Computer Reporting Services, LLC v. Lovejoy & Associates, LLC , 167 Conn. App. 36 ( 2016 )

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COMPUTER REPORTING SERVICE, LLC
v. LOVEJOY AND ASSOCIATES,
LLC, ET AL.
(AC 37257)
Alvord, Prescott and Mullins, Js.
Argued March 2—officially released July 19, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Michael Hartmere, judge trial referee.)
Frederick A. Lovejoy, self-represented, for the appel-
lants (named defendant et al.).
John W. Mills, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendants Lovejoy & Associates,
LLC (law firm), and Attorney Frederick A. Lovejoy
appeal from the judgment of the trial court rendered
in favor of the plaintiff, Computer Reporting Service,
LLC, on its complaint alleging, inter alia, breach of con-
tract arising from the defendants’ failure to pay for
court reporting services that the plaintiff provided for
several depositions taken by Lovejoy in an unrelated
federal action.1 The defendants also appeal from the
judgment rendered in favor of the plaintiff on their
counterclaims. The defendants claim on appeal that the
court improperly (1) determined that an enforceable
contract existed; (2) found that the defendants had
faxed copies of the deposition notices to the plaintiff;
(3) determined that Lovejoy was personally liable to
the plaintiff for breach of contract in the absence of
any evidence showing that he acted in his individual
capacity rather than on behalf of the law firm; (4) failed
to conclude that the defendants’ client in the federal
action, Ensign Yachts, was solely responsible for paying
the plaintiff for its services; (5) awarded $13,564.64 in
attorney’s fees pursuant to General Statutes § 52-251a;
(6) rejected the defendants’ counterclaims, which
alleged slander, abuse of process, and violation of the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. (2012); and (7) admitted evidence presented by the
plaintiff at trial despite the plaintiff’s failure to comply
with the court’s trial management order and its alleged
spoliation of other evidence.
On the basis of our review of the record, we agree
with the defendants that the court improperly held
Lovejoy individually liable for breach of contract, but
we are not persuaded by the remainder of the defen-
dants’ claims. Accordingly, we reverse the judgment of
the trial court in part, and remand the case with direc-
tion to render judgment in favor of Lovejoy as to count
one of the operative complaint alleging breach of con-
tract. We affirm the judgment in all other respects,
including the court’s decision to award costs and attor-
ney’s fees.
The following facts, which either were found by the
court in its oral memorandum of decision or are undis-
puted in the record, and procedural history are relevant
to our consideration of the defendants’ appeal.2 The
plaintiff is a Connecticut company that provides court
reporting services to attorneys throughout the state.
The law firm is a limited liability company with Lovejoy
as its sole member.
On or around June 18, 2010, Lovejoy, on behalf of
the law firm, noticed the deposition of a witness in a
federal action. Lovejoy faxed a copy of the deposition
notice to the plaintiff, which the parties understood to
be a request that the plaintiff provide a court reporter
to record and transcribe the noticed deposition, which
was scheduled for June 24, 2010. The plaintiff per-
formed as requested, and the defendants were later
provided with a copy of a deposition transcript and a
bill for $1401.32. This same procedure was followed
with respect to two additional depositions, one con-
ducted on August 20, 2010, and the other on August 23,
2010. In each instance, the plaintiff was faxed a copy
of the deposition notice, provided the requested court
reporting services, and later provided the defendants
with a transcript and a bill. The bills for the latter two
depositions were for $1246.56 and $812.49, respectively.
The bills for the three depositions totaled $3460.37.
The defendants accepted delivery of the transcripts and
utilized them without raising any complaint about the
plaintiff’s services or the quality of the work product
provided. The bills, however, were never paid, despite
repeated collection efforts by the plaintiff.3
In January, 2013, the plaintiff commenced a small
claims action against the defendants alleging breach of
contract. The defendants successfully moved to trans-
fer the matter to the regular docket of the Superior
Court, arguing that they had a good defense to the
plaintiff’s claim and wished to preserve their right to
appeal. See General Statutes § 51-197a (a) (no right
of appeal from small claims judgment). They filed an
answer on May 23, 2013, asserting a number of special
defenses and three counterclaims alleging slander,
abuse of process, and unfair debt collection practices.
The plaintiff subsequently impleaded Ensign Yachts and
filed an amended complaint. This operative amended
complaint consisted of two counts: count one alleged
breach of contract against the defendants, and count
two alleged unjust enrichment on the part of Ensign
Yachts.4 Ensign Yachts failed to appear and was
defaulted.
The matter was tried to the court, Hon. Michael Hart-
mere, judge trial referee, on June 26, 2014.5 Following
testimony and closing arguments by counsel, the court
issued a brief oral decision from the bench. The court
found in favor of the plaintiff on both counts of the
operative complaint. With respect to the breach of con-
tract count, the court found that the defendants had
contracted with the plaintiff for court reporting ser-
vices, and that they breached that contract by failing
to pay for the services rendered, irrespective of any
separate payment arrangement that may have existed
between the defendants and Ensign Yachts. The court
rejected all of the defendants’ special defenses, and
awarded damages of $3460.37. It also found in favor of
the plaintiff on each of the defendants’ counterclaims.
The court noted that attorney’s fees and costs would
be decided at a later date, after the plaintiff had submit-
ted the appropriate paperwork. The court rendered
judgment in accordance with its oral decision on July
3, 2014.6
Also on July 3, 2014, the plaintiff filed a motion for
attorney’s fees and prejudgment interest pursuant to
General Statutes § 37-3a (a). It also filed a bill of costs.
On August 11, 2014, the trial court clerk issued an order
indicating that, in the absence of any objection to the
plaintiff’s bill of costs, costs would be taxed pursuant
to Practice Book § 18-5. On September 11, 2014, the
court granted the plaintiff’s motion for attorney’s fees
and awarded prejudgment interest at a rate of 5 percent.
The defendants filed this appeal on October 1, 2014.7
I
The defendants first claim that the court improperly
determined that an enforceable contract existed. Spe-
cifically, they argue that the plaintiff failed to meet its
burden of establishing that there was a ‘‘meeting of the
minds,’’ which is a prerequisite to the formation of a
valid contract. We are not persuaded.
‘‘The elements of a breach of contract action are the
formation of an agreement, performance by one party,
breach of the agreement by the other party and dam-
ages.’’ (Internal quotation marks omitted.) Sullivan v.
Thorndike, 104 Conn. App. 297, 303, 934 A.2d 827 (2007),
cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416
(2008). ‘‘In order to form a binding and enforceable
contract, there must exist an offer and an acceptance
based on a mutual understanding by the parties. . . .
The mutual understanding must manifest itself by a
mutual assent between the parties.’’ (Internal quotation
marks omitted.) Krondes v. O’Boy, 37 Conn. App. 430,
434, 656 A.2d 692 (1995). In other words, to prove the
formation of an enforceable agreement, a plaintiff must
establish the existence of ‘‘a mutual assent, or a ‘meeting
of the minds’ . . . .’’ Herbert S. Newman & Partners,
P.C. v. CFC Construction Ltd. Partnership, 236 Conn.
750, 764, 674 A.2d 1313 (1996); see also Bridgeport Pipe
Engineering Co. v. DeMatteo Construction Co., 159
Conn. 242, 246, 268 A.2d 391 (1970) (‘‘burden rested on
the plaintiff to prove a meeting of the minds to establish
its version of the claimed contract’’).
‘‘The parties’ intentions manifested by their acts and
words are essential to the court’s determination of
whether a contract was entered into and what its terms
were. . . . Whether the parties intended to be bound
without signing a formal written document is an infer-
ence of fact [to be made by] the trial court . . . .’’
(Internal quotation marks omitted.) MD Drilling &
Blasting, Inc. v. MLS Construction, LLC, 93 Conn. App.
451, 454–55, 889 A.2d 850 (2006). ‘‘[M]utual assent is to
be judged only by overt acts and words rather than by
the hidden, subjective or secret intention of the parties.’’
1 S. Williston, Contracts (4th Ed. Lord 2007) § 4.1, p. 325.
Turning to the present case, the court determined
that there was ‘‘a contractual agreement between the
plaintiff and the defendants.’’ Because there was no
written agreement, and, therefore, no definitive con-
tract language to interpret, determining who was a party
to the contract and the intent of those parties with
respect to the terms of any contractual agreement
involved factual determinations that we will reverse
only if clearly erroneous. See Joseph General Con-
tracting, Inc. v. Couto, 317 Conn. 565, 574–75, 119 A.3d
570 (2015). Although its decision contains no specific
reference to a ‘‘meeting of the minds’’ and, in fact,
contains very few factual findings relative to the forma-
tion of a contract,8 a finding of mutual assent is never-
theless implicit within the court’s express finding that
a contract existed. See Tsionis v. Martens, 116 Conn.
App. 568, 577, 976 A.2d 53 (2009). Moreover, our review
of the record before the trial court reveals that there
was sufficient evidence to support the court’s finding
that a valid contact existed.
The court found that Lovejoy had faxed copies of the
deposition notices to the plaintiff.9 It was not disputed
at trial that the purpose of providing the plaintiff with
notice of the depositions was to alert the plaintiff of
the defendants’ need for a court reporter to assist with
the deposition at the time and place indicated. All par-
ties agreed it was customary for attorneys to request
court reporting services in this manner, and, thus, it
was reasonable for the court to have viewed Lovejoy’s
actions as manifesting an offer of payment in exchange
for the plaintiff’s services, an offer that the plaintiff
accepted by sending a reporter to the depositions to
perform the requested services. The defendants have
never argued that there was any confusion regarding
the type of services bargained for or the cost for such
services. Although the defendants claim that it was their
intent that their client ultimately be responsible for the
cost of the depositions, the court found that that intent
was never communicated to the plaintiff until after the
plaintiff sought payment from the defendants. The exis-
tence of a hidden or subjective intent on the part of
one party to a contract does not render a finding of
mutual assent clearly erroneous. See 1 S. Williston,
supra, § 4.1, p. 325. On the basis of our review, we
conclude that the court’s finding that an enforceable
agreement existed was supported by the record, and
the evidence before the court was sufficient to support
its implicit finding of mutual assent to that agreement.
II
The defendants next claim that the court’s finding
that they faxed copies of the deposition notices to the
plaintiff was clearly erroneous. We disagree.
‘‘[W]e will upset a factual determination of the trial
court only if it is clearly erroneous. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . We cannot retry the
facts or pass on the credibility of the witnesses. A find-
ing of fact is clearly erroneous when there is no evi-
dence 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.’’ (Inter-
nal quotation marks omitted.) Surrells v. Belinkie, 95
Conn. App. 764, 767, 898 A.2d 232 (2006).
The defendants rely heavily upon the fact that the
copies of the deposition notices admitted as exhibits
at trial contained fax transmittal data that indicated
that the notices had been faxed to the plaintiff long
after this action was commenced and by someone other
than the defendants. The plaintiff’s principal testified
at trial, however, that copies of the deposition notices
were faxed to the plaintiff’s office by the defendants
prior to the depositions and that this was how the plain-
tiff knew to send a reporter to cover the depositions.
The plaintiff also explained that it had not kept copies
of the deposition notices faxed by Lovejoy as part of
its business records, and, thus, it had to obtain copies
from a third party, namely, the firm that opposed the
defendants in the federal action for which the deposi-
tions were noticed. Lovejoy provided contradictory tes-
timony at trial, first agreeing that he had faxed the
notices to the plaintiff, but later claiming that he had
not. The court was entitled to believe the plaintiff’s
testimony over the testimony of Lovejoy, and, as we
have often stated, it is not our role to second-guess the
court’s credibility determinations. See State v.
DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014)
(‘‘It is the exclusive province of the trier of fact to weigh
conflicting testimony and make determinations of credi-
bility, crediting some, all or none of any given witness’
testimony. . . . Questions of whether to believe or to
disbelieve a competent witness are beyond our review.’’
[Internal quotation marks omitted.]). Because there is
evidence in the record that supports the court’s finding
that the defendants faxed the deposition notices to the
plaintiff, and because we lack any conviction that the
court made a definite mistake in this regard, we reject
the defendants’ claim that the court based its judgment
on a clearly erroneous factual finding.
III
We turn next to the defendants’ claim that the court
improperly failed to conclude that, even if the defen-
dants entered into a contract with the plaintiff, they
did so only as the disclosed agents for Ensign Yachts,
and, therefore, Ensign Yachts was the only party legally
responsible for the plaintiff’s unpaid invoices. The
defendants argue that their claim finds support in gen-
eral principles of agency law, which the court failed to
apply properly.10 They also argue that, although their
research failed to uncover any Connecticut court deci-
sions addressing whether an attorney could be held
liable for not paying a court reporter for work con-
ducted on behalf of the attorney’s client, they brought
to the court’s attention New York case law indicating
that the client generally is responsible for payment, and
the court improperly refused to adopt that approach in
the present case. We are not persuaded by either of the
defendants’ arguments.
A
We first address the defendants’ contention that, on
the basis of well understood principles of agency law,
the court should not have found them liable to the
plaintiff for the unpaid court reporting services. We
disagree.
‘‘Unless a statute provides to the contrary . . . prin-
cipals may act through agents . . . and may appoint
agents by written or spoken words or other conduct.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Fairfield County National Bank v.
DeMichely, 185 Conn. 463, 470–71, 441 A.2d 569 (1981),
citing Restatement (Second), Agency §§ 17, 26 (1958).
It long has been recognized ‘‘that an agent is not liable
to be sued upon contracts made [o]n behalf of his princi-
pal, if the name of his principal is disclosed, and made
known to the party contracted with, at the time of
entering into the contract.’’ (Emphasis added; internal
quotation marks omitted.) Adams v. Whittlesey, 3 Conn.
560, 566 (1821); see also Joseph General Contracting,
Inc. v. Couto, supra, 317 Conn. 579 (‘‘[a]n authorized
agent for a disclosed principal, in the absence of circum-
stances showing that personal responsibility was
incurred, is not personally liable to the other con-
tracting party’’ [internal quotation marks omitted]);
Rich-Taubman Associates v. Commissioner of Reve-
nue Services, 236 Conn. 613, 619, 674 A.2d 805 (1996)
(‘‘[u]nder the rules of agency, [u]nless otherwise agreed,
a person making or purporting to make a contract with
another as agent for a disclosed principal does not
become a party to the contract’’ [internal quotation
marks omitted]).
It is also well settled law in this state that ‘‘[i]t is the
duty of the agent, if he would avoid personal liability
on a contract entered into by him on behalf of his
principal, to disclose not only the fact that he is acting
in a representative capacity, but also the identity of his
principal, as the person dealt with is not bound to
inquire whether or not the agent is acting as such for
another. . . . If he would avoid personal liability, the
duty is on the agent to disclose his principal and not
on the party with whom he deals to discover him.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Klepp Wood Flooring Corp. v. But-
terfield, 176 Conn. 528, 532–33, 409 A.2d 1017 (1979).
Whether the defendants in the present case contracted
with the plaintiff as disclosed agents for their client
and, as a result, should not have been held liable for
breach of contract, presents a question of fact for the
trial court. See Pelletier Mechanical Services, LLC v.
G & W Management, Inc., 162 Conn. App. 294, 308, 131
A.3d 1189 (whether agent disclosed identity of principal
so as to avoid liability on contract is question of fact),
cert. denied, 320 Conn. 932, 134 A.3d 622 (2016).
The defendants argued at trial that the plaintiff should
have known from reading the deposition notices that
the depositions were being conducted by the defen-
dants for their client, Ensign Yachts, whose name
appeared on the deposition notice. According to the
defendants, this should have been sufficient to inform
the plaintiff that the defendants intended to contract
for the plaintiff’s services solely in their capacity as an
agent for their disclosed principal. The defendants also
submitted into evidence a letter that Lovejoy had sent to
the plaintiff on behalf of his law firm in 2007, regarding
overdue payments for other deposition invoices. In the
letter, Lovejoy indicated that the defendants would not
pay the late invoices because ‘‘1) we are hiring [the
plaintiff] as a disclosed agent of our client; thus, it is
our client’s responsibility to pay [the plaintiff], and 2)
because of the extremely small size of this law firm, it
cannot act as a bank . . . .’’
In its oral decision, the court rejected the defendants’
arguments. The court found that the faxing of the notice
of depositions to the plaintiff did not equate to notice
by the defendants that they ‘‘did not feel obligated to
pay for the court reporting services.’’ We construe this
as an implicit finding that the defendants failed to give
the required notice that they were contracting only in
a representative capacity for Ensign Yachts. The court
also found that the 2007 letter that Lovejoy had mailed
years earlier involved outstanding invoices for unre-
lated depositions, and that ‘‘[i]t [was] not a blanket
statement or notice to the plaintiff that the [defendants]
did not feel obligated to pay for future services and
invoices.’’
The law clearly places the burden on the agent to
ensure that any party the agent contracts with is on
notice that the agent is acting only in a representative
capacity if the agent wishes to avoid personal liability.
It follows that any ambiguity in that notice obligation
properly should be resolved against the agent, as the
other party has no obligation to investigate. The notice
of deposition certainly identified that Lovejoy intended
to take a deposition on behalf of a client whose name
was clearly disclosed. There is no definitive language
in the deposition notice, however, that reasonably can
be construed as giving any clear indication as to which
party would be responsible for payment of court
reporting services. This is further borne out by the fact
that the defendants have failed to identify how the con-
tent of the notice of deposition would have changed
had the defendants wished to signal that they intended
to pay the plaintiff rather than payment being made by
their client. As correctly indicated by the court, the
2007 letter does not contain any language suggesting
that it was intended to pertain to all future dealings
between the parties, and, thus, it has little relevance to
the issues at hand. If the defendants wished to ensure
that they were not held liable under any implied contrac-
tual agreement flowing from the notice of deposition
that they faxed to the plaintiff, they should have clearly
indicated that intent contemporaneously. Once a party
has entered into a contract for services, it cannot later
disclaim responsibility for payment under the theory
that it was acting solely on behalf of another.11 The
agency relationship must be disclosed at the time of
contracting. We will not overturn the court’s implicit
finding that the defendants were not acting as agents
for a disclosed principal because that finding is reason-
able and supported by the record.
B
The defendants also argue that the court improperly
failed to consider and apply certain New York court
decisions that they brought to the court’s attention and
that the defendants argue demonstrate that they should
not be liable to the plaintiff. We agree with the plaintiff
that the defendants have failed to adequately brief this
argument on appeal.
‘‘We do not reverse the judgment of a trial court on
the basis of challenges to its rulings that have not been
adequately briefed. . . . The parties may not merely
cite a legal principle without analyzing the relationship
between the facts of the case and the law cited. . . .
[A]ssignments of error which are merely mentioned but
not briefed beyond a statement of the claim will be
deemed abandoned and will not be reviewed by this
court.’’ (Internal quotation marks omitted.) Coppola
Construction Co. v. Hoffman Enterprises Ltd. Partner-
ship, 157 Conn. App. 139, 179, 117 A.3d 876, certs.
denied, 318 Conn. 902, 122 A.3d 631, 123 A.3d 882 (2015).
Other than providing a few case citations, the defen-
dants’ brief is devoid of any discussion or legal analysis
of the New York cases cited or why this court should
find them instructive in light of the particular facts of
the present case. Because the defendants have failed to
adequately brief this argument, we decline to review it.
Perhaps more troubling than the lack of legal analysis
is the apparent mischaracterization of New York law.
According to the defendants, in all judicial departments
of the Appellate Division of the New York Supreme
Court, with the exception of the First Department, the
law is that the client is responsible for court reporting
costs unless those costs are specifically acknowledged
and assumed by the attorney. In the First Department,
the defendants state that the responsibility for payment
lies with the attorney unless disclaimed. The case relied
on by the defendants, however, in support of their prop-
osition that, in all but the First Department, an attor-
ney’s client generally is responsible for paying for court
reporting services, Sullivan v. Greene & Zinner, P.C.,
283 A.D. 2d 420, 723 N.Y.S.2d 869 (2001), is no
longer good law. Its holding has been superseded by
New York General Business Law § 399-cc (McKinney
2012), which is now the applicable law in all New York
jurisdictions. Section 399-cc provides in relevant part:
‘‘Notwithstanding any other provision of law to the con-
trary, when an attorney of record orders or requests
either orally or in writing that a stenographic record
be made of any judicial proceeding, deposition, state-
ment or interview of a party in a proceeding or of
a witness related to such proceeding, it shall be the
responsibility of such attorney to pay for the services
and the costs of such record except where . . . the
attorney expressly disclaims responsibility for pay-
ment of the stenographic service or record in writing
at the time the attorney orders or requests that the
record be made.’’ (Emphasis added.) As previously dis-
cussed, the court found that the defendants failed
expressly to disclaim responsibility for payment at the
time services were requested. Accordingly, even if the
court had applied New York law as the defendants
requested, it is unlikely to have altered the court’s deci-
sion in this case.
IV
The defendants next claim that the court improperly
concluded that Lovejoy was personally liable to the
plaintiff for breach of contract. According to the defen-
dants, Lovejoy never contracted with the plaintiff in his
individual capacity, but acted at all relevant times as a
member of his law firm, which is a limited liability
company. Thus, the defendants contend, any debt
incurred as a result of Lovejoy’s actions was the law
firm’s alone, and the plaintiff proffered no evidence
on which the court could have relied to ‘‘pierce the
corporate veil’’ or otherwise hold Lovejoy personally
liable for the debt claimed by the plaintiff. We agree,
and reverse that portion of the judgment holding
Lovejoy liable for breach of contract.
We exercise plenary review in considering whether
the court properly imposed individual liability on
Lovejoy based on the facts found by the court, which
themselves are subject to review only for clear error.
See Joseph General Contracting, Inc. v. Couto, supra,
317 Conn. 581. In so doing, we examine the record to
determine if there is sufficient evidence from which the
court could have concluded that Lovejoy was acting as
anything other than an agent of his law firm. Id. If no
such evidence exists, the court lacked a legal basis to
impose personal liability.
Individual members of a limited liability company
generally are not liable for debts incurred by members
on behalf of the company. See General Statutes § 34-
133 (a). Section 34-133 (a) provides in relevant part:
‘‘[A] person who is a member or manager of a limited
liability company is not liable, solely by reason of being
a member or manager, under a judgment, decree or
order of a court, or in any other manner, for a debt,
obligation or liability of the limited liability company,
whether arising in contract, tort or otherwise . . . .’’
Our Supreme Court has stated that it is improper to
hold an owner or officer of a business entity jointly and
severally liable with that business solely on the basis
of a theory that they engaged in ‘‘joint action.’’ (Internal
quotation marks omitted.) Joseph General Contracting,
Inc. v. Couto, supra, 317 Conn. 577. Specifically, the
court stated: ‘‘We disagree with the notion that proving
joint action between an entity and one of its owners
and officers is the basis for finding liability. Indeed,
such a theory ignores the reality that this court has
recognized that the fact that [an owner of a corporation]
acted on behalf of [the corporation] is no more than a
reflection of the reality that all corporations act through
individuals. It is axiomatic that while such an entity has
a distinct legal life, it can act only through individuals.’’
(Internal quotation marks omitted.) Id.
Our review of the record and the findings of the trial
court reveals no evidence indicating that Lovejoy acted
in his individual capacity rather than as a member of
the law firm. Although each of the deposition notices
was signed by Lovejoy, his signature appears after the
name of the law firm, which is identified as the entity
representing Ensign Yachts and, therefore, the law firm
noticing the deposition. Accordingly, to the extent that
the deposition notice represents an offer to enter into
a contractual agreement, the evidence tended to show
that offer was extended to the plaintiff by the law firm,
not by Lovejoy individually. The court in its decision
makes no factual findings on which it could have
imposed individual liability. The court’s decision is com-
pletely silent as to whether the court believed that
Lovejoy had acted in such a way as to suggest he was
contracting in his individual capacity or that it was
appropriate under the facts of this case to somehow
‘‘pierce the corporate veil.’’12 The plaintiff states that
Lovejoy is a sole practitioner and that he and the law
firm are ‘‘one and the same.’’ That fact alone, however,
simply cannot support the imposition of individual lia-
bility in contravention of § 34-133. Because there
appears to be insufficient evidence to support the
court’s decision to hold Lovejoy personally liable for
acts taken on behalf of his law firm, that decision can-
not stand.
V
The defendants next claim that the court improperly
awarded attorney’s fees and costs totaling $13,564.64
pursuant to § 52-251a. Section 52-251a authorizes the
court to award reasonable attorney’s fees and costs to
a prevailing plaintiff if the matter was transferred on
the defendant’s motion from the small claims docket
to the regular docket of the Superior Court. The defen-
dants advance three arguments in support of this claim.
First, they argue that § 52-251a is inapplicable because
they did not voluntarily transfer the action from the
small claims docket to the regular docket, but only did
so at the direction of the small claims clerk and in
reliance on a Judicial Branch publication concerning
small claims procedures that contained no indication
that a defendant could be liable for attorney’s fees if
he successfully moved to have a small claims matter
transferred to the regular docket. Second, they argue
that a portion of the attorney’s fees awarded by the
court was attributable to the plaintiff’s prosecution of
the unjust enrichment count against Ensign Yachts.
Third, the defendants challenge the factual basis for
the court’s award, namely, arguing that the plaintiff’s
primary witness lied about the existence of a retainer
agreement and that the $350 hourly rate contained in
the retainer agreement was higher than the rate actually
charged by the plaintiff’s counsel. We find no merit in
these arguments, each of which we address in turn.
‘‘An award of attorney’s fees [pursuant to § 52-251a]
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 . . . . 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.’’ (Citations
omitted; internal quotation marks omitted.) LaMon-
tagne v. Musano, Inc., 61 Conn. App. 60, 63–64, 762
A.2d 508 (2000).
A
The defendants’ first argument concerns the applica-
bility of § 52-251a. ‘‘Because the interpretation of a stat-
ute, as well as its applicability to a given set of facts and
circumstances, involves a question of law, our review is
plenary.’’ (Internal quotation marks omitted.) Florian
v. Lenge, 91 Conn. App. 268, 276, 880 A.2d 985 (2005);
see also Lee v. Stanziale, 161 Conn. App. 525, 534,
128 A.3d 579 (2015) (‘‘proper construction of § 52-251a
presents a question of law over which our review is
plenary’’), cert. denied, 320 Conn. 915, 131 A.3d 750
(2016).
Section 52-251a provides: ‘‘Whenever the plaintiff pre-
vails in a small claims matter which was transferred to
the regular docket in the Superior Court on the motion
of the defendant, the court may allow to the plaintiff
his costs, together with reasonable attorney’s fees to
be taxed by the court.’’ By its operation, ‘‘[s]ection 52-
251a . . . creates a substantial and effective disincen-
tive for a defendant who might otherwise raise defenses
bordering on the frivolous in an effort to gain a tactical
advantage over a plaintiff by obtaining a transfer of a
case from the Small Claims division. . . . [T]he very
purpose of § 52-251a is to deter . . . defendants from
transferring a case from the small claims session and
turning a relatively clear-cut case into a pitched legal
battle.’’ (Citation omitted; internal quotation marks
omitted.) Costanzo v. Mulshine, 94 Conn. App. 655, 665,
893 A.2d 905, cert. denied, 279 Conn. 911, 902 A.2d
1070 (2006).
In Lee v. Stanziale, supra, 161 Conn. App. 534, this
court established that a determination as to the applica-
bility of § 52-251a turns upon five essential elements as
plainly set forth in the statutory language: ‘‘(1) that the
action originally was commenced in the small claims
docket of the Superior Court; (2) that the defendant
moved to transfer the action to the regular docket of
the Superior Court; (3) that the action was so trans-
ferred; (4) that the plaintiff prevailed in the action; and
(5) that the trial court deemed an award of attorney’s
fees and costs appropriate.’’ The defendants’ argument,
which seeks to avoid operation of the statute, relates
to the second element. The defendants do not dispute
that they filed a motion to transfer the present action
to the regular docket. They argue, however, that they
only did so ‘‘involuntarily’’ because they were informed
by the small claims clerk that if they wished to file
counterclaims against the plaintiff in an amount
exceeding $5000, they first needed to have the matter
transferred to the regular docket. This hardly rendered
the defendants’ decision to move to transfer the matter
to the regular docket ‘‘involuntary.’’
The docket of the small claims session of the Superior
Court is barred from hearing claims seeking money
damages of more than $5000 or any action alleging libel
and slander. General Statutes § 51-15 (d). Accordingly,
as correctly instructed by the clerk, the defendants
could not file their counterclaims, which alleged slander
and sought damages in excess of $5000, with the small
claims court. This left the defendants with a choice:
leave the matter in the small claims session and forgo
raising their counterclaims, which, on the basis of their
lack of success at trial were, if not frivolous, dubious
at best, or move to transfer the case to the regular
docket and be subject to § 52-251a. The defendants
chose the latter. Because this matter was ‘‘transferred
to the regular docket in the Superior Court on the
motion of the defendant[s],’’ the court had the discre-
tionary authority to award the prevailing plaintiff both
costs and attorney’s fees. General Statutes § 52-251a.
There is simply no merit to the defendants’ argument
that § 52-251a was inapplicable on the facts presented.
B
The defendants next argue that the court improperly
ordered them to pay for attorney’s fees that they allege
were solely or partially attributable to the plaintiff’s
prosecution of the unjust enrichment count against
Ensign Yachts. The defendants, however, have failed
to provide any analysis in support of this argument,
including any legal support for their proposition that
the trial court was required to engage in some appor-
tionment of the attorney’s fees. Although the defendants
raised this argument to the court in their objection to
the plaintiff’s motion for attorney’s fees, that objection
also contained no legal analysis, but merely identified
what the defendants noted from their review of the
billing records as $6745 in fees allegedly attributable
to Ensign Yachts. The court overruled the defendants’
objection without comment. Because the defendants
have failed to adequately brief this argument, we decline
to review it further.
C
Lastly, the defendants argue that the court utilized
an incorrect hourly rate of $350 in calculating its award
of attorney’s fees. We find no merit in this argument.
As we have indicated, we will disturb a court’s calcu-
lation of attorney’s fees only upon a showing of a clear
abuse of discretion. Here, the court did not issue a
written decision setting forth its calculations, and none
of the parties sought an articulation or clarification.
Nevertheless, the court awarded attorney’s fees in the
amount requested in the plaintiff’s motion, to which
were attached billing statements and an affidavit from
a practicing trial attorney, who averred that both the
hourly rate of $350 and the amount of time billed were
reasonable and customary for the work provided. We
can infer from the court’s adoption of the amount of
fees requested that it found the plaintiff’s calculations
reasonable, including the hourly rate of $350. The defen-
dants produced no evidence suggesting that the $350
hourly rate is unreasonable or inappropriate given the
nature of this type of litigation. Because there is eviden-
tiary support for the court’s award, we will not disturb
its calculations.
VI
The defendants next claim that the court improperly
ruled in favor of the plaintiff on their counterclaim
alleging abuse of process.13 According to the defen-
dants, the plaintiff was liable for abuse of process
because it threatened to file a grievance action against
Lovejoy for failing to pay for the plaintiff’s services, and
it filed this action against Lovejoy individually, despite
knowing that Lovejoy never did business under his own
name. The court rejected the counterclaim without dis-
cussion, stating only that the defendants had failed to
present sufficient evidence to establish abuse of pro-
cess. Having reviewed and considered the record in this
case, including the briefs and arguments of the parties
on appeal, we are not persuaded that the court commit-
ted reversible error in rejecting the defendants’ abuse
of process counterclaim and rendering judgment in
favor of the plaintiff. This claim warrants no further dis-
cussion.
VII
Finally, the defendants claim that the court should
have precluded the plaintiff from submitting any evi-
dence at trial in light of either (a) the plaintiff’s failure
to comply with the civil court trial management order
or (b) its alleged spoliation of other evidence. Neither
of those arguments, however, was raised to or decided
by the trial court. Accordingly, they have not properly
been preserved for appellate review, and we decline to
review them. See Billboards Divinity, LLC v. Commis-
sioner of Transportation, 133 Conn. App. 405, 411, 35
A.3d 395, cert. denied, 304 Conn. 916, 40 A.3d 783 (2012).
The judgment is reversed in part and the case is
remanded to the trial court with direction to render
judgment in favor of Lovejoy on count one of the opera-
tive complaint. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
In addition to the breach of contract count against the defendants, the
operative amended complaint contains a second count alleging unjust enrich-
ment against Ensign Yachts, Inc. (Ensign Yachts), the defendants’ client and
the plaintiff in the federal action, Ensign Yachts, Inc. v. Jon Arrigoni et
al., United States District Court, Docket No. 3:09CV0209 (VLB) (D. Conn.
February 4, 2009). In the present case, Ensign Yachts was defaulted for
failing to appear, and the court later rendered judgment on the default.
Ensign Yachts has not appealed from the judgment rendered against it or
participated in the present appeal. Accordingly, we refer to the law firm
and Lovejoy collectively as the defendants.
2
We note that although the court filed a copy of the portion of the June
26, 2013 trial transcript containing its oral decision, that copy is unsigned.
Pursuant to Practice Book § 64-1 (a), in all civil trials to the court, the court
must state a decision that ‘‘shall encompass its conclusion as to each claim
of law raised by the parties and the factual basis therefor,’’ and, if the court
chooses to render its decision orally, the oral decision must be recorded
by a court reporter. If an appeal is filed, the court must order a transcript
of its oral decision and file a signed copy of that transcript with the clerk
of the trial court for use in the appeal. Practice Book § 64-1 (a). If that
procedure is not followed, subsection (b) of Practice Book § 64-1 requires
the appellant to notify the appellate clerk, who, in turn, notifies the trial
judge of the oversight. After receiving notice from the appellate clerk, the
court ‘‘shall thereafter comply with subsection (a).’’ Practice Book § 64-1
(b). Ultimately, however, it is the appellant’s responsibility to ensure that
this court has an adequate record for review, which necessarily includes a
properly signed memorandum of decision. See Practice Book § 61-10. ‘‘When
the record does not contain either a [written] memorandum of decision or
a transcribed copy of an oral decision signed by the trial court stating the
reasons for its decision, this court frequently has declined to review the
claims on appeal because the appellant has failed to provide the court with
an adequate record for review. . . . [However] [i]f there is an unsigned
transcript on file in connection with an appeal, the claims of error raised
by the plaintiff may be reviewed if this court determines that the transcript
adequately reveals the basis of the trial court’s decision.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.) Solano v. Calegari, 108
Conn. App. 731, 734 n.4, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959
A.2d 1010 (2008). Although there is no indication in the record that the
defendants took any step to ensure that the record contained a properly
signed transcript, because an unsigned copy is available to us and adequately
reveals the basis of the court’s decision, we will consider it in addressing
the defendants’ claims.
3
The defendants took the position that the sole responsibility for payment
of deposition costs belonged to Ensign Yachts, for whom the depositions
were conducted, and that they properly forwarded the plaintiff’s bills and
all subsequent requests for payment to Ensign Yachts. Ensign Yachts alleg-
edly was unable to pay the bills until May, 2014, at which time it tendered a
check to the plaintiff for $3460.37. The plaintiff rejected the check, however,
because it contained language effectively waiving all claims by the plaintiff
against the defendants and Ensign Yachts. Because accepting the tendered
payment arguably would have precluded the plaintiff from continuing to
seek reimbursement for its costs and attorney’s fees incurred in the collec-
tion action, the plaintiff returned the check.
4
The defendants raised as a claim in their preliminary statement of issues
on appeal that the court improperly treated the amended complaint as the
operative complaint because it was never properly served on the defendants.
That issue, however, is not raised or addressed in the defendants’ appellate
brief, and, thus, we deem it abandoned. See Sturman v. Socha, 191 Conn.
1, 3 n.2, 463 A.2d 527 (1983) (issue raised in preliminary statement of issues
but not pursued in brief deemed abandoned); Brown v. Otake, 164 Conn.
App. 686, 698–99 n.8, A.3d (2016) (same).
5
With respect to Ensign Yachts, the trial served as a hearing in damages.
6
The plaintiff also asked the court to refer Lovejoy to the Statewide
Grievance Committee, arguing that his failure to pay a court reporter for
four years and then removing the small claims action to Superior Court
solely to cause further delay was unprofessional conduct warranting a repri-
mand. The court, however, declined to make such a referral.
7
The plaintiff filed a motion to dismiss the appeal as late. It argued that,
although the court had rendered a judgment disposing of all counts of the
complaint on July 3, 2014, the defendants waited nearly three months to
file the present appeal. An appealable final judgment in this matter, however,
did not arise until the trial court issued notice on September 11, 2014, of
its ruling on the plaintiff’s motion for prejudgment interest. See Balf Co. v.
Spera Construction Co., 222 Conn. 211, 214–15, 608 A.2d 682 (1992) (no
appealable final judgment if court renders judgment assessing damages but
has not ruled on claim for discretionary prejudgment interest). Because the
defendants filed the present appeal within twenty days from the issuance
of notice of the court’s decision regarding prejudgment interest, it is timely.
See Practice Book § 63-1 (a). Accordingly, this court denied the plaintiff’s
motion to dismiss. The plaintiff nevertheless raised the timeliness of the
appeal again in its appellate brief and at oral argument. To the extent that
the plaintiff’s efforts to revisit this issue can be construed as a request for
reconsideration, we decline to revisit our prior ruling.
8
The primary argument raised by the defendants before the trial court
did not focus upon whether a valid contract was formed, but whether any
contract that did exist was entered into by the defendants acting solely as
the disclosed agents of Ensign Yachts or with the understanding that Ensign
Yachts, and not the defendants, ultimately was liable for payment. It is thus
understandable why the trial court’s oral decision is limited in analytical
details regarding contract formation. None of the parties sought further
clarification or articulation of the factual or legal basis for the court’s ruling
and, thus, we endeavor to review the claims raised on appeal, if possible, on
the basis of the record presented. See Milford Bank v. Phoenix Contracting
Group, Inc., 143 Conn. App. 519, 526–27 n.3, 72 A.3d 55 (2013).
9
Although, as discussed later in this opinion, the defendants challenge
that particular factual finding, they do not dispute that the plaintiff provided
its services in response to a request for those services communicated in
some fashion by Lovejoy.
10
The defendants raised this issue to the court as the first of eight special
defenses, stating: ‘‘The defendant(s) were disclosed agents of [Ensign
Yachts], and, as such, are not liable to plaintiff.’’ In its decision, the court
found in favor of the plaintiff on the first special defense without comment.
11
At trial, Lovejoy testified that he also had disclaimed responsibility for
payment on order forms that he filled out and gave to the court reporters
at the time of the depositions. He was unable to offer copies of the alleged
order forms and did not call any of the court reporters as witnesses. The
plaintiff’s principal testified that she had no independent knowledge of the
order forms or what may have been written on those forms or communicated
to the individual reporters. The court certainly was not required to credit
Lovejoy’s testimony, which was unsupported by any other evidence. The
court did not discuss the order form issue in its decision, and, as previously
indicated, none of the parties requested an articulation or clarification of
the court’s oral ruling.
12
‘‘A court’s disregard of an entity’s structure is commonly known as
piercing the corporate veil.’’ (Internal quotation marks omitted.) Litchfield
Asset Management Corp. v. Howell, 70 Conn. App. 133, 148 n.10, 799 A.2d
298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). ‘‘The concept of piercing
the corporate veil is equitable in nature . . . .’’ (Internal quotation marks
omitted.) KLM Industries, Inc. v. Tylutki, 75 Conn. App. 27, 33, 815 A.2d
688, cert. denied, 263 Conn. 916, 821 A.2d 770 (2003). ‘‘Ordinarily the corpo-
rate veil is pierced only under exceptional circumstances, for example,
where the corporation is a mere shell, serving no legitimate purpose, and
used primarily as an intermediary to perpetuate fraud or promote injustice.’’
(Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Con-
struction & Paving, Inc., 187 Conn. 544, 557, 447 A.2d 406 (1982).
13
The defendants pleaded counterclaims sounding in slander, abuse of
process, and violation of the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq. (2012). In their statement of the issues, the defendants framed
the present claim broadly, asking whether the court properly denied the
defendants’ counterclaims. In briefing this claim, however, the defendants
limited their arguments to the abuse of process counterclaim. In so doing,
they effectively have abandoned and waived any claim of error with respect
to the counterclaims alleging slander and an unfair debt collection violation.
‘‘It is well established that [w]e are not obligated to consider issues that
are not adequately briefed. . . . [If] an issue is merely mentioned, but not
briefed beyond a bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions regarding a claim,
with no mention of relevant authority and minimal or no citations from
the record, will not suffice.’’ (Internal quotation marks omitted.) Electrical
Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444, 35 A.3d 188
(2012).