Frauenglass & Associates, LLC v. Enagbare , 149 Conn. App. 103 ( 2014 )

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FRAUENGLASS AND ASSOCIATES, LLC v.
HELEN ENAGBARE
(AC 34985)
Lavine, Bear and West, Js.
Argued January 16—officially released April 1, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Helen Enagbare, self-represented, the appellant
(defendant).
Robert H. Weinstein, for the appellee (plaintiff).
Opinion
LAVINE, J. In this action for the collection of legal
fees, the self-represented defendant, Helen Enagbare,
appeals from the judgment of the trial court rendered
pursuant to the findings of an attorney fact finder in
favor of the plaintiff, Frauenglass & Associates, LLC.
On appeal, the defendant claims that the court improp-
erly (1) failed to remand the matter to the fact finder
to consider her counterclaim, (2) concluded that her
counterclaim and special defenses were not relevant
to its judgment, (3) exhibited bias toward her,1 and (4)
affirmed the fact finder’s report, as it is contrary to the
evidence. We affirm the judgment of the trial court.
The following procedural history underlies the pre-
sent appeal. In November, 2009, the plaintiff filed an
application for a prejudgment remedy. On February 20,
2010, the court, Graham, J., granted the prejudgment
remedy in the amount of $20,176.93. The plaintiff then
served the defendant with a summons and complaint
sounding in breach of contract, quantum meruit, and
unjust enrichment stemming from unpaid legal fees.
The defendant denied the material allegations of the
complaint and pleaded five special defenses.
The matter was referred to an attorney fact finder
for a hearing.2 The fact finding hearing was to begin on
May 16, 2011, but on May 13, 2011, the defendant filed
a counterclaim.3 The plaintiff objected to the counter-
claim’s being filed on the eve of trial without the defen-
dant’s having secured the permission of the court, as
required by the rules of practice. See Practice Book
§§ 10-64 and 10-60. The fact-finding hearing, however,
proceeded as scheduled. Our review of the transcript
discloses that the plaintiff presented its case through
the testimony of Lloyd Frauenglass, its sole member.
Frauenglass’ direct testimony was of short duration.
The defendant cross-examined Frauenglass for the
remainder of the day and again on August 29, 2011.
After a brief redirect examination of Frauenglass, the
plaintiff rested. The defendant called two witnesses:
Attorney Donna D. Convicer, an associate in the plaintiff
law firm, and herself. Convicer testified on direct exami-
nation for the balance of August 29, 2011, and for most
of the day on October 24, 2011. The defendant then
testified under direct examination for the remainder of
October 24, 2011, and again on January 8, 2012. The
plaintiff briefly cross-examined the defendant. The
defendant testified on redirect and recross-examina-
tion. Frauenglass offered brief rebuttal testimony.
The fact finder ordered the parties to file simultane-
ous briefs on or before February 10, 2012. On that date,
the defendant filed a request for an extension of time
to file her brief indicating that the fact finder had not
advised the defendant’s counsel as to whether her coun-
terclaim was accepted as operative. The request for
a continuance was denied. The fact finder issued his
findings of fact on June 8, 2012. In his finding of facts,
the fact finder stated that the matter was heard over
several days and that both parties were represented by
counsel. The plaintiff put nine documents into evidence,
and the defendant put four documents into evidence.
The fact finder found that the plaintiff is a law firm
of which Frauenglass is the sole member and Convicer
was an associate. The defendant had retained the plain-
tiff to represent her in what the defendant anticipated
would be a nasty divorce and child custody battle. The
fact finder found that the defendant ostensibly wished
to be represented by a female attorney but apparently
was more sensitive to cost. She had discussed her case
with one other attorney before approaching the
plaintiff.
The defendant signed a retainer agreement
(agreement) and gave the plaintiff a retainer of $7780
on October 8, 2008. Convicer signed the agreement on
behalf of the plaintiff. Pursuant to the fee schedule in
the agreement, Convicer’s time was billed at $250 per
hour, and Frauenglass’ time was billed at $375 per hour.
Although the defendant claimed that she wanted only
a female attorney to represent her, the fact finder found
that her desire appears largely to have been driven by
cost, as Convicer’s hourly rate was approximately two-
thirds that of Frauenglass’ rate. The agreement does not
state that only Convicer was to represent the defendant.
Moreover, after terminating the plaintiff’s representa-
tion, the defendant retained a male attorney.
The defendant’s retainer of $7780 was credited
against the fees and costs she incurred during the
course of the plaintiff’s representation. On February
7, 2009, the defendant terminated the services of the
plaintiff. At that time, the defendant owed the plaintiff
$21,551.93 for legal fees and costs. The fact finder found
that the case was complicated by issues of Nigerian
law, child custody, and the fact that the defendant’s
husband controlled all of the couple’s assets. The defen-
dant feared that her husband would cut off financial
support if he discovered that she was divorcing him
and seeking custody of their children. At one point,
the defendant’s husband filed a motion to dismiss the
defendant’s dissolution action, claiming that he and the
defendant had been divorced in Nigeria. The fact finder
found that the plaintiff researched and successfully
argued that issue in the dissolution action. During the
fact-finding hearing, the defendant testified that she
understood the agreement and had signed it voluntarily.
The fact finder found that as the divorce litigation
proceeded, the defendant’s litigation desires changed.
At first she wanted a divorce and custody of her chil-
dren, later she wanted a separation from her husband
and custody of their children, and still later she was
willing to let her husband have custody of the children.
By late March, 2009, a month and a half after she had
terminated the plaintiff’s representation and had
retained new counsel, the defendant again was residing
with her husband. She was residing with her husband
at the time of the hearing. Importantly, the fact finder
found that the defendant’s gradual change of heart over
the divorce and custody issues was fueling her retro-
spective claims that the plaintiff did not follow her
instructions and ‘‘over-lawyered’ the case, and that
Frauenglass, who had a higher hourly billing rate, did
work that the defendant wanted Convicer to do. The
fact finder found, however, that the defendant volunta-
rily had retained the plaintiff law firm, not solely
Convicer.
The fact finder concluded that the present action is
actually a fee dispute. The agreement provides that in
such circumstances, and at the defendant’s request, the
parties would submit the dispute to the fee dispute
committee of the Connecticut Bar Association. The
defendant failed to seek that avenue of redress. The
fact finder concluded that the parties entered into an
agreement, and the plaintiff represented the defendant
pursuant to the agreement. In addition, the defendant
apparently was satisfied with the representation. When
it came time to pay the fees, however, the defendant
asserted that she did not want the ‘‘quantity’’ or cost
of the representation provided by the plaintiff.
The fact finder recommended that the court enter
judgment in the amount of $21,551.93 plus $11,638.04
in interest, as provided by the agreement, for a total
of $33,189.97. The fact finder also recommended that
judgment enter for the plaintiff on the defendant’s
counterclaim. On June 22, 2012, the defendant filed an
objection to the findings of fact on the ground that the
fact finder failed to address her special defenses and
counterclaim. She also stated that the fact finder failed
to respond to her counsel’s inquiry as to whether he had
accepted the defendant’s counterclaim. The defendant
asked that the court remand the matter to the fact
finder so that she could present evidence with respect
to her counterclaim.
On August 6, 2012, the court, Hon. Richard M. Ritten-
band, judge trial referee, overruled the defendant’s
objection.4 After reviewing the findings of fact, the
defendant’s special defenses, and her counterclaim, the
court concluded that the fact finder addressed the
issues raised by the defendant and specifically identi-
fied the paragraphs of the findings of fact relevant to
the issues. On August 24, 2012, the court accepted the
fact finder’s report and rendered judgment for the plain-
tiff in the amount of $33,189.97.
Although she was represented by counsel at trial, the
defendant filed an appeal as a self-represented party.
She also filed a motion for articulation pursuant to
Practice Book § 66-5, which the court granted.5 In its
articulation, the court essentially stated that the fact
finder had considered all of the issues raised in the
plaintiff’s complaint and the defendant’s special
defenses and counterclaim. The court further stated
that it was not the court’s function to remand a matter
to a fact finder to enable a defendant to present wit-
nesses and new evidence that should have been pro-
duced at the hearing. Moreover, the court found that
the defendant was rearguing claims she had raised
before the fact finder.
I
The defendant’s first claim is that the court violated
her state and federal rights to due process by failing to
remand the matter to the fact finder for consideration
of her counterclaim. We disagree.
‘‘In reviewing a procedural due process claim, we
must first determine whether a protected liberty or
property interest is involved. If it is, then we must deter-
mine the nature and extent of the process due.’’ (Inter-
nal quotation marks omitted.) In re Tayler F., 296 Conn.
524, 553, 995 A.2d 611 (2010). Here, the defendant claims
that she has been deprived of property without due
process of law because the court failed to remand the
case to the fact finder who purportedly failed to con-
sider her counterclaim. Whether the defendant’s rights
to due process were violated is governed by the balanc-
ing test set forth in Mathews v. Eldridge, 424 U.S. 319,
335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
Mathews v. Eldridge established a three-prong bal-
ancing test to determine ‘‘what safeguards the federal
constitution requires to satisfy procedural due pro-
cess.’’ (Internal quotation marks omitted.) In re Alison
M., 127 Conn. App. 197, 219, 15 A.3d 197 (2011). ‘‘Under
this test, [t]he three factors to be considered are (1)
the private interest that will be affected by the state
action, (2) the risk of an erroneous deprivation of such
interest, given the existing procedures, and the value
of any additional or alternative procedural safeguards,
and (3) the government’s interest, including the fiscal
and administrative burdens attendant to increased or
substantive procedural requirements. . . . Due pro-
cess analysis requires balancing the government’s inter-
est in existing procedures against the risk of erroneous
deprivation of a private interest inherent in those proce-
dures.’’ (Internal quotation marks omitted.) Barros v.
Barros, 309 Conn. 499, 509, 72 A.3d 367 (2013).
The defendant’s appellate brief fails even to mention
the balancing test applicable to her federal due process
claim let alone include an analysis of the Mathews test
as it applies to the facts of this case.6 We conclude,
therefore, that the plaintiff’s claim is inadequately
briefed.7 A claim that does no more that assert a due
process violation without legal analysis is deemed aban-
doned. See Dubaldo Electric, LLC v. Montagno Con-
struction, Inc., 119 Conn. App. 423, 443–44, 988 A.2d
351 (2010). For the foregoing reason, the defendant’s
claim fails.
II
The defendant’s second claim concerns the court’s
statement that the issues alleged in her special defenses
and counterclaim that were not addressed by the fact
finder were irrelevant to its judgment. We do not agree
with the claim.
The defendant has based her claim in part on the
plaintiff’s alleged violations of the rules of professional
conduct in that its fees were not reasonable and that
it filed motions fraudulently, manipulated its invoices
for services rendered, and represented her incompe-
tently. The defendant did not raise any of those claims
of professional misconduct in the trial court.8 This court
does not review claims, such as this one, that are raised
for the first time on appeal. See Plante v. Charlotte
Hungerford Hospital, 300 Conn. 33, 59, 12 A.3d 885(2011).
Within this second claim, the defendant also argues
that the plaintiff overbilled her and that the fact finder
did not address certain issues she raised. More specifi-
cally, the defendant argues that most of the items for
which she was billed ‘‘is from work that [was] not neces-
sary for her representation; many are work not done
at all, some from work forcefully done. Only one small
part of the bill is the defendant’s bill.’’
In his discussion of the facts found, the fact finder
stated that the defendant’s ‘‘change of heart over the
divorce and custody issues fuels her retrospective claim
that the [p]laintiff did not follow her instructions, [and]
‘over-lawyered’ the case.’’ He also stated that the parties
had a contract whereby the plaintiff was to provide
legal representation for the defendant in a divorce
action. The fact finder found that the defendant appar-
ently was satisfied with the representation provided
and noted that ‘‘[o]nly now does the [d]efendant assert
that she did not want the ‘quantity’ or cost of representa-
tion provided by the [p]laintiff.’’
The defendant objected to the findings of fact. In
overruling the defendant’s objection to the findings of
fact, Judge Rittenband stated that ‘‘the [defendant] was
aware of the amount owed and that the [defendant] at
the time of representation found it satisfactory.’’ See
footnote 4 of this opinion. In his articulation, Judge
Rittenband stated in relevant part: ‘‘The issues in the
report and the conclusions made by the fact finder were
made on the evidence as they pertain to those issues.
The court believes that all the relevant issues were
addressed by the fact finder, and the court found the
fact finder’s report to be reasonable based upon the
evidence that he described in his report. The court
found that looking at the report as a whole, all relevant
issues were addressed.’’ The court continued: ‘‘Those
points not reported by the fact finder apparently were
found to be irrelevant because the fact finder did not
address them in his report. The court was aware that
the fact finder was aware of the special defenses and the
counterclaim, and there is no evidence that he ignored
them. . . . The remainder of the motion for articula-
tion merely repeats the arguments that were made, or
should have been made, before the fact finder, and it
is not the province of this court to get into the same
issues and decide them when the fact finder made his
findings of fact. As to paragraph 5 of the motion for
articulation . . . these items were all contained in the
fact finder’s report or deemed irrelevant. The defendant
is rearguing the claims that she made before the fact
finder.’’
On the basis of our review of the entire record, we
agree with the court that the fact finder addressed all
of the issues relevant to the plaintiff’s cause of action,
the defendant’s special defenses, and her counterclaim.
In fact, the fact finder ended his findings of fact with
the recommendation that judgment should enter for the
plaintiff on the defendant’s counterclaim. We conclude
that the points and arguments made by the defendant
on appeal, for which she seeks another trial, are not
relevant to the plaintiff’s action seeking payment of its
legal fees for services rendered pursuant to the
agreement the defendant voluntarily entered. The
defendant’s claim therefore fails.
III
The defendant’s last claim is that the court abused
its discretion by approving the fact finder’s findings and
conclusions on the issues as they are contrary to the
evidence and legal conclusions. We disagree.
We first note the applicable standard of review. ‘‘[A]
reviewing authority may not substitute the findings for
those of the trier of the facts. This principle applies no
matter whether the reviewing authority is the Supreme
Court . . . the Appellate Court . . . or the Superior
Court reviewing the findings of . . . attorney trial ref-
erees. . . . This court has articulated that attorney trial
referees and fact finders share the same function . . .
whose determination of the facts is reviewable in accor-
dance with well established procedures prior to the
rendition of judgment by the court. . . .
‘‘The factual findings of a [trial referee] on any issue
are reversible only if they are clearly erroneous. . . .
[A reviewing court] cannot retry the facts or pass upon
the credibility of the witnesses. . . . A finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Citations omitted;
internal quotation marks omitted.) Meadows v. Hig-
gins, 249 Conn. 155, 162, 733 A.2d 172 (1999).
On the basis of our review of the entire record, the
findings of fact, the court’s ruling on the defendant’s
objection to the findings of fact and its articulation, we
conclude that the court properly approved the findings
of fact and rendered judgment for the plaintiff. The
findings of fact are supported by the evidence, and the
conclusions reached by the fact finder and the court
are reasonably supported by the evidence. The parties
entered into an agreement that included the fees
charged for the attorneys in the plaintiff law firm. The
defendant indicated to Convicer that she wanted to
divorce her husband and to obtain custody of their
children. She also indicated that the divorce would be
contentious and the custody issues difficult. During the
course of litigation, the defendant’s spouse raised legal
issues that required the plaintiff’s lawyers to research
the marital law of Nigeria. Also, as the litigation pro-
gressed, the defendant changed her objectives and
eventually reconciled with her husband. On the basis
of our review of the evidence, we cannot say that the
findings of fact are clearly erroneous, or that the court
erred when it rendered judgment for the plaintiff.9
The judgment is affirmed.
In this opinion the other judges concurred.
1
We decline to review the claim of judicial bias as the defendant failed
to raise it in the trial court. See Wendt v. Wendt, 59 Conn. App. 656, 692,
757 A.2d 1225 (claim of judicial bias waived unless motion to disqualify
filed at trial), cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).
2
The attorney fact finder was appointed pursuant to General Statutes
§ 52-549o. Judge Graham denied the defendant’s request to have the matter
tried to the court.
3
In her counterclaim the defendant alleged breach of contract, misrepre-
sentation, breach of the implied covenant of good faith and fair dealing,
and violation of the Connecticut Unfair Trade Practices Act, General Statutes
§ 42-110a et seq.
4
In ruling on the defendant’s objection to the findings of fact, the court
stated: ‘‘It would have been better procedure for the fact finder to get back
to counsel on the counterclaim, but a review of the fact finder’s report, the
special defenses and the counterclaim convinces the court that the issues
therein were addressed in the report and conclusions were made on the
evidence as they pertained to those issues. The issue of who will represent
the [defendant] was covered in [paragraph] 6 of the report; the complexity
of the case covered in [paragraphs] 8 and 9. In his discussion, he finds that
the [defendant] failed to take her case to the Bar [Association]. As to monthly
bills, the report finds the [defendant] was aware of the amount owed and
that the [defendant] at the time of representation found it satisfactory. Any
points not reported were found to be either irrelevant or unimportant. The
court sees no point in remanding the case to the fact finder.’’
5
The defendant was dissatisfied with the court’s articulation and filed a
motion for review with this court. This court granted the motion for review
but denied the relief requested.
6
In her brief, the defendant cites the standard of review for claims
asserting errors in the court’s factual findings. Much of the defendant’s brief
consists of a recounting of the underlying facts and her perception of what
the fact finder and trial court did or did not do. As the trial court noted,
the defendant is seeking another opportunity to try her case because she
is dissatisfied with the findings of fact. It is not the function of an appellate
court to make factual determinations. See State v. Mullins, 288 Conn. 345,
359, 952 A.2d 784 (2008).
7
The defendant’s brief contains no analysis under the state constitution,
and we consider any such claim abandoned. See State v. Garcia, 108 Conn.
App. 533, 541 n.3, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d
880 (2008).
8
Even if the defendant had raised those claims in the trial court, the court
would not have been able to resolve them. Claims of attorney misconduct
are considered pursuant to the rules of practice. See Practice Book § 2-1
et seq.
9
We agree with Judge Rittenband that it would have been better procedur-
ally for the fact finder to have responded to the request of the defendant’s
counsel to apprise him of the status of the defendant’s counterclaim that
was filed on the eve of the hearing. Despite this procedural irregularity, the
findings of fact demonstrate that the fact finder considered the issues raised
by the defendant in her special defenses and counterclaim. The fact finder’s
failure to communicate with the defendant’s counsel has not resulted in
any prejudice to her.