Francini v. Riggione ( 2019 )

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PETER J. FRANCINI, TRUSTEE, ET AL. v.
NICHOLAS A. RIGGIONE
(AC 41528)
DiPentima C. J., and Keller and Olear, Js.
Syllabus
The plaintiffs, trustees of a certain trust, sought to recover damages from
the defendant for, inter alia, breach of contract. The plaintiff F had
purchased an undeveloped lot from the defendant in the town of Milford
with views of Long Island Sound, Charles Island, and Milford Harbor.
At closing, the parties entered into an agreement pursuant to which the
defendant was to maintain certain height restrictions on his property,
regrade certain topsoil and trim certain tree limbs. After attempts to
resolve disputes related to the topsoil and tree limbs had failed, the
plaintiffs commenced this action. Following a trial, the court rendered
judgment in favor of the plaintiffs with respect to their breach of contract
claims and awarded them $4100 in damages, but it denied their request
for injunctive and equitable relief with respect to their claim of private
nuisance, and determined that the plaintiffs’ two principal claims for
injunctive relief regarding the tree limbs and the pile of topsoil had
become moot because the defendant trimmed the relevant limbs and
leveled the topsoil so that it no longer obstructed F’s view. Subsequently,
the court held an evidentiary hearing concerning a motion for attorney’s
fees filed by the plaintiffs in accordance with a provision of the parties’
contract, which provided that the prevailing party in litigation enforcing
the agreement would be entitled to recover reasonable attorney’s fees
and court costs. The trial court awarded the plaintiffs $93,405 in attor-
ney’s fees and costs and determined that the plaintiffs were the prevailing
party under the contract. On the defendant’s appeal to this court, held:
1. The trial court did not abuse its discretion by not discounting the award
of attorney’s fees on account of the small sum awarded to the plaintiffs
for the breach of contract claim; although the defendant claimed that
a proper analysis of the factors listed in rule 1.5 (a) of the Rules of
Professional Conduct would compel a significant downward departure
from the plaintiffs’ initial lodestar calculation, which is the initial esti-
mate of a reasonable attorney’s fee calculated by multiplying the number
of hours expended on litigation times a reasonable hourly rate, because
the damages awarded were insignificant in relation to the court’s award
of attorney’s fees, the plaintiffs had a legitimate claim for attorney’s
fees pursuant to the contract, and the fact that the defendant rendered
the plaintiffs’ claims for injunctive relief under the breach of contract
claims moot by performing as required under the contract well into the
trial did not obviate the plaintiffs’ legitimate claim for attorney’s fees
pursuant to the contract.
2. The trial court abused its discretion in awarding attorney’s fees with
respect to the plaintiff’s private nuisance claim on which the plaintiffs did
not prevail; although a party may recover attorney’s fees for unsuccessful
claims that are inextricably intertwined and involve a common basis in
fact or legal theory with the successful claims, the private nuisance and
breach of contract claims in the present case were factually and legally
distinct, and were not inextricably intertwined or based on a common
legal theory.
Argued April 15—officially released October 1, 2019
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 Ansonia-Milford, where
the defendant filed a counterclaim; thereafter, the mat-
ter was tried to the court, Hon. John W. Moran, judge
trial referee; judgment in part for the plaintiffs on the
complaint and in part for the defendant on the counter-
claim; subsequently, the court granted the motion for
attorney’s fees filed by the plaintiffs, and the defendant
appealed to this court. Reversed in part; further pro-
ceedings.
Sean M. Dunne, for the appellant (defendant).
Charles J. Willinger, Jr., with whom, on the brief,
were Ann Marie Willinger and James A. Lenes, for the
appellees (plaintiffs).
Opinion
KELLER, J. This appeal arises from a breach of con-
tract and private nuisance action brought by the plain-
tiffs, Peter J. Francini, Trustee, and Donald W. Ander-
son, Trustee, on behalf of the Peter J. Francini 1992
Revocable Family Trust,1 against the defendant, Nicho-
las A. Riggione. After a five day trial to the court, the
court rendered judgment in favor of the plaintiffs on
their breach of contract claims, but denied their request
for injunctive and equitable relief on their private nui-
sance claim. The defendant appeals from the court’s
subsequent award, after determining that the plaintiffs
were the prevailing party, of approximately $90,000 in
attorney’s fees.2 On appeal, the defendant essentially
claims that the court abused its discretion in calculating
the award of attorney’s fees (1) because in awarding
fees to the plaintiffs on their claims related to a breach
of contract between the parties, a proper analysis of the
factors listed in rule 1.5 (a) of the Rules of Professional
Conduct3 would compel a significant downward depar-
ture from the plaintiffs’ initial lodestar calculation; and
(2) when it awarded fees for a private nuisance claim
on which the plaintiffs did not prevail.4 We agree with
the defendant that the court abused its discretion in
awarding attorney’s fees for a claim on which the plain-
tiffs did not prevail. Accordingly, we reverse the judg-
ment of the trial court in part and remand the case for
further proceedings consistent with this opinion.
The record reveals the following relevant facts, found
by the trial court or otherwise undisputed, and proce-
dural history. The defendant was the owner of a three
lot subdivision on Gulf Street, which abuts Milford Har-
bor and Long Island Sound, in the city of Milford. In
2012, the defendant agreed to sell one of the undevel-
oped lots (lot 3) for approximately $800,000 to Francini
so that he could build a home with views of Long Island
Sound, Charles Island, and the Milford Harbor. The
initial closing date was set for July 18, 2012. The parties
failed to close by the July closing date, and, thereafter,
their attorneys drew up a second, more comprehensive
agreement with a new closing date of September 14,
2012 (lawyers’ contract). The parties subsequently
failed to close in September, 2012.5
In March, 2014, approximately eighteen months after
the second closing date, the defendant conveyed title to
Francini. At the March, 2014 closing, the parties entered
into a final agreement (postclosing agreement),6 and
memorialized the defendant’s remaining obligations rel-
evant to lot 3. Among other things, the contract provided
that the defendant was to maintain certain height
restrictions on his property (lot 2), level and regrade
whatever topsoil remained on lot 2 after the construc-
tion of Francini’s home, and trim certain limbs of a
large tree located on lot 2 that obscured Fancini’s view
of Long Island Sound and Charles Island.
On September 22, 2015, after subsequent attempts to
resolve disputes related to the topsoil and tree limbs
had failed, the plaintiffs commenced the present action.
In the operative complaint, the plaintiffs sought money
damages and equitable and injunctive relief for claims
sounding in breach of contract and private nuisance.
The plaintiffs alleged that, among other things, the
defendant had breached the parties’ contract by refus-
ing to trim certain limbs from the tree and refusing to
level the topsoil pile on lot 2, which, at its peak, reached
a height of approximately thirteen feet and significantly
obscured Francini’s view of Long Island Sound. In their
prayer for relief, the plaintiffs’ primary request was that
the court provide them with a mandatory injunction
requiring the defendant to ‘‘prune the lower limbs’’ of
the tree and ‘‘remove or grade’’ the topsoil in order to
restore lot 2 to its ‘‘natural topography.’’7 The defendant
filed a counterclaim seeking damages for Francini’s
‘‘[removal of] excess subsurface gravel and top soil
material from [lot 3],’’ and his subsequent failure to
stockpile said materials on lot 2.
After a five day trial, the court found in favor of the
plaintiffs with respect to their breach of contract claims
and awarded them $4100 in damages.8 The court, how-
ever, denied the plaintiffs’ request for injunctive and
equitable relief with respect to their claim of private
nuisance because the relief requested in their posttrial
brief under this claim was not sufficiently pleaded in
the operative complaint, and, thus, the defendant was
not given adequate notice as to the specific relief being
sought.9 The court further concluded that the plaintiffs’
two principal claims for injunctive relief regarding the
tree limbs and the pile of topsoil had become moot
after the fourth day of trial because the defendant
trimmed the relevant limbs and leveled the topsoil so
that they were no longer obscuring Francini’s view.
Thereafter, the court held an evidentiary hearing over
the course of two days on the plaintiffs’ timely motion
for attorney’s fees.10 In its memorandum of decision on
attorney’s fees, the court determined that, even though
the plaintiffs did not prevail on their nuisance claim,
and that their principal claims for injunctive relief under
their breach of contract claims were moot, the plaintiffs
were the prevailing party, and that an award of fees
was warranted pursuant to paragraph twenty-nine of
the lawyers’ contract, which provided in relevant part:
‘‘[I]n the event of any litigation brought to enforce any
material provision of this Agreement, the prevailing
party shall be entitled to recover its reasonable [attor-
ney’s] fees and court costs from the other party.’’ The
court further concluded that no downward departure
from the initial lodestar calculation was warranted and,
thereafter, awarded the plaintiffs $93,405 in attorney’s
fees and costs. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The defendant claims that the court abused its discre-
tion in its award for attorney’s fees. In his view, had
the court properly analyzed all of the factors in rule 1.5
(a) of the Rules of Professional Conduct,11 a significant
downward adjustment from the plaintiffs’ initial lode-
star calculation12 would be warranted. Specifically, the
defendant argues that the court must have ignored the
fourth factor, which provides that a court should con-
sider ‘‘[t]he amount involved and the results obtained,’’
because if the court had considered it, it would have
reduced the award accordingly.13 We find the defen-
dant’s argument unpersuasive.
The following additional facts are relevant to the
defendant’s claim. After the court concluded that the
plaintiffs were the prevailing party, the defendant
argued in his opposition to the plaintiffs’ motion for
attorney’s fees, as he does on appeal, that the case did
not involve novel or difficult questions of law and that
the breach of contract damages awarded were insignifi-
cant in relation to the court’s award for attorney’s fees,
and, therefore, a downward departure from the initial
lodestar calculation was warranted. The defendant fur-
ther argued that the entire litigation was unnecessary
because the material facts were not in dispute and the
plaintiffs’ claims for injunctive relief were moot.
In response, the plaintiffs countered that, ‘‘[only] after
the filing of this lawsuit and after the initial close of
evidence in this case, and after the expenditure of [a]
significant amount of money on attorney’s fees by the
[plaintiffs, did] the defendant remove the offensive tree
limbs and . . . topsoil pile. . . . The fact of the matter
is that the need for injunctive relief and specific perfor-
mance concerning these issues was rendered moot,
only after substantial litigation of the issues, when the
defendant ultimately complied with his contractual
responsibilities.’’ The plaintiffs further argued that,
‘‘while the amount of monetary damages involved in
the [plaintiffs’] complaint was minimal, the overriding
focus of the case from day one was to return to
[Francini] his million dollar view of Long Island Sound,
a goal that was accomplished solely through the institu-
tion of the lawsuit.’’
After the two day evidentiary hearing on the plaintiffs’
motion, the court issued its memorandum of decision,
concluding that after ‘‘carefully review[ing] the factors
outlined in [both] § 1.5 (a) of the Rules of Professional
Conduct and . . . Johnson v. Georgia Highway
Express, Inc., [488 F.2d 714, 717–19 (5th Cir. 1974)],’’
the award of attorney’s fees to the plaintiffs was war-
ranted. In addressing the defendant’s claim that the
case did not present a novel or difficult question of
law, the court noted that ‘‘the law on each . . . [count]
individually may not be sophisticated, but taken
together as intertwined with the facts [of this case], the
law borders on . . . complicated.’’ With respect to the
defendant’s argument that litigating the issue of injunc-
tive relief was unnecessary because the issues were
ultimately moot, the court also identified that ‘‘[the
defendant’s] suggestion [that the fees were unnecessary
because the issues became moot] lacks merit. The initial
thrust and purpose of this lawsuit was to have the
topsoil on lot 2 leveled. The trial commenced prior to,
and was well underway, when [the defendant ulti-
mately] leveled the topsoil and pruned the tree adjacent
to Milford Harbor.’’14
We next turn to the applicable legal principles that
govern the disposition of the defendant’s claim. ‘‘An
award of attorney’s fees is not a matter of right. Whether
any award is to be made and the amount thereof lie
within the discretion of the trial court, which is in the
best position to evaluate the particular circumstances
of a case. . . . A court has few duties of a more delicate
nature than that of fixing counsel fees. The issue grows
even more delicate on appeal; we may not alter an
award of attorney’s fees unless the trial court has clearly
abused its discretion, for the trial court is in the best
position to evaluate the circumstances of each case.
. . . Because the trial court is in the best position to
evaluate the circumstances of each case, we will not
substitute our opinion concerning counsel fees or alter
an award of attorney’s fees unless the trial court has
clearly abused its discretion. . . .
‘‘With respect to the relevant legal principles, we have
often explained that Connecticut adheres to the Ameri-
can rule regarding attorney’s fees. . . . Under the
American rule, in the absence of statutory or contrac-
tual authority to the contrary, a successful party is not
entitled to recover attorney’s fees or other ordinary
expenses and burdens of litigation . . . . There are
few exceptions. For example, a specific contractual
term may provide for the recovery of attorney’s fees
and costs . . . .’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) WiFiLand, LLP v.
Hudson, 153 Conn. App. 87, 101–102, 100 A.3d 450
(2014).
Here, paragraph twenty-nine of the lawyers’ contract
provides a specific contractual term for the recovery
of attorney’s fees. It provides in relevant part: ‘‘[I]n the
event of any litigation brought to enforce any material
provision of this Agreement, the prevailing party shall
be entitled to recover its reasonable [attorney’s] fees
and court costs from the other party.’’
‘‘If a contractual provision allows for reasonable
attorney’s fees, [t]here are several general factors which
may properly be considered in determining the amount
to be allowed as reasonable compensation to an attor-
ney. These factors are summarized in [rule 1.5 (a) of
the Rules of Professional Conduct].’’ (Internal quotation
marks omitted). Id., 102–103. ‘‘[T]he commentary to rule
1.5 provides that the factors specified in the rule . . .
are not exclusive’’ and not all may be relevant given a
particular instance. Id. 103. ‘‘[As] [w]e have explained
[previously,] courts . . . 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.’’ (Internal quotation marks omitted.)
Id. For additional guidance in adjusting attorney’s fees,
Connecticut courts have adopted the twelve factors set
forth in Johnson v. Georgia Highway Express, Inc.,
supra, 488 F.2d 717–19.15 See Steiger v. J. S. Builders,
Inc., 39 Conn. App. 32, 37-39, 663 A.2d 432 (1995) (adopt-
ing Johnson factors).
The gravamen of the defendant’s argument in his
opposition to the plaintiffs’ motion for attorney’s fees,
which is nearly identical to his claim now on appeal,
was that the court’s award for attorney’s fees far out-
paced the small sum awarded to the plaintiffs for breach
of contract damages, and when considered in light of
the fact that the plaintiffs’ claim for injunctive relief
due to breach of contract was rendered moot, the
court’s award of attorney’s fees reflected an abuse of
discretion. The defendant’s argument focuses on one
factor, namely, ‘‘the amount involved and the results
obtained.’’ He claims that a proper analysis of this fac-
tor, under the present circumstances, would compel a
significant downward departure from the initial lode-
star calculation, because the award for breach of con-
tract damages was de minimis compared to the court’s
award for attorney’s fees. He further argues that the
present case is distinguishable from a typical case
where attorney’s fees might far outpace actual damages,
such as in a case where a plaintiff acts as a private
attorney general vindicating some public right. We are
not persuaded.
In the context of the present case, it would appear
that the defendant wants us to interpret this factor, in
particular, the words ‘‘results obtained,’’ as functionally
equivalent to ‘‘court awarded contract damages.’’ To
adopt this view would thus imply that the plaintiffs’
costs associated with seeking injunctive relief for
breach of contract, due to the unquantifiable character
of that relief, would be unrecoverable, despite para-
graph twenty-nine of the lawyers’ contract. We decline
to adopt such a narrow view. Critically, as the defendant
concedes, the principal claim in the underlying action
was not for contract damages, but rather it was to
compel his specific performance with respect to remov-
ing certain view-obscuring objects on lot 2. Thus, the
result obtained was precisely the result sought. See
Conservation Commission v. Red 11, LLC, 135 Conn.
App. 765, 786-88, 43 A.3d 244 (2012) (no abuse of discre-
tion when court awarded approximately $390,000 in
attorney’s fees to party exclusively seeking injunctive
relief).
Furthermore, regardless of whether the defendant’s
ultimate performance was court ordered or done by
his own volition, the fact remains that the defendant,
despite his contractual obligations, removed the view-
obscuring impediments only after significant litiga-
tion.16 The fact that the defendant rendered the plain-
tiffs’ claims for injunctive relief under the breach of
contract claims moot by performing as required under
the contract well into trial does not obviate the plain-
tiffs’ legitimate claim for attorney’s fees pursuant to the
contract. On the basis of our review of the record, we
do not conclude that the court abused its discretion by
not discounting the award of attorney’s fees on account
of the small sum awarded to the plaintiffs for the breach
of contract claims. Accordingly, the defendant’s first
claim fails.
II
The defendant further claims that the court abused
its discretion by awarding fees for work performed on
the plaintiffs’ private nuisance claim, on which they did
not prevail.17 Specifically, the defendant contends that
because the plaintiffs did not prevail on their private
nuisance claim, the court’s failure to modify the award
accordingly was an abuse of discretion.18 In response,
the plaintiffs contend that, because both sets of claims
‘‘arose from a single set of underlying facts, [i.e.] the
failure of the defendant to perform in accordance with
the [contract],’’ the failure of their nuisance claim is
not fatal to the court’s award of the full lodestar calcula-
tion. We agree with the defendant that because the
plaintiffs did not prevail on their private nuisance claim,
the court should have excluded fees related to the prep-
aration and presentation of that claim from the award.
The following additional facts are relevant to the
defendant’s claim. In the amended complaint, the plain-
tiffs alleged that the defendant’s property had ‘‘been
cited by the city of Milford Health Department for health
code violations and is in an extreme state of disrepair;
the house located on the property has boarded up win-
dows, debris, deteriorating and compromised porches,
peeling clapboards, and is host to a number of pigeons,
rodents and other opportunistic animals.’’ This disre-
pair has thus ‘‘interfered with [Francini’s] use and an
enjoyment of the [property].’’ In the prayer for relief,
the plaintiffs requested, without specific reference to
the private nuisance claim, that the court grant ‘‘such
other relief within equity and law appertain.’’
At trial, the court heard testimony from both parties
relating to the dilapidated structure located on lot 2.
Both parties testified that during their earlier negotia-
tions, the structure on lot 2 was a point of discussion.
According to Francini’s testimony, the defendant
assured him that the structure, although in disrepair,
was undergoing a historical restoration. The plaintiffs
also presented evidence that the property was subse-
quently the object of a number of complaints from local
residents, who had complained that the structure had
become a refuge for pigeons, rodents and other wild
animals. In response, the defendant produced evidence
demonstrating that after he sold lot 3, his incremental
progress on the lot 2 structure, despite his best efforts,
was the result of the administrative and financial bur-
dens that accompanied restoring the structure to its
historic specifications. The court also heard testimony
that, although the structure was an issue for Francini
when considering whether to purchase lot 3, the con-
tract never reflected any obligations on the part of the
defendant as to the condition or continued renovation
of the structure on lot 2.
Nevertheless, in the plaintiffs’ posttrial brief they
argued: ‘‘In light of the defendant’s promises to
[Francini], it would be unreasonable to allow the defen-
dant to continue his renovations on the . . . premises
at a glacial pace. The dilapidated condition of the . . .
premises has been a constant cause of damage and
annoyance to the plaintiffs. At a minimum, the defen-
dant should be ordered to complete the installation of
a new roof, windows, and exterior siding on the . . .
premises in accordance with applicable building codes,
within ninety days of the court’s ruling.’’
In its memorandum of decision, the court concluded
that ‘‘[n]owhere in the complaint does Francini allege
facts regarding a new roof, windows, and siding on the
defendant’s house that would infer that he is seeking
equitable relief regarding completion of a new roof,
windows and exterior siding on the premises . . . .
Further, Francini does not claim injunctive relief
regarding repairing the residence . . . in his prayer for
relief. Francini’s prayer for relief contains the timeworn
phrase ‘[s]uch other relief within which equity and law
appertain.’ . . . The defendant could not possibly be
put on notice that Francini is seeking relief regarding
the completion of the exterior of the residence on lot
2. Based on the foregoing, the court declines to order
injunctive relief regarding the completion of the resi-
dence on [the defendant’s property].’’ (Footnote
omitted.)
Thereafter, in the defendant’s opposition to the plain-
tiffs’ motion for attorney’s fees, he argued that because
the plaintiffs were unsuccessful on this claim, the court
should reduce the award accordingly. The court, how-
ever, concluded that ‘‘[t]hese issues were intertwined
with the other issues presented in the trial . . . and
the court cannot separate and cull out the precise time
and effort spent on these specific issues.’’ On appeal,
the defendant makes essentially the same argument
that he made in opposition to the plaintiffs’ motion for
attorney’s fees.
This court has reasoned that a party may recover
attorney’s fees for unsuccessful claims, but those claims
must be inextricably intertwined and involve a common
basis in fact or legal theory with the successful claims.
See Conservation Commission v. Red 11, LLC, supra,
135 Conn. App. 787 n.16; see also Perez v. D & L Tractor
Trailer School, 117 Conn. App. 680, 704 n.19, 981 A.2d
497 (2009), (citing approvingly to Chopra v. General
Electric Co., 527 F. Supp. 2d 230, 251–52 [D. Conn.
2007], which held that ‘‘[i]n order to recover on the
entire fee incurred on both successful and unsuccessful
causes of action, the claims must be ‘inextricably inter-
twined’ and involve a common basis in fact or legal
theory’’), cert. denied, 294 Conn. 923, 985 A.2d 1062
(2010). In the present case, we do not agree with the
court’s conclusion that the facts relating to both the
breach of contract and private nuisance claims were
inextricably intertwined or based on a common legal
theory.19 The plaintiffs’ private nuisance claim was fac-
tually and legally distinct from their breach of contract
claims. Because the plaintiffs were not successful on
their private nuisance claim, we conclude that the court
abused its discretion by not reducing the plaintiffs’
award for attorney’s fees accordingly.
The judgment is reversed in part and the case is
remanded for further proceedings consistent with
this opinion.
In this opinion the other judges concurred.
1
For ease of discussion we refer to Francini and Anderson collectively
as the plaintiffs and individually by name where necessary.
2
The defendant does not dispute the court’s determination that attorney’s
fees should be awarded to the plaintiffs. The defendant also does not dispute
the costs awarded to the plaintiffs.
3
Rule 1.5 (a) of the Rules of Professional Conduct provides in relevant
part: ‘‘The factors to be considered in determining the reasonableness of a
fee include the following: (1) The time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to perform the
legal service properly; (2) The likelihood, if made known to the client, that the
acceptance of the particular employment will preclude other employment
by the lawyer; (3) The fee customarily charged in the locality for similar
legal services; (4) The amount involved and the results obtained; (5) The
time limitations imposed by the client or by the circumstances; (6) The
nature and length of the professional relationship with the client; (7) The
experience, reputation, and ability of the lawyer or lawyers performing the
services; and (8) Whether the fee is fixed or contingent.’’
4
In his principal appellate brief, the defendant asserts five separate claims
of error. For ease of discussion, we address certain claims together and in
a different order than they appear in the defendant’s appellate brief.
The balance of the defendant’s claims posit that the court abused its
discretion by awarding attorney’s fees that were (1) duplicative, and (2)
unnecessarily incurred because most issues litigated were not materially in
dispute. With respect to duplicative fees, the defendant argues that two trial
attorneys were not necessary given that this was a garden variety breach
of contract case. The defendant, however, concedes in his appellate brief
that the trial court was correct when it stated that, ‘‘the [plaintiffs were]
free to prosecute [their] case in whatever manner that [they saw] fit.’’ We
agree both with the court’s observation and its subsequent determination
that it was reasonable to award fees for both attorneys because the case was
sufficiently complex due to the amount of contested facts and abundance
of exhibits.
With respect to fees unnecessarily incurred in litigation, the defendant’s
primary claim is that the main issues of the case, as a practical matter, were
not in dispute. After a careful review of the record, we conclude that the
defendant’s claim is simply belied by the record and that a number of
material issues remained unresolved prior to the commencement of trial.
5
Thereafter, Francini brought an action against the defendant for specific
performance pursuant to the lawyers’ contract, which was settled.
6
The trial court found that the lawyers’ contract was amended by the
postclosing agreement and that the two documents formed an integrated
contract. We therefore refer to both documents as the contract.
7
The plaintiffs’ prayer for relief also sought money damages for breach
of contract. Specifically, they sought damages for the defendant’s failure to
install curb cuts, a driveway apron, and frontage landscaping on the plaintiffs’
lot pursuant to the contract. The court subsequently awarded the plaintiffs
damages for the defendant’s failure to install the driveway apron, curb cuts
and to plant two trees per the contract.
8
The court also determined that the defendant prevailed on his counter-
claim and awarded him $192 in damages, thereby reducing the plaintiffs’
award from $4100 to $3908.
9
See Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 133–34,
619 A.2d 863 (1993) (‘‘When prosecuting a civil matter, the general rule is
that a prayer for relief must articulate with specificity the form of relief
that is sought. . . . A party who fails to comply with this rule runs the risk
of being denied recovery.’’ [Internal quotation marks omitted.]).
10
During the hearing the parties provided testimony, affidavits, time
sheets, an engagement letter, and e-mails in support of their respective
claims. The defendant does not dispute that the fee, which was based on
an hourly fee agreement, was customary for similar legal services in the area.
11
See footnote 3 of this opinion.
12
‘‘[A lodestar calculation is] [t]he initial estimate of a reasonable attor-
ney’s fee [which] is properly calculated by multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’’ (Inter-
nal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn. App. 572, 576,
886 A.2d 845 (2005).
13
We note that the defendant did not file a motion to reargue the court’s
award of attorney’s fees nor did he seek an articulation from the trial court
with respect to its treatment of the factors in rule 1.5 (a) of the Rules of
Professional Conduct. Despite the defendant’s claim at oral argument before
this court that filing a motion for articulation was not warranted, it is the
appellant’s responsibility to ensure that the record is adequate for review.
See Practice Book § 61-10; Commission on Human Rights & Opportunities
v. Brookstone Court, LLC, 107 Conn. App. 340, 352, 945 A.2d 548, cert.
denied, 288 Conn. 907, 953 A.2d 651, cert. denied, 288 Conn. 907, 953 A.2d
651 (2008); see also Perez v. D & L Tractor Trailer School, 117 Conn. App.
680, 707, 981 A.2d 497 (2009) (‘‘we read an ambiguous trial record to support,
rather than to undermine, the judgment’’ [internal quotation marks omitted]),
cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).
14
In its memorandum of decision, the court further stated that it consid-
ered the nature of the litigation, the procedural history of the case, the
hourly rates charged by the plaintiffs’ counsel, the number of hours billed,
the nature of the billing, as well as the results obtained. The defendant
does not claim error with respect to the court’s consideration of these
other factors.
15
‘‘The Johnson factors are (1) the time and labor required, (2) the novelty
and difficulty of the questions, (3) the skill requisite to perform the legal
service properly, (4) the preclusion of other employment by the attorney
due to acceptance of the case, (5) the customary fee for similar work in
the community, (6) whether the fee is fixed or contingent, (7) time limitations
imposed by the client or the circumstances, (8) the amount involved and
the results obtained, (9) the experience, reputation and ability of the attor-
neys, (10) the undesirability of the case, (11) the nature and length of the
professional relationship with the client and (12) awards in similar cases.’’
Ernst v. Deere & Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005).
16
See footnote 5 of this opinion.
17
‘‘[P]rivate nuisance . . . is a nontrespassory invasion of another’s inter-
est in the private use and enjoyment of land. . . . The law of private nui-
sance springs from the general principle that [i]t is the duty of every person to
make a reasonable use of his own property so as to occasion no unnecessary
damage or annoyance to his neighbor. . . . The essence of a private nui-
sance is an interference with the use and enjoyment of land. . . . [I]n order
to recover damages in a common-law private nuisance cause of action, a
plaintiff must show that the defendant’s conduct was the proximate cause
of an unreasonable interference with the plaintiff’s use and enjoyment of
his or her property. The interference may be either intentional . . . or the
result of the defendant’s negligence.’’ (Citation omitted; internal quotation
marks omitted.) Rickel v. Komaromi, 144 Conn. App. 775, 782–83, 73 A.3d
851 (2013).
18
The defendant also claims that the court abused its discretion by award-
ing fees not associated with the underlying litigation. Specifically, the defen-
dant claims that this was a breach of contract case and, therefore, any work
related to issues involving the Planning and Zoning Commission of the City
of Milford or the Milford Health Department should not have been included
in the court’s award. In the alternative, the defendant contends that, to the
extent that those fees related to the plaintiffs’ private nuisance claim, they
should have not been awarded to them because they did not prevail on that
claim. We disagree with the defendant’s view that this work was unrelated
to the underlying litigation, but we agree with the defendant that, to the
extent that these fees were associated with the plaintiffs’ unsuccessful and
factually distinct private nuisance claim, they were improper.
19
For example, the defendant claims that the affidavit submitted in support
of the plaintiffs’ request for attorney’s fees referenced $3362 billed for work
performing investigations and/or research at the Planning and Zoning Com-
mission of the City of Milford and the Milford Health Department, which
was primarily related to the plaintiffs’ private nuisance claim.