Town of Glastonbury v. Sakon

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TOWN OF GLASTONBURY v. JOHN ALAN
SAKON ET AL.
(AC 39907)
Bright, Moll and Sullivan, Js.
Syllabus
The plaintiff town of Glastonbury sought to foreclose municipal tax liens
on certain real property owned by the defendant S. The trial court
rendered judgment of foreclosure by sale and awarded attorney’s fees
to the town. Following a hearing on S’s motion for reconsideration as
to the issue of attorney’s fees, the court found that although the fees
requested were unusually high for an action to foreclose tax liens, the
fees here were reasonable given the number of nearly frivolous filings
by S, which caused the present action to remain pending for years. The
court entered an order confirming the initial amount of attorney’s fees
it had previously awarded, and S appealed to this court, claiming that
the total award of attorney’s fees was unreasonable when compared to
the amount of the tax liens at issue in the present case and to attorney’s
fees awarded in similar tax lien foreclosure cases. Held that the trial
court did not abuse its discretion in determining the amount of attorney’s
fees awarded to the town; the town was authorized by statute (§ 12-
193) to recover reasonable attorney’s fees incurred in this foreclosure
action, the trial court conducted a full evidentiary hearing at which S
had the opportunity to testify on his own behalf and to elicit testimony
from W, the town’s attorney, challenging the fees charged, and it properly
considered the evidence before it and the circumstances of the underly-
ing foreclosure action, including W’s affidavit, the billing records from
W’s law firm, and the high number of filings and extensive history of
the case, and this court would not disturb the trial court’s determination
that W testified credibly.
Argued May 17—officially released August 28, 2018
Procedural History
Action to foreclose municipal tax liens on certain
real property owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of Hartford, where the court, Robaina, J.,
granted the plaintiff’s motion for summary judgment as
to liability only; thereafter, the court, Dubay, J., ren-
dered judgment of foreclosure by sale and awarded
attorney’s fees to the plaintiff; subsequently, the court,
Dubay, J., granted the named defendant’s motion to
reconsider only as to the issue of attorney’s fees; there-
after, the court, Dubay, J., entered an order confirming
the initial amount of attorney’s fees awarded, and the
named defendant appealed to this court. Affirmed.
John Sakon, self-represented, the appellant (named
defendant).
Latonia C. Williams, with whom was Patrick M.
Fahey, for the appellee (plaintiff).
Opinion
SULLIVAN, J. In this tax lien foreclosure action,1 the
defendant John Alan Sakon2 appeals from the judgment
of the trial court granting the plaintiff’s request for
attorney’s fees and costs. On appeal, the defendant
claims that the attorney’s fees awarded by the court
were excessive and unreasonable. We conclude that
the amount of attorney’s fees awarded to the plaintiff
did not constitute an abuse of discretion and, accord-
ingly, affirm the judgment of the trial court.
This court’s recent decision in the same matter, Glas-
tonbury v. Sakon, 172 Conn. App. 646, 161 A.3d 657
(2017) (per curiam), sets forth the following facts: ‘‘The
defendant is the record owner of two properties
[described in the complaint as the Griswold Street prop-
erty and the Main Street property, respectively,] in Glas-
tonbury. The defendant failed to pay the property taxes
on his properties for the years 2009, 2010, 2011, 2012,
and 2013. As a result, the plaintiff, the town of Glaston-
bury, assessed tax liens against the defendant’s proper-
ties for the unpaid real property taxes (tax liens).
‘‘On November 6, 2012, the plaintiff commenced this
action to foreclose on the 2009, 2010, and 2011 tax liens
for the defendant’s two properties by filing a two count
complaint, in which each count pertained to one of the
defendant’s two properties. On August 27, 2013, the
plaintiff filed a motion for default for failure to plead,
which was granted on September 4, 2013. On December
10, 2013, the plaintiff filed a motion for judgment of
foreclosure by sale. On December 18, 2013, the defen-
dant filed his answer to the plaintiff’s complaint, which
contained six special defenses and seven counterclaims
(original special defenses and counterclaims). On Janu-
ary 29, 2014, the defendant filed a motion to open the
default, which was granted on February 10, 2014. On
March 12, 2014, the plaintiff filed a motion to strike
the original special defenses and counterclaims (first
motion to strike).
‘‘On August 13, 2014, the plaintiff filed an amended
two count complaint, in which it additionally sought
to foreclose on the 2012 and 2013 tax liens for the
defendant’s two properties and clarified its description
of the defendant’s properties (operative complaint).
‘‘On November 21, 2014, the court, Robaina, J.,
granted the plaintiff’s first motion to strike. On Decem-
ber 10, 2014, the defendant filed a revised motion for
reconsideration of the court’s order granting the plain-
tiff’s first motion to strike. On December 11, 2014, the
defendant filed an amended answer in response to the
operative complaint, which contained special defenses
and counterclaims that were substantially similar to
those raised in his original answer (amended special
defenses and counterclaims). On December 24, 2014,
the plaintiff filed a motion to strike the defendant’s
amended special defenses and counterclaims (second
motion to strike).
‘‘On December 29, 2014, the court denied the defen-
dant’s revised motion for reconsideration of the court’s
order granting the plaintiff’s first motion to strike. On
January 5 and 6, 2015, and February 4, 2015, the defen-
dant filed motions for extension of time to file a substi-
tute pleading pursuant to Practice Book § 10-44. On
February 11, 2015, the defendant filed a substitute
answer, in which he raised four special defenses and
two counterclaims (substitute special defenses and
counterclaims). On March 16, 2015, the court concluded
that the second motion to strike [filed on December
24, 2014] was moot because ‘[t]he operative substitute
special defenses and counterclaims are those filed on
February 11, 2015.’
‘‘On March 31, 2015, the plaintiff filed a motion to
strike the substitute special defenses and counterclaims
(third motion to strike) and a motion for judgment of
nonsuit as to the counterclaims. On July 9, 2015, the
court, Vacchelli, J., applying the law of the case doc-
trine, granted the third motion to strike because the
substitute special defenses and counterclaims ‘all
attempt the exact same challenges previously ruled to
be legally insufficient’ by the court on November 11,
2014. The court also entered default against the defen-
dant as to his special defenses and a judgment of nonsuit
against the defendant and in favor of the plaintiff with
respect to the defendant’s counterclaims.
‘‘On July 24, 2015, the plaintiff moved for summary
judgment as to liability on both counts of the operative
complaint. On July 27, 2015, the defendant filed a
motion for reconsideration of the court’s order granting
the plaintiff’s third motion to strike, which was denied
on August 12, 2015.’’ (Footnote omitted.) Id., 648–50.
The defendant subsequently filed an appeal from the
court’s ruling on the third motion to strike, and this
court dismissed the appeal as to the special defenses
and affirmed the trial court’s ruling striking the counter-
claims. See id., 659.
On January 4, 2016, Judge Robaina granted the plain-
tiff’s motion for summary judgment as to liability only.
On July 13, 2016, the plaintiff filed a motion for judgment
of foreclosure by sale. The court, Dubay, J., ordered a
hearing for August 1, 2016, and, on that date, the defen-
dant requested a continuance to allow him to subpoena
the town’s appraiser and the town’s counsel, Latonia
Williams, and additional time to hire an expert witness.
The court continued the matter for one week to August
8, 2016.3
At the August 8, 2016 hearing, the court only heard
argument on the motion for judgment of foreclosure
by sale scheduled for that day. The plaintiff presented
the most current appraisal of the subject properties and
an updated affidavit of attorney’s fees requesting an
award of counsel fees and costs of $68,982.22 for the
first property and $65,997.21 for the second property.
On the basis of the fair market values of the subject
properties, the amount of debt due, and subsequent
encumbrances on the properties, the court rendered
judgment of foreclosure by sale and ordered attorney’s
fees in the amounts requested by the plaintiff. The
defendant vigorously contested both the entry of the
judgment of foreclosure by sale and the award of attor-
ney’s fees.
On August 26, 2016, the defendant filed a motion
to reconsider the judgment of foreclosure by sale. On
September 9, 2016, the court granted the defendant’s
motion to reconsider only as to the issue of attorney’s
fees. At the hearing on the motion to reconsider on
October 7, 2016, the defendant called Attorney Williams
to testify regarding the reasonableness of the attorney’s
fees requested and, in response to the defendant’s sub-
poena, Attorney Williams produced the billing records
of the law firm of Shipman & Goodwin, LLP, related to
the present case. The defendant then testified on his
own behalf, and the court took the matter under consid-
eration.4 On October 24, 2016, in a written memorandum
of decision, the court entered an order finding the attor-
ney’s fees awarded to the plaintiff in the foreclosure
action reasonable. The court made the following
findings:
‘‘1. The time records/billable hours were entered con-
temporaneously with the services rendered by counsel.
‘‘2. [The] defendant produced no credible evidence
to call into question the hours claimed.
‘‘3. The attorney’s fees, though unusually high for an
action to foreclose tax liens, are reasonable given the
number of nearly frivolous filings by the defendant,
which caused this action to remain pending for years.
‘‘4. [The] defendant had the opportunity to, but did
not, file timely objection to the affidavit of attorney’s
fees submitted during the initial/underlying action.
‘‘5. [The] defendant had a full opportunity to be heard
and to examine and/or present witnesses.
‘‘6. The court fully credits the testimony of Attor-
ney Williams.
‘‘Attorney’s fees and costs in the amount of $68,982.22
are awarded in connection with the Griswold Street
property and $65,997.21 for the Main Street property.’’
On appeal, the defendant claims that the court abused
its discretion as to the amount of the attorney’s fees
that it awarded.5 Specifically, the defendant argues that
the total award of $140,479.43 in attorney’s fees is unrea-
sonable when compared to the amount of the tax liens
at issue in the present case and to attorney’s fees
awarded in similar tax lien foreclosure cases. The plain-
tiff counters that the award of attorney’s fees was rea-
sonable because the trial court record is replete with
motions and pleadings filed by the defendant to delay
the instant proceedings. We agree with the plaintiff and
conclude that the court did not abuse its discretion in
determining the amount of attorney’s fees it awarded.
We set forth the standard of review and applicable
legal principles. ‘‘We review the reasonableness of the
court’s award of attorney’s fees under the abuse of
discretion standard. . . . Under the abuse of discretion
standard of review, [w]e will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of [the amount of attorney’s
fees awarded] is limited to the questions of whether
the trial court correctly applied the law and reasonably
could have reached the conclusion it did. . . . A court
has few duties of a more delicate nature than that of
fixing counsel fees. The issue grows even more delicate
on appeal . . . for the trial court is in the best position
to evaluate the circumstances of each case.’’ (Internal
quotation marks omitted.) East Windsor v. East Wind-
sor Housing, Ltd., LLC, 150 Conn. App. 268, 275, 92
A.3d 955 (2014).
‘‘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.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 274. The plaintiff cor-
rectly argues that its right to recover attorney’s fees in
this case is statutory, rather than contractual, in nature.
General Statutes § 12-181 et seq. authorizes a municipal-
ity to foreclose on outstanding municipal tax liens. See
also Practice Book § 10-70 (setting forth elements
municipality must allege and prove in tax lien foreclo-
sure action). Additionally, General Statutes § 12-193
provides in relevant part: ‘‘Court costs, reasonable
appraiser’s fees, and reasonable attorney’s fees
incurred by a municipality as a result of any foreclosure
action brought pursuant to [§] 12-181 or [§] 12-182 and
directly related thereto shall be taxed in any such pro-
ceeding against any person or persons having title to
any property so foreclosed and may be collected by the
municipality once a foreclosure action has been brought
pursuant to [§] 12-181 or [§] 12-182. . . .’’
Because we conclude that § 12-193 authorizes the
recovery of attorney’s fees by the plaintiff, we next
turn to the question of whether the court’s award was
reasonable. ‘‘The factors a court normally applies in
determining a reasonable attorney’s fee include (1) the
time and labor required; (2) the novelty and difficulty
of the questions; (3) the skill requisite to perform the
legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the
case; (5) the customary fee for similar work in the
community; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circum-
stances; (8) the amount involved and the results
obtained; (9) the experience, reputation and ability of
the attorneys; (10) the undesirability of the case; (11)
the nature and length of the professional relationship
with the client; and (12) awards in similar cases. . . .
That list of factors is not, however, exclusive. The court
may assess the reasonableness of the fees requested
using any number of factors . . . .’’ (Internal quotation
marks omitted.) East Windsor v. East Windsor Hous-
ing, Ltd., LLC, supra, 150 Conn. App. 275–76; see also
Rules of Professional Conduct 1.5.
In the present case, the court conducted a full eviden-
tiary hearing to reconsider the issue of attorney’s fees;
the defendant had the opportunity to elicit testimony
from Attorney Williams challenging the fees and he also
testified on his own behalf as to why he believed the
fees were unreasonable.6 The court properly considered
the evidence before it and the circumstances of the
underlying foreclosure action, including an updated
affidavit from Attorney Williams detailing the fees
requested, the billing records from Shipman & Good-
win, LLP, and the high number of filings and extensive
history of the case. Additionally, the court credited the
testimony of Attorney Williams, and we will not disturb
the trial court’s credibility determinations on appeal.
See LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686,
692, 1 A.3d 157 (2010) (‘‘[a reviewing court] cannot retry
the facts or pass upon the credibility of the witnesses’’
[internal quotation marks omitted]); see also State v.
Franklin, 115 Conn. App. 290, 292, 972 A.2d 741
(‘‘[b]ecause it is the sole province of the trier of fact
to assess the credibility of witnesses, it is not our role
to second-guess such credibility determinations’’), cert.
denied, 293 Conn. 929, 980 A.2d 915 (2009). In light of
the foregoing, we cannot conclude that the court abused
its discretion in awarding the attorney’s fees requested
by the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Since this action commenced over five years ago in November, 2012,
there have been approximately 335 filings in this case. See Glastonbury v.
Sakon, 172 Conn. App. 646, 161 A.3d 657 (2017) (per curiam).
2
Several additional parties were named as defendants in this action, but
they have not participated in this appeal. For the purposes of this opinion,
any reference to the defendant is to John Alan Sakon only.
3
The court subsequently denied the application for issuance of subpoena
as to the town’s appraiser, but authorized the issuance of a subpoena compel-
ling Attorney Williams’ appearance and requesting all records and documents
relating to the foreclosure actions. The clerk issued a subpoena to Attorney
Williams on August 3, 2016. The plaintiff unsuccessfully moved to quash
the subpoena, but the court limited the scope of the subpoena and allowed
the plaintiff to redact the portions of the billing records that were protected
by the attorney work product doctrine or the attorney-client privilege.
4
While the issue of attorney’s fees was pending, the defendant filed a
motion to open the judgment of foreclosure on October 14, 2016. The court
denied the motion on December 12, 2016. Additionally, on November 14,
2016, the committee of sale filed a motion to award interim committee’s
fees and expenses in connection with the cancelled foreclosure sale, totaling
$3962.85, which the court granted on December 2, 2016.
5
The defendant spends the majority of his principal appellate brief
attempting to challenge the judgment of foreclosure by sale. We briefly
review the procedural posture of this appeal to clarify those issues that are
not properly before this court on appeal. The defendant filed his initial
appeal (AC 38413) on September 15, 2015, challenging the court’s order of
default judgment as to his special defenses and a judgment of nonsuit as
to his counterclaims. Thereafter, on August 8, 2016, the trial court rendered
a judgment of foreclosure by sale on the two properties at issue in this
case. On October 14, 2016, the defendant amended his appeal to include
the August 8, 2016 foreclosure judgment. The plaintiff filed a motion with
this court to dismiss the first amended appeal as untimely. The defendant
then amended his appeal a second time to include the October 24, 2016
granting of attorney’s fees. The plaintiff did not file a motion to dismiss the
second amended appeal. On December 7, 2016, this court dismissed the
defendant’s first amended appeal as untimely and ordered, sua sponte, that
the second amended appeal be briefed and considered separately.
The second amended appeal was assigned a new docket number (AC
39907) and stayed pending the trial court’s ruling on the defendant’s motion
to open, which was denied on December 12, 2016. See footnote 4 of this
opinion. Subsequently, the defendant amended AC 39907 on two separate
occasions, indicating that he again intended to challenge the August 8, 2016
judgment of foreclosure by sale, as well as the December 12, 2016 denial
of his motion to open and the award of interim fees to the committee of
sale. The plaintiff filed a motion to dismiss the portions of AC 39907 challeng-
ing the August 8, 2016 judgment. On February 8, 2017, this court granted
the motion to dismiss that portion of the defendant’s amended appeal in
AC 39907 challenging the August 8, 2016 judgment of foreclosure by sale
as untimely. This court also ordered, sua sponte, that the portions of the
subsequent amendments to AC 39907 challenging the August 8, 2016 judg-
ment be dismissed. Accordingly, the only issues properly before this court
are the October 24, 2016 award of attorney’s fees, the court’s denial of the
defendant’s motion to open on December 12, 2016, and the court’s award
of interim fees to the committee of sale.
Additionally, we determine that the defendant has abandoned the issues
of whether the trial court abused its discretion in denying his motion to
open on December 12, 2016, and awarding interim fees to the committee
of sale. ‘‘We are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . Analysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . Where a claim is asserted
in the statement of issues but thereafter receives only cursory attention in the
brief without substantive discussion or citation of authorities, it is deemed
to be abandoned.’’ (Internal quotation marks omitted.) Kelib v. Connecticut
Housing Finance Authority, 100 Conn. App. 351, 353, 918 A.2d 288 (2007).
Here, the defendant’s brief is bereft of any meaningful legal analysis of these
issues and, therefore, provides this court with an insufficient basis for
appellate review.
6
Additionally, the defendant’s argument that the court should have
allowed him an ‘‘accommodation to arrange [an expert witness’] testimony’’
is without merit. Our case law is clear that expert testimony is not required
for a court’s assessment of the reasonableness of attorney’s fees. ‘‘[Trial]
courts have a general knowledge of what would be reasonable compensation
for services which are fairly stated and described. . . . Because of this
general knowledge, [t]he court [is] in a position to evaluate the complexity
of the issues presented and the skill with which counsel had dealt with
these issues. . . . Therefore, [n]ot only is expert testimony not required,
but such evidence, if offered, is not binding on the court.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.) St. Onge, Stewart,
Johnson & Reens, LLC v. Media Group, Inc., 84 Conn. App. 88, 93–94, 851
A.2d 1242, cert. denied, 271 Conn. 918, 859 A.2d 570 (2004). The trial court
expressly found that the defendant ‘‘had a full opportunity to be heard and/
or present testimony’’ where he had notice of the hearing and was able to
present his own testimony and the testimony of Attorney Williams at that
hearing. Accordingly, we conclude that the court did not abuse its discretion
in denying the defendant’s request for an accommodation for an expert
witness.