Stratek Plastics, Ltd. v. Ibar , 179 Conn. App. 721 ( 2018 )

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STRATEK PLASTICS, LIMITED v. JEAN PIERRE IBAR
(AC 39520)
Alvord, Keller and Beach, Js.
Syllabus
The plaintiff sought to foreclose a judgment lien on certain real property
owned by the defendant. On the day evidence was scheduled to com-
mence, the plaintiff’s counsel requested to have fourteen premarked
exhibits moved into evidence as full exhibits and informed the court
that the parties had reached a number of stipulations, including the
amount of the debt, that the plaintiff was entitled to reasonable attorney’s
fees in connection with the prosecution of the action in an amount to
be determined, if necessary, at a later hearing before the court, that the
plaintiff would be due an appraisal fee and that a judgment of strict
foreclosure would enter in favor of the plaintiff. The parties did not
stipulate to the fair market value of the subject property, which the
court determined after an appraisal was entered into evidence. The
court then rendered a judgment of strict foreclosure and set the law
day in accordance with the stipulation. Thereafter, the plaintiff filed a
motion for attorney’s fees and costs pursuant to statute (§ 52-249 [a])
and an affidavit, which was accompanied by copies of billing records,
biographies of the attorneys who had worked on the matter and a
spreadsheet organizing the time entries from the billing records. After
a hearing, the trial court granted the motion, finding that the plaintiff
was entitled to reasonable attorney’s fees and certain costs. On the
defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that the trial court erred in
awarding the plaintiff attorney’s fees pursuant to § 52-249 (a) because
it did not conduct a hearing as to the form of judgment or the limitation
of time for redemption, as required by the statute, that court having had
the authority to award attorney’s fees under the statute; the proceeding
before the trial court constituted a hearing within the meaning of § 52-
249 (a) and satisfied that statute’s requirement that a hearing be held
as to the form of the judgment, as exhibits were entered into evidence,
counsel for both parties had the opportunity to address the court during
the proceeding, and because the parties did not stipulate to the fair
market value of the property, they submitted the question to the court,
which made a factual finding as to the value of the property on the
basis of the property appraisal submitted into evidence.
2. The defendant could not prevail on his claim that the trial court erred in
awarding the plaintiff attorney’s fees because, at the time of the foreclo-
sure proceeding, the plaintiff failed to present a statement of the fees
requested and a description of the services rendered, the defendant
having waived that claim; his counsel expressly agreed during the subject
proceeding to a consideration of the question of attorney’s fees at a
subsequent hearing, the parties’ stipulation stated that the plaintiff was
entitled to reasonable attorney’s fees and that the amount of those fees
would be determined, if necessary, at a later hearing before the court,
and after the plaintiff’s counsel had represented at the proceeding that he
would present the amount of fees claimed at a later date, the defendant’s
counsel did not object, nor did he insist on a presentation at that time
of the fees requested and a description of services rendered, and he
further consented to the court’s suggestion that the attorney’s fees issue
could be heard on a short calendar day if the parties were unable to
resolve the matter themselves.
Argued November 15, 2017—officially released February 20, 2018
Procedural History
Action to foreclose a judgment lien on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the court, Agati, J., rendered judgment
of strict foreclosure in accordance with the parties’
stipulation; thereafter, the court granted the plaintiff’s
motion for attorney’s fees, and the defendant appealed
to this court. Affirmed.
Jeffrey Hellman, for the appellant (defendant).
Thomas J. Rechen, with whom were Charles D. Ray,
and, on the brief, James E. Regan, for the appellee
(plaintiff).
Opinion
ALVORD, J. In this action for the foreclosure of a
judgment lien, the defendant, Jean Pierre Ibar, appeals
from the judgment of the trial court granting the motion
for attorney’s fees filed by the plaintiff, Stratek Plastics,
Ltd. On appeal, the defendant claims that the court
erred in awarding attorney’s fees because (1) there had
been no hearing as to the form of the judgment or the
limitation of time for redemption as required by General
Statutes § 52-249 (a);1 and (2) the plaintiff failed to pre-
sent a statement of the fees requested and services
rendered at the time of the trial. We disagree that the
award of attorney’s fees was improper. Accordingly,
we affirm the judgment of the trial court.
The following procedural history is relevant to the
resolution of the issues on appeal. On April 9, 2014, the
plaintiff filed this action seeking to foreclose a judgment
lien in the amount of $139,800.93 and costs of $444.
The plaintiff filed an amended complaint dated May 28,
2014. The matter was scheduled for trial on February
23, 2016. Although the trial did not go forward on that
date, counsel premarked certain exhibits and evidence
was rescheduled to begin the following day, February
24, 2016. On the afternoon of February 24, counsel for
both parties appeared before the court, Agati, J., and
at that time the plaintiff’s counsel informed the court
that the parties had stipulations that they wanted to
put on the record. Before turning to the stipulations, the
plaintiff’s counsel requested to have fourteen exhibits,
which had been premarked the day before, moved into
evidence as full exhibits.
The plaintiff’s counsel then informed the court of the
stipulations reached by the parties. He first represented
that the parties had stipulated to the debt in the amount
of $171,701.01, which accounted for interest as of that
date and a credit to the defendant. He then stated that
the parties stipulated that at the time of the deficiency
judgment hearing, the interest would be updated to the
relevant date at a rate of 10 percent. Third, the plaintiff’s
counsel noted the parties’ stipulation that ‘‘the plaintiff
. . . is entitled to reasonable attorney’s fees in connec-
tion with this prosecution . . . in an amount to be
determined at a hearing before this court if necessary,
such hearing to take place sometime between today
and the date of the deficiency hearing . . . .’’ The par-
ties also agreed that the plaintiff would be due an
appraisal fee of $1000. Lastly, the plaintiff’s counsel
represented that the parties had stipulated that a judg-
ment of strict foreclosure would enter in favor of the
plaintiff, to become effective on February 29, 2016, with
a law day of June 29, 2016. The court inquired as to
whether the parties had anything further to add to the
hearing, to which the defendant’s counsel replied: ‘‘Yes,
Your Honor . . . . That . . . accurately states our
agreement. I want to just add two additional points
maybe by way of clarification. Mr. Ibar is very interested
in having a hearing, an opportunity for a hearing on the
attorney’s fees, so . . . we would at some point be
requesting that before the deficiency date enters so
there is definitely some interest in determining what is
reasonable; so that issue is still in play, understanding
the plaintiff is making a claim for attorney’s fees and
there’s a statutory basis for that, but, nonetheless, we
hope to challenge what is reasonable.’’ The court
inquired of the plaintiff’s counsel: ‘‘I assume you’re
going to provide them with some amount of attorney’s
fees that you are going to be claiming?’’ The plaintiff’s
counsel replied: ‘‘We will present the amount we are
claiming. Counsel and I will make an effort to work
that out by agreement, if we are unable to do so, we
will contact the court.’’ The court suggested that the
attorney’s fees calculation issue could be scheduled
on a short calendar day, and the defendant’s counsel
responded, ‘‘[t]hat’s fine,’’ and also stated that the par-
ties would stay in communication with the court if a
hearing was needed.
After addressing a few outstanding issues, the court
noted that representatives of the plaintiff were present
in the courtroom and inquired of the plaintiff’s counsel
whether the plaintiff had authorized him to enter into
the agreement just placed on the record. The plaintiff’s
counsel responded that he did have authority, and the
defendant’s counsel represented that he had been in
telephone and e-mail communication with the defen-
dant, and that he also had authority to enter into the
agreement. The court, noting that there had been an
appraisal, then inquired whether the parties were stipu-
lating to the fair market value of the property. The
parties did not stipulate to the fair market value, the
appraisal was entered into evidence, and the court then
found the value of the property to be $515,000. The
court told the parties to ‘‘let me know in the meantime
on the scheduling of the attorney’s fee issues,’’ and
concluded the matter. The court rendered a judgment
of strict foreclosure on February 29, 2016, and set the
law day for June 29, 2016.
On May 6, 2016, the plaintiff filed a motion for attor-
ney’s fees and costs pursuant to § 52-249. The plaintiff
also filed an affidavit accompanied by copies of billing
records, biographies of the attorneys who had worked
on the matter, and a spreadsheet organizing the time
entries from the billing records. The defendant, citing
Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004),
objected on the ground that the plaintiff’s claim for
attorney’s fees was ‘‘barred by its failure to present
evidence concerning those fees at trial.’’ In the alterna-
tive, the defendant argued that the fees claimed were
excessive. On July 8, 2016, the plaintiff filed a supple-
mental affidavit, seeking a total award of fees and costs
in the amount of $279,890.77.2 On July 13, 2016, the
defendant, citing Burns v. Adler, 158 Conn. App. 766,
807–808, 120 A.3d 555 (2015), rev’d in part, 325 Conn.
14, 155 A.3d 1223 (2017), filed a supplemental objection,
arguing that the statutory requirements of § 52-249 had
not been met because the court did not conduct a hear-
ing as to the form of the judgment and the time for
redemption. The plaintiff replied that a hearing had
been held as to the form of the judgment and that the
defendant had stipulated to the plaintiff’s entitlement
to attorney’s fees, with only the reasonableness of the
fees left to be decided.
After a hearing on July 11 and 13, 2016, the court
issued an order on August 1, 2016, granting the plaintiff’s
motion for attorney’s fees. The court found that the
plaintiff was entitled to reasonable attorney’s fees pur-
suant to § 52-249. The court multiplied 125 hours by the
blended rate of $411 per hour to arrive at a reasonable
attorney’s fees award of $51,375. The court also
awarded costs in the amount of $6799.77 for a total
award of $58,174.77. This appeal followed.3
I
On appeal, the defendant first claims that the court
erred in awarding attorney’s fees to the plaintiff pursu-
ant to § 52-249 because the court had not conducted a
hearing as to the form of judgment or the limitation of
time for redemption as required by § 52-249. He argues
that ‘‘[w]hile the statute is far from clear on this particu-
lar point, in light of the holding in Burns . . . the
proper reading of the statute requires [the] defendant
to contest the form of the judgment or the manner of
foreclosure for [the] plaintiff to recover its attorney’s
fees.’’ We conclude that the statutory hearing require-
ment was satisfied.
We begin by setting forth our standard of review and
relevant legal principles. ‘‘Connecticut adheres to the
American rule regarding attorney’s fees under which
successful parties are not entitled to recover attorney’s
fees in the absence of statutory or contractual authority
to the contrary. . . . Thus, a specific contractual term
may provide for the recovery of attorney’s fees and
costs . . . or a statute may confer such rights.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Clem Martone Construction, LLC v.
DePino, 145 Conn. App. 316, 326–27, 77 A.3d 760, cert.
denied, 310 Conn. 947, 80 A.3d 906 (2013). Section 52-
249 (a) provides, in relevant part, that ‘‘[t]he plaintiff
in any action of foreclosure of a mortgage or lien, upon
obtaining judgment of foreclosure, when there has been
a hearing as to the form of judgment or the limitation
of time for redemption, shall be allowed the same costs,
including a reasonable attorney’s fee, as if there had
been a hearing on an issue of fact. . . .’’ ‘‘The question
of whether a particular statute . . . applies to a given
state of facts is a question of statutory interpretation
. . . . Statutory interpretation presents a question of
law for the court. . . . Our review is, therefore, ple-
nary.’’ (Internal quotation marks omitted.) Russo Roof-
ing, Inc. v. Rottman, 86 Conn. App. 767, 775, 863 A.2d
713 (2005).
We next consider the meaning of the term ‘‘hearing.’’
This court has consistently ‘‘acknowledged the defini-
tion of a hearing provided in Black’s Law Dictionary,
as [a] proceeding of relative formality . . . generally
public, with definite issues of fact or of law to be tried,
in which witnesses are heard and evidence presented,
and in which parties to a dispute have a right to be
heard. . . . Our Supreme Court has stated that [a] hear-
ing can be a proceeding in the nature of a trial with
the presentation of evidence, it can be merely for the
purpose of presenting arguments, or, of course, it can
be a combination of the two.’’ (Citation omitted; internal
quotation marks omitted.) Reyes v. Bridgeport, 134
Conn. App. 422, 427–28, 39 A.3d 771 (2012).
This court also has recognized that ‘‘[n]ot only does
a hearing normally connote an adversarial setting, but
usually it can be said that it is any oral proceeding
before a tribunal.’’ (Internal quotation marks omitted.)
Id., 428. The term has further been described as ‘‘capa-
ble of considerable broadness’’; Kendall v. Commis-
sioner of Correction, 162 Conn. App. 23, 38, 130 A.3d
268 (2015); and ‘‘a verbal coat of many colors.’’ (Internal
quotation marks omitted.) Willimantic Car Wash, Inc.
v. Zoning Board of Appeals, 247 Conn. 732, 738, 724
A.2d 1108 (1999).
The defendant relies primarily upon Burns v. Adler,
supra, 158 Conn. App. 766, in support of his contention
that the hearing requirement has not been met in the
present case because the parties stipulated to the
amount of the debt, the judgment of strict foreclosure,
and the law day. Burns involved a foreclosure of a
mechanic’s lien on the defendant’s property. Id., 768.
In the present case, the parties stipulated to the debt
owed in the amount of $214,039.09, that the fair market
value of the defendant’s interest in the property was
greater than $500,000, that a judgment of strict foreclo-
sure should enter with a law day of August 14, 2012,
to the plaintiff’s entitlement to a title search fee in the
amount of $225, that the plaintiff was not entitled to
an appraisal fee, and ‘‘that the issue of the plaintiff’s
right to attorney’s fees [was] left for the court to
resolve.’’ (Internal quotation marks omitted.) Id., 790.
Thus, the only issue remaining for the court in Burns
to resolve after approving the stipulation was the plain-
tiff’s entitlement to statutory attorney’s fees pursuant
to § 52-249 (a). Id., 790. The trial court explained that
the statute permitted an award of attorney’s fees only
when there has been a hearing on the mechanic’s lien
and concluded that because there had been no hearing,
the plaintiff was not entitled to attorney’s fees. Id., 806.
This court affirmed the judgment, noting that the parties
had ‘‘stipulated that there would not be a hearing on the
terms of the judgment of foreclosure of the mechanic’s
lien.’’ Id., 807. The stipulation was ‘‘submitted to, and
approved by, the court without a hearing.’’ Id.
We conclude that Burns is distinguishable and that
the proceeding held on February 24, 2016, constituted
a hearing within the meaning of § 52-249 (a). In the
present case, exhibits were entered into evidence and
counsel for both parties had the opportunity to address
the court. Unlike the parties in Burns, the parties did
not stipulate to the fair market value of the property,
and, accordingly, they submitted the question to the
court for decision. Although neither party in this matter
sought foreclosure by sale, this court has explained that
‘‘[t]he determination of value is a major factor in the
decision whether to allow a foreclosure by sale rather
than a strict foreclosure.’’ (Internal quotation marks
omitted.) SKW Real Estate Ltd. Partnership v. Mitsubi-
shi Motor Sales of America, Inc., 56 Conn. App. 1, 7,
741 A.2d 4 (1999), cert. denied, 252 Conn. 931, 746 A.2d
793 (2000). In the present case, to assist the court in
deciding the fair market value, the plaintiff entered into
evidence the property appraisal. The court then made
a factual finding as to the fair market value of the
property.4 Under these circumstances, we conclude that
the proceeding satisfied the requirement found in § 52-
249 (a) that a hearing be held as to the form of the
judgment. Thus, the court had authority pursuant to
§ 52-249 (a) to award attorney’s fees and costs.5
II
The defendant next claims that the court erred in
awarding attorney’s fees to the plaintiff because, at the
time of the trial, the plaintiff failed to present a state-
ment of the fees requested and a description of the
services rendered. The plaintiff claims that the defen-
dant waived this claim when, during the February 24
hearing, he agreed to consideration of the question of
attorney’s fees at a later date. We agree with the
plaintiff.
We review a trial court’s rulings as to attorney’s fees
for an abuse of discretion. Landry v. Spitz, 102 Conn.
App. 34, 59, 925 A.2d 334 (2007). ‘‘Under the abuse of
discretion standard of review, [w]e will make every
reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Thus, our] review of such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) Id.The defendant relies solely upon Smith v. Snyder,
267 Conn. 456, 839 A.2d 589 (2004), in support of his
claim. In Smith, our Supreme Court held that ‘‘when a
court is presented with a claim for attorney’s fees, the
proponent must present to the court at the time of trial
. . . a statement of the fees requested and a description
of services rendered. Such a rule leaves no doubt about
the burden on the party claiming attorney’s fees and
affords the opposing party an opportunity to challenge
the amount requested at the appropriate time. . . .
Parties must supply the court with a description of the
nature and extent of the fees sought, to which the court
may apply its knowledge and experience in determining
the reasonableness of the fees requested.’’ (Footnotes
omitted.) Id., 479. In Smith, our Supreme Court affirmed
the award of attorney’s fees on the ground that the
defendants had not opposed the plaintiff’s request for
fees. Id., 480. Our Supreme Court explained that had
the defendants objected to the request, the trial court
would have been required to provide the defendants an
opportunity to be heard on that issue. Id., 481. Because
the defendants failed to object and consequently ‘‘effec-
tively acquiesced in that request,’’ they could not chal-
lenge the award on appeal. Id.It is well established that ‘‘[w]hen a party consents
to or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may
not be reviewed on appeal.’’6 (Internal quotation marks
omitted.) Bohonnon Law Firm, LLC v. Baxter, 131
Conn. App. 371, 387, 27 A.3d 384, cert. denied, 303 Conn.
902, 31 A.3d 1177 (2011). In Bohonnon Law Firm, LLC,
the defendant claimed on appeal that the trial court
had improperly awarded attorney’s fees to the plaintiff.
Id., 383. Specifically, he claimed that the court erred
when it precluded him from cross-examining the plain-
tiff’s counsel concerning his affidavit of attorney’s fees.
Id., 383–84. During the hearing on damages, however,
the defendant’s counsel told the court: ‘‘I don’t think
that he is going to have to testify to [the affidavit].’’ Id.,
384. The defendant did not claim that testimony was
required until after his request for a continuance was
denied, at which time the court advised him that the
hearing was over. Id., 386. On appeal, this court con-
cluded that he had expressly waived the issue. Id., 384,
386–87; see also Atlantic Mortgage & Investment Corp.
v. Stephenson, 86 Conn. App. 126, 135–37, 860 A.2d 751(2004) (rejecting defendants’ claim that the court could
not have assessed the reasonableness of fees because
of improperly admitted hearsay documents, agreeing
with the plaintiff that the defendants had stipulated that
testimony beyond an affidavit was unnecessary).
As in Bohonnon Law Firm, LLC, we conclude that
the defendant waived his challenge pursuant to Smith.
First, not only was the defendant on notice at the time
of the February 24, 2016 hearing that the plaintiff was
seeking attorney’s fees, but his counsel expressly
agreed on that date to adjudicate the reasonableness of
the plaintiff’s request for attorney’s fees at a subsequent
hearing. In his brief to this court, the defendant con-
cedes that he ‘‘agreed to consideration of the question
of attorney’s fees at a later date . . . .’’ Second, the
stipulation presented to the court on February 24
included recognition that the attorney’s fees, to which
the plaintiff was entitled, would be in ‘‘an amount to
be determined at a hearing before this court if neces-
sary, such hearing to take place sometime between
today and the date of the deficiency hearing . . . .’’
Third, after the plaintiff’s counsel represented, in
response to a question from the court, that he would
present the amount of fees claimed, presumably at a
later date, the defendant’s counsel did not object, nor
did he insist on a presentation at that time of the fees
requested and a description of services rendered. When
the plaintiff’s counsel represented that the parties
would contact the court if they were unable to agree
and the court suggested it could be heard on short
calendar day, the defendant’s counsel responded,
‘‘[t]hat’s fine.’’7 Because the defendant expressly con-
sented to these procedures, we conclude that he has
waived any challenge to the plaintiff’s claimed failure
to produce a statement of fees requested and services
rendered at the time of the February 24, 2016 hearing.
Although we decide the claim on the ground that
the defendant waived his objection, we note that the
defendant subsequently was afforded ample opportu-
nity to challenge the reasonableness of the fees
requested, which was the concern underlying the rule
expressed in Smith. See Smith v. Snyder, supra, 267
Conn. 479 (‘‘[s]uch a rule . . . affords the opposing
party an opportunity to challenge the amount requested
at the appropriate time’’). The plaintiff filed an affidavit
of attorney’s fees accompanied by copies of billing
records, biographies of the attorneys who worked on
the matter, and a spreadsheet organizing the time
entries from the billing records. The court held a hearing
over two days, during which the parties submitted evi-
dence and presented argument to the court. On appeal,
the defendant does not challenge the reasonableness
of the fees awarded.
The judgment is affirmed and the case is remanded
for the purpose of setting a new law day.
In this opinion the other judges concurred.
1
General Statutes § 52-249 (a) provides: ‘‘The plaintiff in any action of
foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure,
when there has been a hearing as to the form of judgment or the limitation of
time for redemption, shall be allowed the same costs, including a reasonable
attorney’s fee, as if there had been a hearing on an issue of fact. The same
costs and fees shall be recoverable as part of the judgment in any action
upon a bond which has been substituted for a mechanic’s lien.’’
2
At the time the plaintiff filed its motion for attorney’s fees, the foreclosure
had been pending for over two years, and the court record included discovery
practice, briefing on multiple motions, including the defendant’s motion to
dismiss, and pretrial submissions. The court, in its order granting the plain-
tiff’s motion for attorney’s fees, noted that a review of the court record
showed that the defendant had ‘‘vigorously defend[ed]’’ the case, and that
the ‘‘case was scheduled to proceed as a contested trial until the day of
commencement of evidence . . . .’’
3
The plaintiff filed a cross appeal, which it subsequently withdrew.
4
General Statutes § 52-249 (a) provides for attorney’s fees in the event a
hearing is held ‘‘as to the form of judgment or the limitation of time for
redemption . . . as if there had been a hearing on an issue of fact.’’ We
note that in making a finding as to the fair market value of the property,
the court clearly decided an issue of fact on the basis of evidence presented
during the February 24 hearing.
5
We note that the defendant’s counsel represented to the court that he
recognized that statutory authority for an award of attorney’s fees existed
when he stated during the February 24 hearing that ‘‘the plaintiff is making
a claim for attorney’s fees and there’s a statutory basis for that, but, nonethe-
less, we hope to challenge what is reasonable.’’
6
Similarly, where a party fails to object to a request for attorney’s fees,
that party is deemed to have waived its objection. See Florian v. Lenge, 91
Conn. App. 268, 286, 880 A.2d 985 (2005) (‘‘The defendant was not prevented
from raising an objection [to the plaintiff’s request for attorney’s fees] but
instead waived that claim by failing to object. By failing to object, the
defendant effectively acquiesced in that request.’’); Avery v. Medina, 174
Conn. App. 507, 524, 163 A.3d 1271, (‘‘[a]n appellate court will not reverse
an award of attorney’s fees if the defendants fail to object to a bare request
for attorney’s fees’’), cert. denied, 327 Conn. 927, 171 A.3d 61 (2017).
7
Months later, after the plaintiff filed its motion for attorney’s fees, the
defendant changed his position and claimed that the plaintiff was barred
from claiming attorney’s fees on the ground that it had failed to present a
statement of the fees requested at the time of trial.