Lederle v. Spivey

 CATHERINE LEDERLE v. STEVAN SPIVEY
(AC 37755)
DiPentima, C. J., and Beach and Danaher, Js.*
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the plaintiff’s motion for attorney’s fees. Following the dissolu-
tion of the parties’ marriage, the defendant had filed a motion to open
the dissolution judgment, which the trial court denied, and the defendant
appealed from that judgment to this court, which upheld the denial of
that motion. The plaintiff thereafter filed a motion for attorney’s fees
incurred in defending that appeal. In granting the plaintiff’s motion for
attorney’s fees, the trial court concluded that the appeal concerning the
motion to open lacked any indicia of a colorable claim and was brought
in bad faith, and, therefore, it awarded attorney’s fees pursuant to the
bad faith exception to the general rule that attorney’s fees are not
allowed to the successful party in the absence of a contractual or statu-
tory exception. Pursuant to the bad faith exception, in order to impose
sanctions pursuant to its inherent authority, the trial court must find
both that the litigant’s claims were entirely without color and that the
litigant acted in bad faith, and the court must make those findings with
a high degree of specificity. Held that the trial court abused its discretion
in awarding attorney’s fees to the plaintiff pursuant to the bad faith
exception: although that court found that the defendant had acted in
bad faith and supported that finding with a high degree of specificity,
it failed to delineate its finding that the defendant’s appeal concerning
the motion to open lacked any indicia of a colorable claim with clear
evidence and a high degree of specificity; moreover, there was no indica-
tion in the trial court’s memorandum of decision that it applied the
correct standard for colorability applicable to a party, as opposed to
an attorney, and that it therefore considered whether the defendant’s
principal claim in his previous appeal was so lacking in factual and legal
support that a reasonable person could not have concluded that the
basis of the claim might be established; accordingly, a new hearing is
required at which the trial court must apply the proper standard for
colorability determinations applicable to a party, and its factual findings
thereon have to be made with a high degree of specificity.
Argued January 9—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Abery-Wetstone, J. [dissolution
judgment]; Emons, J. [motion for attorney’s fees].)
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Abery-
Wetstone, J.; judgment dissolving the marriage and
granting certain other relief; thereafter, the court,
Emons, J., denied the defendant’s motion to open, and
the defendant appealed to this court, which affirmed
the judgment; subsequently, the court, Emons, J.,
granted the plaintiff’s motion for attorney’s fees, and
the defendant appealed to this court. Reversed; fur-
ther proceedings.
David DeRosa, with whom was Paul Greenan, for
the appellant (defendant).
Tara C. Dugo, with whom, on the brief, was Norman
A. Roberts II, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, Stevan Spivey,
appeals from the judgment of the trial court awarding
$30,000 in attorney’s fees to the plaintiff, Catherine Led-
erle. On appeal, the defendant claims that the court
abused its discretion in (1) awarding attorney’s fees
based on its conclusion that his claims in a prior appeal
were entirely without color and that he acted in bad
faith, and (2) finding that an award of $30,000 in attor-
ney’s fees was reasonable under the circumstances of
this case. We agree with the defendant’s first claim that
the court abused its discretion in awarding attorney’s
fees. Accordingly, we reverse the judgment awarding
the plaintiff $30,000 in attorney’s fees and remand the
matter for a determination of whether the defendant’s
claims in his previous appeal were entirely without
color.
The following facts and procedural posture, as out-
lined in Lederle v. Spivey, 151 Conn. App. 813, 814–16,
96 A.3d 1259, cert. denied, 314 Conn. 932, 102 A.3d 84
(2014), are relevant to our resolution of this appeal.
‘‘The parties were married in Darien on December 31,
1998. One child was born of the marriage in 2000. There-
after, the marriage broke down irretrievably, and, in
March, 2005, the plaintiff commenced an action seeking
to dissolve the marriage. On May 2, 2007, the court,
Abery-Wetstone, J., rendered a judgment of dissolution.
As part of this decision, the court acknowledged the
plaintiff’s claim that she needed to move to Virginia in
order to remain competitive in her employment with
Lexmark, and found that it was in the best interest of
the child to relocate with her to Virginia. The defendant
appealed from the judgment, arguing, inter alia, that
the court improperly permitted the plaintiff to relocate
with their minor child to Virginia. We affirmed the judg-
ment of the court, and our Supreme Court denied certifi-
cation to appeal. Lederle v. Spivey, 113 Conn. App. 177,
965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d
728 (2009).
‘‘The defendant subsequently filed an amended
motion to open the judgment, in which he claimed that
[t]he plaintiff, in her trial testimony committed fraud
with respect to the issue of her Lexmark employment
and specifically whether or not [her Lexmark employ-
ment position] was available in Virginia on the dates
testified to.’’ (Internal quotation marks omitted.) Led-
erle v. Spivey, supra, 151 Conn. App. 814–15. According
to the defendant, ‘‘[t]he plaintiff had a continuing duty
to disclose the status of her job situation with Lexmark
after [the May 2, 2007] judgment [of the trial court],
and before the Appellate Court issued a memorandum
of decision in [March] 2009.’’ (Internal quotation marks
omitted.) Id., 815. The defendant further argued that
the plaintiff’s failure to disclose the status of her job
situation with Lexmark constituted fraud ‘‘with respect
to a material fact or facts which ultimately led to [the
trial] court’s conclusion that [the] plaintiff and the
minor child should be permitted to relocate from the
state of Connecticut to the state of Virginia for primarily
employment purposes.’’ (Internal quotation marks omit-
ted.) Id.
‘‘The court, Emons, J., heard oral argument on the
motion and, after receiving a memorandum of law from
counsel for each party in support of their position,
issued a memorandum of decision denying the motion
to open on January 28, 2013. In reaching its decision,
the court found that [a]fter the May 2, 2007 judgment,
on June 5, the plaintiff lost her employment at Lexmark.
. . . On or about August 20, 2007, the plaintiff relocated
to Virginia and at or about the same time, began a new
job at Xerox, also located in Virginia. The court noted
that Judge Abery-Wetstone found numerous reasons
why relocation was in the best interest of the minor
child and that no single factor controlled the decision
of the court. On the basis of the foregoing, the court
held that while the plaintiff did have a duty to disclose
that she lost her Lexmark job and procured a new one
at Xerox, prior to the Appellate [Court’s] decision, her
failure to disclose does not constitute fraud.’’ (Internal
quotation marks omitted.) Id., 815–16. The defendant
appealed from that decision.
In his appeal, the defendant claimed ‘‘that the [trial]
court: (1) improperly held a portion of the hearing on
the motion to open in chambers and off the record; and
(2) abused its discretion by deciding the motion to open,
which was based on a claim of fraud and therefore
involved a question of material fact, without the benefit
of sworn testimony or other evidence.’’ Id., 814. This
court determined that it could not review the first issue
because the record was inadequate for review on
appeal. Id., 816. With respect to the second issue, this
court determined that ‘‘the defendant’s motion to open
based on fraud, which was exclusively predicated upon
the plaintiff’s alleged failure ‘to disclose the status of
her job situation with Lexmark after [the trial court’s]
judgment [of dissolution] . . . and before the Appellate
Court [rendered judgment],’ fail[ed] as a matter of law.’’
(Emphasis in original.) Id., 819. We then explained that
the cases that both parties relied on, i.e., Weinstein
v. Weinstein, 275 Conn. 671, 882 A.2d 53 (2005), and
Billington v. Billington, 220 Conn. 212, 595 A.2d 1377
(1991), merely establish a continuing duty to disclose
pertinent financial information until the judgment of
dissolution is final and not during the appeal. Lederle
v. Spivey, supra, 151 Conn. App. 819. In determining
that the defendant’s claim failed as a matter of law, this
court did not address whether Judge Emons abused
her discretion in deciding the motion to open based on
fraud without the benefit of sworn testimony or other
evidence. See id. Therefore, we affirmed the judgment
of the trial court on July 29, 2014, and our Supreme
Court denied certification to appeal. Lederle v. Spivey,
314 Conn. 932, 102 A.3d 84 (2014).
On March 11, 2013, during the pendency of the appeal
in Lederle v. Spivey, supra, 151 Conn. App. 813, the
plaintiff filed a motion for attorney’s fees incurred in
defending the defendant’s ‘‘appeal of the trial court’s
January 28, 2013 judgment denying his motion to open.’’
The plaintiff also filed a motion for termination of stay
of proceedings on January 20, 2015. Judge Emons held
a hearing on the motion for attorney’s fees on October
30, 2013, and continued the matter until after the appeal
was resolved. Additional hearings were held on Febru-
ary 10, 11 and 20, 2015. On March 4, 2015, the trial court
issued a memorandum of decision in which it granted
the plaintiff’s motion for attorney’s fees and her motion
for termination of stay of proceedings. In granting the
plaintiff’s motion, the trial court found ‘‘that the appeal
filed by the defendant lacked any indicia of a colorable
claim (wholly without color) and was brought in bad
faith. After an evidentiary hearing on the reasonable-
ness of the plaintiff’s fees, the court GRANTS [the]
plaintiff’s motion and awards attorney fees in the
amount of thirty thousand dollars ($30,000).’’ On March
11, 2015, the defendant filed this appeal. Additional facts
will be set forth as necessary.
In the present appeal, the defendant claims that the
trial court abused its discretion in awarding attorney’s
fees on the basis of its conclusion that his prior appel-
late claims were entirely without color and that he had
acted in bad faith. Specifically, the defendant argues
that there was no foundation in the trial court and
appellate court records for the trial court to find that
his appeal from the denial of his motion to open lacked
any indicia of a colorable claim or that it was brought
in bad faith,1 nor did the court’s memorandum of deci-
sion set forth its factual findings with a high degree of
specificity.2 The plaintiff counters that the trial court
had ample evidence on which to base its findings and
order in granting her motion for attorney’s fees. We
agree with the defendant that the court abused its dis-
cretion in awarding attorney’s fees because its decision
lacked the ‘‘high degree of specificity’’ as to its finding
that the defendant’s appeal was entirely without color,
which is required under Maris v. McGrath, 269 Conn.
834, 848, 850 A.2d 133 (2004).3
The following additional facts and procedural history
are relevant to our resolution of this claim. The court
issued a memorandum of decision on March 4, 2015,
in which it granted the plaintiff’s motion for attorney’s
fees, finding, inter alia, that the defendant’s claim that
the court denied his motion to open without the benefit
of sworn testimony or other evidence lacked any indicia
of a colorable claim and was brought in bad faith.4 In
that decision, the court found that ‘‘the transcripts of
an October 24, 2012 hearing . . . demonstrate that the
court inquired of both counsel whether evidence was
a necessary part of the ‘but for’ legal question as to
whether the failure to disclose a new job could have
arisen to a finding of ‘fraud.’ ’’ The court’s decision
continues by stating: ‘‘Even more telling, was the collo-
quy that the court had with both clients, explaining to
them that the court would entertain a legal issue with
facts as stipulated in simultaneous briefs by counsel.
As the court explained, depending upon the decision,
further evidentiary hearing and/or appeals might be nec-
essary. . . . As is clear from the October 24, 2012 tran-
scripts, the attorneys, in the presence of their clients
and on the record, agreed to file simultaneous briefs
with factual stipulations . . . copies of [the] defen-
dant’s and [the] plaintiff’s simultaneous briefs together
with copies of pages 8 [through] 15 of [the] plaintiff’s
appellee’s brief analyzing all factual stipulations are
attached as appendix C. There is no conceivable way
that either [the] defendant or his appellate counsel did
not have this information or evidence available to them
prior to bringing the appeal.’’ The court’s decision fur-
ther noted that ‘‘the defendant and his appellate counsel
perpetuated an appeal knowing that counsel, the court,
and the clients had agreed to proceed in a particular
way. Nevertheless, in a bad faith and disingenuous way,
the defendant and appellate counsel . . . proceeded
with an appeal that was wholly lacking a factual or
legal basis.’’ Accordingly, the trial court granted the
motion for attorney’s fees pursuant to the bad faith
exception set forth in Maris v. McGrath, supra, 269
Conn. 844–46. On March 11, 2015, the defendant filed
this appeal, claiming that the court abused its discretion
in awarding attorney’s fees.
We begin by setting forth our well established stan-
dard of review and applicable legal principles that gov-
ern our resolution of this claim. ‘‘The abuse of discretion
standard of review applies when reviewing a trial
court’s decision to [grant or] deny an award of attor-
ney’s fees. . . . 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.’’ (Citations omitted; internal quotation marks omit-
ted.) Munro v. Munoz, 146 Conn. App. 853, 858, 81 A.3d
252 (2013).
‘‘[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).
‘‘Th[is] rule does not apply, however, where the oppos-
ing party has acted in bad faith.’’ (Internal quotation
marks omitted.) Munro v. Munoz, supra, 146 Conn.
App. 858. This exception to the American rule often is
referred to as the bad faith exception. See Rinfret v.
Porter, 173 Conn. App. 498, 509 n.14, A.3d (2017).
Pursuant to the bad faith exception, ‘‘[i]t is generally
accepted that the court has the inherent authority to
assess attorney’s fees when the losing party has acted
in bad faith, vexatiously, wantonly or for oppressive
reasons. . . . This bad faith exception applies, not only
to the filing of an action, but also in the conduct of the
litigation.’’ (Internal quotation marks omitted.) Munro
v. Munoz, supra, 146 Conn. App. 858. ‘‘It applies both
to the party and his counsel. . . . Moreover, the trial
court must make a specific finding as to whether coun-
sel’s [or a party’s] conduct . . . constituted or was tan-
tamount to bad faith, a finding that would have to
precede any sanction under the court’s inherent powers
to impose attorney’s fees for engaging in bad faith litiga-
tion practices.’’ (Internal quotation marks omitted.)
Kupersmith v. Kupersmith, 146 Conn. App. 79, 97, 78
A.3d 860 (2013).
‘‘[A] litigant seeking an award of attorney’s fees for
the bad faith conduct of the opposing party faces a high
hurdle.’’ Berzins v. Berzins, supra, 306 Conn. 662. ‘‘To
ensure . . . that fear of an award of attorney’s fees
against them will not deter persons with colorable
claims from pursuing those claims, we have declined
to uphold awards under the bad-faith exception absent
both clear evidence that the challenged actions are
entirely without color and [are taken] for reasons of
harassment or delay or for other improper purposes
. . . and a high degree of specificity in the factual find-
ings of [the] lower courts.’’ (Internal quotation marks
omitted.) Maris v. McGrath, supra, 269 Conn. 845; see
also Kupersmith v. Kupersmith, supra, 146 Conn. App.
97. Thus, our Supreme Court held that ‘‘Maris makes
clear that in order to impose sanctions pursuant to its
inherent authority, the trial court must find both [1] that
the litigant’s claims were entirely without color and
[2] that the litigant acted in bad faith.’’ (Emphasis in
original.) Berzins v. Berzins, supra, 663.
Accordingly, to determine whether the litigant’s
claims were entirely without color, the court must apply
‘‘[t]he standard for colorability [which] varies
depending on whether the claimant is an attorney or a
party to the litigation. . . . If the claimant is an attor-
ney, a claim is colorable if a reasonable attorney could
have concluded that facts supporting the claim might
be established, not whether such facts had been estab-
lished. . . . If the claimant is a party to the litigation,
a claim is colorable, for purposes of the bad faith excep-
tion to the American rule, if a reasonable person, given
his or her first hand knowledge of the underlying matter,
could have concluded that the facts supporting the
claim might have been established.’’ (Citations omitted;
internal quotation marks omitted.) McKeon v. Lennon,
131 Conn. App. 585, 612–13, 27 A.3d 436, cert. denied,
303 Conn. 901, 31 A.3d 1178 (2011). Significantly, the
sanctions in the present case were imposed against the
defendant and not his attorney, and, thus, the latter
standard for colorability guides our analysis.
On the other hand, in determining whether the litigant
acted in bad faith, the court need only apply one stan-
dard. According to the bad faith standard, ‘‘the court
must assess whether there has been substantive bad
faith as exhibited by, for example, a party’s use of
oppressive tactics or its wilful violations of court
orders; [t]he appropriate focus for the court . . . is the
conduct of the party in instigating or maintaining the
litigation.’’ (Internal quotation marks omitted.) Berzins
v. Berzins, supra, 306 Conn. 662.
‘‘Moreover, our Supreme Court’s holding in Berzins
makes clear that the two required findings, i.e., color-
ability and bad faith, must be separate from each other’’;
Rinfret v. Porter, supra, 173 Conn. App. 509–10 (refer-
ring to Berzins v. Berzins, supra, 306 Conn. 663); and
the court must set forth its factual findings with ‘‘a high
degree of specificity.’’ Maris v. McGrath, supra, 269
Conn. 848.
Mindful of the high degree of specificity standard,
we conclude that the findings of the trial court in the
present case do not satisfy the requirement in Berzins
that the court find ‘‘both that the litigant’s claims were
entirely without color and that the litigant acted in
bad faith.’’ (Emphasis in original.) Berzins v. Berzins,
supra, 306 Conn. 663; see Perry v. Perry, 312 Conn.
600, 630, 95 A.3d 500 (2014) (Supreme Court concluded
that trial court, guided by Maris, was required to find
both that movant’s claims challenging attorney’s fees
were entirely without color and that he acted in bad
faith, but ‘‘the trial court never mentioned Maris in its
memorandum of decision. Therefore, the trial court
did not make the required findings under Maris and,
consequently, the [moving party] is entitled to a new
hearing at which the trial court applies the proper stan-
dard.’’); see also Light v. Grimes, 156 Conn. App. 53,
68, 111 A.3d 551 (2015) (this court reversed award for
attorney’s fees when ‘‘although the [trial] court did find
that the defendant’s motion . . . was wasteful and bor-
dering on frivolous, the court did not find that the defen-
dant’s claims were entirely without color and that he
acted in bad faith’’). Specifically, although the trial court
here found that the defendant acted in bad faith and
supported that finding with a high degree of specificity
in its memorandum of decision, it did not make similarly
specified findings as to colorability. Cf. Berzins v. Ber-
zins, supra, 306 Conn. 663 (reversing trial court’s award
of attorney’s fees based on conclusion that ‘‘the court
did not make a separate finding that the administrator
acted in bad faith’’); see generally Kupersmith v. Kuper-
smith, supra, 146 Conn. App. 98 (‘‘[t]he court found
generally both that the defendant’s motion was entirely
without color and that he acted in bad faith, yet the
court did not support that finding with factual speci-
ficity’’).
Specifically, the trial court incorrectly set forth the
applicable standard to determine whether a claim is
colorable for purposes of the bad faith exception to the
American rule. Because this case involved sanctions in
the form of attorney’s fees for the bad faith conduct
by the defendant, the court should have applied the
standard for colorability applicable to a party and not
an attorney. To reiterate, that standard provides that if
the claimant is a party, rather than an attorney, ‘‘a claim
is colorable, for purposes of the bad faith exception to
the American rule, if a reasonable person, given his or
her first hand knowledge of the underlying matter,
could have concluded that the facts supporting the
claim might have been established.’’ (Internal quotation
marks omitted.) Maris v. McGrath, supra, 269 Conn.
847. Our Supreme Court has previously concluded that
‘‘[t]his is an appropriate reformulation of the standard,
cast in terms applicable to a party, because it focuses
on the party’s firsthand knowledge of the facts and
whether, given that knowledge, the party reasonably
could have concluded that his or her claim might be
established. This standard, moreover, takes into
account the capacity of the party for truthfully or
untruthfully recounting those facts, as well as the capac-
ity for honest mistakes, recollections and disagree-
ments over those facts.’’ Id.
In the present case, the trial court’s decision did not
apply the aforementioned standard to determine
whether the defendant’s appeal was entirely without
color. Rather, the trial court’s decision noted: ‘‘Maris
makes clear that in order to impose sanctions pursuant
to its inherent authority, the trial court must find both
that the litigant’s claims were entirely without color
and that the litigant acted in bad faith.’’ In applying the
foregoing authority to determine the issue of colorabil-
ity, the trial court merely stated: ‘‘After reviewing the
evidence that the defendant and/or his attorney had at
the time that the appeal was taken and during the time
that it was presented, the court would be hard-pressed
to find that there was an existing colorable claim on
appeal.’’ Because the trial court did not apply the cor-
rect standard for colorability in its memorandum of
decision, it is not clear whether it assessed the issue
of colorability focusing on the defendant’s firsthand
knowledge of the facts and whether, given that knowl-
edge, the defendant reasonably could have concluded
that his claim might be established. See Maris v.
McGrath, supra, 269 Conn. 847.
For example, in Maris, our Supreme Court applied
the standard for colorability applicable to a party as
opposed to his attorney. Id., 848. The Supreme Court
concluded ‘‘that the trial court was justified in making
the award of attorney’s fees’’ based on the specific
findings it identified in its memorandum of decision.
Id. In particular, in discussing the trial court’s finding
that the plaintiff’s claim was entirely without color,
our Supreme Court stated: ‘‘First, the court specifically
found that the plaintiff repeatedly had testified untruth-
fully . . . . The court specifically identified all of the
numerous instances in which the plaintiff had testified
untruthfully, and it specifically found that the plaintiff’s
claims were wholly without merit . . . . Second, the
matters about which the plaintiff repeatedly had testi-
fied untruthfully . . . were matters particularly within
his firsthand knowledge . . . .’’ (Internal quotation
marks omitted.) Id. The court then concluded that the
trial court’s finding that the plaintiff’s claim was entirely
without color was ‘‘based on ample and clear evidence,
which the trial court specifically identified in its memo-
randum of decision.’’ Id.
In Keller v. Keller, 167 Conn. App. 138, 150, 142 A.3d
1197 (2016), this court applied the foregoing standard
for colorability applicable to a party and concluded:
‘‘The [trial] court clearly stated that even if the plaintiff’s
claims were true, no reasonable person would find that
her actions were justified.’’ We continued by noting
that the trial court’s finding that the plaintiff proceeded
without colorable claims was sufficiently detailed in its
decision. Id., 151.
In the present case, there is no indication in the trial
court’s memorandum of decision that it applied the
appropriate standard for colorability and considered
whether the defendant’s principal claim in his previous
appeal was so lacking in factual and legal support that
a reasonable person could not have concluded that the
basis of the claim might be established. Although the
trial court’s memorandum of decision did discuss the
defendant’s knowledge of a factual stipulation per-
taining to the ‘‘but for’’ legal issue of fraud in the under-
lying motion to open, this finding appears to relate to
its determination on bad faith and not its determination
on colorability. Specifically, the trial court’s memoran-
dum of decision states: ‘‘At the very least, the defendant
and his appellate counsel perpetuated an appeal know-
ing that counsel, the court, and the clients had agreed
to proceed in a particular way. Nevertheless, in a bad
faith and disingenuous way, the defendant and appellate
counsel . . . proceeded with an appeal that was
wholly lacking a factual and legal basis.’’ There is no
similar finding as to whether the defendant’s claims
were not colorable.
There are no further indications in the record that
the court made other findings of fact to support its
conclusion that the defendant’s principal claim in his
previous appeal was entirely without color. For these
reasons, we conclude that the present case is distin-
guishable from Maris and Keller, in which each court
applied the appropriate standard for colorability and
determined that the trial court’s finding that the party
acted without colorable claims was sufficiently detailed
with a high degree of specificity. By contrast, the court
in the present case did not delineate its finding of color-
ability with clear evidence and a high degree of specific-
ity as required under our case law. Berzins v. Berzins,
supra, 306 Conn. 663; Maris v. McGrath, supra, 269
Conn. 848. Therefore, the trial court failed to make the
necessary finding pertaining to the colorability require-
ment of the bad faith exception set forth in Maris.
Accordingly, although the trial court found that the
defendant acted in bad faith and supported that finding
with a high degree of specificity in its factual findings,
we conclude that it erred in applying Maris and subse-
quently awarding attorney’s fees, as it failed to set forth
its factual findings with ‘‘a high degree of specificity’’
concerning whether the defendant’s previous appeal
was entirely without color. Maris v. McGrath, supra,
269 Conn. 848; see also Berzins v. Berzins, supra, 306
Conn. 663. Moreover, there was no indication in the
trial court’s memorandum of decision that it applied
the correct standard for colorability applicable to a
party and considered whether the defendant’s principal
claim in his previous appeal was so lacking in factual
and legal support that a reasonable person could not
have concluded that the basis of the claim might be
established. For the foregoing reasons, we conclude
that the trial court abused its discretion in awarding
attorney’s fees pursuant to the bad faith exception of
the American rule because the court did not apply the
standard set forth in Maris. See Maris v. McGrath,
supra, 269 Conn. 847–48. Therefore, a new hearing is
required at which the trial court must apply the proper
standard applicable to a party as set forth in Maris,
and its factual findings thereon must be made with a
high degree of specificity.
The judgment is reversed and the case is remanded
for further proceedings on the plaintiff’s motion for
attorney’s fees in accordance with the preceding
paragraph.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
We note that the defendant further argued that the trial court’s conclusion
was based on its clearly erroneous finding that the parties entered into a
factual stipulation as to their respective positions on the motion to open,
on which it relied in denying that motion. This court reviews the trial court’s
findings of facts under the clearly erroneous standard of review. See McKeon
v. Lennon, 131 Conn. App. 585, 612, 27 A.3d 436, cert. denied, 303 Conn.
901, 31 A.3d 1178 (2011). ‘‘A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Id. Our review of the record reveals
that at the October 24, 2012 hearing on the motion to open, the defendant’s
trial counsel asserted that the issue of fraud was fundamentally a legal issue
and the facts were not in dispute. Further, there was evidence that at the
October 24, 2012 hearing the parties orally agreed to proceed with a stipula-
tion of facts, which was memorialized subsequently in both parties’ memo-
randa of law on the issue of fraud. Consequently, the defendant’s
argument fails.
2
Pursuant to our case law, the trial court is obligated to ‘‘find both that
the litigant’s claims were entirely without color and that the litigant acted
in bad faith’’; (emphasis in original) Berzins v. Berzins, 306 Conn. 651, 663,
51 A.3d 941 (2012); and the court must set forth its factual findings with ‘‘a
high degree of specificity’’ before awarding attorney’s fees. Maris v.
McGrath, 269 Conn. 834, 848, 850 A.2d 133 (2004).
3
We disagree, however, with the defendant that the trial court erred in
finding that his conduct in maintaining the previous appeal was in bad
faith. The trial court summarized its finding that the defendant’s conduct
of maintaining the previous appeal was in bad faith by stating: ‘‘At the very
least, the defendant and his appellate counsel perpetuated an appeal knowing
that counsel, the court, and the clients had agreed to proceed in a particular
way. Nevertheless, in a bad faith and disingenuous way, the defendant and
appellate counsel . . . proceeded with an appeal that was wholly lacking
a factual and legal basis.’’ In reviewing this finding of bad faith under the
clearly erroneous standard of review, we are convinced that the trial court’s
finding is sufficiently supported with a high degree of specificity in its
memorandum of decision. See Munro v. Munoz, 146 Conn. App. 853, 861–62,
81 A.3d 252 (2013) (‘‘Whether a party has acted in bad faith is a question
of fact, subject to review only for clear error. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to support it . . . or
when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake
has been committed.’’ [Citation omitted; internal quotation marks omitted.]).
Therefore, contrary to the defendant’s assertion, we conclude that the trial
court’s finding of bad faith was not clearly erroneous under the circum-
stances of this case. See McKeon v. Lennon, 131 Conn. App. 585, 612, 27
A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011). Because the trial
court was obligated to ‘‘find both that the litigant’s claims were entirely
without color and that the litigant acted in bad faith’’; (emphasis in original)
Berzins v. Berzins, 306 Conn. 651, 663, 51 A.3d 941 (2012); before awarding
attorney’s fees, the primary focus of our analysis will therefore be on the
court’s finding that the defendant’s previous appeal lacked any indicia of a
colorable claim.
4
Although the defendant claimed in the prior appeal ‘‘that the [trial] court:
(1) improperly held a portion of the hearing on the motion to open in
chambers and off the record; and (2) abused its discretion by deciding the
motion to open, which was based on a claim of fraud and therefore involved
a question of material fact, without the benefit of sworn testimony or other
evidence’’; Lederle v. Spivey, supra, 151 Conn. App. 814; our focus in the
present appeal is on the latter of the defendant’s claims, which we refer to
as the principal claim in this appeal. As we discuss at greater length in this
opinion, we are not convinced that the trial court set forth its findings with
a high degree of specificity pertaining to its conclusion that the defendant’s
principal claim in the foregoing appeal was entirely without color. Therefore,
because we conclude that the court failed to apply the correct standard to
find that the defendant’s principal claim was entirely without color, we need
not address whether the other claim in his previous appeal was also entirely
without color for purposes of the applicability of the bad faith exception
to the American rule in the present appeal. Munro v. Munoz, 146 Conn.
App. 853, 861, 81 A.3d 252 (2013) (before awarding attorney’s fees ‘‘the court
had to find both that the defendant’s claims were entirely without color,
and that he acted in bad faith’’ [emphasis added]).