiff, to wit: ‘‘(A) We will use
diligent efforts to find property within Your specifica-
tions. (B) We will negotiate on Your behalf for terms
and conditions agreeable to You. (C) We will assist and
act in Your interest regarding the location and purchase
or exchange, as the case may be, of the Property.’’
As to the compensation due the plaintiff, the court
found that section VI of the agreement states in part:
‘‘You agree to pay Us a fee of . . . 3 % of the sales or
exchange price of the real property You purchase. This
fee will be waived if We collect from the Seller or Listing
Agency.’’ Also, the agreement provides: ‘‘In addition to
the above compensation and upon passing of title, You
agree to pay [the plaintiff] an Administrative Fee of
$195.00. This fee does not apply to purchases financed
by government loans (VA, CHFA, FHA).’’
On the basis of the evidence presented at trial, the
court found that on November 21, 2010, while the
agreement between the plaintiff and the defendants was
in full force and effect, the defendants entered into
an exclusive right to represent buyer agreement with
Carey, a real estate broker with Carey & Guarrera. On
January 5, 2011, the defendants submitted a written
offer to purchase the Blackhouse property through
Carey, who was not affiliated with the plaintiff. A fully
executed contract to purchase the Blackhouse property
was in effect by January 21, 2011, and the closing took
place on April 12, 2011. The court credited Carey’s testi-
mony that at no time was he aware that the defendants
previously had entered into ‘‘an exclusive right to repre-
sent buyer authorization’’ with the plaintiff.
The court also found that the defendants were not
unsophisticated consumers. Peter Zaczkowski holds a
bachelor of science degree in business management
and a master’s degree in business administration and
finance. He was employed by large corporations, includ-
ing Morgan Stanley Fund Services and Deloitte & Tou-
che. Peter Zaczkowski was very engaged in the process
of researching and locating potential homes to pur-
chase. The court found that the defendants’ claim that
they were forced into signing the agreement and that
they could not negotiate different terms was not
credible.
The court concluded, therefore, that the defendants’
actions constituted a breach of the agreement that they
had entered into with the plaintiff. As a consequence
of the defendants’ breach of the agreement, the court
awarded the plaintiff damages of $12,300 pursuant to
the agreement, which provides that the defendants
agree to pay the plaintiff ‘‘3 [percent] of the sales or
exchange price of the real property [they] purchase[d]
. . . upon passing of title . . . .’’4
The court, however, found in favor of the defendants
on the plaintiff’s counts of fraudulent misrepresentation
and breach of the covenant of good faith and fair deal-
ing.5 With respect to the defendants’ counterclaims,
breach of contract and breach of the covenant of good
faith and fair dealing, the court found that the defen-
dants failed to meet their burden of proof.
On March 5, 2015, the defendants filed a motion for
reargument and reconsideration (motion to reargue) of
the judgment for the plaintiff on its breach of contract
claim. The defendants argued that the plaintiff was not
entitled to be paid 3 percent of the purchase price of
the Blackhouse property because the transfer of title
occurred after the term of the agreement. Moreover,
the defendants argued that the contract into which they
entered for the Blackhouse property was unenforceable
as it was illusory. The plaintiff objected to the motion
to reargue on the ground that the motion to reargue
had failed to identify a case or principle of law that the
court had overlooked. The court denied the motion to
reargue on the ground that the defendants had failed
to identify any new issue or principle of law or appellate
authority that was not previously raised and considered
by the court in its memorandum of decision.
The defendants appealed on April 6, 2015. On April
15, 2015, the court awarded the plaintiff attorney’s fees
and costs in the amount of $12,293, and the defendants
filed an amended appeal. Additional facts shall be set
forth as necessary. We now turn to the defendants’
claims on appeal.
I
The defendants first claim that the court erred in
concluding that they breached their agreement with the
plaintiff by entering into ‘‘[a] fully executed contract’’
to purchase the Blackhouse property during the term
of the agreement when the contract to purchase the
Blackhouse property was illusory, unenforceable, and
not a contract as a matter of law. We need not decide
this claim because the court found that the defendants
breached the agreement on other grounds.
Our review of the defendants’ claim requires us to
construe the contract. ‘‘The standard of review for the
issue of contract interpretation is well established.
When . . . there is definitive contract language, the
determination of what the parties intended by their
contractual commitments is a question of law. . . .
Accordingly, our review is plenary. . . . [W]here the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision; where the factual basis
of the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.’’ (Citation omitted;
internal quotation marks omitted.) Giedrimiene v.
Emmanuel, 135 Conn. App. 27, 34, 40 A.3d 815 (2012).
Following oral argument in this court, we sua sponte
ordered the trial court to articulate its decision.6 The
court issued its articulation on December 16, 2016. The
court found that the parties entered into an exclusive
buyer representation agreement. Section V (B) of the
agreement states that the defendants ‘‘represent that
[they] have not signed and will not sign any representa-
tion authorization or agreements which are in effect
during the term of this Authorization with any other
broker or brokerage firm for the location, purchase or
exchange of residential real estate located in the Towns
identified . . . .’’
The court also stated that on November 21, 2010,
while the agreement was in full force and effect, ‘‘the
defendants entered into another exclusive buyer repre-
sentation agreement with another real estate broker,’’
Carey. The defendants never advised Carey that they
had entered into the agreement with the plaintiff. If
Carey had been made aware of the agreement, he would
not have entered into an agreement with the defendants.
The court found that, by entering into an agreement
with Carey, the defendants breached the provisions of
section V (B) of the agreement.
The court further found that section I (A) of the
agreement provided that the defendants had appointed
the plaintiff to be their ‘‘exclusive real estate Broker
to represent [them] and assist [them] in locating and
purchasing or exchang[ing] real property acceptable to
[them] . . . .’’ The defendants also agreed that, during
the term of the agreement, they would ‘‘work exclu-
sively through [the plaintiff] in locating and purchasing
or exchanging the Property.’’ Section IV (A) of the
agreement provided that the defendants ‘‘will tell [the
plaintiff] about all past and current contacts with any
real property or any other real estate agents and refer all
leads or information about the Property’’ to the plaintiff.
The court found that the defendants breached the provi-
sions of sections I (A) and IV (A) of the agreement
when they knowingly entered into the agreement with
Carey while the agreement with the plaintiff was in
effect.
Pursuant to Carey’s testimony, the court found that
the defendants utilized his agency to view properties
that they had determined would meet their needs. On
January 5, 2011, with Carey acting as their agent, the
defendants submitted an offer to purchase the Black-
house property. On January 21, 2011, the defendants
executed a contract to purchase the Blackhouse prop-
erty with Carey acting as their exclusive agent. At no
time did the defendants contact the plaintiff to express
their interest in the Blackhouse property, and at no time
did they use the plaintiff as their broker to purchase
that property. Takacs had sent e-mail messages to the
defendants on more than one occasion to remind them
that the agreement had not been cancelled and that, if
the defendants wished to purchase a house, they had
to use the plaintiff as their agent. The defendants pro-
ceeded to work with Carey despite those reminders.
The court found that, when the defendants failed to
use the plaintiff as their exclusive real estate broker,
and, when during the term of the agreement, the defen-
dants did not work exclusively through the plaintiff in
locating and purchasing the Blackhouse property, the
defendants breached the provisions of section I (A) of
the agreement. The court found that when the defen-
dants did not ‘‘refer all leads or information’’ about the
Blackhouse property to the plaintiff, they breached the
provisions of section IV (A) of the agreement.
The court also articulated on ‘‘which of the defen-
dants’ actions found to constitute breach of the
agreement’’ it awarded damages to the plaintiff. The
court found that the defendants entered into an
agreement with Carey while the agreement with the
plaintiff was in effect, did not inform Carey of the exis-
tence of the agreement the defendants had with the
plaintiff, and did not inform the plaintiff of their
agreement with Carey. The defendants did not use the
plaintiff as their exclusive real estate broker to repre-
sent them in locating and purchasing the Blackhouse
property, nor did they work exclusively through the
plaintiff to locate and purchase that property. The
defendants did not refer leads or information about the
Blackhouse property to the plaintiff.
The court articulated that it awarded damages to the
plaintiff pursuant to section VI of the agreement. The
agreement required the defendants to pay the plaintiff
a fee of 3 percent of the sales price of the real property
that they purchased. The court awarded damages to
the plaintiff as a result of the defendants’ entering into
an agreement with Carey during the term of their
agreement with the plaintiff. The court also awarded
damages as a result of the defendants’ negotiating and
entering into a binding contract to purchase and ulti-
mately buy the Blackhouse property for $410,000. The
closing on the Blackhouse property did not take place
until April 12, 2011, which was beyond the termination
date of agreement. Nonetheless, the defendants negoti-
ated and entered into an enforceable contract to pur-
chase that property during the time their agreement
with the plaintiff was in effect. The defendants actively
participated in the process of identifying prospective
properties. They frequently used their access to the
plaintiff’s resources to identify new properties that
came to market that may have met their housing needs.
The court specifically rejected the defendants’ argu-
ment that they were not aware of or did not understand
their obligations—including their obligation to pur-
chase a home using the plaintiff as their exclusive real
estate agent—under the agreement.
Although the court found that the defendants
breached the agreement with plaintiff by entering into
an enforceable contract to purchase the Blackhouse
property during the time their agreement with the plain-
tiff was in effect, that was not the only basis for its
finding that the defendants breached their agreement
with the plaintiff. The court found other ways in which
the defendants violated the agreement that led proxi-
mately to their finding and eventually purchasing the
Blackhouse property. To wit: the court found that the
defendants breached the agreement by entering into an
exclusive agreement with Carey while the agreement
with the plaintiff was still in effect; they did not inform
Carey of the existence of their agreement with the plain-
tiff; they did not use the plaintiff as their exclusive
real estate broker to represent them and assist them in
locating and purchasing the Blackhouse property; they
did not work exclusively through the plaintiff to locate
and purchase the Blackhouse property; and they did
not refer information about the Blackhouse property
to the plaintiff. On appeal, the defendants do not claim
that any of the court’s findings, other than the enforce-
ability of the contract to purchase the Blackhouse prop-
erty, are clearly erroneous or that the court’s
conclusions are not legally correct.
On the basis of our review of the record and the
court’s articulation, we conclude that the court did not
award damages to the plaintiff merely because the
defendants entered into a fully executed contract to
purchase the Blackhouse property in January, 2011,
which was within the term of their agreement with the
plaintiff.7 The court found that the defendants breached
numerous provisions of the contract during the term
of the contract, but two are particularly significant,
namely, they entered into an agreement with Carey and
they executed a contract to purchase the Blackhouse
property. Consequently, the defendants damaged the
plaintiff in that their breach of the agreement led
directly and proximately to the plaintiff’s loss of a com-
mission. The court properly measured the damages by
3 percent of the purchase price of the Blackhouse prop-
erty, a commission the plaintiff would have earned if
the defendants had continued to work with Takacs,
or another of the plaintiff’s agents, as the agreement
required them to do. We, therefore, conclude that the
court’s award of damages was legally correct. The
defendants’ first claim, therefore, fails.
II
The defendants’ second claim is that the court
improperly awarded the plaintiff attorney’s fees without
holding an evidentiary hearing. We disagree.
The following facts are relevant to our resolution of
the defendants’ claim. In its memorandum of decision,
the court stated that the agreement ‘‘permits the plain-
tiff to recover costs and attorney’s fees. The plaintiff
shall submit an affidavit setting forth its claim for these
expenses.’’ On March 9, 2015, the plaintiff’s counsel
filed an affidavit seeking $11,984 for attorney’s fees and
$2602.80 for costs. On March 16, 2015, the court ordered
the plaintiff to submit a more detailed accounting of
both time spent and costs incurred on or before March
30, 2015. The plaintiff complied with the order by sub-
mitting approximately six pages of detailed billing and
cost records. On April 6, 2015, the defendants filed an
appeal to this court.8 On March 9, 2015, the plaintiff
filed a bill of costs, which the clerk of the court rejected
because the present case was on appeal to this court.
On April 15, 2015, the court issued a memorandum
of decision regarding attorney’s fees. In its memoran-
dum of decision, the court summarized the nature of
the case and its judgment in favor of the plaintiff. It
stated: ‘‘A trial before the court commenced on July
15, 2014, and ended on October 17, 2014. Although there
were five days of evidence, only two days were full trial
days.’’ The court found that the plaintiff submitted an
affidavit of fees and expenses and, thereafter, on March
30, 2015, submitted time and billing records detailing
the requested attorney’s fees and expenses. The plaintiff
was seeking attorney’s fees in the amount of $11,984
and costs of $2602.80. The court cited the legal basis
for the award of attorney’s fees in a case such as the
present one. ‘‘[A] contract clause providing for reim-
bursement of ‘incurred’ fees permits recovery upon the
presentation of an attorney’s bill, so long as that bill is
not unreasonable upon its face and has not been shown
to be unreasonable by countervailing evidence or by
the exercise of the trier’s own expert judgment.’’ Storm
Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440
A.2d 306 (1982).
The court found that the invoice submitted by the
plaintiff was not unreasonable on its face. Plaintiff’s
trial counsel billed at the rate of $125 per hour for out-
of-court time and $200 per hour for in-court time. The
court found the rate to be reasonable and that the num-
ber of hours billed reflected the fact that the trial
occurred over five separate trial days or parts thereof.
Significantly, the court found that the defendants did
not file any objection with respect to the plaintiff’s
filings as to attorney’s fees and costs. The court found
the request for attorney’s fees to be reasonable and
awarded the plaintiff the sum of $11,984.
As to costs, the court found that the plaintiff had
submitted an invoice in the amount of $2602.80, but that
the majority of the expenses were for the acquisition of
transcripts of the court proceedings. The court did not
request a transcript be submitted posttrial. The court,
therefore, awarded costs of $309 relating to marshal
service fees. The total fees and costs awarded by the
court was $12,293.
On April 24, 2015, the defendants filed a motion to
reargue and for reconsideration of the court’s award
of attorney’s fees. The defendants claimed that the con-
tract on which the court relied to award attorney’s fees
is illusory and failed to comply with General Statutes
§ 20-325a (b); in the alternative, if the contract on which
the court relied to award attorney’s fees is a legally
enforceable agreement, the defendants claimed that the
court erred in awarding attorney’s fees without first
conducting an evidentiary hearing, and the contract
is a consumer contract, the present action was not
commenced by an attorney who is not a salaried
employee of the plaintiff and the amount awarded is
in excess of the 15 percent permitted by § 42-150aa (b).
The defendants asked the court to vacate its award of
attorney’s fees. The court did not rule on the defendants’
motion to reargue, and the defendants have taken no
action to secure a ruling on the motion. On December
23, 2015, the defendants amended their appeal to chal-
lenge the court’s award of attorney’s fees.9
We now turn to the standard of review and law perti-
nent to the awarding of attorney’s fees by the trial court.
‘‘A trial court’s decision to award attorney’s fees is
reviewable for abuse of discretion. . . . [When
determining] reasonableness of requested attorney’s
fees . . . more than [a] trial court’s mere general
knowledge is required for an award of attorney’s fees.
. . . The burden of showing reasonableness rests on
the party requesting the fees, and there is an undisputed
requirement that the reasonableness of attorney’s fees
and costs must be proven by an appropriate evidentiary
showing. . . . [T]here must be a clearly stated and
described factual predicate for the fees sought, apart
from the trial court’s general knowledge of what consti-
tutes a reasonable fee. . . . That factual predicate
must include a statement of the fees requested and a
description of services rendered.’’ (Internal quotation
marks omitted.) Gagne v. Vaccaro, 118 Conn. App. 367,
371–72, 984 A.2d 1084 (2009); see also Commission on
Human Rights & Opportunities v. Sullivan, 285 Conn.
208, 237–38, 939 A.2d 541 (2008).
The defendants’ claim on appeal is that the court’s
award of attorney’s fees must be reversed because the
court did not hold an evidentiary hearing and provide an
opportunity for them to challenge the reasonableness of
the plaintiff’s request for attorney’s fees. Our resolution
of the defendants’ claim turns on the timeliness of their
objection to the plaintiff’s request for attorney’s fees
and costs. See Smith v. Snyder, 267 Conn. 456, 480–81,
839 A.2d 589 (2004). The court found that the defendants
never filed an objection to either of the plaintiff’s
requests for attorney’s fees, that is either the plaintiff’s
initial affidavit filed on March 9, 2015, or its more
detailed request filed on March 30, 2015. The court,
therefore, was under no obligation to hold a hearing at
which the defendants could litigate fully the reasonable-
ness of the attorney’s fees sought. See id., 479–80 n.14.
It is an ‘‘undisputed requirement that the reasonable-
ness of attorney’s fees and costs must be proved by an
appropriate evidentiary showing.’’ (Internal quotation
marks omitted.) Barco Auto Leasing Corp. v. House,
202 Conn. 106, 121, 520 A.2d 162 (1987). Our Supreme
Court has noted that ‘‘courts have a general knowledge
of what would be reasonable compensation for services
which are fairly stated and described . . . and that
[c]ourts may rely on their general knowledge of what
has occurred at the proceedings before them to supply
evidence in support of an award of attorney’s fees.’’
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) Smith v. Snyder, supra, 267 Conn.
471. ‘‘Even though a court may employ its own general
knowledge in assessing the reasonableness of a claim
for attorney’s fees, we also have emphasized that no
award for an attorney’s fee may be made when the
evidence is insufficient.’’ (Internal quotation marks
omitted.) Id., 472. A party need not, however, present
expert testimony regarding attorney’s fees. Id., 473. A
trial court properly may rely on a financial affidavit as
well as its own general knowledge and involvement
with the trial to ascertain a reasonable attorney’s fee.
Id., 474.
In Shapero v. Mercede, 262 Conn. 1, 10, 808 A.2d 666
(2002), our Supreme Court concluded that the court’s
‘‘general knowledge [of what constitutes a reasonable
attorney’s fee] and the referee’s unchallenged findings
relevant to the value of the plaintiff’s services provided
sufficient support for the challenged finding that $275
per hour was an appropriate measure of the value of
those services.’’ (Emphasis added; internal quotation
marks omitted.)
‘‘[O]ur case law demonstrates, to support an award
of attorney’s fees, there must be a clearly stated and
described factual predicate for the fees sought, apart
from the trial court’s general knowledge of what consti-
tutes a reasonable fee.’’ Smith v. Snyder, supra, 267
Conn. 477. ‘‘[A] threshold evidentiary showing is a pre-
requisite to an award of attorney’s fees.’’ Id. ‘‘[W]hen a
court is presented with a claim for attorney’s fees, the
proponent must present to the court at the time of trial
or, in the case of a default judgment, at the hearing
in damages, 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 attor-
ney’s fees and affords the opposing party an opportunity
to challenge the amount requested at the appropriate
time.’’ (Footnote omitted.) Id., 479.
Our review of the plaintiff’s March 30, 2015 filing
of time records and description of services rendered
indicates that the plaintiff met its burden of providing
a factual predicate upon which the court could deter-
mine an award of attorney’s fees. The defendants did
not object to the plaintiff’s initial affidavit for attorney’s
fees or its subsequent filing in response to the court’s
order for more information, thereby triggering a hearing
to litigate the reasonableness of the attorney’s fees
requested. This situation is similar to that in Smith v.
Snyder, supra, 267 Conn. 480. In Smith, our Supreme
Court affirmed the trial court’s award of $20,000 in
attorney’s fees ‘‘because the defendants did not oppose
or otherwise take any action in response to the plain-
tiffs’ request for $25,000 in fees in their post-damages
hearing brief. Although the proponent bears the burden
of furnishing evidence of attorney’s fees at the appro-
priate time, once the plaintiff in this case did make such
a request, the defendants should have objected or at
least responded to that request. Had the defendants
demonstrated any interest in objecting to the plaintiffs’
request for attorney’s fees, the trial court would have
been obligated to grant the defendants an opportunity
to be heard.’’ (Footnote omitted.) Id., 480–81. Our
Supreme Court affirmed the award of attorney’s fees
in Smith ‘‘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 plaintiff’s
request for attorney’s fees, effectively acquiesced in
that request, and, consequently, they now will not be
heard to complain about that request.’’ (Emphasis in
original.) Id., 481.
In the present case, the plaintiff submitted an affidavit
requesting costs and attorney’s fees on March 9, 2015.
In response to the affidavit, the court ordered the plain-
tiff to submit a more detailed affidavit by March 30,
2015. The plaintiff filled a more detailed affidavit as
ordered by the court. On April 6, 2015, the defendants
filed an appeal. Thereafter, the court issued a memoran-
dum of decision on April 15, 2015. The defendants never
objected to the plaintiff’s request for attorney’s fees
until they filed a motion to reargue and for reconsidera-
tion after the court had ruled on the plaintiff’s detailed
time records. Despite the fact that the defendants filed
an appeal on April 6, 2015, they did not amend their
appeal to challenge the attorney’s fees awarded until
December 23, 2015. Because the defendants failed to
timely object to the award of attorney’s fees that would
have triggered their right to litigate the reasonableness
of the fees requested, we conclude that the court did
not abuse its discretion in awarding the plaintiff attor-
ney’s fees without holding an evidentiary hearing.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s complaint sounds in three counts: breach of contract,
fraud and misrepresentation, and breach of the implied covenant of good
faith and fair dealing. The defendants also alleged two counterclaims: breach
of contract and breach of the covenant of good faith and fair dealing.
2
The defendants asserted the following special defenses: anticipatory
breach of the agreement, mutual rescission of the agreement and that the
agreement fails to comply with General Statutes § 20-325a.
3
In count one of their counterclaim, the defendants alleged that the plain-
tiff was responsible for their inability to get a mortgage for 77 Russ Road
in Trumbull, which caused them to suffer money damages. In count two of
their counterclaim, the defendants alleged that the plaintiff’s conduct was
wilfull, wanton, and malicious and, therefore, breached the covenant of
good faith and fair dealing of the agreement.
4
The court did not award an administrative fee, which was a contingent
fee. No evidence was presented as to how the defendants financed the
purchase of the Blackhouse property.
5
The court also addressed the defendants’ special defenses. In their first
special defense, the defendants alleged that the agreement was not enforce-
able pursuant to General Statutes § 20-325a (b), which by its express lan-
guage prohibits the bringing of an action to recover a real estate commission
unless services were performed pursuant to a written contract. See Thornton
Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230, 439 A.2d 946 (1981) (statute
has been strictly construed). At trial, the defendants claimed that the
agreement is void because it fails to ‘‘show the date [on which such] contract
was entered into or such authorization given’’ as provided by § 20-325a (b)
(3). (Internal quotation marks omitted.) The court found it undisputed,
pursuant to the testimony of Iowna Zajaczkowski and the type written text
of the agreement, that the defendants and Takacs signed the agreement on
March 29, 2011.
In their second special defense, the defendants alleged that the plaintiff
anticipatorily breached the agreement. ‘‘Anticipatory breach of contract
occurs when a party communicates a definite and unequivocal manifestation
of intent not to render the promised performance at the contractually agreed
upon time.’’ Koski v. Eyles, 37 Conn. Supp. 861, 862, 440 A.2d 317 (1981).
The court found that there was a breakdown in the relationship between
Takacs and the defendants, but that Takacs made clear that there were
other agents of the plaintiff who were willing to work with the defendants
to locate a suitable property. The evidence established that the plaintiff did
not engage in conduct constituting an anticipatory breach of the agreement.
The court further found that the evidence did not support the defendants’
third special defense of mutual rescission. ‘‘A definite election to rescind a
contract is final and operates as a waiver of any claim for damages for
breach of the contract. A rescission is effective when, in addition to a
restoration of status quo, an intention on the part of both parties that the
contract be rescinded exists.’’ Gordon v. Indusco Management Corp., 164
Conn. 262, 266, 320 A.2d 811 (1973). Myers was clear and unequivocal that
the plaintiff never agreed to rescind the contract. Moreover, Takacs explicitly
informed Peter Zajaczkowski that the plaintiff did not consent to a rescission.
The defendants raised a fourth defense for the first time in their posttrial
brief, in which they claimed that the agreement was unenforceable because
it is a contract of adhesion and contains terms that are unreasonable and
unconscionable. The court found, as a matter of law, that the fourth special
defense was not properly before the court as it had not been specially
alleged. See Practice Book § 10-50. If the defendants had intended to rely
on this theory, they were required to plead it initially or seek to amend their
existing special defenses.
6
We sua sponte ordered the trial court, pursuant to Practice Book § 60-
5, ‘‘to articulate which of the defendants’ actions constituted a breach of
the agreement they entered into with the plaintiff. Also, the court is ordered
to articulate upon which of the defendants’ actions found to constitute
breach of the agreement between the [plaintiff] and the defendants did the
court award damages to the plaintiff. The trial court shall file a written
articulation of its decision with the Appellate Court Clerk [within thirty
days of issuance of notice of this order].’’
7
Because we conclude that there were factual and legal bases on which
the court properly found that the defendants breached the agreement and
awarded the plaintiff damages, we need not decide whether the contract
to purchase the Blackhouse property was illusory, unenforceable, and not
a contract as a matter of law, as the defendants claim.
8
See Hylton v. Gunter, 313 Conn. 472, 479, 97 A.3d 970 (2014) (judgment
is final for purposes of appeal when trial court has awarded, but not yet
determined amount of, attorney’s fees); Paranteau v. DeVita, 208 Conn.
515, 523, 544 A.2d 634 (1988) (judgment for purposes of appeal final even
though amount of attorney’s fees to be determined).
9
Practice Book § 61-9 provides in relevant part: ‘‘Should the trial court,
subsequent to the filing of a pending appeal, make a decision that the
appellant desires to have reviewed, the appellant shall file an amended
appeal within twenty days from the issuance of notice of the decision as
provided for in Section 63-1.’’ The plaintiff did not object to the untimely
filing of the defendants’ amended appeal.
10
The defendants also claim that the amount of the court’s award of
attorney’s fees was improper pursuant to § 42-150aa. The defendants also
failed to timely raise this claim in the trial court, and we decline to review
it on appeal.