Lee v. Stanziale

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PETER LEE v. RICHARD H. STANZIALE
(AC 36519)
Gruendel, Lavine and Bishop, Js.
Argued September 25—officially released December 1, 2015
(Appeal from Superior Court, judicial district of
Hartford, Woods, J.)
Robert Shluger, for the appellant (defendant).
Adam J, Teller, for the appellee (plaintiff).
Opinion
GRUENDEL, J. In this landlord-tenant case, the
defendant, Richard H. Stanziale, appeals from the judg-
ment of the trial court awarding the plaintiff, Peter
Lee, a total of $18,122.50 in attorney’s fees and costs
pursuant to General Statutes § 52-251a. The defendant
contends that the court abused its discretion in so
doing. We disagree and, accordingly, affirm the judg-
ment of the trial court.
In its memorandum of decision, the court found the
following facts. The defendant is the owner of residen-
tial rental property known as 56 Brace Road in West
Hartford (property). In April, 2010, the plaintiff entered
into a written agreement to lease the property from the
defendant from May 1, 2010, to April 30, 2011, at a rate
of $2500 per month. At that time, the plaintiff paid a
$5000 security deposit to the defendant.
During his tenancy, the plaintiff notified the defen-
dant of various problems he claimed to have encoun-
tered with the property. Those problems included
inadequate heat on the third floor of the residence,
electrical wiring issues, and an asbestos wrapped
furnace.
In early September, 2010, the plaintiff informed the
defendant of his intention to vacate the property before
the lease expired. The parties thereafter discussed the
termination of the lease agreement. On November 12,
2010, the defendant listed the property with a realtor,
and soon received multiple offers from prospective ten-
ants. On December 15, 2010, the defendant entered into
a lease agreement with a new tenant for a term of two
years commencing on January 1, 2011, at a monthly
rate of $2500.
Although he paid rent to the defendant through
December 31, 2010, the plaintiff vacated the property
on December 19, 2010. On that date, he completed a
walk-through of the property with the defendant’s real-
tor, who found the property to be in clean condition.1
At the defendant’s request, the plaintiff topped off the
oil tank and returned the keys to the property.
On December 20, 2010, the plaintiff requested the
return of his $5000 security deposit. In early January,
2011, the defendant sent the plaintiff a ‘‘preliminary
deposit accounting’’ alleging that, beyond exhausting
that security deposit, the plaintiff owed him $1518.50.
Nine days later, the defendant sent the plaintiff a second
accounting, claiming that the plaintiff owed him
$2405.57 due to, inter alia, certain repairs for damages
to the property allegedly caused by the plaintiff, a $5000
realtor fee incurred by the defendant in renting the
property to new tenants, and $720 in legal fees for an
initial consultation with the defendant’s attorney.
A small claims action ensued. On May 19, 2011, the
plaintiff, who at the time was self-represented, com-
menced this action in the small claims session of the
Superior Court to recover his security deposit. The
small claims writ and notice of suit filed by the plaintiff
specified that the amount claimed was $10,000.2 It fur-
ther alleged: ‘‘You did not provide a final complete
accounting for keeping our entire $5000 security deposit
plus interest. The damages and expenses on your ‘pre-
liminary accounting’ are not reasonable, e.g., realtor
fees ($5000), legal fees, damages, etc. At your request,
I vacated on December 19, 2010, despite paying full rent
through December 31, 2010. You owe me $967.74 for
rent paid from December 20, 2010 through December
31, 2010. You failed to repair multiple items including
but not limited to lack of heat on the third floor.’’
The defendant, through his legal counsel, responded
by filing a motion to transfer the matter to the regular
docket of the Superior Court pursuant to Practice Book
§ 24-21. The plaintiff filed an opposition to the motion,
in which he argued that the substance of the contro-
versy between the parties properly was within the pur-
view of the small claims court. The plaintiff also
represented that ‘‘[i]t would be a financial burden to
pursue this case in regular civil court, as I planned to
represent myself in small claims court, and most likely
will not be able to do so in regular civil court.’’ Despite
that opposition, the matter was transferred to the regu-
lar docket of the Superior Court. The notice of that
transfer provided to the parties by the court stated in
relevant part that ‘‘[i]f the plaintiff hires a lawyer and
the court rules in his or her favor after a case has been
transferred to the regular civil docket at the request of
a defendant, the court may allow the plaintiff a reason-
able lawyer’s fee as part of the costs to be paid by
the defendant.’’
The defendant then filed a counterclaim predicated
on the plaintiff’s anticipatory breach of the lease
agreement, which sought a setoff of $7468.07 in dam-
ages.3 In response, the plaintiff retained an attorney and
filed his answer to the defendant’s counterclaim, as
well as an amended complaint. As the court noted in
a subsequent articulation of its decision, ‘‘the complex-
ity of the case increased when it was transferred to the
regular civil docket, by the defendant’s motion . . . .
The parties conducted discovery, filed pretrial memo-
randa pursuant to a pretrial management order . . .
and filed other pretrial motions and requests. Trial
spanned five days and almost eight months. The parties
submitted almost one hundred exhibits, and the court
took testimony from a variety of witnesses. Posttrial
briefs were subsequently submitted by the parties
. . . . On August 9, 2013, after more than two years
since the case was commenced in small claims court,
the plaintiff obtained judgment in his favor.’’
In its August 9, 2013 memorandum of decision, the
court found in relevant part that ‘‘the plaintiff is the
prevailing party in this action for return of his security
deposit. . . . The plaintiff tenant has established, by a
fair preponderance of the evidence, that he is entitled
to a portion of his security deposit, plus interest.’’ At
the same time, the court found that the defendant was
entitled to a setoff of $1320.78 for certain damages
sustained as a result of the plaintiff’s breach of the lease
agreement. The court thus rendered judgment in favor
of the plaintiff in the amount of $4788.01, as well as an
award of ‘‘reasonable attorney’s fees and costs, pending
the submission of the plaintiff’s affidavit.’’ The defen-
dant filed a motion for reconsideration, which the court
denied on December 13, 2013.
At the court’s behest, the plaintiff’s counsel filed a
sworn affidavit stating that her hourly rate for services
rendered in the case was $250 and that she had spent
approximately sixty-three hours on the matter over the
course of more than twenty-five months. She thus
averred that the attorney’s fees and costs expended in
the matter totaled $15,975. Following an objection by
the defendant, the court, on January 17, 2014, awarded
the plaintiff $14,750 in attorney’s fees and costs pursu-
ant to § 52-251a.
On February 6, 2014, the defendant appealed to this
court. His appeal form indicated that he was appealing
from not only the court’s January 17, 2014 judgment
awarding attorney’s fees to the plaintiff, but also from
the court’s August 9, 2013 judgment on the merits of
the underlying litigation and its December 13, 2013 judg-
ment denying his motion for reconsideration. In
response, the plaintiff moved to dismiss the appeal in
part as untimely. By order dated April 10, 2014, this
court granted the motion to dismiss the defendant’s
appeal ‘‘as it relates to the August 9, 2013 judgment and
the December 13, 2013 denial of the defendant’s motion
for reconsideration. The appeal remains pending as it
relates to the January 17, 2014 award of attorney’s fees.’’
Approximately one month later, the plaintiff, pursu-
ant to § 52-251a, filed with the trial court a motion ‘‘for
an award of additional attorney’s fees as the ‘prevailing
party’ in connection with the successful defense of the
defendant’s untimely appeal of the judgment of August
9, 2013, in this matter.’’ Appended to that motion was
an affidavit of attorney’s fees, in which the plaintiff’s
appellate counsel, Attorney Adam J. Teller, averred that
the ‘‘total expense related to obtaining dismissal of the
appeal as to the August 2013 judgment’’ was $3372.50.
Following a hearing, the court granted that motion. The
defendant thereafter amended his appeal with this court
to include a challenge to that additional award of attor-
ney’s fees.
On April 30, 2014, the defendant filed with this court
a motion for review, in which he sought, inter alia,
an order that the trial court articulate the basis of its
determination that the plaintiff was the prevailing party
in this action and what portion of the $14,750 in attor-
ney’s fees and costs originally awarded to the plaintiff
was for work expended on successful claims. This court
granted that motion by order dated June 25, 2014. One
month later, the trial court issued a memorandum artic-
ulating the basis of its decision. The court first noted
that it had found in favor of the plaintiff on his action
to recover his security deposit. As it explained: ‘‘The
plaintiff is the prevailing party because the court found
that he was entitled to the return of his security deposit.
The defendant alleged that he was entitled to retain the
security deposit and collect additional funds from the
plaintiff. However, [the] court did not find that the
defendant was entitled to any amount in addition to
the security deposit. In fact, [the] court found that the
defendant owed the plaintiff a majority of the security
deposit, plus interest.’’ With regard to the apportion-
ment of legal fees awarded for what this court in its
order had termed ‘‘successful’’ versus ‘‘unsuccessful’’
claims, the trial court stated that it was ‘‘unaware of
any authority requiring the court to discern between
successful and unsuccessful claims when determining
the reasonableness of attorney’s fees.’’ The court also
emphasized that the plaintiff initially commenced the
action as a self-represented party in the small claims
court and that the complexity and duration of the case
increased dramatically when it was transferred to the
regular docket on the motion of the defendant.
One week later, the defendant filed with this court
another motion for review that sought to have the trial
court articulate ‘‘whether any portion of the amount
awarded for attorney’s fees was for hours worked solely
on the prosecution of wholly unsuccessful claims,’’
which this court granted by order dated September
10, 2014. In its subsequent articulation, the trial court
clarified that ‘‘the amount awarded for attorney’s fees
was strictly for the prosecution of successful claims.
. . . The trial court reviewed the presentation of evi-
dence, the effort expended by the plaintiff’s counsel,
as well as the complexity of the legal issues in the
case. Counsel was awarded reasonable attorney’s fees
specifically for the prosecution of successful claims.’’
Before considering the specific claims of error
alleged by the defendant in this appeal, we first note
what is not in dispute. In its August 9, 2013 memoran-
dum of decision, the court expressly found that the
plaintiff was the prevailing party in this action to
recover a security deposit. The court further explained
the basis for that finding in its July 23, 2014 articulation.
In this appeal, the defendant does not challenge the
propriety of that determination. To the contrary, he
concedes in his appellate brief that ‘‘the Appellate Court
is not able to reverse the findings of the court to correct
who the prevailing party was, for purposes of this
appeal of the discretionary award of § 52-251a attor-
ney’s fees . . . .’’ We therefore do not revisit the court’s
determination that the plaintiff was the prevailing party
in the proceeding below.
I
The defendant’s principal claim concerns the proper
application of § 52-251a. He maintains that the court
improperly awarded the plaintiff attorney’s fees and
costs pursuant to that statute. We do not agree.
‘‘[T]he common law rule in Connecticut, also known
as the American Rule, is that attorney’s fees and ordi-
nary expenses and burdens of litigation are not allowed
to the successful party absent a contractual or statutory
exception.’’ (Internal quotation marks omitted.) Ber-
zins v. Berzins, 306 Conn. 651, 661, 51 A.3d 941 (2012).
Section 52-251a is such an exception, permitting ‘‘the
imposition of costs and fees, including attorney’s fees,
to be imposed on a defendant who has transferred the
case from small claims to the regular docket of the
Superior Court and has not prevailed in the action.’’
Welch v. Stonybrook Gardens Cooperative, Inc., 158
Conn. App. 185, 191 n.6, 118 A.3d 675, cert. denied, 318
Conn. 905, A.3d (2015).
In their respective appellate briefs, the parties mis-
construe that statute. The defendant posits that a pre-
vailing party may recover attorney’s fees and costs
thereunder only if the trial court first makes ‘‘a finding
that the defendant, in the transfer of this case to the
regular docket, engaged in some identifiable miscon-
duct sufficient enough to be punished by the penalty
of attorney’s fees.’’ The plaintiff, by contrast, submits
that a trial court ‘‘arguably would have abused its discre-
tion if it had awarded the plaintiff no attorney’s fees’’
under § 52-251a once it found the plaintiff to be the
prevailing party. Both claims are wide of the mark.
The proper construction of § 52-251a presents a ques-
tion of law over which our review is plenary. See Spears
v. Elder, 156 Conn. App. 778, 785, 115 A.3d 482 (2015).
‘‘In making such determinations, we are guided by fun-
damental principles of statutory construction.’’ (Inter-
nal quotation marks omitted.) Ulbrich v. Groth, 310
Conn. 375, 448, 78 A.3d 76 (2013); see General Statutes
§ 1-2z (statutory interpretation process). We therefore
begin with the language of the statute.
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.’’ (Emphasis added.) The statute
plainly sets forth the following essential elements: (1)
that the action originally was commenced in the small
claims docket of the Superior Court; (2) that the defen-
dant 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.
Distilled to its essence, the defendant’s claim asks
this court to expand the statutory requirements of § 52-
251a to require ‘‘a finding . . . [of] some identifiable
misconduct’’ warranting application thereof. The defen-
dant maintains that because he presented good faith
claims and defenses—on which he prevailed in part
when the court awarded him a setoff of $1320.78—
rather than frivolous ones, the court could not justifi-
ably render an award under § 52-251a. He further claims
that the court failed to consider the purposes underlying
that statute. For multiple reasons, we disagree.
First, and most significantly, § 52-251a contains no
such requirement. It is fundamental that this court is
obligated to ‘‘construe a statute as written. . . . Courts
may not by construction supply omissions . . . or add
exceptions . . . . The intent of the legislature . . . is
to be found not in what the legislature meant to say,
but in the meaning of what it did say. . . . It is axiom-
atic that the court itself cannot rewrite a statute . . . .
That is a function of the legislature.’’ (Internal quotation
marks omitted.) Doe v. Norwich Roman Catholic Dioce-
san Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006); see
also Lucarelli v. State, 16 Conn. App. 65, 70, 546 A.2d
940 (1988) (‘‘[c]ourts must interpret statutes as they are
written . . . and cannot, by judicial construction, read
into them provisions which are not clearly stated’’ [cita-
tion omitted]). In addition, when the General Assembly
wants to depart from a broad grant of discretion to
our trial judges in awarding attorney’s fees, it certainly
knows how to do so. See, e.g., General Statutes § 52-
240a (authorizing court to award reasonable attorney’s
fees in product liability action only ‘‘[i]f the court deter-
mines that the claim or defense is frivolous’’); accord
Fedus v. Planning & Zoning Commission, 278 Conn.
751, 770–71 n.17, 900 A.2d 1 (2006) (noting that legisla-
ture knows how to enact legislation consistent with its
intent); Genesky v. East Lyme, 275 Conn. 246, 258, 881
A.2d 114 (2005) (‘‘if the legislature wants to [engage in
a certain action], it knows how to do so’’).
Furthermore, in construing § 52-251a, ‘‘we do not
write on a clean slate, but are bound by our previous
judicial interpretations of this language and the purpose
of the statute.’’ (Internal quotation marks omitted.)
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, 312 Conn. 513, 527, 93 A.3d 1142
(2014). Our courts have rejected attempts by litigants
to graft additional requirements onto that legislative
enactment. For example, in Forastiere v. Higbie, 95
Conn. App. 652, 657, 897 A.2d 722, cert. denied, 280
Conn. 902, 907 A.2d 89 (2006), the defendant argued
that the court improperly awarded attorney’s fees under
§ 52-251a because the parties were ‘‘equally sophisti-
cated litigants’’ and because the court had ruled in favor
of the defendant on one of the counts of the plaintiffs’
complaint. This court disagreed, emphasizing that the
statute ‘‘does not require a party to be more sophisti-
cated than the opposing party or that a party must
prevail as to every claim. The court’s discretion to
award attorney’s fees under § 52-251a . . . is not lim-
ited by the relative sophistication of the parties or the
number of counts on which the plaintiffs prevail.’’ Id.
Similarly, in Petti v. Balance Rock Associates, 12 Conn.
App. 353, 363, 530 A.2d 1083 (1987), this court rejected
a claim that the plaintiff was not entitled to recover
under § 52-251a because her attorney had filed an
appearance and had begun work on the case prior to
its transfer to the regular docket of the Superior Court.
After noting that ‘‘no such limitation’’ is contained in
§ 52-251a, this court declined to engage in a ‘‘judicial
expansion of the statutory requirements of § 52-251a.’’
Id. To the extent that the defendant invites this court
to rewrite the parameters of § 52-251a, we decline to
do so, as that remains properly the province of our
General Assembly.
Second, we note that the policy underlying § 52-251a
is broader than the question of frivolity. Although, as
this court has noted, one purpose of § 52-251a is to
provide ‘‘a substantial and effective disincentive for a
defendant who might otherwise raise defenses border-
ing on the frivolous’’; Burns v. Bennett, 220 Conn. 162,
169, 595 A.2d 877 (1991); the larger aim ‘‘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.’’ Krack v. Action Motors
Corp., 87 Conn. App. 687, 697, 867 A.2d 86, cert. denied,
273 Conn. 926, 871 A.2d 1031 (2005). That aim serves
to protect not only the interests of litigants who often
proceed on a self-represented basis; see id., 697 (noting
the ‘‘undesirability to attorneys’’ in small claims cases);
and over whom a defendant often possesses ‘‘superior
economic resources’’; id., 695; but also the interests
of judicial economy by not clogging our courts with
noncomplex litigation in which modest sums are
sought.
The present case involves an action to recover a $5000
security deposit. The trial court ultimately concluded
that the plaintiff had demonstrated his entitlement
thereto, less a $1320.78 setoff to the defendant.
Although the court did not specifically reference a
‘‘pitched legal battle,’’ its December 19, 2014 articulation
of its memorandum of decision portrays exactly that.
As the court recounted: ‘‘[T]he plaintiff, as a pro se
party, initially filed this matter in small claims court on
May 19, 2011. However, the complexity of the case
increased when it was transferred to the regular civil
docket, by the defendant’s motion . . . . The parties
conducted discovery, filed pretrial memoranda pursu-
ant to a pretrial management order . . . and filed other
pretrial motions and requests. Trial spanned five days
and almost eight months. The parties submitted almost
one hundred exhibits, and the court took testimony
from a variety of witnesses. Posttrial briefs were subse-
quently submitted by the parties . . . . On August 9,
2013 . . . more than two years since the case was com-
menced in small claims court, the plaintiff obtained
judgment in his favor.’’4 Such protracted litigation is
precisely what § 52-251a is intended to deter. See Rana
v. Terdjanian, 136 Conn. App. 99, 117, 46 A.3d 175,
cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).
Third, the record does not substantiate the defen-
dant’s assertion that the trial court failed to consider
those underlying purposes in this case. In his appellate
brief, the defendant contends that ‘‘[i]t is clear from
[the court’s] articulation that the trial court never con-
sidered the purposes behind the statute.’’ We disagree.
Despite filing a motion for reconsideration, an objection
to the award of attorney’s fees and costs, and multiple
requests for articulation, at no time did the defendant
raise that distinct claim before the trial court. ‘‘It is
fundamental that claims of error must be distinctly
raised and decided in the trial court.’’ State v. Faison,
112 Conn. App. 373, 379, 962 A.2d 860, cert. denied, 291
Conn. 903, 967 A.2d 507 (2009). Our rules of practice
require a party, as a prerequisite to appellate review,
to distinctly raise such claims before the trial court.
See Practice Book § 5-2 (‘‘[a]ny party intending to raise
any question of law which may be the subject of an
appeal must . . . state the question distinctly to the
judicial authority’’); see also Practice Book § 60-5
(‘‘[t]he court shall not be bound to consider a claim
unless it was distinctly raised at trial or arose subse-
quent to trial’’); accord Remillard v. Remillard, 297
Conn. 345, 351, 999 A.2d 713 (2010) (raised distinctly
means party must bring to attention of trial court pre-
cise matter on which decision is being asked). As our
Supreme Court has explained, ‘‘[t]he reason for the rule
is obvious: to permit a party to raise a claim on appeal
that has not been raised at trial—after it is too late for
the trial court or the opposing party to address the
claim—would encourage trial by ambuscade, which is
unfair to both the trial court and the opposing party.’’
(Internal quotation marks omitted.) Travelers Casu-
alty & Surety Co. of America v. Netherlands Ins. Co.,
312 Conn. 714, 761–62, 95 A.3d 1031 (2014). For that
reason, Connecticut appellate courts generally ‘‘will not
address issues not decided by the trial court.’’ Willow
Springs Condominium Assn., Inc. v. Seventh BRT
Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998);
see also Crest Pontiac Cadillac, Inc. v. Hadley, 239
Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims ‘‘neither
addressed nor decided’’ by trial court are not properly
before appellate tribunal).
The record before us nonetheless belies the defen-
dant’s claim. ‘‘In Connecticut, our appellate courts do
not presume error on the part of the trial court.’’ (Inter-
nal quotation marks omitted.) Jalbert v. Mulligan, 153
Conn. App. 124, 145, 101 A.3d 279, cert. denied, 315
Conn. 901, 104 A.3d 107 (2014). Rather, absent a show-
ing to the contrary, we presume that the court properly
considered all relevant criteria in awarding the plaintiff
attorney’s fees and costs pursuant to § 52-251a. See
Kaczynski v. Kaczynski, 294 Conn. 121, 129–30, 981
A.2d 1068 (2009) (presume court undertook proper
analysis of law and facts and acted properly in rendering
judgment). As we read the court’s articulations of its
memorandum of decision, it was indeed cognizant of
the policies underlying § 52-251a, and fashioned its
award mindful that a relatively straightforward small
claims action to recover a security deposit was trans-
formed into a pitched legal battle once it was trans-
ferred to the regular docket of the Superior Court. We
therefore reject the defendant’s bald assertion that the
court failed to consider those policies.5
At that same time, we also cannot agree with the
plaintiff’s suggestion that a trial court abuses its discre-
tion if it declines to award a plaintiff attorney’s fees
and costs under § 52-251a when that plaintiff is the
prevailing party. That statute specifically provides that
a trial court ‘‘may allow’’ a prevailing plaintiff to recover
reasonable attorney’s fees and costs when a small
claims matter was transferred to the regular docket on
the motion of the defendant. Accordingly, our courts
consistently have interpreted that grant of authority as
discretionary in nature. As this court has held, ‘‘[a]n
award of attorney’s fees is not a matter of right. Whether
any award is to be made and the amount thereof lie
within the discretion of the trial court, which is in the
best position to evaluate the particular circumstances
of a case.’’ (Internal quotation marks omitted.) LaMon-
tagne v. Musano, Inc., 61 Conn. App. 60, 63–64, 762
A.2d 508 (2000); see also Krack v. Action Motors Corp.,
supra, 87 Conn. App. 694 (‘‘[w]e review the award of
attorney’s fees [pursuant to § 52-251a] for a clear abuse
of discretion’’); Petti v. Balance Rock Associates, supra,
12 Conn. App. 363 (language of § 52-251a ‘‘allows the
court discretion in whether attorney’s fees should be
awarded’’). That precedent is consistent with the pre-
cept that the use of the term ‘‘may’’ in a statute generally
is construed as ‘‘directory rather than mandatory. . . .
The word may, unless the context in which it is
employed requires otherwise, ordinarily does not con-
note a command. Rather, the word generally imports
permissive conduct and the conferral of discretion.’’
(Citation omitted; internal quotation marks omitted.)
Office of Consumer Counsel v. Dept. of Public Utility
Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000). We
adhere to that precedent, and conclude that whether
to award attorney’s fees and costs pursuant to § 52-
251a is a matter left to the sound discretion of the
trial court.
II
The remaining question is whether the court abused
its discretion in awarding the plaintiff attorney’s fees
and costs in the present case. ‘‘A court has few duties
of a more delicate nature than that of fixing counsel
fees. The issue grows even more delicate on appeal;
we may not alter an award of attorney’s fees unless the
trial court has clearly abused its discretion . . . .
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 [pursuant to § 52-251a] unless the
trial court has clearly abused its discretion.’’ (Citation
omitted; internal quotation marks omitted.) LaMon-
tagne v. Musano, Inc., supra, 61 Conn. App. 64.
In its first articulation of its decision, the court
detailed how a relatively minor dispute over a security
deposit became a protracted legal battle once the mat-
ter, on the defendant’s motion, was transferred from
the small claims session to the regular docket of the
Superior Court. The court explained that, following that
transfer, both the complexity and the duration of the
case dramatically increased. In its second articulation,
the court, citing relevant case law, emphasized that ‘‘the
fact-finding function is vested in the trial court with its
unique opportunity to view the evidence presented in
a totality of the circumstances, i.e., including its obser-
vations of the demeanor and conduct of the witnesses
and parties. . . . Nothing in our law is more elemen-
tary than that the trier [of fact] is the final judge of the
credibility of witnesses and the weight to be accorded
to the testimony.’’ (Citations omitted; internal quotation
marks omitted.) The court then stated that it ‘‘reviewed
the presentation of evidence, the effort expended by
the plaintiff’s counsel, as well as the complexity of the
legal issues in the case’’ in deciding whether to award
attorney’s fees and costs to the plaintiff. In addition,
the court clarified that ‘‘[t]he amount awarded . . .
was strictly for the prosecution of successful claims.’’6
Having presided over a five day trial over the course
of eight months, the trial court was in the best position
to evaluate the particular circumstances of this case,
as well as the reasonableness of the attorney’s fees
requested by the plaintiff. Given the nature of the plain-
tiff’s initial action before the small claims court, the
years of litigation that followed its transfer to the regu-
lar docket, and the court’s specific findings of fact as
detailed in its memorandum of decision and two subse-
quent articulations, we cannot conclude that the court
clearly abused its discretion in awarding reasonable
attorney’s fees and costs to the plaintiff as the prevailing
party pursuant to § 52-251a.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At trial, an e-mail dated December 19, 2010, from the defendant’s realtor,
Abbe Friedman, to the defendant was admitted into evidence. In that corre-
spondence, Friedman stated that ‘‘[t]he house is in pristine condition, with
the exception of a leaking pipe in the master bedroom sink. . . . The house
will not need to be cleaned for the new tenants as it is very clean.’’ Friedman
also indicated that, during the walk-through earlier that day, the plaintiff
attempted to surrender his keys to the residence, but she refused. As Fried-
man stated: ‘‘I refused to sign anything today acknowledging receipt of [the
keys]. I did not know if by signing anything it would be harmful to your
future action, so I decided not to sign. He will mail them by registered mail.’’
2
Although the jurisdiction of the small claims court generally is confined
to actions in which a party claims ‘‘money damages not in excess of five
thousand dollars’’; General Statutes § 51-15 (d); our General Statutes permit
a plaintiff tenant seeking the return of a security deposit from a landlord
to recover twice the amount thereof. See General Statutes §§ 47a-21 (d) and
51-15 (d).
3
General Statutes § 52-139 (a) provides: ‘‘In any action brought for the
recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs,
or any of them, and the defendant or defendants, or any of them, one debt
may be set off against the other.’’
4
The docket summary in this case contains more than 100 entries subse-
quent to its transfer to the regular docket of the Superior Court.
5
Costanzo v. Mulshine, 94 Conn. App 655, 893 A.2d 905, cert. denied, 279
Conn. 911, 902 A.2d 1070 (2006), therefore is distinguishable from the present
case. In Constanzo, this court held that the trial court abused its discretion
in failing to award the plaintiff a larger amount of attorney’s fees and costs
pursuant to § 52-251a due to, inter alia, ‘‘the court’s apparent lack of consider-
ation’’ of the policies underlying that statute. Id., 663. Constanzo thus
instructs that consideration of those policies is not a prerequisite to the
court’s exercise of discretion pursuant to § 52-251a, but rather constitutes
a factor in that discretionary determination.
6
We note that the court did not award the plaintiff the full amount of
attorney’s fees and costs requested, but rather reduced that amount by $1225.