Watson Real Estate, LLC v. Woodland Ridge, LLC ( 2021 )

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WATSON REAL ESTATE, LLC v. WOODLAND
RIDGE, LLC, ET AL.
(AC 43006)
Cradle, Alexander and DiPentima, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for, inter alia,
breach of contract. The parties entered into an escrow agreement in
conjunction with the purchase of a lot in a residential subdivision owned
by the defendant W Co. The escrow agreement provided that, in the
event of a dispute, all costs of litigation, including attorney’s fees, shall
be paid to the prevailing party. During trial, the parties agreed that the
issue of attorney’s fees should be reserved until after a decision on the
merits of the complaint had been rendered. The trial court rendered
judgment in favor of W Co., from which the plaintiff appealed to this
court, which affirmed the trial court’s judgment. While that appeal was
pending, the trial court denied W Co.’s motion for attorney’s fees. Follow-
ing this court’s release of its decision on the plaintiff’s appeal, W Co.
moved for judgment on its pending counterclaim seeking attorney’s
fees. The court denied W Co.’s motion for judgment and its motion for
reargument and reconsideration, and W Co. appealed to this court. Held
that the trial court failed to exercise its discretion with respect to W
Co.’s claim for attorney’s fees: the trial court summarily denied W Co.’s
motion for attorney’s fees and its motion for judgment on its counter-
claim without explanation; in the court’s subsequent articulation, it
explained that it denied the motion for judgment because it had denied
the motion for attorney’s fees nearly two years earlier and W Co. had
not filed an appeal, and the court’s circular explanation for its denials
of W Co.’s motions demonstrated that it failed to exercise its discretion;
moreover, the parties’ contract provided for attorney’s fees for the pre-
vailing party, and the court had a duty to exercise its discretion to
determine whether W Co. had proven its claim for attorney’s fees and
whether those fees were reasonable, and, at no point, did the court
indicate that it had considered the merits of the defendant’s W Co.’s
request; furthermore, W Co. properly moved for judgment on its pending
counterclaim and timely appealed from the court’s denial of that motion,
and the lack of an appeal from the court’s denial of W Co.’s motion
for attorney’s fees could not serve as the sole basis for not awarding
attorney’s fees.
Argued January 6—officially released October 5, 2021
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
named defendant filed a counterclaim; thereafter, the
matter was tried to the court, Dubay, J.; judgment in
part for the named defendant, from which the plaintiff
appealed to this court, Alvord, Moll and Bear, Js., which
affirmed the trial court’s judgment; subsequently, the
court, Dubay, J., denied the named defendant’s motion
for attorney’s fees; thereafter, the court denied the
named defendant’s motion for judgment on its counter-
claim and its motion to reargue and for reconsideration,
and the named defendant appealed to this court.
Reversed; further proceedings.
Mario R. Borelli, for the appellant (named defen-
dant).
Jeffrey J. Mirman, for the appellee (plaintiff).
Opinion
ALEXANDER, J. The present appeal originated from
an escrow agreement entered into by the parties in
conjunction with the purchase of a lot in a residential
subdivision. In Watson Real Estate, LLC v. Woodland
Ridge, LLC, 187 Conn. App. 282, 284–85, 202 A.3d 1033(2019), this court affirmed the judgment of the trial
court rendered in favor of the defendant Woodland
Ridge, LLC.1 Specifically, we rejected the claims of the
plaintiff, Watson Real Estate, LLC, that the trial court
(1) improperly failed to find that a meeting of minds
existed between the parties as to the specifications of
the common driveway that the defendant was required
to install under the escrow agreement, (2) improperly
failed to find that the defendant had breached the
escrow agreement by not reimbursing the plaintiff for
costs incurred for work that the defendant was required
to complete and (3) abused its discretion in denying
the plaintiff’s request to amend its complaint to add a
claim for unjust enrichment. Id.Both prior to and following the plaintiff’s appeal, the
defendant sought attorney’s fees pursuant to a prevail-
ing party clause contained in the parties’ agreement.
The trial court denied the defendant’s attempts to
recover attorney’s fees, and this appeal followed.
In this appeal, the defendant claims that (1) the trial
court improperly denied its claim for attorney’s fees,
pursuant to a prevailing party clause in the parties’
escrow agreement, and (2) it was entitled to appellate
attorney’s fees. We conclude that the court failed to
exercise its discretion with respect to the defendant’s
request for attorney’s fees. Accordingly, we reverse the
judgment of the trial court and remand the case for
further proceedings.
This court previously set forth the relevant facts and
procedural history underlying the defendant’s claim for
attorney’s fees. ‘‘The defendant was the owner and
developer of a four lot residential subdivision located
on the westerly side of Woodland Street in Glastonbury.
The subdivision consists of two front lots abutting
Woodland Street (lots 1 and 2) and two rear lots abutting
the western boundaries of the front lots (lots 3 and 4).
A common driveway providing ingress and egress to
the subdivision runs west from Woodland Street past
the entrances to lots 1 and 2 and terminates at the
entrances to the rear lots.
‘‘In May, 2006, H. Kirk Watson, a member of the plain-
tiff, entered into an agreement with the defendant for
the purchase of lot 1. At the time of the execution of
the purchase agreement, the common driveway had
been paved only from Woodland Street to a point 118
feet before the entrance to lot 1; the remainder of the
driveway, including the portion passing along the
entrance to lot 1, remained unpaved. Consequently,
Watson, in his capacity as a member of the plaintiff,
entered into an agreement with the defendant and Attor-
ney Peter J. Alter to create an escrow fund from a
portion of the defendant’s proceeds from the sale of lot
1 to assure the defendant’s completion of the common
driveway and certain other improvements and construc-
tion that remained to be completed (escrow agree-
ment). Under the escrow agreement, the defendant was
to deposit with the escrow agent, Alter, the sum of
$51,000, which represented a fair estimate of the cost
of completion of the [w]ork.
‘‘The particular items that remained to be completed
were set forth in a punch list that was attached to the
escrow agreement as exhibit A. Pursuant to exhibit A,
the defendant was required to complete the common
driveway to the point at which it becomes an individual
driveway for each approved lot, but the defendant was
not to put the final course of bituminous pavement on
the common driveway until construction of all four
houses [was] complete (as indicated by the issuance
of a certificate of occupancy), or five (5) years from
the date of [the escrow agreement], whichever shall
first occur. The stated rationale for this delay was to
avoid damage to the final pavement as may be caused by
heavy construction vehicles using the driveway during
home construction. As Watson later testified at trial, at
the time he executed the escrow agreement, he believed
that this language required the defendant to initially
extend the existing layer of pavement along the remain-
der of the driveway and, then, at the appropriate time,
install a second layer of pavement over the entire length
of the driveway. Per exhibit A, the defendant was also
required to install a common electric power service
from which each lot could secure individual service.
‘‘Because the parties recognized that the work needed
to be completed before the plaintiff could secure a
building permit and a certificate of occupancy, the
escrow agreement provided for a procedure by which
the plaintiff could contract with a third party to com-
plete the work and seek reimbursement from Alter out
of the escrow funds if the defendant failed to complete
the work in a timely manner. Pursuant to this procedure,
the plaintiff was to give written notice to the defendant
that the plaintiff’s construction project required that
the work be completed within a reasonable time. If the
defendant subsequently failed to complete the work
within thirty days, the plaintiff was then authorized to
contract for the completion of the work, and, upon
[submission] of an invoice or contract for performance
from a [third-party] contractor, [Alter] shall advance
the funds from the escrow agreement to satisfy the
invoice or contract provisions.
‘‘Upon the closing of the transaction, Watson took
title to the property in the name of the plaintiff and
began developing the property. Between the time of
closing and the completion of the plaintiff’s house, no
additional paving of the common driveway was done.
Watson was told by the town, however, that in order
to obtain a certificate of occupancy, the paved portion
of the common driveway needed to be extended to the
entrance of the plaintiff’s property. Consequently, in
2008, Watson contracted with a third party to pave this
portion of the common driveway at a cost of $4914,
which Watson paid. The remainder of the driveway,
however, remained a dirt road. Watson also paid $530.70
to Megson & Heagle Civil Engineers & Land Surveyors,
LLC (Megson & Heagle), to satisfy an unpaid bill
incurred by Daniel Zak, an agent for the defendant, in
connection with the preparation of a Connecticut Light
and Power Company easement map (easement map)
for the common driveway.
‘‘Between 2008 and 2011, no additional paving was
done on any portion of the common driveway. In Sep-
tember, 2011, Zak notified Alter that the defendant
intended to complete all of the remaining work required
under the escrow agreement. The defendant, thereafter,
engaged R & J Paving, LLC (R & J Paving), to pave
the final portion of the common driveway, from the
entrance of the plaintiff’s property to the entrances to
lots 3 and 4. The defendant did not, however, have a
second, final layer of pavement installed, which Wat-
son believed was required under the escrow agreement.
Upon receipt from Zak of the paving invoice, Alter
released $9000 to R & J Paving and divided the remain-
der of the escrow funds between Zak and Leonard Bour-
beau, a member of the defendant. The plaintiff was
never reimbursed for the costs it expended in extending
the common driveway to the entrance to its property
and settling the invoice for the easement map. The
plaintiff, however, had not submitted invoices for these
expenditures to Alter as required under the escrow
agreement.
‘‘The plaintiff commenced the present action in
March, 2013. In count two of the operative, revised
complaint—the only count at issue in this appeal—the
plaintiff alleged, inter alia, that the defendant breached
the escrow agreement by improperly seeking the
release of escrow funds. The plaintiff further alleged
that, as a result, it sustained damages, including the
costs to complete the work that the defendant had
failed to perform. The matter was tried to the court on
September 20 and 22, 2016.
‘‘At trial, the plaintiff appeared to abandon its claim
that the defendant improperly sought the release of the
escrow funds. The plaintiff, instead, proceeded under
a theory that the defendant breached the escrow agree-
ment by failing to install a second, final layer of pave-
ment over the common driveway. The principal issue
at trial was whether the defendant’s obligation under
the agreement to install a final course of bituminous
pavement was intended to require the defendant to
apply two layers of pavement. On this issue the parties
presented contradictory evidence.
***
‘‘In its memorandum of decision issued on January
10, 2017, the court . . . determined that it could not
find that there was a meeting of the minds as to the
specifics of the common driveway and concluded that
the plaintiff had failed to sustain its burden of proving
its breach of contract claim. The court, therefore, ren-
dered judgment in favor of the defendant on count
two of the plaintiff’s revised complaint.’’ (Footnotes
omitted; emphasis altered; internal quotation marks
omitted.) Id., 285–92.
In the prior appeal filed by the plaintiff, we first con-
sidered whether the trial court improperly found that
a meeting of the minds between the parties had not
occurred with respect to the number of layers of pave-
ment to be applied to the common driveway. Id., 294.
We rejected this claim. Id., 296–97. Next, we declined
to review the plaintiff’s claim that the defendant had
breached the escrow agreement by not reimbursing the
plaintiff for costs it had incurred on the basis that this
claim had not been alleged in the operative complaint
or asserted at trial. Id., 297–98. Finally, we concluded
that the court had not abused its discretion in denying
the plaintiff’s request for leave to amend its revised
complaint to add a claim of unjust enrichment. Id.,299–300.
With this summary in mind, we now turn to the facts
relating to the defendant’s claim for attorney’s fees.
In its revised complaint, the operative pleading, the
plaintiff set forth nine counts against the various defen-
dants. In its amended answer, dated November 23, 2015,
the defendant set forth the following counterclaim:
‘‘The escrow agreement, exhibit A to the plaintiff’s
revised complaint, provides, in pertinent part, that in
the event of a dispute between this defendant and the
plaintiff, ‘all costs of litigation, including reasonable
[attorney’s] fees, shall be paid to the prevailing party
by the [nonprevailing] party.’ Wherefore, the defendant
. . . in the event that it is the prevailing [party] in this
action, seeks its costs of litigation and reasonable attor-
ney’s fees.’’ During trial, the parties represented to the
court their agreement that the issue of attorney’s fees
should be reserved until after a decision on the merits
of the complaint had been rendered.
On January 10, 2017, the court issued its memoran-
dum of decision. At the outset, the court observed that
only count two of the revised complaint, alleging breach
of contract, remained pending against the defendant.
With respect to this count, the plaintiff had alleged that
the defendant breached the escrow agreement and its
obligation to fully and completely pave the driveway
pursuant to specifications set forth in the purchase
agreement. The court found that the plaintiff failed to
meet its burden with respect to its claim of a breach
of the escrow agreement and the specifics of the drive-
way set forth in the purchase agreement. The court
further explained that there was no ‘‘meeting of the
minds as to the specifics of the common driveway.’’
The court then rendered judgment in favor of the defen-
dant as to count two of the revised complaint.
On May 9, 2017, the defendant filed a motion for
attorney’s fees and an affidavit of attorney’s fees and
costs totaling $38,807.88. One week later, the plaintiff
appealed from the judgment rendered in favor of the
defendant on count two of the revised complaint. On
May 19, 2017, the plaintiff filed an opposition to the
motion for attorney’s fees. The plaintiff argued that the
court had not rendered a judgment on the defendant’s
counterclaim seeking attorney’s fees and, in the alterna-
tive, it should deny any such fees in the exercise of its
discretion. On June 28, 2017, the court issued an order
denying the motion for attorney’s fees.
This court released its decision on the plaintiff’s
appeal on January 22, 2019. Watson Real Estate, LLC
v. Woodland Ridge, LLC, supra, 187 Conn. App. 282.
On February 25, 2019, the defendant moved for judg-
ment on its counterclaim seeking attorney’s fees. The
defendant also filed an updated affidavit for attorney’s
fees and costs that included work done for the appeal
for a total claim of $45,857.88. On April 18, 2019, the
plaintiff filed an opposition to the motion for judgment.
It iterated some of its prior arguments as to why attor-
ney’s fees should not be awarded and added a claim
that the prior denial constituted ‘‘the law of the case.’’
The court denied both the defendant’s motion for judg-
ment on its counterclaim and its subsequent motion for
reargument and reconsideration.
The defendant filed the present appeal on June 3,
2019. Nine days later, the defendant moved for an articu-
lation of the trial court’s 2019 denials of its motions for
judgment on its counterclaim and for reargument and
reconsideration. On July 11, 2019, the court granted
the defendant’s motion and stated: ‘‘[The motions for
judgment and for reargument/reconsideration] were
denied out of hand as the court had ruled on the defen-
dant’s request for attorney’s fees nearly two years ear-
lier. . . . [The] [m]atter went to judgment on January
17, 2018. The appeal period expired twenty-one days
thereafter.’’
On July 19, 2019, the defendant moved for further
articulation, requesting that the trial court explain why
it was not entitled to attorney’s fees incurred as a result
of the plaintiff’s appeal. On September 24, 2019, the
court granted the defendant’s motion and noted that,
although the 2019 affidavit of attorney’s fees included
appellate work, ‘‘[n]either [the 2019 motion for judg-
ment nor the motion to reargue/for reconsideration]
contain anything in the body of either filing that would
give the trial court even a hint of a request for attorney’s
fees in connection with a successful defense of the
appeal. The first time the court [was] made explicitly
aware of the request [was] in this request for further
articulation.’’ This appeal followed. Additional facts will
be set forth as necessary.
On appeal, the defendant claims that the court
improperly denied its request for trial and appellate
attorney’s fees. Specifically, it contends that such an
award was authorized by the prevailing party clause
contained in the parties’ escrow agreement, it was the
prevailing party, and, therefore, the court improperly
denied its request for attorney’s fees. We conclude that
the court improperly failed to exercise its discretion
with respect to the defendant’s claim for attorney’s fees.
We begin with the relevant legal principles and our
standard of review. This court has noted that, as a
general matter, Connecticut follows the American rule2
with regard to attorney’s fees. See Mangiante v. Nie-
miec, 98 Conn. App. 567, 570, 910 A.2d 235 (2006).
‘‘[U]nder the American rule, [a party] ordinarily cannot
recover attorney’s fees for breach of contract in the
absence of an express provision allowing recovery
. . . .’’ (Footnote omitted; internal quotation marks
omitted.) Winakor v. Savalle, 198 Conn. App. 792, 810–
11, 234 A.3d 1122, cert. granted, 335 Conn. 958, 239
A.3d 319 (2020); see also Total Recycling Services of
Connecticut, Inc. v. Connecticut Oil Recycling Ser-
vices, LLC, 308 Conn. 312, 326–27, 63 A.3d 896 (2013);
Neiditz v. Housing Authority, 42 Conn. App. 409, 413,
679 A.2d 987 (1996).
‘‘[W]here a contract provides for the payment of attor-
ney’s fees . . . those fees are recoverable solely as a
contract right. . . . Therefore, the language of the
[contract] governs the award of fees . . . . Such attor-
ney’s fees incurred language has been interpreted by
our Supreme Court . . . as permitting recovery 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 [court’s] own expert
judgment.’’ (Internal quotation marks omitted.) Florian
v. Lenge, 91 Conn. App. 268, 283, 880 A.2d 985 (2005);
see also Atlantic Mortgage & Investment Corp. v. Ste-
phenson, 86 Conn. App. 126, 134, 860 A.2d 751 (2004).
In reviewing a claim that attorney’s fees are contrac-
tually authorized, ‘‘we apply the well established princi-
ple that [a] contract must be construed to effectuate
the intent of the parties, which is determined from [its]
language . . . interpreted in the light of the situation
of the parties and the circumstances connected with
the transaction.’’ (Internal quotation marks omitted.)
Total Recycling Services of Connecticut, Inc. v. Con-
necticut Oil Recycling Services, LLC, supra, 308 Conn.
327. The intent of the parties is a question of law subject
to plenary review when the contract is unambiguous
within its four corners. FCM Group, Inc. v. Miller, 300
Conn. 774, 811, 17 A.3d 40 (2011).
In the present case, the parties’ escrow agreement
provided that, in the event of a dispute, ‘‘all costs of
litigation, including reasonable [attorney’s] fees, shall
be paid to the prevailing party by the [nonprevailing]
party.’’ (Emphasis added.) The parties do not dispute
that the escrow agreement authorized payment of attor-
ney’s fees to the prevailing party. The question that
remains, therefore, is whether the court properly denied
the defendant’s request for attorney’s fees.
‘‘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 circum-
stances 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.’’ (Internal
quotation marks omitted.) Francini v. Riggione, 193
Conn. App. 321, 329–30, 219 A.3d 452 (2019); WiFiLand,
LLP v. Hudson, 153 Conn. App. 87, 101–102, 100 A.3d
450 (2014).
‘‘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]. . . . [T]he com-
mentary 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.’’ (Citation omitted;
internal quotation marks omitted.) Francini v. Riggi-
one, supra, 193 Conn. App. 330–31. ‘‘These factors
include: the time and labor required; the novelty and
difficulty of the questions involved; the skill requisite to
perform the legal service properly; the fee customarily
charged in the locality for similar legal services; the
amount involved and the results obtained; the time limi-
tations imposed by the client; the experience, reputa-
tion and ability of the lawyer or lawyers performing the
services, and whether the fee is fixed or contingent.’’
WiFiLand, LLP v. Hudson, supra, 153 Conn. App. 103.
Additionally, a court may rely on its own general knowl-
edge of what occurred during the proceedings to pro-
vide evidence in support of an award of attorney’s fees.
Francini v. Riggione, supra, 331.
Under the facts and circumstances of the present
case, we conclude that the court did not exercise its
discretion in ruling on the defendant’s request for attor-
ney’s fees. ‘‘While it is normally true that [appellate
courts] will refrain from interfering with a trial court’s
exercise of discretion . . . this presupposes that the
trial court did in fact exercise its discretion. [D]iscretion
imports something more than leeway in decision-mak-
ing. . . . It means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice.’’ (Emphasis in original; internal quo-
tation marks omitted.) Higgins v. Karp, 243 Conn. 495,
504, 706 A.2d 1 (1998); see also Meadowbrook Center,
Inc. v. Buchman, 328 Conn. 586, 609, 181 A.3d 550(2018) (when trial court properly is called on to exercise
its discretion, its failure to do so is error); State v. Lee,
229 Conn. 60, 73–74, 640 A.2d 553 (1994) (same).
Following the judgment rendered in favor of the
defendant with respect to the plaintiff’s breach of con-
tract claim, the defendant moved for an award of attor-
ney’s fees in the amount of $38,807.88 on May 9, 2017.
At that time, no judgment had been rendered on the
defendant’s counterclaim seeking attorney’s fees. The
court denied the defendant’s motion without explana-
tion on June 28, 2017. Thus, the defendant’s counter-
claim seeking attorney’s fees remained pending until
February, 2019.
After the resolution of the plaintiff’s appeal, the
defendant moved for judgment on its counterclaim
seeking attorney’s fees on February 25, 2019. The defen-
dant updated its request to $45,857.88, to include work
done for the appeal. The court, again, simply denied the
defendant’s motion for judgment on the counterclaim
without explanation on April 23, 2019. It similarly
denied the defendant’s motion for reargument and
reconsideration. In response to the defendant’s motion
for articulation, the court subsequently explained that
it had denied the motion for judgment on the counter-
claim and the motion for reargument and reconsidera-
tion ‘‘out of hand’’ due to the fact that it had denied
the 2017 motion for attorney’s fees nearly two years
earlier and the defendant had not filed an appeal.
The court’s circular explanation for its repeated deni-
als of the defendant’s efforts to obtain an award of
attorney’s fees demonstrates that it failed to exercise
its discretion in conformity with the spirit of the law.
The parties’ contract specifically provided for attorney’s
fees for the prevailing party. See generally A & A Mason,
LLC v. Montagno Construction, Inc., 49 Conn. Supp.
405, 407, 889 A.2d 278 (2005) (it is elementary that,
when authorized, fees and costs are ordinarily awarded
to prevailing party). Furthermore, the defendant was a
prevailing party following the judgment rendered in its
favor with respect to the plaintiff’s breach of contract
action. ‘‘Our Supreme Court has stated: [P]revailing
party has been defined as [a] party in whose favor
a judgment is rendered, regardless of the amount of
damages awarded . . . .’’ (Internal quotation marks
omitted.) Giedrimiene v. Emmanuel, 135 Conn. App.
27, 34–35, 40 A.3d 815, cert. denied, 305 Conn. 912, 45
A.3d 97 (2012); see also Peterson v. McAndrew, 160
Conn. App. 180, 210–11, 125 A.3d 241 (2015).
The trial court had a duty to exercise its discretion to
determine whether the defendant had proven its claim
seeking attorney’s fees and whether those fees were
reasonable. Here, the court simply denied the defen-
dant’s 2017 motion for attorney’s fees and the 2019
motion of judgment on its counterclaim without any
explanation, and later issued an articulation concluding
that the defendant’s motions for judgment and for rear-
gument and reconsideration were untimely. At no point,
however, did the court provide any indication that it
had considered the merits of the requests for attorney’s
fees, despite the contractual language and the defen-
dant’s status as a prevailing party.3
We also disagree with the trial court’s assessment
that the defendant was required, under these facts and
circumstances, to file an appeal in 2017, following the
denial of its motion for attorney’s fees. Our Supreme
Court has held that a judgment rendered on the merits
is final for the purposes of filing an appeal, even though
the recoverability or amount of attorney’s fees has not
yet been determined. See Paranteau v. DeVita, 208
Conn. 515, 523, 544 A.2d 634 (1998); see also Hylton v.
Gunter, 313 Conn. 472, 487, 97 A.3d 970 (2014). Our
Supreme Court further recognized that this rule may
lead to ‘‘piecemeal appeals for judgments on the merits
and awards of attorney’s fees.’’ (Internal quotation
marks omitted.) Paranteau v. DeVita, supra, 524. Thus,
a separate question exists as to the timeliness of an
appeal from an award of attorney’s fees, a collateral
and independent claim, as compared with a judgment
rendered on the merits of the underlying action. See
Benvenuto v. Mahajan, 245 Conn. 495, 500, 715 A.2d 743(1998); see also Neiditz v. Housing Authority, supra,
42 Conn. App. 411–12 (request for attorney’s fees is not
motion to open, set aside, alter, or modify judgment
but, rather, raises legal issues collateral to main cause
of action). This court recently explained that, once the
trial court determines the amount of attorney’s fees,
that determination ‘‘will be a separately appealable final
judgment as to the reasonableness of the fees awarded.’’
Iino v. Spalter, 192 Conn. App. 421, 457, 218 A.3d 152(2019); see also Paraneau v. DeVita, supra, 524 n.11.
In the present case, the defendant filed a counter-
claim seeking attorney’s fees.4 In its January 10, 2017
memorandum of decision, the court did not address
or render judgment with respect to this counterclaim.
Following the resolution of the plaintiff’s appeal on the
merits of its action against the defendant, on February
25, 2019, the defendant moved for judgment on its coun-
terclaim. On April 23, 2019, the court denied the defen-
dant’s motion for judgment on the counterclaim. The
defendant filed the present appeal from the April 23,
2019 denial of its motion for judgment on the counter-
claim and from the May 28, 2019 denial of its motion
for reargument and reconsideration.
Under the unique facts of the present case, in which
the trial court did not address the defendant’s counter-
claim seeking attorney’s fees pursuant to a prevailing
party clause in the parties’ contract, and in which the
plaintiff failed to challenge the propriety of such a plead-
ing or properly challenge the timeliness of the present
appeal, we conclude that the defendant was not fore-
closed from challenging the denial of its claim for attor-
ney’s fees. The defendant properly moved for judgment
on its pending counterclaim for attorney’s fees in 2019
and timely appealed from the trial court’s denial of that
motion. Simply stated, we are not persuaded that the
defendant was required to file an appeal following the
2017 denial of the motion for attorney’s fees, given its
unresolved counterclaim. The defendant timely appealed
from the 2019 denial of its motion for judgment on the
counterclaim, and the lack of an appeal in 2017 cannot
serve as the sole basis for not awarding attorney’s fees.
Finally, we briefly address the plaintiff’s contention
that the trial court had determined that no enforceable
contract existed between the parties, and, therefore,
there was no agreement regarding an award of attor-
ney’s fees to the prevailing party. We disagree with the
premise of this argument. As we stated in our prior
decision, ‘‘the [trial] court determined that it could not
find that there was a meeting of the minds as to the
specifics of the common driveway . . . .’’ (Emphasis
added; internal quotation marks omitted.) Watson Real
Estate, LLC v. Woodland Ridge, LLC, supra, 187 Conn.
App. 292. This finding regarding the lack of a meeting
of the minds applied only to the specifics of the work
to be completed regarding the common driveway and
not to the escrow agreement itself, which contained
the prevailing party clause.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
The plaintiff also named Daniel Zak, Peter J. Alter, and Leonard Bourbeau
as defendants, but these individuals did not participate in the trial court
proceedings or the previous appeal. Watson Real Estate, LLC v. Woodland
Ridge, LLC, supra, 187 Conn. App. 284 n.1. We, therefore, refer to Woodland
Ridge, LLC, as the defendant.
2
‘‘The general rule of law known as the American rule is that attorney’s
fees and ordinary expenses and burdens of litigation are not allowed to
the successful party absent a contractual or statutory exception.’’ (Internal
quotation marks omitted.) Aurora Loan Services, LLC v. Hirsch, 170 Conn.
App. 439, 453 n.9, 154 A.3d 1009 (2017).
3
We conclude, therefore, that the plaintiff’s contentions in its appellate
brief that the court declined to award the defendant attorney’s fees on the
basis that it was unjustly enriched, or that the defendant failed to present
sufficient evidence of the amount of reasonable attorney’s fees, constitute
nothing more than speculation, which, as we repeatedly have noted, has no
place in appellate review. See, e.g., Village Mortgage Co. v. Veneziano, 203
Conn. App. 154, 171, 247 A.3d 588 (2021); Bisson v. Wal-Mart Stores, Inc.,
184 Conn. App. 619, 640, 195 A.3d 707 (2018).
4
We note that the plaintiff never challenged the propriety of asserting a
counterclaim to obtain attorney’s fees through either a motion to strike, a
motion to dismiss or a motion for summary judgment. See Practice Book
§§ 10-30,10-39, and 17-49. We therefore expressly decline to consider whether
the use of such a pleading is proper for the purpose of recovering attorney’s
fees. Furthermore, the plaintiff failed to file a motion to dismiss the defen-
dant’s appeal as untimely. See, e.g., Meribear Productions, Inc. v. Frank,
193 Conn. App. 598, 604–605, 219 A.3d 973 (2019) (although Appellate Court
ordinarily dismisses late appeals that are subject of timely motion to dismiss,
twenty day time limit for filing appeal is not subject matter jurisdictional).